G.R. No.

152133

February 9, 2006

ROLLIE CALIMUTAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, ET AL., Respondents. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 1 29 August 2001, affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, 2 Masbate, in Criminal Case No. 8184, dated 19 November 1998, finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. The Information filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly committed as follows That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due to impact which caused his death a day after. CONTRARY TO LAW. Masbate, Masbate, September 11, 1996. Accordingly, the RTC issued, on 02 December 1996, a warrant for the arrest of petitioner Calimutan. On 5 6 09 January 1997, however, he was provisionally released after posting sufficient bailbond. During the arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged 7 against him. In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L. Saano, companion of the victim Cantre when the alleged crime took place. Their testimonies are collectively summarized below. On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Saano, together with two other companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke bar, the victim Cantre and witness Saano proceeded to go home to their respective houses, but along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantres house on a previous night. Thus , upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness Saano. Petitioner Calimutan then picked up a stone, as big as a mans fist, which he threw at victim Cantre, hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his back. Witness Saano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also urged victim Cantre and petitioner Calimutan to just go home. Witness Saano accompanied victim Cantre to the latters house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the stone. They arrived at the Cantres
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house at around 12:00 noon, and witness Saano left victim Cantre to the care of the latters mother, 8 Belen. Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some food. He was able to eat a little, but he also later vomited whatever he ate. For the 9 last time, he complained of backache and stomachache, and shortly thereafter, he died. Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health 10 11 Officer of Aroroy, Masbate. The Post-Mortem Examination Report and Certification of Death, issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996. Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by 12 Dr. Ronaldo B. Mendez on 15 April 1996, after which, he reported the following findings Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche. Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side. Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line. Hemoperitoneum, massive, clotte [sic]. Laceration, spleen. Other visceral organ, pale and embalmed. Stomach contains small amount of whitish fluid and other partially digested food particles. xxxx CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN. In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that 13 the victim Cantre was stoned to death by petitioner Calimutan. To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein petitioner, Calimutan. According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with the victim Cantre and witness Saano. The victim Cantre took hold of Bulalacao and punched

him several times. Petitioner Calimutan attempted to pacify the victim Cantre but the latter refused to calm down, pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone, which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim Cantre chased after them, but witness Saano was able to pacify the victim Cantre. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek medical help despite the advice 14 of petitioner Calimutan and, instead, chose to go back to his hometown. Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February 1996, because of food poisoning. Petitioner Calimutan maintained that he had no 15 personal grudge against the victim Cantre previous to the stoning incident. On 19 November 1998, the RTC rendered its Decision, essentially adopting the prosecutions account of the incident on 04 February 1996, and pronouncing that It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion, a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the Revised Penal Code. The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964) One is not relieved from criminal liability for the natural consequences of ones illegal acts merely because one does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310). The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code. WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (P50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50,000.00) Pesos as moral damages, without subsidiary imprisonment in case of insolvency. Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in 17 its Decision, dated 29 August 2001, sustained the conviction of homicide rendered by the RTC against petitioner Calimutan, ratiocinating thus
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The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which, the accused-appellant does not deny. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. It resulted to a traumatic injury of the abdomen causing the laceration of the victims spleen. This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the exhumation of the victims cadaver The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the victims death was food poisoning. Dr. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not made available for cross-examination on the accuracy and correctness of her findings. Dr. Conchita Ulandays post mortem report cannot prevail over the autopsy report (Exh. "C") of the Medico-Legal Officer of the NBI who testified and was cross-examined by the defense. Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr. Conchita Ulanday, why did they not present her as their witness to belie the report of the MedicoLegal Officer of the NBI. The trial courts evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED. The Court of Appeals, in its Resolution, dated 15 January 2002, denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision, dated 29 August 2001. Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August 2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on reasonable doubt. Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for the said death, arguing that x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially, it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner. As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as to the petitioners guilt and therefore, he is entitled to acquittal 19 (People vs. Delmendo, G.R. No. 32146, November 23, 1981).
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In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind; it does not demand absolute 20 certainty and the exclusion of all possibility of error. In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre. Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan. Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner Calimutan at the victim Cantre. It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose 21 "competency and academic qualification and background" was admitted by the defense itself. As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology, surgery, gynecology, toxicology, and such other branches of medicine germane to the issues 22 involved in a case. Dr. Mendezs testimony as an expert witness is evidence, and although it does not necessarily bind the courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value. Having testified as to matters undeniably within his area of expertise, and having performed a thorough autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which, subsequently, resulted in the latters death. With no apparent mistake or irregularity, whether in the manner by which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and testimony must be seriously considered by this Court. Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre. One source explains the nature of abdominal injuries
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in the following manner

The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the source of its blood supply and at the point where blood vessels change direction. The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk, its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and transverse colon are in the triangle, located in the peritoneal cavity. Compression or blow on the area may cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41). As to injuries to the spleen, in particular,
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the same source expounds that

The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by

the ribs and also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually affected by trauma. x x x. Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary to common perception, the abdominal area is more than just the waist area. The entire abdominal area is divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The laceration of the victim Cantres spleen can be 26 caused by a stone thrown hard enough, which qualifies as a nonpenetrating trauma Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents provide the predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact sports are frequently implicated in children. x x x The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen an organ described as vulnerable, superficial, and fragile even without causing any other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal. Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient 27 intervening cause, produces the injury, and without which the result would not have occurred." The two other witnesses presented by the prosecution, namely Saano and Belen Cantre, had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen. Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulandays post -mortem report, the defense insisted on the possibility that the victim Cantre died of food poisoning. The postmortem report, though, cannot be given much weight and probative value for the following reasons First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death certificate of the victim Cantre, reveals that although she suspected food poisoning as the cause of death, 28 she held back from making a categorical statement that it was so. In the post-mortem report, she found that "x x x the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be 29 confirm (sic) by laboratory e(x)am." In the death certificate of the victim Cantre, she wrote that the

immediate cause of death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was no showing that further laboratory tests were indeed conducted to confirm Dr. Ulandays suspicion that the victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of death remains just that a suspicion. Second, Dr. Ulanday executed before the NBI a sworn statement findings in the post-mortem report, to wit 05. Q: Did you conduct an autopsy on his cadaver? A: I did sir, but not as exhaustive as that done by the NBI Medico-legal. 06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE? A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didnt state that he was a case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm that suspicion. 07. Q: What gave you that suspicion of poisoning? A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation. 08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you open the body of the cadaver? A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found none. I did not open the body of the cadaver. 09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located? A: On the left portion of his back, sir. 10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could be injured? A: Yes, sir. But that would depend on how strong or forceful the impact was. In contrast, Dr. Mendez described in his testimony before the RTC body of the victim Cantre, as follows
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in which she had explained her

how he conducted the autopsy of the

Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case? A We opened the head, chest and the abdomen. Q That was part of the autopsy you have conducted? A Yes, sir.

Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in connection therewith? A We examined the internal organs. Q What in particular internal organs you have examined? A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines. xxxx Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen? A We, medico-legal officers of the NBI dont do what other doctors do as the y make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim. Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located? A Along the midline but the damaged organ was at the left. Q What particular organ are you referring to? A The spleen, sir. The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence by the courts. Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the 32 presumption that her testimony would be adverse to the prosecution if produced. As this Court already 33 expounded in the case ofPeople v. Jumamoy The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have

compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution. While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless, is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for. Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is "unintentional, it being simply the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in 34 Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill. In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code. Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner Calimutans lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutans reckless imprudence. The RTC and the Court of Appeals may have failed to appreciate, or had completely overlooked, the significance of such circumstances. It should be remembered that the meeting of the victim Cantre and witness Saano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Saano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.1avvphil.net

In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre. The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible. The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was petitioner Calimutans intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than 35 the victim Cantre. Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a mans fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters. Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latters death, despite being done with reckless imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as civil indemnity for the latters death and P50,000.00 as moral damages. SO ORDERED.

UARDO P. MANUEL, Petitioner,

G.R. No. 165842 Present: PUNO, J., Chairman, AUSTRIA-MARTINEZ, - versus CALLEJO, SR., TINGA, and CHICO-NAZARIO,* JJ. Promulgated:

PEOPLE OF THE PHILIPPINES, Respondent.

November 29, 2005

x-----------------------------------------------------------------------------------------x DECISION CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa]. CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal. [4] He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8] For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit. [9] The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken

into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12] The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainants knowledge of the first marriage would not afford any relief s ince bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS INFACT AND IN LAW.[18] The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the

specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a GRO before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.[19] The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy.[21] For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been

lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage. [23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction. [25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same there are three (3) elements of bigamy: intention constituting the felony of the act.[28] He explained that:

view as Viada and declared that

(1) an undissolved marriage; (2) a new marriage; and (3) fraudulent

This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime. [29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary. [30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word voluntary.[31] Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional. [33] Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34] For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35] In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.[36] The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief

that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.[37] The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse [38] after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.[39] Only with such proof can marriage be treated as so dissolved as to permit second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,[41] namely, a judgment of the presumptive death of the absent spouse. The petitioners sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigam y is misplaced. Articles 390 and 391 of the Civil Code provide Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; A person in the armed forces who has taken part in war, and has been missing for four years; A person who has been in danger of death under other circumstances and his existence has not been known for four years.

(2) (3)

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration.[42] However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43] With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46] In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioners contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to

harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. [48] In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act. [50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.[53] A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage. [56] The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the

requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead. [57] Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latters reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established. [58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of

remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59] According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.[60] Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.[61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code. [62] On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.[64] The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. [65] An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66] Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30,

32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68] Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The standards are the following: act with

justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. [69]

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[70] If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter fo r damages. The latter provision

is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case. [71] In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who

changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72] The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference with the jurys reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955). The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:[75] Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendants misrepresentation. The criminal

relations which followed, innocently on her part, were but one of the incidental results of the defendants fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendants misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations

distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED.

EDUARDO P. DIEGO, complainant, vs. JUDGE SILVERIO Q. CASTILLO, Regional Trial Court, Dagupan City, Branch 43,respondent. DECISION AZCUNA, J.: This is an administrative complaint against Regional Trial Court Judge Silverio Q. Castillo for allegedly knowingly rendering an unjust judgment in a criminal case and/or rendering judgment in gross ignorance of the law. The facts and circumstances of the criminal case are summarized, as follows: a) On January 9, 1965, accused Lucena Escoto contracted marriage with Jorge de Perio, Jr., solemnized before then Mayor Liberato Reyna of Dagupan City. The couple were both Filipinos. In the marriage contract, the accused used and adopted the name Crescencia Escoto, with a civil status of single; b) In a document dated February 15, 1978, denominated as a Decree of Divorce and purportedly issued to Jorge de Perio as petitioner by the Family District Court of Harris th County, Texas (247 Judicial District), it was ordered, adjudged and decreed, that the bonds of matrimony heretofore existing between Jorge de Perio and Crescencia de Perio are hereby Dissolved, Cancelled and Annulled and the Petitioner is hereby granted a Divorce. c) Subsequently, on June 4, 1987, the same Crescencia Escoto contracted marriage with herein complainants brother, Manuel P. Diego, solemnized before the Rev. Fr. Clemente T. Godoy, parish priest of Dagupan City. The marriage contract shows that this time, the accused used [1] and adopted the name Lucena Escoto, again, with a civil status of single. After trial of the criminal case for bigamy, respondent Judge promulgated a decision, on February 24, 1999, the dispositive part of which stated: WHEREFORE, for failure of the STATE to prove accuseds guilt beyond whisper of doubt, the COURT hereby orders her ACQUITTAL with costs de oficio. SO ORDERED.[2] The decision states that the main basis for the acquittal was good faith on the part of the accused. Respondent Judge gave credence to the defense of the accused that she acted without any malicious intent. The combined testimonial and documentary evidence of the defense was aimed at convincing the court that accused Lucena Escoto had sufficient grounds to believe that her previous marriage to Jorge de Perio had been validly dissolved by the divorce decree and that she was legally free to contract the second marriage with Manuel P. Diego. In rendering the decision, respondent Judge reasoned, thus: While it is true that in our jurisdiction the matrimonial bond between Jorge de Perio and the accused are not yet annulled, it remains undisputed that cessation of the same was decreed in the Family District Court of Harris County, Texas, 247th Judicial District, effective February 15, 1978. xxx The CHARGE filed against the accused is categorized as Mala en se (sic) which requires the indispensable presence of criminal intent/dolo.

The felony on BIGAMY as defined and penalized by the Revised Penal Code explicitly mandates that it must be committed with criminal intent. In other words, there must be an unquestionable demonstration on the part of the perpetrator that he/she criminally, willfully and unlawfully contracted a second marriage despite knowledge that his/her first marriage is still existing. As borne out by the evidence adduced, the accused contracted the second marriage after she was informed and furnished of the Divorce Decree which was granted by the Family District Court of Harris County Texas in her favor. As an ordinary laywoman accused being a recipient of a divorce decree, she entertains the impression that she can contract a subsequent marriage which she did when she married the late Manuel Diego. To the honest evaluation of the Court the act complained of against the accused is not patently illegal for the reason that she acted in good faith believing that her marriage was already annulled by a foreign judgment. [3] Complainant herein alleges that the decision rendered by the respondent Judge is manifestly against the law and contrary to the evidence. He questions the evidentiary weight and admissibility of the divorce decree as a basis for the finding of good faith. In addition, complainant stresses that the evidence on record negates respondent Judges finding of good faith on the part of the accused. Thus, complainant urges this Court to impose sanctions upon respondent Judge as, according to complainant, these acts amount to knowingly rendering an unjust judgment and/or gross ignorance of the law. In his comment, respondent Judge explains that what was in issue was the criminal culpability of the accused under Article 349 of the Revised Penal Code. Respondent Judge does not dispute that the second marriage was bigamous because at the time it was contracted, the first marriage was still subsisting since divorce is not recognized in our country and because the accuseds first husband was still alive. Respondent Judge, however, maintains that what was controlling was whether by virtue of the divorce decree the accused honestly believed, albeit mistakenly, that her first marriage had been severed and she could marry again. According to respondent Judge, the same is a state of mind personal to the accused. He further stressed that knowledge of the law should not be exacted strictly from the accused since she is a lay person, and that ineptitude should not be confused with criminal intent. By separate manifestations, both parties agreed to submit the case for resolution based on the pleadings.

The Disputed Decision A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact. This Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act. This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not [5] know that his act constitutes a violation of the law does not exempt him from the consequences thereof.
[4]

Moreover, squarely applicable to the criminal case for bigamy, is People v. [6] Schneckenburger, where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. These findings notwithstanding, the issue before us is whether or not respondent Judge should be held administratively liable for knowingly rendering an unjust judgment and/or gross ignorance of the law.

Knowingly Rendering an Unjust Judgment Knowingly rendering an unjust judgment is a criminal offense defined and penalized under Article [7] 204 of the Revised Penal Code. For conviction to lie, it must be proved that the judgment is unjust and that the judge knows that it is unjust. Knowingly means consciously, intelligently, willfully or intentionally. It is firmly established in this jurisdiction that for a judge to be held liable for knowingly rendering an unjust judgment, it must be shown that the judgment is unjust as it is contrary to law or is not supported by the evidence, and that the same was made with conscious and deliberate intent to do an [8] injustice. The law requires that (a) the offender is a judge; (b) he renders a judgment in a case submitted to [9] him for decision; (c) the judgment is unjust; (d) he knew that said judgment is unjust. This Court reiterates that in order to hold a judge liable, it must be shown that the judgment is unjust and that it was made with conscious and deliberate intent to do an injustice. That good faith is a defense to the charge [10] of knowingly rendering an unjust judgment remains the law. As held in Alforte v. Santos, even assuming that a judge erred in acquitting an accused, she still cannot be administratively charged lacking the element of bad faith, malice or corrupt purpose. Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the [12] part of the complainant to prove the same warrants the dismissal of the administrative complaint. There is, therefore, no basis for the charge of knowingly rendering an unjust judgment.
[11]

Gross Ignorance of the Law Anent the charge of gross ignorance of the law, Maozca v. Domagas, is instructive. Therein respondent judge was charged with gross ignorance of the law resulting in a manifestly unjust judgment for granting a demurrer to the evidence in a bigamy case. The grant of the demurrer to the evidence was based on the judges finding of good faith on the part of the accused, anchored upon a document denominated as a Separation of Property with Renunciation of Rights. This Court stated that said act of the judge exhibited ignorance of the law, and accordingly he was fined in the amount ofP5,000. Also, in Guillermo v. Reyes, Jr., where therein respondent judge was given a reprimand with a stern warning of a more severe penalty should the same or similar act be committed in the future, this Court explained: We have heretofore ruled that a judge may not be held administratively accountable for every erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred, would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. The error must be gross or patent, malicious, deliberate or in evident bad faith. It is only in this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative sanctions are called for as an imperative duty of this Court. As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge. It does not mean,
[14] [13]

however, that a judge, given the leeway he is accorded in such cases, should not evince due care in the performance of his adjudicatory prerogatives. Furthermore, in Wingarts v. Mejia, where therein respondent judge, although absolved of any guilt for the charge of knowingly rendering an unjust judgment, was still imposed sanctions by this Court, thus: In any event, respondent judge deserves to be appropriately penalized for his regrettably erroneous action in connection with Criminal Case No. 2664 of his court. We have repeatedly stressed that a municipal trial judge occupies the forefront of the judicial arm that is closest in reach to the public he serves, and he must accordingly act at all times with great constancy and utmost probity. Any kind of failure in the discharge of this grave responsibility cannot be countenanced, in order to maintain the faith of the public in the judiciary, especially on the level of courts to which most of them resort for redress.[16] Applying these precedents to the present case, the error committed by respondent Judge being gross and patent, the same constitutes ignorance of the law of a nature sufficient to warrant disciplinary action.
[15]

Penalty After evaluation of the merits of the case, the Office of the Court Administrator (OCA) recommended that respondent Judge be reprimanded with a stern warning of a more severe penalty in the future. The act of respondent Judge in rendering the decision in question took place onFebruary 24, 1999 or before the effectivity, on October 1, 2001, of A.M. No. 01-8-10-SC which classified gross ignorance of the law as a serious charge and penalized the offense with a fine of not less than P20,000 but not more than P40,000. Applying the rule as then prevailing, and in line with applicable jurisprudence, respondent Judge should be a fine in the amount of P10,000.
[17] [18]

the sanction on

WHEREFORE, Regional Trial Court Judge Silverio Q. Castillo is hereby FINED in the amount of Ten Thousand Pesos (P10,000) with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. SO ORDERED.

People vs. Oanis (Crim1) The People of the Philippines, plaintiff-appellee, vs. Antonio Z. Oanis and Alberto Galanta, defendantappellants.

July 27, 1943

Moran, J:

Facts: Chief of Police Antonio Oanis and Corporal Alberto Galanta were instructed by the Constabulary Provincial Inspector to arrest the escaped convict, Anselmo Balagtas, with bailarina named Irene, and if overpowered, to get him dead or alive. Upon arrival at the place where Irene could be found, Oanis approached and asked Brigada Mallare where Irene's room was. Brigada indicated the room and said that Irene was sleeping with her paramour. Oanis and Galanta then went to the room and upon seeing a man sleeping with his back towards the door, they simultaneously fired at him. Shocked by the entire scene, Irene fainted. It turned out later that the man shot and killed was not Balagtas but an innocent man named Serapio Tecson, Irene's paramour. Issue: Whether or not Oanis and Galanta can be held responsible for Tecson's death. Held: Yes Ratio: No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention. A peace officer cannot claim exemption from criminal liability if he uses unnecessary or unreasonable force in making an arrest. Through impatience of desire to take chances, Oanis and Galanta have exceeded in the fulfillment of their duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47722 July 27, 1943

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

These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been

placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance ofalevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and ( b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions PARAS, J., dissenting: Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson. Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger. The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned. The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life. In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488). It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious. The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive. The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting: According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately. The decision of the majority, in recognition of the special circumstances of this case which favored the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows: Art. 69. Penalty to be imposed when the crime committed is not wholly excusable . A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870. Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of necessity

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

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

People vs. De Fernando49 Phil. 75FACTS: The accused, a policeman, was informed that three convicts had escaped.In the dark, he saw a person going up the stairs of a house, carrying a bolo andcalling for someone inside. The daughter of the owner of the house was at that time with the accused whofired a shot in the air. As the unknown personcontinued to ascend the stairs and believing that he was one of the escapedconvicts, the accused fired directly at the man who turned out to be the nephewof the owner of the houseISSUE: Whether or not the appellant is exempt from criminal liability due tomistake of fact.HELD: An agent of the law, to whom notice had been given of the presence of suspicious looking persons, who might be escaped prisoners from a nearby penitentiary, prowling around the vicinity, and who enters a house to keepwatch, and later in the evening sees a person with a bolo in hand, approachingthe house in the attitude of going up the stairs, who does not answer thechallenge of the officer of the law, and continues his advance notwithstanding that the latter had fired a shot into the air, and the said agent of the lawconsidering that the said stranger has not been recognized by any person in thehousehold, and thinking him to be an evil-doer, shoots and kills him, is not guilty of murder or homicide.Taking into consideration the state of the mind of the accused at the time, andthe meaning that he gave to the attitude of the unknown person, in shooting thelatter, he felt that he was performing his duty by defending the owners of thehouse against an unexpected attack, and such act cannot cons titute the crime of murder, but only that of a simple homicide. He cannot be held guilty, however asprincipal, with malicious intent, because he thought at the time that he wasjustified in acting as he did, and he is guilty only because he failed to exercise theordinary diligence which, under the circumstances, he should have byinvestigating whether or not the unknown man was really what he thought himto be. In firing the shot, without first exercising reasonable diligence, he actedwith reckless negligence.The crime committed by the accused, therefore is homicide though recklessnegligence defined and punished in Article 568, in relation with Art. 404, of thePenal Code.

CASE DIGEST ON U.S. v. AH CHONG [15 Phil. 488 (1910)] November 10, 2010 Facts: Ah Chong was a cook in Ft. McKinley. He was afraid of bad elements. One evening, before going to bed, he locked himself in his room by placing a chair against the door. After having gone to bed, he was awakened by someone trying to open the door. He called out twice, Who is there, but received no answer. Fearing that the intruder was a robber, he leaped from his bed & called out again, If you enter the room I will kill you. But at that precise moment, he was struck by the chair that had been placed against the door, & believing that he was being attacked he seized a kitchen knife & struck & fatally wounded the intruder who turned out to be his roommate. Held: Ah Chong must be acquitted because of mistake of fact. Ratio: Had the facts been as Ah Chong believed them to be, he would have been justified in killing the intruder under A11, par. 1, of the RPC, which requires, to justify the act, that there be: ? unlawful aggression on the part of the person killed, ? reasonable necessity of the means employed to prevent or repel it, & ? lack of sufficient provocation on the part of the person defending himself If the intruder was really a robber, forcing his way into the room of Ah Chong, there would have been unlawful aggression on the part of the intruder. There would have been a necessity on the part of Ah Chong to defend himself and/or his home. The knife would have been a reasonable means to prevent or repel such aggression. And Ah Chong gave no provocation at all. Under A11 of the RPC, there is nothing unlawful in the intention as well as in the act of the person making the defense.

THE UNITED STATES, plaintiff and appellee, vs. AH CHONG, defendant and appellant.JUSTIFIABLE HOMICIDE; SELF-DEFENSE; MlSTAKE OF FACTS. Defendant was a cook and the deceasedwas a house boy, and both were employed in the same place and usually slept in the same room. Onenight, after the defendant had gone to bed, he was awakened by some one trying to open the door, andcalled out twice, "Who is there?" He received no answer, and fearing that the intruder was a robber,leaped from the bed and again called out: "If you enter the room I will kill you." At that moment he wasstruck by a chair which had been placed against the door. Believing that he was being attacked, heseized a kitchen knife and struck and fatally wounded the intruder, who turned out to be his roommate.Thereupon he called to his employers and rushed back into the room to secure bandages to bind up thewound. Defendant was charged with murder. While there can be no doubt of defendant's exemptionfrom liability if the intruder had really been a robber, the question presented is whether, in this jurisdiction, a person can be held criminally responsible when, by reason of a mistake of f acts, he doesan act for which he would be exempt if the facts were as he supposed them to be, but would constitutemurder if he had known the true state of facts at the time.Held, That, under such circumstances, there is no criminal liability, provided that the ignorance ormistake of fact was not due to negligence or bad faith. In other words, if such ignorance or mistake of facts is sufficient to negative a particular intent which, under the law, is a necessary ingredient of theoffense charged it destroys the presumption of intent and works an acquittal; except in those caseswhere the circumstances demand a conviction under the penal provisions governing negligence, and incases where, under the provisions of article 1 of the Penal489

ESTRADA v SANDIGANBAYAN Case Digest

ESTRADA v SANDIGANBAYAN G.R. No. 148560, November 19, 2001

Facts: Petitioner Joseph Estrada prosecuted An Act Defining and Penalizing the Crime of Plunder, wishes to impress upon the Court that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. His contentions are mainly based on the effects of the said law that it suffers from the vice of vagueness; it dispenses with the "reasonable doubt" standard in criminal prosecutions; and it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code saying that it violates the fundamental rights of the accused. The focal point of the case is the alleged vagueness of the law in the terms it uses. Particularly, this terms are: combination, series and unwarranted. Because of this, the petitioner uses the facial challenge on the validity of the mentioned law. Issue: Whether or not the petitioner possesses the locus standi to attack the validity of the law using the facial challenge.

Ruling: On how the law uses the terms combination and series does not constitute vagueness. The petitioners contention that it would not give a fair warning and sufficient notice of what the law seeks to penalize cannot be plausibly argued. Void-for-vagueness doctrine is manifestly misplaced under the petitioners reliance since ordinary intelligence can understand what conduct is proh ibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, wherein clarification by a saving clause or construction cannot be invoked. Said doctrine may not invoked in this case since the statute is clear and free from ambiguity. Vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld, not absolute precision or mathematical exactitude. On the other hand, overbreadth doctrine decrees that governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Doctrine of strict scrutiny holds that a facial challenge is allowed to be made to vague statute and to one which is overbroad because of possible chilling effect upon protected speech. Furthermore, in the area of criminal law, the law cannot take chances as in the area of free speech. A facial challenge to legislative acts is the most difficult challenge to mount successfully since the challenger must establish that no set of circumstances exists. Doctrines mentioned are analytical tools developed for facial challenge of a statute in free speech cases. With respect to such statue, the established rule is that one to who application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. On its face invalidation of statues results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It is evident that the purported ambiguity of the Plunder Law is more imagined than real. The crime of plunder as a malum in se is deemed to have been resolve in the Congress decision to include it among the heinous crime punishable by reclusion perpetua to death. Supreme Court holds the plunder law constitutional and petition is dismissed for lacking merit.

ESTRADA vs SANDIGANBAYAN

Issues:

1.

WON Plunder Law is unconstitutional for being vague

No. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. The amended information itself closely tracks the language of law, indicating w/ reasonable certainty the various elements of the offense w/c the petitioner is alleged to have committed. We discern nothing in the foregoing that is vague or ambiguous that will confuse petitioner in his defense. Petitioner however bewails the failure of the law to provide for the statutory definition of the terms combination and series in the key phrase a combination or series of overt or criminal acts. These omissions, according to the petitioner, render the Plund er Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence violative of his fundamental right to due process. A statute is not rendered uncertain and void merely because general terms are used herein, or because of the employment of terms without defining them. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence most necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. A facial challenge is allowed to be made to vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of other may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. But in criminal law, the law cannot take chances as in the area of free speech.

2. WON the Plunder Law requires less evidence for providing the predicate crimes of plunder and therefore violates the rights of the accused to due process

No. Sec. 4 (Rule of Evidence) states that: For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. The reasonable doubt standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof of reasonable doubt of every fact necessary to constitute the crime with which he is charged. Not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime chargedthe element of the offense. Relative to petitioners contentions on the purported defect of Sec. 4 is his submission that pattern is a very important element of the crime of plunder; and that Sec. 4 is two-pronged, (as) it contains a rule of evidence and a substantive element of the crime, such that without it the accused cannot be convicted of plunder We do not subscribe to petitioners stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to sec. 1 par. (d). Sec. 4 purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operated in furtherance of a remedy. What is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt.

3. WON Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.

No. It is malum in se which requires proof of criminal intent. Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed willfully, unlawfully and criminally. It thus alleges guilty knowledge on the part of petiti oner. In support of his contention In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No.733 Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the AntiPlunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being. There are crimes however in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. The legislative declaration in R.A. No.7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se.

Held: PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 115156 December 14, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GO SHIU LING, MARY ONG, TERESITA BAJAR y OBEDOZA, and TEODORO EVANGELISTA y DE LOS REYES, accused. ANTONIO COMIA y QUINERY, accused-appellant.

MENDOZA, J.: This is an appeal from the decision of the Regional Trial Court of Pasay City, Branch CX, finding accused-appellant Antonio Comia guilty of conspiring with four others to import regulated drugs in violation of Art. III, 14 in relation to Art. IV, 21 of the Dangerous Drugs Act (Rep. Act No. 6425, as amended). The facts are as follows: About the middle of August 1992, Chief Inspector Amador Pabustan of the Criminal Investigation Section of the Philippine National Police received a report from the International Police Organization (Interpol) that a large shipment of narcotics was arriving in Manila by air mail. Accordingly, he conferred with the Collector of Customs at the Ninoy Aquino International Airport, Pastor Guiao, who ordered an inspection of parcels of commercial quantity coming from Hongkong, Singapore, Indonesia and Bangkok. On September 3, 1992, accused-appellant Antonio Comia went to the Airmail Distribution Center (ADC) at the NAIA to inquire about packages sent through TASCO, a brokerage firm engaged in freight facilitating and forwarding, in which Comia was working. Comia had been asked by TASCO Manager Lydia Dizon to follow up the release of the parcels of a client, Mary Ong, which were supposed to have left the Hongkong Airport on September 2, 1992. The cargo consisted of about 30 parcels which were addressed to various individuals and bearing the identifying marks "VGM" or "VGMO." Comia was informed by Teresita Bajar at the Air Parcel Division of the ADC that the packages had arrived but that they were being held for inspection, possibly even for seizure. He was informed that one of the packages marked "VGM" had arrived in bad order and that its contents, which turned out to be watches, had spilled out. Comia told Dizon what he had been told. Dizon, in turn, called up Mary Ong to inform her of the condition of the shipment. Comia talked to several officials of the ADC. Having failed to convince them to release his cargo, Comia went to see Acting Supervising Appraiser of the Air Parcel Division of the Airmail Distribution Center Emmanuel Laudit on September 9, 1992 to make an appointment for Teodoro Evangelista, the owner of TASCO and Comia's brother-in-law, to see Laudit. The same morning, Evangelista came and interceded for the release of the packages by suggesting to Laudit, "Perahin na lang eka iyan." Laudit advised Evangelista to speak instead with Collector Guiao. Meanwhile, the other packages of TASCO, marked "VGM, N "VGMO," and "TRE," were inspected. On September 8, 1992, a package marked "VGMO" and addressed to a certain "COMIA," was found to contain plastic bags containing crystals. When examined at the National Bureau of Investigation, the shipment turned out to be metamphetamine hydrochloride or shabu. The matter was reported to the Commissioner of Customs and the Postmaster General. The following day, September 9, 1992, in their presence and in the presence of the PNP, nine parcels marked "VGMO" were opened. The parcels were addressed to different individuals. Two parcels, both addressed to "COMIA," were found to contain crystalline powder which when tested was found to be shabu. A total of 21.8 kilograms of shabu, with an estimated value of P50 million, was uncovered.

Evangelista, who was present, was confronted with the cargo. He gave a statement to the police denying any knowledge of the importation and claiming that the cargo belonged to Mary Ong. Accordingly, Mary Ong was invited for questioning. She executed an affidavit admitting that the packages marked "VGM" were hers, but she claimed they were actually meant for Mrs. Go Shiu Ling, the sister of the sender in Hongkong. Ong claimed that she had merely been asked by Go Shiu Ling to facilitate the importation of the boxes which she (Mary Ong) thought contained watches. Based on Mary Ong's statement, Go Shiu Ling was also apprehended. In an Information dated September 11, 1992, Comia, Teresita Bajar, Mary Ong, and Go Shiu Ling were charged with violation of Art. III, 14, in relation to Art. IV, 21 of R.A. No. 6425, as amended. The information alleged That on or about the 9th day of September, 1992, in Pasay City, Metro Manila and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and mutually helping one another, without authority of law, did then and there wilfully, unlawfully, and feloniously import or bring into the Philippines thru the Airmail Distribution Center, Domestic Road, this City, Metamphetamine Hydrochloride (shabu), a regulated drug. Upon their arraignment on September 18, 1992, the accused pleaded "not guilty." On October 12, 1992, the Information was amended to include Teodoro Evangelista, who, however, has remained at large. Trial proceeded except as to Evangelista. After the prosecution had rested its case, the accused filed separate demurrers to the prosecution's evidence. On April 15, 1993, the trial court dismissed the case against Bajar, on the ground that her complicity consisted merely of being in the working area of the customs examiners of the ADC, locating Comia's parcels, where she had no authority to be. The trial court held that this circumstance was insufficient to prove that she was in conspiracy with the others in the importation of shabu. On April 22, 1993, the trial court also granted the demurrers of Ong and Go. It held that Evangelista's affidavit, which implicated Ong, was inadmissible as evidence because Evangelista was not presented to identify it. Likewise, Ong's own affidavit, in which she pointed to Go as the real consignee of the packages, was also held to be inadmissible on the ground that it had been taken while she was under custodial investigation without assistance of counsel. (Ong was not confronted with the three parcels marked "VGMO." She admitted owning packages marked "VGM" but made no mention of the packages marked "VGMO" in her affidavit. Moreover, what she admitted was that the parcels were sent to her by one Yu Yen Jian, whereas the three parcels appeared to have been shipped by a certain Ching Ming). Comia's demurrer was, however, denied. He was found guilty and sentenced to suffer life imprisonment and to pay a fine of P30,000.00. The trial court found that TASCO's modus operandi was to have the cargo of clients divided into parcels which were then addressed to different individuals in order to reduce or entirely avoid customs duties. The addressees were people close to Evangelista, such as accused-appellant, who is his brother-in-law, Lydia Dizon, his sister-in-law, Joel Evangelista, his son, and Bert Tuazon, his neighbor. The names and addresses were likewise interchanged or fictitious addresses were given. The packages were coded with the initials of TASCO's clients so that they could be identified. The code names "VGM" and "VGMO" stood for Mary Ong. Comia's job was to monitor the packages as they arrived at the ADC, although they were not released there but at pilot post offices to which they were forwarded. Teresita Bajar knew the coded initials of TASCO's clients, having been given a list of them. She would monitor the packages of TASCO that had arrived and relay the information to Comia so that the latter could claim them at the Sta. Mesa satellite post office. In claiming them, Comia did not have to sign nor show any identification for the packages he received for TASCO. The person in charge of the Sta. Mesa post office simply checked the items on his list. Comia refused to name the personnel from whom he claimed his packages. In this particular instance, Comia was following up the parcels of Mary Ong which left the Airmail Center of Hongkong on September 2, 1992. They were supposed to contain watches misdeclared as toys and gifts. In this way Ong was in the past able to import dutiable goods, such as calculators, without paying the corresponding taxes. Comia testified that although TASCO clients had used his name, it was the first time that Mary Ong used his name as a dummy addressee. Previously, Mary Ong had used the names of the other dummy addressees which had been given to her by Lydia Dizon. On the other hand, Comia's name was used by Rudy Hernandez, another client of TASCO. Comia said he consented to the use of his name by Ong at the instance of Lydia Dizon. Comia claimed he was a mere employee and delivery man and got nothing in exchange for the use of his name. Lydia Dizon, on the other hand, denied that she ever allowed Mary Ong to use Comia's name.

In finding Comia guilty, the trial court held that he acted on his own in conspiracy with unknown partners, by using Mary Ong's coded initials "VGMO" and thereby making it appear they were part of Ong's shipment, since only the three parcels all addressed to Comia and marked "VGMO" contained shabu. The trial court held that the fact that Comia was persistent in his follow up showed that he knew the contents of the three parcels. The trial court held: If, as Comia claimed, he had been going to the ADC daily from the last week of August 1992 up to the first week of September 1992, he could not have failed to determine that the three parcels had arrived on September 3, 1992 and, therefore, there was no longer any need to follow-up even up to September 9, 1992 if his purpose was merely to determine whether or not they had arrived. That he had religiously gone to the ADC to follow up even after becoming aware of the arrival of the packages is an indication that he was there not merely to know if they had arrived but to secure their immediate dispatch to the satellite office. That he informed Laudit about Evangelista's wanting to see him (Laudit) as in fact Evangelista went to see Laudit to whom he proposed "Perahin na lang eka iyan" is an indication of his keen interest in having the parcels released. Such keen interest indicates prior knowledge of the contents of the parcels, for if, as claimed, they knew them to contain merely watches, and also as claimed, he got nothing for the use of his name, why the persistent follow-up? Comia has appealed, making the following assignment of errors: I.

THE TRIAL COURT ERRED IN CONCLUDING FROM THE MAZE OF DUBIOUS CIRCUMSTANCES THAT ACCUSED-APPELLANT HAS PRIOR KNOWLEDGE OF THE CONTENTS OF THE THREE PARCELS IN QUESTION WHICH WERE FOUND TO CONTAIN PROHIBITED DRUGS. 1
II

THE TRIAL COURT ERRED IN HOLDING THAT THE PARCELS IN QUESTION WERE TO GO TO COMIA AND HIS CONSPIRATOR/S WHICH CONCLUSION WAS BASED ON THE UNDUE AND ERRONEOUS INFERENCE DERIVED FROM THE TESTIMONY OF LYDIA DIZON TO THE EFFECT THAT SHE DID NOT GIVE THE NAME OF ACCUSED-APPELLANT FOR PARCELS OF MARY ONG AS IT WAS A CERTAIN RUDY HERNANDEZ WHO WAS USING THE NAME OF ACCUSED-APPELLANT. 2
III

THE TRIAL COURT ERRED IN HOLDING THAT THE EVIDENCE AGAINST ACCUSEDAPPELLANT "SHOWS PROOF OF CONSPIRACY BEYOND REASONABLE DOUBT IN THE IMPORTATION OF THE THREE PARCELS OF SHABU SUBJECT OF THE CASE AT BAR. 3
IV

THE TRIAL COURT ERRED IN NOT ABSOLVING ACCUSED-APPELLANT OF THE OFFENSE CHARGED ON THE GROUND THAT HIS GUILT HAS NOT BEEN SHOWN BY PROOF BEYOND REASONABLE DOUBT. 4
The Solicitor General filed in lieu of an appellee's brief a Manifestation that, in his opinion, the guilt of the accused has not been proven beyond reasonable doubt and, for this reason, recommending the acquittal of accused-appellant Comia. We find accused-appellant's contentions and the Solicitor General's manifestation to be without merit. First. Accused-appellant and the Solicitor General contend that, instead of showing that Comia knew that the packages contained shabu, the fact that Comia was persistent in seeking the release of the packages shows that he did not know what the parcels contained. They contend that Comia knew that one parcel had been discovered to contain watches in commercial quantity, not toys or gifts as stated in the customs declaration; that the next step would be the seizure of the cargo; and that in following up the matter at the

ADC, his only purpose was to try to prevent the seizure of the goods. They contend that if Comia knew that the packages contained shabu, he would have stopped going to the ADC and instead would have gone into hiding. This contention has no merit. It is clear from the evidence that Evangelista and his firm had connections with the people inside the ADC and the Sta. Mesa Post Office, because of which Evangelista and his firm were able to slip through customs commercial quantities of highly dutiable goods. Accused-appellant himself states in his brief that the fact that Emmanuel Laudit of the ADC allegedly warned Lydia Dizon that the shipment was going to be discovered "indicates [the] existence of an alliance with Laudit." Without such an "alliance," merely using dummy addressees with fictitious or inaccurate addresses on the parcels handled by the TASCO would not be enough to make the smuggling of goods and contraband possible. Indeed, Lydia Dizon herself, the TASCO manager, testified: ATTY. MARCOLETA: Q You said at the outset, Madam Witness, that you are presently jobless and that you last reported for work middle of August 1992, will you please explain to the Court the interruption in your work? A Because in mid-August 1992 ADC called up our office, informing me to stop working and since then I have stopped working. COURT: Q Now, tell us, who in the ADC called you up? A Mr. Manny Laudit, Your Honor. Q Did it occur to you to inquire from him why he advised you to stop working? A Because according to him "mainit na daw ho" because it is from him was [sic] that we really get the information. Q Now tell us, what did you understand by "mainit?" A I cannot understand what he meant by "mainit." He just told me so. Comia's role was to monitor the packages as they arrived at the ADC. He saw to it that the packages bearing false addresses were not sent to the dead letter office or returned to their senders. He was known at the Sta. Mesa post office to which the packages were forwarded. This fact enabled him to have them released without having to sign for anything or produce proof of identity, as would have been the procedure for claiming parcels. Thus it is more likely that Comia kept on working for the release of the packages despite the discovery of the watches because of his friends at the ADC. He had reason to work hard for the release of the packages, now that the watches had been discovered and ranking officials of the ADC presumably already knew that TASCO's packages had been misdeclared. He had to have them released before the rest of the packages were inspected. When his efforts failed, Comia called on his brother-in-law, Teodoro Evangelista, who was the owner of the firm and a former customs policeman, so that the latter could use his influence. When Evangelista arrived, he assured Laudit that the packages contained only watches and boldly offered "Perahin na lang eka iyan." This is far different from the scenario which the Solicitor General has portrayed where an innocent man's name is used by another for unlawful purposes without his knowledge or consent. Comia was not a victim, nor was he framed up. Comia was not an ordinary employee of the TASCO. He is the brother-in-law of the owner of TASCO, Teodoro Evangelista, and the one entrusted by the latter to follow up matters at the ADC and the Sta. Mesa Post Office. He was the one who was in fact known to the employees there. Bajar testified that Comia would inquire from her about TASCO's expected packages two or three times a week or sometimes daily. 5 Laudit testified that in the four years he had known Evangelista, he had seen him only about five times, while he had been seeing accused-appellant regularly: FISCAL BERON: Q Now, do you know of a person by the name of Teodoro Evangelista? A Teddy Evangelista, not Teodoro.

Q Why do you know Teddy? A Because he was one of the facilitators/forwarders there who has some commercial parcels there that are coming from abroad sir. Q Since when have you known Teddy Evangelista?

A Since four (4) years ago sir. 6

.... Q How often was Teddy Evangelista in your office for the four (4) years that you say had been in this business of facilitating release of parcels? A I have seen him only a maximum of five (5) times. COURT: Q Five (5) times during the four years? A Yes, Your Honor because he seldom comes to the office. It is only Tonying who goes to . .. Q Who is that Tonying that you mentioned? A Tonying, that fellow seated there Your Honor. (witness approaching the gallery and tap [sic] the shoulder of a man who responded to the name Tonying Comia) COURT: Q He is the one accused here? A Yes, Your Honor. Q What about him, why did you mention him when I was asking you about Teddy Evangelista?

Q Tonying is the one who frequents our office to follow up their importations. 7
Even granting that Comia acted in good faith, he cannot escape criminal responsibility. The crime with which he is charged is a malum prohibitum. Lack of criminal intent and good faith are not exempting circumstances. As held in People v. Lo Ho Wing: 8 Moreover, the act of transporting a prohibited drug is a "malum prohibitum" because it is punished as an offense under a special law. It is a wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. As such, the mere commission of said act is what constitutes the offense punished and suffices to validly charge and convict an individual caught committing the act so punished, regardless of criminal intent. Likewise, in People v. Bayona, it was held:

The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate to act." 9

Indeed, Comia cannot claim to have acted in good faith. Even assuming that he did not know that the packages contained shabu, the fact is that he tried to facilitate the importation of dutiable goods free of customs duties. It comes as a surprise therefore that in moving for the acquittal of accused-appellant the Solicitor General should downplay or minimize the role of accused-appellant by insisting that the latter was a "mere employee" who did not have a choice "but to assent to whatever his employer wanted to do," and that "besides, this practice of TASCO of using different addressed for a client has been admitted by no less than its manager, Lydia Dizon herself." 10 The fact is that accused-appellant Antonio Comia gave his consent for the importers of the illegal cargo to use his name for the purpose of concealing it from the authorities. He cannot now wash his hands and say he did not know that they would use his name to import shabu. He gave them license to use his name for whatever purpose and it was not at all unforeseeable that clients could employ the scheme to import shabu or other drugs and other contraband. Second. Accused-appellant argues that the trial court also erred in relying upon the testimony of Lydia Dizon that Mary Ong never used Comia's name, on the basis of which the trial court concluded that Comia had acted on his own together with his coconspirators. Accused-appellant claims that Dizon had every reason to implicate him (Comia) as the sole perpetrator of the crime because as manager of TASCO she knew she could possibly be implicated in the crime. Accused-appellant points out that it was upon her instruction that Comia had gone to ADC on September 3, 1992 to inquire about the arrival of the parcels. But while this may be true, as already discussed the evidence against Comia, even without Dizon's testimony, is sufficient to support a finding of his guilt. Third. Appellant argues further that he cannot be convicted of conspiracy because the cases against his alleged co-conspirators, Mary Ong and Go Shiu Ling, were dismissed. The contention is without merit. In People v. Dramayo, 11 the Court affirmed the conviction of two out of seven conspirators originally accused of murder. This Court noted that there had been cases where, notwithstanding that a majority of the defendants have been acquitted, the accused had been held responsible for the crime charged, a moral certainty having arisen as to their culpability. 12 ACCORDINGLY, the judgment appealed from is AFFIRMED. Pursuant to 17 of Republic Act No. 7659, however, the penalty of life imprisonment is MODIFIED to reclusion perpetua. SO ORDERED. Narvasa, C.J., Regalado, Puno and Francisco., JJ., concur.

G.R. No. 172896

April 19, 2010

ROO SEGURITAN y JARA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: In a criminal case, factual findings of the trial court are generally accorded great weight and respect on appeal, especially when such findings are supported by substantial evidence on record.1 It is only in exceptional circumstances, such as when the trial court overlooked material and relevant matters, that this Court will re-calibrate and evaluate the factual findings of the court below. In this case, we hold that the trial court did not overlook such factual matters; consequently, we find no necessity to review, much less, overturn its factual findings. This petition for review on certiorari assails the Decision2 of the Court of Appeals (CA) dated February 24, 2006 in CA-G.R. CR No. 25069 which affirmed with modification the Judgment3 of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 06 in Criminal Case No. VI-892 finding petitioner Roo Seguritan y Jara guilty beyond reasonable doubt of the crime of homicide. Likewise impugned is the Resolution4 dated May 23, 2006 which denied the Motion for Reconsideration. 5 Factual Antecedents On October 1, 1996, petitioner was charged with Homicide in an Information, 6 the accusatory portion of which reads as follows: That on or about November 25,1995, in the municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, ROO SEGURITAN y JARA alias Ranio, with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and box one Lucrecio Seguritan, inflicting upon the latter head injuries which caused his death. Contrary to law. During the arraignment, petitioner entered a plea of not guilty. Thereafter, trial ensued. The Version of the Prosecution In the afternoon of November 25, 1995, petitioner was having a drinking session with his uncles Lucrecio Seguritan (Lucrecio), Melchor Panis (Melchor) and Baltazar Panis (Baltazar), in the house of Manuel dela Cruz in Barangay Paradise, Gonzaga, Cagayan. Petitioner, who was seated beside Lucrecio, claimed that Lucrecios carabao entered his farm and destroyed his crops . A heated discussion thereafter ensued, during which petitioner punched Lucrecio twice as the latter was about to stand up. Petitioners punches landed on Lucrecios right and left temple, causing him to fall face -up to the ground and hit a hollow block which was being used as an improvised stove. Lucrecio lost consciousness but was revived with the assistance of Baltazar. Thereafter, Lucrecio rode a tricycle and proceeded to his house in the neighboring barangay of Calayan, Cagayan. Upon his arrival, his wife noticed blood on his forehead. Lucrecio explained that he was stoned, then went directly to his room and slept. At around 9 oclock in the evening, Lucrecios wife and daughter noticed that his complexion has darkened and foamy substance was coming out of his mouth. Attempts were made to revive Lucrecio but to no avail. He died that same night. After the burial of Lucrecio on December 4, 1995, his wife learned of petitioners involvement in her husbands death. Thus, she sought the assistance of the National Bureau of Investigation (NBI). NBI Medico-Legal Officer Dr. Antonio Vertido (Dr. Vertido) exhumed Lucrecios body and performed the autopsy. Dr. Vertido found hematomas in the scalp located in the right parietal and left occipital areas, a linear fracture in the right middle fossa, and a subdural hemorrhage in the right and left cerebral hemisphere. Dr. Vertido concluded that Lucrecios cause of death was traumatic head injury. 7 On May 21, 1996, Melchor executed a sworn statement before the Gonzaga Police Station recounting the events on that fateful day, including the punching of Lucrecio by petitioner. At the time of Lucrecios death, he was 51 years old and earned an annual income of P14,000.00 as a farmer.

The Version of the Defense Petitioner denied hitting Lucrecio and alleged that the latter died of cardiac arrest. Petitioner claimed that he suddenly stood up during their heated argument with the intent to punch Lucrecio. However, since the latter was seated at the opposite end of the bench, Lucrecio lost his balance and fell before he could be hit. Lucrecios head hit the improvised stove as a result of whi ch he lost consciousness. Petitioner presented Joel Cabebe, the Assistant Registration Officer of Gonzaga, Cagayan, and Dr. Corazon Flor, the Municipal Health Officer of Sta. Teresita, Cagayan, to prove that Lucrecio died of a heart attack. These witnesses identified the Certificate of Death of Lucrecio and the entry therein which reads: "Antecedent cause: T/C cardiovascular disease."8 Ruling of the Regional Trial Court On February 5, 2001, the trial court rendered a Decision convicting petitioner of homicide. The dispositive portion of the Decision reads: WHEREFORE, the Court finds the accused GUILTY beyond reasonable doubt of the crime of homicide and sentences the accused to an indeterminate sentence of 6 years and 1 day of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. The accused is ordered to pay the heirs of the late Lucrecio Seguritan the amount of P30,000.00 as actual damages and the amount of P135,331.00 as loss of earning capacity and to pay the costs. SO ORDERED.9 The Decision of the Court of Appeals On appeal, the CA affirmed with modification the Judgment of the RTC. Thus: WHEREFORE, the judgment appealed from is partly AFFIRMED, WITH MODIFICATION, to read as follows: The Court finds the accused GUILTY beyond reasonable doubt of the crime of homicide and sentences the accused to 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 accused Roo Seguritan is ordered to pay the heirs of the late Lucrecio Seguritan the amount of P 30,000.00 as actual damages, the amount of P135,331.00 as loss of earning capacity, P 50,000.00 as moral damages and to pay the costs. SO ORDERED.10 Petitioner filed a Motion for Reconsideration but it was denied by the CA in its Resolution dated May 23, 2006. Issues Thus, this petition for review raising the following issues: I The Court of Appeals erred in affirming the trial courts judgment of conviction. II The Court of Appeals erred in convicting the accused of the crime of homicide. 11 Our Ruling The petition is denied. Petitioner disputes the conclusion that the fracture on the right middle fossa of the skull, beneath the area where a hematoma developed was due to the blow he delivered because according to the testimony of Dr. Vertido, the fracture may also be caused by one falling from a height. Petitioner also maintains that the punches he threw at Lucrecio had nothing to do with the fatal head injuries the latter suffered. According to him, Lucrecio sustained the head injuries when he accidentally hit the hollow block that was

used as an improvised stove, after falling from the opposite end of the bench. Petitioner insists that Lucrecio died due to a fatal heart attack. In fine, petitioner contends that the appellate court, in affirming the judgment of the trial court, overlooked material and relevant factual matters which, if considered, would change the outcome of the case. We are not persuaded. It is on record that Lucrecio suffered two external injuries and one internal injury in his head. The autopsy report showed that Lucrecio died of internal hemorrhage caused by injuries located at the upper right portion of the head, left side of the center of his head, and a "fracture, linear, right middle fossa, hemorrhage, subdural, right and left cerebral hemisphere." We find no reason to doubt the findings of the trial court, as affirmed by the appellate court, that petitioner punched Lucrecio twice causing him to fall to the ground. Melchor categorically testified that petitioner punched Lucrecio twice and as a result, Lucrecio fell to the ground and lost consciousness. Melchor would not have testified falsely against petitioner, who was his nephew. He even hesitated to testify as shown by his execution of a sworn statement just after the autopsy of Lucrecio which revealed that the cause of death was traumatic head injury attributed to petitioner. Melchors eyewitness account of the fist blows delivered by petitioner to Lucrecio and the manner by which the latter fell fr om the bench and hit his head on the improvised stove is consistent with the autopsy findings prepared and testified to by Dr. Vertido. Thus: xxxx Court: Q: What is the right parietal area? A: This is the right parietal area, sir. (Witness pointing to the upper right portion of the head). : And then the left occipital area, this is left occipital area with a hematoma again measuring 5.0 x 4.0 centimeters, sir. (Witness pointing to the back left part, middle back portion)12 xxxx Fiscal Feril: Q: What about this which reads "Fracture, linear, right middle fossa", where is this injury located? xxxx Court: Q: Will you point that from your head? A: x x x [A]t the base of the brain of the skull, sir. If you look at the head at the cut portion, the fracture is located on the base of the brain, particularly on the right midcranial fossa, sir.13 xxxx Fiscal Feril: Q: Could it be possible that the victim suffered the injuries specifically the fracture while he was falling to the ground, hitting solid objects in the process?

A: Well, with regard to the hematomas there is a possibility [that it could be caused by] falling from a height x x x although it produces hematoma, sir. Court: Q: Falling from a height? A: Yes, sir. Fiscal Feril: Q: If an external force is administered to such victim, such as x x x fist blow[s] would it accelerate this force and cause these injuries? A: Definitely it could accelerate, sir.14 We find no merit in petitioners argument that he could not be held liable for the head fracture suffered by Lucrecio. Th e height from which he stood to deliver the fist blows to Lucrecios head is sufficient to cause the fracture. The testimony of Dr. Vertido also ruled out petitioners contention that Lucrecio died of a heart attack. The fact that Lucrecios cause of death is internal hemorrhage resulting from the head injuries suffered during his encounter with the petitioner and the certainty that he had no heart problem are evident in the following portion of Dr. Vertidos testimony: Atty. Antonio: Q: Did you notice anything unusual in the heart of Lucrecio Seguritan? A: Well, with regard to our examination of the heart Your Honor I limit only the examination on the atomic portion, gross findings, when we say gross findings that can be seen by the eyes and so if for example other that the findings on the brain, if I have not seen my injury from the brain then my next examination to contemplate would be to bring a portion of each particular organ to Manila and have it subjected to a hispathologic examination over the microscope. But then we found out that there is an injury to the brain so why should I now perform a hispathologic examination on the heart, when in fact there is already a gross finding on the brain, meaning that the cause of death now is of course, this traumatic injury, sir. Court: Q: Supposed the victim had a heart attack first and then fell down later, can you determine then x x x the cause of death? A: Well, your Honor as I said a while ago I opened up the heart, I examined the heart grossly and there was no findings that would find to a heart attach on its function, the heart was okay and coronaries were not thickened so I said well grossly there was no heart attack.15 xxxx Court: Q: Since you were conducting just a cursory examination of the heart, my question again is that, could you have determined by further examination whether the victim suffered a heart attack before the injuries on the head were inflicted? A: That is why sir, I said, I examined the heart and I found out that there was noting wrong with the heart, and why should I insist on further examining the heart.16 The notation in the Certificate of Death of Lucrecio that he died of a heart attack has no weight in evidence. Dr. Corazon Flor, who signed said document testified that she did not examine the cadaver of Lucrecio. She stated that a circular governing her profession did not require her to conduct an examination of Lucrecios corpse, as long as the informant tells her that it is not a medic o-legal case. Renato Sidantes (Renato), the brother-in-law of Lucrecio who applied for the latters death certificate, had no knowledge of the real cause of his death. Thus, Dr. Flor was mistakenly informed by Renato that the cause of Lucrecios death was heart attack .

The petitioner belatedly contends that the delay in the autopsy of Lucrecios body and it s embalming compromised the results thereof. To substantiate his claim, he quotes the book entitled Legal Medicine authored by Dr. Pedro Solis, viz: "a dead body must not be embalmed before the autopsy. The embalming fluid may render the tissue and blood unfit for toxilogical analyses. The embalming may alter the gross appearance of the tissues or may result to a wide variety of artifacts that tend to destroy or obscure evidence." "the body must be autopsied in the same condition when found at the crime scene. A delay in the performance may fail or modify the possible findings thereby not serving the interest of justice."17 Petitioners reliance on this citation is misplaced. Petitioner failed to adduce evidence that the one month delay in the autopsy indeed modified the possible findings. He also failed to substantiate his claim that the embalming fluid rendered the tissue and blood of Lucrecio unfit for toxilogical analysis. Further, it is settled that courts will only consider as evidence that which has been formally offered. 18 The allegation that the results of the autopsy are unworthy of credence was based on a book that was neither marked for identification nor formally offered in evidence during the hearing of the case. Thus, the trial court as well as the appellate court correctly disregarded them. The prosecution was not even given the opportunity to object as the book or a portion thereof was never offered in evidence. 19 A formal offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence offered by the parties at the trial. To rule otherwise would deprive the opposing party of his chance to examine the document and object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below.20 Any evidence which a party desires to submit to the courts must be offered formally because a judge must base his findings strictly on the evidence offered by the parties at the trial.21 We are not impressed with petitioners argument that he should be held liable only for reckless imprudence resulting in homicide due to the absence of intent to kill Lucrecio. When death resulted, even if there was no intent to kill, the crime is homicide, not just physical injuries, since with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. 22 Accordingly, Article 4 of the Revised Penal Code provides: Art. 4. Criminal liability Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxxx Petitioner committed an unlawful act by punching Lucrecio, his uncle who was much older than him, and even if he did not intend to cause the death of Lucrecio, he must be held guilty beyond reasonable doubt for killing him pursuant to the above-quoted provision. He who is the cause of the cause is the cause of the evil caused. 23 Considering the foregoing discussion, we find that both the trial court and the appellate court correctly appreciated the evidence presented before them. Both courts did not overlook facts and circumstances that would warrant a reevaluation of the evidence. Accordingly, there is no reason to digress from the settled legal principle that the appellate court will generally not disturb the assessment of the trial court on factual matters considering that the latter as a trier of facts, is in a better position to appreciate the same. Further, it is settled that findings of fact of the trial court are accorded greatest respect by the appellate court absent any abuse of discretion.24 There being no abuse of discretion in this case, we affirm the factual findings of the trial court. Penalty and Damages The penalty for Homicide under Article 249 of the Revised Penal Code is reclusion temporal the range of which is from 12 years and one day to 20 years. Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision mayor the range of which is from six years and one day to 12 years. In this case, we find that the mitigating circumstance of no intention to commit so grave a wrong as that committed, attended the commission of the crime. Thus, the appellate court correctly imposed the indeterminate penalty of six years and one day ofprision mayor, as minimum, to 12 years and one day of reclusion temporal, as maximum. As regards the amount of damages, civil indemnity must also be awarded to the heirs of Lucrecio without need of proof other than the fact that a crime was committed resulting in the death of the victim and that petitioner was responsible therefor. 25 Accordingly, we award the sum of P50,000.00 in line with current jurisprudence.26

The award of P135,331.00 for the loss of earning capacity was also in order. 27 The prosecution satisfactorily proved that the victim was earning an annual income of P14,000.00 from the harvest of pineapples. Besides, the defense no longer impugned this award of the trial court. However, the other awards of damages must be modified. It is error for the trial court and the appellate court to award actual damages of P30,000.00 for the expenses incurred for the death of the victim. We perused the records and did not find evidence to support the plea for actual damages. The expenses incurred in connection with the death, wake and burial of Lucrecio cannot be sustained without any tangible document to support such claim. While expenses were incurred in connection with the death of Lucrecio, actual damages cannot be awarded as they are not supported by receipts. 28
1avvphi1

In lieu of actual damages, the heirs of the victim can still be awarded temperate damages. When pecuniary loss has been suffered but the amount cannot, from the nature of the case, be proven with certainty, temperate damages may be recovered. Temperate damages may be allowed in cases where from the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is convinced that the aggrieved party suffered some pecuniary loss. 29 In this regard, the amount of P25,000.00 is in accordance with recent jurisprudence.30 Moral damages was correctly awarded to the heirs of the victim without need of proof other than the fact that a crime was committed resulting in the death of the victim and that the accused was responsible therefor.31 The award of P50,000.00 as moral damages conforms to existing jurisprudence.32 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 25069 finding petitioner Roo Seguritan y Jara guilty of homicide and sentencing him to suffer the penalty of six years and one day of prision mayor as minimum, to 12 years and one day of reclusion temporal as maximum, and to pay the heirs of Lucrecio Seguritan the amounts of P50,000.00 as moral damages and P135,331.00 as loss of earning capacity is AFFIRMED with MODIFICATION that petitioner is further ordered to pay P25,000.00 as temperate damages in lieu of actual damages, and P50,000.00 as civil indemnity. SO ORDERED.

[G.R. No. 155791. March 16, 2005]

MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER PACHECO, respondents. DECISION
CALLEJO, SR., J.:

At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade 4 elementary school pupil, and his playmate, Wilson Quinto, who was also about eleven years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante Andres and Randyver Pacheco by the mouth of a drainage culvert. Andres and Pacheco invited Wilson to go fishing with them inside the drainage culvert.[1] Wilson assented. When Garcia saw that it was dark inside, he opted to remain seated in a grassy area about two meters from the entrance of the drainage system.[2] Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson, entered the drainage system which was covered by concrete culvert about a meter high and a meter wide, with water about a foot deep.[3] After a while, respondent Pacheco, who was holding a fish, came out of the drainage system and left[4] without saying a word. Respondent Andres also came out, went back inside, and emerged again, this time, carrying Wilson who was already dead. Respondent Andres laid the boys lifeless body down in the grassy area.[5] Shocked at the sudden turn of events, Garcia fled from the scene.[6] For his part, respondent Andres went to the house of petitioner Melba Quinto, Wilsons mother, and informed her that her son had died. Melba Quinto rushed to the drainage culvert while respondent Andres followed her.[7] The cadaver of Wilson was buried without any autopsy thereon having been conducted. The police authorities of Tarlac, Tarlac, did not file any criminal complaint against the respondents for Wilsons death. Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation (NBI) investigators took the sworn statements of respondent Pacheco, Garcia and petitioner Quinto.[8] Respondent Pacheco alleged that he had never been to the drainage system catching fish with respondent Andres and Wilson. He also declared that he saw Wilson already dead when he passed by the drainage system while riding on his carabao.

On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of the NBI performed an autopsy thereon at the cemetery and submitted his autopsy report containing the following postmortem findings: POSTMORTEM FINDINGS Body in previously embalmed, early stage of decomposition, attired with white long sleeves and dark pants and placed inside a wooden coffin in a niche-apartment style. Hematoma, 14.0 x 7.0 cms., scalp, occipital region. Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm. Laryngo tracheal lumina congested and edematous containing muddy particles with bloody path. Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody froth. Brain autolyzed and liquefied. Stomach partly autolyzed. CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory.[9] The NBI filed a criminal complaint for homicide against respondents Andres and Pacheco in the Office of the Provincial Prosecutor, which found probable cause for homicide by dolo against the two. An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac, charging the respondents with homicide. The accusatory portion reads: That at around 8 oclock in the morning of November 13, 1995, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy, conspiring, confederating, and helping one another, did then and there willfully, unlawfully, and feloniously attack, assault, and maul Wilson Quinto inside a culvert where the three were fishing, causing Wilson Quinto to drown and die. CONTRARY TO LAW.[10] After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified on direct examination that the hematoma at the back of the victims head and the abrasion on the latters left forearm could have been caused by a strong force coming from a blunt instrument or object. The injuries in the larynx and trachea also indicated that the victim died of drowning, as some muddy particles were also found on the lumina of the

larynx and trachea (Nakahigop ng putik). Dr. Aguda stated that such injury could be caused when a person is put under water by pressure or by force.[11] On cross-examination, Dr. Aguda declared that the hematoma on the scalp was caused by a strong pressure or a strong force applied to the scalp coming from a blunt instrument. He also stated that the victim could have fallen, and that the occipital portion of his head could have hit a blunt object. Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons head could have rendered the latter unconscious, and, if he was thrown in a body of water, the boy could have died by drowning. In answer to clarificatory questions made by the court, the doctor declared that the 4x3-centimeter abrasion on the right side of Wilsons face could have also been caused by rubbing against a concrete wall or pavement, or by contact with a rough surface. He also stated that the trachea region was full of mud, but that there was no sign of strangulation.[12] After the prosecution had presented its witnesses and the respondents had admitted the pictures showing the drainage system including the inside portions thereof,[13] the prosecution rested its case. The respondents filed a demurer to evidence which the trial court granted on the ground of insufficiency of evidence, per its Order dated January 28, 1998. It also held that it could not hold the respondents liable for damages because of the absence of preponderant evidence to prove their liability for Wilsons death. The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil aspect of the case was concerned. In her brief, she averred that THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSEDAPPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON QUINTO.[14] The CA rendered judgment affirming the assailed order of the RTC on December 21, 2001. It ruled as follows: The acquittal in this case is not merely based on reasonable doubt but rather on a finding that the accused-appellees did not commit the criminal acts complained of. Thus, pursuant to the above rule and settled jurisprudence, any civil action ex delicto cannot prosper. Acquittal in a criminal action bars the civil action arising therefrom where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to them. (Tan v. Standard Vacuum Oil Co., 91 Phil. 672)[15]

The petitioner filed the instant petition for review and raised the following issues:
I

WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL LIABILITY.
II

WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON QUINTO.[16] The petitioner avers that the trial court indulged in mere possibilities, surmises and speculations when it held that Wilson died because (a) he could have fallen, his head hitting the stones in the drainage system since the culvert was slippery; or (b) he might have been bitten by a snake which he thought was the prick of a fish fin, causing his head to hit hard on the top of the culvert; or (c) he could have lost consciousness due to some ailment, such as epilepsy. The petitioner also alleges that the trial court erred in ruling that the prosecution failed to prove any ill motive on the part of the respondents to kill the victim, and in considering that respondent Andres even informed her of Wilsons death. The petitioner posits that the trial court ignored the testimony of the Medico-Legal Expert, Dr. Aguda; the nature, location and number of the injuries sustained by the victim which caused his death; as well as the locus criminis. The petitioner insists that the behavior of the respondents after the commission of the crime betrayed their guilt, considering that respondent Pacheco left the scene, leaving respondent Andres to bring out Wilsons cadaver, while respondent Andres returned inside the drainage system only when he saw Garcia seated in the grassy area waiting for his friend Wilson to come out. The petitioner contends that there is preponderant evidence on record to show that either or both the respondents caused the death of her son and, as such, are jointly and severally liable therefor. In their comment on the petition, the respondents aver that since the prosecution failed to adduce any evidence to prove that they committed the crime of homicide and caused the death of Wilson, they are not criminally and civilly liable for the latters death. The petition has no merit.

Every person criminally liable for a felony is also civilly liable.[17] The civil liability of such person established in Articles 100, 102 and 103 of the Revised Penal Code includes restitution, reparation of the damage caused, and indemnification for consequential damages.[18] When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.[19] With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.[20] The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, to reform and rehabilitate him or, in general, to maintain social order.[21] The sole purpose of the civil action is the restitution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused.[22] While the prosecution must prove the guilt of the accused beyond reasonable doubt for the crime charged, it is required to prove the cause of action of the private complainant against the accused for damages and/or restitution. The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the civil action that the act or omission from where the civil liability may arise does not exist.[23] Moreover, a person committing a felony is criminally liable for all the natural and logical consequences resulting therefrom although the wrongful act done be different from that which he intended.[24] Natural refers to an occurrence in the ordinary course of human life or events, while logical means that there is a rational connection between the act of the accused and the resulting injury or damage. The felony committed must be the proximate cause of the resulting injury. Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. The proximate legal cause is that acting first and producing the injury, either immediately, or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor.[25] There must be a relation of cause and effect, the cause being the felonious act of the offender, the effect being the resultant injuries and/or

death of the victim. The cause and effect relationship is not altered or changed because of the pre-existing conditions, such as the pathological condition of the victim (las condiciones patologica del lesionado); the predisposition of the offended party (la predisposicion del ofendido); the physical condition of the offended party (la constitucion fisica del herido); or the concomitant or concurrent conditions, such as the negligence or fault of the doctors (la falta de medicos para sister al herido); or the conditions supervening the felonious act such as tetanus, pulmonary infection or gangrene.[26] The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or the resulting injury is due to the intentional act of the victim.[27]

(b)

If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy and death follows as a consequence of their felonious act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the factual result. The offender is criminally liable for the death of the victim if his delictual act caused, accelerated or contributed to the death of the victim.[28] A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard.[29] This Court has emphasized that: Amid the conflicting theories of medical men, and the uncertainties attendant upon the treatment of bodily ailments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment. [30] In People v. Quianzon,[31] the Supreme Court held: The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar to the present, the following: Inasmuch as a man is responsible for the consequences of his act and in this case, the physical condition and temperament of the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result actually produced; and as the wound which the appellant inflicted upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc.[32]

In the present case, the respondents were charged with homicide by dolo. In People v. Delim,[33] the Court delineated the burden of the prosecution to prove the guilt of the accused for homicide or murder: In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendants agency in the commission of the act. Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of crimes. In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.[34] Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to adduce preponderance of evidence or superior weight of evidence. Although the evidence adduced by the plaintiff is stronger than that presented by the defendant, he is not entitled to a judgment if his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the weakness of that of the defendants.[35] Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of evidence is determined: Section 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.[36]

In the present case, we rule that, as held by the trial court and the CA, the prosecution failed to adduce preponderant evidence to prove the facts on which the civil liability of the respondents rest, i.e., that the petitioner has a cause of action against the respondents for damages. It bears stressing that the prosecution relied solely on the collective testimonies of Garcia, who was not an eyewitness, and Dr. Aguda. We agree with the petitioner that, as evidenced by the Necropsy Report of Dr. Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on the scalp. But as to how the deceased sustained the injury, Dr. Aguda was equivocal. He presented two possibilities: (a) that the deceased could have been hit by a blunt object or instrument applied with full force; or (b) the deceased could have slipped, fell hard and his head hit a hard object: COURT: The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused on the back of the head might be due to the victims falling on his back and his head hitting a pavement? Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong enough and would fall from a high place and hit a concrete pavement, then it is possible. Is it possible that if the victim slipped on a concrete pavement and the head hit the pavement, the injury might be caused by that slipping? It is also possible. So when the victim was submerged under water while unconscious, it is possible that he might have taken in some mud or what? Yes, Sir. So it is your finding that the victim was submerged while still breathing? Yes, Your Honor, considering that the finding on the lung also would indicate that the victim was still alive when he was placed under water.[37]

Q A Q A Q A

The doctor also admitted that the abrasion on the right side of the victims face could have been caused by rubbing against a concrete wall or pavement:
Q A Q A Q A The abrasion 4x3 centimeters on the right [side of the] face, would it be caused by the face rubbing against a concrete wall or pavement? Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface. Rough surface? Yes, Your Honor. When you say that the trachea region was full of mud, were there no signs that the victim was strangled? There was no sign of strangulation, Your Honor.[38]

The trial court gave credence to the testimony of Dr. Aguda that the deceased might have slipped, causing the latter to fall hard and hit his head on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been caused when the victim fell down and that portion of the body or occipital portion hit a blunt object and might have been inflicted as a result of falling down? A - If the fall if the victim fell and he hit a hard object, well, it is also possible.[39]

The trial court took into account the following facts: Again, it could be seen from the pictures presented by the prosecution that there were stones inside the culvert. (See Exhibit D to D-3). The stones could have caused the victim to slip and hit his head on the pavement. Since there was water on the culvert, the portion soaked with water must be very slippery, aside from the fact that the culvert is round. If the victim hit his head and lost consciousness, he will naturally take in some amount of water and drown.[40] The CA affirmed on appeal the findings of the trial court, as well as its conclusion based on the said findings. We agree with the trial and appellate courts. The general rule is that the findings of facts of the trial court, its assessment of probative weight of the evidence of the parties, and its conclusion anchored on such findings, affirmed no less by the CA, are given conclusive effect by this Court, unless the trial court ignored, misapplied or misconstrued cogent facts and circumstances which, if considered, would change the outcome of the case. The petitioner failed to show any justification to warrant a reversal of the findings or conclusions of the trial and appellate courts. That the deceased fell or slipped cannot be totally foreclosed because even Garcia testified that the drainage culvert was dark, and that he himself was so afraid that he refused to join respondents Andres and Pacheco inside.[41] Respondent Andres had no flashlight; only respondent Pacheco had one. Moreover, Dr. Aguda failed to testify and explain what might have caused the abrasion on the left forearm of the deceased. He, likewise, failed to testify whether the abrasions on the face and left forearm of the victim were made ante mortem or post mortem. The petitioner even failed to adduce preponderance of evidence that either or both the respondents hit the deceased with a blunt object or instrument, and, consequently, any blunt object or instrument that might have been used by any or both of the respondents in hitting the deceased.

It is of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all.[42] However, the absence of any ill-motive to kill the deceased is relevant and admissible in evidence to prove that no violence was perpetrated on the person of the deceased. In this case, the petitioner failed to adduce proof of any ill-motive on the part of either respondent to kill the deceased before or after the latter was invited to join them in fishing. Indeed, the petitioner testified that respondent Andres used to go to their house and play with her son before the latters death:
Q A Q A Q A Do you know this Dante Andres personally? Not much but he used to go to our house and play with my son after going from her mother who is gambling, Sir. But you are acquainted with him, you know his face? Yes, Sir. Will you please look around this courtroom and see if he is around? (Witness is pointing to Dante Andres, who is inside the courtroom.)[43]

When the petitioners son died inside the drainage culvert, it was respondent Andres who brought out the deceased. He then informed the petitioner of her sons death. Even after informing the petitioner of the death of her son, respondent Andres followed the petitioner on her way to the grassy area where the deceased was:
Q A Q A Q A Did not Dante Andres follow you? He went with me, Sir. So when you went to the place where your son was lying, Dante Andres was with you? No, Sir. When I was informed by Dante Andres that my son was there at the culvert, I ran immediately. He [was] just left behind and he just followed, Sir. So when you reached the place where your son was lying down, Dante Andres also came or arrived? It was only when we boarded the jeep that he arrived, Sir.[44]

In sum, the petitioner failed to adduce preponderance of evidence to prove a cause of action for damages based on the deliberate acts alleged in the Information. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs. SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. EDMAR AGUILOS, ODILON LAGLIBA Y ABREGON and RENE GAYOT PILOLA,accused, RENE GAYOT PILOLA, appellant. DECISION
CALLEJO, SR., J.:

Before us is the appeal of appellant Rene Gayot Pilola for the reversal of the Decision of the Regional Trial Court (RTC) of Pasig City, Branch 164, convicting him of murder, sentencing him to suffer reclusion perpetua and ordering him to indemnify the heirs of the victim Joselito Capa y Rulloda in the amount of P50,000 for the latters death.
[1]

The Indictment On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and appellant Rene Gayot Pilola were charged with murder in an Information which reads: That on or about the 5th day of February, 1988 in the Municipality of Mandaluyong, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with one Ronnie Diamante who is still at-large and no fixed address and mutually helping and aiding with one another, armed with double-bladed knives and a bolo and with intent to kill, treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault hack and stab one Joselito Capa y Rulloda, as a result of which the latter sustained hack and stab wounds on the different parts of his body, which directly caused his death. CONTRARY TO LAW.
[2]

Of the three accused, Odilon Lagliba was the first to be arrested and tried, and subsequently convicted of murder. The decision of the trial court became final and executory. Accused Edmar Aguilos remains at large while accused Ronnie Diamante reportedly died a month after the incident. Meanwhile, herein appellant Rene Gayot Pilola was arrested. He was arraigned on March 9, 1994, assisted by counsel, and pleaded not guilty to the charge. Thereafter, trial of the case ensued.
[3] [4] [5]

The Evidence of the Prosecution

[6]

On February 5, 1988, at around 11:30 p.m., Elisa Rolan was inside their store at 613 Nueve de Pebrero Street, Mandaluyong City, waiting for her husband to arrive. Joselito Capa and Julian Azul, Jr. were drinking beer. Edmar Aguilos and Odilon Lagliba arrived at the store. Joselito and Julian invited them to join their drinking spree, and although already inebriated, the two newcomers obliged. In the course of their drinking, the conversation turned into a heated argument. Edmar nettled Julian, and the latter was peeved. An altercation between the two ensued. Elisa pacified the protagonists and advised them to go home as she was already going to close up. Edmar and Odilon left the store. Joselito and Julian were also about to leave, when Edmar and Odilon returned, blocking their way. Edmar took off his eyeglasses and punched Julian in the face. Elisa shouted: Tama na. Tama na. Edmar and Julian ignored her and traded fist blows until they reached Aling Soteras store at the end of the street, about twelve to fifteen meters away from Elisas store. For his part, Odilon positioned himself on top of a pile of hollow blocks and watched as Edmar and Julian swapped punches. Joselito tried to placate the protagonists to no avail. Joselitos intervention apparently did not sit well with Odilon. He pulled out his knife with his right hand and stepped down from his perch. He placed his left arm around Joselitos neck, and stabbed the latter. Ronnie and the appellant, who were across the street, saw their gangmate Odilon stabbing the victim and decided to join the fray. They pulled out their knives, rushed to the scene and stabbed Joselito. Elisa could not tell how many times the victim was stabbed or what parts of his body were hit by whom. The victim fell in the canal. Odilon and the appellant fled, while Ronnie went after Julian and tried to stab him. Julian ran for dear life. When he noticed that Ronnie was no longer running after him, Julian stopped at E. Rodriguez Road and looked back. He saw Ronnie pick up a piece of hollow block and with it bashed Joselitos head. Not content, Ronnie got a piece of broken bottle and struck Joselito once more. Ronnie then fled from the scene. Joselito died on the spot. Elisa rushed to Joselitos house and informed his wife and brother of the incident.
[7]

The next day, Dr. Bienvenido Muoz, Supervising Medico-Legal Officer of the National Bureau of Investigation, conducted an autopsy on the cadaver of Joselito and prepared Autopsy Report No. N-88-375, with the following findings:
[8]

POSTMORTEM FINDINGS Pallor, conjunctivae and integument, marked and generalized.

Contused abrasions: temple, right, 3.0 x 3.0 cm.; mandibular region, right, 2.0 x 8.0 cm.; back, suprascapular region, left, 3.0 x 4.0 cm.; deltoid region, right, 1.0 x 3.0 cm. Lacerated wound, scalp, occipital region, 4.0 cm. Incised wounds: forehead, right side, 5.5 cm.; arm, left, upper third, posterior aspect, 1.5 cm. Stab wounds: 1. Elliptical, 1.8 cm., oriented almost horizontally, edges are clean-cut, medial extremity is sharp, lateral extremity is blunt; located at the anterior chest wall, level of 3rd intercostal space, right, 5.0 cm. from anterior median line; directed backward, upward and medially, non-penetrating, with an approximate depth of 3.0 cm.; 2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 3rd intercostal space, left, 3.0 cm. from anterior median line; directed backward, downward and medially, into the left thoracic cavity, penetrating the left ventricle of the heart with an approximate depth of 10.0 cm.; 3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 4th intercostal space, 12.0 cm. from anterior median line; directed backward, downward and medially, penetrating upper lobe of left lung with an approximate depth of 9.0 cm.; 4. Elliptical, 2.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 5th intercostal space, left, 15.0 cm. from anterior median line; directed backward, downward and medially, penetrating the left thoracic cavity and then lower lobe of left lung and then penetrating the left ventricle of the heart with an approximate depth of 11.0 cm.; 5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the other is blunt; located at the lateral chest wall, level of 7th intercostal space, left, 16.0 cm. from anterior median line; directed backward, upward and medially, into the left thoracic cavity and then penetrating the lower lobe of left lung with an approximately depth of 10.0 cm.; 6. Elliptical, 4.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the other is blunt; located at the lumbar region, left, 14.0 cm.

from anterior median line; directed backward, upward and medially, into the abdominal cavity and then penetrating ileum; 7. Elliptical, 1.5 cm., oriented almost vertically, edges are clean-cut, upper extremity is sharp, lower extremity is blunt; located at the chest, lateral, level of 9th intercostal space, left; 14.0 cm. from posterior median line; directed forward, upward and medially, non-penetrating with an approximate depth of 4.0 cm.; 8. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt, lower extremity is sharp; located at the abdomen, postero-lateral aspect, 15.0 cm. from posterior median line; directed forward, upward and laterally, into the abdominal cavity and then perforating the spleen and pancreas with an approximate depth of 13.0 cm.; 9. Elliptical, 5.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt, lower extremity is sharp; located at the left arm, upper third, anterior; directed backward, downward and medially, involving skin and underlying soft tissues with an approximate depth of 6.0 cm.; 10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut, upper extremity is sharp, lower extremity is blunt; located at the left forearm, upper third, anterior; directed backward, upward and medially and communicating with another wound, arm, left, medial aspect, 2.0 cm.; 11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity blunt, lower extremity, sharp; located at the left arm, lower third, posterior aspect, directed forward, downward and medially, communicating with another wound, arm, left, lower third, posterior aspect, 1.5 cm. Hemothorax, left 900 c.c. Hemopericardium 300 c.c. Hemoperitoneum 750 c.c. Brain and other visceral organs, pale. Stomach-filled with rice and other food particles. CAUSE OF DEATH: Multiple stab wounds.

The Evidence of the Appellant The appellant denied stabbing the victim and interposed the defense of alibi. He testified that at around 11:00 p.m. of February 5, 1988, he was in the house of his cousin, Julian Cadion, at 606 Nueve de Pebrero Street, Mandaluyong City. He suddenly heard a commotion coming from outside. Julian rushed out of the house to find out what was going on. The appellant remained inside the house because he was suffering from ulcer and was experiencing excessive pain in his stomach. The following morning, the appellant learned from their neighbor, Elisa Rolan, that Joselito had been stabbed to death. The appellant did not bother to ask who was responsible for the stabbing.
[9]

Julian alias Buboy Cadion corroborated the appellants testimony. He testified that the appellant was in their house on the night of February 5, 1988, and was suffering from ulcer. The appellant stayed home on the night of the incident.
[10]

Agripina Gloria, a female security guard residing at Block 30, Nueve de Pebrero, 612, Int. 4, Allison St., Mandaluyong City, testified that on February 5, 1988 at around 11:00 p.m., she heard a commotion outside. Momentarily, she saw Ronnie rush into the kitchen of the house of her niece Teresita; he took a knife and run towards Nueve de Pebrero Street where Edmar and Julian were fighting. She then followed Ronnie and saw Joselito trying to pacify the protagonists. Ronnie grabbed Joselito and instantly stabbed the latter, who for a while retreated and fell down the canal. Not content, Ronnie repeatedly stabbed Joselito. Thereafter, Ronnie ran towards the direction of the mental hospital. Agripina did not see Odilon or the appellant anywhere within the vicinity of the incident.
[11]

On May 3, 1995, the trial court rendered its assailed decision, the dispositive portion of which reads, to wit: WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de Febrero Street, Mandaluyong City, GUILTY beyond reasonable doubt of Murder punished under Article 248 of the Revised Penal Code, and there being no mitigating nor aggravating circumstances, he is hereby sentenced to reclusion perpetua. Pilola is hereby ordered to indemnify the heirs of deceased Joselito Capa alias Jessie in the amount of FIFTY THOUSAND PESOS (P50,000.00) as indemnity for his death jointly and solidarily with Odilon Lagliba who was earlier convicted herein. With cost against the accused.
[12]

In the case at bar, the appellant assails the decision of the trial court contending that:
I

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY ANENT THE ASSAILED INCIDENT.
II

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE AND INCONSISTENT TESTIMONY OF PROSECUTION WITNESS ELISA ROLAN AND IN SETTING ASIDE THE EVIDENCE PROFFERED BY ACCUSED-APPELLANT.
III

THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.
[13]

The appellant avers that Elisa is not a credible witness and her testimony is barren of probative weight. This is so because she contradicted herself when she testified on direct examination that Ronnie struck the head of the victim with a hollow block. However, on cross-examination, she stated that it was Edmar who struck the victim. The inconsistency in Elisas testimony impaired her credibility. The contention of the appellant does not hold water. First. The identity of the person who hit the victim with a hollow block is of de minimisimportance. The victim died because of multiple wounds. The appellant is charged with murder for the killing of the victim with a knife, in conspiracy with the other accused. Second. The perceived inconsistency in Elisas account of events is a minor and collateral detail that does not affect the substance of her testimony, as it even serves to strengthen rather than destroy her credibility.
[14]

Third. Elisa has been consistent in her testimony that the appellant was one of the men who stabbed the victim, the others being Ronnie and Odilon. Elisas testimony is corroborated by the autopsy report of Dr. Bienvenido Muoz and his testimony that the victim sustained eleven stab wounds. The doctor testified that there were two or more assailants:

Q A Q A Q A Q A

Could you tell the court what instrument could have been used by the perpetrator in inflicting those two incise wounds? Those incise wounds were caused by a sharp instrument like a knife or any similar instrument.

Now you also found out from the body of the victim eleven stab wounds? Yes, sir. Now, tell the court in which part of the body of the victim where these eleven stab wounds [are] located? Shall I go one by one, all the eleven stab wounds? All the eleven stab wounds? One stab wound was located at the front portion of the chest, right side. Another stab wound was located also on the chest left side, another stab wound was located at the antero lateral aspect, its the front of the chest almost to the side. And also another one, also at the chest, another stab wound was at the left side of the chest and another one was at the lumbar region of the abdomen left side or where the left kidney is located, lumbar area. Another one at the side of the chest, left side of the chest. Another stab wound in the abdomen, another stab wound at the left arm. Another one at the left forearm and the last one in the autopsy report is located at the left arm. These are all the eleven stab wounds sustained by the victim.

A Q A The instrument used was a sharp pointed edge or a single bladed instrument like a knife, kitchen knife, balisong or any similar instrument. Considering the number of stab wounds, doctor, will you tell us whether there were several assailants? In my opinion, there were more than one assailants (sic) here because of the presence of different types of stab wounds and lacerated wounds. This lacerated wound could not have been inflicted by the one holding the one which inflicted the instrument . . (discontinued) which inflicted the stab wounds. So there could have been two or three assailants? More than one.[15]

Q A

The physical evidence is a mute but eloquent manifestation of the veracity of Elisas testimony.
[16]

Fourth. Even the appellant himself declared on the witness stand that he could not think of any reason why Elisa pointed to him as one of the assailants. In a litany of cases, we have ruled that when there is no showing of any improper motive on the part of a witness to testify falsely against the accused or to falsely implicate the latter in the commission of the crime, as in

the case at bar, the logical conclusion is that no such improper motive exists, and that the testimony is worthy of full faith and credence.
[17]

Fifth. The trial court gave credence and full probative weight to Elisas testimony. Case law has it that the trial courts calibration of the testimonial evidence of the parties, its assessment of the credibility of witnesses and the probative weight thereof is given high respect, if not conclusive effect, by the appellate court. The appellant argues that the prosecution failed to prove that he conspired with Ronnie and Odilon in stabbing the victim to death. He contends that for one to be a conspirator, his participation in the criminal resolution of another must either precede or be concurrent with the criminal acts. He asserts that even if it were true that he was present at the situs criminis and that he stabbed the victim, it was Odilon who had already decided, and in fact fatally stabbed the victim. He could not have conspired with Odilon as the incident was only a chance encounter between the victim, the appellant and his coaccused. In the absence of a conspiracy, the appellant cannot be held liable as a principal by direct participation. Elisa could not categorically and positively assert as to what part of the victims body was hit by whom, and how many times the victim was stabbed by the appellant. He asserts that he is merely an accomplice and not a principal by direct participation. We are not persuaded by the ruminations of the appellant. There is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy as a mode of incurring criminal liability must be proved separately from and with the same quantum of proof as the crime itself. Conspiracy need not be proven by direct evidence. After all, secrecy and concealment are essential features of a successful conspiracy. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. There may be conspiracy even if an offender does not know the identities of the other offenders, and even though he is not aware of all the details of the plan of operation or was not in on the scheme from the beginning. One need only to knowingly contribute his efforts in furtherance of it. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators. If conspiracy is established, all the
[18] [19] [20] [21] [22] [23]

conspirators are liable as co-principals regardless of the manner and extent of their participation since in contemplation of law, the act of one would be the act of all. Each of the conspirators is the agent of all the others.
[24] [25]

To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. The mere presence of an accused at the situs of the crime will not suffice; mere knowledge, acquiescence or approval of the act without cooperation or agreement to cooperate on the part of the accused is not enough to make him a party to a conspiracy. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence. From the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and wereunited in its execution. As a rule, the concurrence of wills, which is the essence of conspiracy, may be deduced from the evidence of facts and circumstances, which taken together, indicate that the parties cooperated and labored to the same end.
[26] [27] [28] [29]

Even if two or more offenders do not conspire to commit homicide or murder, they may be held criminally liable as principals by direct participation if they perform overt acts which mediately or immediately cause or accelerate the death of the victim, applying Article 4, paragraph 1 of the Revised Penal Code: Art. 4. Criminal liability. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. In such a case, it is not necessary that each of the separate injuries is fatal in itself. It is sufficient if the injuries cooperated in bringing about the victims death. Both the offenders are criminally liable for the same crime by reason of their individual and separate overt criminal acts. Absent conspiracy between two or more offenders, they may be guilty of homicide or murder for the death of the victim, one as a principal by direct participation, and the other as an accomplice, under Article 18 of the Revised Penal Code:
[30]

Art. 18. Accomplices. Accomplices are the persons who, not being included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts. To hold a person liable as an accomplice, two elements must concur: (a) the community of criminal design; that is, knowing the criminal design of the

principal by direct participation, he concurs with the latter in his purpose; (b) the performance of previous or simultaneous acts that are not indispensable to the commission of the crime. Accomplices come to know about the criminal resolution of the principal by direct participation after the principal has reached the decision to commit the felony and only then does the accomplice agree to cooperate in its execution. Accomplices do not decide whether the crime should be committed; they merely assent to the plan of the principal by direct participation and cooperate in its accomplishment. However, where one cooperates in the commission of the crime by performing overt acts which by themselves are acts of execution, he is a principal by direct participation, and not merely an accomplice.
[31] [32] [33]

In this case, Odilon all by himself initially decided to stab the victim. The appellant and Ronnie were on the side of the street. However, while Odilon was stabbing the victim, the appellant and Ronnie agreed to join in; they rushed to the scene and also stabbed the victim with their respective knives. The three men simultaneously stabbed the hapless victim. Odilon and the appellant fled from the scene together, while Ronnie went after Julian. When he failed to overtake and collar Julian, Ronnie returned to where Joselito fell and hit him with a hollow block and a broken bottle. Ronnie then hurriedly left. All the overt acts of Odilon, Ronnie and the appellant before, during, and after the stabbing incident indubitably show that they conspired to kill the victim. The victim died because of multiple stab wounds inflicted by two or more persons. There is no evidence that before the arrival of Ronnie and the appellant at the situs criminis, the victim was already dead. It cannot thus be argued that by the time the appellant and Ronnie joined Odilon in stabbing the victim, the crime was already consummated. All things considered, we rule that Ronnie and the appellant conspired with Odilon to kill the victim; hence, all of them are criminally liable for the latters death. The appellant is not merely an accomplice but is a principal by direct participation. Even assuming that the appellant did not conspire with Ronnie and Odilon to kill the victim, the appellant is nevertheless criminally liable as a principal by direct participation. The stab wounds inflicted by him cooperated in bringing about and accelerated the death of the victim or contributed materially thereto.
[34]

The trial court correctly overruled the appellants defense of alibi. Alibi is a weak, if not the weakest of defenses in a criminal prosecution, because it is easy to concoct but hard to disprove. To serve as basis for acquittal, it must

be established by clear and convincing evidence. For it to prosper, the accused must prove not only that he was absent from the scene of the crime at the time of its commission, but also that it was physically impossible for him to have been present then. In this case, the appellant avers that at the time of the stabbing incident, he was resting in the house of his cousin at 606 Nueve de Pebrero Street as he was suffering from stomach pain due to his ulcer. But the appellant failed to adduce any medical certificate that he was suffering from the ailment. Moreover, Elisa positively identified the appellant as one of the men who repeatedly stabbed the victim. The appellants defense of alibi cannot prevail over the positive and straightforward identification of the appellant as one of the victims assailants. The appellant himself admitted that his cousins house, the place where he was allegedly resting when the victim was stabbed, was merely ten to fifteen meters away from the scene of the stabbing. Indeed, the appellants defense of denial and alibi, unsubstantiated by clear and convincing evidence, are negative and selfserving and cannot be given greater evidentiary weight than the positive testimony of prosecution eyewitness Elisa Rolan.
[35] [36] [37]

The appellants defenses must crumble in the face of evidence that he fled from thesitus criminis and later left his house. The records show that despite being informed that he was sought after by the authorities as a suspect for the killing of the victim, the appellant suddenly and inscrutably disappeared from his residence at Nueve de Pebrero. As early as May 5, 1988, a subpoena for the appellant was returned unserved because he was out of town. The appellants own witness, Julian Cadion, testified that the appellant had left and was no longer seen at Nueve de Pebrero after the incident, thus:
[38]

Q A Q A Q A Q A

So, how long did you stay at 606 Nueve de Pebrero after February 5, 1988? One week only, sir, and then three weeks after, I returned to Nueve de Pebrero. The whole week after February 5, 1988, was Rene Pilola still living at 606 Nueve de Pebrero? I did not see him anymore, sir. And then three weeks thereafter, you went back to Nueve de Pebrero. Is that what you were then saying? Yes, sir. Now, at the time that you went back to 606 Nueve de Pebrero, was Rene Pilola there? I did not see him anymore, sir.[39]

The records show that the appellant knew that he was charged for the stabbing of the victim. However, instead of surrendering to the police authorities, he adroitly evaded arrest. The appellants flight is evidence of

guilt and, from the factual circumstances obtaining in the case at bar, no reason can be deduced from it other than that he was driven by a strong sense of guilt and admission that he had no tenable defense.
[40]

The Crime Committed by the Appellant and the Proper Penalty Therefor The trial court correctly convicted the appellant of murder qualified by treachery. Abuse of superior strength likewise attended the commission of the crime. 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. The essence of treachery is the swift and unexpected attack on the unarmed victim without the slightest provocation on his part. In this case, the attack on the unarmed victim was sudden. Odilon, without provocation, suddenly placed his arm around the victims neck and forthwith stabbed the latter. The victim had no inkling that he would be attacked as he was attempting to pacify Edmar and Julian. Ronnie and the appellant, both also armed with deadly weapons, rushed to the scene and stabbed the victim, giving no real opportunity for the latter to defend himself. And even as the victim was already sprawled on the canal, Ronnie bashed his head with a hollow block. The peacemaker became the victim of violence.
[41]

Unquestionably, the nature and location of the wounds showed that the killing was executed in a treacherous manner, preventing any means of defense on the part of the victim. As testified to by Dr. Bienvenido Muoz, the victim was stabbed, not just once, but eleven times mostly on the chest and the abdominal area. Six of the stab wounds were fatal, causing damage to the victims vital internal organs.
[42]

The aggravating circumstance of abuse of superior strength is absorbed by treachery. There is no mitigating circumstance that attended the commission of the felony. The penalty for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death. Since no aggravating and mitigating circumstances attended the commission of the crime, the proper penalty is reclusion perpetua, conformably to Article 63 of the Revised Penal Code.
[43]

Civil Liabilities of the Appellant

The trial court correctly directed the appellant to pay to the heirs of the victim Joselita Capa the amount of P50,000 as civil indemnity ex delicto, in accord with current jurisprudence. The said heirs are likewise entitled to moral damages in the amount ofP50,000, also conformably to current jurisprudence. In addition, the heirs are entitled to exemplary damages in the amount of P25,000.
[44] [45] [46]

WHEREFORE, the Decision, dated May 3, 1995, of Branch 164 of the Regional Trial Court of Pasig City in Criminal Case No. 73615, finding appellant Rene Gayot Pilola GUILTY beyond reasonable doubt of the crime of murder is AFFIRMED WITH MODIFICATION. The appellant is hereby directed to pay to the heirs of the victim Joselito Capa the amount of P50,000 as civil indemnity; the amount of P50,000 as moral damages; and the amount of P25,000 as exemplary damages. SO ORDERED.

[G.R. No. 128286. July 20, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. GILBERT BASAO yMACA and PEPE ILIGAN y SALAHAY, accused, PEPE ILIGAN y SALAHAY, accused-appellant. DECISION
GONZAGA-REYES, J.:

Accused Gilbert Basao y Maca and accused-appellant Pepe Iligan y Salahay were charged before the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, with one (1) count of Robbery and two (2) counts of murder in three separate Informations, viz:

Criminal Case No. C-14: That on the [14th] day of April 1994 at about 12:10 oclock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, Province of Surigao Del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with intent to gain, did,then and there, willfully, unlawfully and feloniously take, steal and carry away from the dead body of P/Insp. Joerlick Faburada and Dra. Arlyn Faburada, the following items, to wit: One (1) Caliber .45 pistol valued at P20,000.00 One (1) ICOM handset Radio One (1) PNPA gold ring 9,000.00 8,000.00

With a total value of P37,000.00 to the damage and prejudice of the heirs of the victims in the aforestated amount. CONTRARY TO LAW (In violation of Article 294 of the Revised Penal Code) Criminal Case No. C-15: That on the 14th day of April 1994, at 12:10 oclock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court. The above-named acccused, conspiring, confederating and mutually helping

each other, armed with high-powered firearm, with intent to kill, treachery and evident premeditation, did, then and there, willfully and unlawfully and feloniously assault, attack and shoot Dra. Arlyn Faburada who is four (4) to five (5) months pregnant hitting and inflicting upon the latter, multiple gunshot wounds on her body, which wounds or injuries have caused the instantaneous death of said Dra. Arlyn Faburada, to the damage and prejudice of her heirs in the following amounts: P50,000.00 as life indemnity of the victim 10,000.00 as moral damages 10,000.00 as exemplary damages CONTRARY TO LAW (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances:
1. That the crime was committed with insult or in disregard of the respect due to the offended party on account of her sex and rank being a doctor; 2. There is abuse of superior strength, treachery and evident premeditation; 3. With cruelty by deliberately and inhumanly augmenting the suffering of the victim, outraging or scoffing at her person or corpse.

Criminal Case No. C-16: That on 14th day of April 1994 at 12:10 oclock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a high-powered firearm, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously assault and shoot P/Insp. Joerlick Faburada, Chief of Police, Cantilan Police Station, thereby hitting and inflicting upon the latter multiple wounds on his body, which wounds have caused the instantaneous death of said P/Insp. Joerlick Faburada, to the damage and prejudice of his heirs in the following amounts: P50,000.00 - as life indemnity of the victim 10,000.00 - as moral damages 10,000.00 - as exemplary damages

CONTRARY TO LAW (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances:
1. That the crime was committed with insult or in disregard of the respect due to the offended party on account of his rank being the Chief of Police of the place. 2. There is abuse of superior strength, treachery and evident premeditation. When Branch 41 of the Regional Trial Court of Cantilan, Surigao del Sur was created and duly organized all of the above-mentioned cases were transferred to it. On January 13, 1995, Gilbert Basao was arrested while the accused-appellant remained at large. Upon his arraignment on August 3, 1995, accused Gilbert Basao, duly assisted by his counsel, entered a plea of Not Guilty. Thereafter, a separate trial was conducted only as against accused Gilbert Basao of Criminal Cases Nos. C-14, C-15, and C-16. On August 15, 1996 herein accused-appellant was arrested by the elements of the PNP at the Post Office of Pasay City. On October 14, 1996, Gilbert Basao y Maca was acquitted[1] by the trial court in all the three charges for robbery and two (2) separate crimes of murder for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court found that the evidence of the prosecution has miserably failed to establish the identity of the accused in all these three aforementioned cases. The prosecution had also failed to present Reynaldo Angeles and Pastor Ampo, Sr., the letter sender who informed SPO4 Manuel L. Azarcon that Reynaldo Angeles was the person who pawned the ring of the late Lt. Joerlick Faburada. These persons could have shed light as to the identity of the culprit. The affidavit executed by Gilbert Basao during his custodial investigation was likewise found by the trial court to be inadmissible due to certain constitutional infirmities with respect to his right to counsel, to be informed of such rights and the safeguards enshrined under the Constitution whenever an accused is under custodial investigation. On October 17, 1996, the accused-appellant Pepe Iligan y Salahay, duly assisted by his counsel, entered a plea of Not Guilty to the aforementioned charges upon his arraignment before same court which tried these cases against Gilbert Basao. The evidence for the prosecution was derived mainly from the testimonies of accusedappellants co-accused, Gilbert Basao, and Reynaldo Angeles. The testimonies of SPO4 Manuel Azarcon[2] and SPO2 Dominador Plaza[3] at the separate trial of these same cases against Gilbert Basao were reproduced to buttress the evidence for the prosecution against appellant Iligan. Dr. Luciano Ortega, the physician from Cantilan Polymedic Hospital, issued medical certificates[4] regarding the post-mortem examinations on the bodies of the victims, the Faburada spouses. Gilbert Basao testified[5] that from 1993 to 1994, herein accused-appellant used to stay in the house of his uncle, Gabino Maca, at Padiay, Sibagat, Agusan del Sur. He knows that the accused-appellant is a member of the Citizens Armed Forces Geographical Unit (CAFGU) assigned at Gacub, Carmen, Surigao del Sur. Basao recalls that on April 14, 1994 at 9:00 oclock in the morning, the accused-appellant arrived at the house of his uncle in full CAFGU uniform with an M-16 armalite. The accused-

appellant asked him if he could go with him(accused-appellant) to Carrascal for them to make money. When he (Basao) agreed they both took a jeep from Hinapoyan to Madrid, then from Madrid to Cantilan, Surigao del Sur. They alighted at the Caltex Station Crossing at Cantilan, Surigao del Sur where they proceeded to a waiting shed and herein accused-appellant instructed him to wait for a motorcycle bound for Carrascal. After awhile, the accused-appellant went towards a store just opposite the waiting shed, about 15 meters in distance, to buy some cigarettes. When he hailed an approaching motorcycle, the accused-appellant told him that he still wanted to smoke a cigarette. A few minutes later another motorcycle passed by and he was surprised why the accused-appellant looked at it. When the accused-appellant was about six (6) to eight (8) meters away from the motrocycle, he (accused-appellant) strafed its passengers with his armalite, with more or less 20 bullets, hitting Joerlick Faburada and his wife, Dra. Arlyn Faburada. Dra. Arlyn Faburada, who rode at the back, was thrown on the street while Joerlick Faburada was dragged by the motorcycle until it fell flat on the ground. Joerlick Faburada was then wearing a type A Polo shirt police uniform while his wife was wearing a white blouse. After shooting the victims, accused-appellant took one .45 caliber pistol, one ICOM Radio Handset and one PNPA gold ring from the body of Joerlick Faburada. Basao further narrated that herein accused-appellant instructed him to get the motorcycle for their ride but when he was not able to re-start the vehicle, the accused-appellant shouted at him that they will just walk through the coconut plantation and ricefield. Both of them proceeded on foot towards the house of Pastor Pigneo Ampo, accused-appellants brother-in-law, in Madrid, Surigao del Sur. There, the accused-appellant stayed behind while he (Basao) went to the house of his uncle at Hinapoyan, Carmen, Surigao del Sur before proceeding towards his boarding house in Guingona Subdivision, Butuan City. Witness Basao also declared in court that on April 19, 1994, the accused-appellant went to his boarding house together with Reynaldo Angeles and asked him(Basao) to pawn the class ring of the victim, which request he refused. Accused-appellant then retorted that Reynaldo Angeles will just be the one to pawn the ring. Reynaldo Angeles pawned the ring at M-Lhuillier Pawnshop for P2,100.00 for which a receipt was issued. Afterwards all three of them proceeded to the Red Apple Bar for a drinking spree. While at the said place, the herin accused-appellant admitted to him(Basao) that he (the accused-appellant) shot Lt. Faburada and his wife because he (Lt. Faburada) committed a wrong or atraso against me and as to the victims wife the accused-appellant said that what can I do, she rode on the motorcycle with Lt. Joerlick Faburada. However, accused-appellant did not tell him what the wrong or atraso was about. He further narrated that Reynaldo Angeles was beside him when the accused-appellant told the story about the death of the Faburada spouses. After they were through with their drinking spree, he (Basao) and Angeles proceeded to their respective homes while the accusedappellant planned to go to Cagayan the following day. He further said that although he is not related to either of the two victims, the reason why he now testified against the accused-appellant is because the death of the Faburada spouses bothered his conscience. SPO4 Manuel L. Azarcon, the Deputy Chief of Police of Cantilan, Surigao del Sur, testified[6] that on April 14, 1994, a certain Rodrigo Eleazar reported that a policeman and a woman was shot at about 30 to 40 meters from Cantilan Polymedic Hospital and about 1 km. Away from Barangay Magasang, where he was conducting a pulong-pulong regarding the forthcoming elections. When he and his men reached the scene of the crime they identified the two dead bodies to be that of Lt. Joerlick Faburada, Chief of Police of Cantilan, and his wife Dra.

Arlyn Faburada. In the course of his investigation, he found out that Lt. Faburadas .45 caliber pistol valued at P36,000-40,000, Radio ICOM 02N Handset valued at P9,000 and class ring were all missing. After taking some photographs of the bodies of the victims and finishing the customary police investigation, they brought the bodies of the victims to the Cantilan Polymedic Hospital where the two victims were declared dead on arrival. Several days later, on April 27, 1994, while Azarcon was at his residence in Lininti-an, Cantilan Surigao del Sur, PO2 Warlito Cale brought to him an envelope containing two (2) handwritten letters of Pastor Martin Ampo, Sr., whom he knew very well for the latter frequently visited Cantilan, Surigao del Sur. The letters revealed that the class ring of Lt. Faburada was pawned by Reynaldo Angeles of Cabadbaran, Agusan del Norte at the M-Lhuillier Pawnshop in Butuan City. He presented the letters to the CIS team headed by S/Insp. Buenaventura A. Mendoza for evaluation. On April 29, 1994, as per instruction in the letter, he (SPO4 Azarcon) and the CIS team of S/Insp. Mendoza proceeded directly to the 7th day Adventist Church in Cabadbaran where they met Martin Ampo, Sr. The latter told them that Reynaldo Angeles also stayed in the same compound. Martin Ampo, Sr. called Reynaldo Angeles, who confirmed that the accused-appellant and Gilbert Basao were the ones who told him to pawn the class ring of the victim in Butuan City. They then proceeded to the M-Lhuillier Pawnshop together with Angeles and redeemed the class ring for P2,000 for which a receipt was issued (Exhibit G). Witness Reynaldo Angeles,. Whose wife is the first cousin of the wife of the accusedappellant, identified Gilbert Basao as his classmate since his elementary grades. He testified[7] that for two (2) years from 1992, accused-appellant has been engaged in logging activities at their place at Padiay, Sibagat, Agusan del Sur. On April 19, 1994 at about 3:00 oclock in the afternoon, Basao and accused-appellant went to his aparmtnet at Montegrande Km. 3, Baan, Butuan City; accused-appellant asked him to accompany them (Basao and herein accused-appellant) to downtown Butuan City. When they (Angeles, Basao and herein accusedappellant) had reached the place, the accused-appellant asked him brod I have a ring you will pawn this and you will be the one to sign the receipt, and he acceded to the request. He pawned the ring at the M-Lhuillier Pawnshop for P2,100.00 for which a corresponding receipt was issued. After receiving the said amount, all of them proceeded to the Red Apple in Butuan City to drink beer. There, he said, the accused-appellant admitted to him that he (accused-appellant) shot Lt. Joerlick Faburada, the owner of the ring he pawned, with his M-16 rifle because Lt. Faburada is very strict in enforcing the laws against illegal logging. The accused-appellant also admitted shooting Dra. Arlyn Faburada, the wife of Lt. Faburada, because after the motorcycle turned turtle Dra. Faburada tried to crawl to get the .45 caliber of her husband. Witness Angeles confirmed the testimony of Azarcon that on April 29, 1994, while he was at Quarry 7th Day Adventist Church, Cabadbaran, Agusan del Norte, Boy Azarcon, together with Captain Mendoza and his men asked him if he was really the one who pawned the ring of Lt. Faburada and he replied that he was merely requested by two persons to pawn the ring at the M-Lhuillier Pawnshop. Afterwards, all of them went to Butuan City and redeemed the ring from the pawnshop. He also admitted having executed a sworn statement[8] on April 29, 1994 taken by a police officer of Cantilan in connection with this case. On cross-examination, Angeles testified,[9] among others, that when Basao and the accusedappellant went to his apartment at Montegrande Km. 3 Baan, Butuan City, he did not know the main purpose of their visit; that it was the accused-appellant who invited him to go to Butuan

City; that he noticed that the letters PNPA were engraved in the outer portion of the ring; that he was requested by Basao and the accused-appellant to pawn the ring; and that when he pawned the ring at the M- Lhuillier Pawnshop he thought that the gold ring came from a good source. On re-direct examination, Angeles declared that when he redeemed the ring at the MLhuiller Pawnshop together with the CIS team, he saw that the ring had an inner marking of Joerlick Faburada. He also stated that even if the accused-appellant is related to his wife, being first cousins, he is not afraid to give a statement against the accused-appellant because nobody forced him to testify against the latter and it was his own decision to do so. SPO2 Dominador Plaza, the Police Community Relations Officer and Investigator of Cantilan Police Station, testified[10] that Lt. Joerlick Faburada is their Chief of Police in Cantilan; that there were many people who got mad at the latter because of his strict implementation of the law especially in illegal logging, illegal possession of firearms and others;[11] and that the latter did not assent to any negotiations with respect thereto. In fact an anonymous letter sent to the office of the mayor, petitioned for the ouster of Lt. Joerlick Faburada because the latter allegedly caused the spread of pest or cholera in their town. Accused-appellant Pepe Iligan put up the defense of denial and alibi. The accused-appellant controverted the evidences against him by denying the same. He denied the following, to wit:[12] that he knows the two victims, Joerlick Faburada and Dra. Faburada;[13] that he knows Gilbert Basao and that he has seen the latter on April 14, 1994; [14] that he is related to Reynaldo Angeles; he also denied that he saw Angeles during the month of April 1994;[15] that he was in the house of Angeles at Baan, Agusan del Sur on April 19, 1994; [16] that he requested Angeles to pawn a ring for him;[17] that he was with Basao when Angeles pawned the ring of Lt. Faburada at the Lhuillier Pawnshop, and that he had a drinking spree with them afterwards;[18] that he told a story to Angeles that he personally shot Lt. Joerlick Faburada with an armalite rifle;[19] and that he has ever been in possession of an armalite rifle not an M16, M14 or an even rifle.[20] Accused-appellants defense of alibi hinges on his claim that on April 14, 1994 he was on duty as a CAFGU in a detachment in Gacub the whole day. Before he was arrested on August 16, 1996 at a Post Office in Pasay City, he went to Canlubang, Palao Village to work so that he can help his brothers and sisters. At the time of his arrest, he was informed by the arresting officer that a case was filed against him. He only learned about the case when the arresting officer brought him to the police station where he denied that he committed it. On cross-examination,[21] accused-appellant testified that he was a CAFGU member assigned at the 67th Infantry Battalion; that although there were M-16 armalite rifles in said infantry battalion he was only issued a garand rifle; that from the time he became a CAFGU member in 1993 to the time he was dropped frorm the rolls he never went to the 67th Infantry Battallion; that he was dropped from the rolls as a CAFGU in the year 1994 due to the pendency of these cases against him, and that he did not surrender to the authorities because he was afraid that he might be shot; that he met Reynaldo Angeles in Kolambugan, Agusan del Sur when he stayed there for 6 months; and stated that he knows the wife of Angeles because the wife of Angeles is the first cousin of his (accused-appellant) wife; that he does not know why Angeles testified against him for there was no instance when he filed a case against the latter nor that the latter filed a case against him; contrary to his earlier denial he admitted that he knew Gilbert Basao

when he was at Padiay, Agusan del Sur in 1992 and that the latter resides in Butuan City because Basao studies in that place. To corroborate the accused-appellants alibi, the defense presented the testimony of Alfredo Yagao, who for three years was the Barangay Captain of Hinapoyan, Carmen, Surigao del Sur. Yagao testified[22] that he knew the accused-appellant to be a resident of Sitio Gacub, Hinapoyan, Carmen, Surigao del Sur. On April 14, 1994, he was in Gacub hauling bananas from morning to afternoon where other people, some of whom were CAFGUs, were also present. He saw accused-appellant at the waiting shed, the place where bananas were stocked. The accusedappellant was with five (5) companions and when he asked them where they were going they answered that they were just roaming. He also testified that accused-appellant was still at the waiting shed when he left in the afternoon. On cross-examination,[23] Yagao testified that the accused-appellant is a CAFGU member of the 67th Infantry Battalion; that on April 14, 1994 he saw herein accused-appellant carrying a long firearm, and was then accompanied by several CAFGU members; that he arrived at the waiting shed at 8:00 oclock in the morning to haul bananas and left the place at 4:00 oclock in the afternoon. The trial court found the accused-appellant guilty beyond reasonable doubt of two counts of Murder and one (1) count of Robbery. It opined that the accused-appellant really intended to kill Lt. Faburada and not to go to Carrascal, Surigao del Sur contrary to what he originally told Gilbert Basao. The court, taking note of the fact that Angeles and the accused-appellant are inlaws whose wives are first cousins and that the accused-appellant has influence over Angeles by reason of his being a CAFGU member, relied on the testimony of Reynaldo Angeles that it was the accused-appellant who requested him (Angeles) to pawn the ring of Lt. Joerlick Faburada. It also found that the motive of accused-appellant in killing Lt. Faburada was due to the latters very strict enforcement of the laws particularly on illegal logging and took judicial notice of the fact that the municipalities of Cantilan, Carrascal, Madrid, Carmen and Lanuza fall within the territorial jurisdiction of RTC, Branch 41 and are gifted with abundant virgin forest. The trial court rejected the defense of denial and alibi and did not give probative value to the testimony of Alfredo Yagao, the defense witness, considering that during the preliminary investigation against Gilbert Basao and herein accused-appellant, Yagao claimed in his affidavit that on April 14, 1994 he was at Gacub at 12:00 oclock up to 1:00 oclock p.m. while during his direct testimony, Yagao testified that he was at Gacub, Hinapoyan, Carmen Surigao del Sur from 8:00 oclock a.m. up to 4:00 oclock p.m. and saw accused-appellant and his five (5) companions without mentioning Gilbert Basao. The dispositive portion of the judgment reads:

WHEREFORE, in view of all the foregoing considerations, this Court finds: a) In Criminal Case No. C-14, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Robbery as defined and penalized under Paragraph 5 of Article 294 of the Revised Penal Code, there being no aggravating nor mitigating circumstances and applying the indeterminate sentence law, he is hereby sentenced to suffer an imprisonment ranging from four (4) years to two (2) months and one (1) day

of Prision Correcional as minimum to eight (8) years and One day of Prision Mayor as maximum. to pay the victim through the heirs of Lt. Joerlick Faburada the sum of P37,000.00 without subsidiary imprisonment in case of insolvency and to pay the cost. Being detained, he is credited in the service of his sentence with the full term of his preventive imprisonment, if he agreed in writing to abide by the disciplinary rules imposed upon convicted prisoners, otherwise 4/5 hereof. b) In Criminal Case No. C-15, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Murder qualified by treachery as defined and penalized under Article 248 of the Revised Penal Code as amended and amended by Section 6 of the Republic Act No. 7659, is hereby sentenced to the maximum penalty of death. To pay the heirs of the victim Dra. Arlyn Faburada, the sum of P50,000.00 as life indemnity of the victim; P100,000.00 for burial and actual expenses; P500,000.00 for moral damages and P10,000.00 for exemplary damages and to pay the cost. c) In Criminal Case No. C-16, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Murder qualified by treachery defined and penalized under Article 248 of the Revised Penal Code as amended and amended by Section 6 of Republic Act No. 7659, is hereby sentenced to the maximum penalty of death. To pay the heirs of the victim Lt. Joerlick Faburada the sum of P50,000.00 as life indemnity of the victim; P100,000.00 for burial and actual expenses; P500,000.00 for moral damages and P10,000.00 for exemplary damages and to pay the cost. Pursuant to Section 22 of Republic Act No. 7659, let the criminal records in criminal cases nos. C-15 and C-16 be forwarded to the Supreme court of the Philippines for automatic review within twenty (20) days but not earlier that fifteen days after the promulgation of these judgments. The Director of Prisons, New Bilibid Prisons, Muntinlupa City through the Provincial Warden of Surigao del Sur is ordered to take immediate custody of the convicted prisoner. SO ORDERED.[24]
The accused-appellant raises the following assignment of errors in his brief:
I

THE TRIAL COURT COMMITTED GRAVE ERROR IN ADMITTING IN EVIDENCE THE TESTIMONY OF GILBERT BASAO AS A WITNESS FOR THE PROSECUTION.

II

THE TRIAL COURT COMMITTED GRAVE ERROR IN RELYING ON THE TESTIMONY OF REYNALDO ANGELES.
We find this appeal unmeritorious. Our examination of the evidence convinces us that the trial court correctly relied on the testimony of Gilbert Basao which positively established that herein accused-appellant shot the Faburada spouses with an armalite rifle as they were riding tandem on a motorcycle in the afternoon of April 14, 1994; Lt. Faburada sustained 18 gunshot wounds[25] on his face and several parts of his body, and he was dragged by the motorcycle as it turned turtle. His wife Dra. Arlyn Faburada, then four (4) months pregnant, was thrown off the motorcycle and also sustained nine (9) gunshot wounds,[26] and when she attempted to reach her husbands firearm the latter was again shot by herein accused-appellant[27]. Afterwards the accused-appellant took away Lt. Joerlick Faburadas PNPA gold ring, one .45 caliber pistol and the latters radio handset. It has been time tested doctrine that a trial courts assessment of the credibility of a witness is entitled to great weight -- even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influences as in this case.[28] For the determination of credibility is the domain of the trial court, and the matter of assigning values to the testimonies of witnesses is best performed by it[29] which had the opportunity to observe the demeanor of the witnesses and is in a better position to evaluate their testimonies.[30] Thus, unless the trial judge plainly overlooked certain facts of substance and value which if considered might affect the result of the case, his assessment on credibility of witnesses must be respected.[31] In the case at bar, we find no cogent justification to depart from long standing jurisprudence. In support of his first assigned error, the accused-appellant imputes inconsistencies to the testimony of Gilbert Basao. He avers that Gilbert Basaos testimony was a complete turn-around from his previous testimonies in the trial of the cases against him; and when Gilbert Basao was on the witness stand during his own trial for these same offenses of murder and robbery, he vehemently denied having had something to do with the ambush-slaying of Joerlick Faburada and his wife on April 14, 1994. We are not convinced that there are such contradictions. Accused-appellant failed to point out specific contradictory statements to support his contention. The records show that the defense counsel had the opportunity, in the course of Basaos cross-examination, to confront said witness with his alleged inconsistent statements and utilize the same to discredit his testimony. During the cross-examination of witness Basao, the counsel for the defense only argued with the witness as regards the reason for the latters acquittal. Thereafter, the defense counsel voluntarily waived his right to further cross-examine the said witness with respect to particular points of his testimony[32] which herein accused-appellant now points to this Court as acomplete turn-around from said witness previous testimony before the same court. Where an allegedly inconsistent statement was not related to the witness during the crossexamination and was never asked to explain the same, it cannot later be used to discredit his entire testimony.[33] Naval v. Panday, 275 SCRA 654.33 For failure to raise the same when the time was ripe to do so, the defense has defaulted and waived its right to discredit the testimony of Basao. We have examined carefully the transcripts but we fail to find any material inconsistency

in the testimony of Gilbert Basao that would impair his credibility and render his testimony unworthy of credence. Notwithstanding the defense counsels voluntary waiver to further cross-examine Basao, the trial court conducted its own searching questions of the latter. Despite the questions posed, Basao remained steadfast in relating his eyewitness account of the events that transpired before, during and after the incident when accused-appellant successfully carried out his criminal design to kill Lt. Faburada. Thus:
COURT TO THE WITNESS: Q After that .45 caliber pistol was taken from the body of Lt. Faburada, one ICOM Radio Handset and a class ring, who carried those items? A Pepe Iligan. Q When you arrived at Madrid was Pepe Iligan still holding these articles? A Yes, sir. Q When you parted ways according to you, you went home at 9:00 oclock in the morning, where were these articles, 1 .45 caliber pistol, 1 ICOM Radio Handset and a class ring? A Pepe Iligan. Q Considering that you were two (2) at the time when these articles were taken, did you not asked (sic) for your share? A No, sir because I did not know the purpose when that was taken. Q The next time when you saw him at Guingona Subdivision at Butuan City did you see that caliber .45 pistol, ICOM Radio Handset, and the class ring? A No, sir. Q What did you find? A Only a ring. Q Do you have any knowledge if the caliber .45 pistol was also pawned by Pepe Iligan? A No, sir. Q Did he not tell you about the ICOM Radio Handset and the caliber .45 pistol? A No, sir. Q Tell the court frankly, how did you know that the gun which was taken from Lt. Faburada is caliber .45? A I saw it when we were walking. Q Where did he placed (sic) that .45 caliber pistol? A At his waist. Q How about the ICOM Radio Handset? A At his waist also.

Q You testified that Lt. Faburada was shot 6 to 8 meters away from Pepe Iligan, what was the position of Pepe Iligan when he shot Lt. Faburada? A He was facing and pointing his gun to Lt. Faburada. Q What position, please demonstrate? A (Witness was pointing his firearm in horizontal position the barrel directing towards the victim.) Q When Pepe Iligan visited you at Guingona Subdivision Butuan City did you have an agreement that you will proceed to Butuan City and he will follow? A No, sir. I was even surprised why he arrived there. Q In that morning on April 14, 1994 when he came to your house and invited you to go to Carrascal, did he tell you the purpose in going to Carrascal? A He told me that may be we can make money in Carrascal. Q From what source if you can remember, tell the Court? A He told me he is a former worker at Ventura Timber Company he might me[e]t (sic) his friends working at Ventura. Q Tell the Court at the time when you left your place, did you plan to kill Dra. Arlyn Faburada and Lt. Joerlick Faburada? A No, sir. Q The Court observed you the way you talk, and testified I am convinced that you are a friend of Pepe Iligan, is that correct? A Yes, sir. Q Did Pepe Iligan confided (sic) to you that he will kill somebody that is why you accompany him? A No, sir because if he told me I will not accompany him. Q When you arrived at Cantilan and stop at Caltex, did you not notice his unusual doing? A No, sir. Q Were you not surprised why he was fully armed? A No, sir because I know he was a CAFGU. Q Was it the first time he was in uniform? A Yes, sir. Q What prompted you to testify against him considering that he is your friend? A I was bothered by my conscience that Lt. Joerlick Faburada and Dra. Arlyn Faburada will not be given justice. Q That amount which was the proceeds of pawned ring, how much is your share? A He did not give me because I did not asked for it. Q Did not your friend told you that the reason he shot Faburada and his wife as a consequence because he was hired by somebody to kill Faburada?

A No, sir. I have no more questions.[34]

Even though Basao may have deliberately failed to immediately reveal or disclose accusedappellants identity when these cases were tried against him, it is settled that such delay does not, by itself, render such testimony less worthy of credence[35] especially where possible reatliation from the accused could not be dismissed as merely fanciful, since at that time accused-appellant was still at large. If the law and the rules of procedure do not prohibit an accused who has been found guilty of a crime from qualifying as a witness, there is no reason why Basao should be disqualified from testifying against his co-accused because of his acquittal. We find no reason to doubt the narration of Basao, who was present when the shooting occurred identifying herein accused-appellant as the one responsible for the death of the Faburada spouses. Reynaldo Angeles corroborated Basaos testimony; Angeles pawned the ring of Lt. Faburada upon the request of the accused-appellant, who subsequently admitted to him that he fired at the Faburada spouses. Under the second assignment of error, accused-appellant contends that the signature of Reynaldo Angeles in the pawn ticket and in the redemption receipt discredits t he prosecutions claim that accused-appellant is the possessor of the ring and that he asked Angeles to pawn the same. We are not persuaded. In light of the testimony of witness Angeles satisfactorily explaining his possession of the pawned ring, as corroborated by the testimony of witness Basao, the contention of herein accused-appellant cannot be believed. Other than accused-appellants bare denials, no satisfactory explanation or evidence was offered to controvert the positive testimonies of witnesses Basao and Angeles before the trial court. As between the categorical testimony which has a ring of truth on one hand and a bare denial on the other, the former is generally held to prevail.[36] Accordingly, the positive testimony of Angeles that the ring came from herein accused-appellant; and that Angeles was just asked by the latter to pawn the ring must be upheld. At the witness stand, Angeles was resolute in pointing to herein accusedappellant as the source of the ring he pawned at the M-Lhuillier Pawnshop, viz:

DIRECT EXAMINATION ATTY. CAEDO:

xxx
Q You said that you were requested by who? A Pepe Iligan. Q Now, please tell this Honorable Court what was then the reason why you were merely requested by Pepe Iligan to go with them to Butuan City? A When I was still in the apartment I do not know what was their purpose. COURT

xxx

xxx

Q You said you personally know Pepe Iligan, how were you introduced with them when they arrived at Padiay, Sibagat, Agusan del Sur? A I was introduced by my wife. Q Why, is your wife related to Pepe Iligan? A Yes, sir. Q Does Pepe Iligan usually go to your house at Padiay, Sibagat, Agusan del Sur? A He always go there in the year 1992? Q What is the relationship of your wife and Pepe Iligan, if you know? A Maybe they were first cousins or third cousins because they have the same family name. Proceed ATTY. CAEDO

xxx

xxx

xxx

Q When you arrived in Butuan City at about 3:30 oclock in the afternoon, what happened? A We arrived at Butuan City, Pepe Iligan gave me a ring and asked me brod I have a ring you will pawn this and you will be the one to sign the receipt. Q Did you agree with the request of Pepe Iligan to pawn the ring? A Yes, sir. Q In what pawnshop did you pawn the ring? A M-Lhuillier Pawnshop. Q Showing to you that particular ring can you still identify it? A Yes, sir. ATTY. CAEDO I would request your honor that aside from this ring there will be other ring shown to this Witness so that to avoid further objection from the Defense.

xxx
ATTY. CAEDO

xxx

xxx

Q We are now showing to you Mr. Angeles a ring will you please try to examine this and tell this Honorable Court what relation has this ring to the ring you mentioned earlier that was pawn[ed] at M-Lhuillier Pawnshop in Butuan City? (Witness is trying to examine the ring by looking at the front side and the inner side of the ring). A This is the ring. COURT Q Why did you know that, that is the said ring that you pawn in M-Lhuillier Pawnshop, Butuan City? A there is a marking inside and the outside.

Q What is the marking inside? A Joerlick Faburada. Proceed. ATTY. CAEDO Q How about the markings outside? A PNP Academy.

xxx

xxx

x x x[37]

CROSS EXAMINATION
COURT Q Who invited you to go to Butuan City? A Pepe Iligan. Proceed. ATTY. ARREZA Q When Pepe Iligan invited you to Butuan City, Gilbert Basao did not say anything? A No, sir. Q Did Gilbert Basao followed (sic) you and Pepe Iligan to Butuan City? A Yes, sir. Q And when you reached Butuan City you went to M-Lhuillier Pawnshop, am I right? A Yes, sir.

xxx
A No, sir.

xxx

xxx

Q Up to the last minute when you were already in the pawnshop Gilbert Basao did not say anything?

Q Because only as a matter of fact it was only Pepe Iligan [who] talked to you? A Yes, sir. Q And he did not say any word about the ring? A Yes, sir. Q And it was you who did the talking about the pawning? A Yes, sir. Q So you controlled the whole transactions? A No, sir, when it comes to the pawning I was the one who pawn [ed] the ring. COURT Q And where did that ring come from?

A Pepe Iligan. Proceed. ATTY. ARREZA Q And Pepe Iligan did not say anything when you told him that who is the owner? A No, sir. Q And you did not try to see the inner inscription of the ring? A No, sir. Q And you did not also notice that in the outer portion of the ring there is a PNPA engrave[d] in that ring? A Of course I read it. COURT Q When you say of course I read [it] what have you seen A PNP Academy. Q How about inside the ring? A I did not see the inscription of the engrave when I pawn the ring. Proceed.[38]

RE-DIRECT EXAMINATION
ATTY. CAEDO Q Mr. Reynaldo Angeles a while a go you said that when you were asked by the counsel of the defense you said you were able to see and read the markings outside in this ring and identified by you as the ring pawned by you at M-Lhuillier Pawnshop, now please tell the Court at what point of time you were able to see and read the inner markings of this ring. ATTY. ARREZA Objection, your honor that is misleading? COURT Objection overruled, witness may answer. WITNESS A At the time when we already redeemed the ring together with the CIS team. ATTY. CAEDO Q What have you read in the inner marking. A Joerlick Faburada.[39]

Angeles thus positively identified the accused-appellant as the person who gave the ring to him and who asked him to pawn the same ring of the late Lt. Joerlick Faburada.

The accused-appellant failed to convincingly ascribe any ill-motive on the part of Angeles, well enough to truly make him fabricate such a serious imputation as that recited in his testimony. The defense counsel, even the accused-appellant himself, could not impute any improper motive to the said witness during the trial which might have impelled him to testify falsely, thus:
Q And in fact you were also testif[y]ing Mr. witness for the passed (sic) 6 months you never had a quarrel with Reynaldo Angeles, is that correct? A No sir. Q And in fact Mr. Pepe Iligan up to the very time that Reynaldo Angeles testified here in open Court that you were the one who requested to pawn the ring to the pawnshop, the ring of Joerlick Faburada and you never have an alter[c]ation with Reynaldo Angeles, is that correct? A No sir. Q Do you know the wife of Reynaldo Angeles? A Yes sir. Q What is the name of the wife of Reynaldo Angeles? A I forgot the name. Q And in fact Mr. Witness you will agree with me that the wife of Reynaldo Angeles is related to your wife? A Yes sir. Q What is the relation of your wife to the wife of Reynaldo Angeles? A The mother of the wife of Reynaldo Angeles is the brother of the father of my wife. Q In short your wife and the wife of Reynaldo Angeles is first degree cousin? A Yes sir. Q From the very time you were with Reynaldo Angeles at brgy. Kolambugan, Agusan del Sur up to the very time when Reynaldo Angeles pinpointed (to) you as the person who requested to pawn the ring to the pawnshop is it not the wife of Reynaldo Angeles has a good relation to your wife? A Yes sir. Q In fact Mr. Pepe Iligan you cannot remember of any incident that your wife and the wife of Reynaldo Angeles quarreled? A No sir. Q How about your family and the family of Reynaldo Angeles, like the parents of your wife and the parents of the wife of Reynaldo Angeles, do you know if they quarreled? A No sir. Q So that when Reynaldo Angeles testified here, you will agree that there was no alter(c)ation why he pointed (to) you as the person who requested him to pawn the ring, is that correct? A I did not know why he pointed (to) me because I have not done wrong. Q Was there any incident that you filed a case against Reynaldo Angeles?

A No sir. Q There was an incident that Reynaldo Angeles filed a case against you? A No sir.[40]

Angeles testimony is entitled to credence. The trial court also correctly held that the defense of denial and alibi failed to pass the test of credibility. Accused-appellant failed to prove that his presence at the place of the crime at the time it was committed was physically impossible.[41] Alibi was not convincingly established. First, accused-appellants testimony that on April 14, 1994, the date when the crime took place, he was on duty the whole day in a detachment in Gacub, Carmen, Surigao del Sur was not sufficient. Although alibi, like denial, is inherently weak and can be easily fabricated,[42] it could also serve as basis for an acquittal if it could really be shown by clear and convincing evidence that it was indeed physically impossible for him to be at the crime scene at that time.[43] In this case, the accused-appellant did not even reveal whether or not he had companions when he was on duty, who could support his claim. There was no corroborative evidence (i.e., assignment order, log book showing his time of report and discharge, testimony of a superior or other persons also assigned in said place, etc.) to substantiate his claim that he was indeed in Gacub the whole day. Accused-appellants failure to present witnesses who could have supported his claim tends to show that they would not have corroborated his allegations had they testified.[44] Moreover, accused-appellant failed to prove that the distance between Gacub and the crime scene made it physically impossible for him to be at the locus criminis at the time of its commission. For alibi to offset the evidence of the prosecution demonstrating the guilt of an accused-appellant, the latter must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed.[45] It is not enough that the appellant allege that he was somewhere else when the offense was committed for the requisites of time and place must be strictly met.[46] Accordingly, accused-appellants bare assertions cannot prevail over the positive testimony of the prosecutions principal witness, Gilbert Basao. For as between the self-serving testimony of the accused and the positive identification by the prosecution witness, the latter deserves greater credence.[47] The testimony of Alfredo Yagao fails to impress us. As observed by the trial court, Alfredo Yagao offered conflicting statements before the court. In his affidavit submitted during the preliminary investigation against Gilbert Basao and the herein accused-appellant, he claimed that he was at Gacub, Hinapoyan, Carmen Surigao Del Sur from 12:00 oclock up to 1:00 oclock in the afternoon while in his direct testimony given in open court he testified that he was in Gacub from 8:00 oclock a.m. up to 4:00 oclock p.m. where he still saw herein accused-appellant and his five companions.[48] Such omission in the affidavit referred to a material point in accusedappellants defense of alibi that one relating as an eyewitness would not be expected to fail to mention. In such a case, both sworn statements, before the court and in the affidavit, being contradictory statements impeaches Yagaos own credibility.[49] Finally, the Court notes that on direct examination, the accused-appellant claimed that he only learned about these cases when he was arrested in 1996.[50] However, upon his crossexamination, he said that he was asked to surrender his firearm by the Cadreman at the 67th Infantry Battalion and was dropped from the rolls of the CAFGUs in 1994 due to the pendency

of these cases against him; that when he went to Canlubang, Manila he was already aware of these cases against him and he did not surrender to the authorities for fear of being shot by them.[51] It would appear that after he was charged for these offenses on August 30, 1994, he became a fugitive from justice, i.e. one who after being charged, flees to avoid prosecution.[52] It is a well-entrenched doctrine that an accuseds flight from the scene of the crime and his act of hiding himself until he was arrested are circumstances highly indicative of his guilt, for as has been wisely said, the wicked flee even when no man pursueth but the righteous are as bold as a lion.[53] For a truly innocent person would normally grasp the first opportunity to defend himself and to assert his innocence over a crime imputed against him.[54] For the death of Lt. Joerlick Faburada, subject of Criminal Case No. C-16, and Dra. Arlyn Faburada, subject of Criminal Case No. C-15, the crime committed was murder qualified by treachery or alevosia. Treachery exists when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.[55] Settled is the rule that an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack, constitutesalevosia.[56] Alevosia is taken into account, even if the deceased was face to face with his assailant(s), when the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense.[57] In the instant case, the accusedappellant attacked Lt. Faburada while the latter was manning his motorcycle which he (Lt. Faburada) and his wife was riding. When the accused-appellant was only about six (6) to eight (8) meters away[58] from the speeding motorcycle he suddenly strafed them with his armalite rifle, attacking the Faburada spouses while they were not in any position to offer an effective defense against their aggressor. Both of these victims were completely oblivious of any possible harm the accused-appellant would inflict upon them. The aggravating circumstance of treachery, in Criminal Case No. C-15, was also properly appreciated by the trial court in the death of Dra. Arlyn Faburada, the wife of Lt. Joerlick Faburada. For even assuming that accused-appellant only intended to kill Lt. Joerlick Faburada, the treacherous nature of the attack was made in continuous aggression that cannot be broken up to constitute a separate, distinct and independent attack. The settled rule is that in order to appreciate treachery in continuous aggression, the same must be shown present at the inception of the attack,. as in this case.[59] Assuming that the real object of the assault is Lt. Faburada and that the death of Arlyn was purely accidental as a result of the accused-appellants firing of his M-16 rifle, it does not modify the nature of the crime nor lessen accused-appellants criminal liability under Article 4 paragraph 1 of the Revised Penal Code, to wit:

Article 4. Criminal Liability. -- Criminal Liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

Our ruling in People v. Guevarra,[60] is instructive:

The crime committed by the appellant is murder qualified by treachery. When he shot the victim, appellant was well hidden behind a tree that the victim, who was unarmed and unaware, had no way of defending himself. Thus, appellant employed means, methods or forms to insure the execution of the crime, without risk to himself. As the appellant committed the act with intent to kill and with treachery, the purely accidental circumstance that as a result of the shots a person other than the one intended was killed, does not modify the nature of the crime nor lessen his criminal responsibility, and he is responsible for the consequences of his acts.[61] The qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack or become aware of it.[62]
Also in People vs. Trinidad,[63] we have held that treachery attended the commission of the felony even though the victim of the attack was not the person whom accused-appellant intended to kill, thus:

That another person, and not the victim, was the intended victim is not incompatible with the existence of treachery. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill.
We, however, disagree with the finding of the trial court that the aggravating circumstance of evident premeditation attended the killing of the Faburada spouses. Despite the established fact that the victims were suddenly attacked, while riding a motorcycle without the victims having an opportunity to defend themselves from such sudden attack, the prosecution was not able to prove with clear and convincing evidence that the aggravating circumstances of evident premeditation also attended the commission of the crime in both Criminal Cases Nos. C-15 and C-16. This aggravating circumstance cannot be used to increase the penalty as the prosecution failed to show when accused-appellant meditated and reflected upon his decision to kill the victim and the intervening time that elapsed before this plan was carried out. The records and the transcripts of stenographic notes are barren of positive evidence of any prior reflection on, followed after some time by persistence in, the criminal resolution of the herein accusedappellant. Evident premeditation exists when the following requisites are present:
1. The time when the offender determined to commit the crime; 2. An act manifestly indicating that the culprit has clung to his determination; 3. A sufficient lapse of the time between the determination and execution, to allow him to reflect upon the consequences of his act.[64]

While the motive for the commission of the crime may be duly established it does not constitute sufficient ground to consider the existence of evident premeditation.[65] Motive may be used to indicate the time when the offender determined to commit the crime and the outward act

manifestly indicating that the culprit has clung to such determination. However, the fact of motive alone is not sufficeint to prove the most important element, the third element, proof that sufficient lapse of time between the determination and the execution intervened to allow the offender to reflect on the consequences of his act. To warrant a finding of evident premeditation, it must appear not only that the accused decided to commit the crime prior to the moment of its execution but also that this decision was the result of meditation, calculation, reflection, or persistent attempt.[66] In the case at bar, no evidence was presented regarding the time when the accused-appellant planned to kill the victim, and to show that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. Settled is the rule that when it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered.[67] The aggravating circumstance of abuse of superior strength alleged in the aforementioned two Informations for the death of the spouses Faburada is already absorbed in the qualifying circumstance ofalevosia or treachery so the same need not be appreciated separately.[68] The aggravating circumstance of cruelty by deliberately and inhumanly augmenting the suffering of the victim, outraging or scoffing at his/her person, cannot be appreciated, in both Criminal Cases Nos. C-15 and C-16, for lack of sufficient basis in the evidence. Cruelty as an aggravating circumstance cannot be appreciated in the absence of any showing that herein accused-appellant, for his pleasure and satisfaction, caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain.[69] The test in appreciating cruelty as an aggravating circumstance is whether the accused-appellant deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.[70] The specific aggravating circumstance of with insult or in disregard of the rank of the offended party alleged in Criminal Cases Nos. C-15 and C-16 is, likewise, unavailing in both cases. The prosecution failed to establish proof of the specific facts demonstrating that the accused-appellants act of killing Lt. Joerlick Faburada and Dra. Arlyn Faburada was deliberately intended to disregard or insult the respect due them on account of their rank, age, or sex. Although the trial court found that herein accused-appellants act of killing the deceased Lt. Joerlick Faburada was motivated by his resentment at the latters strict enforcement of the laws nonetheless, motive alone is not sufficient to show that herein accused-appellant deliberately intended to offend or insult the rank of the victim. It is essential that the deliberate intent to offend or insult the rank of the victim must be shown.[71] The aggravating circumstance of with insult or in disregard due to rank is appreciated against an accused only when there is proof of fact of disregard and deliberate intent to insult the rank of the victim.[72] For thecircumstances aggravating the penalty of an offense must be proved as conclusively as the act itself, mere suppositions or presumptions being insufficient to establish their presence.[73] Likewise in Criminal Case No. C-15, for the death of Dra. Arlyn Faburada; the same aggravating circusmtance cannot be appreciated since no intent was established to demonstrate that accused-appellant inflicted such harm by reason of her being a physician or her relative position in civil or social life as a physician. For the aggravating circumstance of with insult or in disregard of the respect due the offended party on account of his rank, age, or sex to be

appreciated, intent to deliberately cause injury by reason of the rank, age, or sex of the victim must be indubitably established.[74] We, therefore, find reason to reduce the death sentences imposed by the trial court in Criminal Cases Nos. C-15, for the death of Dra. Arlyn Faburada, and C-16, for the death of Lt. Joerlick Faburada. Murder is punishable under Article 248 (1) of the Revised Penal Code, as amended by R.A. 7659, which provides:

Article 248. Murder. -- Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or means of persons to insure or afford impunity. 2. x x x. 3. x x x. 4. x x x. 5. x x x. 6. x x x.

In consonance with Article 63 of the Revised Penal Code, the absence of any aggravating or mitigating circumstance justifies the application of a lesser penalty, thus:

Article 63. Rules for the application of indivisible penalties.

x x x xxx xxx

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. x x x. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. x x x. 4. x x x.
Accordingly, the penalty of reclusion perpetua, not death, should be meted upon herein accusedappellant in both Criminal Cases Nos. C-15 and C-16. We come now to the award of damages in both Criminal Cases Nos. C-15 and C-16 which was just stipulated by both counsels for the heirs of the two deceased and the counsel for herein accused-appellant.

With respect to Criminal Case C-15, for the death of Dra. Arlyn Faburada, the amount of P100,000.00 for the burial and other expenses incurred in connection therewith was stipulated upon and may be deemed reasonable; the award of P50,000.00 as death indemnity is in accord with established jurisprudence.[75] However, the award of P500,000.00 as moral damages is excessive and should be correspondingly reduced, bearing in mind that the purpose for making such award is not to enrich the heirs of the victim but to compensate them for injuries to their feelings.[76] Accordingly, an award of P50,000.00 would be adequate and reasonable pursuant to established jurisprudence.[77] The award of P10,000.00 for exemplary damages cannot be sustained pursuant to Article 2230 of the New Civil Code which provides that exemplary damages may be imposed only when the crime is committed with one or more aggravating circumstances.[78] As regards Criminal Case No. C-16, pertaining to the death of Lt. Joerlick Faburada, there is also a need to modify the award of damages made by the trial court. As in Civil Criminal Case No. C-15, the P500,000.00 award for moral damages must be reduced to P50,000.00 only and the award of P10,000.00 as exemplary damages should be deleted. Likewise, the amount of P100,000.00 reimbursement for the burial and incidental expenses was agreed upon by the prosecution and the heirs of the deceased; the indemnity of P50,000.00 by reason of the death of Lt. Joerlick Faburada is in order. As regards Criminal Case No. C-14, the trial court held that herein accused-appellants primary criminal intent was to kill the late Lt. Joerlick Faburada because of his very strict enforcement of the laws in Cantilan, Surigao del Sur and not to deprive the latter of his personal belongings.[79] It concluded that herein accused-appellant was guilty of robbery under Article 293 of the Revised Penal Code which provides:

Article 293. Who are guilty of robbery.-- Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything, shall be guilty of robbery.
There are only two ways in which the crime of robbery can be committed: 1) by means of violence against or intimidation of any person, or 2) by means of force upon anything.[80] The evidence on record in this case is devoid of basis to support the conclusion reached by the trial court that the crime committed is robbery. Our ruling in People v. Salazar[81] is doctrinal:

if the original criminal design does not clearly comprehend robbery, but robbery follows the homicide as an afterthought or as a minor incident of the homicide, the criminal act should be viewed as constitutive of two offenses and not of a single complex crime. Robbery with homicide arises only when there is a direct relation, an intimate connection, between the robbery and the killing, even if the killing is prior to, concurrent with, or subsequent to the robbery.

In the instant case, it is apparent that the taking of the personal properties from the victim was an afterthought. The personal properties were taken after accused-appellant has already successfully carried out his primary criminal intent of killing Lt. Faburada and the taking did not necessitate the use of violence or force upon the person of Lt. Faburada nor force upon anything. Thus, the crime is theft under Article 308 of the same Code which provides, viz:

Art. 308. Who are liable for theft. - Theft is committed by any person who, with intent to gain butwithout violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. x x x.
Although the crimes of robbery and theft under the Revised Penal Code have in common the elements of (a) unlawful taking; (b) with intent to gain; (c) taking of personal property; and (d) the property taken belongs to another, they differ in the manner in which they are asported. Considering that the victim was already heavily wounded when his personal properties were taken, there was no need to employ violence against or intimidation upon his person. Thus, in Criminal Case No. C-14, accused-appellant can only be held guilty of the separate offense of theft under Article 308, penalized under Article 309 of the Revised Penal Code. During the trial, the value of the stolen personal effects was the subject of the testimony[82] of SPO4 Manuel L. Azarcon, Deputy Chief of Cantilan, Surigao del Sur; who declared that his .45 caliber pistol was valued at P36,000.00 to P40,000.00; the ICOM handset radio at P9,000.00 and the PNPA gold ring at P8,000. Under the rule on opinions of ordinary witnesses, it is a standing doctrine that the opinion of a witness is admissible in evidence on ordinary matters known to all men of common perception.[83] Here, the witness is not just an ordinary witness, but virtually an expert, since his work as a Deputy Chief of Police has given him the exposure to and experience in fixing the value of such ordinary police paraphernalia. It is noted that during the trial, the defense never cross-examined SPO4 Azarcon on these points. Such opportunity to crossexamine takes the testimony of said witness out of the hearsay rule. The lack of objection by the counsel for the defense to the value placed by the aforesaid witness gives credence to Azarcons testimony. Article 309, of the Revised Penal Code provides:

Penalties. - Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and for purposes of the other provisions of this Code, the penalty shall be termed prison mayor or reclusion temporal, as the case may be.
Since the total value of the stolen property is P53,000.00 the accused-appellant should be meted the penalty of the maximum period of the penalty prescribed by Article 309 which is the maximum ofprision mayor in its minimum and medium periods plus one year for each additional

ten thousand pesos in excess of P22,000.00.[84] Applying the Indeterminate Sentence Law, the penalty for this particular offense of theft that may thus be imposed is anywhere from two (2) years, four (4) months and one (1) day of prision correcional minimum period to six (6) years of prision correcional maximum period, as minimum, to anywhere from eight (8) years, eight (8) months and one (1) day to ten (10) years ofprision mayor medium period, plus three (3) years for the additional P30,000.00 in excess of P22,000.00 value of the property taken, or eleven (11) years of prision mayor maximum period, as maximum. WHEREFORE, the decision, dated December 10, 1996, of the Regional Trial Court of Cantilan, Surigao del Sur (Branch 41) is AFFIRMED with the MODIFICATION that: 1. In Criminal Case No. C-14, accused-appellant is found guilty beyond reasonable doubt of theft and is hereby sentenced to a prison term of two (2) years, four (4) months and one (1) day of prision correcional minimum period, as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor plus three (3) years for the additional P30,000.00 in excess of P22,000.00 value of the property taken, or a total of eleven (11) years, eight (8) months and one (1) day, as maximum period and to pay the amount of P45,000.00[85] as reparation for the unrecovered stolen articles;
2. In Criminal Case No. C-15, accused-appellant is found guilty beyond reasonable doubt of the crime of murder qualified by treachery and is hereby sentenced to suffer the penalty ofreclusion perpetua; he is also ordered to pay the heirs of the victim:

a) Death indemnity b) Moral damages c) Actual damages

P50,000.00 P50,000.00 P100,000.00

3. In Criminal Case No. C-16, accused-appellant is found guilty beyond reasonable doubt of the crime of murder qualified by trechery and is hereby sentenced to suffer the penalty ofreclusion perpetua; he is also ordered to pay the heirs of the victim:

a) Death indemnity b) Moral damages c) Actual damages

SO ORDERED.

P 50,000.00 P 50,000.00 P100,000.00

[G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants. DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the present case, Appellant Garcia can not be held liable as a principal because the prosecution failed to allege such death through drowning in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal killer, Appellant Ortega, who is his brother-in-law. Statement of the Case This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision, dated February 9, 1994 written by Judge Adriano R. Osorio, finding them guilty of murder.
[1] [2]

Appellants were charged by State Prosecutor Bernardo S. Razon in an Information dated October 19, 1992, as follows:
[3]

That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death.

During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio, pleaded not guilty to the charge. Accused John Doe was then at large. After trial in due course, the court a quo promulgated the questioned Decision. The dispositive portion reads:
[4] [5] [6] [7]

WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of suit. Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00. The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria who took over from the Public Attorneys Office as counsel for the accused.
[8]

The Facts Evidence for the Prosecution The trial court summarized the testimonies of the prosecution witnesses as follows:
[9]

Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and

Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters from Romeo Ortegas house. That upon reaching home, his conscience bothered him and he told his mother what he witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him to the Valenzuela Police Station and some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police station. On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were having the drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre

Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session. PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station and a police team under police officer Param accompanied them to the place. That he asked the police officers to verify if there is a body of person inside the well. That the well was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was found inside the well. That the lifeless body was pulled out from the well. That the body has several stab wounds. That he came to know the victim as Andre Mar Masangkay. That two men were arrested by the police officers. On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature. NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was stab wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is (an) incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant was in front of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab wound on the back right portion of the body may be produced when the assailant was at the back of the victim. That the assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy particles

indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of blood. The stomach is one half filled with muddy particles which could [have been] taken in when submerged in water. On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants. Evidence for the Appellants Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o clock in the morning, went home, changed his clothes and went to work. After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of work. After drinking beer, they left at eight o clock in the evening and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant Garcias wife came and asked him to go home because their daughter was still sick. To alleviate his daughters illness, he fetched his mother-in-law who performed a ritual called tawas. After the ritual, he remained at home and attended to his sick daughter. He then fell asleep but was awakened by police officers at six o clock in the morning of the following day.
[10]

Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos.
[11]

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia. According to him, between eleven and twelve o clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate. He went behind the house where he saw Masangkay peeping through the room of his sister Raquel. He ignored Masangkay and continued urinating. After he was through, Masangkay approached him and asked where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed
[12] [13] [14]

him in the mouth, an attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed Masangkays right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. Quitlong chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept.
[15]

When he woke up at six o clock the following morning, he saw police officers in front of his house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a dead person from the well. He came to know the identity of the dead person only after the body was taken to the police headquarters.
[16]

The Trial Courts Discussion The trial court explained its basis for appellants conviction as follows:
[17]

The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The crime committed by the accused is Murder. Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)). Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.

The Issues In their ten-page brief, appellants fault the trial court with the following: I. The trial court erred in holding that there is conspiracy on the basis of the prosecutions evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to commit murder; The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the well; The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.
[18]

II.

III. IV.

On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia? The Courts Ruling We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal. First Issue: Liability of Appellant Ortega The witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held:
[19]

The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly observed their

behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and will go in hiding. x x x Because the trial court had the opportunity to observe the witnesses demeanor and deportment on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of credibility must be respected.
[20]

In the instant case, we have meticulously scoured the records and found no reason to reverse the trial courts assessment of the credibility of the witnesses and their testimonies insofar as Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly deserves full credence.
[21]

On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant Ortega claimed that after he was able to free himself from Masangkays grip, he went home, treated his injuries and slept. This is not the ordinary reaction of a person assaulted. If Ortegas version of the assault was true, he should have immediately reported the matter to the police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a man would just sleep after someone was stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself from the alleged successive stabbing of Quitlong. The natural tendency of a person under attack is to defend himself and not to persist in choking a defenseless third person.
[22] [23]

Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court found the presence only of abuse of superior strength. We disagree with the trial courts finding. Abuse of superior strength requires deliberate intent on the part of the accused to take advantage of such superiority. It must be shown that the accused purposely used excessive force that was manifestly out of proportion to the means available to the victims defense. In this light, it is necessary to evaluate not only the physical condition and weapon of the protagonists but also the various incidents of the event.
[24] [25]

In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortegas availment of force excessively out of proportion to the means of defense available to the victim to defend himself. Quitlong described the assault made by Appellant Ortega as follows:
[26]

ATTY. ALTUNA: Q A Will you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you witnessed a stabbing incident? It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other.

xxx
Q A Q A Q A Q A Q A

xxx

xxx

Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place? The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega. What about this victim, Andrew Masangkay, where was he at that time? Also the victim, Andrew Masangkay, he was also there. You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group? Yes, sir. What happened next? While we were there together and we were drinking ... (interrupted by Atty. Altuna) Who is that we? Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of nature and went to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was. What happened next?

A Q A Q

And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako. From whom did you hear this utterance? The shout came from Andrew Masangkay. After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard huwag, tulungan nyo ako coming from the mouth of the late Andrew Masangkay, what happened next? Ariel Caranto and I ran towards the back portion of the house. And what did you see? And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Andrew Masangkay. Will you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr proceeded with the stabbing against the late victim, Andrew Masangkay?

A Q A Q

INTERPRETER: (At this juncture, the witness demonstrating.) Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was nakakabayo and with his right hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward and upward motion thrust. ATTY. ALTUNA: (To the witness) Q A How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay? I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches tall. There was no testimony as to how the attack was initiated. The accused and the victim were already grappling when Quitlong arrived. Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength. Hence, Ortega is liable only for homicide, not murder.
[27]

Second Issue: Liability of Appellant Manuel Garcia Appellants argue that the finding of conspiracy by the trial court is based on mere assumption and conjecture x x x. Allegedly, the medico-legal finding that the large airway was filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles did not necessarily mean that such muddy particles entered the body of the victim while he was still alive. The Sinumpaang Salaysay of Quitlong stated,
[28]

Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the prosecution evidence shows Masangkay was already dead when he was lifted and dumped into the well. Hence, Garcia could be held liable only as an accessory.
[29]

We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actors wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide. Although Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body into the well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse than that intended.
[30]

True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and that he died subsequently of drowning. That drowning was the immediate cause of death was medically demonstrated by the muddy particles found in the victims airway, lungs and stomach. This is evident from the expert testimony given by the medico-legal officer, quoted below:
[31] [32] [33]

ATTY. ALTUNA: Q Will you please explain this in simple language the last portion of Exhibit N, beginning with tracheo-bronchial tree, that is sentence immediately after paragraph 10, 2.5 cms. Will you please explain this? The trancheo-bronchial tree is filled with muddy particles. I ask you a question on this. Could the victim have possibly get this particular material? No, sir. What do you mean by no? A person should be alive so that the muddy particles could be inhaled. So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at that time, the person is still alive? Yes, sir.

A Q A Q A Q A

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q

Second point? The heart is pale with some multiple petechial hemorrhages at the anterior surface. And this may [be] due to stab wounds or asphyxia? These are the effects or due to asphyxia or decreased amount of blood going to the heart. This asphyxia are you referring to is the drowning? Yes, sir. Next point is the lungs? The lungs is also filled with multiple petechial hemorrhages. What could have caused this injury of the lungs? This is due to asphyxia or the loss of blood. Are you saying that the lungs have been filled with water or muddy particles? Yes, sir. And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your Report? Yes, sir. Continuing this brain and other visceral organs, pale. What is this? The paleness of the brain and other visceral organs is due to loss of blood. And, of course, loss of blood could be attributed to the stab wound which is number 13? Yes, sir. And the last one, under the particular point hemothorax? It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was admixed with granular materials? And what cause the admixing with granular materials on said particular portion of the body? Could be muddy particles. Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct? Its due to stab wounds those muddy particles which set-in thru the stab wounds. So, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body and caused admixing of granular materials? Yes, sir. Continuing with your report, particularly, the last two portions, will you please explain the same?

A Q A Q A Q A Q A

The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen. And what could have cause the same? [T]he stab wound of the abdomen. The last one, stomach 1/2 filled with muddy particles. Please explain the same? The victim could have taken these when he was submerged in water. What is the take in? Muddy particles. And he was still alive at that time? Yes, sir. (Underscoring supplied)

A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause of death:
[34]

1.

The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim to save himself from drowning. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum). Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered. Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found. Presence of water in the middle ear.

2. 3. 4. 5.

The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of the well. Even his stomach was half-filled with such muddy particles. The unrebutted testimony of the medico-legal officer that all these muddy particles were ingested when the victim was still alive proved that the victim died of drowning inside the well. The drowning was the direct, natural and logical consequence of the felony that Appellant Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be convicted of homicide although he had no original intent to kill.
[35]

In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are, however, two legal obstacles barring his conviction, even as an accessory as prayed for by appellants counsel himself. First. The Information accused Appellant Garcia (and Appellant Ortega) of attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The prosecutions evidence itself shows that Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega. His responsibility relates only to the attempted concealment of the crime and the resulting drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:
[36]

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied) In People vs. Pailano, this Court ruled that there can be no conviction for rape on a woman deprived of reason or otherwise unconscious where the information charged the accused of sexual assault by using force or intimidation, thus:
[37]

The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution sought to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is not clear. But whatever it was, it has not succeeded. If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of reason or unconscious, such conviction could not have been possible under the criminal complaint as worded. This described the offense as having been committed by Antonio Pailano, being then provided with a scythe, by means of violence and

intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita Ibaez, 15 years of age, against her will. No mention was made of the second circumstance. Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of reason -- and not through force and intimidation, which was the method alleged -- would have violated his right to be informed of the nature and cause of the accusation against him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. This right was, of course, available to the herein accused-appellant. In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified seduction, which had not been alleged in the criminal complaint against him. In the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was supposed to have raped, as the crime he was accused of -- and acquitted -- was not homicide but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held by him in trust with the obligation to return the same under Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information. The Court said such conviction would violate the Bill of Rights. By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges murder by means of stabbing. Second. Although the prosecution was able to prove that Appellant Garcia assisted in concealing x x x the body of the crime, x x x in order to prevent its discovery, he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega, the latters sister, Maritess, being his wife. Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code:
[38] [39]

ART. 20. Accessories who are exempt from criminal liability. -- The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural,

and adopted brothers and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article. On the other hand, the next preceding article provides: ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code. This Court is thus mandated by law to acquit him. Penalty and Damages The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim. Of the expenses alleged to have been incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred in connection with the death of the victim. However, in line with current jurisprudence, Appellant Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the fact of death and appellants responsibility therefor.
[40] [41] [42] [43]

The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant

Ortega. Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is,prision mayor. WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is alsoORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for some other valid cause. SO ORDERED.

Case of People of the R.P. vs. Opero No. L-48796 11JUNE1989 FACTS OF THE CASE: Automatic review of the death sentence imposed on Roberto Opero for the crime of Robbery with homicide. At about 04:00am of April 27, 1978, Salvador Oliver and Demetrio Barcing both security guards assigned to the House International Hotel, in Ongpin street, Binondo, Manila checked room 314 of the said hotel and found Liew Soon Ping dead while bound and gagged. Room 314 was ransacked and the personal belongings were thrown all around. After rushing back from Cebu, Dr. Hong the husband of the victim made an inventory of the things found missing in his residence, valued at 30,221 pesos. The Samar P.C. arrested the suspects in the case, and turned them over to Sgt. Yanguiling in manila. During the autopsy of the body of the victim, it was found out that the cause of death wasasphyxiation by suffocation. ** When a homicide results from a robbery, all those who took part in the robbery are all guilty of Robbery with homicide, unless proof is presentedthat the accused tried to prevent the killing. ISSUES OF THE CASE: Is Roberto Opero and others liable for the death of the victim, when the intent was for robbery only? appellant advanced the theory that the intent was to rob the victim and not to kill her, if the intent was to kill, then he could have easily done so, with the knife that he had. There is no basis in law or in jurisprudence for the appellant's assertion. It was repeatedly held that when direct and intimate connection exists between robbery and the killing, regardless of the two which precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide. Even if the intent was not for the victim to be killed, what is important and decisive is that death results by reason or on occasion of the robbery needs to consider as well that there are two aggravating circumstances of superior strength and dwelling and that there is ONLY one mitigating circumstance of not having intended to kill the victim. HELD: JUDGEMENT OF THE LOWER COURT WAS AFFIRMED APPELANT OPERO IS GUILTY BEYOND REASONABLE DOUBT OF ROBBERY WITH HOMICIDE.

G.R. Nos. L-28324-5 May 19, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL MARCO, SIMEON MARCO and DULCISIMO BELTRAN, defendants. RAFAEL MARCO, defendant-appellant. Jose P. Bengzon (Counsel de Oficio) for appellant. Solicitor General Felix V. Makasiar, Assistant Solicitor General Felisicimo R. Rosete and Solicitor Teodulo R. Dino for appellee.

BARREDO, J.: Appeal by accused Rafael Marco from the judgment of the Court of First Instance of Zamboanga del Sur in Criminal Case No. 2757, entitled People of the Philippines vs. Rafael Marco, Dulcisimo Beltran and Simeon Marco, the dispositive part of which reads thus: WHEREFORE, the Court renders judgment as follows: (1) In Criminal Case No, 2757, the Court finds Rafael Marco, Dulcisimo Beltran, and Simeon Marco, guilty beyond reasonable doubt of the crime of Murder, qualified by abuse of superior strength' and hereby sentences Rafael Marco, who has neither aggravating circumstance against him or any mitigating circumstance in his favor, to RECLUSION PERPETUA. Simeon Marco and Dulcisimo Beltran, who surrendered voluntarily, are hereby sentenced EACH to an indeterminate penalty consisting of TEN (10) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of reclusion temporal as maximum. The Court further sentences the three defendants to pay, jointly and severally, to the heirs of Bienvenido Sabelbero, the amount of P6,000.00, to suffer the accessory penalties of the law, and to pay the costs. (Page 69, Record.) Actually, there were two cases filed against appellant in connection with two successive phases of a single occurrence. The two cases were consolidated and tried together. In Criminal Case No. 2757, he was charged together with his son Simeon and one Dulcisimo Beltran with the alleged murder of one Bienvenido Sabelbero. 1 In Criminal Case 2758, he was charged together also with his son Simeon with frustrated murder allegedly committed against Constancio Sabelbero, a brother Bienvenido. In this second case, herein appellant was found guilty only a slight physical injuries and sentenced to twelve (12) days of arresto menor. He did not appeal. Simeon was acquitted. The incident in question took place on November 5, 1964 at about 2:30 o'clock in the afternoon within the vicinity of the market place of Barrio Subang, Pagadian, Zamboanga del Sur. There was a fiesta being celebrated, but it was raining. The details, according to the the are as follows: Constancio Sabelbero was approached by Simeon Marco who asked him if he was the one who boxed the latter's brother the previous year. Constancio denied. Then Simeon asked if he had cigarettes and when he said he had none, Simeon said, "I have cigarettes; here is my cigarette", as he pulled out a one-foot long hunting knife. Frightened, Constancio ran away and Simeon chased him. As Constancio was passing by the place were appellant Rafael Marco, the father of Simeon, was standing, Rafael struck Constancio with a round cane, hitting him on the left ear and left shoulder. This was the basis of the information in Criminal Case No. 2758, where appellant was convicted of slight physical injuries and his son, Simeon, was acquitted. Vicente, the father of Constancio, happened to be standing in the crowd and heard shout of "Fight! Fight!" He saw Simeon about to stab Constancio, so he grabbed the hand of Simeon that was holding the knife. At this juncture, Rafael Marco approached Vicente armed with a cane and a hunting knife. Sensing danger, Vicente shouted to his son Constancio, who had been hit by Rafael, and his other son Bienvenido, who appeared on the scene, to run away because the Marcos were armed. Constancio was able to run away. So also Vicente. Bienvenido who was being chased by Rafael was stabbed by the latter, and when the parried the blow, he was wounded on the left hand. After being stabbed by Rafael, Bienvenido still tried to run father, but unluckily, his foot got caught in a vine on the ground and he fell, whereupon, out of nowhere, Dulcisimo Beltran, who was accused with herein appellant and who did not appeal his conviction, arrived and stabbed Bienvenido near his anus while he was in the position described in the record thus "(Witness demonstrating with his two hands touching the floor and his both feet (sic) in a forward position)". (p. 24, t.s.n.) Beltran was followed by Simeon, 2 who stabbed Bienvenido on the left breast and the upper part of the left arm. Afterwards, Rafael, Simeon and Beltran ran away. "Bienvenido Sabelbero stood up slowly and walked zigzagly towards the store of Pinda and when he arrived in front of the store, he fell to the ground." (p.27, t.s.n.)

When Vicente came to know that his son Bienvenido was wounded, he went to the store of Pinda and found him lying there. Vicente asked him what happened, "Bienvenido Sebelvero answered that he was wounded because he was ganged up by them and immediately after that he died." (p. 28 t.s.n.) For the purposes of this appeal, the foregoing facts We have gathered from the recorded evidence and which coincide substantially with the findings and basis of tea appealed decision are more or less admitted by appellant in the brief of his counsel de oficio to be more credible version of what happened. Nevertheless, counsel has assigned seven alleged errors of the trial court, although the whole thrust of this appeal revolves around the issue of whether not with what has been proven, as narrated above, to be the participation of appellant in the Phase of the incident that led to the death of Bienvenido appellant, Rafael Marco, may be held liable for murder, as found by the court below. It will be recalled that the whole incident was started by Simeon Marco, the son of Rafael, who approached Constancio and after asking him if he was the one who boxed his (Simeon's) brother the year before, brandished a hunting knife, which caused Constancio to run away. While thus running, he passed by appellant who hit him with a round cane. Such was the first phase of the incident subject of this case. According the trial court for such act of Rafael, he was guilty of slight physical injuries, since "it is safe to assume that at that moment there was no intent to kill any one." As to the second phase, according to the evidence, when Simeon was about to pursue Constancio, Vicente grabbed Simeon's hand that was holding the knife. But when Vicente saw that Rafael who was holding a round cane a and a hunting knife, was approaching them, he shouted Constancio and his other son Bienvenido who was around to run away, which they did, as he himself released Simeon and ran away. Rafael followed Bienvenido and stabbed him, but the latter parried the blow with his left hand. And as Bienvenido was trying to to run farther, unluckily, his feet got entangled with some vines and he fell down. Whereupon, Beltran, who came from nowhere, stabbed him near the anus, followed by Simeon who Stabbed him on the left side of the breast. Upon these facts, the People maintain that appellant is as guilty as Simeon and Beltran of the killing of Bienvenido, the theory being that there was obvious conspiracy among there The trouble with the evidence of the prosecution is that it is vague and incomplete. For instance, as to the first phase of the incident, the relative Positions and distances from each other Of the three Protagonist, Simeon, Constancio and Rafael are not revealed. How far Rafael was from Simeon and Constancio when Simeon sort of threatened him with a knife is not clear. Neither is it shown how Rafael happened to be in the path of Constancio when the latter was running away from Simeon, such that Rafael was able to hit him with a cane. In this situation, We do not feel safe in concluding that there was concerted connection between the act of Simeon, on the one hand, and that of Rafael, on the other. Thus, the trial court was correct in acquitting Simeon and holding Rafael guilty only of slight physical injuries instead of frustrated murder as charged. Likewise, in regard to the second phase of the incident, We are at a loss as to what Bienvenido was actually doing and what participation he had at the early stages of the incident, when Vicente shouted him to run away. 3 The pertinent portion of testimony of the lone eye-witness, Dominador Carbajosa, is as follows: Q Then what happened? A Then Vicente Sabelvero held the arm of Simeon Marco and at the same time Vicente Sabelvero shouted to his sons, Constancio and Bienvenido Sabelvero to run away because they were all armed. Q This Vicente Sebolvero you mentioned, how is he related to Constancio and Bienvenido Sabelvero? A Vicente Sabelvero is the father. Q Do you know if Constancio Sabelvero and Bienvenido Sabelvero ran away? A Yes, they ran away. Q This Bienvenido Sabelvero, where was he when this incident happened? A He was only a few meters away, Q What happened to him? A He was overtaken by Rafael Marco and he was stabbed by Rafael Marco.

Q Who stabbed him'? A Rafael Marco. Q Will you tell the Honorable Court what part of the body of Bienvenido Sabelvero did Rafael Marco stab? A Bienvenido Sabelvero was able to parry the thrust which was directed to his left side and he was not wounded and instead in parrying the thrust he was wounded on the hand. Q Do you know what kind of weapon did Rafael Marco use in injuries upon Bienvenido Sabelvero? A I know. Q What kind of weapon? A Flamingco or hunting knife. Q Then after Rafael Marco inflicted injuries upon Bienvenido Sabelvero, what to Bienvenido Sabelvero? A While Bienvenido Sabelvero was trying to run away his feet were wrapped by the having of the cover crop and he fell down and right at that time Beltran approached him and dabbed Bienvenido Sabelvero near his anus ATTY. ORGANO (Addressing the Court) If Your Honor please I would like to make it of that the witness indicated to a portion above his body which is above the anus. (To the witness) Q What was the position of Bienvenido Sebolvero when this Dulcisimo Beltran stabbed him? A In this manner. (Witness demonstrating with his two hands touching the floor and his both feet in a forward position). Q Then when Dulcisimo Beltran stabbed him in that position, what happened next? A While Bienvenido Sebolvero was in that position, he was stabbed by Simeon Marco on the left breast and because he was able to parry the weapon he was wounded on the upper part of his left hand. Q This Dulcisimo Beltran whom you said stabbed Bienvenido Sebolvero, do you know what was his weapon? A I know. Q What was his weapon? A Bayonet. Q This Dulcisimo Beltran, according to you, stabbed Bienvenido Sebolvero near the buttock?....

ATTY. PIELAGO Misleading, Your Honor. COURT This witness testified that this Bienvenido Sebolvero was stabbed near the anus. (To the witness) Q This Dulcisimo Beltran whom you said also stabbed Bienvenido (Beltran), is he here in court? A Yes, sir. Q Please point to him? A That one. (Witness pointing to accused Dulcisimo Beltran). Q This Simeon Marco whom you said stabbed Bienvenido Sebolvero on the left breast and hand is he here in court? A Yes, sir. Q Where is he? A That one. (Witness pointing to accused Simeon Marco). Q Do you know what kind of weapon did Simeon Marco use in stabbing the left arm of Bienvenido Sebolvero? A I know. Q What kind of weapon? A A bayonet. (to the direct examiner) Proceed. ATTY. ORGANO (continuing) Q Presenting to you this weapon . . . . (counsel hands over the same to the witness). . . . Will you tell the Honorable Court whether this is the very weapon used by Simeon Marco in stabbing Bienvenido Sebolvero? A It is shorter than this one. Q Now, during that time that Rafael Marco, Simeon Marco and Dulcisimo Beltran were inflicting injuries on the body of Bienvenido Sebolvero, what did the father of Bienvenido Sebolvero do? Where were they at that time? A Constancio Sebolvero and the father ran away and they have not seen the incident.

Q Do you remember if the father of Bienvenido Sebolvero ever ran afterwards? A No, sir. Q Now, that happened to Bienvenido Sebolvero after Rafael Marco, Dulcisimo Beltran and Simeon Marco stabbed him? A They ran away and after they ran away, Bienvenido Sebolvero stood up slowly and walked zigzagly towards the store of Pinda and when he arrived in front of the store he fell down to the ground. (Pp. 23-27, t.s.n.) The nearest indication of Bienvenido's position vis-a-vis those Of the Marcos and Beltran at the moment that Vicente was holding the hand of Simeon appears only in the cross-examination of Garbajosa, when he said that "Bienvenido Sabelvero, was nearer to the three accused" than either Vicente or Constancio, which makes the whole matter more confusing. As matters stand, Our problem is to determine whether or not the act of Rafael in stabbing Bienvenido is a separate one from the stabbing of said deceased by the two other accused who did not appeal, Simeon Marco and Dulcisimo Beltran. To be sure, the acts of each of the three of them followed one after the other in rather fast succession, as if propelled by a common and concerted design, but this circumstance alone does not prove criminal conspiracy. In order that mere simultaneity or near simultaneity of the acts of several accused may justify the conclusion that they had conspired together, the inference must be ineludible. It would seem that there must have been some bad blood between the Sabelveros and the Marcos but Vicente categorically denied that there was any misunderstanding between them and although Constancio suggested that there was, he was quick in adding that the same had been patched up. This makes commonality of intent on the part of the three accused not necessarily existent. As already stated, Simeon and Beltran did not appeal from the decision of the trial court which credited them with the mitigating circumstance of voluntary and imposed on them the penalty of only Ten (10) Years and One (1) Day of prision mayor, as minimum, to Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporalas maximum. And indeed there can be no doubt as to the homicidal character of their assault on Bienvenido. In the case of herein appellant, while it is true that he somehow started the by trying to stab Bienvenido, and did cause him injury on the left hand, there is no clear evidence connecting his act with those of Beltran and Simeon. As We have noted earlier, Beltran came out of nowhere and it is not shown that Rafael saw him before the latter stabbed Bienvenido near the anus. On the other hand, the most that We can gather from Carbajosa's testimony is that Simeon was being held by Vicente, when Rafael tried to chase Bienvenido. In any event, if Rafael had any intention to really kill Bienvenido, he did not have to await for Simeon and Beltran to do it. Bienvenido had fallen to the ground, and that was the chance to finish with him. But here is precisely where the prosecution's evidence is incomplete. The distance and relative position of Rafael from where Bienvenido fell are not indicated. What appears instead is that Beltran and Simeon were the ones who stabbed him fatally. What Rafael did or where he was after Bienvenido fell and while Beltran and Simeon were assaulting has not been shown. We find the following ratiocination of appellant's counsel de oficio to be well taken: 2. The evidence on record does not show beyond reasonable doubt that appellant acted in conspiracy with the two other accused in the actual killing of the decedent. This Honorable Court has established the rule that conspiracy, although implied or indirect, must, nonetheless, be positively and convincingly proved and established (People vs. Aplegido, 76 Phil. 571). Only recently, this Honorable Tribunal said, through the pen of Mr. Justice Fred Ruiz Castro, that: ... As a facile device by which an accused may be ensnared and kept within the penal fold, conspiracy requires conclusive proof if we are to maintain in full subbed the substance of the time-honored principle of criminal law requiring proof beyond reasonable doubt before conviction ... (People vs. Tividad,, L-21469, June 30, 1967; 20 SCRA 549, 554; emphasis supplied). The Court also laid down the following norm in the said case of People vs. Tividad: ... It is undubitably clear from the record that the accused did not attack the deceased simultaneously. Even if they did, this would not of itself indicate the existence of a conspiracy among them as simultaneity per se is not a badge of conspiracy, absent the requisite concurrence of wills. It is not sufficient that the attack is joint and simultaneous; it is that the assailants are animated by one and the same purpose (U.S. vs. Magcomot, 13 Phil 386, 389; People vs. Caballero , 53 Phil. 584, 595-596). Evidently, in a situation where the as were not simultaneous but successive, greater proof is demanded to establish

concert of crime design. The evidence for the prosecution was that the assaults on the were out by a successively (Id., pp. 554-55; emphasis supplied) As happened in the Tividad case, the facts established by the evidence hem show that appellant did not attack the document simultaneously and in concert with the two other accuse From the testimony of Dominador Carbajosa, it will be seen that: (1) it was the appellant who went after the decedent first.And the situation at that moment was this: Simeon Marco was chasing Constancio Sebelvero while appellant, on the other hand, was approaching Vicente Sebelbero. The latter had just shouted to his two sons to run away when the appellant overtook the document and stabbed at hint Accused Dulcisimo Beltran, it will be noted, was not yet a participant. (2) After the appellant wounded the decedent on the hand, the latter continued running. There is no evidence however, that appellant continued running after him (3) While running, the decadent ripped and fell down. Accused Dulcisimo Beltran just came from nowhere and stabbed the decedent near the anus. It will be noted from the time appellant wounded the document on the hand up to the time Dulcisimo Beltran stabbed him at the back, an appreciable length of time elapse There is no evidence just how far Beltran was from the respondent when the latter felt Neither is there evidence that the decadent was running in the direction of Beltran The evidence is only that Dulcisimo Beltran came upon the document who had fallen to the ground and nabbed him. (4) After Dulcisimo Beltran had stabbed the decedent Simeon Marco, who earlier had been chasing Constancio Sebelbero came also and stabbed the decedent. From Dominador Carbajosa's testimony, it appears that there was no appreciable lapse of time between the stabbing by Dulcisimo Beltran and that by Simeon Marco. (5) There is no showing that appellant joined his two other accused during or after their stabbing of the respondent Carbajosa merely stated that after the stabbing, "they ran away" (session of Sept. 13, 1965; t.s.n., p. 27) From the foregoing, this Honorable Court will that the stabbing of the decedent by the three accused (including appellant) was not simultaneous. Rather, it was successive, with appellant inflicting the first blow. And, Dulcisimo Beltran and Simeon Marco were nowhere around yet. It was only after the decedent fell down that the latter two came and successively stabbed him. The manner in which the incident occurred indicates that there was no pre-conceived plan among the three accused to kill the decedent. It strongly suggests, on the other hand, that Dulcisimo Beltran and Simeon Marco participated suddenly, unexpectedly and without any previous agreement. Another interesting point to observe is that there is absolutely no showing that appellant knew of the criminal intentions of Dulcisimo Beltran or Simeon Marco as to the decedent. There is no proof that appellant chased the decedent in the direction of Simeon Marco or Dulcisimo Beltran. It was not even shown that appellant knew that Dulcisimo Beltran was around at the start. As to Simeon Marco, it will be remembered that when the appellant started after the decedent, Simeon Marco was running after Constancio Sebelbero. Hence, appellant could not have intentionally chased the decedent in the direction of Simeon Marco. Besides, as previously pointed out already, there is no evidence showing that appellant ran after or chased the decedent at all. Dominador Carbajosa said only that appellant overtook the decedent who was just nearby and then stabbed at him (Session of Sept. 13, 1965; t.s.n., p. 23). Likewise, there is no evidence that after the decedent ran again, the appellant continued going after him. Neither is there any showing that after the decedent was able to run away from the appellant with only a slight would on the hand, the latter shouted to Dulcisimo Beltran or Simeon Marco for assistance. As the facts were related by the star prosecution witness. Dulcisimo Beltran and Simeon Marco just came upon the fallen decedent and stabbed him. There is no showing that Dulcisimo Beltran and Simeon Marco fell upon the decedent in response to shout or cries from the appellant. Lastly, there is no proof that while Simeon Marco and Dulcisimo Beltran were stabbing the decedent, appellant gave them any inciting or encouraging words, or that he even joined them. The point appellant wants to established with all the foregoing considerations is that the prosecution utterly failed to established the guilty knowledge and assent of appellant concerning the criminal design of Dulcisimo Beltran and Simeon Marco. And the established rule is that: xxx xxx xxx ... a person may be convicted for the criminal act of another where, between them there has been conspiracy or unity of purpose and intention in the commission of the crime charged. In other words, the accused must be shown to have had guilty participation in the criminal design entertained by the slayer, and this presupposes knowledge on his part of such criminal design. It is not enough that there be a relation between the acts done by the principal and those attributed to the person charged as co-principal or accomplice; it is furthermore, necessary that the latter, with knowledge of the former's criminal intent, should cooperate with moral or material aid in the consummation of the crime ... (People vs. Ibaez, 77 Phil. 664, 665-666; emphasis supplied). The trial court, therefore, seriously erred in holding appellant responsible together with Dulcisimo Beltran and Simeon Marco for the death of the decedent on the basis of incorrect conspiracy.

3. Appellant cannot be held liable for the death of decedent under death of the Revised Penal Code. Article 4, paragraph 1, of the Revised Penal Code provides that, "criminal liability shall be incurred by any person committing a felony (delito)although the wrongful act done be different from that which he intended." Under this provision, one who commits an intentional felony is responsible for all the consequences which may naturally and logically result thereto whether form or intended or not. (I Reyes, The Revised Penal Code, 6th ed., p. 62). It cannot be denied that the stabbing of the decedent by the appellant which caused a slight wound on the former's hand was intentionally made; hence, felony. However, the ensuing death of the decedent was not the direct, natural and logical consequence of the wound inflicted by the appellant.There was an active intervening cause, which was no other than the sudden and appearance and participation of Simeon Marco and Beltran. And there is authority that if the consequences produced have resulted from a distinct act or fact absolutely from the criminal case the offender is not responsible for such consequence. (People vs. Rellin, 77 Phil. 1038; I Reyes, 75). (Pp. 18-22, Appellant's brief pp. 53-57, Record.) All circumstances considered, We are not convinced beyond reasonable doubt that appellant was in any conspiracy with Simeon and Beltran to kill Bienvenido or any of the Sabelberos. In the absence of clear and convincing the We can only speculate as to why appellant did not join his son, Simeon, and Beltran in attacking Bienvenido after he had fallen to the ground. Either the two were too fast for him and were thus able to act ahead of him or that he voluntarily desisted from further pursuing the deceased after hitting him on the left hand. In line with the presumption of innocence which We are constitutionally bound to accorded. We are constrained to hold that he had no homicidal intent. He can be held criminally responsible only for the wound on the back of the left hand of the deceased which is described as a "stab wound, 2-1/2 inches wide at the back of the left hand" by witness Felix S. Toledo, the Sanitary Inspector, who examined the corpse. And there being no evidence as to the period of incapacity or medical attendance consequence to said wound, appellant is guilty only of slight physical injuries. (Aquino, The Revised Penal Code, Vol. II, p. 1258, 1961 ed.) IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby modified, and in its stead appellant is found guilty only of slight physical injuries and hereby sentenced to suffer the penalty of twenty (20) days of arresto menor, and to pay the costs. Fernando (Chairman), Aquino, Concepcion, Jr., Santos, JJ., concur. Antonio, J., took no part.

People vs. Domasian G.R.No. 95322 March 1, 1993

Facts :
The accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital of the victim's parents. The victim was 8-year old Enrico Agra, who was detained by Domasian and brought to a far place. While they were boarding a tricycle, Domasian was firmly holding Enrico and the boy continued crying. This aroused the suspicion of the driver, and brought about the recovery of the boy even before the ransom notes reached the boy's parents. Upon perusal of the note, Agra's father thought the handwriting was familiar so he compared it with some records in the hospital. It turned out that it was written by Dr. Tan. Both accused were convicted of conspiracy in kidnapping Agra. Constitutional Issues : 1. Domasian contends that he was arrested without warrant, tortured and held incommunicado to extort a confession. 2. Dr. Tan raised that the hospital documents which was compared to the ransom notes were seized without a search warrant. Ruling : 1. Domasian never made a confession. 2. The Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement agencies and limitation on official action.

CASE DIGEST ON INTOD V. CA [215 SCRA 52 (1992)]

November 10, 2010 Facts: Intod and company were tasked to kill Palang-pangan due to land dispute. They fired at her room. However, she was in another city then thus they hit no one. Issue: WON he is liable for attempted murder? Held: No. Only impossible crime. In the Philippines, Article 4(2) provides and punishes an impossible crimean act which, were it not aimed at something quite impossible or carried out with means which prove inadequate would constitute a felony against person or family. Its purpose is to punish criminal tendencies. There must either be (1) legal responsibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime. Legal impossibility occurs where the intended acts even if completed, would not amount to a crime. Thus: Legal impossibility would apply to those circumstances where: (1) The motive, desire and expectation is to perform an act in violation of the law; (2) There is no intention to perform the physical act; (3) There is a performance of the intended physical act; and (4) The consequence resulting from the intended act does not amount to a crime. Factual impossibility occurs when extraneous circumstances unknown to actor or beyond control prevent consummation of intended crime. Factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality, the crime was impossible of commission. Legal impossibility on the other hand is a defense which can be invoked to avoid criminal liability for an attempt. The factual situation in the case at bar presents a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.