People vs Talampas: Self-defense and accident defenses rejected

G.R. No. 180219. November 23, 2011.
*
VIRGILIO TALAMPAS y MATIC, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Homicide; Self-defense; Elements of the Plea of Self-defense.—The elements of the
plea of self-defense are: (a) unlawful aggression on the part of the victim; (b) reasonable necessity
of the means employed to prevent or repel the unlawful aggression; and (c) lack of sufficient
provocation on the part of the accused in defending himself.
Same; Same; Words and Phrases; Accident; Accident is an event that happens outside the sway of
our will and although it comes about through some act of our will, it lies beyond the bounds of
humanly foreseeable consequences; Accident presupposes the lack of intention to commit the
wrong done.—Talampas could not relieve himself of criminal liability by invoking accident as a
defense. Article 12(4) of the Revised Penal Code, the legal provision pertinent to accident,
contemplates a situation where a person is in fact in the act of doing something legal, exercising
due care, diligence and prudence, but in the process produces harm or injury to someone or to
something not in the least in the mind of the actor—an accidental result flowing out of a legal act.
Indeed, accident is an event that happens outside the sway of our will, and although it comes about
through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. In
short, accident presupposes the lack of intention to commit the wrong done.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Public Attorney’s Office for petitioner.
The Solicitor General for respondent.
BERSAMIN, J.:
By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the
affirmance of his conviction for homicide (for the killing of the late Ernesto Matic y Masinloc) by
the Court of Appeals (CA) through its decision promulgated on August 16, 2007.1
The Regional Trial Court, Branch 25, in Biñan, Laguna (RTC) had rejected his pleas of self-defense
and accident and had declared him guilty of the felony under the judgment rendered on June 22,
2004.2
Antecedents
The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as
follows:3
“That on or about July 5, 1995, in the Municipality of Biñan, Province of Laguna, Philippines and
within the jurisdiction of this Honorable Court, accused VIRGILIO TALAMPAS, with intent to
kill, while conveniently armed with a short firearm and without any justifiable cause, did then and
there willfully, unlawfully and feloniously attack, assault and shoot one Ernesto Matic y Masinloc
with the said firearm, thereby inflicting upon him gunshot wound at the back of his body which
directly caused his instantaneous death, to the damage and prejudice of his surviving heirs.
CONTRARY TO LAW.”
The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales,
and Josephine Matic. The CA summarized their testimonies thuswise:4
“Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question, testified
that on July 5, 1995 at about 7:00 o’clock in the evening, he together with Eduardo Matic
(Eduardo) and Ernesto Matic (Ernesto) were infront of his house, along the road in Zona Siete (7),
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Wawa, Malaban, Biñan, Laguna, repairing his tricycle when he noticed the appellant who was
riding on a bicycle passed by and stopped. The latter alighted at about three (3) meters away from
him, walked a few steps and brought out a short gun, a revolver, and poked the same to Eduardo
and fired it hitting Eduardo who took refuge behind Ernesto. The appellant again fired his gun three
(3) times, one shot hitting Ernesto at the right portion of his back causing him (Ernesto) to fall on
the ground with his face down. Another shot hit Eduardo on his nape and fell down on his back
(patihaya). Thereafter, the appellant ran away, while he (Jose) and his neighbors brought the
victims to the hospital. On June 6, 1995, Jose executed a Sworn Statement at the Biñan Police
Station.
Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto who was
then 44 years old, he (Ernesto) was driving a tricycle on a boundary system and earned P100.00
daily, although not on a regular basis because sometimes Ernesto played in a band for P100.00 per
night.
Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so painful to
him that he could not quantify his feelings in terms of money. The death of his father was a great
loss to them as they would not be able to pursue their studies and that nobody would support them
financially considering that the money being sent by their mother in the amount of P2,000.00 to
P2,500.00 every three (3) months, would not be enough.
Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy on the body
of Ernesto and found one gunshot in the body located at the back of the costal area, right side,
sixteen (16) centimeters from the spinal column. This shot was fatal as it involved the major organs
such as the lungs, liver and the spinal column which caused Ernesto’s death.
The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid to rest on
July 18, 1995 and that his untimely death was so painful and that she could not provide her children
with sustenance. She asked for the amount of P200,000.00 for her to be able to send her children to
school.”
On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been
Eduardo Matic (Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo, who was then with
Ernesto at the time of the incident, had had hit him with a monkey wrench, but he had parried the
blow; that he and Eduardo had then grappled for the monkey wrench; that while they had grappled,
he had notice that Eduardo had held a revolver; that he had thus struggled with Eduardo for control
of the revolver, which had accidentally fired and hit Ernesto during their struggling with each other;
that the revolver had again fired, hitting Eduardo in the thigh; that he had then seized the revolver
and shot Eduardo in the head; and that he had then fled the scene when people had started
swarming around.
Ruling of the RTC
On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found
Talampas guilty beyond reasonable doubt of homicide,5 and disposed:
“WHEREFORE, premises considered, the court finds the accused guilty beyond reasonable doubt
of the crime of Homicide, with one mitigating circumstance of voluntary surrender, and hereby
sentences him to suffer an indeterminate penalty of IMPRISONMENT ranging from TEN (10)
years and One (1) day of prision mayor, as minimum, to FOURTEEN (14) years and EIGHT (8)
months of reclusion temporal, as maximum. He is likewise ordered to pay the heirs of Ernesto
Matic y Masinloc the following sums, to wit:
1. P50,000.00 – as and for death indemnity;
2. P50,000.00 – as and for moral damages;

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3. P25,000.00 – as and for actual damages; and
4. P30,000.00 – as and for temperate damages.
Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and accused with a
copy of this decision.
SO ORDERED.”6
Ruling of the CA
Talampas appealed to the CA, contending that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE
DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH OF ERNESTO
MATIC WAS MERELY ACCIDENTAL.
III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-
APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN HE GRAPPLED WITH EDUARDO
MATIC.
Still, the CA affirmed the conviction based on the RTC’s factual and legal conclusions, and ruled
that Talampas, having invoked self-defense, had in effect admitted killing Ernesto and had thereby
assumed the burden of proving the elements of self-defense by credible, clear and convincing
evidence, but had miserably failed to discharge his burden.7
The CA deleted the award of temperate damages in view of the awarding of actual damages,
pointing out that the two kinds of damages were mutually exclusive.8
Issue
Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond
reasonable doubt, and that the lower courts both erred in rejecting his claim of self-defense and
accidental death.
Ruling
The petition for review is denied for lack of merit.
Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the
victim; (b) reasonable necessity of the means employed to prevent or repel the unlawful aggression;
and (c) lack of sufficient provocation on the part of the accused in defending himself.9
In the nature of self-defense, the protagonists should be the accused and the victim. The established
circumstances indicated that such did not happen here, for it was Talampas who had initiated the
attack only against Eduardo; and that Ernesto had not been at any time a target of Talampas’ attack,
he having only happened to be present at the scene of the attack. In reality, neither Eduardo nor
Ernesto had committed any unlawful aggression against Talampas. Thus, Talampas was not
repelling any unlawful aggression from the victim (Ernesto), thereby rendering his plea of self-
defense unwarranted.
Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a
defense. Article 12(4) of the Revised Penal Code,10 the legal provision pertinent to accident,
contemplates a situation where a person is in fact in the act of doing something legal, exercising
due care, diligence and prudence, but in the process produces harm or injury to someone or to
something not in the least in the mind of the actor—an accidental result flowing out of a legal
act.11 Indeed, accident is an event that happens outside the sway of our will, and although it comes

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about through some act of our will, it lies beyond the bounds of humanly foreseeable
consequences.12 In short, accident presupposes the lack of intention to commit the wrong done.
The records eliminate the intervention of accident. Talampas brandished and poked his revolver at
Eduardo and fired it, hitting Eduardo, who quickly rushed to seek refuge behind Ernesto. At that
point, Talampas fired his revolver thrice. One shot hit Ernesto at the right portion of his back and
caused Ernesto to fall face down to the ground. Another shot hit Eduardo on the nape, causing
Eduardo to fall on his back. Certainly, Talampas’ acts were by no means lawful, being a criminal
assault with his revolver against both Eduardo and Ernesto.
And, thirdly, the fact that the target of Talampas’ assault was Eduardo, not Ernesto, did not excuse
his hitting and killing of Ernesto. The fatal hitting of Ernesto was the natural and direct
consequence of Talampas’ felonious deadly assault against Eduardo. Talampas’ poor aim amounted
to aberratio ictus, or mistake in the blow, a circumstance that neither exempted him from criminal
responsibility nor mitigated his criminal liability. Lo que es causa de la causa, es causa del mal
causado (what is the cause of the cause is the cause of the evil caused).13 Under Article 4 of the
Revised Penal Code,14 criminal liability is incurred by any person committing a felony although
the wrongful act done be different from that which he intended.
Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor,
as minimum, to 14 years and eight months, as maximum, legally erroneous.
The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal. Under
Section 1 of the Indeterminate Sentence Law,15 the court, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments, is mandated to prescribe an
indeterminate sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the Revised Penal Code, and the
minimum term shall be within the range of the penalty next lower to that prescribed by the Revised
Penal Code for the offense. With the absence of aggravating or mitigating circumstances, the
imposable penalty is reclusion temporal in its medium period, or 14 years, eight months, and one
day to 17 years and four months. This is pursuant to Article 64 of the Revised Penal Code.16 It is
such period that the maximum term of the indeterminate sentence should be reckoned from. Hence,
limiting the maximum term of the indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate Sentence Law, for such penalty was within
the minimum period of reclusion temporal. Accordingly, the Court must add one day to the
maximum term fixed by the lower courts.
The Court finds to be unnecessary the increment of one day as part of the minimum term of the
indeterminate sentence. It may be true that the increment did not constitute an error, because the
minimum term thus fixed was entirely within the parameters of the Indeterminate Sentence Law.
Yet, the addition of one day to the 10 years as the minimum term of the indeterminate sentence of
Talampas may occasion a degree of inconvenience when it will be time for the penal administrators
concerned to consider and determine whether Talampas is already qualified to enjoy the benefits of
the Indeterminate Sentence Law. Hence, in order to simplify the computation of the minimum
penalty of the indeterminate sentence, the Court deletes the one-day increment from the minimum
term of the indeterminate sentence.
WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding
VIRGILIO TALAMPAS y MATIC guilty beyond reasonable doubt of the crime of homicide, and
IMPOSES the indeterminate sentence of 10 years of prision mayor, as minimum, to 14 years, eight
months, and one day of reclusion temporal, as maximum.
The petitioner shall pay the costs of suit.

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SO ORDERED.
G.R. No. 109800. March 12, 1996.*
PEOPLE OF THE PHILIPPINES, plaintiff, vs. WILFREDO BAUTISTA y NIELES, accused-
appellant.
Criminal Law; Murder; Justifying Circumstances; Self-Defense; Once the accused has admitted
that he killed the victim, the burden is on him to establish the presence of any circumstance which
may relieve him from responsibility or mitigate the offense committed.—The arguments of
accused-appellant are not without merit. Once accused-appellant has admitted that he killed the
victim, the burden is on him to establish the presence of any circumstance which may relieve him
from responsibility or mitigate the offense committed. To prove justification the accused must rely
on the strength of his own evidence and not on the weakness of that of the prosecution, for even if
it be weak, it could not be disbelieved after the accused has admitted the killing. In a plea of self-
defense, it must be shown that there was a previous unlawful aggression that placed the life of the
accused in danger and forced him to inflict more or less severe wounds upon his assailant,
employing therefor reasonable means to resist the unprovoked attack of which he was the object.
Accused-appellant failed to prove the presence of these circumstances. Instead, he presented
inconsistent allegations as to why he killed the victim.
Same; Same; Same; Same; If no unlawful aggression attributable to the victim is established, there
can be no self-defense, complete or incomplete.—The claim of appellant that the act of the victim
in reaching for a clutch bag and slapping his fellow security guard constitute unlawful aggression is
devoid of merit. The aggression must be real or at least imminent and not merely imaginary. A
belief that a person is about to be attacked is not sufficient. Even an intimidating or threatening
attitude is by no means enough. A mere push or shove not followed by other acts placing in real
peril the life or personal safety of the accused is not unlawful aggression. In the instant case, the
victim slapped another person and not accused-appellant. The slapping could not therefore have
given him a well grounded or reasonable belief that he was in imminent danger of death or great
bodily harm to compel him to defend himself by killing the victim. If no unlawful aggression
attributed to the victim is established there can be no self-defense, complete or incomplete.
Same; Same; Homicide; Aggravating Circumstances; Where not a single circumstance qualifying
the crime to murder is present, the accused could be found guilty only of homicide.—
Notwithstanding the failure of accused-appellant to prove self-defense, the Court finds him guilty
only of homicide and not murder as found by the trial court. Not a single circumstance alleged in
the information qualifying the crime to murder is present.
Same; Same; Same; Same; Evident Premeditation; Where there is no proof of the time when the
intent to commit the crime was engendered in the mind of the accused, the motive and all those
facts and antecedents which when combined would show that the crime was knowingly
premeditated, evident premeditation could not be appreciated.—We find no evident premeditation
in the killing of the victim. The records show that when appellant went near the victim, who was
then arguing with a fellow security guard he got the latter’s shotgun, walked towards the rear of the
car of the victim, cocked his firearm and suddenly shot the latter. There was no proof of the time
when the intent to commit the crime was engendered in the mind of accused-appellant, the motive
and all those facts and antecedents which when combined would show that the crime was
knowingly premeditated or that accused-appellant acted not only with a preexisting design, but with
that cold and deep meditation and tenacious persistence in the accomplishment of his criminal
purpose.
Same; Same; Same; Same; Abuse of Superior Strength; No abuse of superiority is established

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where the fatal shot was fired by only one of two accused and there is no proof that they cooperated
to take advantage of their superior strength.—No abuse of superiority was established. The fatal
shot was fired by only one of two (2) accused, there being no proof that they cooperated to take
advantage of their superior strength. The fact that they did not conspire to kill the deceased implies
that they did not jointly exploit their superior strength.
Same; Same; Same; Same; Treachery; The circumstance that an attack is sudden and unexpected to
the person assaulted does not constitute the element of alevosia necessary to raise homicide to
murder where it does not appear that the aggressor consciously adopted such mode of attack to
facilitate the perpetration of the killing without risk to himself.—Treachery was conspicuous in its
absence. The victim knew of the oncoming danger when appellant approached him and took
Usman’s shotgun. That was why the victim asked appellant, “Bakit ka nakikialam. Itong kausap
ko.” And as he cocked his gun and walked towards the victim the latter even remarked, “Putang ina
ka. Huwag kang makikialam dito.” The circumstance that an attack was sudden and unexpected to
the person assaulted did not constitute the element of alevosia necessary to raise homicide to
murder, where it did not appear that the aggressor consciously adopted such mode of attack to
facilitate the perpetration of the killing without risk to himself.
Same; Same; Same; Same; Same; There is no treachery when the killing results from a verbal
altercation between the victim and the assailant such that the victim must have been forewarned of
the impending danger.—Treachery cannot be appreciated if the accused did not make any
preparation to kill the deceased in such manner as to insure the commission of the killing or to
make it impossible or difficult for the person attacked to retaliate or defend himself. When it does
not appear that the shooting was premeditated nor that the accused had consciously chosen a
method of attack directly and especially to facilitate the perpetration of the homicide without
danger to himself, and his decision to shoot the victim seemed to be so sudden and the position of
both the victim and the accused was entirely accidental, treachery cannot be imputed to the
appellant. Moreover, there is no treachery when the killing resulted from a verbal altercation
between the victim and the assailant such that the victim must have been forewarned of the
impending danger.
Same; Same; Same; Mitigating Circumstances; Passion and Obfuscation; Obfuscation must
originate from lawful feelings—the turmoil and unreason which naturally result from a quarrel or
fight should not be confused with the sentiment or excitement in the mind of a person injured or
offended to such a degree as to deprive him of his sanity and self-control.—We cannot appreciate
the circumstance of passion and obfuscation invoked by appellant to mitigate his criminal liability.
The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally
result from a quarrel or fight should not be confused with the sentiment or excitement in the mind
of a person injured or offended to such a degree as to deprive him of his sanity and self-control,
because the cause of this condition of mind must necessarily have preceded the commission of the
offense.
Same; Same; Same; Same; Voluntary Surrender; The voluntary surrender of the accused to a police
authority four days after the commission of the crime may be considered attenuating.—However,
the voluntary surrender of accused-appellant to a police authority four (4) days after the
commission of the crime as found by the trial court may be considered attenuating.
APPEAL from a decision of the Regional Trial Court of Pasay City, Br. 116.
The Solicitor General for plaintiff-appellee.
Santiago, Arevalo, Tomas & Associates for accused-appellant.

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BELLOSILLO, J.:
WILFREDO BAUTISTA y NIELES appeals from the decision of the court a quo finding him guilty
of murder and imposing upon him a prison term of reclusion perpetua.1 No award for civil
indemnity however was made in view of the reservation of the heirs of the victim to file a separate
civil action.
The Information alleged that on 2 April 1992, in Pasay City, accused-appellant Wilfredo Bautista y
Nieles and the other accused, namely, Gayak Usman y Adzed, Richard Doe, John Doe, Peter Doe,
William Doe, Vincent Doe and Edward Doe, in conspiracy with one another, with treachery,
evident premeditation and taking advantage of superior strength, feloniously shot Alfonso Davila y
Velasco with a firearm hitting him at the back of his head which caused his death.2
The evidence shows that at ten o’clock in the evening of 2 April 1992 victim Alfonso Davila y
Velasco, a flight steward of the Philippine Airlines (PAL), went to the Inflight Center of PAL at the
MIA Road, Pasay City, to inquire about his flight schedule. Before his car could enter Gate 1 it was
stopped by accused Gayak Usman y Adzed and other security guards of the Asian Security and
Investigation Agency assigned in that area. Usman told the victim that he could not enter the gate
because he had no PAL sticker. Davila showed Usman his ID placed in his wallet and thrust it on
his face. The latter simply told Davila that he should have pinned his ID on his chest. The verbal
confrontation however continued. At this point, accused-appellant Wilfredo Bautista, another
security guard of the Asian Security and Investigation Agency assigned at the entrance for
pedestrians at Gate 1, approached Usman and Davila3 and remarked, “Sir, bakit nanampal ka ng
guwardiya?” The victim retorted, “Bakit ka nakikialam. Itong kausap ko.”4 Accused-appellant then
took the shotgun slung on the shoulder of Usman and stepped back. The argument between Usman
and Davila continued. Then accused-appellant went to the back of the car of Davila and cocked the
shotgun. As he went near Davila the latter said, “Putang ina ka. Huwag kang makikialam dito.”5
Then accused-appellant fired at the victim hitting him on the left side of his head which caused his
death.
Dr. Valentin T. Bernales, NBI Medico-Legal Officer, conducted a post mortem examination of the
victim. He gave the cause of death as gunshot wound on the head.6
On 22 March 1993 the accused appealed. But for failure of his counsel to file his brief despite three
(3) extensions granted him this Court dismissed his appeal. However, upon motion for
reconsideration, this Court on 3 August 1994 treated the motion as appellant’s brief and directed the
Solicitor General to file appellee’s brief.
In his motion for reconsideration, appellant contends that he should have only been charged with
and convicted for homicide and not murder. He submits that the victim slapped with his wallet
containing his ID appellant’s fellow security guard Usman, who was one of the accused before the
trial court, which incident caught appellant’s attention and because of the victim’s gauche remarks
he (appellant) lost his composure and shot the victim. Appellant also argues that treachery,
conspiracy and abuse of superior strength were not established by the prosecution because the
shooting was accidental and/or committed under a mistake of fact that the victim was about to
reach for a gun inside his car. Further, appellant alleges that if he should be made to answer for his
act he should only be guilty of homicide and entitled to the mitigating circumstances of voluntary
surrender, passion and obfuscation and/or incomplete self-defense.7
The arguments of accused-appellant are not without merit. Once accused-appellant has admitted
that he killed the victim, the burden is on him to establish the presence of any circumstance which
may relieve him from responsibility or mitigate the offense committed.8 To prove justification the
accused must rely on the strength of his own evidence and not on the weakness of that of the

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prosecution, for even if it be weak, it could not be disbelieved after the accused has admitted the
killing. In a plea of self-defense, it must be shown that there was a previous unlawful aggression
that placed the life of the accused in danger and forced him to inflict more or less severe wounds
upon his assailant, employing therefor reasonable means to resist the unprovoked attack of which
he was the object. Accused-appellant failed to prove the presence of these circumstances. Instead,
he presented inconsistent allegations as to why he killed the victim.
Accused-appellant claims that he acted under a mistake of fact that the victim was about to get a
gun from his clutch bag inside the car.9 At the same time he also argues that he lost his equanimity
when he saw the victim slap his co-accused security guard and when he (appellant) tried to
intervene he was also rudely treated by the victim.
The trial court found that the allegation about the presence of a clutch bag inside the car is not
supported by the evidence. In fact, all the personal belongings of the deceased in his car were
inventoried and the alleged clutch bag was not one of them; neither was there a gun or any other
weapon inside his car. These findings of fact bear great weight and consideration supported as they
are by the evidence on record.
The claim of appellant that the act of the victim in reaching for a clutch bag and slapping his fellow
security guard constitute unlawful aggression is devoid of merit. The aggression must be real or at
least imminent and not merely imaginary. A belief that a person is about to be attacked is not
sufficient. Even an intimidating or threatening attitude is by no means enough. A mere push or
shove not followed by other acts placing in real peril the life or personal safety of the accused is not
unlawful aggression. In the instant case, the victim slapped another person and not accused-
appellant. The slapping could not therefore have given him a well grounded or reasonable belief
that he was in imminent danger of death or great bodily harm to compel him to defend himself by
killing the victim. If no unlawful aggression attributed to the victim is established there can be no
self-defense, complete or incomplete.10
Notwithstanding the failure of accused-appellant to prove self-defense, the Court finds him guilty
only of homicide and not murder as found by the trial court. Not a single circumstance alleged in
the information qualifying the crime to murder is present.
We find no evident premeditation in the killing of the victim. The records show that when appellant
went near the victim, who was then arguing with a fellow security guard he got the latter’s shotgun,
walked towards the rear of the car of the victim, cocked his firearm and suddenly shot the latter.
There was no proof of the time when the intent to commit the crime was engendered in the mind of
accused-appellant, the motive and all those facts and antecedents which when combined would
show that the crime was knowingly premeditated or that accused-appellant acted not only with a
pre-existing design, but with that cold and deep meditation and tenacious persistence in the
accomplishment of his criminal purpose.11
No abuse of superiority was established. The fatal shot was fired by only one of two (2) accused,
there being no proof that they cooperated to take advantage of their superior strength. The fact that
they did not conspire to kill the deceased implies that they did not jointly exploit their superior
strength.12
Treachery was conspicuous in its absence. The victim knew of the oncoming danger when
appellant approached him and took Usman’s shotgun. That was why the victim asked appel-lant,
“Bakit ka nakikialam. Itong kausap ko.”13 And as he cocked his gun and walked towards the
victim the latter even remarked, “Putang ina ka. Huwag kang makikialam dito.”14 The
circumstance that an attack was sudden and unexpected to the person assaulted did not constitute
the element of alevosia necessary to raise homicide to murder, where it did not appear that the

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aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing
without risk to himself. Treachery cannot be appreciated if the accused did not make any
preparation to kill the deceased in such manner as to insure the commission of the killing or to
make it impossible or difficult for the person attacked to retaliate or defend himself.15 When it
does not appear that the shooting was premeditated nor that the accused had consciously chosen a
method of attack directly and especially to facilitate the perpetration of the homicide without
danger to himself, and his decision to shoot the victim seemed to be so sudden and the position of
both the victim and the accused was entirely accidental, treachery cannot be imputed to the
appellant.16 Moreover, there is no treachery when the killing resulted from a verbal altercation
between the victim and the assailant such that the victim must have been forewarned of the
impending danger.17
We cannot appreciate the circumstance of passion and obfuscation invoked by appellant to mitigate
his criminal liability. The obfuscation must originate from lawful feelings.18 The turmoil and
unreason which naturally result from a quarrel or fight should not be confused with the sentiment or
excitement in the mind of a person injured or offended to such a degree as to deprive him of his
sanity and self-control, because the cause of this condition of mind must necessarily have preceded
the commission of the offense.19 However, the voluntary surrender of accused-appellant to a police
authority four (4) days after the commission of the crime as found by the trial court may be
considered attenuating.20
Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal, the range
of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not
offset by any aggravating circumstance, the maximum of the penalty shall be taken from the
minimum period of reclusion temporal, the range of which is twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next
lower in degree which is prision mayor, in any of its periods, the range of which is six (6) years and
one (1) day to twelve (12) years.
WHEREFORE, the decision appealed from is MODIFIED and accused-appellant WILFREDO
BAUTISTA y NIELES is declared GUILTY of HOMICIDE, not murder, and sentenced to an
indeterminate prison term of six (6) years, four (4) months and ten (10) days of prision mayor
minimum as minimum, to twelve (12) years, six (6) months and twenty (20) days of reclusion
temporal minimum as maximum. In view of the reservation to file separate civil action, no civil
indemnity is awarded.
SO ORDERED.
[No. L-162. April 30, 1947]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. DIOSCORO ALCONGA and
ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA, appellant.
1.CRIMINAL LAW; HOMICIDE; SELF-DEFENSE; FLIGHT OF ADVERSARY.— An accused
was no longer acting in self-defense when he pursued and killed a fleeing adversary, though
originally the unlawful aggressor, there being then no more aggression to defend against, the same
having ceased from the moment the deceased took to his heels.
2.ID.; ID.: ID.; ID.; PROVOCATION, AS MITIGATING CIRCUMSTANCE.— Provocation given
by an adversary at the commencement and during the first stage of a fight, cannot be considered as
a mitigating circumstance, where the appellant pursued and killed the former while fleeing and the
deceased, as in the case at bar, from the moment he fled after the first stage of the fight to the

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moment he died, did not give any provocation for appellant to pursue, much less further to attack
him.
8.ID.; ID.; ID.; ID.; ID.—Provocation in order to be a mitigating circumstance must be sufficient
and immediately preceding the act. "It should be proportionate to the act committed and adequate
to stir one to its commission."
4.ID.; ID.; ID.; ID.; ID.; NEED OF PROOF.—Sufficient provocation, being a matter of defense,
should, like any other, be affirmatively proven by the accused.
5.ID.; ID.; ID.; ID.; ID.; ILLEGAL AGGRESSION, DEFINED.—"Illegal aggression" is equivalent
to assault or at least threatened assault of an immediate and imminent kind.
APPEAL from a judgment of the Court of First Instance of Iloilo. Vega, J.
The facts are stated in the opinion of the court
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 managed to go out of the guardhouse by crawling on his
abdomen (t. s. n., p. 101). While the deceased was in the act delivering the third blow, the accused,
while still in a crawling position (t. s. n., p. 119), fired at him with his revolver, causing him to
stagger and to fall to the ground (t. s, n., p. 101). Rising to his feet, the deceased drew forth his
dagger and directed a blow at the accused who, however. was able to parry the same with his bolo
(t. s, n., pp. 101-102). A 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 (1 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

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delivered, causing the deceased to fall to the ground, face downward, besides many other blows
delivered 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. 102-106).
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 rnandíbula inferior, en la parte frente de su cuello, en su pecho derecho,
y también en el pecho izquierdo, y su dedo meñique había volado, se había cortado, y otras
pequeñas heridas más.
"P. ¿En la cabeza, vió usted heridas?—R. Sí, señor.
"P. ¿Cuántas heridas?—R. Una herida en la region parietal derecha y una contusión en la corona de
la cabeza.
"P. ¿Vió usted el craneo?—R. En el craneo llevaba una herida, en que el craneo se ha roto.
"P. ¿En el pecho, que herida ha encontrado usted?—R. Debajo de la tetilla derecha, una herida
causada por una bala.
"B. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas?—R. Heridas causadas por
bolo.
"P. ¿Cómo de grande aquellas heridas en el pecho?—R. No recuerdo la dimension de las heridas en
el pecho.
"P. ¿Pero en la cabeza?—R. La cabeza se rajó 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 favor, 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 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

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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; italics
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 f avor 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 be disclosed by the records, which lead to the killing of the
deceased on that fatal morning of May 29, 1945 is as follows:
"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

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was any provocation given by him for appellant to pursue and further to attack him. It will be
recalled, to begin with, that the first stage of the fight was provoked when the deceased said to
appellant "Coroy, 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 prelude to the attack. At any rate, the quoted
words by themselves, without the deceased's act immediately f ollowing 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. 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 testif y nor offer
other evidence to show that when he pursued the deceased he was still acting under the impulse of
the effects of that provocation, be it anger, obfuscation or the like. The Revised Penal Code
provides:
"ART. 13. Mitigating circumstances:
"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, 1883, 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 provocación o amenaza que de parte del ofendido ha de
preceder para. la disminución de la responsabilidad criminal debe ser proporcionada al daño que se
cause, lo cual no concurre a favor del reo si resulta que la única cuestión que hubo fué si en un
montón de yeso había más o menos cantidad, y como perdiera la apuesta y bromeando dijera el que
la ganó que bebería vino de balde, esa pequeña cuestión de amor propio no justificaba en modo
alguno la ira que le impelió 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" (italics supplied).

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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 flight, was
proportionate to his killing his already defeated adversary.
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.
"Agresión ilegítima.—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 61 o
apuntando la pistola para dispararla contra nosotros
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 cannot
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 his 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

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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 reclusión 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 prisión mayor
to 14 years and 8 months of reclusión temporal, to indemnify the heirs of the deceased in the sum
of P2,000, and to pay the costs. As thus modified, the judgment appealed from is hereby affirmed.
So ordered.
G.R. No. 76235. January 21, 1991.*
PROCERFINA OLBINAR, petitioner, vs. COURT OF APPEALS and FERNANDO JIMENEZ,
respondents.
Criminal Law; Exempting Circumstances; Defense of Relative; Appellant is acquitted of the crime
charged considering that from the evidence adduced, it appears that she was justified in believing
that her husband was the victim of an unlawful aggression by two men; she had no way of knowing
if her husband has given provocation for the attack; she herself had not given any such provocation;
and the means employed by her were not in the premises unreasonable.—It being incontrovertible
that both Romeo Cahilog and Fernando Jimenez attacked Emiliano and beat him up so severely as
to cause his incapacity for labor and require that he undergo medical treatment for ten days or so, it
is not improbable, as Procerfina testified, that he had fallen to the ground and his face had been
bloodied, because of the assault. Procerfina had not seen the commencement of the assault on her
husband. She had no way of knowing if her husband had given sufficient provocation therefor. All
that she saw, on responding to her husband’s cry for help, was that he was on the ground, there was
blood on his person, and two men were boxing and kicking him. After she had tried vainly to get
the men to stop beating her husband, she had gotten a bolo from her home and rushed back to
defend her fallen spouse who, for all she knew, was already seriously wounded. Unarmed, and her
husband to all appearances already hors de combat, she evidently could offer no reasonable
defense, or otherwise cause cessation of the assault on her husband. And whatever might have
transpired immediately on her return with the bolo—whether she forthwith sailed into the two
assailants, or whether Fernando Jimenez had indeed tried to prevent her from helping her husband
and sought to disarm her to prevent her in consequence of which she had flailed wildly about with
her weapon, and inflicted the injuries in question on him—the fact of the matter is that under the
circumstances, she obviously felt the compelling urgency for swift action to stop the assault on her
prostrate husband, and there was nothing else she could do towards this end except to try to hit out
at his attackers. She must have been near panic. She had no time to think. She had to act, and act
quickly. The circumstances certainly afforded her no time to investigate the nature of her husband’s
injuries, determine if he was in danger of death, analyze the situation and ascertain what would be
the most reasonable mode by which with her bolo she could stop her husband’s mauling—whether
she should use the flat, not the sharp edge of the weapon, should first announce that she had a bolo
and would use it if they did not cease in their nefarious acts, etc. The Court is therefore satisfied
that Procerfina had acted in justifiable defense of her husband. In the situation in which she had
found herself, she was justified in believing that her husband was the victim of an unlawful
aggression by two (2) men, who had gotten the better of him and had already succeeded in

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bloodying his face and dropping him to the ground; she had no way of knowing if her husband had
given provocation for the attack; she herself had not given any such provocation; and the means
employed by her were not in the premises unreasonable considering that without any weapon, she
was no match for either of the assailants, much less both of them.
PETITION to review the decision of the Court of Appeals.
Rufino Mayor and Isidro M. Ampig for petitioner.
NARVASA, J.:
In the Municipal Circuit Court of Babak-Samal, Davao Province, Procerfina Olbinar was indicted,
arraigned and tried for the felony of serious physical injuries committed with the use of a bolo
against the person of Fernando Jimenez on or about June 8, 1980 in Barangay Caliclic, Babak,
Davao.1 The prosecution presented its proofs in due course, tending to show that in the evening of
June 8, 1980—
1) a certain Romeo Cahilog was boxing Emiliano Olbinar, Procerfina’s husband; 2) Fernando
Jimenez was trying to break up the assault by pulling Romeo Cahilog from behind; 3) at this point,
Procerfina came and with a bolo hacked Fernando Jimenez “in the right ear;” a second blow also
aimed at Fernando was parried by the latter with his left hand; 4) Fernando cried out that he had
been hacked after which he lost consciousness; 5) Fernando sustained a wound in the left ear and a
broken left forearm.
Procerfina sought, in her turn, to establish by her own evidence that she had acted in legitimate
defense of her husband and should therefore be exculpated. According to her—
1) from the kitchen of her home, she heard her husband shouting for help;
2) she ran to the scene and saw Fernando Jimenez and Romeo Cahilog mauling her husband who,
bloodied, was down on the ground;
3) she tried to stop the assailants; but not succeeding, she had swiftly run back to her home, taken a
bolo and returned to the scene;
4) Fernando Jimenez intercepted her and tried to grab the bolo from her;
5) to avoid being disarmed, she wildly brandished the bolo and in the process hit Jimenez, and thus
succeeded in stopping the attack on her husband.
The trial court concluded from the evidence that she could be credited only with the special
mitigating circumstance of incomplete defense of relative pursuant to paragraph 2, Article 11 in
relation to paragraph 1, Article 13, 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.
2. Anyone 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 that the first and second
requisites prescribed in the next preceding circumstance are present, and the further requisite, in
case the provocation was given by the person attacked, that the one making defense had no part
therein.”
“ART. 13. Mitigating circumstances.—The following are mitigating circumstances:
1. Those mentioned in the preceding chapter (i.e., justifying and exempting circumstances), when

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all the requisites necessary to justify the act or to exempt from criminal liability in the respective
cases are not attendant.”
In a decision rendered on June 29, 1982,2 the Court thus found Procerfina guilty beyond reasonable
doubt of the felony charged, and appreciating in her favor said special mitigating circumstance
(incomplete defense of spouse), “and another ordinary mitigating circumstance of having acted
upon an impulse so powerful (as) to have produced passion and obfuscation,” sentenced her “to
suffer imprisonment of 21 days of arresto menor, to pay the cost of P10.00 and in concept of
recovery of civil liability, to pay to Fernando Jimenez the amount of P3,622.50 to cover hospital
bills partly paid and payable to San Pedro Hospital; and the amount of P618.30 to cover cost of
medicine purchased from different boticas or pharmacies.”
On appeal perfected by Procerfina, the Court of Appeals affirmed the judgment of the Municipal
Circuit Court,3 in a decision promulgated on August 19, 1986.4 From this adverse decision,
Procerfina has come to this Court pleading for reversal thereof and her absolution of the crime. Her
plea will be heeded; her prayer, granted.
The Trial Court conceded that there was unlawful aggression by Fernando Jimenez and one Romeo
Cahilog against Procerfina’s husband, Emiliano. The Court declared itself “aware of Criminal Case
No. 877” also pending before it “where Fernando Jimenez x x (and) Romeo Cahilog were charged
with Physical Injuries in the same incident, x x (and in which case) Fernando Jimenez x x with his
co-accused entered a plea of guilty and were appropriately sentenced in accordance with the law
applicable.” The criminal complaint which initiated said Criminal Case No. 877, dated June 18,
1980,5 alleged that—
“x x on or about 7:20 o’clock in the evening of June 8, 1980, at Barangay Caliclic, Babak, Davao x
x (both said) accused did then and there wilfully, unlawfully and criminally, confederating and
helping one another, attack, assault, box and kick Emiliano Olbinar hitting [him] in the face and in
different parts of the body while the latter was sitting on the bench near the store of Procerfina
Olbinar, his wife, causing him physical injuries which would require medical attendance with
healing period for TEN (10) days barring complications x x.”
Nevertheless the Court held that the means employed by Procerfina to prevent or repel the
aggression against her husband were not reasonably necessary. It considered as “worthy with truth
x x the prosecution’s side of the story that accused hacked Fernando Jimenez twice, directed on the
head with the use of a bolo at the height of anger after seeing her husband mauled, an act or means
employed by her beyond the realm of reasonable necessity to repel the aggression under paragraph
2, Article 11 of the Revised Penal Code.”
The same conclusion was arrived at by the Court of Appeals. It noted that complainant, Fernando
Jimenez, did “not appear to be armed,” nor did it appear “that the life of her husband was under
serious threat. Yet, appellant used a bolo to hack the complainant at his ear. Another blow wounded
the parrying arm of the complainant and broke his elbow.”6
The Court of Appeals also ruled that Fernando’s “version that he was hacked at his head while
breaking up the fight between appellant’s husband and Cahilog” was more credible.7 The ruling is
obviously erroneous being contrary to the undisputed fact expressly and solemnly admitted by
Fernando Jimenez—when he and his co-accused, Romeo Cahilog, entered a plea of guilty when
arraigned in Criminal Case No. 877, supra—that at the time they were attacking, boxing and
kicking Emiliano Olbinar, hitting (him) in the face and in different parts of the body, cooperating
with and helping each other. This belies Fernando’s protestations that the fight transpired only
between Romeo Cahilog and Procerfina’s husband, and he (Fernando) was merely trying to break
up the fight and pacify the protagonists.

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It being incontrovertible that both Romeo Cahilog and Fernando Jimenez attacked Emiliano and
beat him up so severely as to cause his incapacity for labor and require that he undergo medical
treatment for ten days or so, it is not improbable, as Procerfina testified, that he had fallen to the
ground and his face had been bloodied, because of the assault. Procerfina had not seen the
commencement of the assault on her husband. She had no way of knowing if her husband had
given sufficient provocation therefor. All that she saw, on responding to her husband’s cry for help,
was that he was on the ground, there was blood on his person, and two men were boxing and
kicking him. After she had tried vainly to get the men to stop beating her husband, she had gotten a
bolo from her home and rushed back to defend her fallen spouse who, for all she knew, was already
seriously wounded. Unarmed, and her husband to all appearances already hors de combat, she
evidently could offer no reasonable defense, or otherwise cause cessation of the assault on her
husband. And whatever might have transpired immediately on her return with the bolo—whether
she forthwith sailed into the two assailants, or whether Fernando Jimenez had indeed tried to
prevent her from helping her husband and sought to disarm her to prevent her in consequence of
which she had flailed wildly about with her weapon, and inflicted the injuries in question on him—
the fact of the matter is that under the circumstances, she obviously felt the compelling urgency for
swift action to stop the assault on her prostrate husband, and there was nothing else she could do
towards this end except to try to hit out at his attackers. She must have been near panic. She had no
time to think. She had to act, and act quickly. The circumstances certainly afforded her no time to
investigate the nature of her husband’s injuries, determine if he was in danger of death, analyze the
situation and ascertain what would be the most reasonable mode by which with her bolo she could
stop her husband’s mauling—whether she should use the flat, not the sharp edge of the weapon,
should first announce that she had a bolo and would use it if they did not cease in their nefarious
acts, etc.
The Court is therefore satisfied that Procerfina had acted in justifiable defense of her husband. In
the situation in which she believing that her husband was the victim of an unlawful aggression by
two (2) men, who had gotten the better of him and had already succeeded in bloodying his face and
dropping him to the ground; she had no way of knowing if her husband had given provocation for
the attack; she herself had not given any such provocation; and the means employed by her were
not in the premises unreasonable considering that without any weapon, she was no match for either
of the assailants, much less both of them.
WHEREFORE, the Decision of the Court of Appeals dated August 19, 1986 is REVERSED and
another rendered, AC-QUITTING the petitioner, with costs de officio. The bond for her provisional
liberty is cancelled.
SO ORDERED. Olbinar vs. Court of Appeals, 193 SCRA 115, G.R. No. 76235 January 21, 1991
G.R. No. 149152. February 02, 2007.*
RUFINO S. MAMANGUN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Sandiganbayan; Factual findings of the Sandiganbayan are conclusive upon the
Supreme Court; Exceptions.—Wellsettled 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. None
of these exceptions obtains in this case.
Same; Homicide; Justifying Circumstances; Policemen; Fulfillment of Duty; Requisites.—Having
admitted the fatal shooting of Contreras on the night of July 31, 1992, petitioner is charged with the

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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.
Same; Same; Same; Same; Witnesses; 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.—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 strengthen credibility because they discount the
possibility that the testimony was rehearsed.
Same; Same; Same; Same; Same; Acts in the fulfillment of a duty, without more, do not completely
justify a policeman’s firing the fatal gunshot at the victim.—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..
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 MedicoLegal Officer
of Bulacan who performed an autopsy on the cadaver of the victim.

Page 19 of 162
For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino
Mamangun, his copolicemen 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.
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

Page 20 of 162
that same evening.
The defense has its own account of what purportedly actually transpired.
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 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 pay 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

Page 21 of 162
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
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

Page 22 of 162
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 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

Page 23 of 162
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. 135981. January 15, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.
Criminal Law; Parricide; Evidence; Witnesses; Appeals; The findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion.
—The first six assigned errors raised by appellant are factual in nature, if not collateral to the
resolution of the principal issues. As consistently held by this Court, the findings of the trial court
on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will
not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight
and substance that could affect the outcome of the case.
Same; Same; Same; Relationship; The key element in parricide is the relationship of the offender
with the victim.—The key element in parricide is the relationship of the offender with the victim. In
the case of parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence
of the fact of marriage may be considered by the trial court if such proof is not objected to.
Same; Same; Same; Admission; Exceptions; Axiomatic is the rule that a judicial admission is
conclusive upon the party making it, with exceptions.—Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a showing that (1) the
admission was made through a palpable mistake, or (2) no admission was in fact made.
Same; Same; Justifying Circumstances; Self-defense; In criminal cases, self-defense shifts the
burden of proof from the prosecution to the defense.—When the accused admits killing the victim,
it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing
evidence. Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a
stranger or third person) shifts the burden of proof from the prosecution to the defense.
Same; Same; Same; Same; Battered Woman Syndrome (BWS); The concept has been recognized in
foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.—In claiming
self-defense, appellant raises the novel theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-
defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their “understanding of the
justifiably fearful state of mind of a person who has been cyclically abused and controlled over a
period of time.”
Same; Same; Same; Same; Same; “Battered Woman”, defined; In order to be classified as a

Page 24 of 162
battered woman, the couple must go through the battering cycle at least twice.—A battered woman
has been defined as a woman “who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive
relationship with a man once. If it occurs a second time, and she remains in the situation, she is
defined as a battered woman.”
Same; Same; Same; Same; Same; Battered women exhibit common personality traits.—Battered
women exhibit common personality traits, such as low self-esteem, traditional beliefs about the
home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer’s actions; and false hopes that the relationship will
improve.
Same; Same; Same; Same; Same; “Cycle of Violence”; Phases; Tension-Building Phase; During
the tension-building phase, minor battering occurs—it could be verbal or slight physical abuse or
another form of hostile behavior.—During the tension-building phase,minor battering occurs—it
could be verbal or slight physical abuse or another form of hostile behavior. The woman usually
tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of
his way. What actually happens is that she allows herself to be abused in ways that, to her, are
comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because her “placatory” and passive
behavior legitimizes his belief that he has the right to abuse her in the first place. However, the
techniques adopted by the woman in her effort to placate him are not usually successful, and the
verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the
growing tension and despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer
becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence “spirals
out of control” and leads to an acute battering incident.
Same; Same; Same; Same; Same; Acute Battering Incident; The acute battering incident is said to
be characterized by brutality, destructiveness and, sometimes, death.—The acute battering
incidentis said to be characterized by brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the
time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that
she cannot reason with him, and that resistance would only exacerbate her condition. At this stage,
she has a sense of detachment from the attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of acute violence may be rationalized
thus: the batterer is almost always much stronger physically, and she knows from her past painful
experience that it is futile to fight back. Acute battering incidents are often very savage and out of
control, such that innocent bystanders or intervenors are likely to get hurt.
Same; Same; Same; Same; Same; Same; Same; Tranquil Period; The final phase of the cycle of
violence begins when the acute battering incident ends—during this tranquil period, the couple
experience profound relief.—The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple experience profound relief. On the
one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that
he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising

Page 25 of 162
never to beat her again. On the other hand, the battered woman also tries to convince herself that
the battery will never happen again; that her partner will change for the better; and that this “good,
gentle and caring man” is the real person whom she loves. A battered woman usually believes that
she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair,
she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or
seeking or receiving professional help, are very slim, especially if she remains with him. Generally,
only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in
this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The
illusion of absolute inter dependency is well-entrenched in a battered woman’s psyche. In this
phase, she and her batterer are indeed emotionally dependent on each other—she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of ‘‘tension, violence and
forgiveness,” each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other.
Same; Same; Same; Same; Elements; One who resorts to self-defense must face a real threat on
one’s life, not merely imaginary.—Settled in our jurisprudence, however, is the rule that the one
who resorts to self-defense must face a real threat on one’s life; and the peril sought to be avoided
must be imminent and actual, not merely imaginary. Thus, the Revised Penal Code provides the
following requisites and effect of self-defense: “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.”
Same; Same; Same; Same; Same; Unlawful aggression; Unlawful aggression is the most essential
element of self-defense.—Unlawful aggression is the most essential element of self-defense. It
presupposes actual, sudden and unexpected attack—or an imminent danger thereof—on the life or
safety of a person.
Same; Same; Same; Same; Same; Same; Aggression, if not continuous, does not warrant self-
defense.—Aggression, if not continuous, does not warrant self-defense. In the absence of such
aggression, there can be no self-defense—complete or incomplete—on the part of the victim.
Same; Same; Mitigating Circumstances; Passion and Obfuscation; Requisites; To appreciate this
circumstance, the following requisites should concur.—In addition, we also find in favor of
appellant the extenuating circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. It has been held that this state of mind is present when
a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or
improper acts or by a legitimate stimulus so powerful as to overcome reason. To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far removed from the
commission of the crime by a considerable length of time, during which the accused might recover
her normal equanimity.
Same; Same; Qualifying Circumstances; Treachery; Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself.—There is treachery when one
commits any of the crimes against persons by employing means, methods or forms in the execution
thereof without risk to oneself arising from the defense that the offended party might make. In order
to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the
killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in
the appreciation of evidence. Because of the gravity of the resulting offense, treachery must be

Page 26 of 162
proved as conclusively as the killing itself.
YNARES-SANTIAGO, J., Dissenting Opinion:
Criminal law; Parricide; Justifying Circumstances; Self-defense; Battered Woman Syndrome;
Phases; The Battered Woman Syndrome has three (3) phases.—As exhaustively discussed in the
ponencia, the “Battered Woman Syndrome” has three phases, to wit: (1) the tension-building phase,
where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries
to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his
way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot reason with him and that
resistance would only exacerbate her condition; and (3) the tranquil period, where the couple
experience a compound relief and the batterer may show a tender and nurturing behavior towards
his partner.
Same; Same; Same; Same; Same; Once BWS and an impending danger based on the conduct of the
deceased in previous battering episodes are established, actual occurrence of an assault is no longer
a condition sine qua non before self-defense may be upheld.—Traditionally, in order that self-
defense may be appreciated, the unlawful aggression or the attack must be imminent and actually in
existence. This interpretation must, however, be re-evaluated vis-à-visthe recognized inherent
characteristic of the psyche of a person afflicted with the “Battered Woman Syndrome.” As
previously discussed, women afflicted by this syndrome live in constant fear for their life and thus
respond in self-defense. Once BWS and an impending danger based on the conduct of the deceased
in previous battering episodes are established, actual occurrence of an assault is no longer a
condition sine qua non before self defense may be upheld. Threatening behavior or communication
can satisfy the required imminence of danger. As stated in the ponencia, to require the battered
person to await an obvious deadly attack before she can defend her life would amount to sentencing
her to murder by installment.
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory—the
“battered woman syndrome” (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression—no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
“psychological paralysis” she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child’s.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

Page 27 of 162
The Case
For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa
guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:
“WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under
Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.
“The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50.000.00), Philippine currency as indemnity and another sum of fifty thousand
pesos (P50,000.00), Philippine currency as moral damages.”2
The Information3 charged appellant with parricide as follows:
“That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her
legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself
for the purpose, [causing] the following wounds, to wit:
‘Cadaveric spasm.
‘Body on the 2nd stage of decomposition.
‘Face, black, blownup & swollen w/ evident postmortem lividity. Eyes protruding from its sockets
and tongue slightly protrudes out of the mouth.
‘Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the
brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.
‘Blisters at both extremities, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
‘Abdomen distended w/ gas. Trunk bloated.’ which caused his death.”4 With the assistance of her
counsel,5 appellant pleaded not guilty during her arraignment on March 3, 1997.6 In due course,
she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution’s version of the facts in this
wise:
“Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben’s
younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and
Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with
their two children, namely: John Marben and Earl Pierre.
“On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary.
They each had two (2) bottles of beer before heading home. Arturo would pass Ben’s house before
reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel,
Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting
until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but
on his way home passing the side of the Genosas’ rented house, he heard her say ‘I won’t hesitate
to kill you’ to which Ben replied ‘Why kill me when I am innocent?’ That was the last time Arturo

Page 28 of 162
saw Ben alive. Arturo also noticed that since then, the Genosas’ rented house appeared uninhabited
and was always closed.
“On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living
about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a
pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.
“That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc
when he saw appellant going out of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty
(50) meters behind the Genosas’ rented house. Joseph, appellant and her children rode the same bus
to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.
“On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating
from his house being rented by Ben and appellant. Steban went there to find out the cause of the
stench but the house was locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the
kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless
body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with
injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the
mother of Ben about his son’s misfortune. Later that day, Iluminada Genosa, the mother of Ben,
identified the dead body as that of [her] son.
“Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police
station at Isabel, Leyte, received a report regarding the foul smell at the Genosas’ rented house.
Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to
the house and went inside the bedroom where they found the dead body of Ben lying on his side
wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3
Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a
red stain at one end. The bedroom was not in disarray.
“About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside
at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal
cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the
Information for parricide later filed against appellant. She concluded that the cause of Ben’s death
was ‘cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed
fracture of the occipital [bone].’
“Appellant admitted killing Ben.She testified that going home after work on November 15, 1995,
she got worried that her husband who was not home yet might have gone gambling since it was a
payday. With her cousin Ecel Arano, appellant went to look for Ben at the marketplace and taverns
at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas’
house. Ecel went home despite appellant’s request for her to sleep in their house.
“Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a

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chopping knife, cut the television antenna or wire to keep her from watching television. According
to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands
and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this
point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes
upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her ‘You might as well be killed so nobody
would nag me.’ Appellant testified that she was aware that there was a gun inside the drawer but
since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She
however, ‘smashed’ the arm of Ben with a pipe, causing him to drop the blade and his wallet.
Appellant then ‘smashed’ Ben at his nape with the pipe as he was about to pick up the blade and his
wallet. She thereafter ran inside the bedroom.
“Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly ‘distorted’ the drawer where the gun was and shot Ben. He did not die on the spot,
though, but in the bedroom.”7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
“1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her husband’s death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and
Marie Bianca.
“2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were
against their relationship, but Ben was persistent and tried to stop other suitors from courting her.
Their closeness developed as he was her constant partner at fiestas.
“3. After their marriage, they lived first in the home of Ben’s parents, together with Ben’s brother,
Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben ‘lived happily’. But
apparently, soon thereafter, the couple would quarrel often and their fights would become violent.
“4. Ben’s brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come
home drunk. Marivic would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with
blood. Marivic left the house but after a week, she returned apparently having asked for Ben’s
forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Ben’s aid again and saw blood from Ben’s forehead and Marivic holding an empty bottle.
Ben and Marivic reconciled after Marivic had apparently again asked for Ben’s forgiveness.
“Mrs. lluminada Genosa, Marivic’s mother-in-law, testified too, saying that Ben and Marivic
married in ‘1986 or 1985 more or less here in Fatima, Ormoc City.’ She said as the marriage went
along, Marivic became ‘already very demanding. Mrs. Iluminada Genosa said that after the birth of
Marivic’s two sons, there were ‘three (3) misunderstandings.’ The first was when Marivic stabbed
Ben with a table knife through his left arm; the second incident was on November 15, 1994, when
Marivic struck
Benon the forehead ‘using a sharp instrument until the eye was also affected. It was wounded and
also the ear’ and her husband went to Ben to help; and the third incident was in 1995 when the
couple had already transferred to the house in Bilwang and she saw that Ben’s hand was plastered
as ‘the bone cracked.’

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“Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
“5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 ‘After we collected
our salary, we went to the cock-fighting place of ISCO.’ They stayed there for three (3) hours, after
which they went to ‘Uniloks’ and drank beer—allegedly only two (2) bottles each. After drinking
they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while
talking with Ben, after which he went across the road to wait ‘for the runner and the usher of the
masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting
for the ushers and runners so that I can place my bet.’ On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one
‘Fredo’ who is used by Ben to feed his fighting cocks. Basobas’ testimony on the root of the
quarrel, conveniently overheard by him was Marivic saying ‘I will never hesitate to kill you’,
whilst Ben replied ‘Why kill me when I am innocent’ Basobas thought they were joking.
“He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben ‘before when he was stricken with a bottle by Marivic Genosa’ that he should leave
her and that Ben would always take her back after she would leave him ‘so many times’.
“Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben ‘even had a wound’ on the right forehead. He had known the couple for
only one (1) year.
“6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed,
and sometimes beat her.
“These incidents happened several times and she would often run home to her parents, but Ben
would follow her and seek her out, promising to change and would ask for her forgiveness. She
said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and
Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports.
Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a
week.
“7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse
and violence she received at the hands of Ben.
‘7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for
help and through the open jalousies, he saw the spouses ‘grappling with each other’. Ben had
Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note
this was the same night as that testified to by Arturo Busabos.8)
‘7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the
window of his hut which is located beside the Genosa house and saw ‘the spouses grappling with
each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic
Genosa’. He said after a while, Marivic was able to extricate he[r]self and enter the room of the
children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00
the next morning. (Again, please note that this was the same night as that testified to by Arturo
Basobas).
‘7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel,
Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew
them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic

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confided in him that Ben would pawn items and then would use the money to gamble. One time, he
went to their house and they were quarreling. Ben was so angry, but would be pacified ‘if
somebody would come.’ He testified that while Ben was alive ‘he used to gamble and when he
became drunk, he would go to our house and he will say, Teody’ because that was what he used to
call me, ‘mokimas ta,’ which means ‘let’s go and look for a whore.’ Mr. Sarabia further testified
that Ben ‘would box his wife and I would see bruises and one time she ran to me, I noticed a wound
(the witness pointed to his right breast) as according to her a knife was stricken to her.’ Mr. Sarabia
also said that once he saw Ben had been injured too. He said he voluntarily testified only that
morning.
‘7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben.
They searched in the market place, several taverns and some other places, but could not find him.
She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house
‘because she might be battered by her husband.’ When they got to the Genosa house at about 7:00
in the evening, Miss Arano said that ‘her husband was already there and was drunk.’ Miss Arano
knew he was drunk ‘because of his staggering walking and I can also detect his face.’ Marivic
entered the house and she heard them quarrel noisily. (Again, please note that this is the same night
as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic
had asked her to sleep in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when
Ben arrived because the couple ‘were very noisy in the sala and I had heard something was broken
like a vase.’ She said Marivic ran into her room and they locked the door. When Ben couldn’t get in
he got a chair and a knife and ‘showed us the knife through the window grill and he scared us.’ She
said that Marivic shouted for help, but no one came. On cross-examination, she said that when she
left Marivic’s house on November 15, 1995, the couple were still quarreling.
‘7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS,
Isabel, Leyte. Marivic was his patient ‘many times’ and had also received treatment from other
doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6)
episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient
Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and
considered him an expert witness.’
xxx xxx xxx
‘Dr. Caing’s clinical history of the tension headache and hypertention of Marivic on twenty-three
(23) separate occasions was marked at Exhibits ‘2’ and ‘2-B.’ The OPD Chart of Marivic at the
Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of
physical injuries reported was marked as Exhibit ‘3.’
“On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the
injuries were directly related to the crime committed. He said it is only a psychiatrist who is
qualified to examine the psychological make-up of the patient, ‘whether she is capable of
committing a crime or not.’
7.6. Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that
about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She
sought his help to settle or confront the Genosa couple who were experiencing ‘family troubles’.
He told Marivic to return in the morning, but he did not hear from her again and assumed ‘that they
might have settled with each other or they might have forgiven with each other.’
xxx xxx xxx

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“Marivic said she did not provoke her husband when she got home that night it was her husband
who began the provocation. Marivic said she was frightened that her husband would hurt her and
she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later
at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby
was born prematurely on December 1, 1995.
“Marivic testified that during her marriage she had tried to leave her husband at least five (5) times,
but that Ben would always follow her and they would reconcile. Marivic said that the reason why
Ben was violent and abusive towards her that night was because ‘he was crazy about his recent
girlfriend, Lulu x x x Rubillos.’
“On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his
testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone
in Manila, rented herself a room, and got herself a job as a field researcher under the alias
‘Marvelous Isidro’; she did not tell anyone that she was leaving Leyte, she just wanted to have a
safe delivery of her baby; and that she was arrested in San Pablo, Laguna.
‘Answering questions from the Court, Marivic said that she threw the gun away; that she did not
know what happened to the pipe she used to ‘smash him once’; that she was wounded by Ben on
her wrist with the bob; and that two (2) hours after she was ‘whirled’ by Ben, he kicked her ‘ass’
and dragged her towards the drawer when he saw that she had packed his things.’
“9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of
the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.
“10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the
time of the incident, and among her responsibilities as such was to take charge of all medico-legal
cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a
forensic pathologist. She merely took the medical board exams and passed in 1986. She was called
by the police to go to the Genosa residence and when she got there, she saw ‘some police officers
and neighbors around.’ She saw Ben Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.
xxx xxx xxx
“Dra. Cerillo said that ‘there is only one injury and that is the injury involving the skeletal area of
the head’ which she described as a ‘fracture’. And that based on her examination, Ben had been
dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.
“Dra. Cerillo was not cross-examined by defense counsel.
“11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the
crime of PARRICIDE committed ‘with intent to kill, with treachery and evidence premeditation, x
x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband,
with the use of a hard deadly weapon x x x which caused his death.’
“12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September
1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.
“13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT
finding Marivic guilty ‘beyond reasonable doubt’ of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
“14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic’s trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as

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counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant’s Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her. “The Honorable
Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of
undersigned counsel.
“15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to
the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of
Chief Judicial Records Office, wherein she submitted her ‘Brief without counsels’ to the Court.
“This letter was stamp-received by the Honorable Court on 4 February 2000.
“16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court
on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that
the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of
his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to
determine her state of mind at the time she killed her husband; and finally, to allow a partial re-
opening of the case a quo to take the testimony of said psychologists and psychiatrists.
“Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only
qualified forensic pathologist in the country, who opined that the description of the death wound (as
culled from the post-mortem findings, Exhibit ‘A’) is more akin to a gunshot wound than a beating
with a lead pipe.
“17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic’s
URGENT OMNIBUS MOTION and remanded the case ‘to the trial court for the reception of
expert psychological and/or psychiatric opinion on the ‘battered woman syndrome’ plea, within
ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken,
together with the copies of the TSN and relevant documentary evidence, if any, submitted.’
“18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
“Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological assessment were done at her clinic.
“Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own
private clinic and connected presently to the De La Salle University as a professor. Before this, she
was the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Joseph’s College; and was the counseling
psychologist of the National Defense College. She has an AB in Psychology from the University of
the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD
from the U.P. She was the past president of the Psychological Association of the Philippines and is
a member of the American Psychological Association. She is the secretary of the International
Council of Psychologists from about 68 countries; a member of the Forensic Psychology
Association; and a member of the ASEAN [Counseling] Association. She is actively involved with
the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled ‘Energy
Global Psychology’ (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first
time she has testified as an expert on battered women as this is the first case of that nature.
“Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked at
about 500 cases over a period of ten (10) years and discovered that ‘there are lots of variables that

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cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.
“Dra. Dayan described domestic violence to comprise of ‘a lot of incidents of psychological abuse,
verbal abuse, and emotional abuse to physical abuse and also sexual abuse.’
xxx xxx xxx
“Dra. Dayan testified that in her studies, ‘the battered woman usually has a very low opinion of
herself. She has a self-defeating and self-sacrificing characteristics, x x x they usually think very
lowly of themselves and so when the violence would happen, they usually think that they provoke
it, that they were the one who precipitated the violence, they provoke their spouse to be physically,
verbally and even sexually abusive to them.’ Dra. Dayan said that usually a battered x x x comes
from a dysfunctional family or from ‘broken homes.’
“Dra. Dayan said that the batterer, just like the battered woman, ‘also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very arrogant,
very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they
become violent.’ The batterer also usually comes from a dysfunctional family which over-pampers
them and makes them feel entitled to do anything. Also, they see often how their parents abused
each other so ‘there is a lot of modeling of aggression in the family.’
“Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes
her hope her husband will change, the belief in her obligations to keep the family intact at all costs
for the sake of the children.
xxx xxx xxx
“Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering ‘physical violence on both of
them. She said that in a ‘normal marital relationship,’ abuses also happen, but these are ‘not
consistent, not chronic, are not happening day in [and] day out.’ In an ‘abnormal marital
relationship,’ the abuse occurs day in and day out, is long lasting and ‘even would cause
hospitalization on the victim and even death on the victim.’
xxx xxx xxx
“Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because ‘inspite of her feeling of self-
confidence which we can see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person. And at the same time she
still has the imprint of all the abuses that she had experienced in the past.’
xxx xxx xxx
“Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for
nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then
thought of herself as a victim.
xxx xxx xxx
“19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared
and testified before RTC-Branch 35, Ormoc City.
“Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine
Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice
of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with
the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology.
After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V.

Page 35 of 162
Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon
City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military
Surgeons.
“He authored ‘The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 - 1978’ which was presented twice in international congresses. He
also authored The Mental Health of the Armed Forces of the Philippines 2000’, which was likewise
published internationally and locally. He had a medical textbook published on the use of Prasepam
on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he
published the use of the drug Zopiclom in 1985-86.
“Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other
hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a
specialist in psychiatry.
“Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed
Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty
thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of
his experience with domestic violence cases, he became a consultant of the Battered Woman Office
in Quezon City under Atty. Nenita Deproza.
“As such consultant, he had seen around forty (40) cases of severe domestic violence, where there
is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to
an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder ‘depends on the vulnerability of the victim.’ Dr. Pajarillo said that if the victim is
not very healthy, perhaps one episode of violence may induce the disorder; if the psychological
stamina and physiologic constitutional stamina of the victim is stronger, ‘it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.’
“In psychiatry, the post-traumatic stress disorder is incorporated under the ‘anxiety neurosis or
neurologic anxcietism.’ It is produced by ‘overwhelming brutality, trauma.’
xxx xxx xxx
“Dr. Pajarillo explained that with ‘neurotic anxiety’, the victim relives the beating or trauma as if it
were real, although she is not actually being beaten at that time. She thinks ‘of nothing but the
suffering.’
xxx xxx xxx
“A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable,
and she is irritable and restless. She tends to become hard-headed and persistent. She has higher
sensitivity and her ‘self-world’ is damaged.
“Dr. Pajarillo said that an abnormal family background relates to an individual’s illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally
‘internalizes what is around him within the environment.’ And it becomes his own personality. He
is very competitive; he is aiming high all the time; he is so macho; he shows his strong facade ‘but
in it there are doubts in himself and prone to act without thinking.’
xxx xxx xxx
“Dr. Pajarillo emphasized that ‘even though without the presence of the precipator (sic) or the one
who administered the battering, that re-experiencing of the trauma occurred (sic) because the

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individual cannot control it. It will just come up in her mind or in his mind.’
xxx xxx xxx
“Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves,
and ‘primarily with knives. Usually pointed weapons or any weapon that is available in the
immediate surrounding or in a hospital x x x because that abound in the household.’ He said a
victim resorts to weapons when she has ‘reached the lowest rock bottom of her life and there is no
other recourse left on her but to act decisively.’
xxx xxx xxx
“Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for
two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case
studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January
2001.
xxx xxx xxx
“On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her
husband Marivic’c mental condition was that she was ‘re-experiencing the trauma.’ He said ‘that
we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that things happened when
the re-experiencing of the trauma flashed in her mind.’ At the time he interviewed Marivic ‘she was
more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.’
xxx xxx xxx
“20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor.
Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened
trial a quo were elevated.”9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed—lying in bed asleep when Marivic smashed him with a
pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1)
the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination
of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time
she had killed her spouse; and (3) the inclusion of the said experts’ reports in the records of the case
for purposes of the automatic review or, in the alternative, a partial reopening of the case for the
lower court to admit the experts’ testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant’s Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the “battered woman syndrome” plea; and requiring the lower court to report thereafter
to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence,
if any.
Acting on the Court’s Resolution, the trial judge authorized the examination of Marivic by two
clinical psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on
domestic violence. Their testimonies, along with their documentary evidence, were then presented

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to and admitted by the lower court before finally being submitted to this Court to form part of the
records of the case.12
The Issues
Appellant assigns the following alleged errors of the trial court for this Court’s consideration:
“1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on
the evidence adduced as to self-defense.
“2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.
“3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
“4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and
further gravely erred in concluding that Ben Genosa was a battered husband.
“5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.
“6. The trial court gravely erred in concluding that Marivic’s flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.
“7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.
“8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining
the existence of self-defense and defense of foetus in this case, thereby erroneously convicting
Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death.”13
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.
The Court’s Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the
resolution of the principal issues. As consistently held by this Court, the findings of the trial court
on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will
not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight
and substance that could affect the outcome of the case.14
In appellant’s first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court’s disposition of the
case. In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated “an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.” We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and—on the basis of those and of the documentary evidence on record—made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge’s conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an “obviously hasty” manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and
at least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case

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with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago,16
this Court held:
“The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the deceased is the
marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected to.”
Two of the prosecution witnesses—namely, the mother and the brother of appellant’s deceased
spouse—attested in court that Ben had been married to Marivic.17 The defense raised no objection
to these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive
upon the party making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made.19 Other than merely attacking
the non-presentation of the marriage contract, the defense offered no proof that the admission made
by appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.
Third,under the circumstances of this case, the specific or direct cause of Ben’s death—whether by
a gunshot or by beating with a pipe—has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, “[considering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim’s death.” Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of “battered woman syndrome,” for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant’s children.
As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the discretion to determine which
witnesses and evidence are necessary to present.20 As the former further points out, neither the trial
court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she
cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila
and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save
the life of her unborn child. Any reversible error as to the trial court’s appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or

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

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

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A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxx xxx xxx
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxx xxx xxx
[Court] to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred,
after your marriage, from that time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me.”32
Referring to his “Out-Patient Chart”33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D.
Caing bolstered her foregoing testimony on chronic battery in this manner:
“Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates for the record.
A
1.May 12, 1990—physical findings are as follows: Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;
2.March 10, 1992—Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;
3.March 26, 1993—Abrasion, Furuncle (L) Axilla;
4.August 1, 1994—Pain, mastitis (L) breast, 2° to trauma. Attending physician: Dr. Caing;
5.April 17, 1995—Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and
6.June 5, 1995—Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician:
Dr. Canora.
QAmong the findings, there were two (2) incidents wherein you were the attending physician, is
that correct?
AYes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you
mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough substance if
force is applied.

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Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxx xxx xxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me
that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxx xxx xxx
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?
AAs per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her pregnancy or
for some other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxx xxx xxx
Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine
her personally on November 6,1995 and she was 8 months pregnant. What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23)
times.
Q For what?
A Tension headache.

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Q Can we say that specially during the latter consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does not response
when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in
line of giving the root cause of what is causing this disease. So, from the moment you ask to the
patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus.”34
Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.35
Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o’clock at night, because the couple
“were very noisy . . . and I heard something was broken like a vase.” Then Marivic came running
into Ecel’s room and locked the door. Ben showed up by the window grill atop a chair, scaring
them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help—this time to find Ben—but
they were unable to. They returned to the Genosa home, where they found him already drunk.
Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
“ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my
son, where was his father, then my second child said, ‘he was not home yet’. I was worried because
that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son
arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.

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Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o’clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me so I
requested my cousin to sleep with me, but she resisted because she had fears that the same thing
will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Araño, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What’s the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court What was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just worried he
might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignored him because I want to avoid trouble for fear
that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, ‘why did you switch off the light when the
children were there.’ At that time I was also attending to my children who were doing their
assignments. He was angry with me for not answering his challenge, so he went to the kitchen and

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[got] a bolo and cut the antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and he was
already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing his clothes,
then he dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that
‘you might as well be killed so there will be nobody to nag me.’
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it

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because he did not have the key then he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and
the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he
was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on
that very moment everything on my mind was to pity on myself, then the feeling I had on that very
moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx xxx xxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It’s a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.”38
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it
in understanding the psyche of a battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter’s
ordeal to the court a quo as follows:
“Q What can you say, that you found Marivic as a battered wife? Could you in layman’s term
describe to this Court what her life was like as said to you?
A What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and
to physical abuse. The husband had a very meager income, she was the one who was practically the
bread earner of the family. The husband was involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in cockfight and going home very angry and which will
trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the husband was saying that the child she
was carrying was not his own. So she was very angry, she was at the same time very depressed
because she was also aware, almost like living in purgatory or even hell when it was happening day
in and day out.”39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or

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unwittingly put forward, additional supporting evidence as shown below:
“Q In your first encounter with the appellant in this case in 1999, where you talked to her about
three hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened.
The most important information were escalating abuses that she had experienced during her
marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the
case or at least you have substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.
xxx xxx xxx
QDid you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?
A What I remember that there were brothers of her husband who are also battering their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is
the first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-
defense. I also believe that there had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of all the battering that happened and
so she became an abnormal person who had lost she’s not during the time and that is why it
happened because of all the physical battering, emotional battering, all the psychological abuses
that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as follows:
“Q And you also said that you administered [the] objective personality test, what x x x [is this] all
about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test
is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the
data that I’m gathering from her are the truth.”41

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

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[W]hen the violence would happen, they usually think that they provoke [d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally
and even sexually abusive to them.”48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner—poverty, self-blame and guilt arising from the latter’s belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change.49
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated “probably ten to twenty thousand” violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe
domestic violence, in which the physical abuse on the woman would sometimes even lead to her
loss of consciousness.50
Dr. Pajarillo explained that “overwhelming brutality, trauma” could result in posttraumatic stress
disorder, a form of “anxiety neurosis or neurologic anxietism.”51 After being repeatedly and
severely abused, battered persons “may believe that they are essentially helpless, lacking power to
change their situation, x x x [A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of the victim’s ability to muster an
active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.52
A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found
that “even if a person has control over a situation, but believes that she does not, she will be more
likely to respond to that situation with coping responses rather than trying to escape.” He said that it
was the cognitive aspect—the individual’s thoughts—that proved all-important. He referred to this
phenomenon as “learned helplessness.” “[T]he truth or facts of a situation turn out to be less
important than the individual’s set of beliefs or perceptions concerning the situation. Battered
women don’t attempt to leave the battering situation, even when it may seem to outsiders that
escape is possible, because they cannot predict their own safety; they believe that nothing they or
anyone else does will alter their terrible circumstances.”54
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no escape.55
Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more.57
In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the “cycle of violence” supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not prove

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the existence of the syndrome. In other words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How
did Marivic normally respond to Ben’s relatively minor abuses? What means did she employ to try
to prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She
simply mentioned that she would usually run away to her mother’s or father’s house;58 that Ben
would seek her out, ask for her forgiveness and promise to change; and that believing his words,
she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other’s testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court
the factual experiences and thoughts that appellant had related to them—if at all—based on which
they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the Records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense.59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense60—she must have
actually feared imminent harm from her batterer and honestly believed in the need to kill him in
order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must
face a real threat on one’s life; and the peril sought to be avoided must be imminent and
actual, not merely imaginary.61 Thus, the Revised Penal Code provides the following
requisites and effect of self-defense:62
“Art. 11. Justifying circumstances.—The following do not incur any criminal liability:
“1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.”
Unlawful aggression is the most essential element of self-defense.63 It presupposes actual,

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sudden and unexpected attack—or an imminent danger thereof—on the life or safety of a
person.64 In the present case, however, according to the testimony of Marivic herself, there
was a sufficient time interval between the unlawful aggression of Ben and her fatal attack
upon him. She had already been able to withdraw from his violent behavior and escape to
their children’s bedroom. During that time, he apparently ceased his attack and went to bed.
The reality or even the imminence of the danger he posed had ended altogether. He was no
longer in a position that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children’s bedroom—and
based on past violent incidents, there was a great probability that he would still have pursued
her and inflicted graver harm—then, the imminence of the real threat upon her life would not
have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents of domestic battery
usually have a predictable pattern. To require the battered person to await an obvious, deadly attack
before she can defend her life “would amount to sentencing her to ‘murder by installment.’ ”65
Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to
the defendant’s use of deadly force must be shown. Threatening behavior or communication can
satisfy the required imminence of danger.66 Considering such circumstances and the existence of
BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense—complete or incomplete—on the part of
the victim.68 Thus, Marivic’s killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a
criminal case opens it wholly for review on any issue, including that which has not been raised by
the parties.69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:
“This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced
with her husband constitutes a form of [cumulative] provocation which broke down her
psychological resistance and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced
at the hands of her abuser husband a state of psychological paralysis which can only be ended by an
act of violence on her part.”70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of “repetitious
pain taking, repetitious battering, [and] repetitious maltreatment” as well as the severity and the
prolonged administration of the battering is posttraumatic stress disorder.71 Expounding thereon,
he said:
“Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is the
public and social support available to the victim. If nobody is interceding, the more she will go to
that disorder . . . .
xxx xxx xxx

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Q You referred a while ago to severity. What are the qualifications in terms of severity of the
posttraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a
pillow on the face, strangulating the individual, suffocating the individual, and boxing the
individual. In this situation therefore, the victim is heightened to painful stimulus, like for example
she is pregnant, she is very susceptible because the woman will not only protect herself, she is also
to protect the fetus. So the anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [a]typical]?
A The acute is the one that usually require only one battering and the individual will manifest now
a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically that after six (6) months is chronic.
The [a]typical one is the repetitious battering but the individual who is abnormal and then become
normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic
stress disorder.”72
Answering the questions propounded by the trial judge, the expert witness clarified further:
“Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or
her mental capacity?
A Yes, your Honor.
QAs you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.”73
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
“cumulative provocation which broke down her psychological resistance and natural self-control,”
“psychological paralysis,” and “difficulty in concentrating or impairment of memory.”
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness
that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the Revised Penal
Code, this circumstance should be taken in her favor and considered as a mitigating factor.76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1)
there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is
not far removed from the commission of the crime by a considerable length of time, during which
the accused might recover her normal equanimity.78
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck

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towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months
pregnant at the time. The attempt on her life was likewise on that of her fetus.79 His abusive and
violent acts, an aggression which was directed at the lives of both Marivic and her unborn child,
naturally produced passion and obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state continued. According to her, she felt her
blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were
about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then
she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo’s
testimony80 that with “neurotic anxiety”—a psychological effect on a victim of ‘‘overwhelming
brutality [or] trauma”—the victim relives the beating or trauma as if it were real, although she is
not actually being beaten at the time. She cannot control “re-experiencing the whole thing, the most
vicious trauma that she suffered.” She thinks “of nothing but the suffering.” Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal
equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion
and obfuscation.
It should be clarified that these two circumstances—psychological paralysis as well as passion and
obfuscation—did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise
of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with
their child was deemed by her as an attempt not only on her life, but likewise on that of their
unborn, child. Such perception naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence.82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself.83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body
of Ben had been found lying in bed with an “open, depressed, circular” fracture located at the back
of his head. As to exactly how and when he had been fatally attacked, however, the prosecution
failed to establish indubitably. Only the following testimony of appellant leads us to the events
surrounding his death:
“Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.

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

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q It is a flexible blade?
AIt’s a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxx xxx xxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to
the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was

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frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I’ve been through with him, I took pity on myself and
I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot
him.
COURT /to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.”84
The above testimony is insufficient to establish the presence of treachery. There is no showing of
the victim’s position relative to appellant’s at the time of the shooting. Besides, equally axiomatic is
the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked.86 There is
no showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To
the contrary, it appears that the thought of using the gun occurred to her only at about the same
moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that
she consciously and deliberately employed the method by which she committed the crime in order
to ensure its execution, this Court resolves the doubt in her favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua
to death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in
its medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense.90 Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which is next lower in degree—prision
mayor—and the maximum shall be within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; toreclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole.91
Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made—on the basis of existing law and jurisprudence applicable to

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the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant’s counsel, Atty. Katrina Legarda, have helped it in
such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person’s mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third,at the
time of the killing, the batterer must have posed probable—not necessarily immediate and actual—
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCEDto six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio. People vs. Genosa, 419 SCRA 537, G.R. No. 135981 January 15, 2004
G.R. No. 54135. November 21, 1991.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. POLICARPIO RAFANAN, JR.,
defendant-appellant
Criminal Law; Rape; Plea of insanity.—Although the Court has ruled many times in the past on the
insanity defense, it was only in People vs. Formigones that the Court elaborated on the required
standards of legal insanity. x x x The standards set out in Formigones were commonly adopted in
subsequent cases. A linguistic or grammatical analysis of those standards suggests that Formigones
established two (2) distinguishable tests: (a) the test of cognition—"complete deprivation of
intelligence in committing the [criminal] act,” and (b) the test of volition—"or that there be a total
deprivation of freedom of the will.” But our caselaw shows common reliance on the test of
cognition, rather than on a test relating to “freedom of the will;” examination of our caselaw has
failed to turn up any case where this Court has exempted an accused on the sole ground that he was
totally deprived of ''freedom of the will,” i.e., without an accompanying “com-plete deprivation of
intelligence.” This is perhaps to be expected since a person’s volition naturally reaches out only
towards that which is presented as desirable by his intelligence, whether that intelligence be
diseased or healthy. In any case, where the accused failed to show complete impairment or loss of
intelligence, the Court has recognized at most a mitigating, not an exempting, circumstance in
accord with Article 13(9) of the Revised Penal Code: “Such illness of the offender as would
diminish the exercise of the will-power of the offender without however depriving him of the
consciousness of his acts.”

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Same; Same; Same; Schizophrenia as exempting circumstance.—ln previous cases where
schizophrenia was interposed as an exempting circumstance, it has mostly been rejected by the
Court. In each of these cases, the evidence presented tended to show that if there was impairment of
the mental faculties, such impairment was not so complete as to deprive the accused of intelligence
or the consciousness of his acts. The facts of the instant case exhibit much the same situation.
Same; Same; Same.—The law presumes every man to be sane. A person accused of a crime has the
burden of proving his affirmative allegation of insanity, Here, appellant failed to present clear and
convincing evidence regarding his state of mind immediately before and during the sexual assault
on Estelita. It has been held that inquiry into the mental state of the accused should relate to the
period immediately before or at the very moment the act is committed.
APPEAL from the decision of the then Court of First Instance of Villasis, Pangasinan, Br. 5.
Causapin, Millar & Tutana Law Office for defendant-appellant.
FELICIANO, J.:
Policarpio Rafanan, Jr. appeals from a decision of the then Court of First Instance of Pangasinan
convicting him of the crime of rape and sentencing him to reclusion perpetua, to indemnify
complainant Estelita Ronaya in the amount of P10,000.00 by way of moral damages, and to pay the
costs.
The facts were summarized by the trial court in the following manner:
“The prosecution’s evidence shows that on February 27, 1976, complainant Estelita Ronaya who
was then only fourteen years old was hired as a househelper by the mother of the accused, Ines
Rafanan alias ‘Baket Ines’ with a salary of P30.00 a month.
The accused Policarpio Rafanan and his family lived with his mother in the same house at
Barangay San Nicolas, Villasis, Pangasinan. Policarpio was then married and had two children.
On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of the
accused to help in their store which was located in front of their house about six (6) meters away.
Attending to the store at the time was the accused. At 11 ;00 o’clock in the evening, the accused
called the complainant to help him close the door of the store and as the latter complied and went
near him, he suddenly pulled the complainant inside the store and said, ‘Come. let us have sexual
intercourse,’ to which Estelita replied, ‘I do not like,’ and struggled to free herself and cried. The
accused held a bolo measuring 1–1/2 feet including the handle which he pointed to the throat of the
complainant threatening her with said bolo should she resist. Then, he forced her to lie down on a
bamboo bed, removed her pants and after unfastening the zipper of his own pants, went on top of
the complainant and succeeded having carnal knowledge of her inspite of her resistance and
struggle. After the sexual intercourse, the accused cautioned the complainant not to report the
matter to her mother or to anybody in the house, otherwise he would kill her.
Because of fear, the complainant did not immediately report the matter and did not leave the house
of the accused that same evening. ln fact, she slept in the house of the accused that evening and the
following morning she scrubbed the floor and did her daily routine work in the house. She only left
the house in the evening of March 17, 1976.
Somehow, in the evening of March 17, 1976, the family of the accused learned what happened the
night before in the store between Policarpio and Estelita and a quarrel ensued among them
prompting Estelita Ronaya to go back to her house. When Estelita’s mother confronted her and
asked her why she went home that evening, the complainant could not answer but cried and cried.
It was only the following morning on March 18, 1976 that the complainant told her mother that she

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was raped by the accused. Upon knowing what happened to her daughter, the mother Alejandra
Ronaya, immediately accompanied her to the house of Patrolman Bernardo Mairina of the Villasis
Police Force who lives in Barrio San Nicolas, Villasis, Pangasinan. Patrolman Mairina is a cousin
of the father of the complainant. He advised them to proceed to the municipal building while he
went to fetch the accused. The accused was later brought to the police headquarter with the bolo,
Exhibit ‘E', which the accused allegedly used in threatening the complainant."1
At arraignment, appellant entered a plea of not guilty. The case then proceeded to trial and in due
course of time, the trial court, as already noted, convicted the appellant.
The instant appeal is anchored on the following:
“Assignment of Errors
1. The lower court erred in basing its decision of conviction of appellant solely on the testimony of
the complainant and her mother.
2. The lower court erred in considering the hearsay evidence for the prosecution, ‘Exhibits B and
C'.
3. The lower court erred in not believing the testimony of the expert witnesses, as to the mental
condition of the accused-appellant at the time of the alleged commission of the crime of rape.
4. The lower court erred in convicting appellant who at the time of the alleged rape was suffering
from insanity."2
Appellant first assails the credibility of complainant as well as of her mother whose testimonies he
contends are contradictory. It is claimed by appellant that the testimony of complainant on direct
examination that she immediately went home after the rape incident, is at variance with her
testimony on cross examination to the effect that she had stayed in the house of appellant until the
following day. Complainant, in saying that she left the house of appellant by herself, is also alleged
to have contradicted her mother who stated that she (the mother) went to the store in the evening of
17 March 1979 and brought Estelita home.
The apparently inconsistent statements made by complainant were clarified by her on cross
examination. In any case, the inconsistencies related to minor and inconsequential details which do
not touch upon the manner in which the crime had been committed and therefore did not in any
way impair the credibility of the complainant.3
The commission of the crime was not seriously disputed by appellant. The testimony of
complainant in this respect is clear and convincing:
“Fiscal Guillermo:
Q Now, we go back to that time when according to you the accused pulled you from the door and
brought you inside the store after you helped him closed the store. Now, after the accused pulled
you from the door and brought you inside the store what happened then?
A ‘You come and we will have sexual intercourse/ he said.
Q And what did you say?
A ‘I do not like,’ I said.
Q And what did you do, if any, when you said you do not like to have sexual intercourse with him?
A I struggled and cried.
Q What did the accused do after that?
A He got a knife and pointed it at my throat so I was frightened and he could do what he wanted to
do. He was able to do what he wanted to do.
Q This ‘kutsilyo’ you were referring to or knife, how big is that knife? Will you please demonstrate,
if any?
A This length, sir. (Which parties agreed to be about one and one-half [1–1/2] feet long.)

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xxx xxx xxx
Fiscal Guillermo:
Q Now, you said that the accused was able to have sexual intercourse with you after he placed the
bolo or that knife [at] your throat. Now, will you please tell the court what did the accused do
immediately after placing that bolo at your throat and before having sexual intercourse with you?
A He had sexual intercourse with me.
Q What was your wearing apparel that evening?
A I was wearing pants, sir.
Q Aside from the pants, do you have any underwear?
A Yes, sir, I have a panty.
Q Now, before the accused have sexual intercourse with you what, if any, did he do with respect to
your pants and your panty?
A He removed them, sir.
Q Now, while he was removing your pants and your panty what, if any, did you do?
A I continued to struggle so that he could not remove my pants but he was stronger that’s why he
succeeded.
Q Now, after he had removed your panty and your pants or pantsuit what else happened?
A He went on top of me, sir.
Q At the time what was the accused wearing by way of apparel?
A He was wearing pants.
Q When you said he went on top of you after he has removed your pantsuit and your panty, was he
still wearing his pants?
A He unbuttoned his pants and unfastened the zipper of his pants.
Q And after he unbuttoned and unfastened his pants what did you see which he opened?
A I saw his penis.
Q Now, you said that after the accused has unzipped his pants and brought out his penis which you
saw, he went on top of you. When he was already on top of you what did you do, if any?
A I struggled.
Q Now, you said that you struggled. What happened then when you struggled against the accused
when he was on top of you?
A Since he was stronger, he succeeded doing what he wanted to get.
xxx xxx xxx
COURT: Alright, what do you mean by he was able to succeed in getting what he wanted to get?
Fiscal Guillermo: Considering the condition of the witness, your honor, with tears, may we just be
allowed to ask a leading question which is a follow-up question?
Witness:
A He inserted his private part inside my vagina.
Fiscal Guillermo:
Q Now, when he inserted his private part inside your vagina what did you feel, if any?
A I felt something that came out from his inside.
Q Now, how long, if you remember, did the accused have his penis inside your vagina?
A Around five minutes maybe, sir.
Q After that what happened then?
A He removed it.
Q After the accused has removed his penis from your vagina what else happened?
A No more, sir, he sat down.

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Q What, if any, did he tell you?
A There was, sir. He told me not to report the matter to my mother and to anybody in their house.
Q What else did he tell you?
A He told me that if I told anyone what happened, he will kill me.
Q After that where did you go?
A I went home already, sir."4
The principal submission of appellant is that he was suffering from a metal aberration characterized
as schizophrenia when he inflicted his violent intentions upon Estelita. At the urging of his counsel,
the trial court suspended the trial and ordered appellant confined at the National Mental Hospital in
Mandaluyong for observation and treatment. In the meantime, the case was archived. Appellant
was admitted into the hospital on 29 December 1976 and stayed there until 26 June 1978.
During his confinement, the hospital prepared four (4) clinical reports on the mental and physical
condition of the appellant, all signed by Dr. Simplicio N. Masikip and Dr, Arturo E. Nerit,
physician-in-charge and chief, Forensic Psychiatry Service, respectively.
In the first report dated 27 January 1977, the following observations concerning appellant’s mental
condition were set forth:
“On admission he was sluggish in movements, indifferent to interview, would just look up
whenever questioned but refused to answer.
On subsequent examinations and observations he was carelessly attired, with dishevelled hair,
would stare vacuously through the window, or look at people around him. He was indifferent and
when questioned, he would just smile inappropriately. He refused to verbalize, even when
persuaded, and was emotionally dull and mentally inaccessible. He is generally seclusive, at times
would pace the floor, seemingly in deep thought. Later on when questioned his frequent answers
are ‘Aywan ko, hindi ko alam.’ His affect is dull, he claimed to hear strange voices ‘parang ibon,
tinig ng ibon,’ but cannot elaborate. He is disoriented to 3 spheres and has no idea why he was
brought here,”
The report then concluded:
“In view of the foregoing examinations and observations, Policarpio Rafanan, Jr. y Gambawa is
found suffering from a mental disorder called schizophrenia, manifested by carelessness in
grooming, sluggishness in movements, staring vacuously, indifferen[ce], smiling inappropriately,
refusal to verbalize, emotional dullness, mental inaccessibility, seclusiveness, preoccupation,
disorientation, and perceptual aberrations of hearing strange sounds. He is psychotic or insane,
hence cannot stand court trial. He needs further hospitalization and treatment."5
The second report, dated 21 June 1977, contained the following description of appellant’s mental
condition:
“At present he is still seclusive, undertalkative and retarded in his responses. There is dullness of
his affect and he appeared preoccupied. He is observed to mumble alone by himself and would
show periods of being irritable saying—'oki naman’ with nobody in particular. He claim he does
not know whether or not he was placed in jail and does not know if he has a case in court. Said he
does not remember having committed any wrong act” and the following conclusions:
“In view of the foregoing examinations and observations Policarpio Rafanan, Jr. y. Gambawa is at
present time still psychotic or insane, manifested by periods of irritability—cursing nobody in
particular, seclusive, underactive, undertalkative, retarded in his responses, dullness of his affect,
mumbles alone by himself, preoccupied and lack of insight.
He is not yet in a condition to stand court trial. He needs further hospitalization and treatment."6
In the third report, dated 5 October 1977, appellant was described as having become “better

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behaved, responsive” and “neat in person,” and “adequate in his emotional tone, in touch with his
surroundings and x x x free from hallucinatory experiences.” During the preceding period,
appellant had been allowed to leave the hospital temporarily; he stayed with a relative in Manila
while coming periodically to the hospital for
check-ups. During this period, he was said to have been helpful in the doing of household chores,
conversed and associated freely with other members of the household and slept well, although,
occasionally, appellant smiled while alone. Appellant complained that at times he heard voices of
small children, talking in a language he could not understand. The report concluded by saying that
while appellant had improved in his mental condition, he was not yet in a position to stand trial
since he needed further treatment, medication and check-ups.7 In the last report dated 26 June
1978, appellant was described as behaved, helpful in household chores and no longer talking while
alone. He was said to be “fairly groomed” and “oriented” and as denying having hallucinations.
The report concluded that he was in a “much improved condition” and “in a mental condition to
stand court trial."8
Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that
appellant was sick one or two years before his admission into the hospital, in effect implying that
appellant was already suffering from schizophrenia when he raped complainant.9 The defense next
presented Dr. Raquel Jovellano, a psychiatrist engaged in private practice, who testified that he had
examined and treated the appellant,
Appellant’s plea of insanity rests on Article 12 of the Revised Penal Code which provides:
“Art. 12. Circumstances which exempt from criminal liability.—The following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
Where the imbecile or an insane person has committed an act which the law defines as a felony
(delito), the court shall order his confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave without first obtaining the
permission of the same court.
Although the Court has ruled many times in the past on the insanity defense, it was only in People
vs. Formigones 10 that the Court elaborated on the required standards of legal insanity, quoting
extensively from the Commentaries of Judge Guillermo Guevara on the Revised Penal Code, thus:
“The Supreme Court of Spain held that in order that this exempting circumstance may be taken into
account, it is necessary that there be a complete deprivation of intelligence in committing the act,
that is, that the accused be deprived of reason; that there be no responsibility for his own acts; that
he acts without the least discernment; (Decision of the Supreme Court of Spain of November
21,1891; 47 Jur. Crim. 413.) that there be a complete absence of the power to discern, (Decision of
the Supreme Court of Spain of April 29,1916; 96 Jur. Crim. 239) or that there be a total deprivation
of freedom of the will. (Decision of the Supreme Court of Spain of April 9, 1872; 6 Jur. Crim. 239)
For this reason, it was held that the imbecility or insanity at the time of the commission of the act
should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of
his mental faculties does not exclude imputability. (Decision of the Supreme Court of Spain of
April 20,1911; 86 Jur. Crim. 94, 97.)
The Supreme Court of Spain likewise held that deaf-muteness cannot be [equated with] imbecility
or insanity.
The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the
defendant had previously lost his reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by

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law are always reputed to be voluntary, and it is improper to conclude that a person acted
unconsciously, in order to relieve him from liability, on the basis of his mental condition, unless his
insanity and absence of will are proved.” (Italics supplied.)
The standards set out in Formigones were commonly adopted in subsequent cases.11 A linguistic or
grammatical analysis of those standards suggests that Formigones established two (2)
distinguishable tests: (a) the test of cognition—"complete deprivation of intelligence in committing
the [criminal] act,” and (b) the test of volition—"or that there be a total deprivation of freedom of
the will.” But our caselaw shows common reliance on the test of cognition, rather than on a test
relating to “freedom of the will;” examination of our caselaw has failed to turn up any case where
this Court has exempted an accused on the sole ground that he was totally deprived of “freedom of
the will,” i.e., without an accompanying “complete deprivation of intelligence.” This is perhaps to
be expected since a person’s volition naturally reaches out only towards that which is presented as
desirable by his intelligence, whether that intelligence be diseased or healthy. In any case, where
the accused failed to show complete impairment or loss of intelligence, the Court has recognized at
most a mitigating, not an exempting, circumstance in accord with Article 13(9) of the Revised
Penal Code: “Such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of the consciousness of his acts."12
Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized
by inability to distinguish between fantasy and reality, and often accompanied by hallucinations and
delusions. Formerly called dementia praecox, it is said to be the most common form of psychosis
and usually develops between the ages 15 and 30.13 A standard textbook in psychiatry describes
some of the symptoms of schizophrenia in the following manner:
“Eugen Bleuler later described three general primary symptoms of schizophrenia: a disturbance of
association, a disturbance of affect, and a disturbance of activity. Bleuler also stressed the dereistic
attitude of the schizophrenic—that is? his detachment from reality and his consequent autism and
the ambivalence that expresses itself in his uncertain affectivity and initiative. Thus, Bleuler’s
system of schizophrenia is often referred to as the four A’s: association, affect. autism, and
ambivalence.
xxx xxx xxx
Kurt Schneider described a number of first-rank symptoms of schizophrenia that he considered in
no way specific for the disease but of great pragmatic value in making a diagnosis. Schneider’s
first-rank symptoms include the hearing of one’s thoughts spoken aloud, auditory hallucinations
that comment on the patient’s behavior, somatic hallucinations, the experience of having one’s
thoughts controlled, the spreading of one’s thoughts to others, delusions, and the experience of
having one’s actions controlled or influenced from the outside.
Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on the basis of second-
rank symptoms, along with an otherwise typical clinical appearances. Second-rank symptoms
include other forms of hallucination, perplexity, depressive and euphoric disorders of affect, and
emotional blunting.
Perceptual Disorders
Various perceptual disorders occur in schizophrenia x x x. Hallucinations. Sensory experiences or
perceptions without corresponding external stimuli are common symptoms of schizophrenia. Most
common are auditory hallucinations, or the hearing of voices. Most characteristically, two or more
voices talk about the patient, discussing him in the third person. Frequently, the voices address the
patient, comment on what he is doing and what is going on around him, or are threatening or
obscene and very disturbing to the patient. Many schizophrenic patients experience the hearing of

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their own thoughts, When they are reading silently, for example, they may be quite disturbed by
hearing every word they are reading clearly spoken to them.
Visual hallucinations occur less frequently than auditory hallucinations in schizophrenic patients,
but they are not rare. Patients suffering from organic or affective psychoses experience visual
hallucinations primarily at night or during limited periods of the day, but schizophrenic patients
hallucinate as much during the day as they do during the night, sometimes almost continuously.
They get relief only in sleep. When visual hallucinations occur in schizophrenia, they are usually
seen nearby, clearly defined, in color, life size, in three dimensions, and moving. Visual
hallucinations almost never occur by themselves but always in combination with hallucinations in
one of the other sensory modalities.
xxx xxx xxx
Cognitive Disorders
Delusions. By definition, delusions are false ideas that cannot be corrected by reasoning, and that
are idiosyncratic for the patient—that is, not part of his cultural environment. They are among the
common symptoms of schizophrenia.
Most frequent are delusions of persecution, which are the key symptom in the paranoid type of
schizophrenia. The conviction of being controlled by some unseen mysterious power that exercises
its influence from a distance is almost pathognomonic for schizophrenia. It occurs in most, if not
all, schizophrenics at one time or another, and for many it is a daily experience. The modern
schizophrenic whose delusions have kept up with the scientific times may be preoccupied with
atomic power, X-rays, or spaceships that take control over his mind and body. Also typical for
many schizophrenics are delusional fantasies about the destruction of the world."14
In previous cases where schizophrenia was interposed as an exempting circumstance,15 it has
mostly been rejected by the Court. In each of these cases, the evidence presented tended to show
that if there was impairment of the mental faculties, such impairment was not so complete as to
deprive the accused of intelligence or the consciousness of his acts.
The facts of the instant case exhibit much the same situation. Dr. Jovellano declared as follows:
"(Fiscal Guillermo:)
Q Now, this condition of the accused schizophrenic as you found him, would you say doctor that he
was completely devoid of any consciousness of whatever he did in connection with the incident in
this case?
A He is not completely devoid of consciousness.
Q Would you say doctor, therefore, that he was conscious of threatening the victim at the time of
the commission of the alleged rape?
A Yes, he was conscious.
Q And he was conscious of forcing the victim to lie down?
A Yes.
Q And he was also conscious of removing the panty of the victim at the time?
A Yes.
Q And he was also conscious and knows that the victim has a vagina upon which he will place his
penis?
A Yeah.
Q And he was conscious enough to be competent and have an erection?
A Yes.
Q Would you say that those acts of a person no matter whether he is schizophrenic which you said,

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it deals (sic) some kind of intelligence and consciousness of some acts that is committed?
A Yes, it involves the consciousness because the consciousness there in relation to the act is what
we call primitive acts of any individual. The difference only in the act of an insane and a normal
individual, a normal individual will use the power of reasoning and consciousness within the
standard of society while an insane causes (sic) already devoid of the fact that he could no longer
withstand himself in the ordinary environment, yet his acts are within the bound of insanity or
psychosis.
Q Now, Doctor, of course this person suffering that ailment which you said the accused here is
suffering is capable of planning the commission of a rape?
A Yes, they are also capable.
Q He is capable of laying in wait in order to assault?
A Yes.
Q And would you say that condition that ability of a person to plan a rape and to perform all the
acts preparatory to the actual intercourse could be done by an insane person?
A Yes, it could be done.
Q Now, you are talking of insanity in its broadest sense, is it not?
A Yes, sir.
Q Now, is this insane person also capable of knowing what is right and what is wrong?
A Well, there is no weakness on that part of the individual. They may know what is wrong but yet
there is no inhibition on the individual.
Q Yes, but actually, they are mentally equipped with knowledge that an act they are going to
commit is wrong?
A Yeah, they are equipped but the difference is, there is what we call they lost the inhibition. The
reasoning is weak and yet they understand but the volition is [not] there, the drive is [not] there."16
(Italics supplied)
The above testimony, in substance, negates complete destruction of intelligence at the time of
commission of the act charged which, in the current state of our caselaw, is critical if the defense of
insanity is to be sustained. The fact that appellant Rafanan threatened complainant Estelita with
death should she reveal she had been sexually assaulted by him, indicates, to the mind of the Court,
that Rafanan was aware of the reprehensible moral quality of that assault. The defense sought to
suggest, through Dr. Jovellano’s last two (2) answers above, that a person suffering from
schizophrenia sustains not only impairment of the mental faculties but also deprivation of the
power of self-control. We do not believe that Dr. Jovellano’s testimony, by itself, sufficiently
demonstrated the truth of that proposition. In any case, as already pointed out, it is complete loss of
intelligence which must be shown if the exempting circumstance of insanity is to be found.
The law presumes every man to be sane. A person accused of a crime has the burden of proving his
affirmative allegation of insanity.17 Here, appellant failed to present clear and convincing evidence
regarding his state of mind immediately before and during the sexual assault on Estelita. It has been
held that inquiry into the mental state of the accused should relate to the period immediately before
or at the very moment the act is committed.18 Appellant rested his case on the testimonies of the
two (2) physicians (Dr. Jovellano and Dr. Nerit) which, however, did not purport to characterize his
mental condition during that critical period of time. They did not specifically relate to
circumstances occurring on or immediately before the day of the rape. Their testimonies consisted
of broad statements based on general behavioral patterns of people afflicted with schizophrenia.
Curiously, while it was Dr. Masikip who had actually observed and examined appellant during his
confinement at the National Mental Hospital, the defense chose to present Dr. Nerit.

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Accordingly, we must reject the insanity defense of appellant Rafanan.
In People vs. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting
because it does not completely deprive the offender of the consciousness of his acts, may be
considered as a mitigating circumstance under Article 13(9) of the Revised Penal Code, i.e., as an
illness which diminishes the exercise of the offender’s will-power without, however, depriving him
of the consciousness of his acts. Appellant should have been credited with this mitigating
circumstance, although it would not have affected the penalty imposable upon him under Article 63
of the Revised Penal Code: “in all cases in which the law prescribes a single indivisible penalty
(reclusion perpetua in this case), it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.”
WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that the amount of
moral damages is increased to P30,000.00. Costs against appellant. People vs. Rafanan, Jr., 204
SCRA 65, G.R. No. 54135 November 21, 1991
G.R. No. 182239. March 16, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMIE M. JACINTO, accused-
appellant.
Criminal Law; Rape; Witnesses; The credible, natural, and convincing testimony of the victim may
be sufficient to convict the accused, more so, when the testimony is supported by the medico-legal
findings of the examining physician.—In the determination of the innocence or guilt of a person
accused of rape, we consider the three well-entrenched principles: (1) an accusation for rape can
be made with facility; it is difficult to prove but more difficult for the accused, though innocent, to
disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons are
usually involved, the testimony of the complainant must be scrutinized with extreme caution; and
(3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to
draw strength from the weakness of the evidence for the defense. Necessarily, the credible, natural,
and convincing testimony of the victim may be sufficient to convict the accused. More so, when the
testimony is supported by the medico-legal findings of the examining physician.
Same; Same; Same; Alibi; The defense of alibi cannot prevail over the victim’s positive
identification of the perpetrator of the crime, except when it is established that it was physically
impossible for the accused to have been at the locus criminis at the time of the commission of the
crime.—Further, the defense of alibi cannot prevail over the victim’s positive identification of the
perpetrator of the crime, except when it is established that it was physically impossible for the
accused to have been at the locus criminis at the time of the commission of the crime.
Same; Same; Statutory Rape; Elements.—A man commits rape by having carnal knowledge of a
child under twelve (12) years of age even in the absence of any of the following circumstances: (a)
through force, threat or intimidation; (b) when the offended party is deprived of reason or otherwise
unconscious; or (c) by means of fraudulent machination or grave abuse of authority.
Same; Same; Same; A victim of rape could readily identify her assailant, especially when he is not
a stranger to her, considering that she could have a good look at him during the commission of the
crime.—The real identity of the assailant and the whereabouts of the appellant at the time of the
commission of the crime are now in dispute. The defense would want us to believe that it was Julito
who defiled AAA, and that appellant was elsewhere when the crime was committed. We should
not, however, overlook the fact that a victim of rape could readily identify her assailant, especially
when he is not a stranger to her, considering that she could have a good look at him during the
commission of the crime. AAA had known appellant all her life. Moreover, appellant and AAA
even walked together from the road near the store to the situs criminus that it would be impossible

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for the child not to recognize the man who held her hand and led her all the way to the rice field.
Same; Alibi; For alibi to prosper, it is necessary that the corroboration is credible, the same having
been offered preferably by disinterested witnesses.—For alibi to prosper, it is necessary that the
corroboration is credible, the same having been offered preferably by disinterested cannot qualify
as such, “they being related or were one way or another linked to each other.”
Same; Same; The court must be convinced that it would be physically impossible for the accused to
have been at the locus criminis at the time of the commission of the crime.—Time and again, that
the court must be convinced that it would be physically impossible for the accused to have been at
the locus criminis at the time of the commission of the crime. Physical impossibility refers to
distance and the facility of access between the situs criminis and the location of the accused when
the crime was committed. He must demonstrate that he was so far away and could not have been
physically present at the scene of the crime and its immediate vicinity when the crime was
committed.
Same; Juvenile Justice and Welfare Act of 2006 (Republic Act No. 9344); Sec. 68 of Republic Act
No. 9344 allows the retroactive application of the law to those who have been convicted and are
serving sentence at the time of the effectivity of said law, and who were below the age of 18 years
at the time of the commission of the offense—with more reason, the law should apply where the
conviction by the lower court is still under review.—In the determination of the imposable penalty,
the Court of Appeals correctly considered Republic Act No. 9344 (Juvenile Justice and Welfare Act
of 2006) despite the commission of the crime three (3) years before it was enacted on 28 April
2006. We recognize its retroactive application following the rationale elucidated in People v.
Sarcia, 599 SCRA 20 (2009): [Sec. 68 of Republic Act No. 9344] allows the retroactive application
of the Act to those who have been convicted and are serving sentence at the time of the effectivity
of this said Act, and who were below the age of 18 years at the time of the commission of the
offense. With more reason, the Act should apply to this case wherein the conviction by the lower
court is still under review.
Same; Same; Words and Phrases; Discernment is that mental capacity of a minor to fully appreciate
the consequences of his unlawful act, which capacity may be known and should be determined by
taking into consideration all the facts and circumstances afforded by the records in each case.—Sec.
6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years
of age from criminal liability, unless the child is found to have acted with discernment, in which
case, “the appropriate proceedings” in accordance with the Act shall be observed. We determine
discernment in this wise: Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act. Such capacity may be known and should be determined by taking
into consideration all the facts and circumstances afforded by the records in each case. x x x The
surrounding circumstances must demonstrate that the minor knew what he was doing and that it
was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning
and shrewdness. In the present case, we agree with the Court of Appeals that: “(1) choosing an
isolated and dark place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim
x x x, to weaken her defense” are indicative of then seventeen (17) year-old appellant’s mental
capacity to fully understand the consequences of his unlawful action.
Same; Mitigating Circumstances; Minority; Penalties; While under Article 68 of the Revised Penal
Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by
law shall be imposed, but always in the proper period, for purposes of determining the proper
penalty because of the privileged mitigating circumstance of minority, the penalty of death is still
the penalty to be reckoned with.—In a more recent case, the Court En Banc, through the Honorable

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Justice Teresita J. Leonardo-de Castro, clarified: Under Article 68 of the Revised Penal Code, when
the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. However, for purposes of determining the proper penalty
because of the privileged mitigating circumstance of minority, the penalty of death is still the
penalty to be reckoned with. Thus, the proper imposable penalty for the accused-appellant is
reclusion perpetua. (Emphasis supplied.) Accordingly, appellant should be meted the penalty of
reclusion perpetua.
Same; Same; Civil Liability; The fact that the offender was still a minor at the time he committed
the crime has no bearing on the gravity and extent of injury suffered by the victim and her family.
—We have consistently ruled that: The litmus test x x x in the determination of the civil indemnity
is the heinous character of the crime committed, which would have warranted the imposition of the
death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua.
Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family. The respective
awards of civil indemnity and moral damages in the amount of P75,000.00 each are, therefore,
proper. Accordingly, despite the presence of the privileged mitigating circumstance of minority
which effectively lowered the penalty by one degree, we affirm the damages awarded by the Court
of Appeals in the amount of P75,000.00 as civil indemnity and P75,000.00 as moral damages. And,
consistent with prevailing jurisprudence, the amount of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Same; Juvenile Justice and Welfare Act of 2006; Statutory Construction; Since R.A. No. 9344 does
not distinguish between a minor who has been convicted of a capital offense and another who has
been convicted of a lesser offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law who has been found guilty of a
heinous crime.—Applying Declarador v. Gubaton, 499 SCRA 341 (2006), which was promulgated
on 18 August 2006, the Court of Appeals held that, consistent with Article 192 of Presidential
Decree No. 603, as amended, the aforestated provision does not apply to one who has been
convicted of an offense punishable by death, reclusion perpetua or life imprisonment. Meanwhile,
on 10 September 2009, this Court promulgated the decision in Sarcia, overturning the ruling in
Gubaton. Thus: The xxx provision makes no distinction as to the nature of the offense committed
by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D.
and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a
child in conflict with the law if, among others, he/she has been convicted of an offense punishable
by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the
Court is guided by the basic principle of statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish between a minor
who has been convicted of a capital offense and another who has been convicted of a lesser offense,
the Court should also not distinguish and should apply the automatic suspension of sentence to a
child in conflict with the law who has been found guilty of a heinous crime. The legislative intent
reflected in the Senate deliberations on Senate Bill No. 1402 (Juvenile Justice and Delinquency
Prevention Act of 2005) further strengthened the new position of this Court to cover heinous crimes
in the application of the provision on the automatic suspension of sentence of a child in conflict
with the law.
Same; Same; While the suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years, to give meaning to the legislative intent of the
Act, the promotion of the welfare of a child in conflict with the law should extend even to one who

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has exceeded the age limit of twenty-one (21) years, so long as he/she committed the crime when
he/she was still a child.—These developments notwithstanding, we find that the benefits of a
suspended sentence can no longer apply to appellant. The suspension of sentence lasts only until
the child in conflict with the law reaches the maximum age of twenty-one (21) years. Section 40 of
the law and Section 48 of the Rule are clear on the matter. Unfortunately, appellant is now twenty-
five (25) years old. Be that as it may, to give meaning to the legislative intent of the Act, the
promotion of the welfare of a child in conflict with the law should extend even to one who has
exceeded the age limit of twenty-one (21) years, so long as he/she committed the crime when
he/she was still a child. The offender shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is given the chance to live a normal
life and become a productive member of the community. The age of the child in conflict with the
law at the time of the promulgation of the judgment of conviction is not material. What matters is
that the offender committed the offense when he/she was still of tender age. Thus, appellant may be
confined in an agricultural camp or any other training facility in accordance with Sec. 51 of
Republic Act No. 9344.
APPEAL from a decision of the Court of Appeals.
Public Attorney’s Office for accused-appellant.
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim’s positive identification of the accused as the perpetrator of the crime.1 For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as “An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes.”
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court
the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as
Criminal Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly
committed as follows:
“That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less,
at barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable
Court, [Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and
feloniously had carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being
only five years old.”7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense admitted the
existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3
December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon

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presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That
of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF’s house, the frequency of which the latter describes to be “every minute [and] every
hour.” Also, appellant often visits FFF because they were close friends. He bore no grudge against
appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time—
playing at the basketball court near her house, fetching water, and passing by her house on his way
to the road. She and appellant used to be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her
aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum.16 At
the store, he saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of
short pants.18 All of them left the store at the same time.19 Julito proceeded to the house of Rita to
watch television, while appellant, who held the hand of AAA, went towards the direction of the
“lower area or place.”20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he
held her hand while on the road near the store.22 They walked towards the rice field near the house
of spouses Alejandro and Gloria Perocho [the Perochos].23 There he made her lie down on
harrowed ground, removed her panty and boxed her on the chest.24 Already half-naked from waist
down,25 he mounted her, and, while her legs were pushed apart, pushed his penis into her vagina
and made a push and pull movement.26 She felt pain and cried.27
Afterwards, appellant left and proceeded to the Perochos.28 She, in turn, went straight home
crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He
found her face greasy.32 There was mud on her head and blood was oozing from the back of her
head.33 He checked for any injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud on her vagina.35 AAA told
him that appellant brought her from the store36 to the grassy area at the back of the house of the
Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he
did to AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA followed
him.42 FFF went home to check on his daughter,43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her,
embraced her, and asked what happened to her, to which she replied that appellant raped her.49

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Julito left and found appellant at the Perochos.50 Julito asked appellant, “Bads, did you really rape
the child, the daughter of [MMM]?” but the latter ignored his question.51 Appellant’s aunt, Gloria,
told appellant that the policemen were coming to which the appellant responded, “Wait a minute
because I will wash the dirt of my elbow (sic) and my knees.”52 Julito did found the elbows and
knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center.55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate56 dated 29
January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January 2003,58
the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he
was at the Perochos at the time of the commission of the crime.60 Luzvilla even went further to
state that she actually saw Julito, not appellant, pick up AAA on the road.61 In addition, Antonia
Perocho [Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified on the behavior of Julito
after the rape incident was revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back
of FFF’s house.64 He denied that there was a need to pass by the house of FFF in order to access
the road or to fetch water.65 He, however, admitted that he occasionally worked for FFF,66 and
whenever he was asked to buy something from the store, AAA always approached him.67
At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle
Alejandro Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle sent
him to the store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he
was able to return after three (3) minutes. He was certain of the time because he had a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also

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observed that appellant’s white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the
side of the tree beside the road next to the house of the Perochos.72 From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry AAA.73 AAA’s face was
covered and she was wiggling.74 This did not alarm her because she thought it was just a game.75
Meanwhile, appellant was still in the kitchen when she returned.76 Around three (3) minutes later,
Luzvilla saw Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA was
slowly following behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced
AAA and asked what the appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA
did not answer. Upon Antonia’s advice, Julito released her and went out of the house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of
which reads:
“WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA]
P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs.”87
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:
“WHEREFORE, the judgment of the court imposing the death penalty upon the accused is
amended in order to consider the privileged mitigating circumstance of minority. The penalty
impos[a]ble upon the accused, therefore[,] is reduced to reclusion perpetua. x x x”
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view
of the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an
intermediate review by the Court of Appeals of cases where the penalty imposed is death, reclusion
perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the
following MODIFICATIONS:
“x x x that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one
(1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the
victim in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00
as exemplary damages and to pay the costs.”91

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

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A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and re-phrased in
order to test that AAA well understood the information elicited from her, said it all—she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.104 Significantly, youth and immaturity are normally badges of truth and
honesty.105
Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been “the result of the repeated battering of the
object;” and that such object could have been an erect male organ.107
The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively
established the essential requisite of carnal knowledge.108
II
The real identity of the assailant and the whereabouts of the appellant at the time of the commission
of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify her assailant,
especially when he is not a stranger to her, considering that she could have a good look at him
during the commission of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs criminus111 that it would
be impossible for the child not to recognize the man who held her hand and led her all the way to
the rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
“The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called “kuya” and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else—one Julito Apiki, but the child, on rebuttal,
was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
who is older, who molested her.”112
In a long line of cases, this Court has consistently ruled that the determination by the trial court of
the credibility of the witnesses deserves full weight and respect considering that it has “the
opportunity to observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs
and the scant or full realization of their oath,”113 unless it is shown that material facts and

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circumstances have been “ignored, overlooked, misconstrued, or misinterpreted.”114
Further, as correctly observed by the trial court:
“x x x His and his witness’ attempt to throw the court off the track by imputing the crime to
someone else is xxx a vain exercise in view of the private complainant’s positive identification of
accused and other corroborative circumstances. Accused also admitted that on the same evening,
Julito Apiki, the supposed real culprit, asked him “What is this incident, Pare?”, thus corroborating
the latter’s testimony that he confronted accused after hearing of the incident from the child.”115
On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.116 He arrived from work only after FFF came to their house
for the second time and boxed appellant.117 It was actually the fish vendor, not her husband, who
asked appellant to buy Tanduay.118 Further, the drinking session started only after the appellant’s
errand to the store.119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria’s statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore
a white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to
by AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that
appellant wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-shirt (colored
black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court’s appreciation in order. Thus:
“x x x. The child declared that after being raped, she went straight home, crying, to tell her father
that Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among
strangers who were watching TV, as Luzvilla Balucan would have the court believe. When the child
was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after
she had been brought there by her mother Brenda so that Lita Lingkay could take a look at her—
just as Julito Apiki said.”120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having
been offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses
cannot qualify as such, “they being related or were one way or another linked to each other.”121
Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of the commission of the
crime.122

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“Physical impossibility refers to distance and the facility of access between the situs criminis and
the location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.”123
In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of
the crime was considered not physically impossible to reach in less than an hour even by foot.125
Inasmuch as it would take the accused not more than five minutes to rape the victim, this Court
disregarded the testimony of the defense witness attesting that the accused was fast asleep when she
left to gather bamboo trees and returned several hours after. She could have merely presumed that
the accused slept all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:
“Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-
law and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond at the
time Rachel was raped. It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the appellant never left
their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for Marites
to have kept an eye on the appellant for almost four hours, since she testified that she, too, was very
much occupied with her task of counting and recording the fishes being harvested. Likewise, Mr.
Nicolas, who, admittedly was 50 meters away from the fishpond, could not have focused his entire
attention solely on the appellant. It is, therefore, not farfetched that the appellant easily sneaked out
unnoticed, and along the way inveigled the victim, brought her inside his house and ravished her,
then returned to the fishpond as if he never left.”128 (Emphasis supplied.)
As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store
next to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle’s house.129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at
the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three
(3) years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131
“[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who
have been convicted and are serving sentence at the time of the effectivity of this said Act, and who
were below the age of 18 years at the time of the commission of the offense. With more reason, the
Act should apply to this case wherein the conviction by the lower court is still under review.”133

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(Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in
which case, “the appropriate proceedings” in accordance with the Act shall be observed.134
We determine discernment in this wise:
“Discernment is that mental capacity of a minor to fully appreciate the consequences of his
unlawful act.135 Such capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in each case.136
x x x The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s
cunning and shrewdness.”138
In the present case, we agree with the Court of Appeals that: “(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim x x x, to weaken her
defense” are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that
she was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing
the death penalty when rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346;142 and (2) the
privileged mitigating circumstance of minority of the appellant, which has the effect of reducing the
penalty one degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal
Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code.145 Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree from
reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years and
one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-
de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper period.
However, for purposes of determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be reckoned with. Thus, the
proper imposable penalty for the accused-appellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
“The litmus test xxx in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion perpetua.”149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no

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bearing on the gravity and extent of injury suffered by the victim and her family.150 The respective
awards of civil indemnity and moral damages in the amount of P75,000.00 each are, therefore,
proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of P75,000.00 as civil indemnity and P75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration;
Appropriate Disposition after the Lapse of the
Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction
is pronounced. Thus:
“SEC. 38. Automatic Suspension of Sentence.—Once the child who is under eighteen (18) years
of age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of conviction, the court shall place the
child in conflict with the law under suspended sentence, without need of application: Provided,
however, That suspension of sentence shall still be applied even if the juvenile is already eighteen
(18) years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)
x x x x”
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as amended,154 the
aforestated provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning
the ruling in Gubaton. Thus:
“The x x x provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in
conflict with the law if, among others, he/she has been convicted of an offense punishable by death,
reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.”157
The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this
Court to cover heinous crimes in the application of the provision on the automatic suspension of
sentence of a child in conflict with the law. The pertinent portion of the deliberation reads:
“If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may
have committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local
Council for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s]

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proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the
welfare, best interests, and restoration of the child should still be a primordial or primary
consideration. Even in heinous crimes, the intention should still be the child’s restoration,
rehabilitation and reintegration. x x x” (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict
with the Law, which reflected the same position without prejudice to the child’s availing of other
benefits such as probation, if qualified, or adjustment of penalty, in the interest of justice.
The benefits of suspended sentence shall not apply to a child in conflict with the law who has once
enjoyed suspension of sentence, but shall nonetheless apply to one who is convicted of an offense
punishable by reclusion perpetua or life imprisonment pursuant to the provisions of Rep. Act No.
9346 prohibiting the imposition of the death penalty and in lieu thereof, reclusion perpetua, and
after application of the privileged mitigating circumstance of minority. (Emphasis supplied.)
161 People v. Sarcia, supra note 131at p. 50.
162 Sec. 40. Return of the Child in Conflict with the Law to Court.—x x x
If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. (Emphasis supplied.)
163 Section 48. Automatic Suspension of Sentence and Disposition Orders.—
xxxx
If the child in conflict with the law reaches eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with the provisions
of Republic Act No. 9344, or to extend the suspended sentence for a maximum period of up to the
time the child reaches twenty-one (21) years of age, or to order service of sentence. (Emphasis
supplied.)
Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare
of a child in conflict with the law should extend even to one who has exceeded the age limit of
twenty-one (21) years, so long as he/she committed the crime when he/she was still a child. The
offender shall be entitled to the right to restoration, rehabilitation and reintegration in accordance
with the Act in order that he/she is given the chance to live a normal life and become a productive
member of the community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is that the offender
committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.164
“Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training
Facilities.—A child in conflict with the law may, after conviction and upon order of the court, be
made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an
agricultural camp and other training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD.”
Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to
effect appellant’s confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC
No. 00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is

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AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant
is reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51
of Republic Act No. 9344.
SO ORDERED. People vs. Jacinto, 645 SCRA 590, G.R. No. 182239 March 16, 2011
G.R. No. 127818. November 11, 1998.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO NEPOMUCENO, JR.,
accused-appellant.
Criminal Law; Light Threats; Exempting Circumstances; Accident; Accident to be exempting,
presupposes that the act done is lawful; The act of a person of drawing a weapon in the course of a
quarrel, the same not being in self-defense, is unlawful—it at least constitutes light threats.—At all
events, accident to be exempting, presupposes that the act done is lawful. Here, however, the act of
accused-appellant of drawing a weapon in the course of a quarrel, the same not being in self-
defense, is unlawful—it at least constitutes light threats (Article 285, par. 1, Revised Penal Code).
There is thus no room for the invocation of accident as a ground for exemption (People vs. Reyta,
Jr., 13 CAR [25] 1190; 1195 [1968]).
Same; Paraffin Test; The absence of nitrates on the victim’s hands is convincing proof that she did
not grapple with accused for the possession of the gun.—If Grace were holding the upper forearm
and lower portion of the upper arm of accused-appellant when the gun fired, then at least the hand
of Grace that held the upper forearm of appellant would have traces of nitrate considering its
nearness to the exploding gun. However, in the paraffin test conducted by the Forensic Chemistry
Division of the National Bureau of Investigation on Grace Nepomuceno’s both hands, no traces of
nitrates were found; while accused-appellant’s right hand was positive of nitrates. The absence of
nitrates on the victim’s hands is convincing proof that she did not grapple with accused-appellant
for the possession of the gun. It also proves that she was shot at a distance.
Same; The fact that the victim was not shot in the head, or in any vital part of her body does not
negate intent to kill.—The fact that the victim was not shot in the head, or in any vital part of her
body does not negate intent to kill. The Post Mortem Findings on the cadaver of Grace
Nepomuceno by Dr. Arizala shows that the bullet entered “the left thigh, lateral aspect, upper third .
. . directed slight forwards, slightly upwards and from left to right initially involving the skin and
subcutaneous tissue, then taking an intramascular route into the pelvic cavity thru the left obturator
foramen, partially transecting the left internal iliac artery and the small intestines with the slug
lodging just underneath the uterus in front of the sacrum where it was recovered.” The extent of the
physical injury inflicted on Grace, as above proved, manifests intention to extinguish life (People
vs. Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise declared that the bullet
injured a vital organ of the victim.
Same; Res Gestae; The utterance of a victim made immediately after sustaining serious injuries
may be considered as pure emanations of the incident or the incident speaking through the victim.
—The fact that Grace, upon being shot, uttered, “Masakit, Papa” and did not use harsh language
against accused-appellant does not, in any way, negate intent to kill. The utterance of a victim made
immediately after sustaining serious injuries may be considered as pure emanations of the incident
or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus,
by the word “Papa,” Grace was in effect, saying that it was accused-appellant who shot her.
Same; Mitigating Circumstances; Voluntary Surrender; The law does not find unusual the voluntary
surrender of criminal offenders—it merely considers such act as a mitigating circumstance.—

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Accused-appellant’s voluntary surrender is not sufficient ground to exculpate him from criminal
liability. The law does not find unusual the voluntary surrender of criminal offenders; it merely
considers such act as a mitigating circumstance. Non-flight is not proof of innocence (People vs.
Quijada, 259 SCRA 191 [1996]).
Same; Reckless Imprudence; A deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence—in criminal negligence, the injury caused to another should
be unintentional, it being simply the incident of another act done without malice but with lack of
foresight, or with carelessness or negligence, and which has harmed society or an individual.—It
has been held that a deliberate intent to do an unlawful act is essentially inconsistent with the idea
of reckless imprudence (People vs. Oanis, et al., 74 Phil. 257 [1943]; People vs. Nanquil, 43 Phil.
232 [1922]). What qualifies an act of reckless or simple negligence or imprudence is the lack of
malice or criminal intent in the execution thereof (United States vs. Maleza, 14 Phil. 468, 471
[1909]). Otherwise stated, in criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act done without malice but with lack of
foresight, or with carelessness or negligence, and which has harmed society or an individual
(People vs. Castillo, Jr., 275 SCRA 752 [1997]).
Same; Evidence; Physical evidence is mute but an eloquent manifestation of truth and rates high in
the hierarchy of trustworthy evidence.—Over and above the testimony of accused-appellant, these
physical evidence, the lack of powder burns or nitrates on the hands of Grace and the trajectory of
the bullet that entered her left thigh being slightly upwards and from left to right instead of
downwards, repudiate accused-appellant’s claim of simple negligence. Physical evidence is mute
but an eloquent manifestation of truth and rates high in our hierarchy of trustworthy evidence
(People vs. Uycoqua, 246 SCRA 769 [1995]).
Same; Parricide; Elements.—The prosecution has sufficiently established the elements of parricide
by its evidence. These elements are: (1) the death of the deceased; (2) that she was killed by the
accused; and (3) that the deceased was a legitimate ascendant or descendant, or the legitimate
spouse of the accused (Article 246, Revised Penal Code; People vs. Embalido, 58 Phil. 154 [1933]).
Same; Witnesses; It is a fundamental and settled rule that the trial court’s assessment in regard to
the credibility of witnesses is entitled to the highest degree of respect and will not be disturbed on
appeal, as the trial court was in a better position to examine real evidence as well as to observe the
demeanor of the witnesses.—In convicting accused-appellant, the trial court relied heavily on the
testimony of the prosecution witnesses. This Court finds no reason to do otherwise. It is a
fundamental and settled rule that the trial court’s assessment in regard to the credibility of witnesses
is entitled to the highest degree of respect and will not be disturbed on appeal, as the trial court was
in a better position to examine real evidence as well as to observe the demeanor of the witnesses
(People vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993];
People vs. Vallena, 244 SCRA 685 [1995]).
Same; Same; We have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience—whatever is repugnant to these belongs to the miraculous
and is outside of judicial cognizance.—The Court agrees with the conclusions of the trial court as
they are founded on the dictum that evidence to be believed must not only proceed from the mouth
of a credible witness, but must be credible in itself—such as the common experience of mankind
can approve as probable under the circumstances. We have no test of the truth of human testimony,
except in conformity with our knowledge, observation, and experience. Whatever is repugnant to
these belongs to the miraculous and is outside of judicial cognizance (People vs. Escalante, 238
SCRA 554 [1994]).

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MELO, J.:
Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to the
decision dated November 20, 1996 of the Regional Trial Court of the National Capital Judicial
Region (Manila, Branch 46) which decreed:
Wherefore, the court hereby renders judgment finding the accused guilty beyond reasonable doubt
of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code as
amended by Republic Act No. 7659 for the death of Grace Nepomuceno and hereby sentences him
to suffer imprisonment of Forty (40) years of reclusion perpetua and to pay the heirs of the
deceased the sum of P50,000.00 with costs against him.
Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused ineligible to
inherit from his wife. The entire estate should go to his son, Giordan Benitez Nepomuceno.
The Information against accused-appellant charged:
That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, did then and
there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident
premeditation, attack, assault and use personal violence upon the person of one GRACE
NEPOMUCENO Y BENITEZ, his wife, with whom he was married in lawful wedlock, by then
and there shooting her with a gun of unknown caliber hitting her on the left hip, thereby inflicting
upon the said GRACE NEPOMUCENO Y BENITEZ gunshot wound, which was necessarily fatal
and which was the direct and immediate cause of her death thereafter.
Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due course.
Thereafter, the trial court rendered the judgment of conviction now on appeal.
The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival, Forensic
Chemist Mary Ann Ara-nas, Medico-Legal Examiner Floresto Arizala, Monserrat De Leon,
Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pa-balan.
Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo
Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around 11
o’clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived and went to
their bedroom where Eden and her ward Giordan, the one-year old son of the couple, were
sleeping. She was awakened by the loud voices of the spouses who were arguing. She saw accused-
appellant get a gun from a drawer, so she went out of the room because of fear. After a few
moments and while she was outside the room, she heard Grace Nepomuceno say: “Sige patayin mo
ako, patayin mo na kami ng anak ko.” Then Eden heard a gunshot. She was so scared that she went
out of the house, reaching the door of the house of Barangay Chairman Congen Leonardo which is
5 meters away. After ten minutes, she saw accused-appellant coming out of the room. He told her to
get a taxi so he could bring the wounded Grace to the hospital. She was left behind in their room to
take care of baby Giordan. She tried to call up Monserrat de Leon, the sister of Grace in Pasig to
inform her of the incident, but she could not get any connection
Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division,
declared that she conducted paraffin examination on both hands of the victim and those of accused-
appellant. She found the victim’s hands negative of nitrates, but found accused-appellant’s right
hand positive thereof. She gave the opinion that in view of the absence of nitrates on the hands of
the victim, it is probable that she did not fire a gun and that accused-appellant, being positive of
nitrates, did really fire a gun.
Dr. Floresto Arizala, Jr., the Medico-Legal Officer of the NBI who conducted a second-post
mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that the
victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and the small

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intestines and thereafter resting between the uterus and the sacrum of the victim. He testified that
taking into consideration the location of the wound, if the victim were in a sitting or lying position,
the trajectory of the slug was upward coming from right to left; and if the victim were in a standing
position, the muzzle of the gun should have pointed up. The witness declared that the muzzle of the
gun could not have been less than one foot from the victim. He opined that grappling for possession
of the gun was impossible because the trajectory of the bullet was going upwards and there were no
smudges or signs of close firing. He believed that the victim could have survived if the surgeons
had operated immediately.
Monserrat de Leon, sister of the victim, declared that Grace would confide to her that accused-
appellant was jobless and that Grace had problems with the low income of the store she owned at
Zurbaran Mart as compared to her expenses. Accused-appellant would force sex on Grace
especially when he was drunk. Her sister had two miscarriages after their first child and it was
during one of these miscarriages that she saw accused-appellant carrying a gun in the Mary Chiles
Hospital where her sister was confined
Upon the other hand, the defense presented accused-appellant himself as its lone witness. His story
was quoted by the trial court thus:
Two days before the incident on May 2, 1994, Grace, the deceased was very much worried about
the check (sic) she issued which was postdated May 2, 1994. She would have no funds for the
checks. She had been nagging him, displaying her tantrums (nagdadabog) pestering him to do
something to be able to fund the checks.
In the noon time of May 2, 1994, he left her spouse in their store and went to his mother’s house in
San Andres Bukid, Manila. This day was the day after the accused-appellant and his wife, and in-
laws arrived from Batangas to attend a town fiesta.
He left the store to avoid further nagging, tantrums and pestering of his wife about his inability to
produce money to be able to fund the postdated checks (sic).
At about 11:00 P.M., after dropping at a friend’s house, he decided to go home, thinking his wife
has already cooled off.
When his wife opened the door, she greeted the husband: ‘You left in the store and you room
(roam) around, where you able to find money.’ He replied, ‘where would I get money, do you
expect me to hold up people?’
They had some arguments and Eden Ontog went out of their bedroom, and the arguments
continued. There was a point in the argument when the wife told the accused thus: ‘Wala akong
silbi, bakit pa ako nag-asawa sa kanya.’
Because of these continued pestering and nagging of his wife he thought of separation. Perhaps it
would be better if he should end his life. He then took a gun from their child’s drawer. He sat on the
bed holding that gun, engrossed in his thinking what to do. The gun was pointed towards the floor
of their room.
In that situation, his wife continued with his nagging and pestering. He just remained silent.
And then Guillermo asked his wife: ‘How come you do not treat me as a husband, why do you treat
me like this.’
It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps just to scare
his wife to stop all the pestering and tantrums. Surely not only a few husbands would thought (sic)
as what that Guillermo was thinking then, he felt desperate. He wanted to finish his life. (p. 24,
TSN, October 5, 1994)
It was during that time that their son, Giordan woke up, walked to the space between them
(husband and wife) and Nepomuceno block his son’s way with his right knee. In the process, he

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wanted to totally force Grace from taking possession and control of the gun. He raised his arm
holding the gun passing over the left leg of Grace.
The gun went off.
Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:
I
THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL, AND
THAT THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.
II
ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT ERRED IN NOT
FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.
III
THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED WAS
PROVEN BEYOND REASONABLE DOUBT.
In support of the first assigned error, accused-appellant contends that he did not have the least
intention of killing his wife. He urges the Court to consider the circumstances attendant to the
killing, which, according to him, negate all inferences and deductions, that he would kill his wife.
First, the deceased was hit in the upper leg, not in any vital organ. If he had the intention of killing
the deceased, he would have shot her at the most vital part of her body.
Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual human
behavior, if her husband really intended to kill her. The deceased just uttered, “Masakit Papa,” she
did not curse nor mouth evil and harsh language against accused-appellant to show hatred and
anger.
Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring her to
the hospital for immediate medical attention?
Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident was not
accidental?
Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of the
Revised Penal Code because, according to him, the incident occurred when he tried to prevent his
wife from killing herself, and he and his wife grappled for possession of the gun.
After a painstaking review of the evidence and record of this case, the Court finds itself unable to
reach conclusions identical to those put forward by accused-appellant.
First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12 of the
Revised Penal Code in order to be exempted from criminal liability arising from the death of his
wife, Grace Nepomuceno. Said provision pertinently states:
Art. 12. Circumstances which exempt from criminal liability. The following are exempt from
criminal liability:
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.
At all events, accident to be exempting, presupposes that the act done is lawful. Here, however, the
act of accused-appellant of drawing a weapon in the course of a quarrel, the same not being in self-
defense, is unlawful—it at least constitutes light threats (Article 285, par. 1, Revised Penal Code).
There is thus no room for the invocation of accident as a ground for exemption.
The gun which accused-appellant took from his child’s drawer was not even licensed or registered
in his name as shown by the Certification of the Firearms and Explosives
Office of the Philippine National Police, hence, he could have been charged with illegal possession
of a firearm.

Page 84 of 162
Secondly, accused-appellant’s claim that the shooting happened when he tried to prevent his wife
from killing herself and he and his wife grappled for the possession of the gun is belied by the
expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post mortem
examination on the cadaver of Grace Nepomuceno. He declared:
Q. Now, is it possible Doctor, considering the location of the wound, the entrance wound and the
trajectory of the bullet upwards, would you say Doctor, that both parties, I mean the victim and the
assailant were grappling for the possession of said gun and it went off accidentally, is that possible,
Mr. Witness?
A. Well, I have to be convinced as to the grappling between the victim and the assailant, because if
we were to be reconstruct of the scenario that the gun have been fired, the muzzle of the gun could
not have been closer than twelve (12) inches and considering that the gun was held by a hand, it
farther places the assailant farther from the victim and farther the victim is, from the assailant, then
the more impossible for the grappling for the gun.
Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when the
gun discharged, stated:
Q. Please tell the court your relative position and the victim when the gun actually went off?
A. When I was in the act of trying to dispossess Grace with that gun and I was trying to let my right
hand pass through my right side but because Grace was struggling, the butt of the gun hit a part of
her upper leg and it exploded.
Q. So when the gun actually fired, you were holding that gun, what part of your arm being held by
Grace?
A Witness pointing the upper forearm and the lower portion of her upper arm.”
If Grace were holding the upper forearm and lower portion of the upper arm of accused-appellant
when the gun fired, then at least the hand of Grace that held the upper forearm of appellant would
have traces of nitrate considering its nearness to the exploding gun. However, in the paraffin test
conducted by the Forensic Chemistry Division of the National Bureau of Investigation on Grace
Nepomuceno’s both hands, no traces of nitrates were found; while accused-appellant’s right hand
was positive of nitrates. The absence of nitrates on the victim’s hands is convincing proof that she
did not grapple with accused-appellant for the possession of the gun. It also proves that she was
shot at a distance.
The fact that the victim was not shot in the head, or in any vital part of her body does not negate
intent to kill. The Post Mortem Findings on the cadaver of Grace Nepomuceno by Dr. Arizala
shows that the bullet entered “the left thigh, lateral aspect, upper third . . . directed slight forwards,
slightly upwards and from left to right initially involving the skin and subcutaneous tissue, then
taking an intramascular route into the pelvic cavity thru the left obturator foramen, partially
transecting the left internal iliac artery and the small intestines with the slug lodging just
underneath the uterus in front of the sacrum where it was recovered.” The extent of the physical
injury inflicted on Grace, as above proved, manifests intention to extinguish life (People vs.
Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise declared that the bullet
injured a vital organ of the victim (tsn, July 23, 1996, p. 9).
The fact that Grace, upon being shot, uttered, “Masakit, Papa” and did not use harsh language
against accused-appellant does not, in any way, negate intent to kill. The utterance of a victim made
immediately after sustaining serious injuries may be considered as pure emanations of the incident
or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus,
by the word “Papa,” Grace was in effect, saying that it was accused-appellant who shot her.
We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to call a

Page 85 of 162
taxi in which he brought the wounded Grace to the hospital is “merely an indication or act of
repentance or contrition on the part of appellant” (Appellee’s Brief, p. 71, Rollo).
Accused-appellant’s voluntary surrender is not sufficient ground to exculpate him from criminal
liability. The law does not find unusual the voluntary surrender of criminal offenders; it merely
considers such act as a mitigating circumstance. Non-flight is not proof of innocence (People vs.
Quijada, 259 SCRA 191 [1996]).
Under the second assigned error, accused-appellant claims that even assuming that the killing was
not totally accidental, his acts would constitute only simple negligence. He asserts that he had
established that the gun went off while he was grappling with his wife for its possession. He was
preventing his wife from taking her own life. He might not have exercised the necessary due care in
wrestling for the gun that resulted in the injury of his wife, but he could be charged only with
parricide through simple negligence. So he says.
It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with the idea
of reckless imprudence (People vs. Oanis, et al., 74 Phil. 257 [1943]; People vs. Nanquil, 43 Phil.
232 [1922]). What qualifies an act of reckless or simple negligence or imprudence is the lack of
malice or criminal intent in the execution thereof (United States vs. Maleza, 14 Phil. 468, 471
[1909]). Otherwise stated, in criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act done without malice but with lack of
foresight, or with carelessness or negligence, and which has harmed society or an individual
(People vs. Castillo, Jr., 275 SCRA 752 [1997]).
The argument of accused-appellant finds no support in the physical evidence. As already discussed,
if the version of grappling for the gun were to be believed, there should have been nitrates on both
hands of Grace. And if it was when accused-appellant placed the barrel of the gun at the base of his
head that Grace grabbed his hand holding the gun and in the struggle for its possession his hand
holding the gun was pushed down so that its butt hit the upper leg of Grace causing it to fire, then
the trajectory of the slug should be downwards, through the upper thigh of Grace where it entered.
Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered the left thigh of Grace directed
slightly upwards and from left to right, taking an intramascular route into the pelvic cavity, instead
of a downward direction if accused-appellant’s version were to be believed.
Thus, over and above the testimony of accused-appellant, these physical evidence, the lack of
powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered her left
thigh being slightly upwards and from left to right instead of downwards, repudiate accused-
appellant’s claim of simple negligence. Physical evidence is mute but an eloquent manifestation of
truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA 769
[1995]).
Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument that his
guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.
The prosecution has sufficiently established the elements of parricide by its evidence. These
elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3) that the
deceased was a legitimate ascendant or descendant, or the legitimate spouse of the accused (Article
246, Revised Penal Code; People vs. Embalido, 58 Phil. 154 [1933]).
The first and third elements were stipulated during the pre-trial stage of the case, thus:
1. that the victim and the accused are legally married. Said civil marriage took place on July 5,
1990; x x x
5. that immediately after the shooting, the accused voluntarily and bodily carried the victim into a
taxicab and proceeded to UERM Hospital where she died on the operating table.” (Pre-Trial Order

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of July 11, 1994, Record, p. 6)
The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his
legally wedded wife.
In convicting accused-appellant, the trial court relied heavily on the testimony of the prosecution
witnesses. This Court finds no reason to do otherwise. It is a fundamental and settled rule that the
trial court’s assessment in regard to the credibility of witnesses is entitled to the highest degree of
respect and will not be disturbed on appeal, as the trial court was in a better position to examine
real evidence as well as to observe the demeanor of the witnesses (People vs. Dominguez, 217
SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena, 244 SCRA 685
[1995]).
The Court agrees with the conclusions of the trial court as they are founded on the dictum that
evidence to be believed must not only proceed from the mouth of a credible witness, but must be
credible in itself—such as the common experience of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous
and is outside of judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]).
Further, accused-appellant having admitted that he shot his wife, he has the burden of proof of
establishing the presence of any circumstance which may relieve him of responsibility, and to prove
justification he must rely on the strength of his own evidence and not on the weakness of that of the
prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the
killing (People vs. Bautista, 254 SCRA 621 [1996]). Unfortunately for accused-appellant, he has
miserably failed to discharge this task.
The trial court correctly appreciated the voluntary surrender of accused-appellant as a mitigating
circumstance, this fact having been stipulated by the parties at the pre-trial stage of this case (Pre-
Trial Order, Stipulation No.
The penalty for the crime of parricide is reclusion perpetua to death; however, there being one
mitigating circumstance but no aggravating circumstance, the lower of the two indivisible penalties
should be imposed. The penalty cannot be further reduced by one degree as the Indeterminate
Sentence Law does not find application, the penalties involved being indivisible.
WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO
NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification
that his sentence shall be simply reclusion perpetua, not “imprisonment of Forty (40) Years of
reclusion perpetua” as stated by the trial court. SO ORDERED.
G.R. No. 56358. October 26, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUIS B. TORING, DIOSDADO
BERDON and CARMELO B. BERDIN, accused-appellants.
Evidence; Witnesses; Matters dealing with credibility of witnesses and appreciation of evidence are
primarily the lower court’s province but the Supreme Court has the power to determine whether the
lower court has overlooked certain facts which may substantially affect the resolution of the case.—
While matters dealing with the credibility of witnesses and appreciation of evidence are primarily
the lower court’s province, this Court has the power to determine whether in the performance of its
functions, the lower court overlooked certain matters which may have a substantial effect in the
resolution of a case. Defense witness Joel Escobia was, besides Toring, the only witness whose
sworn statement was taken by the police on May 26, 1980, the day after the fatal assault on Samuel.
Criminal Law; Defense of Relative; Where the accused was motivated by revenge, resentment or
evil motive at the time of the assault, he cannot claim the full benefit of the justifying circumstance

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of defense of relative.—The presence of unlawful aggression on the part of the victim and the lack
of proof of provocation on the part of Toring notwithstanding, full credence cannot be given to
Toring’s claim of defense of a relative. Toring himself admitted in court as well as in his sworn
statement that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto, Samuel’s brother.
It cannot be said, therefore, that in attacking Samuel, Toring was impelled by pure compassion or
beneficence or the lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he
was motivated by revenge, resentment or evil motive because of a “running feud” between the
Augusto and the Toring brothers. As the defense itself claims, after the incident subject of the
instant case occurred, Toring’s brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed,
vendetta appears to have driven both camps to commit unlawful acts against each other. Hence,
under the circumstances, to justify Toring’s act of assaulting Samuel Augusto would give free rein
to lawlessness.
Same; Aggravating Circumstances; Nighttime; Nighttime cannot be considered as an aggravating
circumstance in the absence of proof that it was purposely sought to insure the commission of the
crime.—The lower court correctly considered the killing as murder in view of the presence of the
qualifying circumstance of treachery. The suddenness of the assault rendered Samuel helpless even
to use his shotgun. We also agree with the lower court that conspiracy and evident premeditation
were not proven beyond reasonable doubt. Moreover, nighttime cannot be considered as an
aggravating circumstance. There is no proof that it was purposely sought to insure the commission
of the crime or prevent its discovery. However, Toring should be credited with the privileged
mitigating circumstance of incomplete defense of relative and the generic mitigating circumstance
of voluntary surrender.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal
Court in Cebu City in Criminal Case No. CCC-XIV-2170 the dispositive portion of which reads:
“WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable doubt of the
crime of MURDER by direct participation as principal; Diosdado Berdon as accomplice thereto;
and Carmelo Berdin as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of voluntary
surrender, the said circumstance having been offset by the aggravating circumstance of nighttime,
the accused Luis Toring should be, as he is, hereby sentenced to the penalty of RECLUSION
PERPETUA, with the accessory penalties of law.
There being neither mitigating nor aggravating circumstances on the part of the accused Diosdado
Berdon, the said accused should be as he is hereby sentenced to the indeterminate penalty of from
SIX (6) YEARS of Prision Correccional, as minimum, to TWELVE (12) YEARS and ONE (1)
DAY of Reclusion Temporal, as maximum, with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating circumstance of
minority, the said accused being only 17 years of age, the accused Carmelo Berdin should be, as he
is, sentenced to the penalty of SIX (6) MONTHS and ONE (1) DAY of Prision Correccional, with
the accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the deceased Samuel Augusto for
actual and compensatory damages in the sum of P15,000.00 and for moral damages in the sum of
P50,000.00, without subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit “B”, is confiscated in favor of the government.
Proportionate costs.”
SO ORDERED.”1

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According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu City
for the last canvassing of votes for the candidates for princesses who would reign at the sitio fiesta.
As one of the candidates was the daughter of Samuel Augusto, he and the members of his family
attended the affair.
Also present were members of the kwaknit gang, a group which was noted for their bird-like way
of dancing and their propensity for drunkenness and provoking trouble. Its president, called the
“alas” king, was Luis Toring. The group was then outside the dancing area which was ringed by
benches.
At around 10:45 p.m., Samuel’s daughter was proclaimed the winner in the contest. Beer and
softdrinks having been served the parents of the candidates by the officers of the Naga Chapel
Association which took charge of the affair, Samuel was tipsy when, after his daughter’s
proclamation, he stepped out of the dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado
Berdon proceed to a dark area while whispering to each other. Diosdado Berdon handed a knife to
Luis Toring,2 who then approached Samuel from behind, held Samuel’s left hand with his left
hand, and with his right hand, stabbed with the knife the right side of Samuel’s abdomen.3 Upon
seeing Felix running towards them, Luis Toring pulled out the knife and, together with Carmelo
Berdin and Diosdado Berdon, ran towards the dark. Felix tried to chase the three but he was not
able to catch them. He returned to where Samuel had slumped and helped others in taking Samuel
to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis when the
assault occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist blows on
Samuel just before Luis Toring stabbed him. Diosdado gave the knife to Luis Toring.4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three assailants
ran towards the direction of the fields. Jacinto Lobas and Mario Andog responded to her shouts and
brought Samuel to the Opon Emergency Hospital where he died on arrival. According to the
necropsy report,5 Samuel, who was thirty years old, died due to massive hemorrhage secondary to
the stab wound on the abdomen. Said wound is described in the report as follows:
“Stab wound, with herniation of omental tissues; elliptical, 3.5 cms. long, running vertically
downward, edges clean-cut, superior extremity rounded, inferior extremity sharp, located at the
abdominal region, right anterior aspect, 7.5 cms. to the right of anterior median line and 107.0 cms.
above right heel, directed backward, upward and medially, involving skin and the underlying soft
tissues, penetrating right peritoneal cavity, incising inferior vena cava, attaining an approximate
depth of 15.0 cms.”
The death weapon, a kitchen knife made of stainless steel and with a red-colored handle, was
recovered from the house of Luis Toring. According to Patrolman Pantaleon P. Amodia, the police
found out during the investigation that Luis Toring had left the weapon with “Camilo” Berdin.
When the police confronted Berdin, the latter led them to the house of Toring which Berdin
entered. When he emerged from the house, Berdin handed the weapon to the police.6
An information for murder was filed against Toring. Subsequently, however, the information was
amended to include Diosdado Berdon and Carmelo Berdin as defendants. The three were charged
therein with conspiracy in killing Samuel Augusto in a treacherous manner. Berdon, it was alleged,
“conveniently supplied the death weapon” which Toring used in stabbing Samuel while Berdin
allegedly concealed the weapon to prevent its discovery by the police.7 The crime was purportedly
committed with the attendance of the generic aggravating circumstances of evident premeditation

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and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias “Lowe,”
testified that he was not the president of the Kwaknit gang. He went to the benefit dance in the
company of Venir Ybanez, Joel Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and
Alex Augusto. Toring and his group were standing outside the dancing area when, at around eleven
o’clock in the evening, Samuel, a known tough guy (“maldito”), approached them and held Venir
Ybanez by his collar. Then Samuel thrust the butt of his shotgun on the chin of Joel Escobia,8
proceeded to another group who were also gangmates of Toring, and again, with the barrel of his
shotgun, hit Eli Amion’s chest several times.9
Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist, approached
Samuel from the latter’s right side and stabbed him once as he did not intend to kill
Samuel. Toring then ran towards the dark portion of the area and went home. There, he left the
knife and proceeded to the hut by the fishpond of one Roman.10
Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o’clock in the
morning of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them. Arsenio was
hit on the left leg and he stayed two months in the hospital for the treatment of his wound.11
At 2:00 o’clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine
Constabulary soldiers.12 They brought him to the police of Lapu-lapu City on May 28, 1980.13
When the police asked him about the knife he used in stabbing Samuel, Toring told them to go to
Carmelo Berdin because he was the only person who knew where Toring hid it.14 Asserting that he
was the one who returned the knife to his own house, Toring testified that Carmelo Berdin used to
see him hide his weapons upstairs because Berdin was a frequent visitor of his.15
For his part, Carmelo, a 5-feet tall, asthmatic 17-year-old whom the court described as “lilliputian,”
admitted that he witnessed the stabbing incident but he ran away with his group immediately after
because he was afraid he might be shot by Samuel. He was with Toring when the latter hid the still
bloodied knife under a trunk in Toring’s house. He was familiar with the hiding place of the knife
because Toring showed it to him and there were times when he would get the knife there upon
Toring’s request. Carmelo corroborated Toring’s testimony that on that fateful night, Toring carried
the knife tucked at the back of his waistline.16
In court, Toring testified that he never saw Diosdado at the dance.17 However, in his sworn
statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he took the knife from
Diosdado to stab Samuel. Confronted with said statement, Diosdado said that when he asked Toring
why he implicated him, Toring allegedly replied that he “included” Diosdado because of the case
the barangay brigade had filed against Toring.18
According to Diosdado, he did not attend the May 25 dance because of the trouble which erupted
during the dance the night before. He did not have anything to do with the stabbing of Samuel. He
admitted, however, that a week after the incident, his family went to barrio Andaliw, Ronda, Cebu,
for their yearly visit to his father-in-law. He stayed there for fifteen days and would have stayed
longer had not his mother informed him of the subpoena addressed to him.19
On October 28, 1980, a day after the last day of hearing, the lower court20 rendered a decision
discrediting Toring’s claim that the killing of Samuel was justified because it was done in defense
of a stranger pursuant to Article 11 (3) of the Revised Penal Code. The lower court found that
Toring was the “aggressor acting in retaliation or revenge by reason of a running feud or long-
standing grudge” between the Kwaknit gang and the group of Samuel, who, being the son of the
barangay captain, was a “power to be reckoned with.” It mentioned the fact that a year before the
incident in question, Toring was shot by Edgar Augusto (Samuel’s brother) and hence, in his desire

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to avenge himself, Toring, “needed but a little excuse to do away with the object of his hatred.”21
The lower court could not believe that Samuel brought along his shotgun to the dance because he
was “not reputed to be a public official or functionary entitled to possess a firearm.” Otherwise, the
police and the barangay tanod would have arrested him. The court surmised that if Samuel really
carried a shotgun, he certainly must have had a permit or license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon
(Amion), prosecution witness Joel Escobia claimed that he was at the receiving end of
Samuel’s thrusts with the butt of his shotgun. To the court, such discrepancy is fatal to the defense
because in appreciating the justifying circumstance of defense of a stranger, the court must know
“with definiteness the identity of the stranger defended by the accused.”22
The lower court, however, ruled out the existence of conspiracy among the three accused on the
ground that there was no proof on what they were whispering about when Felix saw them.
Accordingly, it held that the accused have individual or separate liabilities for the killing of Samuel:
Toring, as a principal, Diosdado Berdon as an accomplice by his act of giving Toring the knife, and
Carmelo Berdin as an accessory for concealing the weapon. It considered treachery as the
qualifying circumstance to the killing, found no proof as to allegation of evident premeditation but
appreciated nighttime as an aggravating circumstance. It meted the accused the penalties mentioned
above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on Samuel was justified because he
acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides
that no criminal liability is incurred by anyone “who acts in defense of x x x his relatives x x x by
consanguinity within the fourth civil degree, provided that the first and second requisites prescribed
in the next preceding circumstance are present, and the further requisite, in case the provocation
was given by the person attacked, that the one making defense had no part therein.” The first and
second requisites referred to are enumerated in paragraph (b) in the same article on self-defense as:
(a) unlawful aggression, and (b) lack of sufficient provocation on the part of the person defending
himself.
Joel Escobia, whose chin was hit with the butt of Samuel’s shotgun, is the first cousin of Toring
their fathers being brothers23 although no explanation appears on record why they have different
surnames. At any rate, this allegation on relationship was not rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a relative, however, hinges in this
case on the presence of unlawful aggression on the part of the victim. Corollarily, the claim of
Toring that Samuel was, at the time of the assault, carrying a shotgun to intimidate Toring’s group
must be proven.
Understandably, no prosecution witness attested that they saw Samuel with a firearm. The
prosecution even recalled to the witness stand Samuel’s widow who asserted that her husband did
not own any firearm.24 Going along with the prosecution’s evidence, the lower court arrived at the
rather gratuitous conjecture that Samuel could not have had a shotgun with him because no one
without a permit would carry a firearm without risking arrest by the police or the barangay tanod.
At the same time, however, the lower court described Samuel as the son of the barangay captain
who “had the run of the place and had his compelling presence felt by all and sundry.”25
While matters dealing with the credibility of witnesses and appreciation of evidence are primarily
the lower court’s province, this Court has the power to determine whether in the performance of its
functions, the lower court overlooked certain matters which may have a substantial effect in the
resolution of a case.26 Defense witness Joel Escobia was, besides Toring, the only witness whose

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sworn statement was taken by the police on May 26, 1980, the day after the fatal assault on Samuel.
In his sworn statement,27 Escobia attested that as he was about to dance with a girl, Samuel
stopped him, pointed his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia
and asked him, “Do you like this, Dong?” to which Escobia replied, “No, Noy, I do not like that.”
Samuel then placed the bullet in the shotgun and was thus pointing it at Escobia when Toring came
from behind Samuel and stabbed the latter. Even on cross-examination at the trial, Escobia did not
depart from his statement. In fact he added that Samuel pointed the shotgun at his chin and told him
to eat the bullet.28
There is no reason to doubt Joel Escobia’s assertion of Samuel’s unlawful aggression inasmuch as
his sworn statement29 and testimony in court had not been successfully discredited by the
prosecution which also failed to prove that Joel had reason to prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of proof of provocation
on the part of Toring notwithstanding, full credence cannot be given to Toring’s claim of defense of
a relative. Toring himself admitted in court30 as well as in his sworn statement31 that in 1979, he
was shot with a .22 caliber revolver by Edgar Augusto, Samuel’s brother. It cannot be said,
therefore, that in attacking Samuel, Toring was impelled by pure compassion or beneficence or the
lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he was motivated by
revenge, resentment or evil motive32 because of a “running feud” between the Augusto and the
Toring brothers. As the defense itself claims, after the incident subject of the instant case occurred,
Toring’s brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have
driven both camps to commit unlawful acts against each other. Hence, under the circumstances, to
justify Toring’s act of assaulting Samuel Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view of the presence of the qualifying
circumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use his
shotgun. We also agree with the lower court that conspiracy and evident premeditation were not
proven beyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating
circumstance. There is no proof that it was purposely sought to insure the commission of the crime
or prevent its discovery.33 However, Toring should be credited with the privileged mitigating
circumstance of incomplete defense of relative and the generic mitigating circumstance of
voluntary surrender.
The penalty for murder under Article 248 of the Revised Penal Code being reclusion temporal
maximum to death, the imposable penalty is prision mayor maximum to reclusion temporal
medium in view of the presence of the mitigating circumstances of incomplete defense of relative
and voluntary surrender (Art. 64 [5]). Applying the Indeterminate Sentence Law, the proper penalty
to be meted on Toring is prision correccional maximum as minimum to prision mayor maximum as
maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be sustained
in the absence of proof that it was physically impossible for him to be at the scene of the crime
when it was committed.34 His house was only a kilometer away from the place where he supplied
the knife to Toring.35 That distance does not preclude the possibility that Diosdado aided Toring in
the perpetration of the crime as it could be negotiated in just a few minutes by merely walking.36
Moreover, his alibi was uncorroborated as it was founded only on his own testimony and what
appears as a self-exonerating affidavit.37
But what pins culpability on Diosdado were the testimonies of at least two prosecution witnesses
who positively identified him as the one who gave Toring the knife. Motive, therefore, has become
immaterial in the face of such positive identification38 and hence, even if it were true that he was

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not a member of the Kwaknit gang, his participation in the killing has been proven beyond
reasonable doubt. Added to this is the fact that Toring himself in his sworn statement before the
police pointed to him as the source of the knife.39 Verily, Toring could not have
implicated him because of the incomprehensible reason that a case had been filed against Toring
before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of
supplying Toring the death weapon, Diosdado Berdon should be meted the penalty of prision
mayor maximum to reclusion temporal medium which is the penalty next lower in degree to
reclusion temporal maximum to death, the penalty prescribed for murder by Article 248 (Article 6
[3]). There being no mitigating or aggravating circumstances, the penalty should be in its medium
period or reclusion temporal minimum (Article 64 [1]). Applying the Indeterminate Sentence Law,
the minimum penalty should be taken from prision mayor minimum while the maximum penalty
should be within the period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been proven
beyond reasonable doubt. The fact that he knew where Toring hid the knife does not imply that he
concealed it to prevent its discovery (Article 19 [2]). There simply is no proof to that effect. On the
contrary, Luis Toring in his sworn statement and testimony during the trial testified that after
stabbing the victim, he ran away and went to his house to hide the murder weapon. Being a close
friend of Toring and a frequent visitor to the latter’s house, it is not impossible for Carmelo Berdin
to know where Toring hid his knives. Significantly, Carmelo readily acceded to the request of
police officers to lead them to the place where Toring kept the knife. He willingly retrieved it and
surrendered it to the police, a behavior we find inconsistent with guilt.
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis Toring
as principal in the murder of Samuel Augusto and Diosdado Berdon as an accom-plice thereto.
The lower court’s decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision correccional
maximum as minimum to twelve (12) years of prision mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day of
prision mayor minimum as minimum to twelve (12) years and one (1) day of reclusion temporal
minimum as maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel Augusto
an indemnity of thirty thousand pesos (P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.
G.R. No. 189834. March 30, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAY MANDY MAGLIAN y REYES,
accused-appellant.
Evidence; Hearsay Evidence Rule; Dying Declarations; A dying person’s declaration is recognized
as an exception to the rule against hearsay if it is made under the consciousness of an impending
death that is the subject of inquiry in the case.—While witnesses in general can only testify to facts
derived from their own perception, a report in open court of a dying person’s declaration is
recognized as an exception to the rule against hearsay if it is “made under the consciousness of an
impending death that is the subject of inquiry in the case.” It is considered as “evidence of the
highest order and is entitled to utmost credence since no person aware of his impending death
would make a careless and false accusation.”
Criminal Law; Mitigating Circumstances; Lack of Intention to Commit so Grave a Wrong; This

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mitigating circumstance addresses itself to the intention of the offender at the particular moment
when the offender executes or commits the criminal act.—The Revised Penal Code provides under
Article 13(3) the mitigating circumstance that the offender had no intention to commit so grave a
wrong as that committed. We held, “This mitigating circumstance addresses itself to the intention
of the offender at the particular moment when the offender executes or commits the criminal act.”
We also held,
“This mitigating circumstance is obtaining when there is a notable disparity between the means
employed by the accused to commit a wrong and the resulting crime committed. The intention of
the accused at the time of the commission of the crime is manifested from the weapon used, the
mode of attack employed and the injury sustained by the victim.”
Same; Same; Voluntary Surrender; The essence of voluntary surrender is spontaneity and the intent
of the accused to give himself up and submit himself to the authorities either because he
acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be
incurred for his search and capture.—An accused may enjoy the mitigating circumstance of
voluntary surrender if the following requisites are present: “1) the offender has not been actually
arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the
surrender was voluntary.” We explained, “The essence of voluntary surrender is spontaneity and the
intent of the accused to give himself up and submit himself to the authorities either because he
acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be
incurred for his search and capture.”
Same; Same; Damages; Civil indemnity ex delicto is mandatory upon proof of the fact of death of
the victim and the culpability of the accused for the death.—We award a civil indemnity ex delicto
as this is “mandatory upon proof of the fact of death of the victim and the culpability of the accused
for the death.” As We ruled, “When death occurs due to a crime, the following may be recovered:
(1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of litigation; and (6)
interest, in proper cases.” Current jurisprudence pegs the award of civil indemnity at PhP 50,000.
Villanueva, Villanueva & Bihasa for accused-appellant.
VELASCO, JR., J.:
This is an appeal from the December 23, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 02541, which affirmed the May 8, 2006 Decision in Criminal Case No. 8393-00 of
the Regional Trial Court (RTC), Branch 22 in Imus, Cavite. The RTC found accused Jay Mandy
Maglian guilty of parricide.
The Facts
An Information2 charged the accused as follows:
“That on or about the 4th day of January 2000, in the Municipality of Dasmarinas, Province of
Cavite, Philippines, and within the jurisdiction of this Honorable Court[,] accused with intent to
kill, did then and there, willfully, unlawfully, and feloniously attack, assault, and set on fire Mary
Jay Rios Maglian, his lawfully wedded spouse, who as a result sustained 90% Third Degree Burns
on the face and other vital parts of the body that caused her death, to the damage and prejudice of
the heirs of the said Mary Jay Rios Maglian.”
During his arraignment, the accused pleaded “not guilty.”
The prosecution presented witnesses Lourdes Rios, Norma Saballero, Dr. Ludovino Lagat, Amy

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Velasquez, and Ramon Oredain. The defense, on the other hand, presented accused Maglian, Atty.
Ma. Angelina Barcelo, Atty. Rosemarie Perey-Duque, Police Officer 3 (PO3) Celestino San Jose,
and Lourdes Panopio as witnesses.
The facts established during the trial below.
The accused is a businessman engaged in the lending business and the buying and selling of cars
and real estate. He and Atty. Mary Jay Rios (Mary Jay) were married on January 29, 1999. They
had a son, Mateo Jay.3
On January 4, 2000, the accused and Mary Jay were having dinner at their home in Dasmariñas,
Cavite when they got into an argument. The accused did not want Mary Jay to attend a party,
causing them to fight. Incensed, the accused collected the clothes that Mary Jay had given him for
Christmas and told her he would burn them all and started pouring kerosene on the clothes. Mary
Jay tried to wrestle the can of kerosene from him and, at the same time, warned him not to pour it
on her. Despite his wife’s plea, the accused still poured gas on her, thus setting both the clothes and
his wife on fire.4
The accused brought Mary Jay to the De la Salle University Medical Center in Dasmariñas. After
four days, she was transferred by her aunt to the burn unit of the East Avenue Medical Center in
Quezon City, were her condition improved. Subsequently, however, the accused transferred her to
St. Claire Hospital, which did not have a burn unit. Since her condition deteriorated, Lourdes Rios,
Mary Jay’s mother, had her transferred to the Philippine General Hospital (PGH) in Manila but she
was no longer able to recover. Before she expired, she told her mother what had happened to her,
declaring, “Si Jay Mandy ang nagsunog sa akin. (Jay Mandy burned me.)” She passed away on
February 24, 2000.5
The accused, in his defense, said the burning incident was completely accidental. He said it was
Mary Jay who was being difficult while they were arguing. She threatened to throw away the
clothes he had given her. To spite her, he also took the clothes that she had given him and told her
he would burn them all. He then got a match and a gallon of kerosene. Mary Jay caught up with
him at the dirty kitchen and took the match and kerosene from him. In the process, they both got
wet from the spilled kerosene. She got angry at how he was looking at her and screamed, “Mandy,
Mandy, wag yan, wag yan, ako na lang ang sunugin mo. (Mandy, don’t burn that, burn me
instead.)”
Accused, trying to avoid further provoking his wife, left his wife and went upstairs to his son.
While climbing the stairs, he heard Mary Jay shouting, “Mandy, Mandy, nasusunog ako. (Mandy,
I’m burning.)” He ran down the steps and saw the blaze had reached the ceiling of the kitchen. He
embraced his wife and called out to his mother to help them. He poured water on her when the fire
could not be put out and brought her to the living room. He then carried Mary Jay to the car while
shouting for help from the neighbors. In the process, he sustained burns on his legs and arms.6
While Mary Jay was still confined at the East Avenue Medical Center, the accused learned from a
certain Judge Tanguanco that using “red medicine” would help heal his wife’s burn wounds. The
hospital, however, did not allow him to use the “red medicine” on Mary Jay. He thus had his wife
transferred to PGH. When there was no space at the hospital, she was transferred to St. Claire
Hospital with the help of a certain Judge Español. The doctors at St, Claire advised him to stop
using the “red medicine” on his wife when her wounds started to get worse and began emitting a
foul odor.7
The accused asserted that his mother-in-law, Lourdes Rios, and their laundrywoman, Norma
Saballero, accused him of burning his wife since his wife’s family had been angry with him ever
since they got married. His mother-in-law and Mary Jay’s siblings used to ask money from them

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and would get angry with him if they did not receive any help.8
The accused likewise claimed that his late wife made a dying declaration in the presence of PO3
Celestino San Jose and
Atty. Rosemarie Perey-Duque. This allegation was corroborated by PO3 San Jose, who testified
that Mary Jay was a friend and he had visited her at East Avenue Medical Center on January 13,
2000. He was there to take Mary Jay’s statement upon instructions of Chief Major Bulalacao.9 PO3
San Jose narrated the incident during his direct examination by Atty. Bihasa:
Q What, if any, was the reply of Atty. [Mary Joy] Rios?
A She nodded her head.
Q And after that, what happened next:
A I told her that I will get her statement and she told me that she could give her statement.
Q And after Atty. Rios told you that she was capable of giving her statement, what if any
transpired?
A I took her statement, which was in my handwriting.
Q Her statement was in your handwriting but who uttered those statements?
A It was Atty. Rios.10
Atty. Duque testified that the last time she spoke with Mary Jay was on January 13, 2000, when she
visited her at the hospital along with PO3 San Jose. The statements of Mary Jay were reduced into
writing and Atty. Duque helped in lifting the arm of the patient so that she could sign the
document.11
The Ruling of the Trial Court
The RTC rendered its Decision on May 8, 2006, the dispositive portion of which reads:
“WHEREFORE, premises considered, this Court finds and so it hereby holds that the prosecution
had established the guilt of the accused JAY MANDY MAGLIAN y REYES beyond reasonable
doubt and so it hereby sentences him to suffer the penalty of RECLUSION PERPETUA.”
Inasmuch as the civil aspect of this case was prosecuted together with the criminal aspect, the
accused is also hereby ordered to indemnify the heirs of the deceased the following amounts of:
a. Php500,000 as actual damages
b. Php500,000 as moral damages,
c. Php200,000 as exemplary damages,
d. Php200,000 as attorney’s fees; and
e. Cost of suit against the accused.
SO ORDERED.”12
The Ruling of the Appellate Court
On appeal, accused-appellant faulted the trial court for not giving credence to the dying declaration
Mary Jay made to her friends who became defense witnesses. He averred that the trial court erred
in not admitting the deposition by oral examination of Atty. Ma. Angelina Barcelo which would
corroborate the testimonies of the defense witnesses regarding the handwritten dying declaration of
Mary Jay. The trial court was also questioned for giving credence to the perjured and biased
testimonies of prosecution witnesses Lourdes Rios and Norma Saballero. Lastly, accused-appellant
averred that the trial court erroneously disallowed the defense from presenting Dr. Ma. Victoria
Briguela, a qualified psychiatrist, who could testify that Mary Jay’s mental, psychological, and
emotional condition on February 24, 2000 was disoriented and she could not have made a dying
declaration on said date.
The CA upheld the ruling of the trial court. The dying declaration made by Mary Jay to her mother

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Lourdes and laundrywoman Norma had all the essential requisites and could thus be used to
convict accused-appellant. It noted that while the testimonies of Lourdes and Norma on the dying
declaration had some inconsistencies, these were immaterial and did not affect their credibility. It
observed that no ill motive was presented and proved as to why the prosecution’s witnesses would
make false accusations against accused-appellant.
Hence, we have this appeal.
On December 14, 2009, this Court required the parties to submit supplemental briefs if they so
desired. The People, represented by the Office of the Solicitor General, manifested that it was
adopting its previous arguments.
The Issue
In his Supplemental Brief, accused-appellant raises the following issue:

Whether the guilt of accused-appellant has been established beyond reasonable doubt.
Accused-appellant contends that (1) he never or did not intend to commit so grave a wrong as that
committed or so grave an offense as the felony charged against him; and (2) that he voluntarily, and
of his own free will, surrendered or yielded to the police or government authorities. He claims that
the victim’s dying declaration showed that what happened to her was an accident. He avers that this
was corroborated by three witnesses. The victim’s attending physician, he insists, also testified that
he was told by the victim that what happened to her was an accident.
If not acquitted, accused-appellant argues that, in the alternative, his sentence must be reduced due
to mitigating circumstances of no intention to commit so grave a wrong and voluntary surrender.
He claims he is entitled to the latter since he voluntarily surrendered to the authorities before
criminal proceedings were commenced against him. The reduction of his sentence, he contends,
must be by at least another degree or to prision mayor or lower.
The Ruling of the Court
We affirm accused-appellant’s conviction.
Dying declaration
While witnesses in general can only testify to facts derived from their own perception, a report in
open court of a dying person’s declaration is recognized as an exception to the rule against hearsay
if it is “made under the consciousness of an impending death that is the subject of inquiry in the
case.”13 It is considered as “evidence of the highest order and is entitled to utmost credence since
no person aware of his impending death would make a careless and false accusation.”14The Rules
of Court states that a dying declaration is admissible as evidence if the following circumstances are
present: “(a) it concerns the cause and the surrounding circumstances of the declarant’s death; (b) it
is made when death appears to be imminent and the declarant is under a consciousness of
impending death; (c) the declarant would have been competent to testify had he or she survived;
and (d) the dying declaration is offered in a case in which the subject of inquiry involves the
declarant’s death.”15 The question to be answered is which dying declaration satisfies the
aforementioned circumstances, the one made by Mary Jay to Lourdes and Norma, or the one she
made before Atty. Duque and PO3 San Jose.
Accused-appellant contends that his late wife’s dying declaration as told to the defense witnesses
Atty. Duque and PO3 San Jose effectively absolved him from any wrongdoing. However, it is the
dying declaration presented by the prosecution that satisfies all the requisites provided in the Rules.
In contrast, the dying declaration for the defense did not show that Mary Jay’s death at the time of
said declaration appeared to be imminent and that she was under a consciousness of impending
death.

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Moreover, We defer to the factual finding that the witnesses for the prosecution were more credible.
Mary Jay’s dying declaration to her mother Lourdes and to Norma showed that accused-appellant
was the one who set her in flames. Lourdes and the Maglians’ laundrywoman Norma both testified
that Mary Jay, moments before her actual death, told them that it was accused-appellant who was
responsible for burning her. Lourdes and Norma both testified that at the time of Mary Jay’s
declaration, she was lucid and aware that she was soon going to expire. Furthermore, the so-called
dying declaration made by Mary Jay to defense witnesses Atty. Duque and PO3 San Jose suffers
from irregularities. The dying declaration allegedly made to Atty. Duque and PO3 San Jose was
handwritten by the latter but he did not have it sworn under oath. We reiterate too that it was not
clear that it was executed with the knowledge of impending death since the statements were made
more than a month before Mary Jay died.
We agree with the trial and appellate courts that Lourdes and Norma were both credible witnesses
and had no motive to lie about Mary Jay’s dying declaration. The appellate court correctly pointed
out that although Lourdes was Mary Jay’s mother, this relationship did not automatically discredit
Lourdes’ testimony. And while accused-appellant alleged that Lourdes as his mother-in-law did not
approve of him, he could not give any improper motive for Norma to falsely accuse him. Between
the two competing statements of the two sets of witnesses, the one presented by the prosecution
should clearly be given more weight as it satisfies the requisites of an admissible dying declaration.
The Revised Penal Code provides under Article 13(3) the mitigating circumstance that the offender
had no intention to commit so grave a wrong as that committed. We held, “This mitigating
circumstance addresses itself to the intention of the offender at the particular moment when the
offender executes or commits the criminal act.”16 We also held, “This mitigating circumstance is
obtaining when there is a notable disparity between the means employed by the accused to commit
a wrong and the resulting crime committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used, the mode of attack employed and the
injury sustained by the victim.”17
Aiming for this mitigating circumstance, accused-appellant once again relies on the statements of
the defense witnesses that Mary Jay told them what happened to her was an accident. However, as
earlier discussed, Mary Jay’s dying declaration contradicts the alleged exculpatory statement she
earlier made to the defense witnesses. Moreover, the prosecution took pains in court to demonstrate
that fighting over the kerosene container would not have caused Mary Jay to be drenched in
kerosene. As aptly explained by the trial court:
“The court is convinced that the deceased did not take possession of the gallon container with
kerosene. The accused had full control and possession of the same. He is a bulky and very muscular
person while the deceased was of light built, shorter, smaller and weaker. When a demonstration
was made in open court about the struggle for possession of the container, it was shown that the
contents of the same did not spill owing to the little amount of liquid and its narrow opening. To be
able to wet 90 percent of the body surface the kerosene content of the gallon container must have
been poured over the head of the deceased. This explains why when she got ignited, the flames rose
up to the ceiling and burned her from head to toe.”18
It is extremely far-fetched that accused-appellant could accidentally pour kerosene on his wife and
likewise accidentally light her up and cause third degree burns to 90% of her body. We, thus, agree
with the trial court’s finding that accused-appellant knew the fatal injuries that he could cause when
he poured kerosene all over his wife and lit a match to ignite a fire. There was no disparity between
the means he used in injuring his wife and the resulting third degree burns on her body. He is, thus,
not entitled to the mitigating circumstance under Art. 13(3) of the Code.

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Voluntary surrender
An accused may enjoy the mitigating circumstance of voluntary surrender if the following
requisites are present: “1) the offender has not been actually arrested; 2) the offender surrendered
himself to a person in authority or the latter’s agent; and 3) the surrender was voluntary.”19 We
explained, “The essence of voluntary surrender is spontaneity and the intent of the accused to give
himself up and submit himself to the authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may be incurred for his search and
capture.”20
To avail himself of this mitigating circumstance, accused-appellant claims that he voluntarily
yielded to the police authorities on October 14, 2002, or before the commencement of the criminal
proceedings against him. He avers that this claim is backed by the records of the case and a
certification made by the Dasmariñas Police Station. He contends that both the RTC and the CA
inexplicably did not appreciate this mitigating circumstance in his favor.
A review of the records shows that accused-appellant on October 16, 2000 filed with the
Department of Justice (DOJ) a Petition for Review of the Resolution of the private prosecutor in the
instant case. Subsequently, a warrant of arrest for the parricide charge was issued against him on
October 30, 2000.21 However, a Motion, to Defer Implementation of Warrant of Arrest was filed
by accused on November 13, 200022 and was granted by the RTC on December 12, 2000 in view
of the petition for review he had filed before the DOJ.23 On September 11, 2002, the DOJ issued a
Resolution24 denying the petition of accused-appellant. The defense later submitted a
Certification25 issued by the Philippine National Police-Dasmariñas Municipal Police Station dated
October 18, 2002 stating the following:
“THIS IS TO CERTIFY that the following are excerpts from the entries on the Official Police
Blotter of Dasmariñas Municipal Police Station, appearing on page 0331 and 0332, blotter entry
nos. 1036 and 1047 respectively, dated 15 October 2002, quoted verbatim as follows:
150740H October 2002 — “P/I Apolinar P. Reyes reported that one Jaymandy Maglian y Reyes, 30
years old, resident of #24 Bucal, Sampalok II, Dasmariñas, Cavite, with Warrant of Arrest issued
by RTC Branch 21, Imus, Cavite, in CC# 8393-00 for Parricide, voluntarily surrendered to him on
October 14, 2002. Subject is turned over to this station on this date”.
151350H October 2002 — “One Jaymandy Maglian was transferred to BJMP and escorted by P/I
Apolinar Reyes”.
(Entries written by SPO3 Ricardo V. Sayoto – duty desk officer)”
We find that in the case of accused-appellant, all the elements for a valid voluntary surrender were
present. Accused-appellant at the time of his surrender had not actually been arrested. He
surrendered to the police authorities. His surrender was voluntary, as borne by the certification
issued by the police. There is, thus, merit to the claim of accused-appellant that he is entitled to the
mitigating circumstance of voluntary surrender.
It bears noting that parricide, however, according to Art. 246 of the Revised Penal Code, is
punishable by two indivisible penalties, reclusion perpetua to death. The Code provides under Art.
63(3) that when a law prescribes a penalty with two indivisible penalties and the commission of the
act is attended by some mitigating circumstance and there is no aggravating circumstance, the
lesser penalty shall be applied. But Section 3 of Republic Act No. (RA) 9346 (An Act Prohibiting
the Imposition of Death Penalty in the Philippines) provides that “persons convicted of offenses
punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by
reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.” The proper sentence in the instant case would, thus, be

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reclusion perpetua which is still the lesser penalty.
Anent an issue previously raised by accused-appellant and which was not discussed by the CA,
while accused-appellant claims that the trial court erred in not admitting the deposition by oral
examination of Atty. Ma. Angelina Barcelo, We note that the records show that an Order26 was
issued by Judge Norberto J. Quisumbing, Jr. granting accused-appellant’s motion to take oral
deposition of Atty. Barcelo.
Pecuniary liability
The trial court ordered accused-appellant to pay PhP 500,000 as actual damages; PhP 500,000 as
moral damages; PhP 200,000 as exemplary damages; and PhP 200,000 as attorney’s fees.
We modify the monetary awards, those being excessive. We award a civil indemnity ex delicto as
this is “mandatory upon proof of the fact of death of the victim and the culpability of the accused
for the death.”27 As We ruled, “When death occurs due to a crime, the following may be
recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory
damages; (3) moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of litigation;
and (6) interest, in proper cases.”28 Current jurisprudence pegs the award of civil indemnity at PhP
50,000.29
Moral damages should also be awarded even absent allegation and proof of the emotional suffering
by the victim’s heirs. The amount should be decreased to PhP 50,000 in accordance with
jurisprudence.30 Exemplary damages in the lowered amount of PhP 30,000 are likewise in order in
this case charging parricide, as the qualifying circumstance of relationship is present.31
As to the attorney’s fees awarded, these must be reasonable in accordance with Art. 2208 of the
Civil Code.32 We, thus, reduce the attorney’s fees to a more reasonable amount of PhP 50,000.
WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 02541
affirming the RTC Decision that found accused-appellant guilty beyond reasonable doubt of
parricide is AFFIRMED with MODIFICATION. The fallo of the RTC Decision should be modified
to read, as follows:
“WHEREFORE, premises considered, this Court finds and so it hereby holds that the prosecution
had established the guilt of the accused JAY MANDY MAGLIAN y REYES beyond reasonable
doubt and so it hereby sentences him to suffer the penalty of RECLUSION PERPETUA.
Inasmuch as the civil aspect of this case was prosecuted together with the criminal aspect, the
accused is also hereby ordered to indemnify the heirs of the deceased the following amounts of:
a. PhP 500,000 as actual damages;
b. PhP 50,000 as civil indemnity;
c. PhP 50,000 as moral damages;
d. PhP 30,000 as exemplary damages;
e. PhP 50,000 as attorney’s fees; and
f. Cost of suit against accused-appellant.”
SO ORDERED. People vs. Maglian, 646 SCRA 770, G.R. No. 189834 March 30, 2011
G.R. No. 100204. March 28, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AURELIO CABALHIN y DACLITAN,
accused-appellant.
Evidence; Witnesses; Findings of fact of trial courts are given great weight on appeal.—It is settled
rule that the findings of fact of trial courts are given great weight on appeal because they are in a
better position to examine the real evidence, and observe the demeanor of the witnesses, and can
therefore discern if they are telling the truth or not. We therefore find no reversible error committed
by the trial court in appreciating the testimony of Romulo del Monte. Hence, as to the factual issue

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of whether Marianita and Rolito were engaged in sexual intercourse when allegedly caught by
appellant, we will respect the factual finding made by the trial court as the same is supported by the
evidence on record.
Parricide; Under Article 247 of the Revised Penal Code, the killing of the wife by the husband (or
vice versa) is justified if the husband kills her while engaged in sexual intercourse with another
man or immediately thereafter.—Under Article 247 of the Revised Penal Code, the killing of the
wife by the husband (or vice versa) is justified if the husband kills her while engaged in sexual
intercourse with another man or immediately thereafter. Clearly, in the present case, appellant failed
to prove that he killed Marianita and Rolito while in the act of sexual intercourse or immediately
thereafter. Therefore, appellant can not invoke Article 247 to be exempt from criminal liability. He
is guilty of parricide under Article 246 of the Code, which provides that any person who shall kill
his or her spouse shall be punished by the penalty of reclusion perpetua to death.
Homicide; The essential element of intent to kill the victim must be clearly established in order to
convict one of the crime of homicide.—In applying Article 249 of the Revised Penal Code, the
essential element of intent to kill the victim must be clearly established in order to convict one of
the crime of homicide. The trial court ruled that there was intent to kill on the part of the appellant,
considering “the number and location of the stab wounds inflicted upon the victim (Flaviana)—two
stab wounds on the lower right breast, and the weapon used by the accused which was a double
bladed dagger measuring about 13 inches long including the handle. “Taking into consideration the
number and location of the stab wounds sustained by Flaviana, this Court believes, as aptly
observed by the trial court, that there was intent to kill when appellant attacked and wounded
Flaviana. We, therefore uphold the ruling of the trial court finding appellant guilty of frustrated
homicide in having attacked Flaviana.
APPEAL from a decision of the Regional Trial Court of Antipolo, Rizal, Br. 73. Legaspi, J.
Public Attorney’s Office for accused-appellant.
PADILLA, J.:
Accused Aurelio D. Cabalhin y Daclitan appeals from the decision** of the Regional Trial Court of
Antipolo, Rizal, Branch 73, dated 27 March 1991, finding him guilty of three (3) offenses, namely:
frustrated homicide, homicide, and parricide and sentencing him to suffer imprisonment of six (6)
months of arresto mayor as minimum to three (3) years of prision correccional as maximum in
Criminal Case No. 3081 (for frustrated homicide); imprisonment of four (4) years, two (2) months
and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of prision
mayor as maximum in Criminal Case No. 3082 (for homicide); and reclusion perpetua in Criminal
Case No. 3094 (for parricide).
The records show that at about 3:30 in the afternoon of 22 February 1987, in Sitio Burol, Barangay
San Juan, Taytay, Rizal, the appellant stabbed, with the use of a 13-inch dagger, three (3) persons,
namely, Marianita Atison (appellant’s wife), Flaviana and Rolito, both surnamed Saldivia (mother
and son). Three (3) separate informations were filed against accused-appellant, docketed as
Criminal Case No. 3081, dated 25 May 1987, for: frustrated murder; Criminal Case No. 3082,
dated 26 May 1987, for: murder; and Criminal Case No. 3094, dated 25 May 1987, for: parricide,
which informations read as follows:
“Crim. Case No. 3081
That on or about the 22nd day of February 1987, in the municipality of Taytay, province of Rizal, a
place within the jurisdiction of this Honorable Court, the above-named accused, armed with a

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deadly weapon (dagger), with intent to kill, evident premeditation and treachery, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said deadly weapon one
Flaviana Lacambra-Saldivia on the right lower portion of the breast, x x x x x thus performing all
the acts of execution which would have produced the crime of murder, as a consequence, but
nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to
the timely and able medical assistance rendered to said Flaviana Lacambra-Saldivia which
prevented her death.
CONTRARY TO LAW.
Crim. Case No. 3082
That on or about the 22nd day of February 1987, in the Municipality of Taytay, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed
with a dagger, with intent to kill, and by means of treachery and evident premeditation, did then
and there willfully, unlawfully and feloniously attack, assault and stab with the said dagger one
Rolito Saldivia y Lacambra on the vital parts of his body, thereby inflicting upon the latter mortal
stab wounds which directly caused his death.
CONTRARY TO LAW.
Crim. Case No. 3094
That on or about the 22nd day of February 1887, in the municipality of Taytay, province of Rizal, a
place within the jurisdiction of this Honorable Court, the above-named accused, with evident
premeditation to kill his wife with whom he was united in lawful wedlock, entered the house at
Sitio Burol, Brgy. San Juan, Taytay, Rizal, where she was then living separately, and said accused
armed with a bladed weapon suddenly and without warning and employing means which tended to
ensure its commission without danger to himself, did then and there willfully, unlawfully and
feloniously, stab his wife, Marianita Atison, repeatedly, as a result of which the said Marianita
Atison met her instantaneous death.
CONTRARY TO LAW.”1
Criminal Case No. 3081 was originally assigned to the Regional Trial Court of Antipolo, Rizal,
Branch 73, while Criminal Case Nos. 3082 and 3094 were assigned to Branch 74 of the same court.
The latter two (2) cases were consolidated later with Criminal Case No. 3081, all three (3) cases
having arisen from the same incident.
When arraigned, appellant pleaded not guilty to the offenses charged. The three (3) cases were set
for trial. The evidence for the prosecution consisted of the testimonies of two (2) alleged eye-
witnesses to the commission of the crimes, namely: Robin Saldivia (brother of deceased victim
Rolito Saldivia) and Igmidio Ducay. A third witness was Romulo del Monte (a barangay tanod in
Barangay San Juan).
The testimony of Robin Saldivia is as follows:
“x x x on February 22, 1987 at around 3:30 in the afternoon, he (Robin Saldivia) was in their house
in Sitio Burol, Taytay, Rizal. He was lying down with his brother Rolito Saldivia who was sleeping
on the floor. Their house had two bedrooms separated by a sala. On the other bedroom, Marianita
Atison or ‘Ka Nita’ and his mother Flaviana Lacambra Saldivia were talking while on the bed. All
of a sudden, somebody forcibly entered their house and so he got up and peeped behind the curtain.
He saw the accused drew a double-bladed instrument measuring about thirteen inches long from his
right side. Sensing danger, Robin Saldivia hid under their house the floor of which was about 4 1/2
feet from the ground. While hiding under the house, he could see the movement of the feet of the
accused between the wooden slabs of the floor. Thru these spaces, he saw the accused stabbed

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Marianita Atison or ‘Ka Nita,’ his mother Flavians Lacambra Saldivia and his brother Rolito or
‘Lito’ Saldivia and blood even dripped on him. After stabbing these three persons, the accused ran
away. As a result of this stabbing incident, Flaviana Saldivia sustained two stab wounds on the
breast while Marianita Atison and Rolito Saldivia died on the same day.”2
Igmidio Ducay testified as follows:
“x x x on February 22, 1987 at around 3:30 P.M., he (Igmidio Ducay) was infront of the house of
Wenceslao Saldivia in Sitio Burol, Barangay San Juan, Taytay, Rizal. He was playing ‘dama’ with
his friend Alberto Espino when a person carrying a bladed instrument passed by. The bladed
weapon or instrument has a length of 12 to 13 inches. This person suddenly entered the house of
Wenceslao Saldivia by kicking the door which was closed. Igmidio Ducay stood up and peeped
through inside the house. He saw the man suddenly stabbed Marianita Atison Cabalhin, an
acquaintance. After that, the man went down from the bedroom and suddenly stabbed Lito who was
sleeping face down (nakataob) on top of a table just below the bedroom where Marianita Cabalhin
was stabbed. He also saw the man kicked and stabbed ‘Manang’ or Flaviana Saldivia, wife of
Wenceslao Saldivia.
Igmidio Ducay stated that he was about 4-5 meters away from the door where he was peeping when
Marianita Cabalhin, Rolito Saldivia and Flaviana Saldivia were stabbed by the man whom he
identified as the accused Aurelio Cabalhin. The door was open and everything that was happening
inside the house could be seen outside because there was no room or partition. He saw the accused
climbed the bed or ‘papag’ where Marianita Cabalhin and Flaviana Saldivia were sitting side by
side and the accused stabbed them while standing on the ‘papag.’ After stabbing Marianita and
Flaviana, the accused went down and proceeded to Rolito Saldivia who was sleeping on top of the
table on the right side of the house and stabbed him also. After Flaviana Saldivia was stabbed,
Igmidio Ducay left the place and asked for help. x x x”3
Romulo del Monte, on the other hand, testified as follows:
1. That in that afternoon of 22 February 1987 after being informed about the stabbing incident in
the house of the Saldivias, he went to said house and saw Nita Cabalhin and Lito Saldivia sprawled
on the bed in one room of the house—Nita Cabalhin was fully dressed while Lito Saldivia was
wearing khaki pants but naked up (without T-shirt); he did not see Wenceslao Saldivia (father of
Lito Saldivia) in the house and did not bother to ask who the author of the crime was.
2. Between 3:00 and 4:00 p.m. of that same day, he saw the accused Aurelio Cabalhin coming out
from an alley where the house of the Saldivias was located. The accused had a white shoulder bag
on his left shoulder, his right hand was inside the bag and his pants were bloodied. Nobody told
him that said person was Aurelio Cabalhin but he was pointed to as the one who stabbed the
victims. When Romulo del Monte saw the accused coming out from an alley, he even greeted him
—“O brod, anong nangyari sa iyo at ganyan ka?” but the accused did not answer and he just
continued walking. The next time that he saw the accused was in court. (Romulo del Monte gave a
sworn statement dated 23 February 1987 in connection with this case).4
Appellant admitted having stabbed Marianita Atison, Rolito Saldivia and Flaviana Saldivia,
resulting in the death of the first two victims (Marianita and Rolito), and in stab wounds on the
breast of the third victim (Flaviana). However, he declared that the stabbing incident occurred as he
caught his wife Marianita and Rolito naked in bed and actually engaged in sexual intercourse. The
evidence for the defense consists of the testimony of the sole defense witness, appellant himself.
His testimony is as follows:
“x x x He and Marianita Atison Cabalhin are husband and wife having been married on November
23, 1972 in Calubian, Leyte (Exhibit ‘1’). After their marriage, they stayed in the house of his in-

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laws in Guinduhaan, Wague, Leyte for more or less one year. After that, they transferred to their
own house in Wague, Leyte and stayed there for more or less fifteen years. In 1985, they went to
Manila where they worked as caretaker of the house of Edgardo Co in Filinvest Subdivision for
about seven months. They left the employment of Edgardo Co x x x. They transferred to Sucat,
Parañaque where he worked as laborer in a construction and his wife Marianita Atison Cabalhin
worked as housemaid.
xxx xxx xxx
After working as housemaid in New Alabang Village for more or less five months, Marianita
Atison Cabalhin transferred to Meralco Village, Taytay, Rizal where she also worked as housemaid
of Lola Waway. At that time Aurelio Cabalhin was working with Apex in San Pedro,
Mandaluyong, Metro Manila and residing in Mangga Site, Sucat, Parañaque. His wife Marianita
Cabalhin who was working in Meralco Village, Taytay, Rizal was going home to or staying with
her sister Elevita Atison Dagame in Sitio Burol, Barangay San Juan, Taytay, Rizal after her work.
They agreed that they would see each other every Sunday at Mangga Site, Sucat, Parañaque.
Aurelio Cabalhin had gone thrice to the house of his sister-in-law where his wife was staying. On
December 14, 1986, Aurelio Cabalhin went to Sitio Burol, Barangay San Juan, Taytay, Rizal to find
out the condition of his wife in the house of Lola Waway. He saw his wife and she told him that her
work was fine and she was in good condition. He saw also his sister-in-law Elevita Dagame on that
occasion.
On February 14, 1987, Elevita Dagame went to Sucat, Parañaque and asked the accused Aurelio
Cabalhin about his wife. Elevita told him that his wife was no longer working in the house of Lola
Waway and she was not going home to their house anymore. On February 17, 1987, the accused
went to Meralco Village, Taytay, Rizal and verified from Lola Waway if what Elevita Dagame told
him was true. Lola Waway told the accused that his wife was not working with her anymore since
January 30. Upon learning that, Aurelio Cabalhin asked the help of Elevita Dagame to gather
information regarding the whereabouts of his wife and went back to Sucat, Parañaque.
On February 22, 1987, Aurelio Cabalhin returned to the house of Elevita Dagame in Sitio Burol,
Barangay San Juan, Taytay, Rizal to get some informations about his wife. When he arrived there at
around 12:00 P.M., the only person in the house was Jun Dagame who is the brother of Reynaldo
Dagame, husband of Elevita. According to Jun Dagame, Elevita went to Pasay. The accused talked
with Jun Dagame and their conversation lasted for about two hours.
Jun Dagame who was 14 years old, told the accused that his wife Marianita was in the house of
Wenceslao Saldivia and had a paramour. He wanted to know if what he was told about his wife was
true and so he went to the house of Wenceslao Saldivia which was pointed to him by Jun Dagame
who stayed at a distance of about 20 meters away from said house. He went near the door of the
house of Wenceslao Saldivia and saw Flavians Saldivia. He asked her where his wife was and she
answered that Marianita Cabalhin was not there. The accused noticed that Flaviana Saldivia
became pale and trembled when he asked her about his wife and so he entered the house and
Flaviana Saldivia was behind him. He saw a room with curtain and when he parted the curtain
(hinawi ko po ang kurtina) he saw his wife lying with a man on the bed. His wife was lying on her
back with her legs apart while the man was on top of her with his buttocks between the parted legs
of his wife. The man and his wife were engaged in sexual act. He boxed the legs of the man and
when he rolled over to the wall, he saw that his wife and the man were naked. Because of anger, he
lost control of himself. He saw a knife near the pillow and stabbed the testicles of the man. His wife
tried to stop him and he stabbed her also. After that, he stabbed the man and his wife again and
again. The accused testified that at the time he was stabbing these two persons, he was already out

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of his mind because of anger. He could not recall how many times he stabbed them but he was sure
that all the stab wounds were on the front portion of their bodies. He did not know what happened
to Flaviana Saldivia but on cross-examination, the accused declared that when he stabbed the
testicles of the man who he came to know as Lito Saldivia, somebody behind him grabbed his shirt
and he also stabbed that person but he does not know if it was Flaviana Saldivia. After realizing
that he had taken the law into his hands, the accused left bringing the knife with him and walked
towards the highway. His pants were full of blood and he boarded a passenger jeep going to
Crossing-JRC. He alighted at Crossing-Mandaluyong and went to the outpost where there was a
policeman. He told the police that he was a criminal and he was brought to Capt. Sebastian Davan
at the Mandaluyong police headquarters. The accused told Capt. Davan that he killed his wife and
paramour. That evening, Capt. Davan brought him to Taytay Police Station and he was
incarcerated. x x x”5
On 27 March 1991, the trial court rendered judgment finding appellant guilty of the crimes of
frustrated homicide (as to Flaviana), homicide (as to Rolito) and parricide (as to Marianita), the
dispositive part of which reads as follows:
“WHEREFORE, finding the accused Aurelio Cabalhin y Daclitan guilty beyond reasonable doubt
of the crimes of frustrated homicide in Crim. Case No. 3081, homicide in Crim. Case No. 3082 and
parricide in
Crim. Case No. 3094, the Court hereby sentences him to suffer imprisonment of 6 months of
arresto mayor as minimum to 3 years of prision correccional as maximum in Crim. Case No. 3081;
imprisonment of 4 years 2 months and 1 day of prision correccional as minimum to 8 years and 1
day of prision mayor as maximum in Crim. Case No. 3082 and reclusion perpetua in Crim. Case
No. 3094.
The accused shall be credited with the preventive imprisonment he has undergone pursuant to Art.
29 of the Revised Penal Code as amended by Republic Act No. 6127.”6
In this appeal, appellant contends: (1) that he killed his wife Marianita and Rolito Saldivia under
the exceptional circumstances provided under Article 247 of the Revised Penal Code which reads:
“ART. 247. Death or physical injuries inflicted under exceptional circumstances.—Any legally
married person who, having surprised his spouse in the act of committing sexual intercourse with
another person, shall kill any of them or both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from
punishment.”
and (2) that the crime he committed against the person of the other victim, Flaviana Lacambra-
Saldivia was only serious physical injuries, not frustrated homicide.
We find no merit in the appeal.
As to the issue on the applicability of Article 247 of the Revised Penal Code to the case at bench,
the principal question is whether or not appellant killed his wife Marianita and Rolito as he caught
them in the act of committing the sexual act, or immediately thereafter. The appellant contends that
in that fateful afternoon of 22 February 1987, he entered a room in the house of the Saldivia family
and saw that his wife was “lying on her back with her legs apart while the man was on top of her
with his buttocks between the parted legs of his wife.” Both the prosecution and defense witnesses
gave different versions as to the actual location, position and condition of Marianita and Rolito at
the time appellant saw them—in short, whether they were engaged in the sexual act when allegedly
caught by the appellant in the afternoon of 22 February 1987.
It is noted that the trial court gave great weight to the testimony of the prosecution witness, Romulo

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del Monte (the barangay tanod) whom the trial court believed to be an unbiased witness, and who
testified that when he saw Marianita and Rolito on that fateful afternoon of 22 February 1987,
Marianita was fully dressed while Rolito was wearing Khaki pants without T-shirt or naked up. The
trial court said:
“The claim of the accused that he saw his wife lying on her back with her legs apart while Rolito
Saldivia was on top of her with his buttocks between her parted legs is hard to believe if not
unworthy of belief in view of his testimony that the two were covered with blanket from their
shoulders down to their feet when he first saw them (pp. 26-27, t.s.n., 3/21/90). Considering that
Marianita Cabalhin and Rolito Saldivia were covered with blanket from shoulders to feet, it is
impossible for the accused to see their exact position which he described in detail and what they
were doing. The testimony of the accused that his wife and Rolito Saldivia were both naked while
engaged in the carnal act was belied by Barangay Tanod Romulo del Monte who went to the scene
of the crime minutes after the stabbing incident. Romulo del Monte, an unbiased witness, declared
that when he saw Nita Cabalhin and Lito Saldivia bloodied and sprawled on the bed in one room of
the house, Nita Cabalhin was fully dressed while Lito Saldivia was wearing Khaki pants without T-
shirt or naked up (pp. 20-21, t.s.n., 6/7/88). It should be remembered that when this stabbing
incident happened, the only persons in the house of Wenceslao Saldivia were Robin Saldivia,
Rolito Saldivia, Flaviana Saldivia and Marianita Atison Cabalhin; Wenceslao Saldivia was not at
home as he was drinking and eating in the house of his friend (pp. 3-4, t.s.n., 2/17/88); Robin
Saldivia who was 13 years old, left their house after the victims were stabbed to call and inform his
father about the incident; Marianita Atison Cabalhin died as a result of the stab wounds inflicted
upon her: Rolito Saldivia who was seriously wounded was then fighting for life as he died also on
the same day while Flaviana Saldivia was also wounded on her breast and in serious condition. It is
therefore, highly inconceivable and improbable that the victims Rolito Saldivia and Marianita
Cabalhin could still put on their clothes if indeed they were naked.”7
It is settled rule that the findings of fact of trial courts are given great weight on appeal because
they are in a better position to examine the real evidence, and observe the demeanor of the
witnesses, and can therefore discern if they are telling the truth or not.8 We therefore find no
reversible error committed by the trial court in appreciating the testimony of Romulo del Monte.
Hence, as to the factual issue of whether Marianita and Rolito were engaged in sexual intercourse
when allegedly caught by appellant, we will respect the factual finding made by the trial court as
the same is supported by the evidence on record. Under Article 247 of the Revised Penal Code, the
killing of the wife by the husband (or vice-versa) is justified if the husband kills her while engaged
in sexual intercourse with another man or immediately thereafter. As to the strict application of
Article 247, People vs. Wagas 9 teaches that:
“x x x The vindication of a Man’s honor is justified because of the scandal an unfaithful wife
creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But
killing the errant spouse as a purification is so severe as that it can only be justified when the
unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so
much so that the law requires that it be inflicted only during the sexual intercourse or immediately
thereafter.”
Clearly, in the present case, appellant failed to prove that he killed Marianita and Rolito while in
the act of sexual intercourse or immediately thereafter. Therefore, appellant can not invoke Article
247 to be exempt from criminal liability. He is guilty of parricide under Article 246 of the Code,
which provides that any person who shall kill his or her spouse shall be punished by the penalty of
reclusion perpetua to death.

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As to the second argument, appellant contends that he is guilty only of serious physical injuries, not
frustrated homicide as he had then no intent to kill the victim, Flaviana.
In applying Article 24910 of the Revised Penal Code, the essential element of intent to kill the
victim must be clearly established in order to convict one of the crime of homicide. The trial court
ruled that there was intent to kill on the part of the appellant, considering “the number and location
of the stab wounds inflicted upon the victim (Flaviana)—two stab wounds on the lower right breast,
and the weapon used by the accused which was a double bladed dagger measuring about 13 inches
long including the handle.”
Taking into consideration the number and location of the stab wounds sustained by Flaviana, this
court believes, as aptly observed by the trial court, that there was intent to kill when appellant
attacked and wounded Flaviana. We, therefore uphold the ruling of the trial court finding appellant
guilty of frustrated homicide in having attacked Flaviana.
The trial court ruled that the appellant was entitled to two (2) mitigating circumstances; the first, for
having acted upon an impulse so powerful as naturally to have produced passion or obsfuscation
(as provided for in Article 13, paragraph No. 6, of the Revised Penal Code) and, the second, for
voluntary surrender (Article 13, paragraph No. 7 of the same Code).
The records show that on 22 February 1987 appellant went to the house of the Saldivia family after
being informed that he would find there his wife (Marianita) together with her alleged paramour,
Rolito Saldivia. The stabbing incident happened, according to the trial court, because appellant
acted upon an impulse so powerful as naturally to have produced passion or obsfuscation. The
evidence further discloses that after appellant stabbed the three (3) victims, he voluntarily went to
the Taytay Police Station on that same night of 22 February 1987 and surrendered to Police Captain
Davan.
We uphold the ruling of the trial court in appreciating the two (2) mitigating circumstances above-
cited.
WHEREFORE, the decision of the Regional Trial Court of Antipolo, Rizal, Branch 73, dated 27
March 1991, rendered in Criminal Cases Nos. 3081, 3082, and 3094 is hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 74515. June 14, 1989.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERTITO TRIGO, accused-appellant.
Evidence; Witnesses; The testimony of one witness if credible and positive and if it satisfies the
court beyond reasonable doubt, is sufficient to convict.—The issue in this case hinges on the
credibility of prosecution witness Marcos Fuentes. It is a well-established rule that in criminal
prosecutions on the matter of credibility of witnesses, the findings of the trial court are given
weight and the highest degree of respect by appellate courts because the former is in a better
position to decide the question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial (People vs. Kintuan, G.R. 84100, December 3,
1987, 156 SCRA 195). We find no strong and cogent reason to depart from this established rule.
The testimony of Marcos Fuentes which stated that he saw appellant stab his wife (p. 4, TSN,
March 4, 1984) was clear and positive. There was no showing of any ulterior motive on his part to
falsely charge the accused-appellant. The testimony of only one witness, if credible and positive
and if it satisfies the court beyond reasonable doubt is sufficient to convict (see People v. Luces, L-
60744, November 25, 1983,125 SCRA 813).
Criminal Law; Parricide; Motive is not essential if the identity of accused is positively proved by
the prosecution through its eye-witness.—Appellant also submits that the prosecution did not prove
the motive of appellant for killing his wife. The law is well-settled that motive is relevant only

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where the identity of the person accused of having committed the crime is in dispute, where there
are no eyewitnesses, and where suspicion is likely to fall upon a number of persons. In the case at
bar, the identity of the accused was positively proved by the eyewitness. Hence, motive is irrelevant
(People v. Dueno, G.R. No. L-31102, May 5, 1979, 90 SCRA 23).
Evidence; Findings of fact of trial court should not be set aside unless there is proof that it
misapplied some facts of weight and substance as would alter the result of the proceedings.—The
direct and circumstantial evidence established at the trial sufficiently prove the guilt of accused-
appellant. As aforestated, the trial court’s findings of fact are generally given due respect. Appellant
has the burden, therefore, to convince this Court that a departure from this rule is justified upon
satisfactory showing that the trial court misapplied some facts of weight and substance as would
alter the result of the proceedings. He failed to do so.
Criminal Law; Mitigating Circumstances; Voluntary Surrender; The fact that accused went to the
police station to report the stabbing of his wife and to seek police protection does not constitute
voluntary surrender that will mitigate his liability.—The court a quo appreciated in favor of the
accused the mitigating circumstance of voluntary surrender. We do not agree with this finding. The
accused himself testified that he went to the police station to report that his wife was stabbed by
Buaco and to seek protection as he feared that Buaco would also stab him. Clearly, his action
cannot in any manner be considered as amounting to voluntary surrender. In any event, the penalty
of reclusion perpetua was correctly imposed by the said court.
APPEAL from the judgment of the Regional Trial Court of Roxas City, Br. 16.
The Office of the Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MEDIALDEA, J.:
For the death of his wife, Alicia Dequina Trigo, the accused-appellant, Bertito Trigo, was charged
with the crime of PARRICIDE in Criminal Case No. C-1790 of the Regional Trial Court, Branch
16, at Roxas City, and under the information which reads:
“The undersigned accuses BERTITO TRIGO of the crime of Parricide, committed as follows:
“That on or about 9:00 o’clock in the morning in May 30, 1983 at New Road St., Municipality of
Pontevedra, Province of Capiz, Philippines, within the jurisdiction of this Court, the above-named
accused, wilfully, unlawfully and feloniously, with evident premeditation, that is, having conceived
and deliberated to kill his estranged wife ALICIA DEQUINA TRIGO, with whom he was united in
lawful wedlock, assault and stab his said wife with a knife (sevillana), thereby inflicting stab
wounds on the different parts of her body which caused her death thereafter.
“CONTRARY TO LAW.” (p. 11, Rollo)
Upon being arraigned on January 9, 1984, Trigo entered the plea of not guilty to the offense
charged. Trial ensued. On September 16, 1985, the court a quo rendered its decision convicting
Trigo of the offense charged, the dispositive portion of which reads:
“WHEREFORE, this Court finds the accused Bertito Trigo, 32 years old, guilty beyond reasonable
doubt of the crime of Parricide for killing his estranged wife, Alicia Dequina Trigo, on May 30,
1983 in Pontevedra, Capiz, and hereby sentences him, appreciating the mitigating circumstance of
voluntary surrender without any aggravating circumstance offsetting it, to the penalty of
RECLUSION PERPETUA (Revised Penal Code, Articles 246; 63(3), as (sic) to indemnify the
heirs of his wife, his children in the care of the children’s grandmother, Reynalda dela Fuente, or
whoever has custody over them, in the sum of P12,000.00, with the accessory penalties of the law.
Accused is given the benefit of Article 29 of the Revised Penal Code, as amended.

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“Costs against the accused.
“SO ORDERED.” (p. 30, Rollo)
Not satisfied with the decision, Trigo appealed and assigned the following errors:
“I. THE COURT A QUO ERRED IN RELYING HEAVILY ON THE INCREDIBLE TESTIMONY
OF THE PROSECUTION WITNESS MARCOS FUENTES AND IN ABSOLUTELY
DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.
“II. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.” (p. 1, Appellant’s Brief; p. 44, Rollo)
The records show that the accused and his wife were married by the parish priest of Panitan, Capiz
on January 19, 1972 (Exhibits “D” to “D-3”, p. 256, Records).
The prosecution’s version of the killing is based mainly on the testimony of Marcos Fuentes. He
testified, inter alia, that he knew the spouses Bertito and Alicia Trigo because he bought from them
their house located at Sitio Umigon, Brgy. Tincupon, Panitan, Capiz, in 1982; that at about nine
o’clock in the morning of May 30, 1983, he was at the market of the town of Pontevedra; that he
met Alicia Trigo at the said market and even greeted her; that he did not notice at the time whether
Alicia was with a companion or not; that after awhile, a commotion took place; that when he stood
up he saw Bertito Trigo stabbing Alicia; that he saw blood spurting from Alicia’s left chest; that
Bertito Trigo was at the time in front of Alicia and holding the latter with one of his arms; that there
were no other persons near Alicia when he saw the latter bleeding; that Alicia later fell on the
ground; and that he was about 50 meters from where the incident took place.
The body of Alicia Trigo was examined by Dr. Ma. Roselle B. Gedang, resident physician of the
Provincial Hospital at Bailan, Pontevedra, Capiz. The medical certificate dated February 4, 1984
indicated the following pertinent physical findings, to wit:
“Multiple Stab wounds:
Right arm anterior aspect middle third about 2 cm. thru and thru;
Left arm anterior aspect—proximal third about 01 cm.;
Left forearm lateral aspect about 3 cm. thru and thru left side of the left nipple chest;
Left chest wall—left side of the nipple and slightly below intering the 4th intercostal space the
penetrating perforating the heart;
Right hypogastric area about 1 cm. superficial;
Right lumbar area above the anterior superior iliac spine about 2.5 cm. mid acillary line superficial;
Upon admission, patient was restless, chyne strokes respiration noted, B/P not appreciated,
pronounced dead.
Cause of Death:
Cardio respiratory arrest secondary to hemorrhage.” (p. 255, Records)
Accused, upon the other hand, denied that he killed his wife Alicia. According to him, he and his
wife were at the market to buy some goods for their store; that while they were walking, he saw
Orline Buaco draw from his waist a weapon; that Buaco tried to stab him but he (accused) was able
to evade the blow; that it was his wife who got hit by the blow delivered by Buaco; and after his
wife was hit, Buaco successively stabbed her. He also claimed that Orline Buaco is also a resident
of Barangay Tincupon; that Buaco had previously fired shots at the house of accused and his family
on November 19, 1982 because the accused had not paid his debt to Buaco in the sum of
P1,000.00; that such incident was recorded at the police department and a complaint was filed by
him against Buaco with the Municipal Court of Panitan (TSN, February 13, 1985, pp. 51-62,
Records).
Appellant submits that the trial court should not have relied on the testimony of the prosecution

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witness Marcos Fuentes in view of the inconsistencies and improbabilities found in his testimony.
Appellant also asserts that there is no evidence in the records to show that he had a motive to kill
his wife. After a careful review of the records, We find the appeal to be without merit.
The issue in this case hinges on the credibility of prosecution witness Marcos Fuentes. It is a well-
established rule that in criminal prosecutions on the matter of credibility of witnesses, the findings
of the trial court are given weight and the highest degree of respect by appellate courts because the
former is in a better position to decide the question, having heard the witnesses themselves and
observed their deportment and manner of testifying during the trial (People vs. Kintuan, G.R.
84100, December 3, 1987, 156 SCRA 195). We find no strong and cogent reason to depart from
this established rule. The testimony of Marcos Fuentes which stated that he saw appellant stab his
wife (p. 4, TSN, March 4, 1984) was clear and positive. There was no showing of any ulterior
motive on his part to falsely charge the accused-appellant. The testimony of only one witness, if
credible and positive and if it satisfies the court beyond reasonable doubt is sufficient to convict
(see People v. Luces, L-60744, November 25, 1983, 125 SCRA 813).
We affirm the trial court’s finding when it declared that even as Marcos Fuentes sort of wavered at
the outset in his testimony, his declaration was straight-forward even during the cross-examination;
and that his court testimony is a reiteration of his declaration in his sworn statement supporting the
complaint (p. 29, Rollo).
Appellant also submits that the prosecution did not prove the motive of appellant for killing his
wife. The law is well-settled that motive is relevant only where the identity of the person accused of
having committed the crime is in dispute, where there are no eyewitnesses, and where suspicion is
likely to fall upon a number of persons. In the case at bar, the identity of the accused was positively
proved by the eyewitness. Hence, motive is irrelevant (People v. Dueno, G.R. No. L-31102, May 5,
1979, 90 SCRA 23).
Further, We are not persuaded by appellant’s claim that it was not him but a certain Orline Buaco
who stabbed his wife. In rejecting this defense, the trial court correctly observed significant
factors/circumstances surrounding the incident which be-lie appellant’s defense that it was not he
who stabbed and killed Alicia Trigo. Firstly, there is great improbability of Orline Buaco’s alleged
first attack hitting his wife if the said attack were aimed at accused. Secondly, there is greater
improbability of the deceased Alicia Trigo sustaining multiple stab wounds if it were the appellant
whom Buaco wanted to stab as then the latter would have aimed all the five other thrusts of the
weapon at the accused and not at the deceased Alicia Trigo. Thirdly, there was failure not only to
shield her from the attack but also failure to retaliate within the duration of the next five attacks
upon the deceased. Fourthly, knowing that his wife was already seriously wounded, the appellant
would not have left her alone in the care of a policeman especially after Buaco had already fled,
and there was no more danger that the latter might attack him. Fifthly, after appellant had secured
police protection at the police station, appellant never returned to personally attend to his wife and
to ascertain if she received timely medical attention at the provincial hospital at Bailan, Pontevedra.
All these facts and circumstances were considered by the trial court to bolster one thing—that
accused was really estranged from his wife and it was he who killed her.
The direct and circumstantial evidence established at the trial sufficiently prove the guilt of
accused-appellant. As aforestated, the trial court’s findings of fact are generally given due respect.
Appellant has the burden, therefore, to convince this Court that a departure from this rule is
justified upon satisfactory showing that the trial court misapplied some facts of weight and
substance as would alter the result of the proceedings. He failed to do so.
The court a quo appreciated in favor of the accused the mitigating circumstance of voluntary

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surrender. We do not agree with this finding. The accused himself testified that he went to the
police station to report that his wife was stabbed by Buaco and to seek protection as he feared that
Buaco would also stab him. Clearly, his action cannot in any manner be considered as amounting to
voluntary surrender. In any event, the penalty of reclusion perpetua was correctly imposed by the
said court.
The indemnity in the amount of P12,000.00 ordered by the court aquo to be paid by the accused-
appellant to the heirs of the deceased Alicia Trigo is increased to P30,000.00.
ACCORDINGLY, with the modification above indicated, the judgment appealed from is affirmed
in all other respects, with costs.
SO ORDERED.
No. L-68699. September 22, 1986. *
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES MAGDUENO, accused-
appellant.
Evidence; The identification of the accused by three witnesses as the gunwielder could not be
doubted, the accused being a stranger to the place and not known to the witnesses and the crime
was committed in broad daylight.—The appellant was a stranger in the town and was not known by
the three eyewitnesses before the incident. However, he was readily and positively identified by the
three eyewitnesses upon confrontation. They could not have mistaken the appellant’s identity
because they had a clear view of him at the time and the incident happened in broad daylight. Any
doubt of his identity is erased by the testimony of Ernesto Mari Gonzales, one of the eyewitnesses,
to the effect that the man he saw pointing a gun to the late Fiscal Dilig had a scar on his left temple
below his left eyebrow. The appellant, as observed by the lower court, has a scar below his left eye
and above the left eye at the eyebrow in the shape of a letter “J” and at the end of the left eye
somewhat shaped like the letter “V”, perpendicular to the eyebrow.
Same; No motive was shown why the identifying witnesses would not tell the truth.—The defense
failed to show any motive on the part of these eyewitnesses to falsely accuse the appellant as
having committed the crime. The appellant’s accusation that Cynthia Canto, one of the
eyewitnesses testified against him “to claim a reward” is not supported by any evidence on record.
Same; Alibi is indefensible vs. positive identification, particularly where physical presence of
accused at crime scene not impossible.—In the light of the positive identification of the appellant as
the perpetrator of the crime, his defense of alibi necessarily falls. His assertion that on the day of
the incident, he was at the house of Leonardo Senas in Plaridel, Aborlan, Palawan deserves no
credit. The appellant has not shown that it was impossible for him to have been at the place of the
incident at the time the crime was committed. Moreover, as the lower court observed a bus ride
from Aborlan, Palawan, would take only a little more than two hours to the city.
Same; Where victim was just about to drive his jeep when shot, treachery is present.—The
appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was still seated
in his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino P. Ynzon, who
performed the autopsy, on the victim; both wounds were fatal and that “death will definitely occur.”
Immediately after the shooting, the appellant fled still holding his firearm. The manner of the
execution was such that the appellant deliberately and consciously adopted means and ways of
committing the crime and insured its execution without risk to himself arising from any defense
Fiscal Dilig might make. The two conditions necessary for treachery to exist are present.
Same; Fact that appellant called out “fiscal” before shooting him does not negate treachery as
purpose was only to assure himself that he was shooting the correct person.—The fact that the
appellant called out, “Fiscal” before shooting the victim does not negate the presence of treachery

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in the commission of the crime. Since the ap-pellant was a hired killer, he wanted to insure that he
was shooting the correct person. When Dilig turned his face to find out who was calling him, the
appellant fired immediately rendering no opportunity for Dilig to defend himself.
Same; Appellant is a hired killer from Manila, especially im-ported to Palawan to kill Fiscal Dilig.
—Magdueño himself testified that he was formerly an inmate of Muntinglupa who was later
transferred to Sta. Lucia Sub-Colony and released in 1973. He stated that after his release, he lived
with relatives in Divisoria and worked with an aunt as sidewalk vendor. He explained his presence
in Palawan on the day of the killing by claiming that sometime in 1979 Leonardo Senas
accidentally passed by their place in Tabora and suggested that the appellant bring assorted
merchandize to Aborlan, Palawan where Senas resides. He, therefore, left for Palawan on board the
M/V Leon on September 28, 1980 (or shortly before the killing) and visited Mauricio de Leon at
Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta. Lucia, spent a night with a Mr. Obid
at the Inagawan Sub-Colony and proceeded to Aborlan, Palawan. He claims that at the time of the
shooting, he was in the house of Senas in Aborlan and learned only from the radio about the killing
of Fiscal Dilig.
Same; Hired-gun killing evidence of premeditation and reward.—We have carefully examined the
records and considering the testimony of the three eyewitnesses to the shooting, their positive and
categorical identification of the appellant as the assailant, the corroborative evidence on the
circumstances of the killing, and the more than coincidental presence of Magdueño in Palawan
when he should have been in Manila, we see no error in the lower court’s finding that the appellant
committed the crime of murder qualified by treachery and evident premeditation and aggravated by
price and reward Magdueño, in effect, also admitted that he was a recidivist at the time of his trial.
However, recidivism was not alleged in the information and makes no difference in the
determination of the penalty in this case.
Same; Commission of crime with insult to public authority is not aggravating where the victim is a
public authority (a Fiscal).—However, the aggravating circumstance of commission of a crime with
insult to public authority does not seem to be borne by the records. For this aggravating
circumstance to be considered it must not only be shown that the crime was committed in the
presence of the public authority but also that the crime was not committed against the public
authority himself. (U.S. v. Rodriguez, 19 Phil. 150; People v. Rizal, 103 SCRA 282). In the instant
case Fiscal Dilig, the public authority involved in the crime, was the victim. Hence, the lower court,
erred in including commission of the crime with insult to public authority as an aggravating
circumstance.
AUTOMATIC REVIEW of the decision of the Regional Trial Court of Palawan and Puerto
Princesa City.
Donato T. Faylona for accused-appellant.
PER CURIAM:
Before us for automatic review is the decision of the Regional Trial Court of Palawan and Puerto
Princesa City finding accused-appellant Hermogenes Magdueño guilty beyond reasonable doubt of
the crime of Murder qualified by treachery and evident premeditation and aggravated by price or
reward and by the crime being committed in contempt of/or with insult to public authority. The
court sentenced Magdueño to suffer the penalty of DEATH with all the accessory penalties
provided by law and to pay the costs; and to indemnify the heirs of the victim, Fernando M. Dilig
in the sum of P130,000.00 as actual damages and P20,000.00 as moral damages.

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The amended information charged Hermogenes Magdueño, Apolinario Sison, Teodorico Ramirez,
Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay with having committed the crime of
murder as follows:
“That on or about the 15th day of October, 1980, and for sometime prior and subsequent thereto, in
the City of Puerto Princesa, Philippines and in Aborlan, Province of Palawan and within the
jurisdiction of this Honorable Court, the said accused, conspiring and confederating together and
mutually helping one another, did then and there wilfully, unlawfully and feloniously have in their
possession, custody and control a firearm, to wit: one (1) 9MM automatic pistol, without having
secured the necessary license and/or permit to possess the same from the proper authorities; that at
the aforementioned time and place while the said accused were in possession of the afore-described
firearm, conspiring and con-federating together and mutually helping one another, with treachery
and evident premeditation, with intent to kill and while armed with said firearm, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one FERNANDO M. DILIG, City
Fiscal of Puerto Princesa City, thereby inflicting upon the latter mortal wounds which were the
direct and immediate cause of his death, to the damage and prejudice of his death, (sic) to the
damage and prejudice of his heirs in the amount of TWO HUNDRED FIFTY THOUSAND
(P250,000.00) PESOS, Philippine Currency.
“CONTRARY TO LAW and committed with the aggravating circumstance of treachery, evident
premeditation that the crime was committed in consideration of a price, reward or promise; and that
the crime was committed in contempt of or with insult to public authorities.”
The facts established by the prosecution and accepted by the lower court as basis for the decision
are summarized as follows:
“On October 15, 1980, a few minutes past 8:00 o’clock in the morning, as soon as the late Fiscal
Fernando M. Dilig had placed himself at the driver’s seat inside his jeep parked near his house at
the corner Roxas and D. Mendoza Streets, Puerto Princesa City, all of a sudden, two successive
gunshots burst into the air, as the gunman coming from his left side aimed and poured said shots
into his body, inflicting two fatal wounds (Exhibit N) that instantaneously caused his death. The
autopsy report of Dr. Rufino P. Ynzon, Puerto Princesa City Health Officer, described the wounds
as follows:
“ ‘1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion collar, 0.3 cm. in
width almost evenly distributed around the gunshot wound, located at the lateral aspect, neck, left,
lower portion, directed medially, slightly anteriorly, and upwards penetrating the subcutaneous
tissues and muscles, involving the left lateral portion of the esophagus, then the right lateral portion
of the hyroid bone, the right common Carotid Artery, the right jugular vein, and piercing the sterno-
cleido Mastoid Muscle, then making a wound (exit), 1.3 cm. located at the lateral aspect, neck,
right, about 1½ inches below the angle of the mandible.’
“ ‘2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion Collar, 0.3 cm. in
width almost evenly distributed around the gunshot wound, located at the lumbar region, left about
2 inches posteriorly from the Mid-axillary line directed medially, slight anteriorly and slightly
upwards penetrating the sub-cutaneous tissues and muscles, then to the abdominal cavity and
involving the upper portion of the descending colon, and the two loops of small intestines, then
piercing the right abdominal muscles, making a wound, (exit), 1.5 cm. located at the lumbar region,
right, about 1½ inches anterior to the mid-axillary line, right.’
“Three witnesses positively identified the assailant as accused Hermogenes Magdueño: (1) Elena
Adion Lim, while sitted (sic) at the gate of her fence, about 20 to 30 meters away from the house of
Fiscal Dilig, saw the gunman coming from where she heard two successive shots when he passed

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by her house, bringing a short gun in his right hand and a clutch bag while hurriedly proceeding
towards Liwanag Street. On October 30, 1980, she identified accused Magdueño as the man she
saw that early morning of October 15, 1980; (2) Ernesto Mari Y Gonzales, a security guard of the
Malaria Eradication Service, this City, while on board a tricycle, passing in front of the house of
Fiscal Dilig, on his way home, likewise heard the two gunshots coming from the direction of Fiscal
Dilig’s house, prompting him to order the driver to stop. He described the gunman as wearing a
white polo shirt, blue pants and a hat, still holding the gun pointed at Fiscal Dilig. When the
gunman turned to his left side, Mari saw a scar on his left temple below his left eyebrow. The man
was still holding the gun in his right hand while walking in a limping manner towards Mendoza
Street. On the witness chamber, he positively identified accused Hermogenes Magdueño as the
gunman; (3) Cynthia Canto, a taxi dancer, residing at Jose Abad Santos, this City, while in front of
the store of Aling Charing near the house of Fiscal Dilig, waiting for a tricycle, saw the gunman
standing by for a quite time, then went nearer Fiscal Dilig who was then sitted (sic) on the driver’s
seat of his jeep and fired two successive shots to the latter, exiting towards Mendoza Street. She
could not be mistaken that accused Hermogenes Magdueño was the gunman and when she came
face to face with him at the invitation of the police in Plaridel, Aborlan, Palawan, she readily
identified Magdueño as the killer.
Magdueño also executed an extra-judicial confession wherein he admitted that he killed Fiscal
Dilig for a price or reward and implicated Leonardo Senas and Mauricio de Leon to the
commission of the crime. However, both Senas and de Leon were later dropped from the amended
information for lack of a prima facie case against them.
All the other accused were acquitted for insufficiency of evidence.
Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil aspects of the
case. She testified on the actual damages the family incurred and the moral damages she suffered as
a result of the death of Fiscal Dilig.
The dispositive portion of the trial court’s decision states:
“WHEREFORE, judgment is hereby rendered finding:
“1) Accused Hermogenes Magdueño guilty beyond reasonable doubt of the crime of murder
qualified by treachery and evident premeditation and aggravated by price or reward and that the
crime was committed in contempt of/or with insult of public authority, and hereby sentences him to
suffer the SUPREME PENALTY OF DEATH, with all the accessory penalties provided for by law,
and to pay the costs. He is likewise ordered to indemnify the heirs of the late Fernando M. Dilig in
the sum of P130,000.00, as actual damages and P20,000.00, as moral damages.
“2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay, Apolinario Sison and
Alfredo Guevarra, not guilty of the crime of murder and hereby acquits them of the charge against
them. The bailbond posted for the provisional liberty of accused Alejandro Guevarra, Teodorico
Ramirez, Jr., Edgardo Caabay and Alfredo Guevarra is hereby ordered cancelled and the immediate
release of accused Apolinario Sison is likewise ordered unless held for any other cause.”
The appellant assigns the following errors allegedly committed by the lower court:
I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.
II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED’S EXTRA-
JUDICIAL CONFESSION.
We are convinced from the records that the appellant was the assailant of the late Fiscal Fernando
Dilig. The lower court did not err as alleged.
The appellant was a stranger in the town and was not known by the three eyewitnesses before the
incident. However, he was readily and positively identified by the three eyewitnesses upon

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confrontation. They could not have mistaken the appellant’s identity because they had a clear view
of him at the time and the incident happened in broad daylight. Any doubt of his identity is erased
by the testimony of Ernesto Mari Gonzales, one of the eyewitnesses, to the effect that the man he
saw pointing a gun to the late Fiscal Dilig had a scar on his left temple below his left eyebrow. The
appellant, as observed by the lower court, has a scar below his left eye and above the left eye at the
eyebrow in the shape of a letter “J” and at the end of the left eye somewhat shaped like the letter
“V”, perpendicular to the eyebrow.
The defense failed to show any motive on the part of these eyewitnesses to falsely accuse the
appellant as having committed the crime. The appellant’s accusation that Cynthia Canto, one of the
eyewitnesses testified against him “to claim a reward” is not supported by any evidence on record.
In the light of the positive identification of the appellant as the perpetrator of the crime, his defense
of alibi necessarily falls. His assertion that on the day of the incident, he was at the house of
Leonardo Senas in Plaridel, Aborlan, Palawan deserves no credit. The appellant has not shown that
it was impossible for him to have been at the place of the incident at the time the crime was
committed. Moreover, as the lower court observed a bus ride from Aborlan, Palawan, would take
only a little more than two hours to the city.
Treachery in the commission of the crime is clearly established by the record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was still
seated in his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino P. Ynzon,
who performed the autopsy, on the victim; both wounds were fatal and that “death will definitely
occur.” Immediately after the shooting, the appellant fled still holding his firearm.
The manner of the execution was such that the appellant deliberately and consciously adopted
means and ways of committing the crime and insured its execution without risk to himself arising
from any defense Fiscal Dilig might make. The two conditions necessary for treachery to exist are
present. (People v. Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909; People v. Mahusay,
138 SCRA 452; and People v. Radomes, 141 SCRA 548).
The fact that the appellant called out, “Fiscal” before shooting the victim does not negate the
presence of treachery in the commission of the crime. Since the appellant was a hired killer, he
wanted to insure that he was shooting the correct person. When Dilig turned his face to find out
who was calling him, the appellant fired immediately rendering no opportunity for Dilig to defend
himself.
The attendant circumstance of treachery qualifies the crime to murder. The first assigned error is
without merit.
The second assignment of error questions the trial court’s finding that the extra-judicial confession
was admissible.
The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to explain why
there was compliance with its mandate. The court commented on the imbalance present during
custodial interrogations, the strange and unfamiliar surroundings where seasoned and well-trained
investigators do their work, and then rejected the appellant’s allegations that it was extracted
through violence and torture.
The trial court stated:
“But a cursory evaluation of the evidence shows that accused Magdueño was properly informed of
his constitutional rights to remain silent and to counsel, and that any statement he might make
could be used against him. He was allowed to communicate with, and was even given, a lawyer in
the person of Atty. Clarito A. Demaala, Jr. of the CLAO in this City. As certified to by Atty.
Demaala, Jr., he accused was placed under custodial investigation. Even before it started, Atty.

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Demaala interviewed the accused and informed him of his constitutional rights. NBI Officer-in-
Charge Celso A. Castillo, affirmed this particular fact. He was allowed to converse with his counsel
in his cell and the statement thus obtained from him, signed and subscribed by him as true, whether
inculpatory or exculpatory, in whole and in part, shall be, as it is hereby, considered admissible in
evidence. (Morales, et al. v. Ponce Enrile, et al. L-61016; Moncupa, Jr. v. Ponce Enrile, et al. L-
61107, April 26, 1983.) It is presumed voluntary and no contrary evidence was shown. (People v.
Dorado, L-23464, 36 SCRA 452), There is spontaneity and voluntariness in his extra-judicial
confession which contains details that cannot be furnished by the investigators on how the killing
was planned, the reward to be received and the scenario of the killing. (People v. Opiniano, 22
SCRA 177). Furthermore, it was corroborated by other evidence which recites the true sequence of
events. (People v. Pontanosa, 20 SCRA 249).
“With the admission of, and conformably to what the accused Hermogenes Magdueño alleged in,
his extra-judicial confession, the court finds that accused Magdueño was hired by a ‘mysterious
mastermind’ with whose representative he agreed to kill Fiscal Dilig for a fee of P80,000.00, of
which he will receive a clean bill of P30,000.00. Sometime during the last week of September,
1980, at his residence in Divisoria, Metro Manila, he agreed to the proposition. The representative
of the mastermind,’ Leonardo Senas, gave him the advance payment of P5,000.00, with the balance
of P25,000.00 to be paid after he accomplished the mission. As to the gun he used, it was a 9mm.
automatic revolver. This confirms the finding of the NBI. x x x.”
The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his appearance as counsel
for the accused during the interrogation and was present from the start of the investigation until it
was finished
The evidence showing that the appellant was a contract or hired killer especially contacted in
Manila to do a job in Puerto Princesa is strengthened by testimony.
Magdueño himself testified that he was formerly an inmate of Muntinglupa who was later
transferred to Sta. Lucia SubColony and released in 1973. He stated that after his release, he lived
with relatives in Divisoria and worked with an aunt as sidewalk vendor. He explained his presence
in Palawan on the day of the killing by claiming that sometime in 1979 Leonardo Senas
accidentally passed by their place in Tabora and suggested that the appellant bring assorted
merchandize to Aborlan, Palawan where Senas resides. He, therefore, left for Palawan on board the
M/V Leon on September 28, 1980 (or shortly before the killing) and visited Mauricio de Leon at
Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta. Lucia, spent a night with a Mr. Obid
at the Inagawan SubColony and proceeded to Aborlan, Palawan, He claims that at the time of the
shooting, he was in the house of Senas in Aborlan and learned only from the radio about the killing
of Fiscal Dilig.
One of the prosecution witnesses, Andres Factora, testified that he was formerly an inmate in
Muntinglupa since October 26, 1955 and that while serving a sentence for triple death penalty, he
met Magdueño, a leader of the Sputnik Gang, also on death row. Magdueño was nicknamed
“Mande” and served as an attendant in the prison hospital. Factora stated that Magdueño was
known as a TIRADOR or killer while in prison. He further testified that while he was in Sta. Lucia
Sub-Colony in 1980, he saw Magdueño on October 12 or 13 at the gate of Palawan Apitong. The
reason given by the appellant for his being there was that he was in the business of bangus fry.
There is plenty of other testimony about the participation of the appellant and the other accused and
the defenses they presented. The trial court summarized in its decision the testimonies of sixteen
(16) prosecution witnesses and twentyone (21) witnesses for the defense.
We have carefully examined the records and considering the testimony of the three eyewitnesses to

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the shooting, their positive and categorical identification of the appellant as the assailant, the
corroborative evidence on the circumstances of the killing, and the more than coincidental presence
of Magdueño in Palawan when he should have been in Manila, we see no error in the lower court’s
finding that the appellant committed the crime of murder qualified by treachery and evident
premeditation and aggravated by price and reward. Magdueño, in effect, also admitted that he was a
recidivist at the time of his trial. However, recidivism was not alleged in the information and makes
no difference in the determination of the penalty in this case.
However, the aggravating circumstance of commission of a crime with insult to public authority
does not seem to be borne by the records. For this aggravating circumstance to be considered it
must not only be shown that the crime was committed in the presence of the public authority but
also that the crime was not committed against the public authority himself. (U.S. v. Rodriguez, 19
Phil. 150; People v. Rizal, 103 SCRA 282). In the instant case Fiscal Dilig, the public authority
involved in the crime, was the victim. Hence, the lower court, erred in including commission of the
crime with insult to public authority as an aggravating circumstance.
Considering the presence of an aggravating circumstance and the absence of any mitigating
circumstance attending the offense, the lower court imposed the proper penalty on the appellant.
The crime in this case is a particularly heinous one. The appellant is shown by the records as a
heartless contract killer. Upon being paid for a job, he had no compunctions about traveling all the
way to Palawan from Manila, stalking and liquidating an unwary victim whose only fault was to
perform his duties faithfully.
WHEREFORE, the lower court’s judgment is hereby AFFIRMED.
SO ORDERED.
G.R. No. 95320. September 4, 1991.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BALTAZAR LACAO, SR., PATRIA
LACAO and TRINIDAD LACAO MANSILLA, accused-appellants.
Criminal Procedure; Evidence; Self-Defense; By pleading self-defense, Baltazar Lacao, Sr.
necessarily admits that he killed the victim and he is thus duty-bound to prove the essential
requisites for this justifying circumstance.—Appellant Baltazar Lacao, Sr., by pleading self-defense
necessarily admits that he killed the victim and he is thus duty-bound to prove the essential
requisites for this justifying circumstance. This circumstance he has to prove by clear and
convincing evidence, the onus probandi having shifted to him.
Same; Same; Same; There can be no self-defense unless it is proven that there has been unlawful
aggression on the part of the person injured or killed by the accused.—Said appellant also sought to
buttress his defense by claiming that Cpl. Inocencio, prior to the stabbing, fired his gun at the
former but the gun did not fire. This subterfuge is refuted by the unequivocal statements of the
prosecution witnesses that the victim never removed his gun from his waistband, and that the
revolver only fell when appellants pushed the deceased. Significantly, this story of appellant
Baltazar Lacao, Sr. was never corroborated by any evidence of unlawful aggression on the part of
the victim. The first requisite of self-defense is indispensable. There can be no self-defense unless it
is proven that there has been unlawful aggression on the part of the person injured or killed by the
accused. If there is no unlawful aggression, there is nothing to prevent or to repel. The second
requisite of self-defense will have no basis.
Same; Same; Alibi; In order to prosper, alibi must be convincing as to preclude any doubt that the
accused could not have been physically present at the place of the crime or its vicinity at the time of
the commission.—Appellants Patria Lacao and Trinidad Mansilla were positively identified by all
the prosecution witnesses as the ones who hit the victim with stools several times while the other

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three (3) male accused were stabbing the victim with their knives. In their defense, Patria and
Trinidad sought refuge in the impuissant sanctuary of alibi. Trite as it is, we have to impress on
appellants once again the doctrine that alibi is the weakest defense an accused can concoct. In order
to prosper, it must be so convincing as to preclude any doubt that the accused could not have been
physically present at the place of the crime or its vicinity at the time of the commission. In the face
of positive identification of the accused by eyewitnesses, an alibi crumbles like a sand fortress.
Same; Same; Appellants Patria Lacao and Trinidad Mansilla were positively identified by all the
eyewitnesses for the prosecution who were without any motive to falsely testify and implicate or
point an unerring finger at the three accused inside the courtroom as the perpetrators of the crime.
—The trial court definitely held that appellants “Patria Lacao and Trinidad Mansilla were
positively identified by all the eyewitnesses for the prosecution who were without any motive to
falsely testify and implicate or point an unerring finger at the three accused inside the courtroom as
the perpetrators of the crime. Their disavowal of participation in the gory killing of Cpl. Inocencio
are selfserving and feeble attempts to disprove complicity and to which the court gives scant
consideration.” Indeed, the participatory acts of said appellants having been testified to so clearly in
detail by three (3) eyewitnesses, to refute the same by the discreditable defense of alibi would be an
evidential travesty.
Same; Same; Where considerations of visibility are favorable and the witnesses do not appear to be
biased against the accused their assertions as to the identity of the malefactor should be normally
accepted.—Identification of the culprits in this case was not difficult because the place where the
crime occurred was sufficiently lighted. Where considerations of visibility are favorable and the
witnesses do not appear to be biased against the accused, their assertions as to the identity of the
malefactor should be normally accepted. This is more so when the witness is the victim or his near
relative because these witnesses usually strive to remember the faces of the assailants.
Same; Same; Trial court gave credence to the prosecution’s identification of the appellants as the
culprits.—Moreover, the trial court gave credence to the prosecution’s identification of the
appellants as the culprits. Subject to exceptions which do not obtain in this case, the trial court is in
a better position to decide this question, having seen and heard the witnesses themselves and
observed their deportment and manner of testifying during the trial.
Same; Same; Conspiracy; The same degree of proof required to establish the crime is required to
support a finding of conspiracy that is proof beyond reasonable doubt.—True, conspiracy is always
predominantly mental in composition because it consists primarily of the meeting of minds and,
generally, complicity may be inferred from circumstantial evidence, i.e., the community of purpose
and the unity of design in the contemporaneous or simultaneous peformance of the act of assaulting
the deceased. However, conspiracy must be proved with as much certainty as the crime itself; The
same degree of proof required to establish the crime is required to support a finding of conspiracy,
that is, proof beyond reasonable doubt.
Same; Same; Same; Same; The spontaneity of their respective reactions albeit resulting in an attack
where they all participated rules out the existence of a conspiracy.—The rapidity in the succession
of such consecutive acts of the assailants, with the last four coming instinctively, as it were, to the
aid of the original assailant, cannot but produce the conclusion that their actuations were activated
without prior or apparent deliberation. lt does not even appear that there was a call or a signal from
one to the other to join the attack on Cpl. Inocencio, much less is there even an intimation that they
had such a murderous intent or cabal at any time prior thereto. The spontaneity of their respective
reactions, albeit resulting in an attack where they all participated, rules out the existence of a
conspiracy.

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Same: Same: Qualifying Circumstance; Treachery: There is treachery when the offender commits
any of the crimes against persons employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution without risk to himself arising from the
defense which the offended party might make.—Anent the issue on whether or not treachery was
properly appreciated as a qualifying circumstance, we agree with the holding of the court below
since this was sufficiently proven by the evidence. It is elementary hornbook knowledge that there
is treachery when the offender commits any of the crimes against persons employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.
Same; Same; Same; Same; Treachery was thus correctly appreciated against all appellants, the use
of superior strength being absorbed as an integral part of the treacherous mode of commission.—In
the present case, the deceased was stabbed without warning the moment he unsuspectingly released
the hand of Baltazar Lacao II. So sudden and unanticipated was the attack that the victim was given
no chance to defend himself. Then herein appellants, although apparently acting without prior
agreement, also instantly and all together attacked him. Even if their aforesaid acts were
independently performed on their individual initiatives, such concerted action ensured the
commission of the crime without risk to them arising from any defense or retaliation that the victim
might have resorted to. Treachery was thus Correctly appreciated against all appellants, the use of
superior strength being absorbed as an integral part of the treacherous mode of commission.
Same; Same; Aggravating Circumstance; Recidivism; Lower court properly considered recidivism
since a pardon for a preceding offense does not obliterate the fact that the accused is a recidivist
upon his conviction of a second offense embraced in the same title of the Code.—Appellant
Baltazar Lacao, Sr. admitted during the trial that he was once convicted of the crime of homicide
but he was granted an absolute pardon therefor. The lower court properly considered recidivism
since a pardon for a preceding offense does not obliterate the fact that the accused is a recidivist
upon his conviction of a second offense embraced in the same title of the Code. This aggravating
circumstance of recidivism accordingly offsets the mitigating circumstance of voluntary surrender
by Baltazar Lacao, Sr.
Same; Same; Accomplices; Court holds appellants Patria Lacao and Trinidad Lacao Mansilla guilty
of the milder form of responsibility as accomplices.—With respect to appellants Patria Lacao and
Trinidad Lacao Mansilla, they did cooperate in the execution of the offense by simultaneous acts
which, although not indispensable to the commission of the offense, bore a relation to the acts done
by the principal and supplied material or moral aid in the execution of the crime in an efficacious
way. Since they were aware of the criminal intent of the principals and having participated in such
murderous criminal design sans a conspiracy, we hold them guilty of the milder form of
responsibility as accomplices.
APPEAL from the judgment of the Regional Trial Court of Mambusao, Capiz, Br. 21.

Geomer C. Delfin for accused-appellants.
REGALADO, J.:
In an information filed on February 3, 1986 and docketed as
Criminal Case No. 1416 in the Regional Trial Court of Capiz, Branch XXI, Baltazar Lacao, Sr.,
alias “Bantan”, Patria Lacao, Trinidad Mansilla, Baltazar Lacao II, alias “Boticol,” and Baltazar
Lacao III, alias “Toto,” were charged with the complex crime of murder with direct assault upon an

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agent of a person in authority allegedly committed as follows:
“That on or about the 28th day of September, 1985, at around 10:00 o’clock in the evening, in Brgy.
Manibad, Municipality of Mambusao, Province of Capiz, and within the jurisdiction of this Court,
the above-named accused armed with knives and wooden stools, conspiring, confederating and
mutually helping one another, did then and there wilfully, unlawfully and feloniously, with evident
premeditation, treachery and taking advantage of nighttime and superior strength to better facilitate
the commission of the offense, assault, attack and hit one POLICE CORPORAL JOSE G.
INOCENCIO, JR., an agent of person in authority while in the actual performance of his official
duties, thereby inflicting upon the latter several injuries on the different parts of his body which
caused his instanteneous death; that due to the death of said Police Corporal Jose G. Inocencio, Jr.
and the consequent loss of his earning capacity, his heirs have suffered and are entitled to an
indemnity in the sum of P30,000.00 plus moral and exemplary damages.
“That accused Baltazar Lacao, Sr., alias ‘Bantan’, has been previously convicted by final judgment
of the crime of homicide.
“CONTRARY TO LAW."1
Upon arraignment, herein accused-appellant Baltazar Lacao, Sr. admitted killing the victim but
interposed self-defense, hence a plea of not guilty was entered in his behalf, while Patria Lacao and
Trinidad Mansilla pleaded not guilty. The other two accused, Baltazar Lacao II and Baltazar Lacao
III, were not apprehended and have remained at large.
The facts found by the trial court, as established by unassailable evidence adduced at the trial, are
as follows: At about 10:00 o’clock in the evening of September 28, 1985, prosecution witness Mila
Parto was at her house in Barangay Manibad attending to persons who came to the wake of her
aunt, Nemesia Lacao. Mila Parto is the sister-in-law of the deceased Police Cpl. Jose G. Inocencio,
Jr. While she was so engaged, she heard and witnessed a commotion at the first floor of the two-
storey house and the events that took place thereafter; The commotion arose from a card game
where one Mansueto Rivera was losing and accused Baltazar Lacao II, who was playing with him,
was furiously arguing with the former. Baltazar Lacao II then unsheathed his knife and threatened
Mansueto Rivera by pointing the knife at the latter’s neck. Wilma Rivera, the sister-inlaw of
Mansueto, intervened and Baltazar Lacao II released the latter. Baltazar Lacao II then went inside
the house wielding his knife and causing the other guests to panic.
It was then that Cpl. Jose G. lnocencio, Jr. went down to inquire into the matter and to pacify the
people. When he saw Baltazar Lacao Il with a knife, he held the latter’s hand holding that knife.
Baltazar Lacao II then said: “Nyor, release me.” As Cpl. Inocencio did not release him, the latter’s
mother, Patria Lacao, then said: “Nyor, release my son.” When Cpl. Inocencio released Baltazar
Lacao II, the latter suddenly stabbed Inocencio on his right side. Baltazar Lacao, Sr. and his other
son. Baltazar Lacao III, together with his wife, Patria Lacao, and his sister, Trinidad Lacao
Mansilla, rushed inside the house and surrounded the victim.
The men then stabbed Cpl. Inocencio several times while the women hit him with stools. As the
attack continued, the victim was pushed toward the door of the kitchen and he later slumped on the
floor facing downward. Baltazar Lacao, Sr. then sat astride him and continued stabbing the latter as
he was thus lying prostrate. Thereafter, this appellant asked: “Nyor, Nyor, are you still alive?”
Appellant Patria Lacao interjected: “What are you waiting for, it is already finished, we have to
go.” Baltazar Lacao III then got the gun of Cpl. Inocencio and all the accused went away.2
All the foregoing facts were clearly and categorically established by said prosecution witness.
unshaken and unaffected by the gruelling cross-examination to which she was subjected. In the
process she categorically identified the three appellants

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then present in the courtroom, as well as the knives and the stools used against the victim in the
commission of the crime, Ample and credible corroboration was afforded by the straightforward
testimonies of two other eyewitnesses, Isabel Llorente3 and the victim’s widow, Nelfa Inocencio,4
who were admittedly present at the scene and the time of the bloody incident.
After an examination of the body of the deceased by Dr. Abel P. Martinez, a medico-legal officer
and rural health physician, the following autopsy report was submitted and thereafter admitted in
evidence:
“PERTINENT POST-MORTEM FINDINGS ON THE BODY OF P/ CPL. JOSE G. INOCENCIO,
JR. DONE AT MAMBUSAO, CAPIZ, ON SEPTEMBER 29, 1985 at 4:30 AM:
1. Rigor mortis—present.
2. Livor mortis—present.
3. Lacerated wound about 1" dia. located at the left frontopa reital region of the head, superficial.
4. Stab wound, about 3/4" dia. located at the level of 31CS MCL, left, going postero-inferiorly
reaching the anterior pericardium.
5. Stab wound, about 3/4" dia. located at the level of 31CS 1" lateral to MCL right, going postero-
inferiorly reaching the right lung tissue.
6. Stab wound, about 2–1/2" horizontally located at the subcostal area, MCL right, going postero-
superiorly hitting the liver.
7. Stab wound 1" dia. located at the level of 51CS AAL, right, going medio-superiorly reaching the
right Iung.
8. Stab wound, about 2" dia. located at the level of the 10ICS AAL right, going media-superiorly
reaching the right lung.
9. Incised wound, about 1/2" dia. superficially located at the superior portion of the posterior elbow.
10. Stab wound, about 1/2" dia. located at the base of the neck, left going medio-inferiorly reaching
the body of the cervical vertebra.
11. Stab wound, about 1" dia. diag. located at the supra-scapular region, left going antero-inferiorly
reaching the left lung.
12. Two stab wounds superimposed to one another located at the scapular region, left, superficial,
reaching the scapula.
13. Stab wound about 1–1/2" dia. perpendicularly located at the midscapular region,superficial,
reaching the body of the scapula.
14. Stab wound, about 1" dia. located at the left paravertebral line 10T, left hitting the rib.
15. Stab wound, about 1" dia. located at the left paravert, line 1L, superficial, hitting the underlying
muscles.
16. Stab wound, 1" dia. located 2" lateral to Wd 15 going anteromedially hitting the underlying
muscles.
CAUSE OF DEATH: CARDIAC TAMPONADE SEVERE INTERNAL AND EXTERNAL
HEMORRHAGES SECONDARY TO THE HEREIN INFLICTED WOUNDS."5
After trial, the court a quo rendered judgment convicting the three appellants of the crime charged,
imposing on them the penalty of reclusion perpetua, and ordering them to indemnify the heirs of
the victim in the sum of P30,000.00 for his death, P9,250.00 as actual damages, plus P100,000.00
as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs.6
In their present recourse, appellants assign the following errors:
I
THAT THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANTS BALTAZAR
LACAO, SR., PATRIA LACAO AND TRINIDAD LACAO MANSILLA GUILTY BEYOND

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REASONABLE DOUBT OF THE CRIME OF MURDER WITH DIRECT ASSAULT UPON AN
AGENT OF PERSON IN AUTHORITY PURSUANT TO THE PROVISION OF ARTICLES 248
AND 148 IN RELATION TO ARTICLE 48 OF THE REVISED PENAL CODE, AS AMENDED,
WHERE THE TRIAL COURT SENTENCES EACH OF THEM TO SUFFER THE PENALTY OF
RECLUSION PERPETUA AND TO INDEMNIFY THE HEIRS OF THE VICTIM P/CPL JOSE
INOCENCIO, JR. IN THE SUM OF THIRTY THOUSAND PESOS (P30,000.00) FOR HIS
DEATH: PLUS P9,250.00 AS ACTUAL DAMAGES; PLUS P1 00,000.00 MORAL DAMAGES
AND TO PAY THE COST OF THE SUIT.
II
THAT THE TRIAL COURT ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT
BALTAZAR LACAO, SR. ACTED IN COMPLETE SELF-DEFENSE WHEN HE STABBED
THE DECEASED JOSE INOCENCIO, JR.
III
THAT THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY AS A QUALIFYING
CIRCUMSTANCE ATTENDED IN THE KILLING OF JOSE INOCENCIO BY ALL ACCUSED-
APPELLANTS.
IV
THAT THE TRIAL COURT ERRED IN HOLDING APPELLANTS PATRIA LACAO AND
TRINIDAD MANSILLA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER WITH DIRECT ASSAULT NOTWITHSTANDING THE FACT THAT THEY HAVE
NOT PERFORMED OVERT ACT SHOWING CONSPIRACY FOR MERE KNOWLEDGE,
ACQUIESCENCE OR APPROVAL OF THE ACT, WITHOUT COOPERATION IS NOT
ENOUGH TO CONSTITUTE ONE A PARTY TO A CONSPIRACY, AND THAT THE TRIAL
COURT ERRED IN NOT HOLDING THAT APPELLANTS TRINIDAD MANSILLA AND
PATRIA LACAO NOT HAVING CONSPIRED WITH BALTAZAR LACAO, SR. IN KILLING
THE VICTIM JOSE INOCENCIO, JR. TREACHERY CANNOT BE CONSIDERED AGAINST
THEM.
V
THAT THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT
BALTAZAR LACAO, SR. ON SELF-DEFENSE AND IN NOT ACQUITTING THE ACCUSED-
APPELLANTS PATRIA LACAO AND TRINIDAD MANSILLA FOR FAILURE OF THE
PROSECUTION TO ESTABLISH THE GUILT OF SAID ACCUSED BEYOND REASONABLE
DOUBT."7
The main thrust of the defense is that appellant Baltazar Lacao, Sr. acted in self-defense since Cpl.
Jose Inocencio, Jr. attempted to shoot him but the gun did not fire. Said appellant allegedly grabbed
the gun and stabbed the deceased more than five (5) times.8
The other appellants, Trinidad Mansilla and Patria Lacao, interposed the defense of alibi. Their
version is that at 7:30 in the evening of September 28, 1985, they and one Consolacion Lago went
to the wake at Barangay Manibad. They prayed and, at about 9:30 A.M., they went home but
Baltazar, Sr. was left behind.9 Baltazar Lacao II was alleged to be sleeping in their house and
Baltazar Lacao III was said to be then in Roxas City studying at the La Purisima College.10
The Court finds the appeal to be devoid of merit.
Appellant Baltazar Lacao, Sr., by pleading self-defense necessarily admits that he killed the victim
and he is thus dutybound to prove the essential requisites for this justifying circumstance.11 This
circumstance he has to prove by clear and convincing evidence,12 the onus probandi having shifted
to him.

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Now, this appellant admitted stabbing the victim more than five (5) times. As seen from the
medico-legal report, the victim actually suffered fifteen (15) stab wounds, that the cause of death
was hemorrhage and multiple stab wounds,13 and that most of the injuries inflicted were indeed
fatal. It cannot now be denied that, even indulging said appellant in his theory, he definitely
exceeded the limits of what is necessary to suppress an alleged unlawful aggression directed to him
by the victim. In fact, from the eyewitness accounts, he even continued stabbing the victim who
was already slumped prone and helpless.
Said appellant also sought to buttress his defense by claiming that Cpl. Inocencio, prior to the
stabbing, fired his gun at the former but the gun did not fire. This subterfuge is refuted by the
unequivocal statements of the prosecution witnesses that the victim never removed his gun from his
waistband,14 and that the revolver only fell when appellants pushed the deceased.15 Significantly,
this story of appellant Baltazar Lacao, Sr. was never corroborated by any evidence of unlawful
aggression on the part of the victim. The first requisite of self-defense is indispensable. There can
be no self-defense unless it is proven that there has been unlawful aggression on the part of the
person injured or killed by the accused. If there is no unlawful aggression, there is nothing to
prevent or to repel. The second requisite of self-defense will have no basis.16
We also take note of the finding of the court below that none of the six (6) bullets recovered from
the gun showed any sign or mark that the gun was ever fired. Had the gun been fired, the base of at
least one bullet would have been impressed in the center by the corresponding indentation caused
by the impact thereon by the firing pin of the revolver when the trigger is pulled. The absence of
such physical evidence further sustains the holding of the trial court that even the first element of
selfdefense has not been proved despite said appellant’s protestations.
Appellants Patria Lacao and Trinidad Mansilla were positively identified by all the prosecution
witnesses as the ones who hit the victim with stools several times while the other three (3) male
accused were stabbing the victim with their knives. In their defense, Patria and Trinidad sought
refuge in the impuissant sanctuary of alibi. Trite as it is, we have to impress on appellants once
again the doctrine that alibi is the weakest defense an accused can concoct. In order to prosper, it
must be so convincing as to preclude any doubt that the accused could not have been physically
present at the place of the crime or its vicinity at the time of the commission. In the face of positive
identification of the accused by eyewitnesses, an alibi crumbles like a sand fortress.17
The trial court definitely held that appellants “Patria Lacao
and Trinidad Mansilla were positively identified by all the eyewitnesses for the prosecution who
were without any motive to falsely testify and implicate or point an unerring finger at the three
accused inside the courtroom as the perpetrators of the crime, Their disavowal of participation in
the gory killing of Cpl. Inocencio are self-serving and feeble attempts to disprove complicity and to
which the court gives scant consideration."18 Indeed, the participatory acts of said appellants
having been testified to so clearly in detail by three (3) eyewitnesses, to refute the same by the
discreditable defense of alibi would be an evidential travesty.
Identification of the culprits in this case was not difficult because the place where the crime
occurred was sufficiently lighted. Where considerations of visibility are favorable and the witnesses
do not appear to be biased against the accused, their assertions as to the identity of the malefactor
should be normally accepted. This is more so when the witness is the victim or his near relative
because these witnesses usually strive to remember the faces of the assailants. Moreover, the trial
court gave credence to the prosecution’s identification of the appellants as the culprits. Subject to
exceptions which do not obtain in this case, the trial court is in a better position to decide this
question, having seen and heard the witnesses themselves and observed their deportment and

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manner of testifying during the trial.19
The Court, however, is not favorably impressed with the prosecution’s theory that the assailants
acted pursuant to a conspiracy just because they apparently acted in unison in attacking the victim.
True, conspiracy is always predominantly mental in composition because it consists primarily of
the meeting of minds and, generally, complicity may be inferred from circumstantial evidence, i.e.,
the community of purpose and the unity of design in the contemporaneous or simultaneous
performance of the act of assaulting the deceased.20 However, conspiracy must be proved with as
much certainty as the crime itself.21 The same degree of proof required to establish the crime is
required to support a finding of conspiracy,22 that is, proof beyond reasonable doubt.23
At the very least, conspiracy presupposes a prior agreement or contemporaneous understanding on
the part of the conspirators to commit a felony, in this case, to kill Cpl. Inocencio. A dispassionate
appraisal of the facts readily reveals, however, that the attack on the victim originated
spontaneously from and was initiated unexpectedly by Baltazar Lacao II. Appellant Baltazar Lacao,
Sr. and his other son, Baltazar Lacao III, immediately joined in the fray by attacking the victim with
their knives, whereupon the two female appellants, also assisted their menfolk by hitting the victim
with stools.
The rapidity in the succession of such consecutive acts of the assailants, with the last four coming
instinctively, as it were, to the aid of the original assailant, cannot but produce the conclusion that
their actuations were activated without prior or apparent deliberation. It does not even appear that
there was a call or a signal from one to the other to join the attack on Cpl. Inocencio, much less is
there even an intimation that they had such a murderous intent or cabal at any time prior thereto.
The spontaneity of their respective reactions, albeit resulting in an attack where they all
participated, rules out the existence of a conspiracy.
As a consequence, therefore, the respective liabilities of appellants shall be determined by the
nature of their individual participations in the felonious act.24 It is understood, however, that
whatever liabilities may attach to Baltazar Lacao II and Baltazar Lacao III are not concluded by the
dispositions herein nor shall they be bound by the discussions in this opinion on their putative
participations in the crime charged.
Anent the issue on whether or not treachery was properly appreciated as a qualifying circumstance,
we agree with the holding of the court below since this was sufficiently proven by the evidence. It
is elementary hornbook knowledge that there is treachery when the offender commits any of the
crimes against persons employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense which
the offended party might make.25
In the present case, the deceased was stabbed without warning the moment he unsuspectingly
released the hand of Baltezar Lacao II. So sudden and unanticipated was the attack that the victim
was given no chance to defend himself. Then herein appellants, although apparently acting without
prior agreement, also instantly and all together attacked him. Even if their aforesaid acts were
independently performed on their individual initiatives, such concerted action ensured the
commission of the crime without risk to them arising from any defense or retaliation that the victim
might have resorted to. Treachery was thus correctly appreciated against all appellants, the use of
superior strength being absorbed as an integral part of the treacherous mode of commission.
Appellant Baltazar Lacao, Sr. admitted during the trial that he was once convicted of the crime of
homicide but he was granted an absolute pardon therefor.26 The lower court properly considered
recidivism since a pardon for a preceding offense does not obliterate the fact that the accused is a
recidivist upon his conviction of a second offense embraced in the same title of the Code.27 This

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aggravating circumstance of recidivism accordingly offsets the mitigating circumstance of
voluntary surrender by Baltazar Lacao, Sr.
With respect to appellants Patria Lacao and Trinidad Lacao Mansilla, they did cooperate in the
execution of the offense by simultaneous acts which, although not indispensable to the commission
of the offense, bore a relation to the acts done by the
principal and supplied material or moral aid in the execution of the crime in an efficacious way.28
Since they were aware of the criminal intent of the principals and having participated in such
murderous criminal design sans a conspiracy, we hold them guilty of the milder form of
responsibility as accomplices.29
The penalty for the complex crime at bar is that for the graver offense, the same to be applied in its
maximum period. No modifying circumstance can be considered for or against herein appellants.
With the proscription against the imposition of the death sentence, the trial court correctly
sentenced appellant Baltazar Lacao, Sr. to suffer reclusion perpetua. Appellants Patria Lacao and
Trinidad Lacao Mansilla are hereby sentenced to serve an indeterminate penalty of six (6) years and
one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion
temporal, as maximum. The death indemnity is hereby increased to P50,000.00 in accordance with
the present policy on the matter, with appellant Baltazar Lacao, Sr. primarily liable for P40,000.00
and appellants Patria Lacao and Trinidad Lacao Mansilla for P10,000.00, subject to the provisions
of Article 110 of the Revised Penal Code.
WHEREFORE, with the foregoing modifications, the judgment of the trial court is hereby
AFFIRMED.
SO ORDERED.
G.R. No. 81404. January 28, 1991.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISRAEL CARMINA alias “Boy” and
VALERO CARMINA, accused. VALERO CARMINA, accused-appellant.
Criminal Law; Murder; Conspiracy; Conspiracy is present when the accused acted in concert in the
conception and execution of the killing.—While it is true that it was not he who actually shot and
later dismembered Jose Agotano, the evidence has clearly established a conspiracy between him
and his son that makes him equally guilty with the latter. The two of them acted in concert in the
conception and execution of the killing. The decision to kill Billy was reached by the two of them
although it was Israel who personally implemented it. While Israel did his part in the killing yard,
Valero detained Victoriano in the house at gunpoint and watched the shooting and dismemberment
of Billy. As a father, Valero made no move to restrain his son; on the contrary, he watched with
approval as Israel carried out their joint decision.
Same; Same; Treachery; There is treachery, when, although the victim was forewarned of his
impending death, he was shot in the back while he was entirely defenseless and the killers were
under no risk whatsoever from any retaliation the victim might make.—The crime was qualified
with treachery because, although the victim was forewarned of his impending death, he was shot in
the back while he was entirely defenseless and the killers were under no risk whatsoever from any
retaliation the victim might make. In People v. Barba, the accused pointed a rifle at the victim from
a distance of six meters and said, “Pardong, stand up, we are going to shoot you!” with hands
raised, the victim pleaded, “Do not kill me, investigate first what was my fault!” This Court held
there was treachery when the accused shot and killed the victim.
Same; Same; Even if treachery were not present, the crime would still be murder because the
accused “outraged or scoffed” at the victim’s corpse, when they dismembered it.—Even if
treachery were not present in this case, the crime would still be murder because of the

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dismemberment of the dead body. One of the qualifying circumstances of murder under Article
248, par. 6, of the Revised Penal Code is “outraging or scoffing at (the) person or corpse” of the
victim. There is no question that the corpse of Billy Agotano was outraged when it was
dismembered with the cutting off of the head and limbs and the opening up of the body to remove
the intestines, lungs and liver. The killer scoffed at the dead when the intestines were removed and
hung around Victoriano’s neck “as a necklace” and the lungs and liver were facetiously described
as “pulutan.”
Same; Same; Evident Premeditation; Evident premeditation cannot be appreciated against the
accused because sufficient time had not elapsed between the determination to commit the crime and
its execution.—We agree with the trial court that evident premeditation should be disregarded
because sufficient time had not elapsed between the determination to commit the crime and its
execution, to enable the accused to reflect upon the consequences of their act. It is not certain that
when early in that afternoon, Valero told the captives in Megriño’s house that they would die, the
Carminas had already definitely resolved to commit the murder. In fact, although the threat was
made to all of the captives, only Billy was killed in the end. Moreover, there was no showing that
they had coolly and dispassionately planned the execution of the offense. The events leading to the
murder suggest that the Carminas were from the start busy with oppressing the Agotanos or
drinking tuba, leaving no time for that detached and undisturbed premeditation of the murder. It
was only when they were in Katiad’s house that the decision to kill Billy was made, the justification
being that “we have already maltreated him, this time we will just finish him because he might
retaliate.”
Same; Same; Ignominy; Ignominy cannot be considered against the accused because the victim was
already dead when his body was dismembered.—But it was incorrect to appreciate adding
ignominy to the offense because the victim was already dead when his body was dismembered.
This aggravating circumstance requires that the offense be committed in a manner that tends to
make its effects more humiliating to the victim, that is, add to his moral suffering.
APPEAL from the decision of the Regional Trial Court of Mati, Davao Oriental. Berba, J.
CRUZ, J.:
The grisly details of the killing cannot be told without revulsion, but they must be told. It is
unbelievable that it happened in this day and age and not in a distant and savage time when
brutality was a way of life and death when it came aroused no special reverence. This case belongs
to that barbaric past.
The victim was Jose Billy Agotano, who was only twenty years old when he was killed in cold
blood. According to the prosecution, the killers were Valero Carmina, the herein accused-appellant,
and his son Israel Carmina, also known as Boy.
The two were charged before the Regional Trial Court of Mati, Davao Oriental, in an information
reading as follows:
That on or about November 15, 1986, in the Municipality of Tarragona, Province of Davao
Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with treachery and evident
premeditation, armed with garand rifles and sharp-pointed bolo (pinuti), and with intent to kill, did
then and there wilfully, unlawfully and feloniously attack, assault and shoot with said garand rifle
one JOSE BILLY AGOTANO, thereby inflicting upon the latter wound which caused his death, and
not contended with that, with the use of the said bolo, accused slaughtered the dead body of said
Jose Billy Agotano.

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The commission of the crime was attended by the aggravating circumstances of abuse of superior
strength and adding ignominy to the natural effects of the crime.
Only Valero Carmina could be arraigned and tried because Israel disappeared and remains at large
to date. After trial, the accused-appellant was found guilty and sentenced to life imprisonment.**
He was also required to pay civil indemnity in the amount of P30,000.00 to the victim’s heirs plus
the costs of the suit.1
The case for the prosecution was established mainly through the testimony of two eyewitnesses,
namely, Victoriano Agotano, the victim’s brother, and Ramon Katiad, in whose yard the crime was
committed.
Victoriano testified that he and Billy were on their way home from their farm when they were
intercepted at gunpoint by Valero, his wife Ernita, their son Israel, and Aileen Masanguid at about
2:30 o’clock in the afternoon of November 15, 1986. Valero had a carbine, Israel a Garand rifle and
a hunting knife, and Ernita a bolo at her waist. The group accused Billy of being a “pulahan”
because of the red t-shirt he had wrapped around his head to cover it from the rain. The two of them
were taken to the nearby house of Dionisio Megriño, where Billy was struck in the forehead by
Valero and in the chest by Israel with the handle of their respective firearms.
The group stayed there for about thirty minutes, and then Victoriano and Billy were ordered to
march to their brother Alfredo’s house, with their captors trailing them closely. He, Billy and
Alfredo, together with two other persons named Pilo and Roger, who happened to be in the house at
the time, were ordered to fall in line and sing “Bayang Magiliw.” When they reached the line “Ang
mamatay nang dahil sa iyo,” Valero and Israel told them, “You shall die.” Twenty minutes later,
they were all taken to a cousin of the Agotanos from whom the
Carminas demanded tuba, rice and chickens. Alfredo, Roger and Pilo were forced to drink the tuba
with Valero and Israel. The drinking lasted for two hours. Then the Carminas decided to leave,
taking with them Victoriano and Billy, who were ordered to carry a kettle, the rice and the chickens.
The group walked to the house of Ramon Katiad about one and a half kilometers away and arrived
there at 6:30 p.m. Katiad was not there at the time but came home at about seven o’clock. The
Agotanos cooked the rice and roasted the chickens which they and the Carminas ate. Katiad and his
family had their own supper later.
At about ten o’clock, Israel told Billy, “You can no longer be home, Do.” When asked why, he
replied: “Because you are wearing a red cloth around your head.” Katiad pleaded that Israel not do
anything in his house but Israel said, “I am going to kill him.” In desperation and fear, Victoriano
told Billy to kneel before Israel and beg for his life, which Billy did. But to no avail. Israel took
Billy with him downstairs while Valero detained Victoriano in the house, pointing his rifle at him.
In the yard, Israel pushed Billy from behind and then shot him, hitting him in the nape. Billy died
as he fell to the ground. Israel then stripped and exposed the dead body. He went back to the house
to get his mother’s bolo and ordered Victoriano to go down and look at his brother’s corpse. The
Katiad family (including the children) was also told to go to the yard. When everyone had gathered
around the dead body, they watched in horror at the gruesome acts that followed.
Israel chopped off Billy’s arms and legs. Then he beheaded the corpse and, raising the severed
head, shouted “Taganlang,” meaning God. He cut open the stomach and pulled out the intestines.
He hung these around Victoriano’s neck, saying, “You use this as your necklace, the intestines of
your younger brother.” Going back to the dismembered corpse, he pulled out the liver and the
lungs. Triumphantly raising them, he shouted. “We will use this as pulutan!”
Having done all this, Israel then turned his attention to Victoriano and said, “I will kill you next!”
He lunged at Victoriano but lost his balance and the latter was able to parry the blow. Victoriano ran

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for his life! It was, as he put it later, “a suicide run.” Israel pursued and took a shot at him but
missed. Victoriano made good his escape. Arriving at about two o’clock in his mother’s house, he
reported what had happened and warned the family that the Carminas were after them. Under cover
of darkness even as deathly fear stalked them, they took refuge in a neighbor’s house. Later in the
morning, they reported the killing to the authorities.
Victoriano’s narration of the killing and slaughter was corroborated by Katiad, the other
eyewitness. He added the distasteful detail that after shooting Billy to death, Israel broke into happy
song: “Siga-siga sa baryohan, hindi natatakot sa barilan!” He said that the Carminas took him with
them after Victoriano’s escape but finally released him after about fifteen minutes. Later, he and
several policemen gathered the parts of the dismembered corpse that were scattered in his yard and
put them in a sack.
Valero’s defense was alibi. He declared under oath that at the time of the murder, he was hiding in
the mountains of Manay from the family of Elnoro Badadao, whom he “was forced to kill” over a
land dispute. He denied knowing the Agotanos and Megriño but admitted that Katiad was his friend
and former neighbor. He said the testimonies of the prosecution witnesses were all lies because the
last time he was in Ompao was in 1983.
Charito Garsona, the only other witness for the defense, testified that on November 15, 1986, the
accused-appellant and three other persons passed by her house in Manay, Davao Oriental, at about
4 o’clock in the afternoon and asked for food.
In his brief, the accused-appellant contends that he should not be blamed for the killing of Billy
Agotano, granting argu-endo that it was Israel who killed the victim and dismembered his corpse.
Israel, if at all, should be held accountable alone for his act. The fact that the accused-appellant did
not try to escape but yielded when he was arrested should indicate his innocence, which should be
presumed in the absence of proof of his guilt beyond reasonable doubt.
There is indeed such proof. His alibi must fall not only because of its inherent weakness but also
because of his positive identification by the two eyewitnesses, one of whom was his near-victim
and the other his compadre.
While it is true that it was not he who actually shot and later dismembered Jose Agotano, the
evidence has clearly established a conspiracy between him and his son that makes him equally
guilty with the latter. The two of them acted in concert in the conception and execution of the
killing. The decision to kill Billy was reached by the two of them although it was Israel who
personally implemented it. While Israel did his part in the killing yard, Valero detained Victoriano
in the house at gun-point and watched the shooting and dismemberment of Billy. As a father, Valero
made no move to restrain his son; on the contrary, he watched with approval as Israel carried out
their joint decision.
The crime was qualified with treachery because, although the victim was forewarned of his
impending death, he was shot in the back while he was entirely defenseless and the killers were
under no risk whatsoever from any retaliation the victim might make. In People v. Barba,2 the
accused pointed a rifle at the victim from a distance of six meters and said, “Pardong, stand up, we
are going to shoot you!” With hands raised, the victim pleaded, “Do not kill me, investigate first
what was my fault!” This Court held there was treachery when the accused shot and killed the
victim.
Even if treachery were not present in this case, the crime would still be murder because of the
dismemberment of the dead body. One of the qualifying circumstances of murder under Article
248, par. 6, of the Revised Penal Code is “outraging or scoffing at (the) person or corpse” of the
victim. There is no question that the corpse of Billy Agotano was outraged when it was

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dismembered with the cutting off of the head and limbs and the opening up of the body to remove
the intestines, lungs and liver. The killer scoffed at the dead when the intestines were removed and
hung around Victoriano’s neck “as a necklace” and the lungs and liver were facetiously described
as “pulutan.”
Although the information did not categorically allege this qualifying circumstances in the exact
words of the law, it was nevertheless deducible from the statement that the “accused slaughtered the
dead body of said Jose Billy Agotano.”
Thus, in People v. Obenque,3 the information charged “that after thus shooting Sergio Cabradilla,
the accused Elpidio Obenque in the furtherance of his criminal design, loaded the body of his
victim in the Volkswagen Brasilia Sedan with Plate No. BEE 164, Series of 1977 and with utmost
cruelty, dump the corpse in a ravine x x x .” It was held that this act of the accused constituted an
outrage of or scoffing at the corpse of the victim.
We agree with the trial court that evident premeditation should be disregarded because sufficient
time had not elapsed between the determination to commit the crime and its execution, to enable
the accused to reflect upon the consequences of their act. It is not certain that when early in that
afternoon, Valero told the captives in Megriño’s house that they would die, the Carminas had
already definitely resolved to commit the murder. In fact, although the threat was made to all of the
captives, only Billy was killed in the end. Moreover, there was no showing that they had coolly and
dispassionately planned the execution of the offense. The events leading to the murder suggest that
the Carminas were from the start busy with oppressing the Agotanos or drinking tuba, leaving no
time for that detached and undisturbed premeditation of the murder. It was only when they were in
Katiad’s house that the decision to kill Billy was made, the justification being that “we have already
maltreated him, this time we will just finish him because he might retaliate.”
Abuse of superior strength was also correctly not considered, being absorbed in alevosia.
But it was incorrect to appreciate adding ignominy to the offense because the victim was already
dead when his body was dismembered. This aggravating circumstance requires that the offense be
committed in a manner that tends to make its effects more humiliating to the victim, that is, add to
his moral suffering.4
On the other hand, the fact that Valero yielded when he was apprehended did not operate to
mitigate the penalty because mere non-resistance to arrest is not considered voluntary surrender.
What possessed the killers in the commission of their nauseating acts can only be left to
incredulous conjecture. What is certain is that whether it was caused by fanatic ideology, or plain
intoxication, or an innate bestiality, the bizarre desecration of the corpse was utterly disgusting and
deserves the strongest if helpless condemnation. The penalty prescribed by law, which is only
reclusion perpetua, does not seem severe enough.
WHEREFORE, the appeal is DISMISSED. The sentence imposed, except only as to the civil
indemnity, which is increased to P50,000.00, is AFFIRMED. It is so ordered.
G.R. No. 167502. October 31, 2006.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO CUDAL, accused-appellant.
Appeals; When the issue is one of credibility of witnesses, an appellate court will normally not
disturb the factual findings of the trial court.—It is axiomatic in criminal jurisprudence that when
the issue is one of credibility of witnesses, an appellate court will normally not disturb the factual
findings of the trial court unless the latter has reached conclusions that are clearly unsupported by
evidence, or unless some facts or circumstances of weight or influence were overlooked which, if
considered, would affect the result of the case. The rationale for this is that trial courts have
superior advantages in ascertaining the truth and in detecting falsehood as they have the

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opportunity to observe at close range the manner and demeanor of witnesses while testifying. In the
absence of any showing that the trial court, whose findings were affirmed by the appellate court,
acted arbitrarily in the appreciation of evidence, this Court respects the same.
Evidence; Res Gestae; For the testimonies of Camilo and Segundino, who are not witnesses to the
incident, to be considered part of the res gestae, the following requisites must concur: (1) the
principal act or res gestae must be a startling occurrence; (2) the statement is spontaneous or was
made before the declarant had time to contrive or devise a false statement, and the statement was
made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made
must concern the occurrence in question and its immediately attending circumstances.—That
Camilo and Segundino were not eyewitnesses to the incident does not render their testimonies
inadmissible, for they may be considered part of the res gestae, an exception to the hearsay rule.
For the same to be considered part of the res gestae, the following requisites must concur: (1) the
principal act or res gestae must be a startling occurrence; (2) the statement is spontaneous or was
made before the declarant had time to contrive or devise a false statement, and the statement was
made during the occurrence or immediately prior or subsequent thereto; and (3) the statement
made must concern the occurrence in question and its immediately attending circumstances.
Same; Same; The spontaneity of the utterance and its logical connection with the principal event,
coupled with the fact that the utterance was made while the declarant was still “strong” and subject
to the stimulus of the nervous excitement of the principal event, are deemed to preclude
contrivance, deliberation, design or fabrication, and to give the utterance an inherent guaranty of
trustworthiness.— The spontaneity of the utterance and its logical connection with the principal
event, coupled with the fact that the utterance was made while the declarant was still “strong” and
subject to the stimulus of the nervous excitement of the principal event, are deemed to preclude
contrivance, deliberation, design or fabrication, and to give to the utterance an inherent guaranty of
trustworthiness. The admissibility of such exclamation is based on experience that, under certain
external circumstances of physical or mental shock, a stress of nervous excitement may be
produced in a spectator which stills the reflective faculties and removes their control, so that the
utterance which then occurs is a spontaneous and sincere response to the actual sensations and
perceptions already produced by the external shock. Since this utterance is made under the
immediate and uncontrolled domination of the senses, rather than reason and reflection, and during
the brief period when consideration of self-interest could not have been fully brought to bear, the
utterance may be taken as expressing the real belief of the speaker as to the facts just observed by
him.
Same; Same; It cannot be concluded that in a very short span of time, taking into consideration the
ripe age of the victim, his relationship to appellant, and the cruelty and the suffering which
immediately preceded the confession, the victim had the opportunity to concoct the facts
surrounding the incident and its authorship.—The victim’s information to Camilo and Segundino as
to the material facts was made immediately after the startling incident occurred. It is as categorical
as it is spontaneous and instinctive. It cannot be concluded that in a very short span of time, taking
into consideration the ripe age of the victim, his relationship to appellant, and the cruelty and
suffering which immediately preceded the confession, the victim had the opportunity to concoct the
facts surrounding the incident and its authorship. Besides, there appears to be no reason or motive
on the part of the victim to point his son as the culprit if such were not indeed the truth.
Criminal Law; Evidence; Mitigating Circumstances; Appellant’s intoxication at the time of the
commission of the crime, being an alternative circumstance, may be appreciated as aggravating if
the same is habitual or intentional, otherwise it shall be considered as mitigating circumstance.—

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Appellant’s intoxication at the time of the commission of the crime, being an alternative
circumstance under Article 15 of the Revised Penal Code, may be appreciated as aggravating if the
same is habitual or intentional, otherwise it shall be considered as a mitigating circumstance. The
trial court observed: We now come to another matter, which is the fact that during the incident, the
accused was drunk. This was testified to by Camilo Cudal and admitted by the wife of the accused.
The accused himself admitted that he had been drinking with his cousins and nephews, but he
claims that he did not drink much. Drunkenness is an alternative circumstance. It is aggravating if
the accused is a habitual drunkard. It is mitigating if it is otherwise. The date of the incident is two
(2) hours after midnight which ushered in the new year. Before that, the accused and his relatives
were celebrating and they drank San Miguel gin. No evidence was presented to establish that he is a
habitual drunkard. It is a legal maxim that when there is doubt, the doubt should be resolved in
favor of the accused. This court[,] therefore, believes that this should be taken as a mitigating
circumstance, which is favorable to the accused.
Same; Same; Absent any showing that the appellant’s intoxication was habitual, or intentional it
may only be considered as mitigating to correctly call for the imposition of the penalty of reclusion
perpetua.—Absent any showing then that appellant’s intoxication was habitual or intentional, it
may only be considered as mitigating to correctly call for the imposition of the penalty of reclusion
perpetua, in accordance with Article 63, paragraph 2(3) of the Revised Penal Code.

The Solicitor General for appellee.
Public Attorney’s Office for appellant.
CARPIO-MORALES, J.:
Under final review is the Court of Appeals Decision1 of February 11, 2005 affirming that of
Branch 39 of the Regional Trial Court of Lingayen, Pangasinan2 convicting Pablo Cudal
(appellant) of parricide and meting out to him the penalty of reclusion perpetua.
About 2:00 o’clock in the morning of January 1, 1998,3 as appellant arrived home in Barangay
Bonlalacao, Mangatarem, Pangasinan from a drinking spree with his cousins and nephews, he
roused his 79-year old father Crispin Cudal (the victim) from his sleep. Appellant then asked
money from the victim so he could go back to the drinking session and pay for the liquor that he
consumed. The victim replied that he had no money, and told appellant that he was already drunk.4
This drew the two to a fight.5
Some 50 meters away from the place of the incident, Camilo Cudal (Camilo), appellant’s first
cousin who was then in the house of his mother-in-law, heard the commotion.6 Camilo
immediately rushed to the place and there saw the victim sitting on his bed and wiping blood
oozing from his forehead. When asked about what happened, the victim quickly replied that he
quarreled with appellant and that he was hit by him with a stone.7
When Camilo confronted appellant, the latter reasoned out that he was asking money from his
father but the latter refused.8
Camilo brought the wounded victim to the house of his (victim’s) brother Segundino Cudal9 where
first aid was applied on his wounds. Camilo then fetched from Urbiztondo, Pangasinan the victim’s
daughter Leoncia10 who brought the victim to a nearby hospital where he expired the following
day, January 2, 1998, at about 4 o’clock p.m.11 The postmortem report prepared by Dr. Cleofe
Orence, Rural Health Physician of Mangatarem, Pangasinan who examined the body of the victim
revealed the following findings:

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External Physical Injuries:
(1) Lacerated wound, old, about 4 cm. midfrontal area.

(2) Hematoma, dorsal aspect right hand.
(3) Contusion 2x3 cm., right upper quadrant area, abdomen.
Probable Cause of Death:
INTERNAL HEMORRHAGE secondary to Craniocerebral Injury secondary to Trauma

T/C Ruptured Viscus, abdomen.12
Appellant was arrested by police authorities on January 3, 199813 and brought for treatment at the
Mangatarem District Hospital on the same day. The medical findings on him showed:
—(-) Negative alcoholic breath
—Stab wound 2 cm., left side face
—Stab wound 1.5 cm. zygomatic area left
—Periorbital hematoma left superimposed with punctured wound .5 cm. left lower eyelid
—Punctured wound left eyebrow
—Contusion hematoma 1x1 cm. occipital area14
An Information was soon filed against appellant reading:
“x x x x
That on or about January 1, 1998, at about 2:00 o’clock dawn, in barangay Bonlalacao,
municipality of Mangatarem, province of Pangasinan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, willfully, unlawfully and feloneously (sic), and with
evident premiditation (sic), that is, having conceived and deliberated to kill his own father with
whom he was living with, and with treachery, attack, assault and hit with the use of stone his father,
Crispin Cudal, on the head and other parts of his body, inflicting upon the latter mortal wounds
which directly caused his death, to the damage and prejudice of the heirs of the said victim Crispin
Cudal.
CONTRARY to Article 246 of the Revised Penal Code.”15
x x x x”
Denying having struck the victim, appellant claimed that it was he who was assaulted with a
bolo,16 and that while going after him, the victim accidentally fell down and hit the bedpost in the
process, wounding himself on the forehead.17 Asked how the victim sustained injury on his
abdomen, appellant explained that the victim subsequently fell on the floor, hitting his abdomen
with the handle of the bolo he was holding.18
After trial, Branch 39 of the Regional Trial Court of Lingayen, Pangasinan, by Decision of October
28, 1998, convicted appellant of parricide, but considered his intoxication at the time of the
commission of the offense as a mitigating circumstance under paragraph 3, Article 15 of the
Revised Penal Code. The dispositive portion of the decision reads:
“WHEREFORE, in view of the foregoing considerations, the Court finds the accused Pablo Cudal
Guilty beyond reasonable doubt of the crime of Parricide for the killing of his father Crispin Cudal,
on the early morning of New Year, January 1, 1998 with the presence of one (1) mitigating
circumstance, and accordingly the Court sentences the said accused to reclusion perpetua. He is
also ordered to pay the heirs of the accused the sum of P30,000.00 representing funeral expenses,
plus indemnity of P50,000.00 without subsidiary imprisonment in case of insolvency; and to pay
the costs. Being a detention prisoner, the said accused is credited with his detention to its full
extent.

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SO ORDERED.”19
Appellant appealed his conviction before this Court, assailing the trial court for “accept[ing] the
prosecution’s account as gospel truth despite the fact that its witnesses were not actually direct
witnesses to the crime charged.”20 The appeal was docketed as G.R. No. 140637.
By Resolution21 of August 30, 2004, this Court ordered the transfer of the case to the Court of
Appeals for appropriate action and disposition conformably with People v. Mateo.22
The appellate court affirmed, with modification, appellant’s conviction. The decretal text of the
decision reads:
“WHEREFORE, the assailed Decision of Branch 39 of the Regional Trial Court of Lingayen,
Pangasinan, dated October 28, 1998, in Criminal Case No. L-5778, convicting the appellant, Pablo
Cudal, of the crime of parricide and sentencing him to suffer the penalty of reclusion perpetua is
hereby AFFIRMED. The last sentence of the first paragraph of its dispositive portion is however
hereby modified to read, as follows: “Accused-appellant Pablo Cudal is also ordered to pay the
heirs of the victim, Crispin Cudal, the sum of P30,000.00 representing funeral expenses, plus
indemnity of P50,000.00 without subsidiary imprisonment in case of insolvency; and to pay the
costs.”
No pronouncement as to costs.”23 (Emphasis in the original)
Hence, the elevation of the case to this Court for final review.
In a Manifestation dated September 7, 2005,24 appellant informed that he was opting not to file a
Supplemental Brief.
The appeal fails.
Article 246 of the Revised Penal Code provides:
ART. 246. Parricide.—Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and
shall be punished by the penalty of reclusion perpetua to death.
Prosecution witness Camilo Cudal narrated what he knew of the circumstances surrounding the
incident as follows:
Q Do you still recall where you were on the late evening of December 31, 1997 before midnight?
A I could remember, sir.
Q Where were you?
A I was in the house of my in[-]laws, sir.
Q Will you please tell the name of your in-laws?
A Marissa Dancel, sir.
Q Where is the place of Marissa Dancel located?
A Bulalakao, Mangatarem, sir.
Q Why were you there at the house of your mother-in-law, Marissa Dancel?
A Because we were celebrating the New Year[’s] Eve, sir.
Q Now by the way, how far is your house from the house of your mother-in-law where you were
celebrating New Year[’]s Eve?
A Around 50 meters away, sir.
Q Now, at about 2:00 o’clock in the early mornignof (sic) January 1, 1998, can you tell us where
you were?
A Yes, sir, I was in the house of my in-laws.
Q As you were stay (sic) there, can you still recall if there was unusual thing that you observe[d]
when you were at the house of your mother-in-law?
A Yes, sir, there was.

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Q What was that that you observe[d]?
A I heard something like quarreling on the house of Crispin Cudal, sir.
Q Now, can you tell us why do you say that there is a sounds (sic) like warning in the house of
Crispin Cudal?
A Because they were uttering words, sir.
Q Can you tell us if you could recognize that voices as you said they are quarreling?
A Yes, sir.
Q Please tell the Honorable Court whose voice is that?
A Pablo Cudal and Crispin Cudal, sir.
Q Now, what did you [do] if any when you heard this quarreling voices of accused Pablo Cudal?
A Because I went near, sir.
Q How did you go near?
A I walked towards the house of Crispin, (sic) Cudal and I was listening to them, sir.
Q Where did you go when you went near?
A I [e]ntered there (sic) house, sir.
Q Whose house?
A House of Crispin Cudal, sir?
Q How did you [e]nter the house of Crispin Cudal?
A The door was opened, sir.
Q As you [e]ntered the door of the house of Crispin Cudal, what did you see, if any?
A I saw blood oozing from the forehead of Crispin Cudal, sir.
Q Where did you see Crispin Cudal inside the house blooded as you have pointed in the forehead?
A In the place where he sleep (sic), sir.
Q What was his position when you saw him blooded on the forehead?
A He was sitting down and he was wiping the blood of his forehead, sir.
Q When you saw wiping his blood on the forehead, what next happened?
A I asked him, “Uncle what happened,[”] and he answered, “we quarreled with Pablo Cudal,[”] he
said.
Q Do you remember having asked, what caused the injury of the forehead?
A Yes, sir, I asked him.
Q What did the victim answer if any when you asked him what caused his injury on the forehead if
he answer (sic) you?
A I was hit with the stone by Pablo Cudal.25 (Emphasis supplied)
Another prosecution witness, Segundino Cudal, declared that when his brother—the victim was
brought to his house by Camilo, the victim who was “strong,” albeit his face was bloodied, told him
that he was struck with a stone by appellant.
FISCAL CHIONG:
Q Do you know where you were on the early morning of January 1, 1998?
A I was at home, sir.
Q Do you recall if there is unusual incident that came to your knowledge involving your brother
Crispin Cudal?
A None yet when I am at home.
Q Do you know, if any one came to your house that morning of January 1, 1998?
A Yes, Crispin Cudal, sir.
Q How was your older brother Crispin Cudal brought to your house (sic) by Camilo Cudal?
A He was loaded in a tricycle, sir.

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Q Now, when you saw your brother when he was brought to your house, can you tell us his
physical appearance or condition?
A He was strong but his face was bloody, sir. Even his clothes were stained or tainted with blood,
sir.
Q Now, when you saw your brother’s face bloody as well as his clothes, what did you do, if any as
he was already in your house?
A I asked him what happened to him and he told me “I was struck with stone by my son[.]”
Q Did you ask him who is this son of him who struck him with stone?
A Yes, sir his name is Pablo Cudal.26 (Emphasis and italics supplied)
At the witness stand, defense witness Dr. Orence, declared:
Q Is it also possible Doctor[a] that this contusion was due to the force of a stone struck on the
victim? Stone is a hard object?
A It could be, sir.
Q Likewise, this hematoma on the dorsal right hand of the victim was possibly caused by the
impact of the stone being thrown at the victim when the victim tried to parry it, is that not also
possible, Doctora?
A Yes sir, it is possible.27 (Italics supplied)
That the complained act of appellant was the proximate cause of the death of the victim is evident
from the above-quoted postmortem report on the body of the deceased showing the probable cause
of his death as “INTERNAL HEMORRHAGE secondary to Craniocerebral Injury secondary to
Trauma” and “T/C Ruptured Viscus, abdomen.”
It is axiomatic in criminal jurisprudence that when the issue is one of credibility of witnesses, an
appellate court will normally not disturb the factual findings of the trial court unless the latter has
reached conclusions that are clearly unsupported by evidence, or unless some facts or
circumstances of weight or influence were overlooked which, if considered, would affect the result
of the case. The rationale for this is that trial courts have superior advantages in ascertaining the
truth and in detecting falsehood as they have the opportunity to observe at close range the manner
and demeanor of witnesses while testifying.28 In the absence of any showing that the trial court,
whose findings were affirmed by the appellate court, acted arbitrarily in the appreciation of
evidence, this Court respects the same.
That Camilo and Segundino were not eyewitnesses to the incident does not render their testimonies
inadmissible, for they may be considered part of the res gestae,29 an exception to the hearsay rule.
For the same to be considered part of the res gestae, the following requisites must concur:
(1) the principal act or res gestae must be a startling occurrence; (2) the statement is spontaneous or
was made before the declarant had time to contrive or devise a false statement, and the statement
was made during the occurrence or immediately prior or subsequent thereto; and (3) the statement
made must concern the occurrence in question and its immediately attending circumstances.30
The spontaneity of the utterance and its logical connection with the principal event, coupled with
the fact that the utterance was made while the declarant was still “strong” and subject to the
stimulus of the nervous excitement of the principal event, are deemed to preclude contrivance,
deliberation, design or fabrication, and to give to the utterance an inherent guaranty of
trustworthiness.31 The admissibility of such exclamation is based on experience that, under certain
external circumstances of physical or mental shock, a stress of nervous excitement may be
produced in a spectator which stills the reflective faculties and removes their control, so that the
utterance which then occurs is a spontaneous and sincere response to the actual sensations and
perceptions already produced by the external shock. Since this utterance is made under the

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immediate and uncontrolled domination of the senses, rather than reason and reflection, and during
the brief period when consideration of self-interest could not have been fully brought to bear, the
utterance may be taken as expressing the real belief of the speaker as to the facts just observed by
him.32
The victim’s information to Camilo and Segundino as to the material facts was made immediately
after the startling incident occurred. It is as categorical as it is spontaneous and instinctive. It cannot
be concluded that in a very short span of time, taking into consideration the ripe age of the victim,
his relationship to appellant, and the cruelty and suffering which immediately preceded the
confession, the victim had the opportunity to concoct the facts surrounding the incident and its
authorship. Besides, there appears to be no reason or motive on the part of the victim to point his
son as the culprit if such were not indeed the truth.
Appellant’s intoxication at the time of the commission of the crime, being an alternative
circumstance under Article 15 of the Revised Penal Code, may be appreciated as aggravating if the
same is habitual or intentional, otherwise it shall be considered as a mitigating circumstance. The
trial court observed:
“We now come to another matter, which is the fact that during the incident, the accused was drunk.
This was testified to by Camilo Cudal and admitted by the wife of the accused. The accused
himself admitted that he had been drinking with his cousins and nephews, but he claims that he did
not drink much. Drunkenness is an alternative circumstance. It is aggravating if the accused is a
habitual drunkard. It is mitigating if it is otherwise.
The date of the incident is two (2) hours after midnight which ushered in the new year. Before that,
the accused and his relatives were celebrating and they drank San Miguel gin. No evidence was
presented to establish that he is a habitual drunkard. It is a legal maxim that when there is doubt,
the doubt should be resolved in favor of the accused. This court[,] therefore, believes that this
should be taken as a mitigating circumstance, which is favorable to the accused.”33 (Italics
supplied)
Absent any showing then that appellant’s intoxication was habitual or intentional, it may only be
considered as mitigating to correctly call for the imposition of the penalty of reclusion perpetua, in
accordance with Article 63, paragraph 2(3) of the Revised Penal Code.34
WHEREFORE, the Court of Appeals Decision of February 11, 2005 which affirmed the October
28, 1998 Decision of Branch 39 of the Regional Trial Court of Lingayen, Pangasinan, convicting
appellant Pablo Cudal of parricide and meting out the penalty of reclusion perpetua is AFFIRMED.
SO ORDERED.
G.R. No. 159734. November 30, 2006.*
ROSARIO V. ASTUDILLO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
G.R. No. 159745. November 30, 2006.*
FILIPINA M. ORELLANA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Rights of Suspects; Miranda Warning; The rights of suspects exist only in “custodial
interrogations,” or “in-custody interrogation of accused persons”—and, by custodial interrogation
is meant “questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.”—It bears noting,
however, that when the prosecution formally offered its evidence, petitioners failed to file any
objection thereto including their extrajudicial admissions. At any rate, this Court answers the issue
in the affirmative. People v. Ayson, 175 SCRA 216 (1989), is instructive: In Miranda, Chief Justice
Warren summarized the procedural safeguards laid down for a person in police custody, “in-
custody interrogation” being regarded as the commencement of an adversary proceeding against the

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suspect. He must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the presence of
an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been given, such opportunity afforded him,
the individual may knowingly and intelligently waive these rights and agree to answer or make a
statement. But unless and until such warnings and waivers are demonstrated by the prosecution at
the trial, no evidence obtained as a result of interrogation can be used against him. The objective is
to prohibit “incommunicado interrogation of individuals in a police-dominated atmosphere,
resulting in self-incriminating statement without full warnings of constitutional rights.” The rights
above specified, to repeat, exist only in “custodial interrogations,” or “in-custody interrogation of
accused persons.” And, as this Court has already stated, by custodial interrogation is meant
“questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.”
Same; Same; Confessions and admissions in violation of Section 12 (1), Article III of the
Constitution are inadmissible in evidence against the declarant and more so against third persons.—
The extrajudicial confession before the police of Flormarie (who, as earlier stated, has remained at
large) in which she incriminated petitioners bears a different complexion, however, as it was made
under custodial investigation. When she gave the statement, the investigation was no longer a
general inquiry into an unsolved crime but had begun to focus on a particular suspect. The records
show that Camilo had priorly reported the thievery to the same police authorities and identified
Flormarie and Benitez as initial suspects. It is always incumbent upon the prosecution to prove at
the trial that prior to incustody questioning, the confessant was informed of his constitutional rights.
The presumption of regularity of official acts does not prevail over the constitutional presumption
of innocence. Hence, in the absence of proof that the arresting officers complied with these
constitutional safeguards, extrajudicial statements, whether inculpatory or exculpatory, made during
custodial investigation are inadmissible and cannot be considered in the adjudication of a case. In
other words, confessions and admissions in violation of Section 12 (1), Article III of the
Constitution are inadmissible in evidence against the declarant and more so against third persons.
This is so even if such statements are gospel truth and voluntarily given.
Criminal Law; Admissions; In criminal cases, an admission is something less than a confession—it
is but a statement of facts by the accused, direct or implied, which do not directly involve an
acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound,
against his interests, of the evidence or truths charged.—In another vein, Rosario labels her written
statement as a mere “apology for breach of procedure.” Her resort to semantics deserves scant
consideration, however. A cursory reading of her letter reveals that she confessed to the taking of
“short-over.” There is a “short-over” when there is a discrepancy between the actual amount
collected appearing in the yellow (warehouse) copy and the remitted amount appearing in the blue
(accounting) copy. In criminal cases, an admission is something less than a confession. It is but a
statement of facts by the accused, direct or implied, which do not directly involve an
acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound,
against his interests, of the evidence or truths charged. It is an acknowledgment of some facts or
circumstances which, in itself, is insufficient to authorize a conviction and which tends only to
establish the ultimate facts of guilt. A confession, on the other hand, is an acknowledgment, in
express terms, of his guilt of the crime charged.
Same; Theft; Elements.—The elements of the crime of Theft as provided for in Article 308 of the

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Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs
to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the use of violence against or
intimidation of persons or force upon things.
Same; Same; Qualified Theft; Elements.—Theft becomes qualified when any of the following
circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is
committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail
matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a
plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was
taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.
Same; Same; Same; Mere circumstance that the accused were employees of the private
complainant does not suffice to create the relation of confidence and intimacy that the law requires
—the element of grave abuse of confidence requires that there be a relation of independence,
guardianship or vigilance between the accused and their employer; Where the relationship did not
involve strict confidence, whose violation did not involve grave abuse thereof, the offense
committed is only simple theft.—Mere circumstance that petitioners were employees of Western
does not suffice to create the relation of confidence and intimacy that the law requires. The element
of grave abuse of confidence requires that there be a relation of independence, guardianship or
vigilance between the petitioners and Western.Petitioners were not tasked to collect or receive
payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely
assisted customers in making a purchase and in demonstrating the merchandise to prospective
buyers. While they had access to the merchandise, they had no access to the cashier’s booth or to
the cash payments subject of the offense. Lily conceded that petitioners were merely tasked to
“assist in the sales from day to day” while Camilo admitted that the cashier is the custodian of the
cash sales invoices and that no other person can handle or access them. The limited and peculiar
function of petitioners as salespersons explains the lack of that fiduciary relationship and level of
confidence reposed on them by Western, which the law on Qualified Theft requires to be proven to
have been gravely abused. Mere breach of trust is not enough. Where the relationship did not
involve strict confidence, whose violation did not involve grave abuse thereof, the offense
committed is only simple theft. Petitioners should therefore be convicted of simple theft, instead of
Qualified Theft.
Same; Same; Conspiracy; Mere companionship does not establish conspiracy.—In Rosario’s case,
the Office of the Solicitor General made a sweeping conclusion that the extent of her participation
in the act of taking merchandise need not be specified since she attributed her other act of taking
“short-over” to “pakikisama” or companionship. The conclusion does not persuade. Mere
companionship does not establish conspiracy. As indicated early on, there were two different sets of
imputed acts, one individual and the other collective. Rosario’s admission was material only to her
individual guilt as she referred only to the “short-over.” The wording of her admission cannot be
construed to extend to the other offense charging conspiracy under which no overt act was
established to prove that Rosario shared with, and concurred in, the criminal design of taking away
Western’s merchandise.
Same; Same; Same; In cases alleging conspiracy, an extrajudicial confession is admissible against a
co-conspirator as a circumstantial evidence to show the probability of participation of said co-
conspirator in the crime committed.—Filipina in fact gave a written statement acknowledging her
own act of asporting the merchandise. The rule is explicit that the act, declaration or omission of a

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party as to a relevant fact may be given in evidence against him. The declaration of an accused
acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may
be given in evidence against him. Moreover, Filipina’s statement dovetailed with Benitez’s
admission, which was corroborated by Flormarie’s confessions. In cases alleging conspiracy, an
extrajudicial confession is admissible against a co-conspirator as a circumstantial evidence to show
the probability of participation of said co-conspirator in the crime committed.
Same; Qualified Theft; Penalties; In the determination of the penalty for Qualified Theft, note is
taken of the value of the property taken, and where the value exceeds P=22,000.00, the basic
penalty is prision mayor in its minimum and medium periods to be imposed in the minimum
period, and to determine the additional years of imprisonment, the amount is deducted from the
total amount, the difference being then divided by P=10,000.00, disregarding any amount less than
P=10,000.00.—On the imposition of the correct penalty, People v. Mercado is instructive. In the
determination of the penalty for Qualified Theft, note is taken of the value of the property stolen,
which is P797,984.00. Since the value exceeds P22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the maximum period—Eight (8) Years, Eight (8)
Months and One (1) Day to Ten (10) Years of prision mayor. To determine the additional years of
imprisonment, the amount of P22,000.00 is deducted from P797,984.00, which yields a remainder
of P775,984.00. This amount is then divided by P10,000.00, disregarding any amount less than
P10,000.00. The end result is that 77 years should be added to the basic penalty. The total
imposable penalty for simple theft should not exceed 20 years, however. As for the penalty for
Qualified Theft, it is two degrees higher than that for Simple Theft, hence, the correct penalty is
reclusion perpetua.
PETITIONS for review on certiorari of the decision and resolution of the Court of Appeals.
Justinian E. Adviento for petitioner Rosario Astudillo.
Arias Law Office for petitioner.
CARPIO-MORALES, J.:
Petitioners Rosario “Baby” Astudillo (Rosario) and Filipina “Lina” Orellana (Filipina) via separate
petitions for review on certiorari seek a review of the Decision1 and the Resolution2 of the Court of
Appeals affirming with modification that of the Regional Trial Court of Quezon City, Branch 783
(the trial court) finding them guilty of Qualified Theft and denying their Motions for
Reconsideration, respectively.
On complaint of Western Marketing Corporation (Western), petitioners were collectively charged
with Qualified Theft, along with Flormarie Robel (Flormarie) and Roberto Benitez (Benitez), in
Criminal Case No. Q-96-67827, under an Information dated September 9, 1996 reading:
“The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F. BENITEZ,
ROSARIO ASTUDILLO a.k.a. “Baby” and FILIPINA ORELLANA Y MACARAEG of the crime
of QUALIFIED THEFT as follows:
That during the period comprised from January 1996 to February 1996, the above-named accused,
being then employed as relieving cashier/service-in-charge (Flormarie Calajate Robel),
supervisor/floor manager (Roberto F. Benitez[)], sales clerks (Rosario Astudillo a.k.a. “Baby” and
Filipina Orellana y Macaraeg) at the WESTERN MARKETING CORPORATION, represented by
LILY CHAN ONG, and as such had free access to the company premises, materials, supplies and
items store[d] thereat, conspiring, confederating together and mutually helping one another, with
grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did,
then and there wilfully, unlawfully and feloniously take, steal and carry away two (2) booklets of

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Sales Invoices Nos. from 128351 to 128400 of the said corporation and thereafter use the said
invoices in the preparation of fictitious sales and withdrawals of merchandise with the total value of
P797,984.00 Philippine Currency, belonging to the said WESTERN MARKETING
CORPORATION, to its damage and prejudice.
CONTRARY TO LAW.”4 (Emphasis supplied)
Additionally, petitioners, Benitez and Norberto “Carlo” Javier (Javier) were individually charged
also with Qualified Theft in four (4) separate Informations all dated September 9, 1996.
The Information indicting petitioner Rosario, docketed as Criminal Case Nos. Q-96-67829, and that
indicting petitioner Filipina, docketed as Q-96-67830, respectively read:
“The undersigned accuses ROSARIO ASTUDILLO a.k.a. “Baby” of the crime of QUALIFIED
THEFT as follows:
That on or about the period from May 1, 1994 to February 16, 1996, in Quezon City, Philippines,
the above-named accused, being then employed as sales representative/clerk at the WESTERN
MARKETING CORPORATION (P. Tuazon Branch), represented by LILY CHAN ONG, and as
such had free access to the company cash sales, with grave abuse of confidence and intent of gain,
and without the consent of the owner thereof, did, then and there, wilfully, unlawfully and
feloniously take, steal and carry away the excess sum/amount between the tag price and discounts
price in the sum of P12,665.00, belonging to the said WESTERN MARKETING CORPORATION,
to its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.
xxx
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED
THEFT, committed as follows:
That on or about the period from May 1, 1994 to January 27, 1996, in Quezon City, Philippines, the
above-named accused, being then employed as Sales clerk at the WESTERN MARKETING
CORPORATION, represented by LILY CHAN ONG, and as such had free access to the company
cash sales, with grave abuse of confidence and intent of gain, and without the consent of the owner
thereof, did, then and there, wilfully, unlawfully and feloniously take, steal and carry away the
excess sum/amount between the tag price and discount price of each and every items sold by her to
company customers, in the sum of P4,755.00, belonging to the said WESTERN MARKETING
CORPORATION, to its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.”5
Petitioners, Benitez and Javier, with the assistance of their respective counsel, pleaded not guilty
during arraignment.6 Flormarie has remained at large.
By Order of December 10, 1997, Criminal Case No. Q-9667828, the case against Javier, was
dismissed on account of the desistance of the private complainant.7 The remaining cases against
petitioners and Benitez were consolidated for joint trial.
By Decision of May 28, 1998, the trial court found the accused-herein petitioners and Benitez
guilty beyond reasonable doubt of Qualified Theft and were accordingly sentenced as follows:
IN CRIMINAL CASE NO. Q-96-67827—
Accused Roberto F. Benitez, Rosario Astudillo a.k.a. “Baby,” and Filipina Orellana y Macaraeg
shall each suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to
FOURT EEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of
P797,984.00, jointly and severally for their civil liability;
Accused Rosario Astudillo a.k.a. “Baby,” shall suffer imprisonment of TWELVE (12) YEARS and

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ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and
to pay the amount of P12,665.00 for her civil liability;
Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE (12) YEARS and
ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and
to pay the sum of P4,755.00 for her civil liability; and
Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1)
DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay
the amount ofP11,079.00 for his civil liability.
The penalties imposed on all the accused are quite harsh, but as the maxim goes, “Dura Lex Sed
Lex,” the Court could not impose otherwise.
SO ORDERED.”8 (Emphasis in the original; italics supplied)
Petitioners and Benitez elevated their cases on appeal. The Court of Appeals affirmed the trial
court’s judgment with modification as to the penalties imposed, thus:
“WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court of Quezon City,
Branch 78 is AFFIRMED with MODIFICATION.
1. In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario Astudillo and Filipina
Orellana are found guilty beyond reasonable doubt of qualified theft and are hereby sentenced to
suffer the penalty ranging from 10 years and 1 day of prision mayor in its maximum period to 15
years of reclusion temporal as maximum, and to pay to the offended party the amount of
P797,984.00, jointly and severally, as reparation for the unrecovered stolen merchandise;
2. In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer imprisonment ranging from 10 years and 1 day of
prision mayor in its maximum period as minimum to 14 years, 8 months and 1 day of reclusion
temporal in its medium period as maximum, and to pay to the offended party amount of P12,665.00
as reparation for the stolen goods.
3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer imprisonment ranging from 4 years, 2 months and
1 day of prision correccional in its maximum period as minimum to 8 years and 1 day of prision
mayor in its medium period as maximum and to pay to the offended party the amount of P4,755.00
as reparation for the stolen property;
4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer imprisonment ranging from 6 years and 1 day of
prision mayor in its minimum period as minimum to 10 years and 1 day of prision mayor in its
maximum period as maximum and to pay to the offended party the amount of P11,079.00 as
reparation for the stolen goods.
SO ORDERED.”9 (Emphasis in the original; italics supplied)
After petitioners and Benitez’s respective Motions for Reconsideration were denied by the Court of
Appeals, petitioners filed these separate petitions for review which were, on motion of the Office of
the Solicitor General, ordered consolidated.10
In her petition, Rosario proffers the following assignment of errors:
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY FOR
BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.
THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL COURSE OF
JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE OFFENSE OF THEFT

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WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL TAKING.
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS DISCRETION
TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY CONSIDERING AND
DISTORTING EVIDENCE TO CONFORM TO ITS FLAWED CONCLUSION.11 (Italics
supplied)
On her part, Filipina raises the following issues:
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE PETITIONER FILIPINA
ORELLANA Y MACARAEG OF THE CRIME CHARGED DESPITE INSUFFICIENCY OF
EVIDENCE
WHETHER OR NOT AN EXTRAJUDICIAL ADMISSION OBTAINED THROUGH TRICKERY
AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF COUNSEL IS A
SUFFICIENT GROUND TO CONVICT AN ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND THAT
ALL ACCUSED ARE CO-EMPLOYEES AND WORKING IN ONE COMPANY12 (Italics
supplied)
From the evidence for the prosecution, the following version is gathered:
Petitioners were hired by Western, a chain of appliance stores, as salespersons at its branch at P.
Tuazon Boulevard in Cubao, Quezon City. Benitez and Flormarie were hired as floor manager and
service-in-charge/cashier-reliever, respectively, at the same branch of Western.13
On February 21, 1996, in the course of preparing the January monthly sales report of the P. Tuason
branch of Western, Branch Accountant Marlon Camilo (Camilo) noticed that the computer printout
of the monthly sales report revealed a belated entry for Cash Sales Invoice No. 128366. Upon
verification from Western’s head office, Camilo learned that the branch received the booklet
containing 50 cash sales invoices to which Invoice No. 128366 formed part.
Camilo then confirmed that the booklet of sales invoices bearing numbers 128351 up to 128400
was missing. And he noted that the daily cash collection report did not reflect any remittance of
payments from the transactions covered by the said invoices.
Some cash sales invoices were later recovered. From recovered Invoice No. 128366, Camilo found
out that Flormarie was the one who filled it up and received the payment reflected therein.
From recovered Invoice Nos. 128358 and 128375, Camilo found out that the goods covered thereby
were missing. Concluding that the transactions under the said invoices were made but no payment
was remitted to Western, Camilo reported the matter to Ma. Aurora Borja (Aurora), the branch
assistant manager.
Benitez soon approached Camilo and requested him not to report the matter to the management, he
cautioning that many would be involved.
Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo (Rita) and Norma
Ricafort (Norma) during which Benitez and Filipina pleaded with Camilo not to report the matter to
the management. Flormarie, who called on
Camilo by telephone, made a similar plea as she admitted to stealing the missing booklet of
invoices, she explaining that her father was sick and had to undergo medical operation, and offering
to pay for the goods covered thereby.14
In the meantime, Flormarie had gone absent without leave.
Aurora eventually reported the case of the missing invoices and the shortage of cash sales
collection to Western’s branch manager Lily Chan Ong (Lily).15
In a subsequent meeting with Lily, Filipina admitted having brought home some appliances while

Page 142 of 162
Benitez gave a handwritten statement reading:16
“Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong at Western Marketing
Corp. Ang mga kasalanan ako po ay:
1) Ang pagkuha ng Promo na dapat ay para sa Customer.
2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding ginagawa. Example
nagbayad ang Customer ng 9000 and C.P. 8,900 and 9,000 ay nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako nagplano at si Ate Lina.
Kay Ate Lolit
Tiffin Carrier
Cookware Set 7 pcs.
Ate Lina
Cookware Set 7 pcs.
Norma
Cookware Set 7 pcs.
Airpot Lemon
Robert
National Elec. Stove HNK-211
Rice Bowl
Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako na hindi na ito
uulitin ang lahat ng mga kasalanan sa Western ay kay Mrs. Lily Ong at Pinapangako ko po na
Sumpa man kasama ang pamilya at salamat din po dahil ako ay pinatawad nila at binigyan pa ng
isang pagkakataon. Maraming maraming salamat po.”17(Emphasis and italics supplied)
In a still subsequent meeting with Lily, Filipina made a written statement in the former’s presence
reading:
“Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko na uulitin iyong
naglalabas ng mga items tulad ng cookware set at casserole na ang mga kasama ko po rito ay sina
Lolit, Norma, Robert na isinagawa namin. Na kami po si Robert ang nagsabi kay Lolit na maglabas
ng stock pero bago po namin ginagawa iyon nagsabi po kami kay Lolit na sumagot naman ng ng
(sic) oo pero kami po ni Robert and (sic) nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung
anuman po ang gusto ni Ma’m Lily na gawin sa akin ay lubos ko pong tatanggapin.”18 (Italics
supplied)
Also in a meeting with Lily, Rosario, who was earlier implicated by Flormarie’s husband in his
telephone conversation with Aurora,19 wrote:
Mam Lily,
Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding sa “Short-over.” Siguro
ho nagawa ko lang ho ’yon sa pakikisama sa kanila, sa mga kasamahan ko dito sa Nuestra, alam ko
ho na mali ’yon kaya pinagsisisihan ko ho ’yon. Sana ho mapatawad ninyo ako sa nagawa kong
kasalan.
’Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga ho sya pero yung
pagnanakaw niyang ginawa wala akong kinalaman don. Kahit ho siguro magkautang-utang ako
hindi ko magagawa ’yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan at pinapangako ko ho na
hinding-hindi ko na uulitin.
Maraming salamat ho,

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(Sgd.) Baby Astudillo
P.S. ’yun ho palang perang na-oover naming, pinaghahatian po namin nila Rita at ni Marie.”20
(Italics supplied)
Still in a separate meeting with Lily and her siblings on one hand, and Flormarie and her husband
on the other, Flormarie wrote what she knew of the incident as follows:
“Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng Western Mktg. P. Tuazon
Branch.
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad, binabago na lang ang presyo sa duplicate
copy and then kinukuha na lang sa cashier ang pera tapos naghahati-hati na lang si robert, baby,
lina, lolit, Rita at Marie, Norma, Fe.
xxx
*INVOICE
Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos binigyan niya ako ng
(3 resibo series) at hindi ko na po alam kung anong ginawa na niya sa invoice.
Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang taong maglalabas ng unit
tapos ibebenta ko na yong unit yung pera kinukuha ko na bibigyan ko lang siya ng kahit
magkanong amount kung sino yong taong inutusan ko.”21 (Italics supplied)
Flormarie, in the company of her sister Delma and Lily, subsequently appeared before a notary
public to execute a similar statement reading:
xxxx
2. Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng kapatawaran sa aking mga
nagawa at upang makipagkasundo sa isang maavos na pagbabavad sa mga halagang aking nakuha
sa Western at mahalaga sa lahat, upang isiwalat ang mga taong kasangkot sa katiwaliang ito at mga
paraan ng paggawa nito.
3.Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod na katiwalian:
3.1. Short-Over—Ito ay ang pagtatala ng mas mababang halaga ng paninda sa mga “duplicate
copies” ng resibo kapag ang kustomer ay hindi tumawad sa “tag price” at nagbayad ng “cash”. Ang
sobrang halaga ay pinaghahatian namin nina ROBERT BENITEZ (“Robert”); ROSARIO
ALTUDILLO (“Baby”); FILIPINA ORELLANA (“Lina”); LOLIT BORJA (“Lolit”); RITA
LORENZO (“Rita”); NORMA RICAFORT (“Norma”) at FE CABIGAN (“Fe”).
xxxx
3.3. INVOICING—Sa pamamagitan ng mga resibong na may tatak na “paid” na ibinibigay ni
Robert sa aking nailalabas ko ang mga paninda na akin namang naibebenta.22
x x x x (Emphasis and italics supplied)
Flormarie and her sister, together with Lily, later executed a statement before Cubao SPOl Jose Gil
Gregorio, reading:
TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch Accountant
nadiskubre niya ang pagkawala ng isang booklet ng Sales Cash Invoice (50pcs.) na may numerong
128351 to 128400 nitong mga nakaraang araw may kinalaman ka ba sa nasabing pangyayari?
SAGOT: Opo.
T :Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang loob mong ginawa?
S :Itinuro lang po ito sa akin.
T :Ano ang iyong ginawa?
Astudillo vs. People
S :Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales Invoice sa turo ni

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ROBERT BENITEZ na Sales Supervisor sa Western Marketing Corp.
xxxx
T :Sa tatlong series ng Cash Sales Invoice na napunta sa iyo ano ang iyong ginawa?
S :Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing Corp.
xxxx
T :Sa maikling Salaysay, ikuwento mo nga sa akin kung papaano mo isinagawa ang iyong
pagnanakaw sa paggamit ng mga Cash Sales Invoice?
S :Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng resibo na ibinigay sa
akin ni ROBERT BENITEZ at tinuruan po niya ako na sulatan ko yung mga resibo ng mga items
na gusto kong ilabas, at pagk atapos po ay ibinalik ko ito sa Western Marketing Corp at binigay ko
ito kay ROBERT BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na magpalabas
noong mga items na aking isinulat sa resibo.
xxxx
T :Bukod kay ROBERT BENITEZ may mga tao bang karamav sa naganap na transaksiyon?
S :Mayroon po.
T :Sino-sino ito?
S :Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady.
T :Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na transaksiyon?
S :Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa resibo, at ganoon din
po itong si ROSARIO ASTUDILLO.
xxxx
T :Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas ng yung mga
items doon sa res ibo na iyong ginawa?
S :Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang sales lady.23 (Emphasis
and italics supplied)
In an inventory of stocks conducted at the branch office of Western, several other appliances were
found missing as were unauthorized deductions from the cash collections.24 The total missing
merchandise was valued at P797,984.00 as reflected in the inventory report.25 And discrepancies
between the actual sales per cash sales invoice and the cash remittance to the company in the sum
of P34,376.00 for the period from January 1994 to February 199626 were also discovered,
prompting Western to initiate the criminal complaints for Qualified Theft.
Both petitioners raise as issue whether the employees’ extrajudicial admissions taken before an
employer in the course of an administrative inquiry are admissible in a criminal case filed against
them.
Petitioners posit in the negative. They argue that as their extrajudicial statements were taken
without the assistance of counsel, they are inadmissible in evidence, following Section 12, Article
III of the 1987 Constitution.27
It bears noting, however, that when the prosecution formally offered its evidence, petitioners failed
to file any objection thereto including their extrajudicial admissions.28 At any rate, this Court
answers the issue in the affirmative. People v. Ayson29 is instructive:
“In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, “in-custody interrogation” being regarded as the commencement of an adversary
proceeding against the suspect.
He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he

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so desires. Opportunity to exercise those rights must be afforded to him throughout the
interrogation. After such warnings have been given, such opportunity afforded him, the individual
may knowingly and intelligently waive these rights and agree to answer or make a statement. But
unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no
evidence obtained as a result of interrogation can be used against him.
The objective is to prohibit “incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in selfincriminating statement without full warnings of constitutional rights.”
The rights above specified, to repeat, exist only in “custodial interrogations,” or “in-custody
interrogation of accused persons.” And, as this Court has already stated, by custodial interrogation
is meant “questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.”30 (Emphasis and
italics supplied)
Ayson adds:
The employee may, of course, refuse to submit any statement at the investigation, that is his
privilege. But if he should opt to do so, in his defense to the accusation against him, it would be
absurd to reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his making and
presenting them, his “Miranda rights” (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant in custodial investigations.”31
People v. Ting Lan Uy, Jr.32 is similarly instructive:
“Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-
appellant are not available before government investigators enter the picture. Thus we held in one
case (People v. Ayson, [supra]) that admissions made during the course of an administrative
investigation by Philippine Airlines do not come within the purview of Section 12. The protective
mantle of the constitutional provision also does not extend to admissions or confessions made to a
private individual, or to a verbal admission made to a radio announcer who was not part of the
investigation, or even to a mayor approached as a personal confidante and not in his official
capacity.” (Emphasis and italics supplied)
The Court of Appeals did not thus err in pronouncing that petitioners were not under custodial
investigation to call for the presence of counsel of their own choice, hence, their written
incriminatory statements are admissible in evidence.
The extrajudicial confession33 before the police of Flormarie (who, as earlier stated, has remained
at large) in which she incriminated petitioners bears a different complexion, however, as it was
made under custodial investigation. When she gave the statement, the investigation was no longer a
general inquiry into an unsolved crime but had begun to focus on a particular suspect. The records
show that Camilo had priorly reported the thievery to the same police authorities and identified
Flormarie and Benitez as initial suspects.
“It is always incumbent upon the prosecution to prove at the trial that prior to in-custody
questioning, the confessant was informed of his constitutional rights. The presumption of regularity
of official acts does not prevail over the constitutional presumption of innocence. Hence, in the
absence of proof that the arresting officers complied with these constitutional safeguards,
extrajudicial statements, whether inculpatory or exculpatory, made during custodial investigation
are inadmissible and cannot be considered in the adjudication of a case. In other words, confessions
and admissions in violation of Section 12 (1), Article III of the Constitution are inadmissible in
evidence against the declarant and more so against third persons. This is so even if such statements
are gospel truth and voluntarily given.”34 (Emphasis and italics supplied)

Page 146 of 162
Petitioners at all events argue that their written statements were obtained through deceit, promise,
trickery and scheme, they claiming that Lily dictated to them their contents. There is nothing on
record, however, buttressing petitioners’ claim other than their self-serving assertion. The
presumption that no person of normal mind would deliberately and knowingly confess to a crime
unless prompted by truth and conscience35 such that it is presumed to be voluntary until the
contrary is proved thus stands.36
The circumstances surrounding the execution of the written admissions likewise militate against
petitioners’ bare claim. Petitioners admittedly wrote their respective letters during office hours in
Lily’s office which was located in the same open booth or counter occupied by the cashier and
credit card in-charge.37 And this Court takes note of the observation of the trial court that
petitioners’ written notes were “neatly written in Tagalog, and not in broken Tagalog as spoken by
Lily Ong.”38
In another vein, Rosario labels her written statement as a mere “apology for breach of
procedure.”39 Her resort to semantics deserves scant consideration, however. A cursory reading of
her letter reveals that she confessed to the taking of “shortover.”
There is a “short-over” when there is a discrepancy between the actual amount collected appearing
in the yellow (warehouse) copy and the remitted amount appearing in the blue (accounting) copy.40
“In criminal cases, an admission is something less than a confession. It is but a statement of facts
by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or
of his criminal intent to commit the offense with which he is bound, against his interests, of the
evidence or truths charged. It is an acknowledgment of some facts or circumstances which, in itself,
is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt.
A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime
charged.”41
The issue on the admissibility of petitioners’ respective extra-judicial statements aside, an
examination of the rest of the evidence of the prosecution does not set petitioners free.
The elements of the crime of Theft as provided for in Article 308 of the Revised Penal Code are:
(1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and
(5) that the taking be accomplished without the use of violence against or intimidation of persons or
force upon things.42
Theft becomes qualified when any of the following circumstances is present: (1) the theft is
committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the
property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists
of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a
fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil disturbance.43
Cashier Rita testified in a detailed and categorical manner how the petitioners took the alleged
amounts of “short-over” deducted from the sum of cash collections. The tampered invoices
presented by the prosecution which glaringly show the variance in the amounts corroborate Rita’s
claim.
Rosario contends, however, that there was no “unlawful taking” since the amounts of “short-over”
did not belong to Western. The argument does not lie. The “excess” sums formed part of the selling
price and were paid to, and received by, Western. The discrepancy in the amounts came about on
account of the alteration in the copies of the invoices which should have faithfully reflected the
same amount paid by the customer.

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As for petitioners’ claim of entitlement to the “excess” amounts as salespersons’ commission, it was
not established in evidence.
Even assuming that the “short-over” was intended to defray sundry expenses, it was not incumbent
upon the salespersons to claim them and automatically apply them to the miscellaneous charges. It
was beyond the nature of their functions. The utilization of the “short-over” was not left to the
discretion of the salespersons. The element of unlawful taking was thus established. A further
review of the nature of petitioners’ functions shows, however, that the element of grave abuse of
confidence is wanting in the case.
Q :As an accountant employee since June 1995, Mr. Witness, you are familiar that in the procedure
in any particular branch of Western Marketing Corporation, are you aware if somebody buys an
item from one store, do you know the flow of this sale?
A :Yes, sir.
Q :In fact, in the store there are employees which are assigned with specific duties or functions, is it
not?
A :Yes, sir.
Q :Like for instance, let’s take the case of Filipina Orellana. Her function is merely to entertain
customers who go to the store and intend to buy one of the items that are disp layed, is it not?
A :Yes, sir.
Q :So, if this customer is resolved to buy one item, Filipina Orellana as a sales clerk, all she has to
do is to refer the particular customer to another employee of the company, is that correct?
A :Yes, sir.
Q :Now, you have also employees who are preparing inv oices, they are called invoicers, is it not?
A :Yes, sir.
Q :So when Filipina Orellana refers this customer to the invoicer, the invoicer now will take over
from that function of Filipina Orellana after referring this customer?
A:Yes, sir.
Q :And this invoicer now will refer the invoice for this particular item for payment to the cashier of
the company, is it not?
A :Yes, sir.
Q :And it is the cashier who will receive the payment from this customer?
A :Yes, sir.
Q :And in fact, the customer or the cashier will receive the exact amount of payment as reflected in
the invoice that was prepared by the invoicer, is it not?
A :Yes, sir.
Q :From that point up to the payment, Filipina Orellana has no more hand in that particular
transaction, her function is only to entertain and refer the customer for sales purposes, that is
correct?
A : Yes, sir.44 (Emphasis, underscoring and italics supplied)
Mere circumstance that petitioners were employees of Western does not suffice to create the
relation of confidence and intimacy that the law requires.45 The element of grave abuse of
confidence requires that there be a relation of independence, guardianship or vigilance between the
petitioners and Western.46 Petitioners were not tasked to collect or receive payments. They had no
hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in
making a purchase and in demonstrating the merchandise to prospective buyers.47 While they had
access to the merchandise, they had no access to the cashier’s booth or to the cash payments subject
of the offense.

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Lily conceded that petitioners were merely tasked to “assist in the sales from day to day”48 while
Camilo admitted that the cashier is the custodian of the cash sales invoices and that no other person
can handle or access them.49 The limited and peculiar function of petitioners as salespersons
explains the lack of that fiduciary relationship and level of confidence reposed on them by Western,
which the law on Qualified Theft requires to be proven to have been gravely abused. Mere breach
of trust is not enough. Where the relationship did not involve strict confidence, whose violation did
not involve grave abuse thereof, the offense committed is only simple theft.50 Petitioners should
therefore be convicted of simple theft, instead of Qualified Theft.
On Criminal Case No. Q-96-67827 respecting petitioners’ collective guilt in taking away
merchandise by making it appear that certain items were purchased with the use of stolen cash sales
invoices:
It is settled that conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it. To effectively serve as a basis for conviction,
conspiracy must be proved as convincingly as the criminal act. Direct proof is not absolutely
required for the purpose.
A review of the inference drawn from petitioners’ acts before, during, and after the commission of
the crime to indubitably indicate a joint purpose, concert of action and community of interest is
thus in order.51
In Rosario’s case, the Office of the Solicitor General made a sweeping conclusion that the extent of
her participation in the act of taking merchandise need not be specified since she attributed her
other act of taking “short-over” to “pakikisama” or companionship.52 The conclusion does not
persuade.
Mere companionship does not establish conspiracy.53 As indicated early on, there were two
different sets of imputed acts, one individual and the other collective. Rosario’s admission was
material only to her individual guilt as she referred only to the “short-over.” The wording of her
admission cannot be construed to extend to the other offense charging conspiracy under which no
overt act was established to prove that Rosario shared with, and concurred in, the criminal design of
taking away Western’s merchandise.
The prosecution relied on Aurora’s statement that Flormarie’s husband mentioned Rosario as
among those involved in the anomaly.54 Under the hearsay evidence rule, however, a witness can
testify only to those facts which he knows of his personal knowledge, that is, those which are
derived from his own perception, except as otherwise provided in the Rules.55
Aurora testified that she witnessed Filipina, along with Benitez, in inter alia hiring third persons to
pose as customers who received the items upon presenting the tampered invoice.56
Filipina in fact gave a written statement acknowledging her own act of asporting the merchandise.
The rule is explicit that the act, declaration or omission of a party as to a relevant fact may be given
in evidence against him.57 The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him.58
Moreover, Filipina’s statement dovetailed with Benitez’s admission, which was corroborated by
Flormarie’s confessions.59 In cases alleging conspiracy, an extrajudicial confession is admissible
against a co-conspirator as a circumstantial evidence to show the probability of participation of said
coconspirator in the crime committed.60
Except with respect to Rosario, then, this Court finds welltaken the trial court’s observation that the
admissions were full of substantial details as to how the accused conspired to commit the criminal
acts and as to how they manipulated the sales transactions at Western to effect and consummate the
theft of the goods.

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In fine, insofar as Filipina is concerned, a thorough evaluation of the evidence warrants the
affirmance of her guilt beyond reasonable doubt of having conspired with Benitez, et al.
On the imposition of the correct penalty, People v. Mercado61 is instructive. In the determination of
the penalty for Qualified Theft, note is taken of the value of the property stolen, which is
P797,984.00. Since the value exceeds P22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the maximum period—Eight (8) Years, Eight (8)
Months and One (1) Day to Ten (10) Years of prision mayor.
To determine the additional years of imprisonment, the amount of P22,000.00 is deducted from
P797,984.00, which yields a remainder of P775,984.00. This amount is then divided by P10,000.00,
disregarding any amount less than P10,000.00. The end result is that 77 years should be added to
the basic penalty.
The total imposable penalty for simple theft should not exceed 20 years, however.
As for the penalty for Qualified Theft, it is two degrees higher than that for Simple Theft, hence,
the correct penalty is reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals dated December 18, 2002 is MODIFIED.
In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found guilty beyond
reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from
Two (2) Years, Four (4) Months and One (1) Day of prision correccional in its medium and
maximum periods as minimum, to Seven (7) Years, Four (4) Months and One (1) Day of prision
mayor in its minimum and medium periods as maximum, and to pay to the offended party the
amount of P12,665.00 as civil liability.
In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found guilty beyond
reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate penalty ranging from
Two (2) Months, and One (1) Day of arresto mayor in its medium and maximum periods as
minimum, to One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional in
its minimum and medium periods as maximum, and to pay to the offended party the amount of
P4,755.00 as civil liability.
In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is acquitted.
In all other respects, the assailed Decision is affirmed except that petitioner FILIPINA M.
ORELLANA is sentenced to suffer the penalty of reclusion perpetua with the accessory penalties
under Article 40 of the Revised Penal Code.
SO ORDERED.
G.R. No. 77776. June 27, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO AGAPINAY, ALEX
AGAPINAY, FORTUNATO AGAPINAY, DANTE AGAPINAY, DELFIN AGAPINAY, and
CIRILO AGAPINAY, accused-appellants.
Criminal Law; Criminal Procedure; Evidence; Words of a bystander who said, as the victim was
being stabbed by others: “Kill him and we will bury him.” does not make former liable as principal
by inducement as her words were not the efficient cause of the commission of crime.—With respect
to Amor Flores, we agree with the trial judge that he should be brought to the bar of justice. As
regards, however, Julia Rapada, it is the opinion of this Court, and based on the records, that she
can not be held liable (as a principal by inducement). Her words, “Kill him and we will bury him”
amount but to imprudent utterances said in the excitement of the hour or in the heat of anger (it
does not appear whether or not Rapada held a grudge against the deceased), and not, rather, in the
nature of a command that had to be obeyed. It has been held: x x x A chance word spoken without
reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth

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to a thought of, or even a resolution to, crime in the mind of one for some independent reason
predisposed thereto without the one who spoke the word or performed the act having any
expectation that his suggestion would be followed or any real intention that it produce a result. In
such case, while the expression was imprudent and the results of it grave in the extreme, he would
not be guilty of the crime committed. Therefore, in applying the principles laid down to concrete
cases it is necessary to remember only that the inducement must be made directly with the intention
of procuring the commission of the crime and that such inducement must be the determining cause
of the crime.
Same; Same; No conspiracy in cases of stabbing made at spur of the moment.—We also believe
that conspiracy has not been shown beyond reasonable doubt to hold all six accused as co-
principals in the crime of murder. As the lower court observed, the stabbing happened in the “spur
of the moment.” Conspiracy means, however, an agreement concerning the commission of a felony
and decision to commit it. If the tragedy was a chance stabbing, there can be no conspiracy to speak
of.
Same; Those who stabbed and held arms of victim are guilty as principals; but those who merely
pelted him with rocks as he ran are only accomplices.—It is our considered opinion that only
Romeo, Delfin, and Fortunato should be held as principals in the crime of murder. Romeo is guilty,
as he admitted in open court, by direct participation, while Delfin and Fortunato are liable as
principals by cooperation. In holding the victim by his arms, both allowed Romeo to inflict upon
him a stab wound. Alex, Dante, and Cirilo, on the other hand, should be held as simple accomplices
for their acts of pelting the victim with rocks. Since the deceased had already sustained two stab
wounds, the act of hurling rocks at him was not indispensable to justify holding them legally liable
as principals.
Same; Abuse of superiority, not treachery, exists where victim’s arms held while being stabbed.—
The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo stabbed him, does
not demonstrate treachery. Rather, what it proves is abuse of superiority. It is indeed plain from the
records that the trio of Romeo, Delfin, and Fortunato had taken advantage of their strength to
overcome the victim who, at that time, was already injured.
Same; Unlawful aggression by victim must be established for plea of defense of relative or
incomplete self-defense to be appreciated.—As we noted, the trial court repudiated the accused’s
posturing of defense of relatives, so also do we. “Defense of relatives” requires the concurrence of
three elements: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent
or repel it; and (3) the person defending the relative had no part in provoking the assailant, should
any provocation have been given by the person attacked. Of these three requisites, “unlawful
aggression” is said to be the most essential and primary, without which any “defense” is not
possible or justified. Thus: “If there is no unlawful aggression there would be nothing to prevent or
repel.” In that event, not even incomplete self-defense can be validly invoked.
Same; Threats or injurious words do not amount to unlawful aggression.—The Court is not
persuaded that Virgilio Paino had acted with unlawful aggression that might have provoked the
Agapinays’ deadly wrath. The records show that all that Virgilio did was to address offensive
language to Delfin Agapinay. In one case, this Court held that “injurious words or threats” do not
amount to unlawful aggression. Assuming that Virgilio did strike Delfin and Romeo Agapinay with
a paddle, the expediente reveals that thereafter and upon having been stabbed in the right arm by
Romeo, he, Virgilio, ran away. It has also been ruled that: “Self-defense does not justify the
unnecessary killing of an aggressor who is retreating from the fray.”
Same; Where victim uttered bad words, accused entitled to mitigating circumstance of provocation

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or passion.—The Court finds, however, that the accused should be entitled to the mitigating
circumstance of provocation (or vindication of a grave offense or passion or obfuscation.) since
clearly, the deceased uttered offending words (“vulva of your mother, if you are talking as if you
have no debts, not like me, I have no debts”) that made the Agapinays, especially Romeo, react
violently. While the trial court disregarded this particular piece of evidence, the entire picture seems
to indicate that Virgilio Agapinay did say bad words that made the Agapinays act in retaliation.
APPEAL from the decision of the Regional Trial Court of Aparri, Cagayan, Br. 8.
Juan T. Antonio for accused-appellants.
SARMIENTO, J.:
On April 11, 1983, the then Acting Provincial Fiscal of Cagayan, Alejandro Pulido, filed an
information accusing Romeo, Alex, Fortunato, Dante, Delfin, and Cirilo, all surnamed Agapinay, of
murder, as a consequence of the fatal stabbing of Virgilio Paino on April 13, 1981. The same reads
as follows:
That on or about April 13, 1981, in the municipality of Gonzaga, province of Cagayan, and within
the jurisdiction of this Honorable Court, the said accused, Romeo Agapinay, Alex Agapinay,
Fortunato Agapinay, Dante Agapinay, Delfin Agapinay and Cirilo Agapinay, armed with bolos
(lilit) and stones, conspiring together and helping one another, with intent to kill, with evident
premeditation, with treachery and with abuse of superior strength, did then and there wilfully,
unlawfully and feloniously assault, attack, chase, stone and stab, one, Virgilio Paino, inflicting upon
him wounds on his body which caused his death.
Contrary to law.1
On arraignment, all six accused pleaded “not guilty.”2
The evidence of the prosecution shows that the Agapinays are brothers, except Romeo, who is
Delfin’s son,3 and that along with Virgilio Paino, Amor Flores, and Eufemio Paino, they were
hirelings of Julia Rapada, an operator of fishing boats. On April 12, 1981, they set out, along with
other complement, on a fishing venture in the sea of Batangan, in Gonzaga, Cagayan. They
returned to shore the following day, April 13, 1981, whereupon, they unloaded their catch and
spread out their fishnet on the sand to dry. Thereafter, except for Romeo Agapinay, they mended
the net, with thread and small knives, under portable shed.4 Meanwhile, Virgilio Paino took the
shed and placed it where he and Alex and Cirilo Agapinay were. Moments later, Romeo Agapinay
appeared and confronted Virgilio, and berated him for taking the shed without permission. Virgilio
said that they were going to use it. Shortly, the two exchanged words and tempers apparently flared.
Romeo lunged at Virgilio with a hunting knife, six inches long, that hit his right arm. Virgilio ran
away but Delfin and Fortunato Agapinay met him and held on to his arms. Romeo approached him
and dealt him a second stab at the right side of his back. Virgilio, however, managed to extricate
himself again and ran away. While he was running, Delfin, Alex, Fortunato, Dante, and Cirilo took
turns in stoning him. All of a sudden Amor Flores appeared and plunged a knife at the back of
Virgilio. It was then that Virgilio collapsed. Meanwhile Julia cried, “Kill him and we will bury
him.”5
The prosecution also established that Cirilo and Delfin had attacked Eufemio Paino, a brother of
Virgilio, with their own knives but the latter defended himself with a paddle. The former ran away.
The rest of the Agapinays likewise fled.6
Antonio and Eufemio Paino, brothers of Virgilio, and Artemio Siababa brought the wounded
Virgilio to his (Virgilio’s) house.7 The latter supposedly executed an ante-mortem statement there

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wherein he implicated the Agapinays as well as Amor Flores, as responsible for the incident.
Thereafter, he was brought to the Don Alfonso Enrile Hospital at Gonzaga. He was dead, however,
on arrival.8
Police Corporal Rugino Sunico, when informed of the stabbing, went to the scene to investigate but
Virgilio had already been brought to his home. Later, Patrolman Sunico took a supposed confession
of Romeo Agapinay who surrendered to him at 9:00 o’clock in the morning of April 13, 1981.
Meanwhile, Cirilo and Delfin Agapinay proceeded to the police headquarters to complain that
Eufemio Paino also assaulted them. They refused to make any further statement.9
The cadaver of Virgilio was later autopsied. Dr. Silverio Salvanera’s post-mortem examination
showed that the late Virgilio Agapinay suffered the following injuries:
x x x (a) 2 cm. long, penetrating to the liver, directed upwards and medially, located at the level of
the 7th intercostal space along the mid-clavicular line; (b) 2.5 cm. long penetrating to the lungs,
directed upwards and medially, located at the level of the 7th intercostal space along posterior
axillary line; and (c) Thru and thru wound at the medial aspect between the distal and medial 3rd of
the right arm, 2.5 cm. point of entrance, 1.5 cm. point of exit, 6.2 cm. apart.10
After the prosecution rested, the accused presented their evidence.
Cirilo Agapinay stated that the incident started when Virgilio Paino grabbed the atal (a piece of
wood used to roll boats ashore) without his, Cirilo’s, permission. Cirilo resented this but Virgilio
allegedly clubbed him and that he lost consciousness. Delfin and Fortunato Agapinay brought him
to the hospital.11
Delfin Agapinay, on the other hand, testified that he was with Cirilo and a certain Jesus Alveza on
that fateful morning at the seashore of Batangan mending fishnet. There, Virgilio confronted them
and asked why Cirilo took the atal without his permission. Cirilo declared that he had Virgilio’s
companions’ permission. It was then that Virgilio clubbed Cirilo until the latter passed out. He
claimed that Romeo, Dante, Alex, and Fortunato Agapinay were not around when the incident
happened.12 He testified, finally, that Virgilio attacked them with a knife and that he, together with
Cirilo, sustained injuries.
Fortunato Agapinay contended that he was asleep aboard the boat at the time and was roused by his
nephew, Alfredo Maximo, and whereupon, he saw men fighting. Cirilo and Delfin Agapinay,
together with Amor Flores, were allegedly on their way home, whom he followed. Upon reaching
their house, Romeo Agapinay appeared and confessed that he had stabbed Virgilio Paino.13
Alex Agapinay testified that he was with Salvador and Mariano Agapinay at that time repairing a
lamp. They then saw
Fely Rose Paino running, who informed them that Virgilio Paino had been stabbed, and that Romeo
Agapinay was the culprit. Dante Agapinay corroborated his testimony.14
Romeo Agapinay, who had been tagged as the knife-wielder, alleged that on April 13, 1981, he was
at the shore of Batangan, in Buguey, mending net. He claimed that he was with his father, Delfin
Agapinay, and uncle, Cirilo Agapinay, a certain Martin Maximo, Jesus Alveza, and unidentified
complement. It was then that Virgilio Paino suddenly appeared “uttering bad words to his father
Delfin.”15 Virgilio then allegedly struck Cirilo Agapinay and his father with a paddle. He stated
that he was forced to stab Virgilio three times. Virgilio allegedly later went home alone.16
The defense pictured Virgilio as having been drunk at that time, and that he came on strong without
provocation, haranguing the Agapinays for two hours.17
The trial judge rejected the accused’s claim of defense of relatives18 and convicted all six accused
of the crime of murder, attended by treachery.19 He also noted that it was not Virgilio who
assaulted Cirilo and Delfin Agapinay with a knife, but rather, Eufemio Paino. He held that the

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Agapinays can not thus say that they had been defending themselves (against Virgilio).
The lower court also found that the Agapinays had conspired to kill Virgilio Paino and thus held
them, in the dispositive portion of its decision, “all principals by participation.”
In giving credence to the prosecution’s evidence, the trial court observed that Virgilio could not
have given a valid cause for the Agapinays to assault him. (“[I]t is hard to believe that the late
Virgilio just clubbed accused Cirilo and Delfin without cause.”20)
Virgilio could not have blamed the Agapinays, as the latter claim, for taking the atal (the act that, as
alleged by the Agapinays, precipitated the fight), because it was Fortunato Agapinay who was the
head of the complement, and if any person should begrudge the Agapinays’ act, the logical one was
he, Fortunato. (“Thus, there is no plausible reason for the late Virgilio to have clubbed Cirilo and
Delfin as the deceased was not the owner of the atal . . .”21)
The trial court likewise found that Cirilo and Delfin were not defending themselves against Virgilio
when they suffered stab wounds of their own, but rather, against Eufemio Paino. It lent faith and
credence to Corporal Sunico’s testimony who heard both Cirilo and Delfin pin the blame on
“Temyong” (Eufemio) Paino.22
The court commanded the Provincial Fiscal to indict Julia Rapada as alleged principal by
inducement for having ordered the Agapinays to “[k]ill Virgilio Paino,”23 as well as Amor Flores,
to account for their crimes. (Neither of them is accused in the Information.)
It found that no evident premeditation attended the killing but appreciated treachery and conspiracy.
The dispositive portion of its Decision reads:
WHEREFORE, PREMISES CONSIDERED, this Court finds accused Romeo Agapinay, Delfin
Agapinay, Cirilo Agapinay, Fortunato Agapinay, Alex Agapinay and Dante Agapinay, all principals
by participation, guilty beyond reasonable doubt of the crime of murder prescribed and penalized
under Article 248 of the Revised Penal Code and hereby sentences each of herein accused to suffer
the penalty of reclusion perpetua and to indemnify the heirs of deceased Virgilio Paino the sum of
THIRTY THOUSAND (P30,000.00) PESOS and to pay the costs of this suit.
SO ORDERED.24
The six accused now submit that the Decision under appeal should be reversed, and that the trial
court erred in the following terms:
FIRST.—THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT ROMEO
AGAPINAY STABBED THE DECEASED TWICE.
SECOND.—THE TRIAL COURT ERRED IN FINDING THAT DELFIN
AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY TOOK TURNS IN STONING THE
VICTIM.
THIRD.—THE TRIAL COURT ERRED IN ADOPTING AS PART OF THE EVIDENCE THE
PROCEEDINGS AT THE PRELIMINARY INVESTIGATION (1ST STAGE) CONDUCTED BY
THE MUNICIPAL CIRCUIT TRIAL JUDGE.
FOURTH.—THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY ON
THE PART OF THE APPELLANTS WHEN THEY COMMITTED THE CRIME CHARGED.
FIFTH.—THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS ARE GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER QUALIFIED BY
TREACHERY.
SIXTH.—THE TRIAL COURT ERRED IN SENTENCING THE APPELLANTS TO THE
PENALTY OF RECLUSION PERPETUA.
SEVENTH.—THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANTS TO
PRESENT EVIDENCE TO FIND OUT IF THE EVIDENCE TO BE PRESENTED

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CONSTITUTES NEWLY DISCOVERED EVIDENCE AS A BASIS FOR A NEW TRIAL.25
We affirm, with modifications, the Decision appealed from.
To begin with, the errors, except the last, assigned by the accused refer to credibility of witnesses,
and in a long line of cases, we have held that “credibility” is the domain of the trial court.
There indeed seems to be no controversy that the Agapinays (that is, the six accused) are guilty of
participating in the slay of Virgilio Paino: (1) Romeo admitted having stabbed him; (2) thereafter,
Delfin and Fortunato held him, whereupon, Romeo thrust another stab; (3) as Virgilio ran away,
Delfin, Alex, Fortunato, Dante, and Cirilo threw rocks at him.
Although it appears that it was Amor Flores who dealt Virgilio the death blow, the Agapinays can
not deny that they had the intent to kill him, and performed acts to carry that out, for which they
should be held accountable under the law.26
With respect to Amor Flores, we agree with the trial judge that he should be brought to the bar of
justice. As regards, however, Julia Rapada, it is the opinion of this Court, and based on the records,
that she can not be held liable (as a principal by inducement). Her words, “Kill him and we will
bury him”27 amount but to imprudent utterances said in the excitement of the hour or in the heat of
anger (it does not appear whether or not Rapada held a grudge against the deceased), and not,
rather, in the nature of a command that had to be obeyed. It has been held:
xxx xxx xxx
x x x A chance word spoken without reflection, a wrong appreciation of a situation, an ironical
phrase, a thoughtless act, may give birth to a thought of, or even a resolution to, crime in the mind
of one for some independent reason predisposed thereto without the one who spoke the word or
performed the act having any expectation that his suggestion would be followed or any real
intention that it produce a result. In such case, while the expression was imprudent and the results
of it grave in the extreme, he would not be guilty of the crime committed. Therefore, in applying
the principles laid down to concrete cases it is necessary to remember only that the inducement
must be made directly with the intention of procuring the commission of the crime and that such
inducement must be the determining cause of the crime.28
xxx xxx xxx
We also believe that conspiracy has not been shown beyond reasonable doubt to hold all six
accused as co-principals in the crime of murder. As the lower court observed, the stabbing
happened in the “spur of the moment.”29 Conspiracy means, however, an agreement concerning
the commission of a felony and a decision to commit it.30 If the tragedy was a chance stabbing,
there can be no conspiracy to speak of.
Hence, the parties’ liability should be considered individually.31
It is our considered opinion that only Romeo, Delfin, and Fortunato should be held as principals in
the crime of murder. Romeo is guilty, as he admitted in open court, by direct participation,32 while
Delfin and Fortunato are liable as principals by cooperation.33 In holding the victim by his arms,
both allowed Romeo to inflict upon him a stab wound.34
Alex, Dante, and Cirilo, on the other hand, should be held as simple accomplices35 for their acts of
pelting the victim with rocks. Since the deceased had already sustained two stab wounds, the act of
hurling rocks at him was not indispensable to justify holding them legally liable as principals.36
There is further no doubt that murder has been committed, but not because of treachery, as ruled by
the trial court. Treachery depends on the suddenness of the attack, by which the victim is rendered
hors d’combat, as in an ambuscade, or any manner in which the victim is deprived of all defenses,
and in which the malefactor faces no risk to himself.37 The manner of attack must be shown.38
There is no such showing here.

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The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo stabbed him, does
not demonstrate treachery. Rather, what it proves is abuse of superiority. It is indeed plain from the
records that the trio of Romeo, Delfin, and Fortunato had taken advantage of their strength to
overcome the victim who, at that time, was already injured.39
Abuse of superiority qualifies the taking of the life of another into murder.40 Accordingly, we
affirm the trial court’s Decision insofar as it found Romeo, Delfin, and Fortunato, all surnamed
Agapinay, guilty as co-principals of murder. We however, find Alex, Dante, and Cirilo, also all
surnamed Agapinay, guilty as accomplices in the commission of the same offense.
Anent the last error assigned, that the lower court erred in not allowing a new trial, we sustain the
action of His Honor, Judge Felipe Tumacder. As he held, the appeal having been perfected, “[t]he
Court . . . has no more jurisdiction to entertain”41 any incident.
The counsel for the accused alleges that “the only reason why the Notice of Appeal was filed was
because on January 30, 1987, the Motion for New Trial had not been formally resolved or denied,
hence, the motion was filed as a precautionary measure not to lose the right to appeal which was set
to expire on February 3, 1987.”42 The accused’s counsel has apparently ignored the fact that “[t]he
time during which a motion . . . for a new trial has been pending shall be deducted . . .”43 and
hence, he faced no risk of losing the right to appeal in the event his motion was denied.44
As we noted, the trial court repudiated the accused’s posturing of defense of relatives, so also do
we. “Defense of relatives” requires the concurrence of three elements: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel it; and (3) the person defending the
relative had no part in provoking the assailant, should any provocation have been given by the
person attacked.45 Of these three requisites, “unlawful aggression” is said to be the most essential
and primary, without which any “defense” is not possible or justified. Thus: “If there is no unlawful
aggression there would be nothing to prevent or repel.”46 In that event, not even incomplete self-
defense can be validly invoked.47
The Court is not persuaded that Virgilio Paino had acted with unlawful aggression that might have
provoked the Agapinays’ deadly wrath. The records show that all that Virgilio did was to address
offensive language to Delfin Agapinay.48 In one case, this Court held that “injurious words or
threats”49 do not amount to unlawful aggression. Assuming that Virgilio did strike Delfin and
Romeo Agapinay with a paddle, the expediente reveals that thereafter and upon having been
stabbed in the right arm by Romeo, he, Virgilio, ran away. It has also been ruled that: “Self-defense
does not justify the unnecessary killing of an aggressor who is retreating from the fray.”50
The Court finds, however, that the accused should be entitled to the mitigating circumstance of
provocation51 (or vindication of a grave offense52 or passion or obfuscation.53) since clearly, the
deceased uttered offending words (“vulva of your mother, if you are talking as if you have no debts,
not like me, I have no debts”54) that made the Agapinays, especially Romeo, react violently. While
the trial court disregarded this particular piece of evidence, the entire picture seems to indicate that
Virgilio Paino did say bad words that made the Agapinays act in retaliation.
WHEREFORE, Romeo, Delfin, and Fortunato, all surnamed Agapinay, are ORDERED to undergo
an indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum, as
minimum, to seventeen (17) years, 4 months, and one (1) day of reclusion temporal maximum, as
maximum. Alex, Dante, and Cirilo, also surnamed Agapinay, are ORDERED to undergo an
indeterminate sentence of four (4) years and one (1) day of prision correccional, as minimum, to ten
(10) years and one (1) day of prision mayor maximum, as maximum. All six accused are also
ORDERED to pay, jointly and severally, to the heirs of Virgilio Paino, the sum of THIRTY
THOUSAND

Page 156 of 162
(P30,000.00) PESOS. Costs against the accused.SO ORDERED.
G.R. No. 84163. October 19, 1989. *
LITO VINO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE COURT OF
APPEALS, respondents.
Criminal Law; Criminal Procedure; Evidence is clear that petitioner actively assisted Salazar in his
escape hence his liability is that of an accessory.—Petitioner was charged as a principal in the
commission of the crime of murder. Under Article 16 of the Revised Penal Code, the two other
categories of the persons responsible for the commission of the same offense are the accomplice
and the accessory. There is no doubt that the crime of murder had been committed and that the
evidence tended to show that Jessie Salazar was the assailant. That the petitioner was present
during its commission or must have known its commission is the only logical conclusion
considering that immediately thereafter, he was seen driving a bicycle with Salazar holding an
armalite, and they were together when they left shortly thereafter. At least two witnesses, Ernesto
and Julius Tejada, attested to these facts. It is thus clear that petitioner actively assisted Salazar in
his escape. Petitioner’s liability is that of an accessory.
Same; Same; There is no variance between the offense charged and the offense proved; Case at bar.
—This is not a case of a variance between the offense charged and the offense proved or
established by the evidence, and the offense as charged is included in or necessarily includes the
offense proved, in which case the defendant shall be convicted of the offense proved included in
that which is charged, or of the offense charged included in that which is proved.
Same; Same; Same; Neither an instance where after trial has begun, it appears that there was a
mistake in charging the proper offense.—In the same light, this is not an instance where after trial
has begun, it appears that there was a mistake in charging the proper offense, and the defendant
cannot be convicted of the offense charged, or of any other offense necessarily included therein, in
which case the defendant must not be discharged if there appears to be a good cause to detain him
in custody, so that he can be charged and made to answer for the proper offense.
Same; Same; Accomplice; An accused can be validly convicted as an accomplice or accessory
under an information charging him as a principal.—In this case, the correct offense of murder was
charged in the information. The commission of the said crime was established by the evidence.
There is no variance as to the offense committed. The variance is in the participation or complicity
of the petitioner. While the petitioner was being held responsible as a principal in the information,
the evidence adduced, however, showed that his participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser. An accused can be validly convicted as an
accomplice or accessory under an information charging him as a principal.
Same; Same; Same; As long as the commission of the offense can be duly established in evidence,
the determination of the liability of the accomplice or accessory can proceed independently of that
of the principal.—The next issue that must be resolved is whether or not the trial of an accessory
can proceed without awaiting the result of the separate charge against the principal. The answer is
also in the affirmative. The corresponding responsibilities of the principal, accomplice and
accessory are distinct from each other. As long as the commission of the offense can be duly
established in evidence the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal.
Same; Same; Same; Same; The commission of the crime of murder and the responsibility of the
petitioner as an accessory was established; Case at bar.—In the present case, the commission of the
crime of murder and the responsibility of the petitioner as an accessory was established. By the
same token there is no doubt that the commission of the same offense had been proven in the

Page 157 of 162
separate case against Salazar who was charged as principal. However, he was acquitted on the
ground of reasonable doubt by the same judge who convicted Vino as an accessory. The trial court
held that the identity of the assailant was not clearly established. It observed that only Julius Tejada
identified Salazar carrying a rifle while riding on the bicycle driven by Vino, which testimony is
uncorroborated, and that two other witnesses, Ernesto Tejada and Renato Parvian, who were listed
in the information, who can corroborate the testimony of Julius Tejada, were not presented by the
prosecution.
Same; Same; Same; Same; The identity of the assailant is of no material significance for the
purpose of the prosecution of the accessory.—Although in this case involving Vino the evidence
tended to show that the assailant was Salazar, as two witnesses saw him with a rifle aboard the
bicycle driven by Vino, in the separate trial of the case of Salazar, as above discussed, he was
acquitted as the trial court was not persuaded that he was positively identified to be the man with
the gun riding on the bicycle driven by Vino. In the trial of the case against Vino, wherein he did
not even adduce evidence in his defense, his liability as such an accessory was established beyond
reasonable doubt in that he assisted in the escape of the assailant from the scene of the crime. The
identity of the assailant is of no material significance for the purpose of the prosecution of the
accessory. Even if the assailant can not be identified the responsibility of Vino as an accessory is
indubitable.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the resolution of the Court.
Frisco T. Lilagan for petitioner.
RESOLUTION
GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the resolution of this Court
dated January 18, 1989 denying the herein petition is whether or not a finding of guilt as an
accessory to murder can stand in the light of the acquittal of the alleged principal in a separate
proceeding.
At about 7:00 o’clock in the evening of March 21, 1985, Roberto Tejada left their house at Burgos
Street, Poblacion, Balungao, Pangasinan to go to the house of Isidro Salazar to watch television. At
around 11:00 P.M., while Ernesto, the father of Roberto, was resting, he heard two gunshots.
Thereafter, he heard Roberto cry out in a loud voice saying that he had been shot. He saw Roberto
ten (10) meters away so he switched on the lights of their house. Aside from Ernesto and his wife,
his children Ermalyn and Julius were also in the house. They went down to meet Roberto who was
crying and they called for help from the neighbors. The neighbors responded by turning on their
lights and the street lights and coming down from their houses. After meeting Roberto, Ernesto and
Julius saw Lito Vino and Jessie Salazar riding a bicycle coming from the south. Vino was the one
driving the bicycle while Salazar was carrying an armalite. Upon reaching Ernesto’s house, they
stopped to watch Roberto. Salazar pointed his armalite at Ernesto and his companions. Thereafter,
the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo Cacananta took
his ante-mortem statement. In the said statement which the victim signed with his own blood, Jessie
Salazar was identified as his assailant.
The autopsy report of his body shows the following—
“Gunshot wound
POE Sub Scapular-5-6- ICA. Pal
1 & 2 cm. diameter left.

Page 158 of 162
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension Hemathorax”1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by PC Sgt. Ernesto
N. Ordoño in the Municipal Trial Court of Balungao, Pangasinan. However, on March 22, 1985, the
municipal court indorsed the case of Salazar to the Judge Advocate General’s Office (JAG0)
inasmuch as he was a member of the military, while the case against Vino was given due course by
the issuance of a warrant for his arrest. Ultimately, the case was indorsed to the fiscal’s office who
then filed an information charging Vino of the crime of murder in the Regional Trial Court of
Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then commenced with the
presentation of evidence for the prosecution. Instead of presenting evidence in his own behalf, the
accused filed a motion to dismiss for insufficiency of evidence to which the prosecutor filed an
answer. On January 21, 1986,2 a decision was rendered by the trial court finding Vino guilty as an
accessory to the crime of murder and imposing on him the indeterminate penalty of imprisonment
of 4 years and 2 months of prision correccional as minimum to 8 years of prision mayor as
maximum. He was also ordered to indemnify the heirs of the victim in the sum of P10,000.00 being
a mere accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having been denied, he interposed an appeal to
the Court of Appeals. In due course, a Decision was rendered affirming the judgment of the lower
court.3
Hence, the herein petition for review wherein the following grounds are invoked:
1. “THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF THE CRIME
OF MURDER FOR HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF SAID
ACCUSED IS BEING CHARGED SOLELY IN THE INFORMATION AS PRINCIPAL FOR THE
SIMPLE REASON THAT THE CRIME PROVED IS NOT INCLUDED IN THE CRIME
CHARGED.
2. THAT “AIDING THE ESCAPE OF THE PRINCIPAL” TO BE CONSIDERED SUFFICIENT
IN LAW TO CONVICT AN ACCUSED UNDER ARTICLE 19, PARAGRAPH 3 OF THE
REVISED PENAL CODE MUST BE DONE IN SUCH A WAY AS TO DECEIVE THE
VIGILANCE OF THE LAW ENFORCEMENT AGENCIES OF THE STATE AND THAT THE
“ESCAPE” MUST BE ACTUAL;
3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE PRINCIPAL
VIOLATES PROCEDURAL ORDERLINESS.”4
During the pendency of the appeal in the Court of Appeals, the case against Salazar in the JAGO
was remanded to the civil court as he was discharged from the military service. He was later
charged with murder in the same Regional Trial Court of Rosales, Pangasinan in Criminal Case No.
2027-A. In a supplemental pleading dated November 14, 1988, petitioner informed this Court that
Jessie Salazar was acquitted by the trial court in a decision that was rendered on August 29, 1988.
The respondents were required to comment on the petition. The comment was submitted by the
Solicitor General in behalf of respondents. On January 18, 1989, the Court resolved to deny the
petition for failure of petitioner to sufficiently show that respondent court had committed any
reversible error in its questioned judgment. Hence, the present motion for reconsideration to which
the respondents were again required to comment. The required comment having been submitted,
the motion is now due for resolution.

Page 159 of 162
The first issue that arises is that inasmuch as the petitioner was charged in the information as a
principal for the crime of murder, can he thereafter be convicted as an accessory? The answer is in
the affirmative.
Petitioner was charged as a principal in the commission of the crime of murder. Under Article 16 of
the Revised Penal Code, the two other categories of the persons responsible for the commission of
the same offense are the accomplice and the accessory. There is no doubt that the crime of murder
had been committed and that the evidence tended to show that Jessie Salazar was the assailant. That
the petitioner was present during its commission or must have known its commission is the only
logical conclusion considering that immediately thereafter, he was seen driving a bicycle with
Salazar holding an armalite, and they were together when they left shortly thereafter. At least two
witnesses, Ernesto and Julius Tejada, attested to these facts. It is thus clear that petitioner actively
assisted Salazar in his escape. Petitioner’s liability is that of an accessory.
This is not a case of a variance between the offense charged and the offense proved or established
by the evidence, and the offense as charged is included in or necessarily includes the offense
proved, in which case the defendant shall be convicted of the offense proved included in that which
is charged, or of the offense charged included in that which is proved.5
In the same light, this is not an instance where after trial has begun, it appears that there was a
mistake in charging the proper offense, and the defendant cannot be convicted of the offense
charged, or of any other offense necessarily included therein, in which case the defendant must not
be discharged if there appears to be a good cause to detain him in custody, so that he can be charged
and made to answer for the proper offense.6
In this case, the correct offense of murder was charged in the information. The commission of the
said crime was established by the evidence. There is no variance as to the offense committed. The
variance is in the participation or complicity of the petitioner. While the petitioner was being held
responsible as a principal in the information, the evidence adduced, however, showed that his
participation is merely that of an accessory. The greater responsibility necessarily includes the
lesser. An accused can be validly convicted as an accomplice or accessory under an information
charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an accessory right then and
there. The degree of responsibility of petitioner was apparent from the evidence. At any rate, this
lapse did not violate the substantial rights of petitioner.
The next issue that must be resolved is whether or not the trial of an accessory can proceed without
awaiting the result of the separate charge against the principal. The answer is also in the
affirmative. The corresponding responsibilities of the principal, accomplice and accessory are
distinct from each other. As long as the commission of the offense can be duly established in
evidence the determination of the liability of the accomplice or accessory can proceed
independently of that of the principal.
The third question is this—considering that the alleged principal in this case was acquitted can the
conviction of the petitioner as an accessory be maintained?
In United States vs. Villaluz and Palermo,7 a case involving the crime of theft, this Court ruled that
notwithstanding the acquittal of the principal due to the exempting circumstance of minority or
insanity (Article 12, Revised Penal Code), the accessory may nevertheless be convicted if the crime
was in fact established.
Corollary to this is United States vs. Mendoza,8 where this Court held in an arson case that the
acquittal of the principal must likewise result in the acquittal of the accessory where it was shown
that no crime was committed inasmuch as the fire was the result of an accident. Hence, there was

Page 160 of 162
no basis for the conviction of the accessory.
In the present case, the commission of the crime of murder and the responsibility of the petitioner
as an accessory was established. By the same token there is no doubt that the commission of the
same offense had been proven in the separate case against Salazar who was charged as principal.
However, he was acquitted on the ground of reasonable doubt by the same judge who convicted
Vino as an accessory. The trial court held that the identity of the assailant was not clearly
established. It observed that only Julius Tejada identified Salazar carrying a rifle while riding on the
bicycle driven by Vino, which testimony is uncorroborated, and that two other witnesses, Ernesto
Tejada and Renato Parvian, who were listed in the information, who can corroborate the testimony
of Julius Tejada, were not presented by the prosecution.
The trial court also did not give due credit to the dying declaration of the victim pinpointing Salazar
as his assailant on the ground that it was not shown the victim revealed the identity of Salazar to his
father and brother who came to his aid immediately after the shooting. The court a quo also
deplored the failure of the prosecution and law enforcement agencies to subject to ballistic
examinations the bullet slug recovered from the body of the victim and the two empty armalite
bullet empty shells recovered at the crime scene and to compare it with samples taken from the
service rifle of Salazar. Thus, the trial court made the following observation:
“There appears to be a miscarriage of justice in this case due to the ineptitude of the law
enforcement agencies to gather material and important evidence and the seeming lack of concern of
the public prosecutor to direct the production of such evidence for the successful prosecution of the
case.”9
Hence, in said case, the acquittal of the accused Salazar is predicated on the failure of the
prosecution to adduce the quantum of evidence required to generate a conviction as he was not
positively identified as the person who was seen holding a rifle escaping aboard the bicycle of
Vino.
A similar situation may be cited. The accessory was seen driving a bicycle with an unidentified
person as passenger holding a carbine fleeing from the scene of the crime immediately after the
commission of the crime of murder. The commission of the crime and the participation of the
principal or assailant, although not identified, was established. In such case, the Court holds that the
accessory can be prosecuted and held liable independently of the assailant.
We may visualize another situation as when the principal died or escaped before he could be tried
and sentenced. Should the accessory be acquitted thereby even if the commission of the offense and
the responsibility of the accused as an accessory was duly proven? The answer is no, he should be
held criminally liable as an accessory.
Although in this case involving Vino the evidence tended to show that the assailant was Salazar, as
two witnesses saw him with a rifle aboard the bicycle driven by Vino, in the separate trial of the
case of Salazar, as above discussed, he was acquitted as the trial court was not persuaded that he
was positively identified to be the man with the gun riding on the bicycle driven by Vino. In the
trial of the case against Vino, wherein he did not even adduce evidence in his defense, his liability
as such an accessory was established beyond reasonable doubt in that he assisted in the escape of
the assailant from the scene of the crime. The identity of the assailant is of no material significance
for the purpose of the prosecution of the accessory. Even if the assailant can not be identified the
responsibility of Vino as an accessory is indubitable.
WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.
SO ORDERED.
1

Page 161 of 162
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People vs Talampas: Self-defense and accident defenses rejected

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G.R. No. 180219. November 23, 2011.

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[No. L-162. April 30, 1947]

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https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

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https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

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https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

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https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM

https://cdn.fbsbx.com/v/t59.2708-21/39313338_6764424960…h=84ee593cfe92d11546453ca75a0692a8&oe=5B9BC144&dl=1 13/09/2018, 8G14 AM