PEOPLE OF THE PHILIPPINES,

Plaintiff-
Appellee,





- versus -




FRANCISCO JUAN LARRAAGA alias "PACO"; JOSMAN
AZNAR; ROWEN ADLAWAN alias "WESLEY"; ALBERTO CAO
alias "ALLAN PAHAK"; ARIEL BALANSAG, DAVIDSON
VALIENTE RUSIA alias "TISOY TAGALOG"; JAMES ANTHONY
UY alias "WANGWANG"; and JAMES ANDREW UY alias "MM",
Accused-Appellants.
G.R. Nos. 138874-75


Present:

DAVIDE, JR., C.J.
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
NAZARIO, and
GARCIA, JJ.


Promulgated:

July 21, 2005

x---------------------------------------------------------------------------------------------
-------------------------------------------------x

R E S O L U T I O N

PER CURIAM:



At bar are four (4) motions for reconsideration separately filed by
appellants (1) Francisco Juan Larraaga, (2) Josman Aznar, (3) Rowen Adlawan,
Alberto Cao and Ariel Balansag, and (4) James Anthony Uy and James Andrew Uy,
assailing our Decision dated February 3, 2004 convicting them of the crimes of (a)
special complex crime of kidnapping and serious illegal detention and (b) simple
kidnapping and serious illegal detention, the dispositive portion of which reads:

WHEREFORE, the Decision of the Regional Trial Court,
Branch 7, Cebu City in Criminal Cases Nos. CBU-45303 and
45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants
FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN
AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO
alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES
ANDREW UY alias MM, are found guilty beyond reasonable
doubt of the special complex crime of kidnapping and serious
illegal detention with homicide and rape and are sentenced to
suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants
FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN
AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO
alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES
ANDREW UY alias MM, are found guilty beyond reasonable
doubt of the crime of simple kidnapping and serious illegal
detention and are sentenced to suffer the penalty of RECLUSION
PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES
ANTHONY UY, who was a minor at the time the crime was
committed, is likewise found guilty beyond reasonable doubt of
the special complex crime of kidnapping and serious illegal
detention with homicide and rape and is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA; in Criminal Case
No. CBU-45304, he is declared guilty of simple kidnapping and
serious illegal detention and is sentenced to suffer the penalty of
TWELVE (12) years of prision mayor in its maximum period, as
MINIMUM, to seventeen (17) years of reclusion temporal in its
medium period, as MAXIMUM;

(4) Appellants are ordered to pay jointly and severally
the heirs of Marijoy and Jacqueline, in each case, the
amounts of (a) P100,000.00 as civil indemnity, (b)
P25,000.00 as temperate damages, (c) P150,000.00 as moral
damages, and (d) P100,000.00 as exemplary
damages.

Three (3) Justices of the Court maintain their position
that RA 7659 is unconstitutional insofar as it prescribes the death
penalty; nevertheless, they submit to the ruling of the majority
that the law is constitutional and the death penalty can be lawfully
imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code,
as amended by Section 25 of RA No. 7659, upon the finality of
this Decision, let the records of this case be forthwith forwarded
to the Office of the President for the possible exercise of Her
Excellencys pardoning power.

SO ORDERED.

Appellants anchor their motions on the following grounds:

A. LARRAAGA


I

THE COURT A QUO ERRED IN BARRING
LARRAAGA AND THE NATIONAL BUREAU OF
INVESTIGATION (NBI) REGIONAL DIRECTOR
FLORENCIO VILLARIN FROM TESTIFYING;

II

THE POLICE PLANTED EVIDENCE ON
APPELLANTS;

III

LARRAAGA SUFFICIENTLY PROVED HIS
ALIBI;

IV

THE TRIAL COURT PREVENTED THE
INTRODUCTION OF KEY DEFENSE EVIDENCE;

V

THE CORPSE FOUND IN THE RAVINE WAS NOT
THAT OF MARIJOY; AND




VI

PROSECUTION WITNESS RUSIA WAS A
COACHED WITNESS.[1]


B. AZNAR


I

THE HONORABLE COURT ERRED IN FINDING
THAT THE TRIAL COURT DID NOT VIOLATE
THE RIGHTS OF THE ACCUSED TO DUE
PROCESS OF LAW.

II

THE HONORABLE COURT ERRED
IN (A) DISCHARGING DAVID
RUSSIA AS STATE WITNESS; AND (B)
CONVICTING THE APPELLANTS MAINLY ON
THE BASIS OF THE TESTIMONY OF RUSIA.

III

THE HONORABLE COURT ERRED IN REJECTING
THE DEFENSE OF APPELLANT AZNAR.

IV

THE HONORABLE COURT ERRED IN IMPOSING
THE DEATH PENALTY ON THE APPELLANTS.[2]



C. ADLAWAN, BALANSAG, CAO


I

PROSECUTION WITNESS RUSIA IS NOT
QUALIFIED TO BE A STATE WITNESS UNDER
PARAGRAPHS (D) AND (E), SECTION 17 OF
THE REVISED RULES OF CRIMINAL
PROCEDURE.



II

RUSIAS TESTIMONY AND THAT OF THE OTHER
PROSECUTION WITNESSES WERE
INCREDIBLE, INCONSISTENT, AND UNWORTHY
OF BELIEF.

III

BIAS AND PREJUDICE AGAINST THE DEFENSE
WERE GLARINGLY DISPLAYED BY THE COURT
A QUO WHICH GREATLY AFFECTED THE
OUTCOME OF THE CASE.

IV

THE GUILT OF THE ACCUSED-APPELLANTS FOR
THE CRIME CHARGED HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT.[3]


D. JAMES ANDREW AND JAMES
ANTHONY UY


I

ACCUSED JAMES ANDREW S. UY WAS, LIKE
HIS YOUNGER BROTHER JAMES ANTHONY S.
UY, A MINOR AT THE TIME THE OFFENSES AT
BAR ALLEGEDLY HAPPENED LAST JULY 16,
1997;

II

THE IDENTITY OF THE DEAD BODY OF THE
WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU
LAST JULY 18, 1997 WAS NEVER
CONCLUSIVELY ESTABLISHED THUS THE NEED
FOR ITS EXHUMATION FOR DNA TESTING;[4]


In his supplemental motion for reconsideration dated March 25,
2004, Larraaga submitted a separate study of Dr. Racquel Del Rosario-Fortun,
Forensic Pathologist, to show that the examination conducted by the prosecution
expert witnesses on the body found in Tan-awan, Carcar is inadequate.

In a similar supplemental motion for reconsideration[5], Aznar submitted to
this Court the Affidavit dated February 27, 2004 of Atty. Florencio Villarin,
Regional Director of the National Bureau of Investigation, Central Visayas, to show
that: (1) the police investigation of this case was flawed; (2) he (Aznar) was
arrested in 1997 not because of his involvement in this case but because he had in
his possession a pack of shabu and firearms; and (3) David Rusia is not a credible
witness.

On July 15, 2004, the Solicitor General filed a consolidated comment[6]
praying that the four (4) motions for reconsideration be denied with finality, there
being no new argument raised. He responded to appellants assignments of errors
by exhaustively quoting portions of our challenged Decision.

In his consolidated comment[7] to Aznars supplemental motion for
reconsideration, the Solicitor General enumerated the grounds why Atty. Villarins
Affidavit should not be given consideration. On February 15, 2005, Aznar filed a
reply alleging that the Solicitor General read out of context certain portions of the
Affidavit. He argued that the

Affidavit only exposes the flawed investigation of the Chiong case and that, at the
time of his arrest, there was no evidence against him. On March 4, 2005, the
Solicitor General filed a rejoinder stating that Aznars reply actually supports the
undersigned counsels (Solicitor Generals) position that Atty. Villarins Affidavit is
utterly inadequate to prove his innocence or at least even acquit them on reasonable
doubt, thus, it would be useless to call for new trial on the basis of such
Affidavit. On March 29, 2005, Aznar filed a sur-rejoinder insisting that the
Affidavit should be given due consideration.

Except for the motion filed by appellants Uy brothers with respect to James
Andrews alleged minority, we find all the motions bereft of merit.

At the inception, let it be emphasized that the filing of a motion for
reconsideration does not impose on us the obligation to discuss and rule again on the
grounds relied upon by the movant which are mere reiteration of the issues
previously raised and thoroughly determined and evaluated in our Decision being
questioned. In Ortigas and Company Limited Partnership vs. Velasco,[8] we ruled
that, "this would be a useless formality of ritual invariably involving merely a
reiteration of the reasons already set forth in the judgment or final order for
rejecting the arguments advanced by the movant."

The foregoing principle applies squarely to the motions filed by appellants
Larraaga, Aznar, Adlawan, Cao and Balansag, it being apparent that the points
raised therein are not neoteric matters demanding new judicial determination. They
are mere rehash of the arguments set forth in their respective briefs which we
already considered, weighed and resolved before we rendered the Decision sought to
be reconsidered.

However, in view of the severity of the penalties for the crimes charged, we
deem it necessary to stress once more our basis in convicting appellants.

The following is a prcis of the issues submitted by appellants in their
motions:

This Court erred


first, in according credence to Rusias testimony;

second, in rejecting appellants alibi;

third, in holding that the trial court did not violate their right to due
process when it excluded the testimony of other defense witnesses; and

fourth, in holding that the body found in Tan-awan, Carcar was not that of
Marijoy.

In deciding a criminal case, the policy of the courts is always to look at the
case in its entirety. The totality of the evidence presented by both the prosecution
and the defense are weighed, thus, averting general conclusions from isolated pieces
of evidence. This means that an appeal of a criminal case opens its entire records
for review.[9]

I


Appellants vigorously contend that we should not have sustained Rusias
testimony hook, line and sinker, owing to his tainted record and
reputation. However, it must be stressed that Rusias testimony was not
viewed in isolation. In giving credence to Rusias testimony, the trial court took
into consideration the physical evidence and the corroborative testimonies of
other witnesses. Thus, we find no reason why we should not uphold the trial
courts findings.

We reiterate our pronouncement in our Decision that what makes Rusias
testimony worthy of belief is its striking compatibility with the physical
evidence. Physical evidence is one of the highest degrees of proof. It speaks more
eloquently than all witnesses put together.[10] The presence of Marijoys
ravished body in a deep ravine at Tan-awan, Carcar with tape on her mouth
and handcuffs on her wrists certainly bolstered Rusias testimony on what
actually took place from Ayala Center to Tan-awan. Indeed, the details he
supplied to the trial court are of such nature and quality that only a witness who
actually saw the commission of the crimes could furnish. Reinforcing his testimony is
its corroboration by several other witnesses who saw incidents of what he
narrated. Rolando Dacillo and Mario Minoza witnessed Jacquelines two failed
attempts to escape from appellants near Ayala Center. Benjamin Molina and
Miguel Vergara recognized Rowen as the person who inquired from them where he
could find a vehicle for hire on the evening of July 16, 1997. Alfredo Duarte saw
Rowen when he bought barbeque and Tanduay at Nenes Store while the white van,
driven by Cao, was waiting on the side of the road and he heard voices of
quarreling male and female emanating from the van. And lastly, Manuel
Camingao and Rosendo Rio testified on the presence of Larraaga and Josman at
Tan-awan, Carcar at dawn of July 17, 1997. All these bits and pieces of story form
part of Rusias narration. Now, with such strong anchorage on the physical evidence
and the testimonies of disinterested witnesses, why should we not accord credence
to Rusias testimony? Even assuming that his testimony standing alone might
indeed be unworthy of belief in view of his character, it is not so when considered
with the other evidence presented by the prosecution.





II


Appellants likewise claimed that we should have not sustained the trial
courts rejection of their alibi. Settled is the rule that the defense of alibi is
inherently weak and crumbles in the light of positive declarations of truthful
witnesses who testified on affirmative matters.[11] Being evidence that is negative
in nature and self-serving, it cannot attain more credibility than the testimonies of
prosecution witnesses who testify on clear and positive evidence.[12] On top of its
inherent weakness, alibi becomes less plausible as a defense when it is corroborated
only by relatives or close friends of the accused.[13]

This case presents to us a balance scale whereby perched on one end is
appellants alibi supported by witnesses who were either their relatives, friends or
classmates, while on the other end is the positive identification of the herein
appellants by the prosecution witnesses who were not, in any way, related to the
victims. With the above jurisprudence as guide, we are certain that the balance
must tilt in favor of the latter.

Besides, a thorough examination of the evidence for the prosecution
shows that the appellants failed to meet the requirements of alibi, i.e., the
requirements of time and place.[14] They failed to establish by clear and
convincing evidence that it was physically impossible for them to be at the Ayala
Center, Cebu City when the Chiong sisters were abducted. What is clear from the
evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew
were all within the vicinity of Cebu City on July 16, 1997.

Not even Larraaga who claimed to be in Quezon City satisfied the required
proof of physical impossibility. During the hearing, it was shown that it takes only
one (1) hour to travel by plane from Manila to Cebu and that there are four (4)
airline companies plying the route. One of the defense witnesses admitted that
there are several flights from Manila to Cebu each morning, afternoon and
evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was
proved to be not only a possibility but a reality. Four (4) witnesses identified
Larraaga as one of the two men talking to Marijoy and Jacqueline on the night of
July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20
in the evening, she saw Larraaga approach Marijoy and Jacqueline at the
West Entry of Ayala Center. The incident reminded her of Jacquelines prior
story that he was Marijoys admirer. Shiela confirmed that she knows Larraaga
since she had seen him on five (5) occasions. Analie Konahap also testified that
on the same evening of July 16, 1997, at about 8:00 oclock, she saw
Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala
Center. She recognized the two (2) men as Larraaga and Josman, having seen
them several times at Glicos, a game zone, located across her office at the third level
of Ayala Center. Williard Redobles, the security guard then assigned at Ayala
Center, corroborated the foregoing testimonies of Shiela and Analie. In addition,
Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga
at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning
against the hood of a white van.[15] And over and above all, Rusia categorically
identified Larraaga as one of the participes criminis.

Taking the individual testimonies of the above witnesses in relation with
that of Rusia, we are convinced that Larraaga was indeed in Cebu City at the time
of the commission of the crimes and was one of the principal perpetrators thereof.

At this juncture, it bears mentioning that this case is not the first time that
Larraaga was charged with or complained of pruriently assaulting young female
students in Cebu. Months before the abduction of Marijoy and Jackie, the parents of
a certain Rochelle Virtucio, complained about Larraagas attempt to snatch their
young daughter and drag her in a black, stylish Honda Civic. It happened just near
the gate of Rochelles school, thus, showing his impudence. We quote a portion of
the transcript of stenographic notes dated September 23, 1998, thus:
ATTY. HERMOSISIMA:
Your Honor please, this is a . Inspector Era
handed to this representation a copy of a Letter dated
September 25, 1996, addressed to the Student Affairs Office,
University of San Carlos,P. del Rosario Street, Cebu City, and this
is signed by Leo Abayan and Alexander Virtucio and noted
by Mrs. Aurora Pacho, Principal, University of San Carlos,
Girls High School, and for the record, I will read the
content:

TO WHOM THIS MAY CONCERN:

We the parents and guardians of
Rochelle Virtucio, a first year high school
student of your University of San Carlos-
Girls High School, are writing your good
office about an untoward incident
involving our daughter and another
student of your school.

x x x
x x x

That last Monday at around 5:00
PM, Rochelle and other classmates,
Michelle Amadar and Keizaneth Mondejar,
while on their way to get a ride home near
the school campus, a black Honda Civic
with five young male teenagers including
the driver, suddenly stopped beside them,
and simultaneously one of them, which
was later identified as FRANCISCO JUAN
LARRANAGA, a BSHRM I student of your
school, grabbed Rochelle by her hand to
try to get Rochelle to their vehicle. She
resisted and got away from him. Sensing
some people were watching what they
were doing, they hurriedly sped away.
We are very concerned about
Rochelles safety. Still now, she is
suffering the shock and tension that she is
not supposed to experience in her young
life. It is very hard for us parents to think
about what shed been through.[16]

The presence of such complaint in the record of this case certainly does not
enhance Larraagas chance of securing an acquittal.



III


Larraaga and Aznar bewail our refusal to overturn the trial courts
exclusion of Professor Jerome Bailen and Atty. Florencio Villarin, NBI, Regional
Director, as defense witnesses. Professor Bailen was properly excluded. First, he
is not a finger-print expert but an archaeologist. And second, his report consists
merely of the results of his visual inspection of the exhibits already several months
old. Anent Atty. Villarins failure to testify before the trial court, suffice it to say that
his belated Affidavit, which Aznar submitted via his supplemental motion for
reconsideration dated May 5, 2004, raises nothing to change our findings and
conclusions. What clearly appears in said Affidavit is a man trying to impress people
that he was the one responsible for solving the Chiong case and for that, he deserves
a promotion. The trial court, at the onset, must have seen such immateriality in his
intended testimony. Indeed, we agree with the Solicitor Generals observation that
such Affidavit is neither helpful nor encouraging to Aznars cause. We quote his
keen reflection on the matter:


x x x x x x

Third. Atty. Villarins affidavit, in paragraphs 19
and 20 thereof, acknowledged that the body found in
the Carcar ravine was that of Marijoy. This assertion
immediately conflicts with accused-appellant Aznars
claim in his Motion for Reconsideration that the corpse
was not Marijoys. Surely, something is amiss in
accused-appellant Aznars recollection of his defense.

Fourth. Atty. Villarin confirmed in paragraph 24 of
his affidavit that accused-appellant Francisco Larranaga
was a suspect in the subject crimes. Evidently, this
statement completely supports this Honorable Courts
findings in its Decision dated February 3, 2004.

Fifth. In paragraph 30 of Atty. Villarins affidavit,
he stated that: The arrest of Juzman Aznar was the
major breakthrough in the investigation of the
case because witnesses came out and identified
Juzman Aznar as one of those allegedly seen
talking to the victims on the night they
disappeared. Hence, accused-appellant Aznar was in
the beginning already a first-grade suspect in the Chiong
sisters celebrated abduction and killing.

Sixth. Atty. Villarin admitted in paragraph 36 of his
affidavit that: x x x I did not take this against
[Supt. Labra] for preempting our next move to get
Juzman Aznar as we were already placing him
under surveillance because I knew [Supt. Labra]
did it in his honest desire to help solve the crime
x x x. Clearly, this statement is not an indictment of
the investigation that the police undertook in the subject
crimes.

Seventh. Paragraphs 37 to 40 are nothing but
personal tirades against alleged influence peddling by
Mrs. Thelma Chiong, mother of the victims, and the
purportedly undue promotions of the lawyers and police
officers who unearthed the evidence against accused-
appellants and successfully prosecuted the latter. In
executing the affidavit, it appears that Atty.
Villarin would want to impress that he, rather than
those promoted, deserved the promotion.

Eighth. Atty. Villarins inability to testify in the
criminal cases was not due solely to the prosecutions
action. Whether he ought to testify or not was an
argument openly discussed in court. Hence, for the
resulting inability, Atty. Villarin has no one to blame but
the defense lawyers who did everything to make a
mockery of the criminal proceedings.

And lastly, there is nothing in Atty. Villarins
affidavit of the quality of a smoking gun that would
acquit accused-appellants of the crimes they have been
convicted. For he did not finish the police investigation
of the subject crimes; this is the long and short of his
miniscule role in the instant case. Indeed, judging by
the substance of his affidavit, he would not be
testifying in case a new trial is held on anything
that has not been said and rejected heretofore,
except his own unsubstantiated opinions (i.e. not
facts as required by evidentiary rules), his self-
congratulatory remarks, and his unmitigated
frustration over failing to get a promotion when
almost everyone else did.[17]

Neither can we entertain at this late stage Dr. Fortuns separate study to
show that the examination conducted on the body found in Tan-awan, Carcar is
inadequate. Such study cannot be classified as newly-discovered evidence
warranting belated reception. Obviously, Larraaga could have produced it during
trial had he wished to.

IV

Knowing that the prosecutions theory highly rests on the truth of
Rusia testimony, appellants endeavor to destroy it by claiming that the body
found at the foot of a deep ravine in Tan-awan, Carcar was not that of Marijoy. We
must reiterate the reasons why we cannot give our assent to such argument. First,
Inspector Edgardo Lenizo,[18] a fingerprint expert, testified that the fingerprints of
the corpse match those of Marijoy.[19] Second, the packaging tape and the
handcuff found on the dead body were the same items placed on Marijoy and
Jacqueline while they were being detained.[20] Third, the body had the same
clothes worn by Marijoy on the day she was abducted.[21] And fourth, the
members of the Chiong family personally identified the corpse to be that of
Marijoy[22] which they eventually buried. They erected commemorative markers at
the ravine, cemetery and every place which mattered to Marijoy. As a matter of
fact, at this very moment, appellants still fail to bring to the attention of this Court
any person laying a claim on the said body. Surely, if the body was not that of
Marijoy, other families who had lost someone of similar age and gender as Marijoy
would have surfaced and claimed the body. The above circumstances only bolster
Rusias narration that Rowen and Ariel pushed Marijoy into the deep ravine, following
Josmans instruction "to get rid" of her.

On the issue raised by appellants Uy brothers that James Andrew was only
seventeen (17) years and two hundred sixty two (262) days old at the time the
crimes were committed, the records bear that on March 1, 1999, James Andrews
birth certificate was submitted to the trial court as part of the Formal Offer of
Additional Evidence,[23] with the statement that he was eighteen (18) years
old. On March 18, 1999, appellants filed a Manifestation of Erratum correcting in
part the Formal Offer of Additional Evidence by alleging that James Andrew was only
seventeen (17) years old.[24]

Now, James Andrew begs leave and prays that this Court admits at this
stage of the proceedings his (1) Certificate of Live Birth issued by the National
Statistics Office, and (2) Baptismal Certificate. He prays that his penalty be
reduced, as in the case of his brother James Anthony.

The entry of James Andrews birth in the Birth Certificate is not legible, thus
it is extremely difficult for us to determine the veracity of his claim. However,
considering that minority is a significant factor in the imposition of penalty, we find it
proper to require the Solicitor General (a) to secure from the Local Civil Registrar
of Cotobato City, as well as the National Statistics Office, a clear and legible copy of
James Andrews Birth Certificate, and thereafter, (b) to file an extensive comment
on the motion for reconsideration filed by James Andrew and James Anthony Uy,
solely on James Andrews claim of minority.

Insofar as James Anthony is concerned, we maintain his conviction and
penalty, there being nothing in his motion which warrants a reconsideration of our
Decision.

In resolving the instant motions, we have embarked on this painstaking
task of evaluating every piece and specie of evidence presented before the trial court
in response to appellants plea for the reversal of their conviction. But, even the
element of reasonable doubt so seriously sought by appellants is an ignis fatuus
which has eluded any intelligent ratiocination of their submissions. Verily, our
conscience can rest easy on our affirmance of the verdict of the trial court, in light of
appellants clear culpability which demands retribution.

WHEREFORE, the motions for reconsideration filed by appellants Francisco Juan
Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag are
hereby DENIED. The Solicitor General is DIRECTED (a) to secure from the Local
Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and
legible copy of James Andrews Birth Certificate, and (b) within ten (10) days
therefrom, to file an extensive comment on the motion for reconsideration filed by
James Andrew and James Anthony Uy, solely on James Andrews claim of
minority. The motion is likewise DENIED insofar as James Anthony Uy is
concerned.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IGNACIO CUPINO,[1]
VINCENT DEJORAS and RAMON GALOS a.k.a. Jun, accused.
IGNACIO CUPINO and VINCENT DEJORAS, accused-appellants.
D E C I S I O N
PANGANIBAN, J.:
Conspiracy must be established by proof beyond reasonable doubt. In the present
appeal, the prosecution eyewitness testified that one of the appellants had joined the
other accused in approaching the victim, but subsequently tried to prevent them
from stabbing this same victim. Such dubious participation is insufficient to prove
beyond reasonable doubt that the said appellant conspired with the others in
committing the offense. Accordingly, the constitutional presumption of innocence
must be upheld. He must be acquitted. Misoedp
The Case
Vincent Dejoras and Ignacio Cupino[2] appeal the March 6, 1995 Decision[3] of the
Regional Trial Court (RTC) of Cagayan de Oro City (Branch 25). Dejoras and Cupino,
together with one Ramon Galos,[4] were convicted of robbery with murder and
sentenced to reclusion perpetua. Edp mis
On October 19, 1989, an Information[5] was filed by Fourth Assistant City Fiscal
Petronio P. Pilien, charging the three as follows:
"That on or about August 16, 1989, at more or less 9:45 in the
evening xxx, at Patag Crossing, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and mutually
helping one another, with intent to kill[;] armed with a knife
[with] which one of them was then conveniently provided[;] with
treachery, evident premeditation, superior strength, did then and
ther[e] wilfully, unlawfully and feloniously [through] accused
(Ramon Galos alias Jun), x x x [stab] one Gromyco[6]
Valliente[7] [hitting him] at the left/right portion of his arm and
abdomen, thus inflicting mortal wounds upon [the] offended
partys person which directly caused his instantaneous death. LEX
"Contrary to Article 248 in relation to Article 14 of the Revised
Penal Code."
Arraigned on January 22, 1990,[8] both appellants entered a plea of not guilty. Trial
ensued. Thereafter, the lower court rendered its assailed Decision,[9] the dispositive
part of which we quote thus:
"WHEREFORE, premises considered, this Court finds all the three
accused in conspiracy with each other, GUILTY beyon[d]
reasonable doubt of the crime of MURDER, qualified by treachery
as principal by direct participation as punished under the Revised
Penal Code. This Court hereby sentences the two accused, Vincent
Dejoras and Ignacio Copino, the third accused being at large, to
individually suffer the penalty of RECLUSION PERPETUA without
the attendance of any mitigating circumstance and to jointly and
severally pay indemnity to the heirs of the victim the sum of
P50,000.00 for the death of Gromyko Valliente, P40,000.00 as
actual damages and burial expenses, P20,000.00 as moral
damages, and to pay the costs."[10]
In view of the penalty imposed, the appeal was filed directly with this Court.[11]
The Facts
Version of the Prosecution
In its Brief,[12] the Office of the Solicitor General presents the facts in this wise:
"At around 9:45 in the evening of August 16, 1989, during the
celebration of the town fiesta of Patag, Cagayan de Oro City,
accused Ramon Galos and Gromyko Valiente (herein victim) were
having a heated argument in front of Dod's Store, which was
owned by a certain Piloton, located at the crossing of Patag
(Testimony of Silverio Bahian, TSN, September 6, 1990, pp. 4-5;
Testimony of Ferdinand Bangayan, TSN, July 2, 1990, pp. 5-6).
Jj sc
"Then, appellants Ignacio Cupino and Vincent Dejoras arrived,
and a fistfight erupted. Cupino, Dejoras and Galos ganged up on
Valiente who also fought back (Testimony of Silverio Bahian at pp.
6-7, supra; Testimony of Ferdinand Bangayan at p. 7, supra.).
Beaten and outnumbered, Valiente ran away towards the direction
of a small pathway leading to the store of a certain Major Grio,
which was beside Dod's Store. The trio chased x x x him
(Testimony of Ferdinand Bangayan at p. 10, id.). Galos caught up
with Valiente and then stabbed him twice in the stomach with a
small bolo (Testimony of Silverio Bahian at pp. 9-10, supra.).
"With the bolo still embedded on his stomach, Valiente crawled
along the pathway. Cupino also caught up with Valiente (pp. 11-
12, id.). Then Cupino pulled the bolo from the victim's body and
was about to stab the victim again when Dejoras tried to grab
Cupino's hands, but instead Dejoras got hold of the blade of the
bolo and was injured in the process. Dejoras left, coming out of
the pathway with his wounded right hand (pp. 12-13, id.).
"Meanwhile, Cupino proceeded to stab the victim twice in the
stomach. Afterward, Cupino and Galos fled from the scene of the
crime (p. 14, id.). Valiente, who was seriously wounded and
soaked in his own blood, cried for help. He was brought to a
hospital but later died (p. 19, id.; Testimony of Ferdinand
Bangayan at pp. 12-13, supra.).
"The autopsy conducted on the victim's body revealed that he
sustained four (4) stab wounds: one on the left subpostal margin,
another wound on the right subpostal margin, and two (2)
sutured wounds on the left cocital area. The wound that was
inflicted on the pancreas of the victim was considered fatal since it
caused the massive hemorrhage. The cause of death was
attributed to massive intra-abdominal hemorrhage due to multiple
stab wounds (Testimony of Dr. Apolinar Vacalares, TSN, February
13, 1991, pp. 6-7)."[13]
Version of the Defense
For their part, appellants submit the following as the facts of the case:
"On August 16, 1999, Ignacio Copino celebrated the town fiesta of
Patag, Cagayan de Oro City at home with his family and friends,
one of whom was Vincent Dejoras. After eating dinner at around
7:00 p.m., Dejoras, together with his co-workers, headed for
home. Copino decided to accompany the group and at the Patag
crossing, he was able to convince Dejoras to go to the 'perya' and
gamble, as he had P30 with him.
"The pair lost all of the P30 in the 'pula-puti' game and decided to
call it quits. On their way home, they saw Ramon Galos 'alias
Panit' and Grom[yk]o Valiente 'alyas Bobong', two of their
acquaintances, apparently having an altercation.
"They were about two meters from Galos and Valiente when Galos
suddenly said: 'Nasi is here (referring to Copino), you hit him.'
(Transcript of Stenographic Notes, VINCENT DEJORAS, Hearing
April 4, 1991, page 7). Galos then kicked Valiente and the latter
fell down. Valiente was able to get up and run towards an alley at
the back of Dod's store with Galos in close pursuit. Copino and
Dejoras ran after the two with the intention to pacify the fighters.
Galos was able to corner Valiente and once again, the two traded
blows. When Copino and Dejoras were finally able to catch up
with the two, they noticed that Valiente was already bleeding.
Eyewitness Silverio Bahian later recounted that he saw Panit pull
out a bolo and stab Bobong.
"Dejoras, on his part, tried to stop Galos from inflicting more
wounds and he too was wounded in the process. What happened
was that instead of holding Galos' hand, he was able to hold the
blade of the knife, thereby injuring himself. Galos then ran away.
Upon the realization that his right hand was bloodied, and fearing
that more harm would fall upon them, Copino and Dejoras too ran
away.
"Dejoras went to City Hospital to have his wound treated and then
they went home. At midnight of the same day, a policeman went
to his house and brought him to the OKK Police Station where he
was booked into the police blotter. The following day, Copino and
Dejoras learned that Gromyko Valiente had died. Together with
their parents the[y] went to the Tourism Hall to have their
statements taken by the police."[14]
Ruling of the Trial Court
The trial court ruled that (1) appellants were guilty of murder, as the killing was
qualified by treachery; (2) conspiracy was proven by the chain of circumstantial
evidence submitted; and (3) the aggravating circumstance of superior strength was
absorbed by treachery and may no longer be used to increase the penalty to its
maximum period. Sc jj
The Issues
Appellants aver that the court a quo committed the following errors:
"I. In failing to appreciate the testimony of accused-appellants
and in giving full weight and credit to the version of prosecution
witnesses.
II. In holding that there was conspiracy between accused-
appellants.
III. In holding that accused-appellants herein [were] guilty as
charged."[15]
We shall discuss the foregoing issues in the following sequence: (1) credibility of the
prosecution evidence, (2) conspiracy and (3) proper penalty.
The Courts Ruling
This appeal is partly meritorious. We affirm the challenged Decision in regard to
Ignacio Cupino, but reverse it in regard to Vincent Dejoras. Sj cj
First Issue
Credibility of Prosecution Witnesses
Appellants challenge the trial courts assessment of the credibility of the prosecution
witnesses. They argue that there are contradictions patent in their testimonies. We
disagree. As we have repeatedly said, the trial courts assessment of the credibility of
witnesses is generally binding upon us.[16] After a thorough review of the records
before us, we find no reason to disagree with the trial court in finding no material
inconsistency in the prosecution witnesses testimonies.
Neither are we impressed with appellants assertion that the evidence for the
prosecution is weak. The claims of the defense are belied by the clear, credible and
straightforward testimony of Prosecution Eyewitness Silverio Bahian, which we
quote:
"Q At this time, August 16, 1989, at more or less 9:45 p.m., what
particular place in the store of Piloton?
A [In front] of the store. Supreme
x x x x x x x x x
Q What where you doing there?
A I was reading komiks.
x x x x x x x x x
Q While you were there at Piloton store, reading komiks, what
happened if any?
A There was an argument between Bobong Valiente[17] and
Panit.[18]
x x x x x x x x x
Q Now, you said that there was an argument, where did this
altercation [take] place?
A [In front] of me. Court
Q How far away from you? From where you are sitting, point to
any object within the court room to indicate what you [meant by
"in front"] of you?
A Less than a meter. J lexj
Q From where you are sitting, point to any object[.]
A This chair. This table or this chair I am sitting on. [In front] of
me. Just very near me.
Q From what direction was this Bobong coming x x x?
A Going to the checkpoint.
Q What about the other person [with] whom he had an
altercation?
A Going to the crossing
Q What happened after they had an altercation? Lexj uris
A After their altercation, this Nasi[19] and Beni[20] were walking
from the road.
Q Who is this Nasi?
A Nasi Copino.
Q Who is this Beni?
A Dejoras. Juri smis
Q When these two came, Beni and Nasi, where were the two who
were having an argument?
A Mr. Bahian approached the two who were having an altercation.
Q What about the person [with] whom he had an altercation?
Where was he at that time?
A He followed him.
Q So, what happened after Bobong went to Nasi and Beni and the
other person Panit?
A They ganged up [on] Bobong. Jjj uris
Q When you said they ganged up on Bobong, to whom are you
referring x x x?
A Panit, Nasi and Beni.
Q From your place in relation to the place where they ganged up
on Bobong, how far away was that?
A About three meters. lex
x x x x x x x x x
Q Where [was] this place in relation to you whe[n] they ganged
up on Bobong?
A In the middle of the road.
Q And what was the condition of the road on that night of August
16, 1989 at 9:45 p.m.?
A It was bright. Jksm
Q Why do you say that it [was] 'hayag'?
A Because there was a lamppost.
Q Where [was] this lamppost located in relation to you?
A [In front] of me.
Q So, what happened after they ganged up x x x this Nasi, Beni
and Panit, as you said, they ganged up on Bobong? What
happened?
A Since Bobong [could] not keep up a fight with the three,
Bobong ran towards me.
Q What happened after Bobong ran towards you as you said?
A He was being held by Panit.
Q Will you demonstrate how he was h[e]ld by Panit?
A (Witness demonstrating by stretching his left arm and closing
hi[s] fist and twisting it to his left side)
Q So, what happened after that? After he was held up and as you
said twisted?
A Panit stabbed Bobong.
Q Will you please demonstrate again how Panit stabbed Bobong
after he held him and[,] pulling him[,] he thrust the knife
forward?
A (Witness demonstrating his right arm forward)
Q How many times was he stabbed by Panit? This Bobong?
A I think twice.
Q And where was this Bobong hit if he was hit?
A In the stomach. Chief
Q What was used in the stabbing of Bobong by Panit?
A A small bolo.
Q Will you please describe the small bolo or what appears to be a
bolo to you? How long was this?
A About 12 inches including the handle.
Q What about the blade? Was this double bladed or not?
A Single bladed. Esmsc
x x x x x x x x x
ACP CABALLERO, JR.: (resuming)
Q Now, what happened after Bobong was held up by this Panit
and stabbed twice as you said? What happened to Bobong?
A Bobong crawled going to a small alley. Esmmis
Q You mentioned this alley. Now, from where you are situated
then while reading komiks [on] this alley, how far was this from
you?
A Just here.
(Witness stretching his left arm going to his left side)
Q What happened to the small bolo which was used in the
stabbing? Do you know where was it at the time Bobong crawled?
A The small bolo was still embedded on the left portion just below
the breast, solar plexus.
Q So, what happened after Bobong crawled[;] who was going to
the area which you testified was just near you?
A Nasi caught up with him.
Q You mentioned, of course, x x x Nasi. Nasi who?
A Copino.
Q What happened after he was overtaken by Nasi Copino?
A Nasi pulled the small bolo. Es-mso
Q What happened next after Nasi pulled the small bolo?
A When he was about to thrust the small bolo to the body of
Bobong, his friend held his hand.
Q Who [was] this companion of Nasi that you are referring to who
held up his hand?
A Beni.
Q Do you know the real name of Beni?
A It is only his nickname that I know. Ms-esm
Q Beni what?
A Dejoras.
Q What happened after the hand of Nasi was held up by Beni?
A It was the small bolo which was held by Beni.
Q Which part of the knife was held by Beni Dejoras?
A The blade.
Q So, what happened after he held the blade?
A Nasi pulled the small bolo, and that [was] why Beni was
wounded.
Q What happened after Beni was injured?
A Beni went out.
Q And where was Nasi then at this time when Beni, as you said,
went out?
A Nasi was still [in front] of Bobong.
Q Was he motionless [in front] of Bobong or what?
A He continued to stab Bobong.
Q Where was Bobong hit when he was stabbed by Nasi?
A At first, he was able to parry the thrust of Nasi. E-xsm
Q So, what happened to Bobong after he parried the stab of Nasi?
A Bobong fell down. Ky-le
Q What happened after that?
A Nasi again stabbed Bobong.
Q And where was Bobong hit at this particular time?
A In the stomach.
Q So, what happened after that?
A Nasi ran away."[21]
The above testimony clearly demonstrates the conspiracy between Ramon Galos and
Appellant Ignacio Cupino. Both of them showed their common intent to kill Valliente.
On the part of Galos, conspiracy was shown by his act of grabbing the fleeing victim,
simultaneously drawing his small bolo or pisaw, and stabbing the latter twice. By
running after the wounded victim, Cupino showed unity of purpose with Galos. When
he eventually caught up with the victim, Cupino pulled out the bolo that was
embedded in the body of the latter and used it to stab him again. Clearly, by the
consonance of their deeds, both assailants conspired to kill Valliente.[22]
We agree with the court a quo that treachery qualified the slaying to murder. By
diverting the attention of Valliente to the approaching Dejoras and Cupino, Galos was
obviously making sure that the victim could not defend himself. When Valliente
turned his back, Galos began his attack, which eventually led to the stabbing of the
former. Treachery was not necessarily precluded by either the occurrence of a tussle
before the victim was killed[23] or by the frontal nature of the attack.[24] We also
agree with the lower court that the aggravating circumstance of abuse of superior
strength was absorbed by alevosia.[25]
Second Issue
Conspiracy: Dejoras Liability
Though we uphold the findings of the trial court with regard to Appellant Cupino, we
differ with its conclusion that Appellant Dejoras was guilty. Ky-calr
It is axiomatic that the prosecution must establish conspiracy beyond reasonable
doubt.[26] Conspiracy is not a harmless innuendo to be taken lightly or accepted at
every turn. It is a legal concept that imputes culpability under specific
circumstances.[27] As such, it must be established as clearly as any element of the
crime. The quantum of evidence to be satisfied is, we repeat, beyond reasonable
doubt.[28]
In People v. Elijorde,[29] a case with similar facts, we said:
"Indeed, with respect to accused Reynaldo Punzalan, the Court
cannot assert with moral certainty that he is guilty of murder.
Conspiracy must be proved as indubitably as the crime itself
through clear and convincing evidence, not merely by conjecture.
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 complicity. Hence, conspiracy
exists in a situation where at the time the malefactors were
committing the crime, their actions impliedly showed unity of
purpose among them, a concerted effort to bring about the death
of the victim. In a great majority of cases, complicity was
established by proof of acts done in concert, i.e., acts which
yielded the reasonable inference that the doers thereof were
acting with a common intent or design. Therefore, the task in
every case is determining whether the particular acts established
by the requisite quantum of proof do reasonably yield that
inference." (Footnotes omitted) Calr-ky
Thus, in Elijorde we found one of the accused, a certain Punzalan, innocent under the
circumstances.[30] Similarly, in the present case, we find Appellant Vincent Dejoras
not guilty.
Unlike the trial court, we are quite mindful of the testimony of Prosecution
Eyewitness Bahian regarding Appellant Dejoras participation in that bloody incident
on the eve of the fiesta. His answers to the propounded questions merely established
that Dejoras joined Galos and Cupino when they approached the victim. The
prosecution failed, however, to show what Dejoras specifically did that proved his
participation in the conspiracy. Rather, what the said eyewitness said was that
Dejoras tried to prevent Cupino from stabbing the victim, clearly showing that he did
not support the criminal intent and conspiracy of the other two accused.[31] These
incontrovertible data lead to one conclusion: there is reasonable doubt on whether
Dejoras conspired with Galos and Cupino in killing Valliente. We are therefore
constrained to exonerate him. Indeed, guilt must be proven beyond reasonable
doubt. In this case, there is reasonable doubt on the culpability of Appellant Dejoras
as a principal.
Dejoras cannot be held liable as an accomplice, either.[32] In Elijorde,[33] we said:
Me-sm
"The cooperation that the law punishes is the assistance
knowingly or intentionally rendered which cannot exist without
previous cognizance of the criminal act intended to be executed.
It is therefore required in order to be liable either as a principal by
indispensable cooperation or as an accomplice that the accused
must unite with the criminal design of the principal by direct
participation." S-l-x
The acts of Appellant Dejoras showed that he was not aware of his companions
intent to kill Valliente; at the very least, there is reasonable doubt as to his
knowledge thereof. In any event, community of design, the first of the requisite
elements that must be present before a person may be held liable as an accomplice,
is lacking.[34]
On the prosecutions theory that Dejoras may have inflicted injury on the victim
when he joined in the fray, we have combed the records and found no basis for this
speculation. We note that the eyewitness could not recount the details of the brawl,
but merely provided a general picture, saying that everything happened so fast.[35]
Hence, we find no basis for Appellant Dejoras liability even for physical injuries.[36]
Additional Questions Penalty and Damages
When the crime was committed, the penalty for murder was reclusion temporal
(maximum) to death.[37] Since no generic modifying circumstance was proven, the
trial court correctly sentenced Cupino to reclusion perpetua.[38]
We increase to P50,000 the award for moral damages, in consonance with current
jurisprudence.[39] The facts showing moral damages were proven during the trial.
However, the established actual damages amount to only P30,000, not P40,000 as
found by the lower court.[40] The award of P50,000 civil indemnity for the death of
Gromyko Valliente is affirmed.[41]
WHEREFORE, we AFFIRM the appealed Decision insofar as it found Appellant
Ignacio Cupino GUILTY of MURDER and sentenced him to reclusion perpetua.
Appellant Cupino is solely responsible for paying the heirs of the victim, Gromyko
Valliente, the amounts of P50,000 as indemnity ex delicto, P30,000 as actual
damages and P50,000 as moral damages. Appellant Vincent Dejoras is ACQUITTED
and ordered RELEASED from custody IMMEDIATELY, unless he is being legally held
for another cause. In this regard, the Director of the Bureau of Corrections is
directed to report his compliance, within five (5) days from receipt hereof. Costs
against Appellant Cupino. Sc-slx
PEOPLE OF THE PHILIPPINES,
Appellee,






- versus -






FELIX VENTURA y QUINDOY and ARANTE FLORES
y VENTURA,
Appellants.
G. R. Nos. 148145-46

Present:

Davide, Jr., C.J.,
Bellosillo,
Puno,
Vitug,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna, And
Tinga, JJ.

Promulgated:

July 5, 2004

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N
PER CURIAM:
On automatic appeal[1] before this Court is the Decision of the Regional Trial
Court of Negros Occidental, Branch 50, finding appellants Felix Ventura (Ventura)
and Arante Flores (Flores) guilty beyond reasonable doubt of Murder in Criminal Case
No. 00-20692 and Attempted Murder in Criminal Case No. 00-20693.

The accusatory portion of the Information for Murder in Criminal Case No. 00-
20692 reads as follows:

That on or about the 23
rd
day of February, 2000 in the
City of Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, conspiring, confederating
and acting in concert, without any justifiable cause or motive,
with intent to kill and by means of treachery and evident
premeditation, accused Felix Q. Ventura armed with a .38
Caliber Home-made Revolver and Arante V. Flores armed with a
bladed weapon, and by taking advantage of their superior
strength, did, then and there willfully, unlawfully and feloniously
assault, attack and stab with bladed weapon one Aileen Bocateja
y Peruelo, thereby inflicting upon the person of the latter the
following wounds, to wit:

- Cardio respiratory arrest
- Hemothorax
- stab wounds

which wounds were the direct and immediate cause of the death
of said victim, to the damage and prejudice of the heirs of the
latter.

That the crime was committed with the aggravating
circumstances of dwelling, night time and with the use of
an unlicensed firearm.

Act contrary to law.[2] (Emphasis supplied)


The accusatory portion of the Information for Frustrated Murder in Criminal
Case No. 00-20693 reads as follows:

That on or about the 23
rd
day of February, 2000 in the
City of Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, conspiring, confederating
and mutually helping each other, without any justifiable cause
or motive, accused Felix Q. Ventura armed with a .38 Caliber
Homemade Revolver and Arante Flores y Ventura armed with a
bladed weapon, with intent to kill and by means of treachery
and evident premeditation, and abuse of superior strength,
did, then and there willfully, unlawfully and feloniously assault,
attack and stab with said bladed weapon one Jaime Bocateja,
thereby causing upon of the latter the following wounds, to wit:

- multiple stab wounds
- #1 Posterior axillary area right
- #2 Posterior axillary area left with
minimal hemothorax
- lacerated wound right parietal area

OPERATION PERFORMED:

- Exploration of wound right parietal for
removal of foreign body

thus performing all the acts of execution which would have
produced the crime of murder as a consequence, but which
nevertheless, did not produce it by reason of some cause or
accident independent of the will of the perpetrator, that is, due to
the timely and able medical assistance, which saved the life of the
victim and the victim was able to escape.

That the crime was committed with the aggravating
circumstances of dwelling, night time, and with the use of
an unlicensed firearm.

Act contrary to law.[3] (Emphasis supplied)

When arraigned, appellants pleaded not guilty to both charges.[4] The two
criminal cases were consolidated following which they were jointly tried.[5]

The spouses Jaime and Aileen Bocateja were, in the early hours of February
23, 2000, fast asleep in their room on the ground floor of their two-storey house at
Alunan-Yulo in Bacolod City, Negros Occidental. The room had a glass wall with a
glass sliding door which was closed but not locked. The kitchen light was open, as
was the light in the adjoining room where the couples young children, Jummylin and
Janine, were sleeping. Their niece, Aireen Bocateja, and Jaimes elder daughter,
Rizza Mae, were asleep in their rooms on the second floor.[6]

At around 2:00 a.m.,[7] Jaime was roused from his sleep by appellant
Ventura who, together with his nephew appellant Flores, had stealthily entered the
couples room after they gained entry into the house by cutting a hole in the kitchen
door.

As established by the testimonial and object evidence for the prosecution, the
following transpired thereafter:

Appellant Ventura pointed a revolver at Jaimes face, announced a hold-up,
hit Jaime on the head with the gun and asked him for his keys.

[8]

When appellant Ventura struck him again, Jaime called out for help and tried
to grab the revolver. The two men then struggled for possession of the gun. As
Jaime almost succeeded in wresting possession of the gun from him, appellant Flores
shouted to appellant Ventura to stab Jaime. Using the knife he was carrying,
appellant Flores stabbed Jaime three times. Jaime thereupon released the gun,
threw a nearby plastic stool at the jalousy glass window causing it to break and cried
out for help.[9]

In the meantime, Aileen who had been awakened, began shouting for help as
she saw her husband in mortal danger. Appellant Flores stabbed her, however, with
his knife, and although Aileen tried to defend herself with an electric cord, appellant
Flores continued stabbing her.[10]

Awakened by the commotion, Aireen descended the stairs and saw the knife
wielding appellant Flores whom she recognized as a former employee of the butcher
shop of the Bocataje spouses. Pleading with appellant Flores not to harm her, Aireen
ran back upstairs into Rizza Maes room, and the two called to their neighbors for
help.[11]

Appellants Ventura and Flores thereupon fled the Bocateja house,[12]
bringing nothing with them.[13]

Soon members of the Central Investigation Unit (CIU) of the Philippine
National Police (PNP) arrived in response to a flash report.[14] Some of the police
officers took the spouses to the Western Visayas Regional Hospital,[15] while other
elements of the CIU team intercepted appellants Ventura and Flores who were being
pursued by neighbors of the spouses at the corner of Araneta-Yulo. Recovered from
appellant Ventura was a .38 caliber revolver with five (5) live bullets, and from
appellant Flores a blood stained knife[16] measuring 14! inches from tip to handle
with a 10-inch blade.[17]

Shortly after their arrest, appellants were interviewed by reporters from
Bombo Radio to whom they admitted responsibility for stabbing Jaime and Aileen. In
response to questions from the reporters, appellant Ventura explained that he
suspected his wife was carrying on an affair with Jaime.[18]

In the ocular inspection of the Bocateja residence, the CIU team found the
spouses room in disarray, with some cabinets opened and blood splattered all over
the floor, the bed and the ceiling.

[19]

Aileen eventually died in the hospital on the same day of the commission of
the crime.[20] Dr. Luis Gamboa, City Health Officer of Bacolod City who conducted
the autopsy of her body, found that she suffered a hack wound on her face and four
stab wounds on her body, three at the chest and one at the back of the right
shoulder, all caused by a sharp bladed instrument, such as the knife recovered from
appellant Flores. One of the stab wounds penetrated Aileens chest near the left
nipple, the intercoastal space and the middle of her right lung causing internal
hemorrhage and ultimately resulting in her death.[21]

Jaime who was hospitalized for a total of six days, was treated by Dr. Jose
Jocson,[22] who certified that he sustained the following non-lethal injuries:

[23]

MULTIPLE STAB WOUNDS
#1 POSTERIOR AXILLARY AREA RIGHT
#2 POSTERIOR AXILLARY AREA LEFT WITH MINIMAL
HEMOTHORAX
LACERATED WOUND RIGHT PARIETAL AREA[24]


From the evidence for the defense consisting of the testimonies of appellants
Ventura and Flores and Primitiva Empirado, the following version is culled:

Four days after February 13, 2000 when appellant Ventura arrived in Negros
Occidental from Manila where he had been working as a security guard,[25] he
noticed that his wife, Johanna, who had previously been employed as a house helper
of the Bocateja spouses, was wearing a new ring. When he confronted her, she said
that it came from Jaime who was courting her, and that it was because Jaimes wife,
Aileen, had discovered their illicit relationship that she had been dismissed from the
Bocateja household. Incensed at the revelation, he slapped his wife whereupon she
left the conjugal home.[26]

On February 22, 2000, Johanna returned to the conjugal home in Barangay
Alegria, Municipality of Murcia, Negros Occidental to get her things. After a verbal
confrontation with her husband, she left to find work in Kabankalan, Negros
Occidental. This was the last time that Johanna and appellant Ventura saw each
other.[27]

That same day, appellant Flores visited his uncle-appellant Ventura. The
two spoke at length and appellant Flores, who had previously worked for a day at the
meat shop of the Bocateja spouses, confirmed that Johanna and Jaime were having
an affair.[28]

Since appellant Flores knew where the Bocateja spouses lived, appellant
Ventura asked him to go with him to their residence so he could confront Jaime
about his affair with Johanna.[29]

Appellants, armed with an unlicensed revolver and a knife, thus repaired to
the Bocateja residence still on the same day, February 22, 2000, arriving there at
around 11:00 p.m. They were not able to immediately enter the premises,
however. After boring a hole through the kitchen door with the knife, appellants
entered the Bocateja residence at 2:00 a.m. of the next day, February 23, 2000.[30]

Once inside, appellants entered the room of the Bocateja spouses through
the unlocked sliding door. Appellant Ventura woke Jaime up, confronted him and
told him to stop his relationship with Johanna. Jaime fought back, and he and
appellant Ventura grappled for possession of the latters gun.[31]

Soon after, Aileen woke up, screamed for help, and began throwing things
at appellant Flores whom she attempted to strangle with an electrical extension
cord. Unable to breathe, appellant Ventura stabbed Aileen twice with his knife. And
seeing that Jaime had wrested control of the gun from appellant Ventura, appellant
Flores also stabbed Jaime.[32]

Since appellants had not intended to kill Aileen or stab Jaime, they fled in
the course of which Jaime began shooting at them with a 9 mm pistol. Appellants
were eventually intercepted by policemen who placed them under arrest.[33]

Interviewed by the media after his arrest, appellant Ventura stressed that
he just wanted to confront Jaime about the latters relationship with appellants wife,
Johanna.[34]

By the appealed Decision of December 15, 2000, the trial court disposed as
follows:



FOR ALL THE FOREGOING, the Court finds the accused
FELIX VENTURA y QUINDOY and ARANTE FLORES y VENTURA
GUILTY beyond reasonable doubt as Principals by Direct
Participation of the crime of ATTEMPTED MURDER as alleged in
Criminal Information No. 00-20693 with the aggravating
circumstances of evident premeditation, dwelling,
nighttime and the breaking of door to gain entrance to the
house and with no mitigating circumstance. Accordingly, they are
sentenced to suffer the penalty of Reclusion Temporal in its
maximum period. Applying the Indeterminate Sentence Law,
they shall serve a prison term of from Eight (8) years of Prision
Mayor as Minimum to Eighteen (18) years of Reclusion Temporal
as Maximum.

The Court also finds the two (2) above-named accused
GUILTY as Principal[s] by Direct participation for the crime of
Murder as alleged in Criminal Information No. 00-20692
qualified by abuse of superior strength. The aggravating
circumstances of dwelling, nighttime and by the breaking
of a door are present in the commission of the crime. There
is no mitigating circumstance. The accused, therefore, are meted
the Supreme penalty of DEATH.

By way of civil liability, the accused are solidarily ordered
to pay the heirs of Aileen Bocoteja the sum of P50,000.00 as
death indemnity. The accused are likewise held solidarily liable to
pay Jaime Bocateja the sum of P100,000.00 as moral damages
and the sum of P20,000.00 as exemplary damages.[35]
(Emphasis supplied)

In their Brief,[36] appellants contend that the trial court erred (1) in
convicting them despite the failure of the prosecution to prove their guilt beyond
reasonable doubt; (2) in considering abuse of superior strength as a qualifying
circumstance in Criminal Case No. 00-20892; (3) in considering



evident premeditation as a qualifying circumstance in Criminal Case No. 00-20893;
and (4) in considering the aggravating circumstances of breaking of door and
nocturnity in both cases.[37]

Appellants argue that, at most, they can only be convicted of attempted
homicide for the stabbing of Jaime and homicide for the fatal stabbing of Aileen.[38]

From a considered review of the records and applicable jurisprudence, the
instant appeal fails.

The essence of evident premeditation is that the execution of the criminal act
must be preceded by cool thought and reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to arrive at a calm
judgment.[39] For it to be appreciated, the following must be proven beyond
reasonable doubt: (1) the time when the accused determined to commit the crime;
(2) an act manifestly indicating that the accused clung to his determination; and (3)
sufficient lapse of time between such determination and execution to allow him to
reflect upon the circumstances of his act.[40]

By appellants argument, even if appellant Ventura became jealous when
he learned of the illicit affair between his wife and Jaime, it is not, by itself, sufficient
proof that he determined to kill the latter; that with Jaimes testimony that appellant
had announced a hold-up, they, at most, intended to rob, but not kill the
spouses; that their only purpose was to confront Jaime regarding his supposed affair
with appellant Venturas wife, Johanna; and that if they had truly intended to kill
Jaime, then appellant Ventura would not have bothered to awaken him, but would
just have shot him in his sleep.

These assertions run counter to the established facts and are debunked by
appellants own admissions.

Appellants admittedly arrived at the Bocateja residence at 11:00 p.m. and
surreptitiously entered therein at 2:00 a.m. At that time, the surrounding premises
were decidedly dark, and all the members of the household were fast asleep. Armed
with a gun and a knife, they proceeded directly to the bedroom of the spouses,
where appellant Ventura woke up Jaime. These actuations are not of those seeking
parley, but instead betray an unmistakable intention to kill, not merely confront,
Jaime.

Indeed, when pressed during cross-examination to explain why he chose to
confront Jaime under the foregoing circumstances, appellant Ventura became
evasive and did not give a clear answer:


Q Mr. Witness, you said that your purpose in going to the
house of Jaime was only to confront him. My question
is, why is it that you went there at 11:00 oclock in
the evening and not in the morning so that you
will have all the opportunity to confront him?
A Because at that time, I was not on my proper frame
of mind.

Q Why, is it not a fact that as early as February 17, 2000,
you were already told by your wife that there was that
relationship with Jaime Bocateja and your wife?
A Yes, sir.

Q Why did you not immediately confront Mr, Bocateja
after that day or February 17?

WITNESS:
A On that day, I dont know Jaime Bocateja.

x x x

ATTY. ORTIZ:
Q On February 22. So that you did not ask your wife
where the place of Jaime Bocateja was at that
time you were by him on February 22, 2000?
A Johanna did not tell me the place of Jaime Bocateja.

Q Why did you not ask her where the house is, at that
time?
A What she told me was that, she is working in
Bacolod City.

Q Mr. Witness, you had from February 17 to 22, a
number of days to confront Mr. Jaime
Bocateja. Did you not confront your wife or
perhaps ask her about the place or where this
Jaime Bocateja was at that time and have the
intention to confront him, if that was really your
intention to confront him?


WITNESS:
A No, I did not ask her because we had a
confrontation and the next day, February 17, she
left.

Q Of course, when you arrived at the house of the Bocateja
[spouses] at 11:00 oclock in the evening, you were
armed at that time, is that right, you and your
companion, Arante Flores?
A Yes, sir.

Q What was that weapon at that time?
A .38 caliber revolver.

x x x

ATTY. ORTIZ:
Q Mr. Witness, if your intention was only to confront
Mr. Jaime Bocateja, why is it that you did not wait
or you did not come to that place earlier so that at
that time, Jaime Bocateja was still awake or
perhaps waited until the next day?

COURT:
Already answered. He said that he was not at the
proper frame of his mind.[41] (Emphasis supplied)



Cross-examined on the same point, appellant Flores was equally evasive, but
eventually revealed that the timing and method of entry were purposely chosen to
avoid detection by either the Bocateja family or their neighbors:


Q You arrived in the house of Bocateja at about 11:00
oclock is that right?
A Yes, sir.

Q And your purpose in going to the house of Bocateja was
only to confront Jaime Bocateja about his relationship
with Johanna is that right?
A Yes, sir.



ATTY. ORTIZ:
Q Why did you wait Mr. Witness why did you and the
other accused Felix Ventura wait for three (3)
hours for you to confront him in his house?
WITNESS:
A Because we were not able to enter the door right
away because the door could not be opened.

Q My question Mr. Witness, is this you ate your supper
at Libertad market at about 8:00 oclock why did
you not go to the house of Jaime Bocateja at 9:00
oclock immediately after supper? At that time
when the members of the family were yet awake?
A We stayed at Burgos market and then from Burgos
to Libertad we only walk and from Libertad to the
house of Bocateja.

ATTY. ORTIZ:
Q You will admit Mr. Witness at the time you left your
place at Brgy. Alegria you were already armed, is
that right?
WITNESS:
A Yes, sir.

Q Your uncle Felix Ventura was armed with [a] .38 caliber
revolver, is that right?
A Yes, sir.

Q And you were also armed with a bladed weapon is that
correct?
A Yes, sir.

Q Why do you have to bring this weapon Mr. Witness?
A We brought this weapon just to frighten Jaime
Bocateja during [the] confrontation.

ATTY. ORTIZ:
Q Are you saying Mr. Witness if your purpose was only
to confront him you have to bring this [sic]
weapons?
WITNESS:
A Yes, sir.

Q When you arrived at the house of Jaime Bocateja about
11:00 oclock. . . by the way when did you arrive at the
house of Jaime Bocateja?
A 11:00 in the evening.



Q Of course you did not anymore knock at the door Mr.
Witness?
A No, sir.

Q Or you did not also call any member of the family to
open [the door for] you, is that right?
WITNESS:
A No, sir.

ATTY. ORTIZ:
Q As a matter of fact you only broke the gate Mr. Witness in
order to enter the compound of the Bocateja family?
A We scaled over the gate.

Q And why do you have Mr. Witness to go over the
fence and open a hole at the kitchen for you to
confront Mr. Jaime Bocateja if that was your
purpose?
A The purpose of my uncle was just to confront Jaime.

Q And when you confront, are you saying that you
cannot any more knock at the door, perhaps call
any member of the family inside the house?
WITNESS:
A No, sir.

ATTY. ORTIZ:
Q Why Mr. Witness, Why?
A We did not call or knock at the person inside the
house because it will make noise or calls and
alarm to the neighbors.[42] (Emphasis and
underscoring supplied)


To be sure, all the elements of evident premeditation were clearly
established from the lips of appellants themselves. Thus, on clarificatory questioning
by the trial court, appellant Ventura testified:

COURT:
Q I recall that you left Murcia [at] 4:00 oclock. Is that
morning or afternoon?
A I left Murcia at 4:00 oclock in the afternoon.

Q 4:00 oclock from Alegria then to Alangilan, then to
Bacolod, is that correct?
A Yes, sir.

Q From Alangilan to Bacolod, what mode of transportation
did you make?
A From Alegria to Alangilan, we only hiked and then
from Alangilan to Bacolod we took the passenger
jeepney.

Q From Alegria to Alangilan, how long did it take you
to walk? How many kilometers?
A Four (4) kilometers.

Q And, I assume that while you were walking, you
were talking with Arante Flores, your nephew,
about the plans to go to the house of Jaime
Bocateja?
A Yes, sir.

COURT:

Q By the way, what did you do at Alangilan?
A I went there because my clothes were at my sisters
house.

Q So, what time did you arrive in [Bacolod]?
A We arrived here in [Bacolod] late in the evening.

Q I assume that you disembarked at Burgos Market?
A Yes, sir.

Q And you just walked from Burgos Market to Libertad
Baybay to the house of Jaime Bocateja?
A Yes, sir.

Q It took you about thirty (30) [minutes] to one (1)
hour, more or less?
A More than one (1) hour.

Q And during this time, you were talking again with
Arante Flores [about] the course of action that you
will take once a confrontation takes place with
Jaime Bocateja?

WITNESS:
A Yes, I asked him the location of 3
rd
Road since I do
not know the house of Jaime Bocateja.



COURT:
Q I assume that the front main door of the house was
close[d] at that time, correct?
A Yes, sir.

Q You scaled that door, the front main door of the
gate?
A Yes, sir, we scaled the gate.

Q You were not able to open it but you simply scaled, you
went over?
A Yes, sir.

Q And you said yet, you destroyed the main door of
the house. Can you tell the Court, how did you
destroy the main door of the house?
A No, the kitchen door, sir.

COURT:
Q How were you able to destroy it?

WITNESS:
A We used the knife in unlocking the door. We made a
hole.

Q You made a hole and with the use of your hand, you were
able to unlock the inside lock because of the hole?
A Yes, sir.

Q And I assume that it took you twenty (20) thirty
(30) minutes to make that hole?
A Yes, sir.[43] (Emphasis supplied)

The immediately foregoing narration was echoed by appellant Flores who gave
the following testimony on direct examination:

ATTY. JACILDO:
Q So from Brgy. Alegria where did you proceed?






WITNESS:
A We proceeded to Brgy. Alangilan.


Q This Brgy. Alegria how far is it from Brgy. Alangilan?
A The distance between Brgy. Alegria to Brgy.
Alangilan is about three (3) kilometers.

Q So, what means of transportation did you used in going to
Alangilan?
A We walked in going to Alangilan.

Q When you arrived at Brgy. Alangilan what did you do?
WITNESS:
A We went to our aunts house.

ATTY. JACILDO:
Q From Alangilan where did you proceed?
A In Alangilan, we stayed at the house of my aunt and
then we proceeded to Bacolod.

Q So what time did you arrived [sic] in Bacolod?
A 8:00 oclock in the evening.

Q When you arrived in Bacolod, what did you do?
A We ate our supper at Libertad Market.

Q After eating your dinner at Libertad, what did you do?
A After eating our supper, we proceeded to the house
of Jaime Bocateja.

ATTY. JACILDO:
Q What time did you arrived [sic] at the house of
Jaime?
WITNESS:
A 11:00 oclock in the evening.

Q When you arrived at the house of Jaime, what did you do?
A We enter[ed] the gate of their house.

Q Please continue?
A Then, we opened the door.

Q And then?
A We reach[ed] [the Bocateja residence] at around
11:00 oclock and we tried to open the door but we
could not open the door immediately. We made a
hole so that we can get in the house. We entered
the house at about 2:00 oclock in the morning the
following day.[44] (Emphasis supplied)


Undoubtedly, the accounts of appellants evince not only their resolve to kill
Jaime, but the calm and methodical manner by which they sought to carry out his
murder. As pointed out by the Solicitor General, unless shown to be customary,[45]
appellants act of arming themselves with a gun and a knife constitutes direct
evidence of a careful and deliberate plan to carry out a killing. Consider the
following ruling of this Court in People v. Samolde:[46]

As stated earlier, accused-appellant and Armando Andres
tried to borrow Cabalins tear gas gun. This attempt by the
accused-appellant and his co-accused to arm themselves
prior to the commission of the crime constitutes direct
evidence that the killing of Feliciano Nepomuceno had been
planned with care and executed with utmost
deliberation. From the time the two agreed to commit the crime
to the time of the killing itself, sufficient time had lapsed for them
to desist from their criminal plan had they wanted to. Instead,
they clung to their determination and went ahead with their
nefarious plan. x x x[47] (Emphasis supplied)

From the time appellants left Murcia, Negros Occidental, after they had
resolved to go to confront Jaime, to the time they entered the Bocateja residence in
Bacolod City, ten hours had elapsed sufficient for appellants to dispassionately
reflect on the consequences of their actions and allow for their conscience and better
judgment to overcome the resolution of their will and desist from carrying out their
evil scheme, if only they had desired to hearken to such warnings. In spite of this,
appellants evidently clung to their determination to kill Jaime.

That evident premeditation was established through the testimonies of
appellants and not by those of the prosecution witnesses is of no moment. While
appellants could not have been compelled to be witnesses against themselves,[48]
they waived this right by voluntarily taking the witness stand. Consequently, they
were subject to cross-examination on matters covered by their direct
examination.[49] Their admissions before the trial court constitute relevant and
competent evidence which the trial court correctly appreciated against them.

[50]

Although he admitted stabbing Jaime, appellant Flores sought to justify his
actions by claiming that he was impelled by the need to prevent Jaime from shooting
his uncle, appellant Ventura. This pretense does not impress.

To successfully claim that he acted in defense of a relative, the accused
must prove the concurrence of the following requisites: (1) unlawful aggression on
the part of the person killed or injured; (2) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (3) the person
defending the relative had no part in provoking the assailant, should any provocation
have been given by the relative attacked.[51] Of these, the requisite of unlawful
aggression is primary and indispensable without which defense of relative, whether
complete or otherwise, cannot be validly invoked.[52]

Not one of the foregoing requisites of defense of a relative is
present. From all accounts, it was appellants who initiated the unlawful aggression,
and it was the victim Jaime who acted in self defense. Hence, neither the justifying
circumstance of defense of a relative[53] nor the special mitigating circumstance of
incomplete defense of a relative[54] may be appreciated in appellant Flores favor.

While appellant Ventura did not directly participate in the stabbing of Jaime,
the trial court correctly held both appellants collectively liable for the attempt on the
latters life since they were shown to have acted in conspiracy with each other.

There is a conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.[55] Where
conspiracy has been adequately proven, as in these cases, all the conspirators are
liable as co-principals regardless of the extent and character of their participation
because, in contemplation of law, the act of one is the act of all.[56]

By stabbing Jaime Bocateja pursuant to their pre-conceived plot, appellants
commenced the commission of murder directly by overt acts. Despite their efforts,
however, they failed to inflict a mortal wound on Jaime, hence, their liability only for
attempted murder.[57]

With respect to the death of Aileen, the trial court found both appellants guilty
of murder qualified not by evident premeditation but by taking advantage of superior
strength, [58] to wit:

The killing of Aileen Bocateja is qualified by the
aggravating circumstance of abuse of superior strength. The
accused Arante Flores who delivered the stabbing blow is
big and strong, standing about five feet and six (56)
inches tall. His weapon was a 14 inch dagger. Aileen
Bocateja [stood] only about five (50) feet tall. The
disparity of their strength is enormous.[59] (Emphasis
supplied)

To take advantage of superior strength means to purposely use excessive
force out of proportion to the means of defense available to the person
attacked.[60] The appreciation of this aggravating circumstance depends on the
age, size and strength of the parties, and is considered whenever there is a notorious
inequality of forces between the victim and the aggressor, assuming a superiority of
strength notoriously advantageous to the aggressor, which is selected or taken
advantage of by him in the commission of the crime.[61]

Appellants "agree with the trial court that accused-appellant Arante Flores is
taller, and probably stronger than the victim Aileen Bocateja because of their
difference in sex as well as the fact that the accused appellant Flores was armed at
that time x x x.[62] Nevertheless, they argue that Aileens death was not attended
by abuse of superior strength since: (1) though ultimately unsuccessful, she was
able to put up a defense against appellant Flores; and (2) the prosecution failed to
show that appellant Flores deliberately took advantage of the disparity in their size
and sex in order to facilitate the commission of the crime.

Unlike in treachery, where the victim is not given the opportunity to defend
himself or repel the aggression,[63] taking advantage of superior strength does not
mean that the victim was completely defenseless. Abuse of superiority is determined
by the excess of the aggressors natural strength over that of the victim, considering
the momentary position of both and the employment of means weakening the
defense, although not annulling it.[64] Hence, the fact that Aileen attempted to fend
off the attack on her and her husband by throwing nearby objects, such as an
electric cord, at appellant Flores does not automatically negate the possibility that
the latter was able to take advantage of his superior strength.

On the contrary, this Court in a very long line of cases has consistently held
that an attack made by a man with a deadly weapon upon an unarmed and
defenseless woman constitutes the circumstance of abuse of that superiority which
his sex and the weapon used in the act afforded him, and from which the woman
was unable to defend herself.[65] Thus, in People v. Molas,[66] where the accused
was convicted of murder for stabbing to death two women and an eight year old boy,
this Court discoursed:

While treachery was not appreciated as a qualifying
circumstance against Molas, the killing of the three victims was
raised to murder by the presence of the qualifying circumstance
of abuse of superior strength. There was abuse of superior
strength when Molas inflicted several mortal wounds upon
Soledad. Molas, besides being younger and stronger, was
armed with a weapon which he used in seriously wounding
her. That circumstance was also present when he hacked
eight-year old Abelaro and also Dulcesima who, besides
being a woman of lesser strength was unarmed.[67]
(Emphasis supplied)

And in the more recent case of People v.Loreto,[68] this Court opined:

The contention of accused-appellant is barren of
merit. Article 14, paragraph 15 of the Revised Penal Code
provides that a crime against persons is aggravated by the
accused taking advantage of superior strength. There are no
fixed and invariable rules regarding abuse of superior strength or
employing means to weaken the defense of the
victim. Superiority does not always mean numerical
superiority. Abuse of superiority depends upon the relative
strength of the aggressor vis--vis the victim. There is abuse of
superior strength even if there is only one malefactor and one
victim. Abuse of superiority is determined by the excess of the
aggressors natural strength over that of the victim, considering
the position of both and the employment of means to weaken the
defense, although not annulling it. The aggressor must have
advantage of his natural strength to insure the commission of the
crime. In this case, accused-appellant was armed with a
knife and used the same in repeatedly stabbing Leah, a
young wisp of a girl, no less than eighteen times after
overtaking her in the sala of Dans house. Irrefragably,
then, accused-appellant abused his superior strength in
stabbing Leah. In a case of early vintage [People v. Guzman,
supra. at 1127], the Court held that:

There is nothing to the argument that the
accused was erroneously convicted of murder. An
attack made by a man with a deadly weapon upon
an unarmed and defenseless woman constitutes
the circumstance of abuse of that superiority
which his sex and the weapon used in the act
afforded him, and from which the woman was
unable to defend herself (U.S. vs. Camiloy, 36 Phil.
757; U.S. vs. Consuelo, 13 Phil. 612; People vs.
Quesada, 62 Phil. 446). The circumstance of abuse of
superior strength was, therefore, correctly appreciated
by the trial court, as qualifying the offense as
murder.[69] (Emphasis supplied; citations omitted)

By deliberately employing a deadly weapon against Aileen, appellant Flores
clearly took advantage of the superiority which his strength, sex and weapon gave
him over his unarmed victim.

As for appellant Flores claim of self-defense, it cannot be sustained. As in
defense of a relative, one claiming self defense must prove by clear and convincing
evidence[70] both unlawful aggression on the part of the person killed or injured and
reasonable necessity of the means employed to prevent or repel the unlawful
aggression. As a third requisite, he must also prove lack of sufficient provocation on
his part.[71] None of these requisites was shown to be present. As expounded by
the trial court:

Arante declared that Aileen panicked and screamed and
was hitting him with an extension cord so he stabbed her. Arante
was suggesting that had Ai[l]een remained cool, composed and
friendly, she would not have died.

This perverted reasoning need not detain the
Court. There was an on-going aggression being committed inside
her house and within the confines of her room, hence, Aileens
actuations were perfectly just and legitimate.[72]

As adverted to earlier, the trial court, citing People v. Dueno,[73] did not
consider evident premeditation as having aggravated the killing of Aileen since she
was not the intended victim of appellants conspiracy. Upon further scrutiny,
however, this Court finds that this aggravating circumstance should have been
appreciated in connection with Aileens murder. Jurisprudence is to the effect that
evident premeditation may be considered as present, even if a person other than the
intended victim was killed, if it is shown that the conspirators were determined to kill
not only the intended victim but also anyone who may help him put a violent
resistance.[74]

Here, it was established that upon seeing her husband being attacked by
appellants, Aileen immediately called for help and hurled objects at appellant
Flores. And it was because of this passionate defense of her husband that appellant
Flores hacked at her face and stabbed her four times. These factual circumstances
are analogous to those in People v. Belga,[75] where this Court had occasion to state
that:

While it would seem that the main target of the
malefactors were Alberto and Arlene Rose, this does not negative
the presence of evident premeditation on the physical assault on
the person of Raymundo Roque. We have established
jurisprudence to the effect that evident premeditation may
be considered as present, even if a person other than the
intended victim was killed (or wounded, as in this case), if
it is shown that the conspirators were determined to kill
not only the intended victim but also anyone who may help
him put a violent resistance. Here, Raymundo Roque
provided such violent resistance against the conspirators,
giving the latter no choice but to eliminate him from their
path.[76] (Emphasis and underscoring supplied, citations
omitted)

Thus, while appellants original objective may have only been the killing of
Jaime, the trial court correctly held both of them responsible for the murder of
Aileen. Co-conspirators are liable for such other crimes which could be foreseen and
are the natural and logical consequences of the conspiracy.[77] In Pring, et al. v.
Court of Appeals,[78] this Court held:

While the acts done by the petitioners herein vary
from those of their co-accused, there is no question that they
were all prompted and linked by a common desire to assault and
retaliate against the group of Loreto Navarro. Thus, they must
share equal liability for all the acts done by the participants in
such a felonious undertaking. While petitioners herein, Rogelio
Pring and Alberto (Roberto) Roxas, on their part, had ganged up
Jesus Yumol who belonged to the group of their adversaries by
hitting the latter with a bench and a piece of wood, and that it
was a certain David Ravago who stabbed the deceased Loreto
Navarro, nevertheless, it is a rule that conspirators would
necessarily be liable also for the acts of the other
conspirators unless such acts differ radically or
substantially from that which they intended to commit
(People vs. Enriquez, 58 Phil. 536; People vs. Rosario, 68 Phil.
720).

The pronouncements made by this Court in the aforecited
case of People vs. Enriquez, still serve as the governing rule that
should be applied to the case at bar. In the said case, this Court
stated:

x x x x x x x x x


We are of the opinion that this contention is not
tenable. The accused had undoubtedly conspired to do
grave personal injury to the deceased, and now that the
injuries actually inflicted have resulted in death, they
cannot escape from the legal effect of their acts on the
ground that one of the wounds was inflicted in a
different way from that which had been intended. x x
x x x x x x x.

As has been said by the Supreme Court of the
United States, If a number of persons agree to
commit, and enter upon the commission of the
crime which will probably endanger human life
such as robbery, all of them are responsible for
the death of a person that ensues as a
consequence. (Boyd vs. U.S., 142 U.S. 450; 35 Law.
ed. 1077). In United States vs. Patten, the court said:
Conspirators who join in a criminal attack on a
defenseless man with dangerous weapons, knock him
down, and when he tries to escape, pursue him with
increased numbers, and continue the assault, are liable
for manslaughter when the victim is killed by a knife
wound inflicted by one of the them during the beating,
although in the beginning they did not contemplate the
use of a knife. (42 Appeals, D.C., 239)

Although during the incident in question the aggression
committed by the petitioners herein was directed against the
other members of the group of Loreto Navarro and not on the
deceased, this would not relieve them from the consequence of
the acts jointly done by another member of the petitioners group
who stabbed the deceased Loreto Navarro.[79] (Emphasis
supplied, citations omitted)

And in the more recent case of People v. Bisda, et al.,[80] this Court held:

Each conspirator is responsible for everything done
by his confederates which follows incidentally in the
execution of a common design as one of its probable and
natural consequences even though it was not intended as
part of the original design. Responsibility of a conspirator is
not confined to the accomplishment of a particular purpose
of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended.
Conspirators are held to have intended the consequences of their
acts and by purposely engaging in conspiracy which necessarily and
directly produces a prohibited result, they are, in contemplation of
law, chargeable with intending that result. Conspirators are
necessarily liable for the acts of another conspirator unless
such act differs radically and substantively from that which
they intended to commit. As Judge Learned Hand put it in United
States v. Andolscheck, "when a conspirator embarks upon a
criminal venture of indefinite outline, he takes his chances as to its
content and membership, so be it that they fall within the common
purposes as he understands them." (Emphasis supplied; citations
omitted)

Indeed, since they deliberately planned to attack Jaime in the sanctity of
his bedroom where his wife Aileen was also sleeping, appellants cannot now claim
that the latters violent resistance was an unforeseen circumstance. Hence, neither of
them can escape accountability for the tragic consequences of their actions.

In determining appellants criminal liability, the trial court appreciated the
generic aggravating circumstances of dwelling,[81] nighttime[82] and breaking of
door[83] in connection with both crimes.

Dwelling is considered aggravating because of the sanctity of privacy that
the law accords to human abode.[84] Thus, it has been said that the commission of
the crime in anothers dwelling shows greater perversity in the accused and produces
greater alarm.[85] Here, dwelling was correctly appreciated since the crimes were
committed in the place of abode of the victims who had not given immediate
provocation.[86]

Upon the other hand, as pointed out by both appellants and the Solicitor
General, the breaking of a door was not alleged in either of the two
informations. Thus, the same cannot be appreciated against appellants. On this
point, this Courts discussion in People v. Legaspi,[87] quoted in the Solicitor
Generals Brief, is instructive:

Nonetheless, it is to be noted that the appreciation by the
trial court of the aggravating circumstances of dwelling and
nighttime, despite the non-allegation thereof in the Information,
resulted in the imposition of the supreme penalty of death upon
accused-appellant. In People v. Gallego (G.R. No. 130603, 338
SCRA 21, August 15, 2000), We had occasion to rule thus:

In People v. Albert (251 SCRA 136, 1995), we
admonished courts to proceed with more care where the
possible punishment is in its severest form death
because the execution of such a sentence is
irrevocable. Any decision authorizing the State to take
life must be as error-free as possible, hence it is the
bounden duty of the Court to exercise extreme caution
in reviewing the parties evidence. Safeguards designed
to reduce to a minimum, if not eliminate the grain of
human fault ought not to be ignored in a case involving
the imposition of capital punishment for an erroneous
conviction will leave a lasting stain in our escutcheon of
justice. The accused must thence be afforded every
opportunity to present his defense on an
aggravating circumstance that would spell the
difference between life and death in order for the
Court to properly exercise extreme caution in reviewing
the parties evidence. This, the accused can do only
if he is appraised of the aggravating circumstance
raising the penalty imposable upon him to
death. Such aggravating circumstance must be
alleged in the information, otherwise the Court
cannot appreciate it. The death sentence being
irrevocable, we cannot allow the decision to take away
life to hinge on the inadvertence or keenness of the
accused in predicting what aggravating circumstance will
be appreciated against him.

x x x

The principle above-enunciated is applicable to the case at
bar. Consequently, we hold that due to their non-allegation in the
Information for rape filed against accused-appellant, the
aggravating circumstances of nighttime and dwelling cannot be
considered in raising the penalty imposable upon accused-
appellant from reclusion perpetua to death.
x x x

It is to be noted carefully that the rule on generic
aggravating circumstances has now been formalized in the
Revised Rules of Criminal procedure, which took effect on
December 1, 2000. Section 8 of Rule 110 now provides that:

Sec. 8. Designation of the offense. The
complaint or information shall state the designation
of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there
is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.

Likewise, Section 9 of the same Rule provides:

Sec. 9. Cause of the accusation. The acts or
omission complained of as constituting the offense and
the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not
necessarily in the language used in the statute but in
terms sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment.[88] (Emphasis supplied)

Appellants and the Solicitor General also argue that nocturnity should not
have been considered since Jaime himself testified that their bedroom was well-lit
and there was light coming from the kitchen and the adjoining bedroom of their
children.[89]

In determining nocturnity, two tests are employed in the alternative: (1) the
objective test, under which nighttime is aggravating because the darkness facilitated
the commission of the offense; and (2) the subjective test, under which nighttime is
aggravating because the darkness was purposely sought by the
offender.[90]Applying these tests to the established factual circumstances, this
Court concludes that nocturnity was correctly appreciated in connection with both
crimes.

While the bedroom where the crimes occurred was well-lit, the evidence
shows that, in furtherance of their murderous intent, appellants deliberately took
advantage of nighttime, as well as the fact that the household members were asleep,
in order to gain entry into the Bocateja residence. Indeed, their own testimony
indicates that while they were already outside the Bocateja house at around 11:00
p.m., they purposely waited until 2:00 a.m. before breaking into the residence so as
not to call the attention of the Bocatejas and/or their neighbors. It is thus clear that
appellants deliberately took advantage of the darkness of the night, not to mention
the fact that the Bocatejas were fast asleep, to conceal their actions and to facilitate
and insure that their entry into the victims home would be undetected.

No mitigating circumstances are present to offset the foregoing aggravating
circumstances. While the trial Court noted that appellants were apparently
motivated by their belief that Johanna and Jaime were carrying on an illicit
relationship, to wit:

The accused presented evidence to prove that Jaime
Bocateja and Johanna Ventura, wife of the accused Felix Ventura,
were maintaining an illicit relationship. The evidence on this point
is principally hearsay the alleged admissions made by Johanna
of the relationship. There is no doubt, however, that the accused
Ventura believes that [his] wife and Jaime Bocateja are
clandestine lovers. It is fairly reasonable, in the absence of any
evidence to the contrary, that it is Venturas belief of this illicit
relationship which prompted him to confront Jaime
Bocateja,[91]


it nevertheless ruled out passion or obfuscation[92] or immediate vindication of a
grave offense[93] as mitigating circumstances.

While jealousy may give rise to passion or obfuscation,[94] for the
appreciation of this mitigating circumstance it is necessary that the act which
produced the obfuscation was not far removed from the commission of the crime by
a considerable length of time, during which the perpetrator might recover his normal
equanimity.[95] In the same vein, while immediate vindication should be
construed as proximate vindication in accordance with the controlling Spanish
text[96] of the Revised Penal Code, still this mitigating circumstance cannot be
considered where sufficient time elapsed for the accused to regain his
composure.[97]

In these cases, appellant Venturas suspicions were aroused as early as
February 17, almost a week before the stabbing incidents on February 23, when he
first confronted his wife about her ring. Moreover, as previously noted, ten hours
had elapsed from the time appellants left Murcia, Negros Occidental, weapons in
hand, to the time they entered the Bocateja residence in Bacolod City. Within that
period appellant Ventura had opportunity to change his clothes at a relatives house
in a neighboring barangay and both appellants were able to take their dinner at the
Burgos Market in Bacolod City. They even waited three hours outside the Bocateja
residence before carrying out their plan. Without question, sufficient time had
passed for appellants emotions to cool and for them to recover their equanimity.

In fine, for stabbing Jaime, appellants are guilty beyond reasonable doubt
of attempted murder qualified by evident premeditation with the aggravating
circumstances of dwelling and nighttime. However, as pointed out by the Solicitor
General, the trial court erred in imposing the sentence of Eight (8) Years of prision
mayor as minimum to Eighteen (18) Years of reclusion temporal as maximum.

Article 51 of the Revised Penal Code provides that a penalty two degrees
lower than that prescribed for the consummated penalty shall be imposed upon the
principals in an attempted felony. Under Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to
death. The penalty two degrees lower is prision mayor.[98] Applying Section 1 of
Act No. 4103,[99] as amended, otherwise known as the Indeterminate Sentence
Law, and considering the presence of two aggravating circumstances, the proper
imposable penalty falls within the range of prision mayor in its maximum period
(from Ten (10) Years and One (1) Day to Twelve (12) Years) as maximum and
prision correccional (from Six (6) Months and One (1) Day to Six (6) Years) as
minimum. Accordingly, this Court hereby sentences appellants to an indeterminate
penalty of Six (6) Years of prision correccional as minimum to Twelve (12) Years of
prision mayor as maximum.

For fatally stabbing Aileen, appellants are guilty beyond reasonable doubt of
murder qualified by abuse of superior strength with the aggravating circumstances of
evident premeditation, dwelling and nighttime. As already noted, the penalty for
murder is reclusion perpetua to death. Article 63 of the Revised Penal Code provides
that when the law prescribes two indivisible penalties, the greater penalty shall be
imposed when, in the commission of the deed, one aggravating circumstance is
present. Consequently, the trial courts imposition of the supreme penalty of death
must be sustained.

Three members of the Court maintain their adherence to the separate opinions
expressed in People vs. Echegaray[100] that Republic Act No. 7659, insofar as it
prescribes the penalty of death, is unconstitutional; nevertheless they submit to the
ruling of the majority that the law is constitutional and that the death penalty should
accordingly be imposed.

As regards the civil liability of the appellants, the award of the trial court is
hereby modified as follows:

In Criminal Case No. 00-20692, the award of P50,000.00 to the heirs of
Aileen as civil indemnity for her death is sustained, the commission of the crime by
appellants having been duly proven.[101] The award of moral damages to her heirs
is likewise proper considering that the prosecution presented adequate proof that
they suffered mental anguish and wounded feelings.[102] However, the amount of
moral damages awarded by the trial court is hereby reduced from P100,000.00 to
P50,000.00 in line with current jurisprudence.[103] It should be borne in mind that
the purpose for such award is to compensate the heirs of the victim for the injuries
to their feelings and not to enrich them.[104]

The award of exemplary damages should be increased from P20,000.00 to
P25,000.00. Such award is proper in view of the presence of aggravating
circumstances.[105] Furthermore, considering that counsel for appellants admitted
that the heirs of Aileen incurred funeral expenses of P100,000.00[106] and such
admission has not been shown to have been made through palpable mistake, the
same should be awarded as actual damages.[107]

In Criminal Case No. 00-20692, the trial court did not grant Jaimes claim for
P20,000.00 in actual damages for hospitalization expenses since he failed to present
any receipts to substantiate the same. Nonetheless, in light of the fact that Jaime
was actually hospitalized and operated upon, this Court deems it prudent to award
P20,000.00 as temperate damages.[108] Moreover, Jaime is also entitled to moral
damages in accordance with Article 2219, paragraph 2 of the Civil Code, which this
Court hereby awards in the amount of P25,000.00.[109] Finally, exemplary
damages of P25,000.00 are also in order considering that the crime was attended by
two aggravating circumstances.[110]

WHEREFORE, the judgment in Criminal Case No. 00-20693 is hereby
AFFIRMED with MODIFICATION. Appellants Felix Ventura and Arante Flores are
found GUILTY beyond reasonable doubt of the crime of attempted murder qualified
by evident premeditation with the aggravating circumstances of dwelling and
nighttime and are hereby SENTENCED to an indeterminate penalty of Six (6) Years
of Prision Correccional as minimum to Twelve (12) Years of Prision Mayor as
maximum.

Appellants are solidarily ORDERED to pay the victim, Jaime Bocateja, the
amounts of: (a) Twenty Thousand Pesos (P20,000.00) as temperate damages; (b)
Twenty Five Thousand Pesos (P25,000.00) as moral damages; and (c) Twenty Five
Thousand Pesos (P25,000.00) as exemplary damages.

The judgment in Criminal Case No. 00-20692 is likewise AFFIRMED with
MODIFICATION. Appellants Felix Ventura and Arante Flores are found GUILTY
beyond reasonable doubt of murder qualified by abuse of superior strength with the
aggravating circumstances of evident premeditation, dwelling and nighttime and are
SENTENCED to the supreme penalty of DEATH.

Appellants are solidarily ORDERED to pay the heirs of Aileen Bocateja the
amounts of: (a) Fifty Thousand Pesos (P50,000.00) as civil indemnity; (b) One
Hundred Thousand Pesos (P100,000.00) as actual damages; (c) Fifty Thousand
Pesos (P50,000.00) as moral damages; and (d) Twenty Five Thousand Pesos
(P25,000.00) as exemplary damages.

Upon the finality of this Decision, and pursuant to Art. 83 of the Revised Penal Code,
as amended by Sec. 25 of R.A. No. 7659, let the records of the cases be immediately
forwarded to the President of the Philippines for the exercise, at her discretion, of her
power to pardon appellants Felix Ventura and Arante Flores.

PEOPLE OF THE PHILIPPINES, appellee, vs. JUAN FACTAO alias BOYET,
ALBERT FRANCIS LABRODA alias ABET, and TIRSO SERVIDAD,
appellants.
D E C I S I O N
TINGA, J.:
The defense of alibi is by nature weak but it assumes significance and strength
where the evidence for the prosecution is also intrinsically weak.[1] The
contrasting weight of the prosecution evidence against appellants Juan Factao
and Albert Francis Labroda, on the one hand, and appellant Tirso Servidad, on
the other, accounts for the difference that the Court accords their respective
alibis.
In the evening of August 23, 1991, Vicente Manolos was in a kamalig near
the seashore in Barangay Sirawagan, San Joaquin, Iloilo with Eduardo Sardoma,
Rolando Nierves, Noel Serrano and the hut's owner, Fernando Sardoma.[2]
Sometime past 8:00 p.m., Vicente felt the urge to defecate so he went beside a
boat about four or five meters from the hut.[3] As Vicente relieved himself, he
saw Juan Factao and Albert Francis Labroda approach the hut.[4] Factao was
armed with a garand rifle.[5]
As the two men neared the kamalig, Labroda looked around as if to see if
there was anyone else about.[6] Factao peeped into the hut, which was illuminated
by an electric light bulb, aimed his gun at a hole in the hut's bamboo wall and
fired.[7]
Factao and Labroda then sped towards the Sirawagan River.[8] In his
haste, Factao tripped on the outrigger of the boat beside which Vicente was
defecating.[9] Fortunately, Factao did not notice Vicente, who tried to hide
himself.[10] Vicente quickly pulled up his pants and ran towards the hut.[11]
From about five arms' length away,[12] Jose Manuel Sermona also witnessed
the shooting. Jose Manuel saw Juan Factao, Albert Francis Labroda and Tirso
Servidad pass the hut where he was staying as they walked towards the kamalig of
Fernando Sardoma.[13] Factao was carrying a garand, although the other two were
unarmed.[14] Labrado looked on as Factao peeped into the kamalig, aimed and
fired.[15] Factao and Labrado then ran towards the river while Servidad separated
from the two.[16]
Inside the kamalig, Eduardo Sardoma was conversing with Rolando
Nierves, Noel Serrano and Fernando Sardoma.[17] The latter was on the floor lying
on his side.[18] Suddenly, Eduardo heard an explosion.[19] Immediately, he went
outside and saw Tirso Servidad bending his body forward and moving his head
sideways.[20] Eduardo quickly wrapped his arms around Tirso. Eduardo also
espied Juan Factao, who was carrying a garand, and Albert Francis Labroda
running from the scene.[21]
Eduardo then heard Fernando Sardoma pleading for help.[22] Fernando
said he had been shot and asked to be brought to the hospital.[23] Eduardo went
back inside the hut, where he found Fernando bathing in his own blood.[24]
The same bloody sight greeted Vicente Manolos when he reached the
hut.[25] He cuddl ed Fernando and pushed i nsi de the vi cti m' s protruding
intestines.[26] Vicente, Eduardo, Jose Manuel and Rolando Nierves loaded
Fernando into a jeep and rushed him to the hospital.[27] Their efforts were for
naught, however, as Fernando was already dead upon arrival at the Pedro Trono
Memorial Hospital in Guimbal, Iloilo.[28]
The autopsy conducted by Dr. Irene Escanlar, Medical Officer III of said
hospital, revealed that the victim sustained a gunshot wound at the eleventh
left intercostal space with exit at the right hypochondriac area.[29] The bul l et
perforated the l eft l ower l obe of the l ung, the pancreas, the whole lobe of
the liver and the right diaphragm.[30] The bullet also caused a fracture on the
right tenth and eleventh ribs.[31]

Hypovolemic shock or massive blood loss,
secondary to the rupture of the liver, was the victim's immediate cause of
death.[32] According to Dr. Escanlar, Fernando probably had his side towards the
assailant when he was shot.[33] Dr. Escanlar reduced her findings in a Post
Mortem Report.[34]
The police investigation resulted in the apprehension of Juan Factao,
Albert Francis Labroda and Tirso Servidad. The three were subsequently charged with
Murder in an Information reading:
That on or about the 23
rd
day of August, 1991, in the Municipality of San
Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, conspiring, confederating and mutually
helping one another to better realize their purpose, with deliberate intent and
decided purpose to kill, armed with Garand, US Rifle Caliber .30 M1, with treachery
and evident premeditation and without any justifiable cause or motive, did then
and there, willfully, unlawfully and feloniously assault, attack and shoot one
FERNANDO SARDOMA with the weapon they were then provided, inflicting upon
their said victim gunshot wound on the vital part of his body which caused the
immediately (sic) and instantaneous death of said Fernando Sardoma.
CONTRARY TO LAW.[35]
When arraigned, all three accused pleaded not guilty.[36] Trial ensued,
during which the prosecution offered the testimonies of Jose Manuel Sermona,
Eduardo Sardoma, Vicente Manolos and Dr. Irene Escanlar. The prosecution
witnesses testified to the foregoing narration.
The accused denied any participation in the killing of Fernando Sardoma. They
invoked alibi as their defense.
Factao and Labrado, both members of the Citizens Armed Forces Geographical
Unit (CAFGU), claimed that at the time of the incident they, along with Noel
Lupase and Carlos Garcia, were celebrating the birthday of Labroda in the latter's
house.[37] The party ended at around 10:00 p.m.[38] Thereafter, Carlos Garcia
repaired to his home while Juan Factao returned to camp.[39] Noel Lupase, who
corroborated Labroda and Factao's presence at the party,[40] spent the
night at Labroda's house.[41] They learned about the tragedy only the following
day.[42]
Factao and Labrado, suspected that the victim's companions, the principal
prosecution witnesses, were sympathizers of the New People's Army (NPA).[43]
Factao also imputed ill motive on prosecution witness Vicente Manolos with whom he
had a quarrel during a basketball game five days before the killing of Fernando
Sardoma.[44]
Accused Servidad, also a CAFGU member,[45] presented a different account
of his whereabouts. Servidad was on his way home when he met Sirawagan
Barangay Captain Faustino Nierves at about 8:30 in the evening of 23 August
1991.[46] The two then heard an explosion from the direction of the
seashore.[47] Barangay Captain Nierves instructed Servidad to investigate the
explosion.[48]
Some ten meters from Fernando's hut, Servidad came upon Rolando
Nierves and Vicente Manalos,[49] and inquired about the explosion.[50] Rolando
and Vicente replied that Fernando had been shot.[51] Servidad asked them to
call for other people to help bring Fernando to the hospital.[52] Servidad then
proceeded to the kamalig and peeped through the door.[53] Inside, he saw a
bleeding Fernando.[54]

Servi dad asked peopl e to hel p hi m l i ft Fernando to
the jeep.[55] Thereafter, he headed back home.[56]
Servidad denied being with Factao and Labroda on that fateful eveni ng or
that Eduardo Sardoma grabbed hi m ri ght af ter the explosion.[57] Servidad
said he was not in good terms with prosecution wi tnesses Eduardo Sardoma
and Jose Manuel Sermona, whom he suspected were NPA sympathizers.[58]
He denied harboring a grudge against the victim, who he claimed was a good
friend.[59]
Servidad's alibi was corroborated by Barangay Captain Nierves, who
testified having met Servidad right before the explosion, and instructing the latter
to investigate the incident.[60] Later that evening, Servidad informed him that
Fernando Sardoma had been shot[61]
The defense also presented Juan Roweno Secuban, likewise a CAFGU
member, whose testimony was offered to disprove that the killing of Fernando
Sardoma was in retaliation for Secuban's hacking.[62]

According to Secuban, he
was hacked by a certain Ronaldo San Miguel over a girl they were both
courting.[63] Fernando, allegedly a witness to the incident, even executed an
affidavit in favor of Secuban.[64]
On July 14, 1995, the Regional Trial Court (RTC) of Iloilo City, Branch 25,
rendered judgment finding all three accused guilty of Murder and sentencing them
to suffer the penalty of reclusion perpetua. The dispositive portion of the Decision
reads as follows:
WHEREFORE, premi ses consi dered and fi ndi ng the accused, Juan Factao
alias "Boyet," Albert Francis Labroda alias "Abet" and Tirso Servidad, guilty of
murder as charged beyond the shadow of doubt, they are hereby sentenced to
suffer the invisible (sic) penalty of Reclusion Perpetua, plus the accessory penalties
as provided under Article 41 of the Revised Penal Code, and moreover, they
are ordered to indemnify the family of the victim the amount of P50,000.00 to
reimburse the family the amount of P10,000.00 for the coffin and another
P10,000.00 as expenses for the funeral and wake, and to pay the attorney's fee
of P9,000.00 and the cost. At the time the crime was committed the death
penalty was not yet restored, hence it cannot be imposed in this case.
SO ORDERED.[65]
From this Decision, the accused have appealed.
The Court entertains no doubt that appellants Juan Factao and Albert
Francis Labroda are guilty of the slaying of Fernando Sardoma. Prosecution witness
Vicente Manolos unerringly pointed to the two as the perpetrators of the crime:
Q: At around that time while you were defecating beside the boat
can you tell the Court if there was any unusual incident that
happened?
A: Yes, sir.
Q; Will you please tell the Court what was the incident about?
A: I saw two men approaching the hut of Fernando Sardoma.
Q: Now, can you identify these two persons which you said were
approaching the hut of Fernando Sardoma?
A: Yes, sir.
Q: Please tell the court the names.
A: Juan Factao alias Boyet and Albert Francis Labroda.
.
Q: At that ti me that you saw Juan Factao was he carryi ng
something?
A: Yes, sir.
Q: Can you please tell the court was he was carrying?
A: A long firearm.
Q: Can you identify that firearm?
A: Yes, it was agaran (sic).
Q: Now, thereafter, what did Juan Factao and Albert Labroda do?
A: They went nearer the hut of Fernando Sardoma. When they
were near al ready I saw Al bert Franci s Labroda l ooki ng
around seemi ngl y tryi ng to fi nd out i f there are peopl e
around.
Q: What about Juan Factao, what did he do?
A: Looking stilthelly (sic), towards the hut of Fernando Sardoma.
.
Q: Was Juan Factao able to reach the hut of Fernando Sardoma?
A: Yes, sir.
Q: When he arri ved to the hut of Fernando Sardoma do you
know what he did?
A: Yes, sir.
Q: Please tell the court.
A: He first peep (sic) or took a look inside and afterwards aimed the
firearm at a hole because the hut is filled with holes, and then
fired the shot.
Q: After firing the shot, what did Jun Factao do, if any?
A: They ran away.
.
Q: What about Albert Francis Labroda did (sic) know where he went?
A: They escaped together.[66]
Vicente's foregoing testimony was corroborated by Jose Manuel Sermona.
Conspi racy between appel l ants Factao and Labrado was adequately
established. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.[67] It is not
necessary, however, that conspiracy be proved by direct evidence of a prior
agreement to commit the crime. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated or inferred from the acts of the
accused which show a joint or common purpose and design, a concerted action
and a community of interest among the accused.[68]
Whi l e there i s no di rect evi dence to show that Factao and Labroda
agreed to commit the crime, the acts of Factao and Labroda immediately before
and after the shooting evince a commonality in design sufficient to make
them co-principals to the killing. Vicente Manolos testified that as Factao
prepared to shoot Fernando, Labrado was looking around to see if anyone else
was about.[69] Thereafter, the two fled together, running in the same
direction, a fact to which Jose Manuel Sermona[70] and Eduardo Sardoma[71] also
testified.
The alibi of appellants Factao and Labroda cannot prosper in the face of the
positive identification by prosecution witnesses Vicente Manolos and Jose Manuel
Sermona, who were both familiar with the two appellants. Alibi, which is easy to
concoct, cannot prevail over positive identification.[72]
Moreover, for their alibi to prosper, the accused must not only prove that
they were somewhere else when the offense was committed, but also that they
were so far away that they could not have been physically present at the
scene of the crime or its immediate vicinity at the time of its commission.[73]
Appellants Factao and Labroda utterly failed to prove that it was physically
impossible for them to be present at the scene of the cri me at the ti me of i ts
commi ssi on. Factao and Labroda themselves testified that they were at the
house of Labroda to celebrate the latter's birthday on 23 August 1991 at
approximately the same time that Fernando Sardoma was killed.[74] Labroda's
house was just more than a kilometer away from the place where the crime was
committed, or approximately thirty (30) minutes on foot.[75] Evidently, the
accused-appellants were in a place near the crime scene.
On the other hand, the prosecution failed to establish appellant Tirso
Servidad's guilt beyond reasonable doubt. Vicente Manolos testified that he
saw only Juan Factao and Albert Labroda at the scene of the cri me. On di rect
exami nati on, he di d not menti on appel l ant Servidad at all.
Q- Now, can you identify these two person[s] which you said were
approaching the hut of Fernando Sardoma?
A- Yes, sir.
Q- Please tell the Court their names?
A- Juan Factao alias Boyet and Albert Francis Labroda.[76]
On cross-examination, the witness adverted to appellant Tirso Servidad
but only because the private prosecutor mentioned his name. Moreover, he
confirmed the fact that he did not see the appellant Servidad at the same
time that he saw the other two appellants.
Q- You mean to say that you have not seen or meet (sic) this Tirso
Servidad in the evening of August 23, 1991?
.
A- Yes, sir.
Q- Where?
A- Outside the hut, I heard his voice.
Q- You mean to say that you only heard the voice of this Tirso
Servidad, is that what you mean?
A- Yes, sir. But when we were carrying Fernando Sardoma, I
noticed him. Later, I lost sight of him.
.
Q- But at the time you were then relieving yourself at the seashore
near the fishing boat you have not seen Tirso Servidad with
Juan Factao and Francis Albert Labroda, is that correct?
A- No. I saw only both of them.[77] (Underscoring supplied.)
Vicente's testimony contradicts that of Jose Manuel Sermona, who allegedly
saw Servidad with Factao and Labroda going to Fernando's hut. Jose Manuel
claimed that Servidad allegedly separated from the other two and went to the
front door, which was facing the seashore:
Q: Have you gone to the hut of Fernando Sardoma before 23 August
1991?
A: Yes, sir.
.
Q: Can you tell this Honorable Court, if you were familiar of (sic) that
hut of Hernando (sic) Sardoma where you went inside on August
23, 1991?
A: Yes, sir.
Q: Can you tell the Honorable Court how many doors this
"kamalig" of Hernando (sic) Sardoma has?
A: Only one door.
Q: And this door of the "kamalig" of Hernando (sic) Sardoma, is it
facing the seashore or not?
A: Facing the seashore.[78]
The front of the door where Jose Manuel allegedly saw Servidad, however, was
only about four to five meters away from where Vicente Manolos was defecating.
Yet Vicente categorically stated that he did not see Servidad as Factao fired the
fatal shot.[79]
These irreconcilable discrepancies in the testimonies of the two prosecuti on
wi tnesses cast doubt on the cul pabi l i ty of appel l ant Servidad.
Eduardo Sardoma's claim that he caught Servidad peeping into the hut as
Factao and Labroda were fl eei ng defi es human nature. If Servidad were
at all present at the time of the shooting and conspired with his co-appellants
to kill Fernando Sardoma, he would have immediately fled from the scene with his
cohorts once the criminal deed was done. But as the defense would have it, Servidad
separated form the other appellants and worst, even linger at the crime scene
and risked arrest.
Senior Inspector Bonifacio Servano also said that he saw Tirso sometime after
the killing, some distance from the crime scene:
Q- When you arrived at the place of the incident at around 9:25 in the
evening on August 23, 1991 together with two (2) policemen,
you saw Tirso Servidad in the place of the incident?
A- Yes, sir.
.
Witness: Correction please, your honor, I saw or met him but
outside the place of the incident about 200 meters from the national
highway of Brgy. Siwaragan.
Q- Was he running or walking?
A- He was walking and he stop (sic) when he saw me and saluted
me.[80]
Servidad's behavior in nonchalantly greeting no less than the Chief of Police
is unusual for one who had just killed a fellow human being. Again, as correctly
pointed out by the defense, it is contrary to human experience for a guilty person,
right after the commission of a crime, to roam the streets within the vicinity of
the crime scene where police authorities could easily apprehend him.[81]
Even if Servidad were indeed present at the scene during the shooting,
such fact by itself would not render him criminally liable. The mere presence of a
person at the scene of the crime does not make him a co-conspirator.[82]
The prosecution did not offer any evidence that Servidad performed any act
from which his conspiracy to the crime may be deduced.
In the face of the contradicting and unbelievable testimonies of the
prosecution witnesses, the alibi of appellant Servidad assumes strength and
significance. According to appellant, he was on his way home when he met
Sirawagan Barangay Captain Faustino Nierves at the precise time of the
explosion,[83] a fact corroborated by the Barangay Captain himself.[84] No
ill motive has been attributed for this witness, a public officer, to testify falsely.
The crime committed by appellants Factao and Labroda is Murder, the killing
being qualified by treachery. There is treachery when the offender commits any of
the crimes against persons, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offended party might
make.[85] Treachery attended the killing of the victim Fernando Sardoma, where
his assailant Factao first peeped into the bamboo wall, inserted the rifle through the
bamboo wall and shot Fernando, who was then lying on his side in the
relative security of his hut, utterly defenseless and completely unaware of the
impending attack.
Evident premeditation, although alleged in the information, was not
adequately proven. The essence of evident premeditation is that the execution of the
criminal act is preceded by cool thought and reflection upon the resol uti on to
carry out the cri mi nal i ntent wi thi n a space of time sufficient to arrive at
a calm judgment.[86] The elements of evident premeditation are: (1) the
time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit has clung to his resolve; and (3) a sufficient interval of
time between the determination or concepti on and the executi on of the cri me
to al l ow hi m to refl ect upon the consequence of hi s act and to al l ow hi s
consci ence to overcome the resol uti on of hi s wi l l i f he desi red to
hearken to i ts warning.[87] Where, as in this case, there is no evidence as to how
and when the plan to kill was decided and what time had elapsed before it
was carri ed out, evi dent premedi tati on cannot be consi dered an
aggravating circumstance.[88]
The tri al court rul ed that the aggravati ng ci rcumstances of
nighttime and dwelling attended the killing. Nighttime, as a rule, is absorbed in
treachery, and should not have been appreciated.[89] The killing, however,
was committed in the dwelling of the victim, who did not give any provocation
therefor.[90] This aggravating circumstance was, therefore, correctly
appreciated.
At the ti me of the commi ssi on of the offense, Murder was punishable
by reclusion temporal maximum to death.[91] As there is no mitigating
circumstance, and one aggravating circumstance, the maximum of the
penalty should be imposed,[92] but as the death penalty was then suspended. At
the time of the commission of the offense, only the penalty of reclusion perpetua
may be meted upon appellants.[93]
In accordance with prevailing jurisprudence,[94] appellants Factao and
Labrado are each liable to pay the heirs of the victim Fernando Sardoma
P50,000.00 as civil indemnity. Exemplary damages in the amount of P25,000.00
should also be awarded to said heirs because of the presence of aggravating
circumstances.[95]
While Fernando Sardoma's widow Virgilia testified that she incurred
P30,000.00 in expenses for her late husband's two-week wake,[96]

apart from the
coffin, which cost P10,000.00, including the service,[97] such testimony was not
supported by a single receipt. Accordingly, the award of P10,000.00 for the coffin
and another P10,000.00 for the wake and funeral expenses by the RTC is
deleted.[98] However, they may be awarded temperate damage of P25,000.00
from each guilty appellant[99]
The widow Virgilia also said she spent P9,500.00 for a private prosecutor, to
whom she still owes another P1,500.00.[100] Again, this amount i s not borne by
any recei pt or agreement i n evi dence. Nevertheless, the Court, in light of the
award of exemplary damages, sustains the grant by the RTC of P9,000.00 as
attorney's fees.[101]
WHEREFORE, appel l ants Juan Factao and Al bert Franci s Labroda
are found GUILTY of the crime of Murder and are sentenced to suffer the penalty of
reclusion perpetua. They are each ordered to pay the heirs of the victim Fernando
Sardoma the amounts of P50,000.00 as civil indemnity, P25,000.00 as exemplary
damages, P25,000.00 as temperate damages and P9,000.00 as attorney's fees.
For failure of the prosecution to establish his guilt beyond reasonable doubt,
appellant Tirso Servidad is ACQUITTED. The Director of Prisons is ordered to
cause his immediate release, unless he is being held for some other lawful
cause, and to inform this Court of such action within five days from receipt of this
Decision.
PEOPLE OF THE PHILIPPINES, G.R. No. 153875
Plaintiff-Appellee,
Present:


- versus -
PANGANIBAN, C.J.,
(Chairperson)
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,

ROLANDO DAGANI y REYES
CALLEJO, SR. and
CHICO-NAZARIO, JJ.
and OTELLO SANTIANO Y
LEONIDA, Promulgated:
Accused-Appellants. August 16, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


AUSTRIA-MARTINEZ, J.:


For revi ew bef ore the Court i s the Deci si on dated June 20,
2002[1] of the Court of Appeal s (CA) whi ch af f i rmed the Deci si on of
the Regi onal Tri al Court of the Ci ty of Mani l a, Branch 12 (RTC), dated
February 18, 1993, i n Cri mi nal Case No. 89-77467, f i ndi ng the
accused-appel l ants Otel l o Santi ano y Leoni da (Santi ano) and Rol ando
Dagani y Reyes (Dagani ) gui l ty of the cri me of Murder.



The accusatory porti on of the Inf ormati on reads:

That on or about September 11, 1989, i n the
Ci ty of Mani l a, Phi l i ppi nes, the sai d accused conspi ri ng
and conf ederati ng together and mutual l y hel pi ng each
other di d then and there, wi l l f ul l y, unl awf ul l y and
f el oni ousl y, wi th i ntent to ki l l , evi dent premedi tati on
and treachery, attack, assaul t and use of personal
vi ol ence upon one ERNESTO JAVIER Y FELIX by then
and there shooti ng hi m wi th a .38 cal i ber revol ver,
thereby i nf l i cti ng upon the sai d ERNESTO JAVIER Y
FELIX mortal gunshot wounds whi ch were the di rect
and i mmedi ate cause of hi s death thereaf ter.

CONTRARY TO LAW.[2]


Upon arrai gnment, the appel l ants pl eaded not gui l ty. Tri al
ensued where the prosecuti on adduced evi dence to establ i sh the
f ol l owi ng:

At about 4:45 i n the af ternoon of September 11, 1989, a group
composed of Ernesto Javi er (Javi er), Li ncol n Mi ran (Mi ran), and two
other i ndi vi dual s had been dri nki ng at the canteen l ocated i nsi de the
compound of the Phi l i ppi ne Nati onal Rai l ways (PNR) al ong C.M. Recto
Avenue, Tondo, Mani l a. Al l of a sudden, appel l ants, who were securi ty
of f i cers of the PNR and covered by the Ci vi l Servi ce Rul es and
Regul ati ons, entered the canteen and approached the group. Appel l ant
Dagani shoved Mi ran, causi ng the l atter to f al l f rom hi s chai r. Dagani
then hel d Javi er whi l e Santi ano shot Javi er twi ce at hi s l ef t si de, ki l l i ng
the l atter.

The def ense proceeded to prove thei r versi on of the f acts:



Appel l ants testi f i ed that they were ordered by thei r desk of f i cer
to i nvesti gate a commoti on at the canteen. Upon reachi ng the pl ace,
Santi ano ordered hi s co-accused, Dagani , to enter, whi l e the f ormer
wai ted outsi de.

Dagani approached Javi er who had been stri ki ng a bottl e of beer
on the tabl e. Javi er then pul l ed out a .22 cal i ber revol ver and
attempted to f i re at Dagani , but the gun f ai l ed to go of f . Then
suddenl y, whi l e outsi de the canteen, Santi ano heard gunf i re and, f rom
hi s vantage poi nt, he saw Javi er and Dagani grappl i ng f or a .22 cal i ber
gun whi ch bel onged to Javi er. Duri ng the course of the struggl e, the
gun went of f , f orci ng Santi ano to f i re a warni ng shot. He heard
Javi er s gun f i re agai n, so he deci ded to rush i nto the
canteen. Santi ano then shot Javi er f rom a di stance of l ess than f our
meters.

Appel l ants i nvoked the j usti f yi ng ci rcumstances of sel f -def ense
and l awf ul perf ormance of of f i ci al duty as PNR securi ty of f i cers. They
al so argued that the prosecuti on f ai l ed to establ i sh treachery and
conspi racy.

The RTC rendered i ts Deci si on, the di sposi ti ve porti on of whi ch
reads:

WHEREFORE, f i ndi ng both accused Otel l o
Santi ano y Leoni da and Rol ando Dagani y Reyes gui l ty
beyond reasonabl e doubt of the cri me of Murder
def i ned and puni shed under Art. 248, RPC, wi th the
presence of the mi ti gati ng ci rcumstance of vol untary
surrender and granti ng them the benef i t of [the]
Indetermi nate Sentence Law, both accused are hereby
sentenced to each suf f er an Indetermi nate pri son term
of TEN (10) YEARS and ONE (1) DAY of pri si on mayor
as mi ni mum, to EIGHTEEN (18) YEARS and ONE (1)
DAY of recl usi on temporal x x x.





Both accused are hereby ordered to i ndemni f y
the hei rs of the vi cti m the sum of P50,000.00 as death
i ndemni ty, the sum of P31,845.00 as f uneral and buri al
expenses, the sum of
P30,000.00 as and f or [si c] attorney s f ees and the
f urther sum of P1,000.00 per appearance of counsel .

Both accused shal l be credi ted wi th the f ul l
extent of thei r preventi ve i mpri sonment. Both accused
are hereby commi tted to the Di rector, Nati onal
Peni tenti ary, Munti nl upa, Metro Mani l a f or servi ce of
Sentence.

SO ORDERED.[3]


In bri ef , the RTC hel d that appel l ants f ai l ed to prove that
Javi er attempted to squeeze the tri gger of the .22 cal i ber gun when he
poi nted i t at Dagani ; that duri ng the course of the struggl e f or the
possessi on of the .22 cal i ber gun, the danger to the l i f e of the accused
ceased to be i mmi nent; that i n grappl i ng f or the weapon, Dagani
control l ed the hands of Javi er and pushed them away f rom hi s body;
that the appel l ants f ai l ed to produce the two empty shel l s as physi cal
evi dence of the gunf i re al l egedl y caused by Javi er; that no poi nts of
entry or bul l et marki ngs on the wal l s of the canteen were shown; that,
i n l i ght of these f i ndi ngs, no unl awf ul aggressi on was present on the
part of the vi cti m; that the appel l ants f ai l ed to prove that they were
on of f i ci al duty at the ti me of the i nci dence; that, si nce i t was not
establ i shed that Javi er actual l y f i red hi s gun, the i nj ury i nf l i cted upon
hi m cannot be regarded as a necessary consequence of the due
perf ormance of an of f i ci al duty; that the appel l ants were acti ng i n
conspi racy; that the qual i f yi ng ci rcumstance of treachery attended the
ki l l i ng, consi deri ng that Javi er had been shot whi l e hi s hands were
bei ng hel d by Dagani and as hi s body was out of bal ance and about to
f al l ; and that the mi ti gati ng ci rcumstance of vol untary surrender
shoul d be appreci ated i n f avor of the appel l ants.

The appel l ants appeal ed to the CA and assi gned the f ol l owi ng
errors:
I

THE LOWER COURT GRAVELY ERRED IN NOT
APPRECIATING SELF DEFENSE ON THE PART OF THE
ACCUSED.

II

THE LOWER COURT ERRED WHEN IT FAILED TO
CONSIDER THE FACT THAT THE ACCUSED-APPELLANTS
WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.

III

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN
RULING THAT THERE WAS CONSPIRACY.

IV

THE LOWER COURT GRAVELY ERRED IN FINDING THAT
THE PROSECUTION WAS ABLE TO ESTABLISH BEYOND
REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY
OF MURDER.[4]


The CA rendered i ts Deci si on, the di sposi ti ve porti on of whi ch
states:

WHEREFORE, the appeal ed j udgment of
convi cti on i s MODIFIED. Appel l ants are hereby
sentenced to recl usi on perpetua. The award f or
attorney s f ees and appearance f ees f or counsel are
hereby del eted. In al l the other aspects, the appeal ed
deci si on i s mai ntai ned.

Let the enti re records of the case be el evated
to the Supreme Court f or the mandated revi ew.

SO ORDERED.[5]


The CA af f i rmed the f i ndi ngs of f act as wel l as the sal i ent
porti ons of the RTC Deci si on, but del eted the award of attorney s
f ees and the per appearance f ees of counsel si nce, the

CA reasoned, the i nstant case i s cri mi nal i n nature whi ch i s under the
control of the publ i c prosecutor, and, addi ti onal l y, the RTC f ai l ed to
j usti f y thi s award i n the body of i ts Deci si on. And l ast, the CA f ound
that the RTC erroneousl y appl i ed the Indetermi nate Sentence Law si nce
the penal ty f or Murder, at the ti me of the i nci dent, was recl usi on
perpetua whi ch i s an i ndi vi si bl e penal ty to be i mposed i n i ts enti rety,
regardl ess of the attendi ng mi ti gati ng ci rcumstance of vol untary
surrender.

Appel l ants are now bef ore thi s Court submi tti ng f or resol uti on
the same matters argued bef ore the CA. Through thei r Mani f estati on
dated February 11, 2003, [6] appel l ants prayed to di spense wi th the
f i l i ng of addi ti onal bri ef s.

As of date, the records show that despi te the ef f orts exerted by
the surety and the responsi bl e l aw of f i cers to l ocate the appel l ants,
the l atter coul d not be f ound and have j umped bai l .[7]

The appeal i s partl y meri tori ous.

Appel l ants argue that the courts a quo mi sappreci ated the f acts
and erred i n f i ndi ng that there was no unl awf ul aggressi on on the part
of the vi cti m. They i nsi st that the vi cti m, Javi er, had been armed wi th
a revol ver at the ti me he was struggl i ng wi th appel l ant Dagani ; that
the f ormer coul d have easi l y ki l l ed the l atter; that, gi ven the f act
that Javi er had been dri nki ng, i t i s qui te probabl e f or Javi er to act
harshl y and aggressi vel y towards



peace of f i cers such as the accused;[8] and that Javi er actual l y f i red
three shots f rom hi s .22 cal i ber gun.[9]

We are not convi nced.

When sel f -def ense i s i nvoked, the burden of evi dence shi f ts to
the accused to show that the ki l l i ng was l egal l y j usti f i ed. Havi ng
owned the ki l l i ng of the vi cti m, the accused shoul d be abl e to prove to
the sati sf acti on of the Court the el ements of sel f-def ense i n order to
avai l of thi s extenuati ng ci rcumstance. He must di scharge thi s burden
by cl ear and convi nci ng evi dence. When successf ul , an otherwi se
f el oni ous deed woul d be excused, mai nl y predi cated on the l ack of
cri mi nal i ntent of the accused. Sel f -def ense requi res that there be (1)
an unl awf ul aggressi on by the person i nj ured or ki l l ed by the of f ender,
(2) reasonabl e necessi ty of the means empl oyed to prevent or repel
that unl awf ul aggressi on, and (3) l ack of suf f i ci ent provocati on on the
part of the person def endi ng hi msel f . Al l these condi ti ons must
concur.[10]

Unl awf ul aggressi on, a pri mordi al el ement of sel f -def ense,
woul d presuppose an actual , sudden and unexpected attack or
i mmi nent danger on the l i f e and l i mb of a person not a mere
threateni ng or i nti mi dati ng atti tude[11] but most i mportantl y, at the
ti me the def ensi ve acti on was taken agai nst the aggressor.[12] To
i nvoke sel f -def ense successf ul l y, there must have been an

unl awf ul and unprovoked attack that endangered the l i f e of the
accused, who was then f orced to i nf l i ct severe wounds upon the
assai l ant by empl oyi ng reasonabl e means to resi st the attack.[13]

In the i nstant case, the asserti ons that i t was qui te probabl e
that Javi er, duri ng the course of the struggl e f or the f i rearm, coul d
have easi l y ki l l ed the appel l ants are uncertai n and specul ati ve. There
i s aggressi on i n contempl ati on of the l aw onl y when the one attacked
f aces real and i mmedi ate threat to one s l i f e. The peri l sought to be
avoi ded must be i mmi nent and actual , not j ust specul ati ve. [14]

To sum up the matter, we quote the f i ndi ngs of the CA:

The def ense was unabl e to prove that there
was unl awf ul aggressi on on the part of Javi er. They
were unabl e to present evi dence that the vi cti m
actual l y f i red hi s gun. No spent shel l s f rom the .22
cal i ber pi stol were f ound and no bul l ets were recovered
f rom the scene of the i nci dent. Javi er al so tested
negati ve f or gunpowder resi due. Moreover, the tri al
court f ound appel l ant Dagani s account of the i nci dent
to be i ncredi bl e and sel f -servi ng. In sum, the def ense
presented a bare cl ai m of sel f-def ense wi thout any
proof of the exi stence of i ts requi si tes. [15]

Even i f i t were establ i shed that Javi er f i red hi s gun as the
appel l ants so i nsi st, the i mmi nence of the danger to thei r l i ves had
al ready ceased the moment Dagani hel d down the vi cti m and grappl ed
f or the gun wi th the l atter. Af ter the vi cti m had been thrown of f -
bal ance, there was no l onger any unl awf ul aggressi on



that woul d have necessi tated the act of ki l l i ng. [16] When an
unl awf ul aggressi on that has begun no l onger exi sts, the one who
resorts to sel f -def ense has no ri ght to ki l l or even to wound the f ormer
aggressor.[17] When Javi er had been caught i n the struggl e f or the
possessi on of the gun wi th appel l ant Dagani , the grave peri l envi saged
by appel l ant Santi ano, whi ch i mpel l ed hi m to f i re at the vi cti m, had
then ceased to a reasonabl e extent, [18] and undoubtedl y, Santi ano
went beyond the cal l of sel f -preservati on when he proceeded to i nf l i ct
the excessi ve and f atal i nj uri es on Javi er, even when the al l eged
unl awf ul aggressi on had al ready ceased. [19]

The second el ement of sel f -def ense demands that the means
empl oyed to neutral i ze the unl awf ul aggressi on are reasonabl e and
necessary. It i s settl ed that reasonabl e necessi ty of the means
empl oyed does not i mpl y materi al commensurabi l i ty between the
means of attack and def ense. What the l aw requi res i s rati onal
equi val ence.[20] The ci rcumstances i n thei r enti rety whi ch surround
the grappl i ng of the f i rearm by Dagani and Javi er, such as the nature
and number of gunshot wounds sustai ned by the vi cti m[21] whi ch
amounted to two f atal wounds,[22] that
Dagani was abl e to restrai n the hands of Javi er and push


them away f rom hi s body,[23] that Dagani was l arger than Javi er and
had f i ni shed Speci al Weapons and Tacti cs (SWAT) hand-to-
hand combat trai ni ng, [24] and Javi er, as admi tted by the appel l ants,
was i nebri ated at the ti me of the i nci dent,[25] do not j usti f y appel l ant
Santi ano s act of f atal l y shooti ng the vi cti m twi ce.[26]

Al l thi ngs consi dered, the appel l ants pl ea of sel f -def ense i s
not corroborated by competent evi dence. The pl ea of sel f -def ense
cannot be j usti f i abl y entertai ned where i t i s not onl y uncorroborated by
any separate competent evi dence but i s i n i tsel f extremel y
doubtf ul .[27] Whether the accused acted i n sel f -def ense i s a questi on
of f act. Li ke al i bi , the af f i rmati ve def ense of sel f-def ense i s i nherentl y
weak because, as experi ence has demonstrated, i t i s easy to f abri cate
and di f f i cul t to di sprove. [28] Thi s Court, theref ore, f i nds no reversi bl e
error on the part of the courts a quo i n rej ecti ng the cl ai m of sel f-
def ense.

Appel l ants set up the def ense that they were i n the l awf ul
perf ormance of thei r of f i ci al duti es. They speci f i cal l y aver that they
had been ordered by thei r desk of f i cer to proceed to the canteen i n
response to a tel ephone cal l stati ng that there was a group creati ng
troubl e; that they were i n the cal l of duty and exerci si ng thei r
f uncti ons and responsi bi l i ti es as members of the
PNR Ci vi l Securi ty Of f i ce to preserve peace and order and



protect the l i ves and property i n the PNR Compound;[29] and that,
i nvoki ng j uri sprudence, as securi ty of f i cers i n the perf ormance of duty,
l i ke the pol i ce, they must stand thei r ground and overcome the
opponent, and the f orce that may be exerted must di f f er f rom that
whi ch ordi nari l y may be of f ered i n sel f -def ense.[30]

Arti cl e 11 of the Revi sed Penal Code provi des that a person
who acts i n the f ul f i l l ment of a duty or i n the l awf ul exerci se of a ri ght
or of f i ce does not i ncur any cri mi nal l i abi l i ty. Two requi si tes must
concur bef ore thi s def ense can prosper: 1) the accused must have
acted i n the perf ormance of a duty or i n the l awf ul exerci se of a ri ght
or of f i ce; and 2) the i nj ury caused or the of f ense commi tted shoul d
have been the necessary consequence of such l awf ul
exerci se.[31] These requi si tes are absent i n the i nstant case.

As f ound by the CA:

The def ense f ai l ed to prove that the securi ty
of f i cers were i n f act on duty at the ti me they were at
the canteen. The tri al court gave wei ght to the f act
that the appel l ants were unabl e to submi t thei r dai l y
ti me records to show that they were on duty at the
ti me. Appel l ants asserti on that they were ordered to
go on 24-hour duty was bel i ed by PNR Securi ty
Investi gator Rol ando Mari nay s testi mony that PNR
securi ty of f i cers work i n two 12-hour shi f ts, f rom 7:00
a.m. to 7:00 p.m. and f rom 7:00 p.m. to 7:00 a.m.

Moreover, si nce i t was not establ i shed that
Javi er f i red hi s gun, the i nj ury i nf l i cted upon hi m
cannot be regarded as a necessary consequence of
appel l ants due perf ormance of an of f i ci al duty. [32]



As stated, consi deri ng that the i mmi nent or actual danger to
the l i f e of the appel l ants had been neutral i zed when Dagani grappl ed
wi th Javi er and restrai ned hi s hands; that Javi er had been thrown of f -
bal ance; that Dagani had been speci al l y trai ned f or these purposes;
and that Javi er had been dri nki ng i mmedi atel y pri or to the scuf f l e, thi s
Court hol ds that the f atal i nj uri es that appel l ant Santi ano i nf l i cted on
the vi cti m cannot be deemed to be necessary consequences of the
perf ormance of hi s duty as a PNR securi ty of f i cer. [33] Whi l e i t i s
recogni zed that pol i ce of f i cers i f i ndeed the appel l ants can be l i kened
to them must stand thei r ground and overwhel m thei r opponents, i n
Peopl e v. Ul ep,[34] thi s Court counsel ed:

The ri ght to ki l l an of f ender i s not absol ute,
and may be used onl y as a l ast resort, and under
ci rcumstances i ndi cati ng that the of f ender cannot
otherwi se be taken wi thout bl oodshed. The l aw does
not cl othe pol i ce of f i cers wi th authori ty to arbi trari l y
j udge the necessi ty to ki l l . It may be true that pol i ce
of f i cers someti mes f i nd themsel ves i n a di l emma when
pressured by a si tuati on where an i mmedi ate and
deci si ve, but l egal , acti on i s needed. However, i t must
be stressed that the j udgment and di screti on of pol i ce
of f i cers i n the perf ormance of thei r duti es must be
exerci sed nei ther capri ci ousl y nor oppressi vel y, but
wi thi n reasonabl e l i mi ts. In the absence of a cl ear and
l egal provi si on to the contrary, they must act i n
conf ormi ty wi th the di ctates of a sound di screti on, and
wi thi n the spi ri t and purpose of the l aw. We cannot
countenance tri gger-happy l aw enf orcement of f i cers
who i ndi scri mi natel y empl oy f orce and vi ol ence upon
the persons they are apprehendi ng. They must al ways
bear i n mi nd that al though they are deal i ng wi th
cri mi nal el ements agai nst whom soci ety must be
protected, these cri mi nal s are al so human bei ngs wi th
human ri ghts.[35]


But thi s Court cannot agree wi th the f i ndi ngs of the courts a
quo that the appel l ants were i n conspi racy.



The RTC si mpl y hel d:

The Inf ormati on ci ted conspi racy of the
accused. Si nce i t can al so be commi tted thru
si mul taneous/concerted acti on and consi deri ng that
Javi er was shot by Santi ano whi l e bei ng hel d by
Dagani , under j uri sprudence, conspi racy i s
present.[36]


The tenor of the f actual f i ndi ngs of the CA i s equal l y
unsati sf actory:

Moreover, the f acts show that Javi er was shot by
appel l ant Santi ano as he was bei ng subdued by
appel l ant Dagani . The tri al court hel d that the manner
of the attack was i ndi cati ve of a j oi nt purpose and
desi gn by the appel l ants. [37]


Courts must j udge the gui l t or i nnocence of the accused based
on f acts and not on mere conj ectures, presumpti ons, or
suspi ci ons.[38] Other than the pl ai n f act that the vi cti m had been
shot by one of the accused whi l e bei ng hel d by a co-accused, there i s
no other evi dence that the appel l ants were ani mated by the same
purpose or were moved by a previ ous common accord. It f ol l ows that
the l i abi l i ty of the accused must be determi ned on an i ndi vi dual
basi s. Whi l e no f ormal agreement i s necessary to establ i sh conspi racy
because conspi racy may be i nf erred f rom the ci rcumstances attendi ng
the commi ssi on of the cri me, yet, conspi racy must be establ i shed by
cl ear and convi nci ng evi dence.[39]

Thi s Court has hel d that even i f al l the mal ef actors j oi ned i n
the ki l l i ng, such ci rcumstance al one does not sati sf y
the requi rement of conspi racy because the rul e i s that

nei ther j oi nt nor si mul taneous acti on i s per se suf f i ci ent proo
f of conspi racy. Conspi racy must be shown to exi st
as cl earl y and convi nci ngl y as the commi ssi on of the of f ense
i tsel f .[40] Thus, even assumi ng that Javi er was si mul taneousl y
attacked, thi s does not prove conspi racy. No evi dence was presented
to show that the appel l ants pl anned to ki l l Javi er or that Dagani s overt
acts f aci l i tated that al l eged pl an. The prosecuti on di d not establ i sh
that the act of Dagani i n tryi ng to wrestl e the gun f rom Javi er and i n
the process, hel d the l atter s hands, was f or the purpose of enabl i ng
Santi ano to shoot at Javi er. The prosecuti on had the burden to show
Dagani s i ntenti onal parti ci pati on to the f urtherance of a common
desi gn and purpose[41] or that hi s acti on was al l part of a scheme to
ki l l Javi er. That Dagani di d not expect Santi ano to shoot the vi cti m i s
establ i shed when Santi ano testi f i ed that Dagani seem[ed] to be
shocked, he was standi ng and l ooki ng at the vi cti m as Javi er gradual l y
f el l to the ground.[42] And si nce Dagani s convi cti on can onl y be
sustai ned i f the cri me had been carri ed out through a conspi racy dul y
proven, i n vi ew of the f ai l ure of the prosecuti on to di scharge that
burden, thi s Court i s constrai ned to acqui t hi m.

And thi s Court cannot say that treachery attended the
attack. The RTC decl ared:

[T]he Court bel i eves that Javi er was shot whi l e hi s
body was out-bal anced and about to f al l to the ri ght
si de and whi l e hi s hands were bei ng hel d by
Dagani . Javi er, theref ore, was shot at when he has no
means to def end hi msel f , hence, the ki l l i ng was
attended by the qual i f yi ng ci rcumstance of
treachery.[43]



whi ch the CA af f i rmed as f ol l ows:

The f i ndi ngs of the court a quo cl earl y showed
that Javi er was bei ng hel d down and coul d not
ef f ecti vel y use hi s weapon. As such, the tri al court
hel d that Javi er coul d not be consi dered to be an
armed man as he was bei ng hel d down and was
vi rtual l y hel pl ess.


It has been hel d that when an assaul t i s made
wi th a deadl y weapon upon an unarmed and
unsuspecti ng vi cti m who [was] gi ven no i mmedi ate
provocati on f or the attack and under condi ti ons whi ch
made i t i mpossi bl e f or hi m to evade the attack, f l ee or
make [a] def ense, the act i s properl y qual i f i ed as
treachery, and the homi ci de resul ti ng theref rom i s
cl assi f i ed as murder.[44] x x x


Treachery under par.16 of Arti cl e 14 of the Revi sed Penal Code i s
def i ned as the del i berate empl oyment of means, methods or f orms i n
the executi on of a cri me agai nst persons whi ch tend di rectl y and
speci al l y to i nsure i ts executi on, wi thout ri sk to the of f ender ari si ng
f rom the def ense whi ch the i ntended vi cti m mi ght rai se. Treachery i s
present when two condi ti ons concur, namel y: (1) that the means,
methods and f orms of executi on empl oyed gave the person attacked no
opportuni ty to def end hi msel f or to retal i ate; and (2) that such means,
methods and f orms of executi on were del i beratel y and consci ousl y
adopted by the accused wi thout danger to hi s person.[45]

Thi s Court has hel d that the suddenness of the attack, the
i nf l i cti on of the wound f rom behi nd the vi cti m, the vul nerabl e posi ti on
of the vi cti m at the ti me the attack was made, or the f act
that the vi cti m was unarmed, do not by themsel ves render the


attack as treacherous.[46] Thi s i s of parti cul ar si gni f i cance i n a case
of an i nstantaneous attack made by the accused whereby he gai ned an
advantageous posi ti on over the vi cti m when the l atter acci dental l y f el l
and was rendered def ensel ess.[47] The means empl oyed f or the
commi ssi on of the cri me or the mode of attack must be shown to have
been consci ousl y or del i beratel y adopted by the accused to i nsure the
consummati on of the cri me and at the same ti me el i mi nate or reduce
the ri sk of retal i ati on f rom the i ntended vi cti m.[48] For the rul es on
treachery to appl y, the sudden attack must have been preconcei ved by
the accused, unexpected by the vi cti m, and wi thout provocati on on the
part of the l atter.[49] Treachery i s never presumed. Li ke the rul es on
conspi racy, i t i s requi red that the manner of attack must be shown to
have been attended by treachery as concl usi vel y as the cri me
i tsel f .[50]

The prosecuti on f ai l ed to convi nci ngl y prove that the assaul t by
the appel l ants had been del i beratel y adopted as a mode of attack
i ntended to i nsure the ki l l i ng of Javi er and wi thout the l atter havi ng
the opportuni ty to def end hi msel f . Other than the bare f act that
Santi ano shot Javi er whi l e the l atter had been struggl i ng wi th Dagani
over the possessi on of the .22 cal i ber gun, no other f act had been
adduced to show that the appel l ants consci ousl y pl anned or
predetermi ned the methods to i nsure the
commi ssi on of the cri me, nor had the ri sk of the vi cti m to

retal i ate been el i mi nated duri ng the course of the struggl e over
the weapon, as the l atter, though struggl i ng, had not been
compl etel y
subdued. As al ready stated, thi s Court must emphasi ze that the
mere suddenness of the attack, or the vul nerabl e posi ti on of the
vi cti m at the ti me of the attack, or yet even the f act that the vi cti m
was unarmed, do not by themsel ves make the attack
treacherous.[51] It must be shown beyond reasonabl e doubt that the
means empl oyed gave the vi cti m no opportuni ty to def end hi msel f or
retal i ate, and that such means had been del i beratel y or consci ousl y
adopted wi thout danger to the l i f e of the accused.[52]

For these reasons, the Court i s i ncl i ned to l ook upon the hel pl ess
posi ti on of Javi er as merel y i nci dental to the attack, and that the
deci si on to shoot Javi er was made i n an i nstant. [53]

Consi deri ng the rul e that treachery cannot be i nf erred but must
be proved as f ul l y and convi nci ngl y as the cri me i tsel f , any doubt as to
i ts exi stence must be resol ved i n f avor of Santi ano. Accordi ngl y, f or
f ai l ure of the prosecuti on to prove treachery to qual i f y the ki l l i ng to
Murder, appel l ant Santi ano may onl y be convi cted of
Homi ci de.[54] The penal ty, theref ore, under Arti cl e 249 of the Revi sed
Penal Code, as amended, i s recl usi on temporal .

The Of f i ce of the Sol i ci tor General i s correct i n that the courts a
quo f ai l ed to consi der the aggravati ng ci rcumstance of

taki ng advantage of of f i ci al posi ti on under Arti cl e 14 (1) of the Revi sed
Penal Code, si nce the accused, a PNR securi ty of f i cer
covered by the Ci vi l Servi ce, commi tted the cri me wi th the ai d
of a gun he had been authori zed to carry as such.[55] Consi
deri ng that the mi ti gati ng ci rcumstance of vol untary surrender, as dul y
appreci ated by the courts a quo, shal l be of f set agai nst the
aggravati ng ci rcumstance of taki ng advantage of of f i ci al posi ti on, the
penal ty shoul d be i mposed i n i ts medi um peri od, pursuant to Arti cl e 64
(4) of the af oresai d Code.

Appl yi ng the Indetermi nate Sentence Law, the sentence of
appel l ant Santi ano wi l l consi st of a mi ni mum that i s anywhere wi thi n
the f ul l range of pri si on mayor, and a maxi mum whi ch i s anywhere
wi thi n recl usi on temporal i n i ts medi um peri od. Thi s Court hereby
f i xes i t to be f rom ei ght (8) years and one (1) day of pri si on mayor as
mi ni mum, to f ourteen (14) years, ei ght (8) months, and one (1) day of
recl usi on temporal , as maxi mum.

As to the award of damages, prevai l i ng j uri sprudence enti tl es the
hei rs of the deceased to the amount of P50,000.00 as ci vi l i ndemni ty
f or the death of the vi cti m wi thout need of any evi dence or proof of
damages.[56]

The CA erred i n del eti ng the attorney s f ees and per
appearance f ees f or l ack of f actual basi s. Al though the CA i s correct i n
noti ng that the RTC f ai l ed to j usti f y these awards i n the body of i ts
Deci si on, thi s appeal opens the enti re case f or revi ew and, accordi ngl y,
the records show that the f oregoi ng

amounts had been sti pul ated by the parti es, [57] thereby di spensi ng
wi th the need to prove the same.[58]

As to moral damages, however, the wi dow of the vi cti m,
Erl i nda Javi er, i s not enti tl ed to the same. She di d not testi f y on any
mental angui sh or emoti onal di stress whi ch she suf f ered as a resul t of
her husband s death. No other hei rs of Javi er testi f i ed i n the same
manner.[59]

Inasmuch as the aggravati ng ci rcumstance of taki ng advantage
of of f i ci al posi ti on attended the ki l l i ng, the Court awards exempl ary
damages i n the amount of P25,000.00 i n accordance wi th Arti cl es 2230
and 2234 of the Ci vi l Code and prevai l i ng j uri sprudence.[60]

WHEREFORE, the Deci si on of the Court of Appeal s i n CA-G.R.
CR No. 15304 dated June 20, 2002 i s MODIFIED. Appel l ant Otel l o
Santi ano y Leoni da i s f ound GUILTY beyond reasonabl e doubt of
Homi ci de and i s sentenced to suf f er the penal ty of an i ndetermi nate
sentence f rom ei ght (8) years and one (1) day of pri si on mayor as
mi ni mum to f ourteen (14) years, ei ght (8) months, and one (1) day of
recl usi on temporal as maxi mum. Appel l ant Santi ano i s f urther ordered
to pay the hei rs of the vi cti m the amounts of P50,000.00 as death
i ndemni ty, P31,845.00 as f uneral and buri al expenses, P25,000.00 as
exempl ary damages, P30,000.00 as attorney s f ees and P1,000.00

per appearance of counsel . Appel l ant Santi ano shal l be credi ted wi th
the f ul l extent of hi s preventi ve i mpri sonment.

Appel l ant Rol ando Dagani y Reyes i s hereby ACQUITTED.

KINGSTON(E) LI Y NUNEZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, and
the HONORABLE COURT OF APPEALS, respondents.
DECISION
TINGA, J.:
On 19 April 1993, the relative early morning calm in General Luna Street, Barangay
Bangkal, Makati, was shattered when a petty argument evolved into a street brawl.
After the dust had settled, eighteen (18) -year old Christopher Arugay ("Arugay") lay
dying from multiple stab wounds, while his neighbor, twenty-four (24)-year old
Kingstone
1
Li ("Li"), staggered injured, with hack wounds on his head.
Li was charged before the Regional Trial Court (RTC) of Makati, Branch 148,
2
with
the crime of Homicide.
3
On 5 January 1994, after trial, he was found guilty and
sentenced to the penalty of eight (8) years and one (1) day of prision mayor to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. His
conviction was affirmed by the Court of Appeals Fifteenth Division in a Decision
4

dated 6 September 1996.
The version presented by the prosecution as to the antecedent facts leading to
Arugays death differs sharply from the version offered by Li. The accused claims
that the dispute stemmed from a spurned offer to drink, while the prosecution traces
the root of the fight to an indecorous bath in public.
The story of the prosecution was told by the witnesses Aubrey dela Camara ("dela
Camara") and Ronaldo Tan ("Tan").
5

Shortly before his death, Arugay was watching television at home with his sisters
Cristy and Baby Jane, his girlfriend dela Camara and Baby Janes boyfriend, Tan. At
around 1:15 in the early morning, dela Camara and Tan suddenly heard a noise
outside. Peering through the window, they saw Li and a certain Eduardo "Eddie Boy"
Sangalang taking a bath completely naked. The two were facing the house of the
Arugays.
6

Enraged, Arugay yelled, "Pare bastos kayo, bat kayo nakahubad?"
7

Li shouted back, "Putang Ina!" and threw something at the Arugays house.
Sangalang also yelled, "Putang Ina mo, lumabas ka, papatayin kita!"
8

An incensed Arugay went out the house where he was met by Li, now wearing briefs
and carrying a baseball bat. Li struck Arugay on the head with the bat, causing
Arugay to fall. Li ran back to his house. Tan and dela Camara assisted Arugay and
were trying to drag him back to his house when Li re-emerged, this time with a
knife. Li then stabbed Arugay once.
9

Immediately thereafter, dela Camara was confronted by Lis sister, Kristine, who
proceeded to pull her hair and slap her around. Kristine also wielded a bolo, with
which she hacked dela Camara in the arm. Although preoccupied under the
circumstances, dela Camara was able to see Sangalang stab Arugay at least once, so
she claimed.
10

Tan saw Arugay run towards the street after he was stabbed, with Li and Sangalang
chasing him. He saw nothing further of the incident, according to him.
11

In their respective testimonies, dela Camara and Tan are unable to account for the
fact that before the fight ended, Li also lay wounded with multiple hack wounds on
his head and body. This fact lies at the crux of the petitioners defense.
On the other hand, Li presents a different version.
Li encountered Arugay out on the street on the night of 18 April 1993, a few hours
before the brawl. Arugay was carrying a bayong containing various liquors. He
invited Li to a drinking session which the latter refused as he had work the following
day.
12

Early the next morning, around one oclock a.m., Li was watching television at his
home with his friend Ricky Amerol when they heard objects being thrown at the
house. Peeping through the window, they saw Arugay and dela Camara in front of
the gate throwing stones and bottles at the direction of Lis house. The stones broke
window jalousies and also struck Amerol. At the same time, Arugay was also hurling
invectives at Li.
13

Annoyed, Li opened the door asking, "Pare, ano ba problema mo? Wala naman
kaming kasalanan sa yo." Arugay and his girlfriend just kept on stoning the house
and hurling invectives at petitioner. Arugay kicked the gate but Li prevented him
from opening it. Arugay then ran towards his house across the street.
14

Li tried to fix the gate, which had become misaligned and its lock destroyed as a
result of the kicking. Reacting, he saw Arugay coming out of the house armed with
two kitchen knives. In response, Li went inside his house and got a baseball bat.
When he returned to the street, Arugay attacked him with a knife. Li managed to
avoid Arugays thrusts and hit Arugay with the baseball bat on the right shoulder.
Arugay ran back to his house shouting, "The long one! The long one!" Li also dashed
back to his house but before he was able to enter the door, he saw Arugay carrying a
two-foot long bolo, running towards him. On Arugays heels were Ronaldo Tan and
Aubrey dela Camara.
15

Arugay tried to hit Li with the bolo. Li raised his right hand to protect himself but
Arugay was able to hit him on his right temple and right wrist. Not content, Arugay
hit Li on the right shoulder. Li passed out.
16

Upon regaining consciousness, Li tried to crawl back to his house but Ronald Tan hit
him at the back of his left ear with a baseball bat. Eventually, Li managed to get
back to the house and was brought to the Makati Medical Center by Amerol and
Barangay Tanod Eduardo Reyes.
17

On cross-examination, Li admitted that Eduardo Sangalang was also in his house at
the time the incident started. Sangalang was the boyfriend of Lis half-sister,
Cristy.
18

Dr. Alberto Reyes of the Medico Legal Section of the National Bureau of Investigation
conducted the post-mortem examination on the body of Arugay. He noted the
following injuries:
Pallor, lips and nailbeds.
Contusion, arm, right, poster-lateral, 5.0 x 3.0 cm.
Wounds, incised, scalp, parieto-occipital, right, 6.0 cm.; anterior sheet, left side,
suprammary 6.0 cm., inframmary 4.0 cm.
Wounds stab:
1. 3.0 cm., long, spindle[-]shaped edges, irregular, oriented, horizontally, with a
sharp, medial and a blunt lateral extremeties, located at the anterior chest wall, left
side, 15.0 cm. from the anterior median line, directed upwards, backwards and
medially, involving the skin and soft tissues only with an approximate depth of 4.0
cm.
2. 4.0 cm., long, spindle shaped edges irregular, with a sharp inferolateral and blunt
supero-medial extremeties, located at the anterior abdominal wall, right side, 0.5
cm. from the anterior median line, directed upwards , backwards and medially
involving the skin and soft tissues, laceration of the diaphragm and the right lobe of
the liver, with an approximate depth of 10.0 cm.
3. 1.5 cm. long, spindle shape[d] edges irregular oriented almost horizontally with a
sharp lateral and blunt medial extremeties, located at the anterior abdominal wall,
left side, 9.0 cm. from the anterior median line, directed backwards, upwards and
medially involving the skin and soft tissues, penetrating the transverse colon with an
approximate depth of 12.0 cm.
4. 1.5 cm. long, spindle, edges irregular oriented almost horizontally with a sharp
poster-lateral a blunt antero medial extremities located at the anterior chest wall
right side, 21.0 cm. from the anterior median line, directed backward, upwards and
medially involving the skin and soft tissues penetrating the 8th intercostals space,
into the diaphragm and right lobe of the liver, with an approximate depth of 12.0
cm.
Hemoperitoneum 1,500 c.c.
Brain and other visceral organs, pale.
Stomach, half-full with rice and brownish fluid.
Cause of death stab wounds of the chest and abdomen.
19

After trial on the merits, the RTC rendered its Decision, finding Li guilty as charged.
The dispositive portion reads:
WHEREFORE, premises considered, and finding accused KINGSTONE LI guilty beyond
reasonable doubt of the crime of Homicide defined and penalized under Article 249 of
the Revised Penal Code, said accused is hereby sentenced to suffer the penalty of
from EIGHT (8) YEARS and ONE (1) day of prision mayor as minimum to FOURTEEN
(14) years, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum
with all the accessories of the law.
The accused is further ordered to pay to the heirs of the late Christopher Arugay the
sum of P50,000.00 for and as indemnity for causing the death of said victim.
With costs against the accused.
SO ORDERED.
20

Li appealed to the Court of Appeals but it affirmed with modification the RTC
Decision. He filed a Motion for Reconsideration which the Court of Appeals denied.
21

Li filed the present Petition for Review, seeking the reversal of his conviction for the
crime of homicide.
Li denies killing Arugay. He contends that the RTC erred in holding that he was the
instigator of the events leading to Arugays death; in not basing its Decision on the
evidence on record; in holding that he was guilty of homicide by reason of
conspiracy; and in not ruling that the evidence of the prosecution does not prove his
guilt beyond reasonable doubt.
22

There is a difference in the factual findings of the RTC and those of the Court of
Appeals. The variance warrants the close review of the findings of the two courts.
While both courts argue that Li was guilty of homicide, their respective rationales are
different.
Neither court disputes that the proximate cause of the death of Arugay was the stab
wounds he received. The RTC concluded though that it was Sangalang, and not Li,
who stabbed Arugay:
From all these conflicting versions, this court after piecing out the evidence
presented and from what can be deduced in the circumstances obtaining finds that
because of the altercation between Christopher Arugay and Kingstone Li, Christopher
Arugay armed himself with a bolo and Kingstone Li armed himself with a baseball
bat.
From the evidence presented, it became clear to the court that it was Kingstone Li
who hit first with a baseball bat Christopher Arugay hitting the latter not on the head
but at the right arm which is near the shoulder.
23

xxx
Now, after Kingstone Li has hit the deceased with a baseball bat, the deceased who
is armed with a bolo, retaliated by hacking Kingstone Li on the head and indeed he
was hit on the head and right wrist causing Kingstone Li to lose his hold on the
baseball bat and fell (sic) semi-unconscious or unconscious.
At this point in time, Eduardo Sangalang, who was then also present stabbed the
deceased several times at least six times.
This is explained by the findings of Dr. Alberto Reyes that Christopher Arugay
sustained an incise[d] wound on scalp, on the left chest, and four stab wounds that
are fatal.
When Christopher Arugay sustained the fatal wounds, two (2) of them piercing his
liver xxx
24

While the RTC concluded that Li had not stabbed Arugay, it nevertheless held him
guilty, predicated on a finding of conspiracy with Sangalang. This issue shall be
explored in greater detail later.
In contrast, the Court of Appeals did not rule out the possibility that Li had stabbed
Arugay, and rendered unnecessary a finding of conspiracy to attach guilt to the
accused. It held:
The deceased suffered four fatal wounds, then (sic) the accused might have
inflicted at least one fatal stab wound and so with his friend Eddie Boy, who
remains at large. Since it has not been established which wound was inflicted by
either one of them, they should both be held liable and each one is guilty of
homicide, whether or not a conspiracy exists.
25
(Emphasis supplied)
The appellate courts formulation is wrong as the converse is the correct rule: with
the existence of conspiracy, it is no longer necessary to determine who among the
malefactors rendered the fatal blow;
26
whereas in the absence of conspiracy, each of
the accused is responsible only for the consequences of his own acts.
27
Thus, it is
necessary to determine whether a conspiracy existed between Li and Sangalang, and
if there was none, to ascertain the particular acts performed by Li.
The Court of Appeals also cited the testimonies of the prosecution witnesses, Tan
and dela Camara, to the effect that they saw Li stab Arugay at the left portion of the
body.
28
These testimonies are vital as they constitute the only evidence that Li
actually stabbed Arugay. A careful examination of the case however cautions us from
giving full faith and credence to the supposed eyewitnesses for the prosecution. The
RTC itself cast doubt on the veracity of all the eyewitness testimony, whether for the
prosecution or for the accused. The RTC noted, thus:
At the outset, the court has to state that it has noted that the witnesses for the
prosecution and that of the defense either held back on material facts or have
deliberately withheld some facts or added some matters to the real facts for these
are not only gaps but holes in the versions of the witnesses for the prosecution and
the defense. What this court can do is to cull from the evidence presented what
could be the approximate or near the truth. The prosecution did not help this court
any to have a good view of the facts and neither the defense.
29

The relationships of the witnesses dela Camara and Tan to Arugay or the latters
family cannot be easily discounted. Dela Camara was the boyfriend of Arugay, while
Tan was the boyfriend of Arugays sister, Baby Jane. As such, they are not wholly
neutral or disinterested witnesses. Both of them actually asserted in open court that
they were not willing to say anything derogatory against Arugay. Tan testified as
follows:
Q: Since Jane Arugay is your girlfriend, and Christopher Arugay was your friend, you
did not like to say anything derogatory against Christopher Arugay, did you?
A: Yes, maam.
Q: Neither did you want to say anything also derogatory against the family of
Christopher Arugay, did you?
A: Yes, maam.
30

Similarly, dela Camara testified as follows:
Q: As the girlfriend of Christopher Arugay, you did not say anything derogatory
[about] the said Christopher Arugay, am I correct?
A: Yes, maam.
Q: You do not like to besmirch his memory, am I correct?
A: Yes, maam.
Q: So that if Christopher Arugay assaulted Kingstone Li on April 19, 1993, you did
not like this, do you know that, did you Ms. Dela Camara.
A: Yes, maam.
31

The revelations serve caution against accepting the testimonies of Tan and dela
Camara as gospel truth. They cast doubt as to whether these witnesses would be
capable to attest to an unbiased narration of facts, especially if by doing so, they
would be forced to impute culpability on Arugay, thereby staining the sainted
memory of their deceased friend.
Moreover, the respective testimonies of dela Camara and Tan are inconsistent with
each other with respect to material points. Dela Camara claimed that she and Tan
together assisted Arugay after the latter had been struck down with the baseball
bat.
32
Yet while Tan admitted that he had pulled Arugay away from the scene of the
melee, he made no mention of the assistance of dela Camara.
33
In fact, Tan stated
that dela Camara remained inside the house.
34
This assertion contradicts dela
Camaras claim that she was outside the house during the whole time the incident
transpired.
35
Nor did Tan advert to the scene painted by dela Camara of Kristine Li
wielding a bolo while pulling on the hair of Arugays girlfriend. That is an unusual
enough occurrence that would stick to the mind of anybody who would witness such.
Indeed, the tale weaved by Tan arouses more curiousity upon examination of his
sworn statement, executed the night after the incident. Therein, Tan referred to
some existing bad blood between Arugay and Li over a borrowed tape, a fact which
subsequently none of the parties would call attention to.
36
Curioser, Tan never
mentioned any baseball bat having been used by Li during the incident. Nor did he
mention any participation of Sangalang in the actual brawl. On the other hand, dela
Camara in her own sworn statement, asserted that both Li and Sangalang had
stabbed Arugay and that she herself was hacked on the arm by Kristine Li.
37

Both Tan and dela Camara testified that Li stabbed Arugay on the left side of the
body as the latter was being pulled towards his house after having been struck with
the baseball bat.
38
However, Tan testified that Li came from behind Arugay to inflict
the stab wound,
39
while dela Camara stated that Arugay was facing Li when he was
stabbed.
40

Most importantly, the testimonies of dela Camara and Tan both contradict the
physical evidence. As consistently held:
Time and again, we have upheld the primacy of physical evidence over biased and
uncorroborated testimony of witnesses. We have held:
Physical evidence is a mute but eloquent manifestation of truth, and it ranks high
in our hierarchy of trustworthy evidence. In criminal cases such as murder or rape
where the accused stands to lose his liberty if found guilty, this Court has, in many
occasions, relied principally upon physical evidence in ascertaining the
truth[W]here the physical evidence on record ran counter to the testimonial
evidence of the prosecution witnesses, we ruled that the physical evidence should
prevail.
41

It is undisputed that Li had armed himself with a baseball bat as he prepared to face
Arugay. It also appears that the baseball bat remained at the scene of the fight, as
the same weapon was used to strike Li on the head after he lay injured.
42
In order to
sustain the claim of Tan and dela Camara that Li had stabbed Arugay, we would have
to postulate that Li was armed with both a knife and a baseball bat. This scenario is
severely flawed.
First. Tan and dela Camara would have us believe that Li faced off Arugay with a
baseball bat, then after having struck Arugay, he ran off to his home to get a knife,
returned to the melee, then stabbed Arugay.
43
This projected sequence is simply
incredulous. Li was already armed with a weapon that could incapacitate or kill. He
had already struck a blow that apparently forced the victim down. There is no logical
reason for Li to suddenly run off to get a knife, considering he already had a weapon
capable of inflicting damage and was at an advantageous position vis--vis the
prostrate Arugay.
There is of course the possibility that Li was already carrying the knife when he
emerged with the baseball bat, but that was not established by the prosecution.
Moreover, the scenario of Li brandishing a knife with one hand and wielding a bat
with the other is highly improbable. It would require unusual physical dexterity for a
person to wield both weapons simultaneously and still utilize them with adequate
proficiency. Nor is it likely that Li concealed the knife in his clothing. According to
Tan, Li was only wearing briefs when he attacked Arugay with the baseball bat.
44

Second. The pathological findings likewise cast severe doubt on the possibility that Li
had stabbed Arugay. The trial court concluded that only one knife was used in killing
Arugay, and probably only one wielder thereof. The RTC decision said:
The court noted also with particular interest the description of the four wounds as
found by Dr. Reyes. The first wound has been described by Dr. Reyes as 3.0 cm.
long, spindle[-]shaped edges, irregular, etc; the No. 2 wound has also been
described as 4.0 cm. long, spindle[-] shaped, edges irregular, etc.; No. 3 wound is
1.5 cm. long, spindle-shaped, edges, irregular, etc.; and the fourth wound is 1.5 cm.
long, spindle shaped edges irregular;
Thus there are two (2) outstanding characteristics of the four (4) stab wounds
sustained by Christopher Arugay. All of them are spindle[-]shaped and irregular in
their edges. This is significant because it would appear to the court that only one
weapon was used because all the characteristics of the four wounds were the same.
Thus, to the mind of the court there is only one person who inflicted these wounds,
not two (2) or three (3). It could be possible that there were two who inflicted the
stab wound[s] if the weapon used was given to another after using the same and the
other one to whom it was transferred used it also. But in this case there is no
showing that such incident did happen.
45

It must be qualified that Dr. Reyes, the NBI Medico-Legal, refused to definitively
conclude that only one knife was used in stabbing Arugay though he conceded that
such was possible.
46
Nevertheless, the fact that Arugay sustained the same kind of
stab wounds tends to support the conclusion that only one knife was used on him.
Third. Dela Camara testified that she saw both Li and Sangalang stab Arugay.
Considering that there was only one knife used, her version would hold water only if
we were to assume that the same knife passed from the hands of Li to Sangalang or
that they held identical or similar knives. As the RTC ruled, nothing of the sort was
established. The more logical assumption would be that there was only one stabber
using one knife. The question now arises, was it Li or Sangalang who stabbed
Arugay?
There is the dubious claim of Tan and dela Camara that they did see Li stab Arugay
once. Assuming this were true, this blow would not have been the fatal stab wound,
as it did not prevent Arugay from further participating in the rumble and, as
subsequently established, inflicting damaging blows on Li. However, the physical
evidence belies any conclusion that Li inflicted any of the several fatal wounds on
Arugay.
Dr. Pedro P. Solis, the medico-legal consultant of Makati Medical Center who also
happens to be one of the countrys leading experts in Legal Medicine
47
, examined Lis
injuries on the same day of the incident, and subsequently testified on his findings.
He concluded that Li suffered three types of wounds on his body. The first type
consisted of abrasions, consistent with forcible contact accompanied by a hard
object. The two other types of injuries were considerably more serious: incised
wounds and a contusion. As found by the RTC:
According to (sic) Dr. Pedro Solis, who examined the accused at the Makati Medical
Center on the very night after the incident and (sic) found the following injuries on
Kingstone Li, to wit:
1. xxx
2. Wound, incised, 12 cm., scalp, fronto-parietal area, right, 9 cm., right; 9 cm.
posterior aspect, shoulder, right; 1.5 cm., postero-medial aspect, distal third,
forearm, right.
3. Contusion, 4 x 5 cm., scalp, parieto-occipital area (post suricular) left.
From the expert testimony and opinion of Dr. Pedro Solis, the injuries suffered by
Kingstone Li were defense wounds, and that there were two (2) weapons used in
inflicting injuries on Kingstone Li. One is a sharp edge[d] instrument such as a bolo
and the other one is [a] blunt instrument.
48

The physical evidence of Lis injuries are consistent with his version that Arugay had
hacked him, and as he struggled to recover from the blow, he was struck with his
own baseball bat by Tan, thus explaining the contusion on his head. More
importantly though, the injuries were serious enough to incapacitate Li at the scene,
calling into question his ability to inflict the fatal blows on Arugay. As Dr. Solis
testified:
A: [I] noticed in this particular case that there are incise[d] wound[s] on the right
hand and right shoulder. These are injuries brought about, as I said, brought about
by [a] sharp edged instrument. This I presumed to have been brought about by the
inherent self defensive (sic) mechanism of the victim. In so far as the injury on the
head is concerned, it must be a hit, now, I am referring to the incise wound on the
head, incise[d] wound on the head will also cause pressure on the skull thereby
producing some effect on the brain, this has been aggravated by a blunt instrument
applied on the left side of his neck and joining as together the two injuries the
incise[d] wounds and that of contusion which is brought about by blunt instrument it
might have cause[d] him some degree of loss of consciousness.
Q: Would that person have been able to stab somebody one time, two times, three
times or four times after sustaining those injuries?
A: In that condition he has no complete power to perform volitional acts because he
must have lost partially or totally his consciousness primarily the hit on the left side
of the head because the brain is a vital organ and slight jarring will cause los[s] of
consciousness and what we call in ordinary parlance, you saw shooting stars as a
consequence.
Q: Aside from los[s] of consciousness, would that person who sustained that injury
have been able to walk without the assistance of anybody?
A: In all [likelihood], he might have lost I said of his volitional movement, he [may
be] able to walk but as I have observe[d] it must be with assistance more
particularly in this case whereby the incise wound on the head is measured 12 cm.,
the head is a bloody organ in a way that if a person is erect, blood will flow on that
area and it might cause even modification of his visual perception.
49

Li was slashed on the head with a bolo, causing a twelve centimeter (12 cm.)-
wound, among other wounds. In such a condition, it is highly improbable that he was
capable of inflicting the fatal stab wounds on Arugay. Moreover, it could not be
established that Li was ever armed with a knife. Difficult as it is already to believe
that the wounded Li could have stabbed Arugay several times, the incredulity is
compounded by imagining that Li would have also groped around for a knife, dazed
and severely wounded as he was. Simply put, Li could not have stabbed Arugay. The
assertions to the contrary of Tan and dela Camara are inherently flawed.
Fourth. In all, the factual determination made by the RTC is wholly believable up to a
point. There were four participants in the brawl, namely Li, Sangalang, Arugay and
Tan. The first blow was struck by Li, who had armed himself with a baseball bat and
used the same to hit Arugay on the left upper arm. This unprovoked assault by Li
establishes at least some degree of criminal culpability on his part. Arugay then
armed himself with a bolo which he used to inflict an incised wound on the head of
Li. After Li had fallen, Sangalang, himself armed with a knife, fatally stabbed Arugay
at least four times. Tan had picked up the baseball bat dropped by the wounded Li
and struck Li on the head with the bat. These findings are consistent with the
physical evidence, reliance on which should be given greater primacy over the
unreliable eyewitness testimony of Tan and dela Camara.
Thus, Sangalang alone had stabbed Christopher Arugay. Yet the RTC still found Li
guilty on the tenuous determination that a conspiracy between Li and Sangalang
existed. The RTC held:
From the evidence presented, the court believes and it so holds that there was
conspiracy.
It must be pointed out that Kingstone Li and Eduardo Sangalang were then
in the same house at the same time. Eduardo Sangalang is the boyfriend of the
half-sister of Kingtone Li.
The act of Kingstone Li [in] getting a baseball bat and using it as a weapon
and the act of Eduardo Sangalang alias Eddie Boy in arming himself with a
sharp pointed weapon and both going out to meet Christopher Arugay
whose only sin is to point to the accused his scandalous and indecent act in
bathing nude not in the bathroom but in a place which is crowded by people
who can see him especially the ladies and is provocative to others are
patent and conclusive presumption of conspiracy for their acts were
concerted and so close to each other that there is no way but to conclude a
conspiracy.
50
(Emphasis not ours)
Proving conspiracy is a dicey matter, especially difficult in cases such as the present
wherein the criminal acts arose spontaneously, as opposed to instances wherein the
participants would have the opportunity to orchestrate a more deliberate plan.
Spontaneity alone does not preclude the establishment of conspiracy, which after all,
can be consummated in a moments notice through a single word of assent to a
proposal or an unambiguous handshake. Yet it is more difficult to presume
conspiracy in extemporaneous outbursts of violence; hence, the demand that it be
established by positive evidence. A conviction premised on a finding of conspiracy
must be founded on facts, not on mere inferences and presumption.
51

It is worth noting that while conspiracy was alleged in the Information against Li, the
prosecution devoted its efforts to prove that Li had actually inflicted the stab wounds
on Sangalang, tagging him as a direct participant in the crime. Thus, there seems to
be no evidence that would directly establish the fact that Li and Sangalang had come
into an agreement to commit a common felony. Any conclusion that there was a
conspiracy will have to be drawn inferentially, as the RTC did.
It is not necessary to prove a previous agreement to commit a crime if there is proof
that the malefactors have acted in concert and in pursuance of the common
objectives. Direct proof is not essential to show conspiracy since it is by its nature
often planned in utmost secrecy and it can seldom be proved by direct evidence.
52

Conspiracy may be inferred from the acts of the accused themselves when such
point to a joint purpose and design.
53
Complicity may be determined by 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.
54

However, caution dictates a careful examination of the established facts before
concluding, as the RTC did, that an implied conspiracy had been established. An
implied conspiracy must still be based on facts established by positive and conclusive
evidence.
55
Even if conspiracy per se is not criminal, as it rarely is in this
jurisdiction,
56
the weight of factual evidence necessary to prove conspiracy is the
same as required to establish criminal liability proof beyond reasonable doubt.
57

Suppositions based on mere presumptions and not on solid facts do not constitute
proof beyond reasonable doubt.
58

The RTCs conclusion that there was a conspiracy was drawn from these
circumstances, namely: that Li and Sangalang were in the same house at the same
time; and that they both armed themselves before going out to meet Arugay. The
fact that they were in the same house at the same time is not in itself sufficient to
establish conspiracy. Conspiracy transcends companionship,
59
and mere presence at
the scene of the crime does not in itself amount to conspiracy.
60

The other circumstance that Li and Sangalang had emerged from Lis house, both
armed, to face Arugay has to be weighed against other facts also relied upon by the
RTC. As the RTC held, Sangalang stabbed Arugay only after petitioner had become
unconscious. Before that point, even as Li struck Arugay with a baseball bat, it was
not proven that Li had asked for, or received, any assistance from Sangalang. Based
on these circumstances, the Court is hard put to conclude that Sangalang and Li had
acted in concert to commit the offense. In fact, the stabbing of Arugay could very
well be construed as a spur-of-the-moment reaction by Sangalang upon seeing that
his friend Li was struck on the head by Arugay. From such a spontaneous reaction, a
finding of conspiracy cannot arise.
61

Moreover, it appears that the fight involved two distinct phases. The first phase
commenced when Li, without sufficient provocation, assaulted Arugay with the
baseball bat. Lis participation in this phase, albeit as a solitary actor, was indubitably
established. Sangalangs participation, much less his physical presence during this
phase, was not established at all. In the second phase, Sangalang was the main
actor. Li was incapacitated by then. Clearly, the existence of conspiracy should be
ruled out.
After Arugay had been struck down, it appears that there would have been a lapse of
at least a few minutes, affording him time to procure the bolo. The second phase in
the brawl then commenced. No further blows appear to have been inflicted by Li. On
the other hand, Li himself became the victim of the hack wounds on the head
inflicted
by Arugay. As Li lay incapacitated, possibly unconscious, it remained highly doubtful
whether he had any further participation in the brawl. At that point, Sangalang,
whose previous participation was not conclusively established, emerged into the fray.
Sangalang stabbed Arugay to death. Verily, it cannot be assumed that Sangalang did
what he did with the knowledge or assent of Li, much more in coordination with each
other.
The scenario as established by the RTC still leaves many open-ended questions and
admits to a myriad of possibilities. This very uncertainty indicates that Lis liability as
a conspirator was not established beyond reasonable doubt. The general principle in
criminal law is that all doubts should be resolved in favor of the accused.
Consequently, when confronted with variant though equally plausible versions of
events, the version that is in accord with the acquittal or the least liability of the
accused should be favored.
The only injury attributable to Li is the contusion on the victims right arm that
resulted from Li striking Arugay with a baseball bat. In view of the victims
supervening death from injuries which cannot be attributed to Li beyond reasonable
doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely
in the realm of speculation. When there is no evidence of actual incapacity of the
offended party for labor or of the required medical attendance, the offense is only
slight physical injuries, penalized as follows:
Art. 266. Slight physical injuries and maltreatment. The crime of slight physical
injuries shall be punished:
.
2. By aresto menor or a fine not exceeding 200 pesos and censure when the offender
has caused physical injuries which do not prevent the offended party from engaging
in his habitual work nor require medical attendance;
62

The duration of the penalty of arresto menor is from one day to thirty days.
63
The
felony of slight physical injuries is necessarily included in the homicide charge. Since
the Information against Li states that among the means employed to commit the
felonious act was the use of the baseball bat, conviction on the lesser offense of
slight physical injuries is proper. There being no aggravating or mitigating
circumstances established, the imposition of the penalty in its medium period is
warranted.
64
Li was convicted by the RTC on January 5, 1994. Having long served
more than the imposable penalty, Li is entitled to immediate release unless, of
course, he is being lawfully detained for another cause.
What transpired during the dawn hours of 19 April 1993 was an artless, spontaneous
street fight devoid of any methodical plan for consummation. It arose not because of
any long-standing grudge or an appreciable vindication of honor, but because the
actors were too quick to offense and impervious to reason. Yet, however senseless
this lethal imbroglio is, a judicious examination of the circumstances must be made
to avoid leaps into hyperbole. Careful scrutiny of the evidence reveals that the
criminal culpability of Kingstone Li in the death of Christopher Arugay was not
established beyond reasonable doubt. Unfortunately, the person who is responsible
for the death apparently remains at large. Yet absent any clear showing of
conspiracy, as in this case, Kingstone Li cannot answer for the crime of Eduardo
Sangalang.
WHEREFORE, the Decision of the Court of Appeals is MODIFIED. Petitioner Kingstone
Li is ACQUITTED of the charge of Homicide for lack of evidence beyond reasonable
doubt. However, he is found GUILTY of the crime of SLIGHT PHYSICAL INJURIES, as
defined and punished by Article 266 of the Revised Penal Code, and accordingly
sentenced to suffer the penalty of arresto menor in the medium period of ten (10) to
twenty (20) days. Considering that petitioner has been incarcerated well-beyond the
period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered
to cause petitioners IMMEDIATE RELEASE, unless petitioner is being lawfully held for
another cause, and to INFORM this Court, within five (5) days from receipt of this
Decision, of the compliance with such order.
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO HAMTON a.k.a. BOY
NEGRO, ANTONIO RAMIREZ alias TONG or CHITO, accused.
ARTHUR PANGILINAN y DE GUZMAN a.k.a. TORING, ARNOLD LOPEZ y
SERRANO a.k.a. ADAN MANALO, REYNALDO YAMBOT y
MASAGAYA, and JUN NOTARTE (at large), accused.
ARTHUR PANGILINAN y DEGUZMAN a.k.a. TORING, ARNOLD LOPEZ y
SERRANO a.k.a. ADAN MANALO and REYNALDO YAMBOT y
MASAGAYA, appellants.
D E C I S I O N
PER CURIAM:
Before this Court for automatic review is the Joint Decision of the Regional Trial
Court of Pasig City, Branch 70, penned by Judge Pablito M. Rojas in Criminal Cases
Nos. 105326, 106115 and 106116, finding Arthur Pangilinan, Arnold Lopez and
Reynaldo Yambot guilty beyond reasonable doubt of the crimes of kidnapping for
ransom and illegal possession of firearms and imposing upon each of them the
supreme penalty of death and a prison term of six (6) years and one (1) day to eight
(8) years.
Antonio Hamton, who was found guilty of robbery and sentenced to an
indeterminate penalty of from four (4) years of prision correccional to eight (8)
years of prision mayor in Criminal Case No. 105326, filed an appeal with this Court,
but later withdrew the same.[1]
The Solicitor General narrates the antecedent facts of the case as follows:
Teofilo Garcia, and his wife, Leonida, were the sole distributors of the Singer Sewing
Machines under the business name Gamier Industrial Sewing Machines. On March 8,
1994, around eleven oclock in the morning, two armed men, later identified as Jun
Notarte and Reynaldo Yambot, entered the Garcias office and showroom at 322
Shaw Boulevard, Mandaluyong City and announced a hold-up. After emptying
Teofilos drawer of Two Thousand Pesos (P2,000.00) in cash, they took him with
them outside to a waiting light gray Mitsubishi Lancer. Inside the car were two other
men, later identified as herein appellant Arnold Lopez and Arthur Pangilinan. Teofilo
was shoved into the backseat of the car and blindfolded with black sunglasses
covered with adhesive tapes. One of the men told him, Pera lang ang kailangan
namin sa iyo. His abductors then divested him of his gold ring worth Two Hundred
Thousand Pesos (P200,000.00), his gold bracelet worth Fifty Thousand Pesos
(P50,000.00), his gold necklace worth Fifty Thousand Pesos (P50,000.00), and his
wallet containing, among others, Two Thousand Three Hundred Pesos (P2,300.00) in
cash.
About the time Teofilo was being led out of the office, Leonida arrived. Seeing her
husbands plight, she immediately approached the Mitsubishi Lander and asked the
men inside why they were taking her husband. In response, appellant hit her on the
nose with a gun and pushed her away. The Mitsubishi Lancer then sped away.
After traveling for about two hours, the Mitsubishi Lancer stopped. TeofIlos
abductors transferred him to a trimobile where, accompanied by appellant, he
traveled for thirty minutes more before finally stopping. Teofilo was brought to a
house where he was confined in a room with no windows. To prevent him from
escaping, his left wrist was chained to an iron grill. Three or four persons guarded
him.
On March 10, 1994, around eleven oclock in the morning, appellant, who identified
himself as Adan Manalo, called up Leonida, telling her to prepare the amount of Ten
Million Pesos (P10,000,000.00) as ransom money for her husbands release. When
Leonida pleaded for the amount to be lowered since she could not afford it, appellant
put the phone down.
On March 12, 1994, appellant called up Leonida to inquire if she had already raised
the ransom amount. Leonida replied that she had raised only Six Hundred Thousand
Pesos (P600,000.00) and would be needing more time to raise the rest of the
amount.
Appellant called again around twelve noon of March 14, 1994. Asked how much
money she had already raised, Leonida answered that she was still trying to raise the
needed amount. She also requested appellant to get for her the key to their office
vault from her husband, so that she could get the money inside and add it to the
money to be paid as ransom.
Accordingly, appellant, on March 15, 1994, told Teofilo to give him the key to their
office vault and to write a note for his family so that they would know that he was
still alive. Teofilo did as he was instructed.
Around eight oclock in the morning of March 16, 1994, appellant called up Leonida
to inform her that the key to their office vault as well as a note from her husband
was ready for her pick-up at Andoks Litson located at EDSA corner Estrella Street.
By ten oclock of the same morning, Leonida was in possession of the key and the
note. She was able to confirm that the note was in her husbands handwriting. When
appellant called her again later that day, Leonida informed him that she had gotten
the key and the note, and that she had raised One Million Pesos (P1,000,000.00)
already. Unimpressed, appellant told her that this was not enough and that he would
call her again the next day.
True to his word, appellant called around noontime the following day. Informed by
Leonida that she now had One Million Two Hundred Thousand Pesos
(P1,200,000.00), appellant seemed finally satisfied. He then gave Leonida
instructions for the pay-off. At a little before four oclock that afternoon, she should
be at the Magallanes flyover and open the hood of her car to make it appear that it
developed engine trouble. Appellant would then drive by and stop his car beside
hers. After he identifies himself as Adan, Leonida should immediately hand over the
ransom money to him.
All this time, Leonida had been coordinating with the Task Force Habagat of the
Presidential Anti-Crime Commission (PACC). Alerted of these latest developments,
Col. Michael Ray Aquino, Chief of Special Operations, PACC, planned for the delivery
of the ransom money and Teofilos rescue. Eight teams were formed to monitor the
pay-off and conduct rescue operations. The ransom money was placed in a light blue
Dunlop bag (Exhibit G) and Leonida was instructed to wear a green dress for easy
identification at the pay-off site.
About 3:45 in the afternoon of the same day, Leonida, accompanied by her driver,
arrived at the pay-off site on board her Pajero. Pursuant to appellants instructions,
Leonidas driver opened the hood of the Pajero. A red Toyota Corolla with Plate No.
PFW 688 then approached and stopped just beside the Pajero. Leonida saw her
husband seated between two men at the back of the red car. Meanwhile, appellant,
who was seated in front at the passenger side, got down from the car. After
identifying himself as Adan, Leonida gave the Dunlop bag containing the ransom
money to him. The Toyota Corolla then sped away.
Inside the Toyota Corolla, appellant gave Teofilo Three Hundred Pesos (P300.00) for
taxi, assuring him that they would drop him off a short distance away. Before they
could do so, however, they noticed a speeding white Nissan Sentra behind them.
Appellant warned his companions, Puwesto kayo, delikado tayo mga kasama, alert
kayo, puwesto kayo. Without stopping to release Teofilo anymore, the Toyota
Corolla raced along EDSA towards Cubao, with the Nissan Sentra in hot pursuit. The
chase continued until the Toyota Corolla stopped near the intersection of Guadix
Drive and ADB Avenue: Using an armalite, Jun Notarte, the driver of the Toyota
Corolla, opened fire at the Nissan Sentra, shattering its windshield. Col. Raymundo
Padua and his team members, the occupants of the Nissan Sentra, returned fire.
During, the exchange of gunfire, Jun Notarte managed to escape. However, his
companions, namely appellant, Arthur Pangilinan, and Reynaldo Yambot, were not as
lucky. After about ten minutes of intermittent firing, they were finally subdued and
taken into custody. Teofilo was successfully rescued, shaken but unharmed.
Among the items recovered from Teofilos kidnappers were the following: the
Dunlop bag containing the ransom money in the amount of One Million Two Hundred
Thousand Pesos (P1,200,000.00); additional cash in the amount of Thirty Two
Thousand Six Hundred Forty Seven Pesos (P32,647.00); an M-16 armalite rifle with
Serial No. 164881 (Exhibit CC); and a .45-caliber pistol with Serial No. 1163568
(Exhibit A). Subsequent verification revealed that the M-16 armalite rifle and the
.45-caliber pistol were not registered with the Firearms and Explosives Office, Camp
Crame, Quezon City, and that no license to possess these firearms had ever been
issued in the names of any of Teofilos kidnappers.
Separately apprehended in connection with his kidnapping incident was Antonio
Hamton. Having somehow learned about Teofilos abduction, Antonio, at the same
time that appellant was negotiating with [Leonida] for the ransom money, was also
calling up Leonida, pretending to be her husbands kidnapper. Antonios ruse was
eventually discovered, but not before he was already able to extort Fifty Thousand
Pesos (P50,000.00) from Leonida.[2]
An Information, docketed as Criminal Case No. 1061. 14, was filed on April 1 4,
1994. It charged appellants in this manner:
That [on] or about March 8, 1994 at about 11:00 oclock in the morning at Shaw
Boulevard, corner Aquino Lane in Mandaluyong City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused being all
private persons conspiring, confederating and mutually helping/aiding each other
and by means of force, threats or intimidation and with the use of arms and vehicles,
for the purpose of demanding money or ransom, did then and there willfully,
unlawfully and feloniously abduct and kidnap TEOFILO M. GARCIA while at his office;
and that once in their physical custody and control detain and deprive him of his
liberty against his will, and demand TEN (P10,000,000) Million from his wife Leonida
Garcia, in exchange for her husbands life, safety and freedom, but which amount
through sheer patient appeals/negotiation was later reduced to P1 .2 Million, which
accused finally agreed and accepted which said Mrs. Leonida Garcia, did in fact give,
pay and deliver the said amount or ransom money to accused to her loss, damage
and prejudice.[3]
A second Information, docketed as Criminal Case No. 106116, was filed against
appellants thus:
That, on or about March 8 & 17, 1994 in the City of Mandaluyong, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have in their
possession, custody and control, a Caliber 45 Pistol, bearing Serial No. SN-1 163568,
and one (1) M-16 Rifle with Serial No. RP 164881, without first having secured the
necessary license and/or permit, from the corresponding office/agency of
government.[4]
During their arraignment on May 2, 1994, appellants, assisted by their
respective counsels, pleaded not guilty to the twin charges of kidnapping for ransom
and illegal possession of firearms.[5] After a joint trial, they were found guilty via the
automatically appealed Decision, which reads in part:
WHEREFORE, the Court hereby finds accused Arthur Pangilinan y de Guzman,
a.k.a Toring; Arnold Lopez y Serrano, a.k.a. Adan Manalo; and Reynaldo Yambot y
Masagaya, GUILTY beyond reasonable doubt of the offenses of Kidnapping for
ransom and serious illegal detention under Article 267 of the Revised Penal Code as
charged in Criminal Case No. 106115 and of the offense of Illegal Possession of
Firearms as charged in Criminal Case No. 106116. For the offense of kidnapping for
ransom and serious illegal detention, said accused are hereby meted out the death
penalty. For the offense of Illegal Possession of Firearms, said accused are hereby
sentenced to suffer the penalty of six years and one day to eight years and to pay a
fine of THIRTY THOUSAND PESOS (PHP 30,000.00) with subsidiary imprisonment in
case of insolvency.
Accused Pangilinan, Lopez and Yambot are further ordered to return to the private
complainant, Teofilo Garcia, the sum of FOUR THOUSAND THREE HUNDRED PESOS
(PHP 4,300.00) representing the total amount of cash taken from the latters office
and his person during the abduction, as well as to return or restore to said private
complainant the gold bracelet and the gold necklace or if the same is no longer
possible, to pay the value of the same which is PHP 50,000.00 each. In addition, said
accused are hereby ordered to indemnify, in solidum, the private complainant,
Teofilo Garcia, the amount of TWO MILLION PESOS (PHP 2,000,000.00) and to the
wife of the complainant, Leonida Garcia, the amount of ONE MILLION PESOS (PHP
1,000,000.00), by way of moral damages.[6]
Appellants submitted individual appeal briefs assailing the RTC Decision. They
aver that the trial court failed to establish clearly that they had all committed
conspiracy to commit kidnapping for ransom. The lower court should have imposed
individual penalties upon them depending on their degree of participation in the
crime.
Appellants also question their conviction for illegal possession of firearms,
arguing that the prosecution failed to produce sufficient evidence showing their
physical or constructive possession of the subject firearms. Further, they contend
that their conviction for the said offense cannot be made on the basis of the
testimony of a prosecution witness of questionable credibility and competence.
Specifically, appellant Reynaldo Yambot assigns the following errors:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT
REYNALDO YAMBOT AS CO-CONSPIRATOR IN COMMITTING THE
OFFENSE OF KIDNAPPING FOR RANSOM
II
THE TRIAL COURT ERRED IN FINDING THE ACCUSED REYNALDO
YAMBOT GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL
POSSESSION OF FIREARMS DESPITE THE FACT THAT THE WITNESS
FOR THE PROSECUTION WAS NOT CREDIBLE ENOUGH TO
TESTIFY.[7]
This assignment of errors has been adopted by appellant Arnold Lopez with the
following addition:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED ARNOLD LOPEZ GUILTY
BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED DESPITE THE FACT THAT
HE WAS NOT SUFFICIENTLY REPRESENTED DURING THE PRESENTATION OF CO-
ACCUSED ARTHUR PANGILINAN AS HOSTILE WITNESS.[8]
On the other hand, appellant Arthur Pangilinan ascribes the following errors to
the trial court:
3.1 THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE APPELLANT AS A
CONSPIRATOR IN THE OFFENSE OF KIDNAPPING FOR RANSOM AND SERIOUS
ILLEGAL DETENTION.
3.2 THE TRIAL COURT GRAVELY ERRED IN FINDING THE APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF ILLEGAL POSSESSION OF FIREARMS DESPITE THE
ABSENCE OF EVIDENCE THAT HE WAS IN PHYSICAL OR CONSTRUCTIVE
POSSESSION OF ANY OF THE SUBJECT FIREARMS AND THAT HE HAD ANIMUS
POSSIDENDI AS REGARDS THESE FIREARMS.[9]
After a careful review of the records and the arguments of both the prosecution
and the defense, this Court agrees with the trial court that all three appellants are
guilty of kidnapping for ransom, but not of illegal possession of firearm.
Appellants all rely on the defense of denial and alibi. They point to Jun Notarte,
who is still at large, as. the mastermind of the kidnapping. They maintain that they
merely accepted his offer of jobs with higher pay, and that they were not privy to his
plans to kidnap Garcia. Plainly, they want this Court to believe that they were simply
in the wrong place at the wrong time with the wrong companion and for the wrong
reason.
Appellant Arnold Lopez claims that Notarte offered him a job to train as a
soldier, with better pay.[10] He says that because of his meager earnings as a
construction worker, he was easily enticed by Notartes promise.[11] He alleges,
however, that he was not present during the abduction of the victim, because he was
working in Paraaque, installing doors and windows from March 8 to 15, 1994.[12] It
was only because of the job offer that he was present during the pay-off. He argues
further that his participation in the kidnapping incident was very minimal, if any, so
he could not have been a co-conspirator in the crime.[13]
On the other hand, Reynaldo Yambot alleges that Notarte promised to help him
apply as a driver of the latters superior officer.[14] Yambot maintains that, because
he was driving his jeepney in Caloocan from March 8 to 16, 1994,[15] he was not
present during the abduction of the victim. The only reason he was present during
the pay-off was that Notarte had actually engaged him as a driver, but without his
knowing anything about the abduction that had already taken place.[16]
Finally, Arthur Pangilinan claims that he was offered a job to watch Notartes
car at five hundred pesos a day.[17] He maintains that there were no overt acts that
would link him to the kidnapping other than his being merely an ill-fated passenger
of the car used by his co-accused in two occasions, i.e., in kidnapping Mr. Garcia and
in receiving the ransom from the victims wife.[18] Further, his wife was presented in
court to corroborate his claim that he had not taken part in the plan to commit the
kidnapping.
At the outset, we emphasize that the identities of all the accused were
adequately established by the clear and convincing testimonies of the victim and his
wife. Particularly persuasive was the narration by Garcia of the events that led to his
abduction, his captivity, the ransom payment and his eventual release and rescue.
He never wavered in his story, even when he was subjected to an exhausting cross-
examination by the defense counsels. He testified thus:
JUSTICE CONCEPCION:
Q On March 8, 1994 at about 11:00 in the morning do you remember
where were you?
A Yes, sir. I was in my office at about 11:00 in the morning at Shaw
Blvd.
Q Were you alone in your office?
A I was with my three employees, sir.
Q What are their names?
A They are Grace Munda, Aurora Mckinley and Dado Mercado, sir.
COURT:
Q How is he related to your wife?
A He is the cousin of my wife, Your Honor.
JUSTICE CONCEPCION:
Q On that occa[s]ion, do you recall having received a visitor in your
office?
A Yes, sir. Two men arrived.
Q What questions, if any, did they ask you upon entering your
showroom?
ATTY. LEONARDO:
No basis, Your Honor.
COURT:
He said he had two visitors. Witness may answer.
WITNESS:
A When the two men entered in our office, one pretended to be a
customer and the other one approach[ed] my three employees, sir.
xxx xxx
xxx
JUSTICE CONCEPCION:
Q Why do you say that one of them pretended to be a customer?
A Because he was the one who asked me about the price of the sewing
machine, sir.
Q Was there anything unusual that happened afterwards?
ATTY. LEONARDO:
We will object, Your Honor. The question is leading.
COURT:
How can it be leading? Objection overruled. Witness may answer.
WITNESS:
A Yes, there was, sir.
JUSTICE CONCEPCION:
Q What is it?
A The one who pretended as a customer pulled out the gun and
pointed it at me and said, hold-up, sir.
Q What kind of firearm did you see?
A Its a 45 caliber, sir.
xxx xxx
xxx
COURT:
All right. You said that, there were two male visitors who entered your
showroom that day, what was the other one doing?
A The other one poked a gun on my three employees, sir.
JUSTICE CONCEPCION:
Q Can you identify the man who pointed the gun at your three
employees if you see him again?
A Yes, sir.
Q Will you please look around the courtroom and point to the man who
pointed a gun at your three employees?
COURT:
Why dont you ask him the guy who poked the gun at him.
JUSTICE CONCEPCION:
He was the one who got away, Your Honor. There were four
kidnappers, one of them escape. He is at large.
COURT:
All right. Let him identify.
Q Yung nagtutok sa iyo [ng] baril nandito ba?
A Wala po.
Q Yung nagtutok ng baril sa tatlo nandito ba?
A Opo. He is here, your Honor.
Q Yung nagtutok ng baril sa tatlong empleyado mo, ituro mo,
bumababa ka at ituro mo.
INTERPRETER:
Witness is pointing to a man whom when asked identify himself as
Reynaldo Yambot.
JUSTICE CONCEPCION:
Q You stated that the man [who] pretended to be a customer poked a
gun at you, what did he want?
COURT:
He already said, hold-up.
JUSTICE CONCEPCION:
Q What did he do afterwards, if he did anything?
A After he said, hold-up, he opened the drawer of my table and g[o]t
some P2,000.00 cash, sir.
Q Having taken the money, what did he do afterwards?
A Then he told me, you go with us, sir. After taking the money he said,
sama ka sa amin.
Q What was your reaction?
A I went along with him, sir.
Q Why did you go with him?
A I went with him because it was a hold-up and I was afraid so I went
with him, sir.
Q At the time he made those statements, what was he doing to the
gun?
A He tucked it in his waist, sir.
Q Did you go with him willing?
A Yes, sir.
Q Why?
A Baka patayin po ako kaya sumama ako. Perhaps they would kill me
so I went along with him, sir.
Q Where did he take you?
A They b[r]ought me outside the door and outside was a car waiting,
sir.
[A] I am showing you pictures of a car ... (discontinued)
COURT:
Excuse me. Why dont you ask him first to describe the car.
Q Anong itsura ng kotse?
A It was a lancer with a color which looks like a silver green with tinted
windows and partially tinted front glass, Your Honor.
xxx xxx
xxx
JUSTICE CONCEPCION:
Q How did you enter the vehicle that was waiting for you?
A The car was opened by accused Jun Notarte and I was pushed
inside, sir.
FISCAL VILLA-IGNACIO:
Your Honor please, actually the witness said tinuhod meaning a person
used his knee to shove him inside the vehicle. Its more of a kick,
Your Honor.
WITNESS:
A The car was opened by accused Ju[n] Notarte and he used his knee
to shove me inside, sir.
ATTY. DE LEON:
We adopt the tagalog translation also, Your Honor.
WITNESS:
A Tinuhod niya ako papasok sa kotse.
JUSTICE CONCEPCION:
Q Did you enter the front seat or the back seat?
A The back seat, sir.
Q Once you were inside the vehicle, will you tell the Court what
happened?
A I was sand[w]iched by two men, sir.
COURT:
Q Who was the one to your right?
A Arthur Pangilinan was on my right, Your Honor.
Q And who was on your left?
A Yambot was on my left, Your Honor.
JUSTICE CONCEPCION:
Q Is the man whom you mentioned, Arthur Pangilinan, can you identify
him?
A Yes, sir.
Q Is he in the courtroom?
A Yes, sir.
COURT:
Bumaba ka at ituro nyo po.
INTERPRETER:
Witness pointing to a man inside the courtroom whom when asked
identify himself as Arthur Pangilinan.
JUSTICE CONCEPCION:
Q After you were seated sandwiched between two men, do you recall if
there were any persons seated on the front of the vehicle?
A Yes, sir.
Q In the drivers seat who was seated?
A Ju[n] Notarte was in the drivers seat, sir.
Q And on the seat beside the driver?
A Beside the driver was Arnold Lopez, sir.
Q Can you identify the man whom you said as Arnold Lopez? A Yes, sir.
Q Please point to him.
FISCAL VILLA-IGNACIO:
For the record, Your Honor, witness is stepping down from the witness
stand and appearing to [point] to a man whom when asked
answered by the name of Arnold Lopez.
ATTY. MACATANGAY:
For the record, Your Honor, Arnold Lopez is [the] man who is walking
with c[r]utches.
COURT:
Make it of record that the man is using c[r]utches.
JUSTICE CONCEPCION:
Q After you were seated in the car, will you please state what
transpired, if any?
A Yung sunglass na sinasabing piring, piniringan po ako rito.
xxx xxx
xxx
Q Did you not ask these men what they wanted from you? A I a[sk]ed
them what they want from me, sir.
ATTY. MACATANGAY:
Very leading, Your Honor.
COURT:
I will allow that.
JUSTICE CONCEPCION:
Q And what is the answer, if any?
A Pera lang ang kailangan namin sa iyo, that was what they told me,
sir.
Q After you were already in the car, what did you try to do in the car?
A None, sir. We were on the road.[19]
Thereafter, Garcia further recounted his ordeal, replete with details that he
could not have simply concocted. He narrated how he had been brought to a house
where he was chained to an iron grill[20] and detained for ten days.[21] His
testimony included details of how he had been fed, how he had relieved himself
during his detention, and how he had been asked by appellant Lopez to write a letter
to his family to assure them that he was still alive.[22] The testimony of the victim
regarding the ransom payment was likewise credible and convincing. He detailed the
events leading to the pay-off, from the time he was awakened to the time of the
actual shoot-out that eventually led to the arrest of appellants.[23]
His wife, who was also present during the abduction, corroborated his
testimony as follows:
FISCAL DAOSOS:
Q Will you tell this Honorable Court, Mrs. Garcia, if on March 8, 1994
you reported for work in your office?
A Yes, I reported for work about 11 oclock.
Q Were you able to reach your office that morning of March 8, 1994?
A Yes, sir.
Q Do you recall of any unusual incident that took place that morning?
A I saw my husband being led by the arm by a man and another man
was just behind my husband and closely following.
COURT:
Q Where were they going?
A I saw them going to board a blue grey vehicle.
FISCAL DAOSOS:
Q Would you know the model or make of the car?
A I did not notice but I know it was colored blue grey.
Q What else happened when you saw that your husband was being led
inside the car?
A I saw that my husband as if he was shoved inside (tinuhod).
Q Who of the two, if you saw, tumuhod sa asawa mo? A Hes a tall
man with fair complexion.
Q The one who shoved, would you kindly look around if he is in the
courtroom?
A He is not around.
Q What about the other one who closely followed your husband?
A He is here.
Q Will you kindly go down and identify him by lightly tapping his
shoulder?
INTERPRETER:
The witness pointed to a man inside the courtroom who when asked
identified himself as Reynaldo Yambot.
[FISCAL DAOSOS:]
Q After your husband was shoved inside that grey car, what else
happened, if you know?
A I alighted from my car and opened the front door of the blue grey
vehicle. I saw my husband with a blindfold and a gun pointed to
him.
Q You said when you opened the car, you saw your husband already
wearing a black blindfold sunglass. If you are shown that sunglass
or black blindfold would you be able to recognize it?
A Yes, sir.
Q Im showing to you a plastic sunglass which was previously marked,
Your Honor, as exh. C. Will you kindly go over and tell this
Honorable Court what is the relation of that black sunglass to the
blindfold you were referring to [a] while ago?
A Parang ganito po.
Q You also said that someone pointed a gun at your husband. What
particular part of the head or the face was the gun pointed?
A The gun was pointed to my husbands neck.
Q Would you be able to recognize the person who was pointing a gun at
your husband?
A I would not know who was the person who pointed a gun to my
husband.
Q What kind of gun was pointed, was it a long firearm or a short
firearm?
ATTY. LEONARDO:
We object to that question, Your Honor. He is suggesting to the
witness her answer
FISCAL DAOSOS:
If she knows.
COURT:
Q What kind of gun was that?
A It was a short gun.
FISCAL DAOSOS:
Q If you are shown a gun of that description, as you said short[,
w]ould you be able to recall whether the gun that we are going to
show you will be similar to that pointed to your husbands neck?
COURT:
Excuse me. Before you show that particular gun to the witness, [d]o
you know what sort of hand gun was pointed to your husband?
A No, Your Honor. Basta baril. Para pong pagalingan lang yung baril na
yan, eh. Ngunit kung pakikitaan ako puwede k[o]ng ituro pero hind
ko alam kung anung klaseng baril yon.
FISCAL DAOSOS:
Q Im showing to you a [hand]gun. Will you be able to tell this
Honorable Court if the gun pointed to the neck of your husband
would be similar to this?
A Para pong kamukha.
FISCAL DAOSOS:
This was already marked as Exh. A, Your Honor.
Q Now, where was your husband seated, madam witness?
A Nasa gitna po siya ng dalawang lalake.
Q Where? [In f]ront or at the rear?
A He was seated at the rear of the car sandwiched by two persons.
Q Now, you said that your husband was seated between two persons.
Would you be able to tell this Honorable Court which of the two
pointed a gun at your husband. Was it the person sitting at the left
of your husband or the right side of your husband?
A I did not see clearly which of the two men was pointing a gun at my
husband.
Q You said, Mrs. Garcia, that your husband was seated between two
persons at the rear seat of the car, [is] that correct?
A Yes, sir.
Q Would you be able to recognize any of the two that sandwiched your
husband?
ATTY. LEONARDO:
Your Honor, the witness is incompetent to answer that.
COURT:
Let her answer if she knows.
A Yung pong isa sa kaliwa ng mister ko.
FISCAL DAOSOS:
Q Will you kindly look around this courtroom and point to the person
Identified, the person sitting at the left of your husband?
A At my husbands left was Reynaldo Yambut.
Q We go back to that portion where you said you immediately opened
the door of the front seat of the car
COURT:
You would not know or you would not recall the face of the man
who was seated to your husbands right?
A I cannot recall, Your Honor.
FISCAL DAOSOS:
Q You said that you opened the front seat of the car. Which side of the
door of the car that you opened?
A I opened the right side door of the vehicle.
Q Were you able to open the car?
A Yes, sir.
Q What did you do, if any, when you opened the car?
A I asked them why they are taking my husband. What wrong has he
done.
Q What was their reply, if any?
A I did not hear any answer...
COURT:
Q Bakit wala kang narinig na sagot. Ano ang sinabi mo sa kanila?
A Ang sinabi ko po, ano ang kasalanan ng mister ko, bakit ninyo siya
kinuha. I did not hear any answer but instead I was whipped with a
gun.
Q Were you hit by this gun? Where were you hit?
A The gun hit my nose and my nose even bled on that day.
Q Will you tell this Honorable Court briefly what kind of gun was used
to whip you?
ATTY. LEONARDO:
The witness already answered she does not know what kind of a
gun was that.
[FISCAL DAOSOS:]
Q All right. The next question is, is it a long gun or a short gun?
A It was also a short gun.
Q Would you be able to say if the gun looks similar to the one that was
pointed to the neck of your husband?
ATTY. LEONARDO:
We interpose objection to that question, Your Honor. For the reason
that it is not only leading but the witness is incompetent to testify
on what kind of gun was she able to see.
FISCAL ASDALA:
The testimony refers to the husband not to the gun used in
whipping her.
FISCAL DAOSOS:
Q Would it be similar?
ATTY. LEONARDO:
Shes not in a position to testify...
COURT:
Just ask her to describe it.
A Parang pareho duon sa ipinakita sa akin. (It looks like the one I was
shown earlier).
COURT:
Witness referring to a caliber 45 marked as exhibit A.
FISCAL DAOSOS:
Q You said you asked them, why are you taking my husband, what
wrong has he done. Now, did you notice if there were people in the
front seat of the car?
A Yes, sir.
Q Would [you] be able to recognize the person who whipped you with
the gun?
A Nakilala ko po.
Q If he is in this courtroom would [you] be able to identify him?
A Yes, sir.
Q Will you please step down and identify this person by lightly tapping
his shoulder?
INTERPRETER:
Witness pointed to a man inside the courtroom who identified
himself as Arnold Lopez.
[FISCAL DAOSOS:]
Q Where was this Arnold Lopez seated?
A He was seated in [f]ront beside the driver.
COURT:
Q Where was he at the time when he whipped you with the gun?
A He was seated beside the drivers seat.
FISCAL DAOSOS:
Q How about the drivers seat[,] was somebody there?
A Meron po.
Q Would you tell this Honorable Court if that man occupying the
drivers seat is inside this courtroom?
A He is not present.
Q Now, after you were whipped and you received no reply, what
happened, if any?
A Tinulak niya po ako palabas.
Q Who?
A Arnold Lopez pushed me out.
Q Now, after you were pushed out, what else happened?
A They sped away.
Q Were you able to observe to what direction they sped away?
A They were going towards the direction of Acacia Lane.[24]
These testimonies constitute persuasive and unassailable proof that all the
appellants committed the crime of kidnapping. Certainly, the positive identification of
them by the victim and his wife, who had ample opportunity to see and remember
their faces, more than satisfies the judicial mind and conscience. It is natural for
victims of crimes to strive to remember the faces of their assailants and the manner
in which they committed the crime.[25] Hence, there is usually no reason for us to
doubt their testimonies or to suspect their motives. The present witnesses had close
contact with the kidnappers when the victim was abducted and his wife was hit with
a gun. Further, the victim was held for ten (10) days, which was more than ample
time for him to be familiar with them. His wife, on the other hand, was in constant
communication with one of the appellants during the ransom payment negotiations.
She again saw them during the actual ransom payment.
Moreover, the appellants did not even deny their presence during the abduction
or the ransom payment. This fact bolsters the credibility of the spouses and confirms
that they did not simply make up their narration of the kidnapping.
As to the demand for and the actual payment of the ransom money, the
victims wife testified thus:
JUSTICE CONCEPCION:
Q On March 17, 1994 you recall having received a telephone call?
A Opo.
Q At about what time did you receive the call?
A Banda pong mag-aalas dose ng umaga po.
Q And who was the one who called you?
A Si Adan po.
Q Was there any conversation?
A Mga sabi niya po sa akin nadagdagan na ba yong pera? Opo,
nadagdagan na ng dalawang daan.
COURT:
Dalawang daang piso? Dalawang daan? O two hundred thousand?
A Two hundred thousand (P200,000.00).
JUSTICE CONCEPCION:
Q And what did Adan say?
A x x x sabi niya Ito na dahil ang sabi mo gusto mong makausap ang
mister ma, ito na ang mister ma, kausapin mo na siya.
Q Were you able to talk to your husband?
A Opo, kinausap niya ako. Ang sabi niya po sa akin lumipat ka ng
bahay.
Q What else?
A Yon po ang sabi niya lumipat ako ng bahay. Pa[g]katapos ko daw
pong makipagusap.
COURT:
Just quote what he said. You quote what he actually said to you.
PROS. DAOSOS:
Ano ang sinabi?
A Opo. Ang sabi niya lumipat ako ng bahay.
COURT:
Hindi lumipat. Yong mismong sinabi niya. I-quote mo yang sinabi niya
mismo.
A Yon nga lumipat daw ako ng bahay.
COURT:
Hindi. Kung ano ang sinabi niya mismo.
A Lumipat ka ng bahay.
JUSTICE CONCEPCION:
Q To what house?
A Lumipat ka ng bahay. Pumunta ka doon kila nanay.
COURT:
Yon lang ba ang sinabi sa iyo sa telepono?
A. Oho. Tapos ang sagot ko bakit?
Q And what was the answer?
A Wala na po. Ang sumagot si Adan na po.
Q And what did Adan say?
A Ang sabi niya O, iready mo ang pera tatawag uli ako bago mag-ala
una.
JUSTICE CONCEPCION:
Q What else did he say? Is that all?
A Opo. Binaba na niya ang telepono.
Q Do you recall if on that day Adan Manalo called you up?
A Opo, tumawag po siya mga ala-una.
Q What was your conversation?
A Tinanong niya po sa akin kung magkano na ang pera. Ang sabi ko po
1.2 na.
Q 1.2 what?
A One million two hundred thousand pesos (P1,200,000.00) lang ang
naiipon ko. Nagalit po siya sa akin. Ang sabi niya bakit 1.2 lang? Di
ba sabi mo 2 million na. Akala ko two million na. Hindi sabi ko. 1.2.
lang ang naipon ko sa ngayon. Baka puwede na iyon kapalit ng
mister ko.
Q And what did Adan say?
A Na cut na naman[. [T]atawag uli ako[,] sabi niya.
Q Did he in fact call up again?
A Opo.
Q At about what time.
A Mag-aalas dos na po iyon.
Q Ng hapon?
A Ng hapon po.
Q And what was your conversation with him?
A Pumayag na po siya sa 1.2 na ibibigay ko sa kanya kapalit ng mister
ko.
Q When you said 1.2, what do you mean?
A Ransom money.
Q 1.2 what is that?
A One million two hundred thousand pesos (P1,200,000.00).
Q So you said he agreed already to the amount of one million two
hundred thousand pesos (P1,200,000.00)?
A Opo.
Q In exchange [for] your husband?
A Opo.
Q And what else did you talk about?
A Binigyan niya po ako ng instruction kung saan ko ibibigay yang 1 .2
million.
Q Could you tell us what is the instruction?
A Ang sabi niya po sa akin magkikita kami ng bago mag-alas kuwatro
ng hapon sa fly-over.
Q Fly-over where?
A Doon po sa Magallanes papuntang Alabang doon po sa ibabaw tapat
po daw ng Mercedes Benz Service. Doon po daw ako tatapat at
buksan ko daw iyong hood para po daw sira ... sira yang sasakyan
ko at saka buksan ko po daw lahat ang bintana ng sasakyan ka.
Q Was there any other instructions?
A Ang sabi po niya ipaparada po daw niya sa tabi ng sasakyan ko at
saka bubuksan niya sasabihin niya ako si Adan. Doon ka po daw
ibibigay ang pera. Pag sinabi niyang siya si Adan doon ka po daw
ibibigay ang pera. At saka tinanong din po niya sa akin kung anong
sasakyan ang gagamitin ko.
Q Did you tell him?
A Opo, sinabi ko po Pajero ang gagamitin kong sasakyan. Ibinigay ko
po lahat yung plate number.
Q What plate number did you give?
A T as in Task, F as in Force and H as in Habagat. Number 808.
Q What else did you talk about?
A [Y]on pa. Sabi niya bago mag-alas kuwatro nandon na ako. Binaba
na po niya.
Q Now what happened after your phone conversation?
A I called up PACC.
Q Whom did you call?
A Si Major Aquino po at saka si Tinyente Mendoza. Nagpunta po sila sa
bahay.
Q Were you able to talk with them?
A Opo.
Q What was your conversation with them?
A Sinabi ko po sa kanila magbabayaran na kami dito sa lugar na ito
bago mag-alas kuwatro magkikita kami sa ibabaw ng fly-over.
Q Did you tell them what fly-over?
A Opo. Yan pang sa Magallanes papuntang Alabang doon po ako
pupuwesto.
Q What time you should go there?
A Bago mag-alas kuwatro nandoon na ako sa ibabaw.
Q What did Major Aquino and his companion tell you?
A Wala na pa. Umalis na po sila. Ako naman po papunta na sa luga(r)
na ibibigay ko yang pera.
COURT:
Q Are you saying that Major Aquino did not give you any instruction?
A Wala na po. Basta ang sabi niya O sige pumunta ka na doon. Hindi
ko na po alam kung ano ang gagawin nila.
JUSTICE CONCEPCION:
Q Did you in fact go to the fly-over on the corner of Magallanes?
A Opo, pumunta po ako.
Q In what vehi[cl]e were you riding?
A Yon pang Pajero.
Q Who was driving?
COURT:
Q At what time did you leave your house?
A Siguro po mga alas 3:15 po.
JUSTICE CONCEPCION:
Q Who was the driver?
A May driver po ako.
Q And where were you seated?
A Sa tabi po ng driver.
Q When you went to the place [w]here you bringing anything with you?
A Opo, meron po.
Q What were you bringing?
A Yon pong pera na nakalagay sa bag.
COURT:
Q How much?
A One million two hundred thousand pesos (P1,200,000.00).
Q Place in?
A Nakalagay po sa bag na Dunlop na kulay asul.
JUSTICE CONCEPCION:
Q Did you arrive at the fly-over in Magallanes?
COURT:
Were you not going to ask her to identify the bag?
JUSTICE CONCEPCION:
Later on Your Honor because the money were xeroxed. We will ask
her. Nakarating na ba kayo sa Magallanes?
A Opo, nakarating po kami.
Q And what happened upon your arrival in Magallanes?
A 3:45 ng makarating po kami doon.
Q Did your driver comply with the instruction to open the hood?
A Opo. Bumaba po siya at saka binuksan yong hood na kunwari
nasiraan yong sasakyan. Eh, matagal po kami doon. May lumapit
pa pong traffic aide. Ang sabi ko sandali na lang, inaayos pa yong
sasakyan eh. Ang sabi ko aalis na rin kami dahil ho tumagal kami
doon ng mga ten minutes eh. Tinataboy na kami ng traffic aid.
Ngayon ho sinara namin yong hood. Lumakad ho kami unti-unti eh
kasi nga hindi po ho siIa dumarating. Eh ngayon siguro mga alas-
kuwatro na ho sila dumating biglang meron pumaradang red toyota
sa tabi namin.
COURT:
Q Where did they park their car?
A They parked their car parallel to my car.
JUSTICE CONCEPCION:
Q You mentioned a red toyota. I am showing you Exhibit I on which
attached Exhibits I-1 and I-2, can you identify them?
A Para pang kahawig na ganito. Ganitong kulay.
Q Ang ano?
A Ang sasakyan.
Q Kahawig na paano?
A Para pong ganyan.
Q After this toyota car stoppped beside the Pajero, what transpired
next?
A Bumukas po yong dalawang bintana. Bandang kanan nila. Dalawang
bintana.
Q Nang ano? Nang anong kotse?
A Yong red toyota po.
Q And where were you at that time?
A Nandoon po ako sa tabi ng driver.
Q Nang?
A Nang sasakyan ko po, yong Pajero.
Q When those two (2) windows on the right side of the car, the toyota
car open did you see anything?
A Nakipag-usap po sa akin ... Nakita ko po ang mister ko at saka yong
katabi niya.
COURT:
Q Where was he seated? Right or left?
A Parang nasa gitna po. Parang nandito po siya sa tagiliran.
Q When you saw your husband where was he seated?
A Dito po sa tabi ng bintana.
Q Kaya nga, where was he seated?
A Sa likod po.
Q Yes, where was he seated, right, middle or left?
A Right.
Q Extreme right?
A Yes.
JUSTICE CONCEPCION:
Q Was he alone in the back seat?
A Hindi ho. Nakita ko ho yong sa kaliwa niya.
Q Can you identify the man who was seated on his left?
A Opo. (Witness pointing to a man inside the court room, who, when
asked, answered by the name of Arthur Pangilinan.
Q Do I understand from you that there were only two (2) persons
seated at the back seat of the toyota?
A Apat po sila. Pang lima ang mister ko. Kaya lang hindi ko nakita
yong isa doon sa bandang hulihan.
Q Yong upuan lang sa likod yong katabi ng asawa mo? Ilang tao ang
nakita mong naroroon? Isang tao lang o...?
A Dalawa lang sila. Kaya lang hindi ko mamukhaan yong isa po dahil
yong bintana eh, hindi ko na siya makita.
Q What about in the front seat, was there anybody in the front seat?
A Meron po. Yon po si Adan.
Q Can you identify them?
A Opo, si Arnold Lopez.
COURT:
Q Saan nakaupo Si Arnold Lopez?
A Doon po sa harapan na tabi ng driver.
JUSTICE CONCEPCION:
Q Can you identify him?
A Opo. (Witness pointing to a man inside the court room, who, when
asked, identified himself as Arnold Lopez as the man seated beside
the driver.)
Q Was there anyone seated at the drivers seat of the red toyota?
A Meron po yong driver. Kaya lang hindi ko po siya nakita. May tao
doon dahil dalawang bukas na bintana.
COURT:
Q Nakita mo yong driver?
A Hindi ko po nakita. Yong paa lang ang nakita ko.
JUSTICE CONCEPCION:
Q Have you seen your husband in the car? What transpired next? What
happened after you saw your husband?
A After ho? Nakipag-usap po siya sa akin.
Q What did he say?
A Ang sabi niya uuwi na daw po ako magtataksi na lang siya.
Magtataksi na lang po daw siya pauwi sa amin. Tapos po sinarado
na po yong bintana.
COURT:
Will you please quote it.
A Umuwi ka na, uuwi na lang ako. Magtataksi na lang ako.
JUSTICE CONCEPCION:
Q You said ... You mentioned that you have with you on that day one
million two hundred thousand pesos (P1,200,000.00)?
A Opo.
Q Now, what did you do with that money?
A Bumaba po si Adan.
COURT:
Q Who is Adan?
A Si Arnold Lopez. Sabi niya ako si Adan, amin na ang pera.
JUSTICE CONCEPCION:
Q Where was Adan Manalo at the time he uttered that words?
ATTY. LEONARDO:
We object to the question of distinguished Justice Your Honor.
COURT:
Why?
ATTY. LEONARDO.
Because he already stated that Adan went out.
COURT:
He went out of the car.
ATTY. LEONARDO:
Yes, [he] went out Your Honor. The question is where was he
seated?
COURT:
Q Where was he if you know in relation to where he was seated? Saan
si Adan, ah, si Arnold Lopez?
A Doon po sa unahan ng sasakyan. Binuksan niya bumaba siya
pagkatapos kinuha niya ang pera sa akin.
Q Katabi siya ng driver mo?
A Opo. Ito po yong driver ka dito niya pinadaan ang pera.
Q Kaya nga saan nakatayo si Adan?
A Doon po sa labas sa tabi ng driver ko. (He was standing beside my
driver when I gave the money to him).
JUSTICE CONCEPCION:
Q I am showing you this kind of bag which bag has a word Dunlop on
it and previously marked as Exhibit G, can you identify this bag?
A Opo, yan po ang pinaglagyan ko ng pera.
Q After you deliver the bag containing one million two hundred
thousand pesos (P1,200,000.00), what happened next?
A Umalis na po kami. Bumalik na po ako sa bahay namin.
Q When you say kami, to whom do you refer? Umalis na kami.
A Yong driver ko.
Q Yong driver mo at ikaw?
A Opo.
Q And what about the car what happened to it?
A UmaIis na rin po siya. Magkaiba kami ng daan. (They left and we
went Into different directions).
Q You said you went in different directions, the Pajero and the toyota
car. To what directions did you go?
A Going to Manila.
Q And what about the toyota car, where was it [heading]?.
A Hindi ko na po sila alam kung saan sila lumiko.[26]
Clearly, the appellants denial cannot overcome the positive identification by
the complaining witness and his wife.
As a defense, denial is indeed insipid and weak, being easy to fabricate and
difficult to disprove.[27] Mere denial of involvement in a crime cannot take
precedence over the positive testimony of the offended party.[28]
Strangely, considering their proven participation in the crime, appellants Lopez
and Yambot also proffer the defense of alibi. For it to prosper, however, it is not
enough for them to prove that they were somewhere else when the crime was
committed; they must likewise demonstrate that it was physically impossible for
them to have been at the scene of the crime at the time.[29] This, appellants
miserably failed to show.
Moreover, other than giving self-serving testimonies, they did not present any
evidence to corroborate their denial and alibi. It cannot be gainsaid that self-serving
declarations are inadmissible as evidence of the facts asserted.[30] As a general
rule, the reason for the exclusion of such evidence is not that it might never
contribute to the ascertainment of the truth. Rather, the reason is that, if received, it
would most likely consist of falsehoods fabricated for the occasion and mislead more
than enlighten.[31]
Time and time again, this Court has ruled that denial and alibi are the weakest
of all defenses, because they are easy to concoct and difficult to disprove.[32]
Furthermore, they cannot prevail over the positive and unequivocal identification of
appellant by the offended party.[33] Absent any showing of ill motive on the part of
the eyewitness testifying on the matter, a categorical, consistent and positive
identification of the accused prevails over denial and alibi.[34] Unless substantiated
by clear and convincing proof, denial and alibi are negative, self-serving and
undeserving of any weight in law.[35]
In the instant case, there is no showing of any improper motive on the part of
the victim or his wife to testify falsely against the accused or to implicate them
falsely in the commission of so heinous a crime. The logical conclusion, then, is that
no such improper motive exists and that the testimonies are worthy of full faith and
credence.[36]
Likewise, the fact that the judge who penned the decision was not the same
one who had heard the testimonies of all the witnesses is not a compelling reason to
jettison the findings of the court a quo. This circumstance does not ipso facto render
the judgment erroneous, more so when it appears to be fully supported by the
evidence on record.[37] While a judge in such a situation has no way to test the
credibility of all the witnesses, since he did not have the unique opportunity of
observing their demeanor and behavior under oath, the trial courts factual findings
are nonetheless binding on this Court when these are ably supported by the evidence
on record.[38] Unless there is a clear showing of grave abuse of discretion, the
validity of a decision is not necessarily impaired by the fact that its ponente only took
over from a colleague who had earlier presided at the trial.[39]
Appellants also question the RTC decision finding all of them in conspiracy to
commit kidnapping for ransom. They submit that conspiracy was not established with
positive and conclusive evidence. According to them, to be guilty of conspiracy, they
must be shown to have participated in the criminal design and, at the same time, to
have committed overt acts necessary or essential to the perpetration of the offense.
Such postulations are merely feeble attempts to escape liability. We do not
subscribe to the tale of appellants that they associated with Jun Notarte, the alleged
mastermind, simply because he had offered them high-paying jobs.
Conspiracy exists when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it.[40] The agreement need not be
proven by direct evidence;[41] it may be inferred from the conduct of the parties
before, during and after the commission of the offense, [42] pointing to a joint
purpose and design, concerted action, and community of interest.[43] Indeed,
jurisprudence consistently tells us that conspiracy may be deduced from the mode
and manner in which the offense was perpetrated.[44]
In the case at bar, as the trial court correctly held, conspiracy may be deduced
from the appellants acts that show concerted action and community of interest. If it
can be proven that two (2) or more persons aimed their acts toward the
accomplishment of the same unlawful object -- so that their acts, though apparently
independent, were in fact connected and cooperative, indicating closeness of
personal association and concurrence of sentiment -- then conspiracy may be
inferred, even though no actual meeting among them to concert means can be
shown.[45] Consequently, the conspirators shall be held equally liable for the crime,
because in a conspiracy the act of one is the act of all.[46]
Undoubtedly, in perpetrating the kidnapping for ransom, conspiracy existed
among herein accused-appellants. Viewed in its totality, the individual participation
of each of them pointed to a joint purpose and criminal design. Notarte and Yambot
snatched the victim from his office in Mandaluyong, Metro Manila.
Pangilinan and Yambot sandwiched him in the car and transported him,
together with the others, to a house where he was detained for ten days. Lopez
negotiated with the victims wife for the ransom payment. Further, all three
appellants set out to the designated place of ransom payment. These acts were
complementary to one another and were geared toward the attainment of a common
ultimate objective. That objective was to extort a ransom of P10 million (which was
later reduced to P1.2 million through bargaining by the victims wife) in exchange for
the victims freedom.
Moreover, it is difficult to accept the excuse of appellants that they had nothing
to do with the kidnapping. We agree with the following observation of the trial court:
Pangilinans pretenses do not jibe well with reality. From his own version of the
incident, there was no need for Notarte to have hired him merely to watch the
former[]s car on the day of the abduction. For, it must be emphasized that when
Notarte and Yambot left the car and entered the building for the purpose of
abducting Garcia, one of Notartes companions, Arnold Lopez, was left in the car.
Evidently, Lopez could very well have assumed the role of watching the car without
the need of having to hire an extra hand for the purpose.
Moreover, it is significant to note that as early as March 08, 1994 when Garcia was
forcibly taken from his office whom Pangilinan thought, as he was made to
understand, was a drug-pusher, he already entertained some suspicion that it was
not so and that Notarte and his group were into something illegal when instead of
going to Camp Crame to detain the drug-pushing suspect, they bypassed Camp
Crame and proceeded to Baliuag, Bulacan. He was even prompted, by reason of said
unexpected turn of events, to tell his wife right after he was given PHP 500.00 as his
compensation for the day and after he was sent home by Notarte that what he saw
was not an arrest of a suspect but a hold-up. Yet, when Notarte again passed by his
house on March 17, 1994, Pangilinan again went with Notarte, although Pangilinan
claims that he was only forced to do so because of alleged threat by Notarte that
something would happen to him and his family if he refuses to go with him. Such
threat, assuming it was made, pales into significance in the light of the fact that
Pangilinan accepted from Notarte an additional amount of PHP 1,000.00 which, if
anything, clearly demonstrates, coupled with his earlier participation, his complicity
or connivance with Notarte in the abduction of Teofilo Garcia.
xxx xxx
xxx
The accused Pangilinan, Lopez and Yambot uniformly declared that their
involvement with Notarte was only on account of the latters offer to them of better-
paying jobs and not because of his plan to kidnap a person of which they were not
privy to. Only the naive would fall for such a ruse. If their testimonies are to be
believed, the jobs being offered to them were no better than their jobs at the time
the offers were made. Besides, all of them profess to barely know Notarte when he
approached them about the jobs and yet they appear to have readily accepted the
offers. On the part of Notarte, he could not have been stupid enough to have
recruited men of dubious loyalty and commitment to a risky and dangerous
undertaking.[47]
Verily, it is inconceivable that members of a kidnapping syndicate would
entrust the performance of an essential and sensitive phase of their well-planned
criminal scheme to people not in cahoots with them, and who had no knowledge
whatsoever of the details of their nefarious plan.[48]
Appellant Lopez also argues that he cannot be convicted, because he was not
sufficiently represented during the presentation of co-appellant Pangilinan as hostile
witness.
Such an argument would hold if Lopezs conviction were based on Pangilinans
testimony. But as we have held above, Lopez was convicted because of the positive
identification made not only by the victim, but also by the victims wife who also
pointed to him as the person who had whipped her with a gun on the day her
husband was abducted.[49]
When Arthur Pangilinan testified in the absence of Lopezs counsel, the court
appointed Atty. Leonardo to represent Lopez for that day.[50] However, we find that
such an appointment did not provide the appellant with adequate representation to
safeguard his rights fully. It was irregular because Pangilinan, whom the lawyer was
also representing, gave incriminating statements against Lopez. As the counsel of
Pangilinan, Atty. Leonardo could not have objected either to his questions or to his
answers to safeguard the rights of his other client, Lopez. However, this
notwithstanding, the incriminating evidence provided by the victim and his wife are
more than sufficient to convict Lopez even without Pangilinans testimony.
Appellants were charged with and convicted of the crime of kidnapping for
ransom and serious illegal detention. Article 267 of the Revised Penal Code reads:
Art. 267. Kidnapping and serious illegal detention. -- Any private
individual who shall kidnap or detain another, or in any other
manner deprive him of liberty, shall suffer the penalty of reclusion
perpetua to death.
1. If the kidnapping or detention shall have lasted more than three
days;
2. If it shall have been committed simulating public authority;
3. If any serious physical injuries shall have been inflicted upon the
person kidnapped or detained, or if threats to kill him shall have
been made;
4. If the person kidnapped or detained shall be a minor, except when
the accused is any of the parents, female, or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention, or is raped or is
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.
The elements of the crime of kidnapping and serious illegal detention are the
following: (a) the accused is a private individual; (b) the accused kidnaps or detains
another, or in any manner deprives the latter of his liberty; (c) the act of detention
or kidnapping is illegal; and (d) in the commission of the offense, any of the four
circumstances mentioned above is present.[51] Moreover, the imposition of the
death penalty is mandatory if the kidnapping was committed for the purpose of
extorting ransom.[52] In the instant case, appellants cannot escape the penalty of
death, inasmuch as it was sufficiently alleged and indubitably proven that the
kidnapping had been committed for the purpose of extorting ransom.
As to the conviction of the appellants for illegal possession of firearms, we are
constrained to dismiss and set aside this portion of the judgment. They cannot be
held liable for such offense, since there was another crime -- kidnapping for ransom
-- which they were committing at the same time.
The law governing illegal possession of firearms provides:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition Instruments Used or intended to be Used in the Manufacture
of Firearms or Ammunition. -- The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand
pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm
which includes those with bores bigger in diameter than .38 caliber and 9 millimeter
such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered
powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
If homicide or murder is committed with the use of an unlicensed firearm, such use
of an unlicensed firearm shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in connection
with the crime of rebellion or insurrection, sedition, or attempted coup detat, such
violation shall be absorbed as an element of the crime of rebellion or insurrection,
sedition, or attempted coup detat.
The same penalty shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation or
entity, who shall willfully or knowingly allow any of the firearms owned by such firm,
company, corporation or entity to be used by any person or persons found guilty of
violating the provisions of the preceding paragraphs or willfully or knowingly allow
any of them to use, unlicensed firearms or firearms without any legal authority to be
carried outside of their residence in the course of their employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any
licensed firearm outside his residence without legal authority therefor.[53]
(Emphasis supplied)
Interpreting this law, this Court has consistently ruled that if an unlicensed
firearm is used in the commission of any other crime, there can be no separate
offense of simple illegal possession of firearms.[54] Explained the Court:
Moreover, penal laws are construed liberally in favor of the accused. In this case,
the plain meaning of RA 8294s simple language is most favorable to herein
appellant. Verily, no other interpretation is justified, for the language of the new law
demonstrates the legislative intent to favor the accused. Accordingly, appellant
cannot be convicted of two separate offenses of illegal possession of firearms and
direct assault with attempted homicide. Moreover, since the crime committed was
direct assault and not homicide or murder, illegal possession of firearms cannot be
deemed an aggravating circumstance x x x x The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that no other crime was
committed by the person arrested. If the intention of the law in the second
paragraph were to refer only to homicide and murder, it should have expressly said
so, as it did in the third paragraph. Verily, where the law does not distinguish,
neither should we.[55]
In sum, we affirm the conviction of the appellants as principals in the crime of
kidnapping for ransom and serious illegal detention. However, we set aside the
judgment convicting them of illegal possession of firearms.
As regards the articles allegedly taken from the victim during the kidnapping,
we find that the prosecution failed to prove with certainty the amount of money or
the value of the jewelry taken from him. These cannot be presumed. Moreover, we
reduce the award of moral damages to three hundred thousand pesos (P300,000.00)
to be paid by the appellants solidarily. The fact that the victim suffered the trauma of
mental, physical and psychological ordeal constitutes sufficient basis for an award of
moral damages.[56] Meanwhile, an aggravating circumstance, whether ordinary or
qualifying, entitles the offended party to exemplary damages within the meaning of
Article 2230 of the Civil Code.[57] There being a demand for ransom in this case,
and by way of example or correction, the offended party shall receive exemplary
damages in the amount of one hundred thousand pesos (P100,000.00).[58]
WHEREFORE, the decision of the RTC of Pasig City (Branch 70) in Criminal
Case No. 106115 sentencing appellants to death for kidnapping for ransom is
AFFIRMED with the MODIFICATION that they shall pay the victim in solidum the
amount of three hundred thousand pesos (P300,000.00) as moral damages and an
additional amount of one hundred thousand pesos (P 100,000.00) as exemplary
damages. Costs against appellants.
However, the Decision of the court a quo convicting them of illegal possession
of firearms in Criminal Case No. 106116 is REVERSED and SET ASIDE.
Three Justices of the Court maintain their position that R.A. No. 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit
to the ruling of the majority that the law is constitutional, and that the death penalty
can be lawfully imposed in the case at bar.
In accordance with Section 25 of R.A. No. 7659 amending Section 83 of the Revised
Penal Code, let the records of this case be forthwith forwarded, upon finality of this
decision, to the Office of the President for possible exercise of the pardoning power.

ADONIS ARADILLOS and ALBINO GALABO, petitioners, vs. COURT OF
APPEALS and the PEOPLE OF THE PHILIPPINES, represented by the
Office of the Solicitor General, respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
For review is the decision dated February 12, 1998 of the Court of Appeals in
CA-G.R. CR No. 17316,[1] affirming the conviction of petitioners Adonis Aradillos and
Albino Galabo of the crime of Frustrated Homicide, with modification as to the
penalty and the award of actual and moral damages.
An Information was filed before the Regional Trial Court (Branch 10) of Davao
City, charging petitioners Aradillos and Galabo with the crime of Frustrated Murder,
committed as follows:
That on or about February 3, 1992, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, armed with an ax
and piece of wood, conspiring, confederating together and helping one another, with
intent to kill and taking advantage of their superior strength, willfully, unlawfully and
feloniously attacked, assaulted and hacked with said ax and struck with said piece of
wood, one Gloria Alviola thereby inflicting upon the latter the following injuries, to
wit:
COMPOUND FRACTURE, (R) AND (L) FRONTAL AREA 2 TO HACKING WOUND GCS
15 RLS 1
which injuries would cause the death of the said Gloria Alviola, thus performing all
the acts of execution which should have produced the crime of Murder as a
consequence, but, nevertheless did not produce it by reason of causes independent
of his will, that is, by the timely arrival and intervention of complainants brother-in-
laws and the able medical assistance rendered to the said Gloria Alviola which
prevented her death.
CONTRARY TO LAW.[2]
Petitioners pleaded not guilty to the charge[3] and thereafter, trial on the merits
ensued.
The prosecution and the defense differ in their versions of the incident.
The gist of the prosecution evidence is as follows:
At around 5:45 in the afternoon of February 3, 1992, Gloria rebuked herein
petitioners Aradillos and Galabo when she saw them in the act of cutting the bamboo
bridge located on the property of her husband. Thereupon, petitioners chased her
and they caught up with her near the house. Galabo then hit her several times with
a piece of wood and his carpentry bag causing her to fall down. While Gloria was
staggering face down, Aradillos hacked her twice with a carpentry ax, hitting her on
the right side of the head and on the forehead. She asked for help from the Visto
family, her neighbors, who brought her to the clinic of Dr. Alvarez in Matina,
Davao. After Dr. Alvarez gave her first aid treatment, Gloria was advised to go to
Davao Medical Center where she was confined in the ICU for four days.[4]
At the time Gloria reproached petitioners, she was within her bamboo-fenced
yard, about ten meters away from them. Her house is located five to six meters
away from the place where she was standing. Her children, Rosalito[5] and Rodilyn,
and her sister-in-law, Rosa, were also within the premises. Petitioners cut their way
through her closed bamboo gate and they overtook her while she was running
towards her house. After she was injured, her children brought her to the Visto
familys house which is located 200 meters away. Meanwhile, Rosa ran to the Alsa
Masa detachment to report the incident. Glorias four brothers-in-law, namely:
Roberto, Modesto, Efren and Nilo, and her sister-in-law, Miguela were also within the
premises but were not able to help her because they were nervous.[6]
On the other hand, petitioners invoke self-defense, contending that the victims
injuries on the head were the result of the struggle for the possession of the ax
between her and petitioner Aradillos. Petitioners, who are both carpenters,
recounted that on their way home from work in the afternoon of February 3, 1992,
they stopped by the wooden bridge where they usually pass because of an uprooted
idyok tree that obstructed their passage. Petitioner Galabo started cutting off the
roots of the tree with his carpentry ax. But upon seeing them, Gloria who had been
drinking tuba with her brothers-in-law, shouted invectives at them and threw
stones at Galabo. When Galabo was hit on his left rib, he ran for cover at a nearby
coconut tree. Petitioner Aradillos took over the cutting of the tree. Gloria continued
throwing stones. Then, she approached Aradillos and grabbed the ax from
him. While the two grappled for its possession, Glorias brothers-in-law were
throwing stones at Galabo. In the course of the struggle between Aradillos and
Gloria, the ax hit the latter. Seeing that Gloria was injured, Aradillos ran away,
followed by Galabo. Aradillos passed by his house, left the ax there, then, went
directly to the purok leader, Benjamin Autida, to whom he surrendered.[7]
The trial court believed the prosecutions account, finding that the nature of the
injuries sustained by Gloria could not have been caused during the struggle between
her and petitioner Aradillos. Thus, the trial court convicted petitioners of the crime
of Frustrated Homicide and sentenced them, as follows:
WHEREFORE, finding the guilt of the two (2) accused, Adonis Aradillos and Albino
Galabo, proven beyond reasonable doubt of Frustrated Homicide and finding in their
favor the provisions of Art. 250 of the Revised Penal Code, they are hereby
sentenced to an imprisonment of ONE (1) YEAR each and pay the costs.
For the civil liability, they are ordered to pay jointly and severally, the sum of
P10,000.00 for medical expenses and moral damages, of the victim.
SO ORDERED.[8]
On appeal, in sustaining the trial courts findings, the Court of Appeals noted
that it is unnatural and contrary to ordinary human experience for a woman, alone
and unarmed, to run towards the two male appellants and grapple for the possession
of an axe.[9] The appellate court modified the penalty imposed on petitioners and
the damages awarded in favor of the victim,[10] as follows:
ACCORDINGLY, the judgment of conviction is hereby AFFIRMED with the following
modifications:
1) The accused appellants are sentenced to suffer an imprisonment ranging
from two (2) years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as maximum; and
2) They are ordered to pay the victim jointly and severally, the sum of
P1,664.00 for medical expenses as actual damages, and P6,000.00 as moral
damages.
SO ORDERED.[11]
In their petition for review on certiorari, petitioners claim that the Court of
Appeals affirmance of their conviction with modification is not in accordance with
law, the applicable decisions of this Court and the evidence on record.
It is settled that an appeal in a criminal case throws the whole case wide open
for review[12] and it becomes the duty of the Court to correct such errors as may be
found in the judgment appealed from, whether they are assigned as errors or
not.[13]
At the outset, the Court notes that while the memoranda of the parties and
their appeal briefs focused on petitioners claim of self-defense, their evidence is
actually rooted on the testimony of petitioner Aradillos that the ax accidentally hit
Gloria during the struggle for its possession between them, thus:
Q Before the wounding incident happened, what were you doing?
A I was looking at Albino Galabo who was cutting the roots of the
idyok.
Q Where was that idyok located at that time while you were watching
Albino Galabo cutting it?
A The idyok was along the bridge where it was fallen and which
Albino cut.
. . .
Q And while Galabo was cutting the idyok, what happened next?
A He was stoned by Gloria Alviola.
. . .
Q What else transpired aside from the stoning incident?
A She shouted: Mga baga mo ug nawong. Mga squatter
mo. Mga gagmay ra ba mo ug lawas. (You are
shameless. You are squatters. you have small bodies.)
Q How did you come to know that Gloria Alviola threw stones at Albino
Galabo?
A Because I saw her.
. . .
Q Let us go back to the stoning incident. You said Gloria threw stones
at Galabo while Galabo was cutting the idyok and Gloria at the
same time uttered those words you just have quoted, what
happened to Galabo, if any, in result of the stoning of Gloria?
A Galabo was hit at his right rib cage.
Q And what happened to Galabo?
A He was in pain.
Q What else did he do, if any?
A I got the axe which Galabo used in cutting the idyok to continue
cutting the said idyok, but Gloria continuously threw stones to us
and then she grabbed the axe from my hands.
. . .
Q I will further clarify, Your Honor. How did it happen that Gloria, the
one you said threw stones at Galabo was able to wrestle with you
for the possession of the axe?
A She rushed at me.
Q After rushing at you, what did Gloria do?
A She grappled with me for the possession of the axe.
Q In relation to the wooden bridge, in what particular spot or area were
you grappling for possession of the axe?
A At the edge of the bridge.
Q Can you demonstrate to the Honorable Court how the grappling for
possession of the axe happened between you and Gloria?
A (Witness demonstrated that he placed his right hand at the lower
portion of the handle of the axe; that Glorias right hand was
holding the middle portion; and that his left hand was holding the
upper portion; and that Glorias other hand was on top of his
hand.)[14] (Emphasis supplied)
On cross-examination, Aradillos further demonstrated how Gloria sustained her
injuries:
Q Now, with that kind of illustration, Mr. Aradillos, how did Gloria
sustain the injuries because you said that it was in the course of
grappoing (sic)? Will you please demonstrate to the Court how the
injuries of Gloria Alviola was inflicted?
A (Witness makes a demonstration)

ASST. CITY PROS. CALIZO:
We would like to make of record that in his earlier
demonstration Gloria was holding the middle portion and the upper
portion of the axe. Was that the position of the axe during that
time?
A Yes. Sometimes it swung like this - the blade sometimes faced me;
sometimes it faced her.
Q How did she sustain the wound?
A She was accidentally injured because of the force of the
grappling.

Q At that time you pushed the axe, was that the position of your
hands?
A No maam. Because of the swinging, I was able to push it
accidentally towards Gloria.[15] (Emphasis Ours)
Accident and self-defense are two incompatible defenses. Accident presupposes
lack of intention, while self-defense assumes voluntariness, but induced only by
necessity.[16]
In view of the above-quoted assertions of petitioner Aradillos before the trial
court, the Court adopts a more liberal stance by disregarding the apparent conflict in
the defense raised by petitioners in their pleadings. After all, court litigations are
primarily for the search for truth, and a liberal interpretation of the rules by which
both parties are given the fullest opportunity to adduce proofs is the best way to
ferret out such truth.[17]
In People vs. Court of Appeals,[18] the Court ruled that when, during the trial
of the case, an accused claims that the crime was the result of an accident, the
burden of proving self-defense will not come into play, to wit:
It is noteworthy that during the trial, petitioner Tangan did not invoke self-defense
but claimed that Generoso was accidentally shot. As such, the burden of proving
self-defense, which normally would have belonged to Tangan, did not come into
play. Although Tangan must prove his defense of accidental firing by clear
and convincing evidence, the burden of proving the commission of the crime
remained in the prosecution.[19] (Emphasis supplied)
Accordingly, petitioners need not discharge the burden of proving self-defense,
although they must prove their defense of accidental infliction of injuries on the
victim, by clear and convincing evidence. On the prosecution remains the burden of
proving the commission of the crime beyond reasonable doubt.
It is not disputed that Gloria sustained hacking injuries. The prosecution
maintains that these injuries were the result of intentional blows, while petitioners
stand by their claim that Gloria sustained the injuries while she and Aradillos were
grappling for the possession of the ax.
Generally, the rule is that an assessment made by the trial judge of the
credibility of witnesses will not be disturbed on appeal. Having heard the testimony
of the witnesses and observed their demeanor on the witness stand, the judge is in a
better position to determine the issue of credibility.[20] But when it is shown that
some facts or circumstances of weight and substance which would affect the result of
the case have been overlooked, misunderstood or misapplied, the Court will not
hesitate to make its own evaluation of the evidence. [21]
Records show that aside from the testimony of the victim and petitioners, the
evidence for both the prosecution and the defense as to the facts and circumstances
surrounding the commission of the crime is based substantially on the corroborating
testimonies of their respective relatives, who maintained the respective versions of
the prosecution and the defense. Each family has its own ax to grind against the
other as they are embroiled in a land dispute. Thus, in order to arrive at a judicious
conclusion, these circumstances should have been taken into consideration by the
lower courts in the assessment of the respective probative weights of the evidence of
the parties.
A review of the records discloses that the prosecutions evidence failed to
support Glorias account on how she sustained the injuries on the head. In fact, her
version together with the testimonies of the prosecution witnesses is replete with
incredible details that necessarily cast serious doubts on the probative weight of the
prosecution evidence which the trial and appellate courts have overlooked.
Gloria testified on direct examination that she was inside her yard while
petitioners were at the bridge when the latter chased her, but they were able to
catch up with her near her house. Her testimony was totally demolished by the
cross-examination conducted by the prosecution. Gloria stated that she was inside
her yard while petitioners were at the bridge, ten meters away from her.[22] She
likewise asserted that her house is located five to six meters away from where she
was standing.[23] If her assertions were true, petitioners had to run ten meters
towards her while she had only five to six meters to reach her house. Given the
disparity between the distances that petitioners and Gloria had to run, evidently, she
had a good head start for her to reach her house before petitioners could be near
her.
In addition, Gloria testified that petitioners had to destroy the bamboo gate in
order to get inside the yard, thus giving her more time within which to reach her
house. Yet, Gloria claims, petitioners were able to overtake her. Unless Gloria
leisurely walked towards her house or that she had no intention of taking refuge in
her house, it would have been physically impossible for petitioners to have caught up
with her before she entered her house. As noted by the trial court, you will not wait
for someone to catch you before [you] ran (sic) away.[24] If at all, Gloria should
have already been in the safety of her house by the time petitioners would have
negotiated the distance of ten meters, not to mention the time that petitioners would
have spent in destroying the bamboo gate.
The prosecution also claims that petitioner Galabo hit Gloria several times on
the nape with a carpentry bag and a piece of wood measuring two feet in length and
two inches in diameter[25] which caused her to fall face down.[26] However, aside
from the prosecution witnesses testimonies, no other evidence was presented to
support such claim. If their testimonies were true, then Gloria should have suffered
injuries, or bruises at the very least, as a result of the blows on her nape with a
carpentry bag and a piece of wood. But interestingly, no medical evidence was
presented to confirm that Gloria sustained even a scratch from said blows.
Such lack of evidence renders incredible the prosecutions accusation that
Galabo inflicted blows on Gloria. Physical evidence is mute but an eloquent
manifestation of truth and rates highly in the hierarchy of trustworthy evidence.[27]
It enjoys a far more superior probative weight than corroborative testimonies.[28] In
this case, the absence of physical injuries and medical findings negate Glorias claim
that she was hit by petitioner Galabo.
Gloria further testified on direct examination that after sustaining injuries, she
sought help from her neighbors, the Visto family, who brought her to the clinic of Dr.
Generoso B. Alvarez. On cross-examination, Gloria stated that it was her children,
Glodilito and Rodilyn,[29] who managed to help her get to the Visto familys house,
which is located 200 meters away from her house.[30] It would have been easy to
believe such testimony if at the time the fracas occurred, there were no other people
within the immediate vicinity who could have come to Glorias aid. But, the
corroborating testimonies of the prosecution witnesses all declare, that at that time,
Glorias four brothers-in-law were in Rosa Alviolas house, which was merely ten
meters away from the place where the alleged hacking occured. Roberto Alviola
testified that he just watched and went inside his house after the incident while his
other brothers ran away when the incident took place.[31] It is claimed that they
were not able to help Gloria because they were nervous. The Court finds this utterly
incredible and totally absurd. No amount of stretch of any ones imagination can it
be believed that four able-bodied men will be so unconcerned so as to just watch and
let an injured woman, a relative at that, and her two young children, walk 200
meters for help, when they were already close by and could have readily given
assistance. They did not even exert any effort to call for their neighbors for
assistance or immediately report the incident. In fact, it had to take two women,
Rosa and Miguela Alviola, to run to the Alsa Masa detachment and report the
incident.
It is even highly improbable that petitioners would pursue Gloria into her yard
to harm her. In the first place, the prosecution failed to adduce any plausible reason
why petitioners would suddenly run after Gloria. Also, at the time of the alleged
chase, Gloria was inside her yard, together with her children, Glodilito and Rodilyn,
and her sister-in-law, Rosa Alviola.[32] It is very unlikely that petitioners will have
the audacity to attack Gloria inside her premises and within the sight of her family
members who could be witnesses to their alleged malevolent intent to kill Gloria.
Most telling of the incredibility of the version of the prosecution, is the
testimony of Roberto Alviola, the victims brother-in-law. According to Roberto, he
heard Gloria shouting for help.[33] He went out of his house and saw petitioners
ganging up on her. After seeing this, he went back inside his house, remained there
and did nothing.[34] Meanwhile, his brothers, Efren, Nilo and Modesto, who were
with him earlier, had ran away.[35] Such display of apathy or unconcern for a
relative goes against ordinary human behavior, especially for Filipinos who are noted
for close-knit familial ties and readiness to help family members at the risk of their
own lives.
Testimonial evidence to be credible should not only come from the mouth of a
credible witness but should also be credible, reasonable and in accord with human
experience, failing in which, it should be rejected.[36]
Moreover, the Court cannot concur with the appellate courts observation that it
is unnatural and contrary to ordinary human experience for a woman, alone and
unarmed, to run towards the two male appellants and grapple for the possession of
an axe.[37] Such observation cannot be accepted as absolute. The lower courts
failed to consider the established facts and the circumstances of the case. It need
not be said that there are women who, when provoked, throw caution to the wind
and charge on to fight back. In this case, it is not unnatural for Gloria to show
aggression against petitioners. It is shown that the petitioners are smaller than
Gloria.[38] Moreover, unrebutted defense evidence disclose that on February 2,
1992, a day before the incident, Lydia Galabo, wife of petitioner Albino Galabo and
Aradillos older sister, filed with their barangay a complaint for harassment, stoning
and slight physical injuries against Gloria.[39] Summons was served on Gloria
through Purok Leader Benjamin Autida in the morning of February 3, 1992.[40]
Gloria manifestly harbors an animosity against petitioners and their family, and this
explains her frenzied reaction towards petitioners when the incident occurred.
All these facts and circumstances when taken into account engender the Court
to suspect the truthfulness of the prosecutions account. To accuse is one thing, to
prove is another. In this case, the prosecutions accusations do not jibe with their
proofs. As such, the Court has no other recourse but to disbelieve the tale as
presented by the prosecution.
In contrast, the defenses account is credible as it is in accord with the natural
course of things. As told by petitioner Aradillos, it was Gloria who went near
Aradillos who was then cutting the roots of the idyok tree, and grabbed the ax,
obviously with the intention of stopping Aradillos from cutting the tree. Not wanting
to let go of the ax, Aradillos held on to it and the two then struggled for its
possession. With both of their hands on the handle, the ax went swaying and
swinging, which accidentally hit Gloria.[41] The injuries sustained by Gloria, in fact,
confirm that it was not intentional. For if it were so, petitioner Aradillos would have
exerted such force that Gloria would have suffered more than what she had
sustained. Worse, she would not have survived at all.
That Gloria and her brothers-in-law were drinking tuba in the afternoon of
February 3, 1992; that Gloria stoned Galabo and that Aradillos grappled with Gloria
for the gun as testified to by petitioners and other defense witnesses are more
credible than the testimonies of the prosecution witnesses. This is strengthened by
the fact that it was not refuted by the prosecution that her brothers-in-law did not
come to her aid, and that after she was injured, she had to seek her neighbors
assistance who were 200 meters away instead of her relatives who were just
nearby. As previously discussed, the Court cannot fathom why her brothers-in-law
did not help Gloria, unless, as testified by petitioners, Glorias in-laws were drinking
tuba prior to the incident and the former were already intoxicated and therefore
could not have been of any assistance to Gloria.
The Court likewise finds that conspiracy was not established. Conspiracy exists
when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.[42] Like the offense itself, conspiracy must be
proved beyond reasonable doubt.[43] Thus, it has been held that neither joint nor
simultaneous action is per se sufficient proof of conspiracy.[44]
In the present case, the defense sufficiently rebutted the accusation that
Galabo and Aradillos acted in concert in harming Alviola. As their evidence shows, it
was only Aradillos who struggled with the victim, and Galabo was then fending off
the stones being thrown by the victims brothers-in-law. Galabo had nothing to do
with the injuries sustained by Gloria. Galabos only participation in the incident was
his presence, but mere presence at the scene of the crime does not imply
conspiracy.[45]
Even assuming that the prosecutions version is true, and Galabo hit Gloria with
a carpentry bag and a piece of wood, and thereafter, Aradillos hacked Gloria, still,
the seemingly concerted and simultaneous acts of petitioners were more of a
spontaneous reaction to what they perceived to be an aggression by Gloria, rather
than the result of a common plan to kill the victim. Hence, their liability is individual
and not collective.[46] More specifically, Aradillos is solely liable for the injuries
sustained by Gloria. There is no evidence that Gloria sustained injuries from the acts
of Galabo.
Lastly, the Court cannot agree with the lower courts finding that the nature of
Glorias injuries justifies the conclusion that these were fatal and intentionally
inflicted, and cannot be the result of a mere struggle such that petitioners are guilty
of Frustrated Homicide.
Intent to kill is the principal element of attempted or frustrated homicide, or
murder.[47] Such intent must be proved in a clear and evident manner to exclude
every possible doubt as to the homicidal intent of the aggressor.[48] The testimonies
of the doctors who treated Gloria did not establish with certainty the nature, extent,
depth and severity of the wounds sustained by her. Such medical evidence could
have shed light as to the relative position of Aradillos and Gloria at the time the
blows were inflicted, whether the wounds sustained by the victim were a result of an
intentional infliction or accidental, or whether it was mortal or superficial. In People
vs. Matyaong,[49] the Court discussed the importance of ascertaining the degree of
injury sustained by a victim, viz.:
In considering the extent of injury done, account must be taken of the injury to the
function of the various organs, and also the danger to life. A division into mortal and
nonmortal wounds, if it could be made, would be very desirable; but the unexpected
complications and the various extraneous causes which give gravity to the simplest
cases, and, on the other hand, the favorable termination of some injuries apparently
the most dangerous, render any such classification impracticable. The general
classification into slight, severe, dangerous, and mortal wounds may be used, but
the possibility of the slight wound terminating with the loss of the persons life, and
the apparently mortal ending with only a slight impairment of some function, must
always be kept in mind. . . .
The danger to life of any wound is dependent upon a number of factors: the extent
of the injury, the form of the wound, the region of the body affected, the blood
vessels, nerves, or organs involved, the entrance of disease-producing bacteria or
other organisms into the wound, the age and constitution of the person injured, and
the opportunities for administering proper surgical treatment. . . .[50]
Dr. Generoso B. Alvarez who initially attended to Gloria and gave her first aid
treatment, opined that if the bleeding was left untreated, the victim could die in six
to twelve hours but at the same time, but also stated on the witness stand that
Gloria suffered two lacerations on the head which merely required suturing. Dr.
Alvarez testified as follows:
Q How would you describe the bleeding that you saw?
A Profuse, I would say.
Q In your medical studies and experience, what appears to be the most
heavy bleeding in the part of the body?
A Generally, wounds on the head, usually profuse, even small wounds.
Q After a patient was on your examining table, and you saw blood on
her head and on her body, what did you do?
A I have to examine the patient on the vital signs, whether the pulse
rate and state of consciousness was stable, and because my clinic
was very limited, when you feel that there are other colleagues who
can do it much better then you, but at that time I was at a loss
knowing that it was a medico-legal case, but at that time I had no
other recourse because it was at that time that there was a jeepney
strike, so it took time for her to be transported for the moment, so I
had to control the bleeding and keep the patient stable until she
could be transported to the hospital.
. . .
Q Since you knew that the patient was stable, what did you do next?
A After cleaning up the face with blood, I have to inspect the extent of
the wound, I put my finger on the wound.
Q What did you find out on the head of the patient?
A There were 2 wounds, one on the forehead and there was another
wound on the right side up on the scalp, about 2.5 inches.
Q In that wound in the forehead, what did you do next?
A I inserted my finger to find out whether there is brain damage or
fracture, because you do not close a wound if you suspect there is a
fracture inside because the blood will get inside the brain, and I
found out there was a depressed fracture, I suppose it was a sharp
injury based on the history, there was a depressed fracture and the
same on the other wound.
. . .
ATTY. PALABRICA:
Q Are these kind of wounds painful?
A Painful, for a while.
Q Could that have caused death on the patient?
A If she was unfortunate, she could have died. Fortunately for
her, it was in the area of the brain where it is not very
important to us, in fact, you could remove that portion of the
brain, and still be alived (sic).
Q You said that the bleeding was profuse, were you able to stop the
bleeding?
A Yes.
Q If that bleeding was not stop (sic), would the patient have died?
A Yes, it was at that time the jeepney was on strike, normally,
you do not suture wound on the scalp when you know there
is bleeding inside, but under the situation, there was no way
to transport her to the hospital, the first thing I did was to
stop the bleeding.
Q If that wound was left to bleed on its own, how many minutes would
it have taken to live or die?
A It could depend, 6 to 12 hours.
. . .
Q Multiple laceration, what do you mean?
A More than one laceration.
Q When you say laceration, what does it mean?
A It is a wound.
Q Laceration could usually be caused by?
A It could be blunt, it could be sharp instrument.
Q What do you mean by 2 lacerations?
A Forehead and the scalp.
Q Scalp is also the laceration of the other wound?
A Yes.
. . .
Q There is here exploration and repair done.
A As I said earlier, before you touch anything, you have to explore the
head.
Q How about the repair?
A Suture.[51] (Emphasis supplied)
Taken in its entirety, it appears that the wounds sustained by Gloria were not so
grave so as to sustain the claim of the prosecution that petitioners had the intention
to kill Gloria when she was hit with the ax by Aradillos on the head.
Moreover, another prosecution witness, Dr. Rene Elias Lopez, testified that the
fractures on the right and left frontal area of Glorias skull were slight or
minimal.[52] This weakened the claim of the prosecution that the injuries sustained
by Gloria could have been fatal or were inflicted by Aradillos with such force as to
establish the intent to kill.
On direct examination, Dr. Lopez testified that there was no fracture in the
skull and that the fracture chip did not present much of a problem. Further, he was
not emphatic on the fatal nature of the injuries sustained by Gloria, thus:
Q Frontal chip, what do you mean chip?
A It means a small fracture.
Q How small was that?
A Its quite small, maybe a finger nail.
Q What happened to the forehead or frontal bone which was chipped,
what happened?
A This means that the frontal bone had a chip fracture on the bone,
left and right areas. There was a break in the continuity of the
bone.
Q In other words, the left frontal area of the head was sort of cut and
damaged, is that what you want to tell us?
A The outer layer of the skull was indeed violated and resulted in the .
. .
ATTY. DE VERA:
Objection, Your Honor, the witness is incompetent, and no basis.
Q Now, as a doctor, what would be the effect of the chip on the left and
right frontal area of the head?
COURT:
Lay the basis first.
Q Doctor, are you familiar with the effects of the chip on the frontal
area of the head?
A Yes, sir.
Q Now, what would be the effect since you are familiar with the effects?
. . .
Q In this case you said there was a chip in the left forehead or right
frontal bone, what would be the effect doctor of that chip which you
identified?
A The chip itself does not present much of a surgical problem,
however there are several instances wherein the chip fractured
presented in the skull there might be other injuries which
necessitates further management.
Q In this case doctor what did you discover or find in this patient after
you examined her?
A The patient, as I have said presented with a sutured wound. Further
X-ray on the skull showed a fracture on the frontal bone. So, we
were entertaining the possibility of an intra-cranial injury inside the
skull, and therefore the patient must be admitted and observed for
any further consequence of the injury sustained.
Q In the same manner the wound on the right, what would have been
the effect of that?
A The same, sir.
Q As far as you know the wound was depressed?
A There was no depression in the skull.
Q Doctor, what medication did you advise the patient after she arrived
in the hospital?
A She was under IV, given anti-biotics, anti-tetanus, prophylactic
immunization. She was placed in the ICU.
Q What do you mean by IV?
A Intraveinous fluid.
Q Why?
A We were entertaining the possibility of an intra-cranial injury. If
there is no IV placed something might develop as a result of the
injury. We might lost time and will not be able to give her
medication on an emergency basis.
Q In other words, the patient might die?
ATTY. DE VERA:
Very leading, Your Honor.
COURT:
Reform your question.
Q What would have been the effect doctor if this has not been done?
A The purpose of the IV is more or a precautionary measure of any
untowards incident as a result of the injury. Thats why she was
admitted to the ICU.
Q Doctor, how about anti-tetanus, why do you give anti-tetanus?
A Any patient presented with a break in the skin must be administered
with anti-tetanus.
Q Doctor, what were the others you said?
A Anti-biotics, penicillin and chloromphenicol.
Q Standard doses? Maximum doses?
A These are maximum doses.
Q Why?
A We have to safeguard the possibility of an intra-cranial injury,
therefore maximum dosages are what you call recommended on the
patient.
Q In other words, if you do not give the usual medication as you said
and administration, what is the danger to the patient, please tell
us?
A The patient would develop skin infection.
Q And what would happen if there is skin infection?
A The wound will not heal.
Q And what else?
A If it does not heal, then the patient might develop fever later on.[53]
On cross-examination, Dr. Lopez further testified:
Q So, as you testified a while ago, you were the one who interpreted
the X-ray findings, and according to you, you found compound
fractures where?
A Both right and left frontal area of the skull.
Q Of the forehead?
A Yes, sir.
Q But the fracture was minimal or slight because you said
earlier something like the equivalent of a chip, so it was
minimal or slight?
A Yes, sir.
Q And there was no other surgical operation performed on the
patient with respect to the said fracture that you found?
A None, sir.
Q In other words, the fracture could heal by itself through
natural process without any outside medical intervention? I
am referring to the fracture itself.
A The fracture could heal by itself, yes.[54] (Emphasis supplied)
Dr. Lopez likewise stated that Gloria was admitted to the Intensive Care Unit
(ICU) for further observation as a matter of standard procedure because they cannot
discount the possibility of intra-cranial injury.[55] The victim was then taken out of
the ICU after 24 hours of observation and discharged from the hospital on February
6, 1992,[56] three days after the alleged hacking incident. In his Medical Certificate,
Dr. Lopez made the following diagnosis:
Compound fracture, (R) and (L) Frontal area 2 to hacking wound GCS 15
RLS 1
Probable healing time will be Fourteen (14) days barring
complication.[57]
There is therefore, a dearth of medical evidence on record to prove that the nature
of injuries inflicted by Aradillos showed any willful intent to kill Gloria.
Nonetheless, Aradillos must be answerable for the injuries he inflicted on
Gloria. He cannot hide behind the defense of accident to escape the consequences of
his act. Under Article 12, paragraph 4 of the Revised Penal Code, a person, who
while performing a lawful act with due care, causes an injury by accident without
fault or intention of causing it, is exempt from criminal liability.[58] It cannot be said
that Aradillos was performing a lawful act when he struggled with Gloria for the ax as
the latters act of taking hold of the ax was equivocal, and it cannot be deduced
therefrom that he was under the threat of an unlawful aggression from her. The
defense of accident, therefore, cannot exempt Aradillos from liability.
Although the Information charged petitioners with Frustrated Murder, a finding
of guilt for the lesser offense of less serious physical injuries may be made
considering that the latter offense is necessarily included in the former since the
essential ingredients of physical injuries constitute and form part of those
constituting the offense of murder.[59] Similarly, an accused may be convicted of
slight, less serious or serious physical injuries in a prosecution for homicide or
murder, inasmuch as the infliction of physical injuries could lead to any of the latter
offenses when carried to its utmost degree despite the fact that an essential requisite
of the crime of homicide or murder - intent to kill - is not required in a prosecution
for physical injuries.[60]
In conclusion, absent competent proof, and there being no conspiracy, Aradillos
should be held liable only for less serious physical injuries under Article 265 of the
Revised Penal Code, as amended,[61] as the wounds sustained by Gloria required
medical attendance of fourteen days.[62]
Galabo must be absolved from any liability as the prosecution failed to
conclusively prove that he conspired with Aradillos in the commission of the crime.
In imposing the proper penalty, the lower courts failed to take into
consideration the mitigating circumstance of voluntary surrender in favor of
petitioner Aradillos. Evidence show that Aradillos spontaneously and unconditionally
surrendered to the authorities immediately after the incident, placing himself at their
disposal, and saving them the time and effort attendant to a search.[63] Purok
Leader Benjamin Autida testified that Aradillos and Galabo immediately went to him
after the incident and surrendered.[64] This was corroborated by SP02 Celso
Hernandez who attested that by the time Rosa Alviola reported the incident to them,
Autida had already endorsed petitioners Aradillos and Galabo to their office.[65]
Thus, the mitigating circumstance should lighten the penalty to be imposed on
petitioner Aradillos.
Article 265 of the Revised Penal Code, as amended, penalizes the crime of Less
Serious Physical Injuries with arresto mayor, or imprisonment for a period of one
month and one day to six months. The Indeterminate Sentence Law is not
applicable in this case because the maximum penalty does not exceed one year.[66]
Appreciating the mitigating circumstance of voluntary surrender and there being no
aggravating circumstance, the penalty should be imposed in its minimum period, or
anywhere within a period of one month and one day to two months.
As regards the damages awarded, the Court finds that the award of P1,664.00
as reimbursement for medical expenses is in order, it being supported by
evidence.[67] Likewise, the victim having suffered actual injuries, she is entitled to
moral damages.[68] The award of P5,000.00 is sufficient under the
circumstances.[69]
WHEREFORE, the decision dated February 12, 1998 of the Court of Appeals in
CA-G.R. CR No. 17316 is MODIFIED. Petitioner Adonis Aradillos is found GUILTY
beyond reasonable doubt of the crime of Less Serious Physical Injuries, and
sentenced to suffer two (2) months of imprisonment, and to pay Gloria Alviola the
amount of One Thousand Six Hundred and Sixty-Four Pesos (P1,664.000) as actual
damages, and Five Thousand Pesos (P5,000.00) as moral damages.
Petitioner Albino Galabo is ACQUITTED and the bail bond posted for his provisional
liberty is cancelled and released.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y
BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and
BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in
Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court)
of Cavite, under an information which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping and
assisting one another, with treachery and evident premeditation, taking advantage of
their superior strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire did then
and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani
Miranda which caused his subsequent death, to the damage and prejudice of the
heirs of the aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the
means employed was to weaken the defense; that the wrong done in the commission
of the crime was deliberately augmented by causing another wrong, that is the
burning of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After
trial, the trial court rendered a decision finding both accused guilty on the crime of
murder but crediting in favor of the accused Pugay the mitigating circumstance of
lack of intention to commit so grave a wrong, the dispositive portion of which reads
as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y
Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and
appreciating the aforestated mitigating circumstance in favor of Pugay, he is
sentenced to a prison term ranging from twelve (12) years of prision mayor, as
minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to
suffer the penalty of reclusion perpetua together with the accessories of the law for
both of them. The accused are solidarily held liable to indemnify the heirs of the
victim in the amount of P13,940.00 plus moral damages of P10,000.00 and
exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and
assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-
APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE
ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE
CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE
PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE
TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS
ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends.
Miranda used to run errands for Pugay and at times they slept together. On the
evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario,
Cavite. There were different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris
wheel and reading a comic book with his friend Henry. Later, the accused Pugay and
Samson with several companions arrived. These persons appeared to be drunk as
they were all happy and noisy. As the group saw the deceased walking nearby, they
started making fun of him. They made the deceased dance by tickling him with a
piece of wood.
Not content with what they were doing with the deceased, the accused Pugay
suddenly took a can of gasoline from under the engine of the ferns wheel and poured
its contents on the body of the former. Gabion told Pugay not to do so while the
latter was already in the process of pouring the gasoline. Then, the accused Samson
set Miranda on fire making a human torch out of him.
The ferris wheel operator later arrived and doused with water the burning body of
the deceased. Some people around also poured sand on the burning body and others
wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and
other police officers of the Rosario Police Force arrived at the scene of the incident.
Upon inquiring as to who were responsible for the dastardly act, the persons around
spontaneously pointed to Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime,
the police officers brought Gabion, the two accused and five other persons to the
Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the
written statements of Gabion and the two accused, after which Gabion was released.
The two accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the
accused-appellants for the reversal of the decision of the court a quo to be without
merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave
their written statements to the police. The accused Pugay admitted in his statement,
Exhibit F, that he poured a can of gasoline on the deceased believing that the
contents thereof was water and then the accused Samson set the deceased on fire.
The accused Samson, on the other hand, alleged in his statement that he saw Pugay
pour gasoline on Miranda but did not see the person who set him on fire. Worthy of
note is the fact that both statements did not impute any participation of eyewitness
Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated their written
statements alleging that they were extracted by force. They claimed that the police
maltreated them into admitting authorship of the crime. They also engaged in a
concerted effort to lay the blame on Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were
mentioned and discussed in the decision of the court a quo, the contents thereof
were not utilized as the sole basis for the findings of facts in the decision rendered.
The said court categorically stated that "even without Exhibits 'F' and 'G', there is
still Gabion's straightforward, positive and convincing testimony which remains
unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay
and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of
other eyewitnesses to the incident. They claim that despite the fact that there were
other persons investigated by the police, only Gabion was presented as an
eyewitness during the trial of the case. They argue that the deliberate non-
presentation of these persons raises the presumption that their testimonies would be
adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of
the crime. In fact there appears on record (pp. 16-17, Records) the written
statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts
and imputing the respective acts of pouring of gasoline and setting the deceased on
fire to the accused-appellants as testified to by Gabion in open court. They were
listed as prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not give rise
to the presumption that evidence wilfully suppressed would be adverse if produced.
This presumption does not apply to the suppression of merely corroborative evidence
(U.S. vs. Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to
utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion alleging that
not only was the latter requested by the mother of the deceased to testify for the
prosecution in exchange for his absolution from liability but also because his
testimony that he was reading a comic book during an unusual event is contrary to
human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who asked
him to testify and state the truth about the incident. The mother of the deceased
likewise testified that she never talked to Gabion and that she saw the latter for the
first time when the instant case was tried. Besides, the accused Pugay admitted that
Gabion was his friend and both Pugay and the other accused Samson testified that
they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason
to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw
Pugay pour gasoline on the deceased and then Samson set him on fire is incredible,
the accused-appellants quote Gabion's testimony on cross-examination that, after
telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading
comics; and that it was only when the victim's body was on fire that he noticed a
commotion.
However, explaining this testimony on re-direct examination, Gabion stated:
Q. Mr. Gabion, you told the Court on cross-examination that you were reading
comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by
Samson. How could you possibly see that incident while you were reading comics?
A. I put down the comics which I am reading and I saw what they were doing.
Q. According to you also before Bayani was poured with gasoline and lighted and
burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him
from doing so.
Q. We want to clarify. According to you a while ago you had a talk with Pugay and as
a matter of fact, you told him not to pour gasoline. That is what I want to know from
you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you
come to know that Pugay will pour gasoline unto him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that
actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to
you to ask him not to and then later you said you asked not to pour gasoline. Did
Pugay tell you he was going to pour gasoline on Bayani?
A. I was not told, sir.
Q. Did you come to know..... how did you come to know he was going to pour
gasoline that is why you prevent him?
A. Because he was holding on a container of gasoline. I thought it was water but it
was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got
hold of a can of gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you told him not to
pour gasoline when he merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour gasoline he was already in the
process of pouring gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading a comic
book; that Gabion stopped reading when the group of Pugay started to make fun of
the deceased; that Gabion saw Pugay get the can of gasoline from under the engine
of the ferris wheel; that it was while Pugay was in the process of pouring the
gasoline on the body of the deceased when Gabion warned him not to do so; and
that Gabion later saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy
or unity of criminal purpose and intention between the two accused-appellants
immediately before the commission of the crime. There was no animosity between
the deceased and the accused Pugay or Samson. Their meeting at the scene of the
incident was accidental. It is also clear that the accused Pugay and his group merely
wanted to make fun of the deceased. Hence, the respective criminal responsibility of
Pugay and Samson arising from different acts directed against the deceased is
individual and not collective, and each of them is liable only for the act committed by
him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the accused
Pugay. Having taken the can from under the engine of the ferris wheel and holding it
before pouring its contents on the body of the deceased, this accused knew that the
can contained gasoline. The stinging smell of this flammable liquid could not have
escaped his notice even before pouring the same. Clearly, he failed to exercise all
the diligence necessary to avoid every undesirable consequence arising from any act
that may be committed by his companions who at the time were making fun of the
deceased. We agree with the Solicitor General that the accused is only guilty of
homicide through reckless imprudence defined in Article 365 of the Revised Penal
Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as
follows:
A man must use common sense and exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee and
for acts which no one would have performed except through culpable abandon.
Otherwise his own person, rights and property, all those of his fellow-beings, would
ever be exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate one
ranging from four (4) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum. With respect to the accused
Samson, the Solicitor General in his brief contends that "his conviction of murder, is
proper considering that his act in setting the deceased on fire knowing that gasoline
had just been poured on him is characterized by treachery as the victim was left
completely helpless to defend and protect himself against such an outrage" (p. 57,
Rollo). We do not agree.
There is entire absence of proof in the record that the accused Samson had some
reason to kill the deceased before the incident. On the contrary, there is adequate
evidence showing that his act was merely a part of their fun-making that evening.
For the circumstance of treachery to exist, the attack must be deliberate and the
culprit employed 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.
There can be no doubt that the accused Samson knew very well that the liquid
poured on the body of the deceased was gasoline and a flammable substance for he
would not have committed the act of setting the latter on fire if it were otherwise.
Giving him the benefit of doubt, it call be conceded that as part of their fun-making
he merely intended to set the deceased's clothes on fire. His act, however, does not
relieve him of criminal responsibility. Burning the clothes of the victim would cause
at the very least some kind of physical injuries on his person, a felony defined in the
Revised Penal Code. If his act resulted into a graver offense, as what took place in
the instant case, he must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, 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.
As no sufficient evidence appears in the record establishing any qualifying
circumstances, the accused Samson is only guilty of the crime of homicide defined
and penalized in Article 249 of the Revised Penal Code, as amended. We are
disposed to credit in his favor the ordinary mitigating circumstance of no intention to
commit so grave a wrong as that committed as there is evidence of a fact from which
such conclusion can be drawn. The eyewitness Gabion testified that the accused
Pugay and Samson were stunned when they noticed the deceased burning (Tsn,
June 1, 1983, pp. 16-17).<re||an1w>
The proper penalty that the accused Samson must suffer is an indeterminate one
ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of
reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the amount spent
by Miranda's parents for his hospitalization, wake and interment. The indemnity for
death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is
increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount plus the
P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by
the court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated. Costs
against the accused-appellants.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO MANERO, JR.,
EDILBERTO MANERO, ELPIDIO MANERO, SEVERINO LINES, RUDY LINES,
EFREN PLEAGO, ROGER BEDAO, RODRIGO ESPIA, ARSENIO VILLAMOR,
JR., JOHN DOE and PETER DOE, accused.
SEVERINO LINES, RUDY LINES, EFREN PLEAGO and ROGER BENDAO,
accused-appellants.
The Solicitor General for plaintiff-appellee.
Romeo P. Jorge for accused-appellants.

BELLOSILLO, J.:
This was gruesome murder in a main thoroughfare an hour before sundown. A
hapless foreign religious minister was riddled with bullets, his head shattered into
bits and pieces amidst the revelling of his executioners as they danced and laughed
around their quarry, chanting the tune "Mutya Ka Baleleng", a popular regional folk
song, kicking and scoffing at his prostrate, miserable, spiritless figure that was
gasping its last. Seemingly unsatiated with the ignominy of their manslaughter, their
leader picked up pieces of the splattered brain and mockingly displayed them before
horrified spectators. Some accounts swear that acts of cannibalism ensued, although
they were not sufficiently demonstrated. However, for their outrageous feat, the
gangleader already earned the monicker "cannibal priest-killer" But, what is
indubitable is that Fr. Tulio Favali
1
was senselessly killed for no apparent reason
than that he was one of the Italian Catholic missionaries laboring in heir vineyard in
the hinterlands of Mindanao.
2

In the aftermath of the murder, police authorities launched a massive manhunt
which resulted in the capture of the perpetrators except Arsenio Villamor, Jr., and
two unidentified persons who eluded arrest and still remain at large.
Informations for Murder,
3
Attempted Murder
4
and Arson
5
were accordingly filed
against those responsible for the frenzied orgy of violence that fateful day of 11 April
1985. As these cases arose from the same occasion, they were all consolidated in
Branch 17 of the Regional Trial Court of Kidapawan, Cotabato.
6

After trial, the court a quo held
WHEREFORE . . . the Court finds the accused Norberto Manero, Jr. alias Commander
Bucay, Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines,
Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond
reasonable doubt of the offense of Murder, and with the aggravating circumstances
of superior strength and treachery, hereby sentences each of them to a penalty of
imprisonment of reclusion perpetua; to pay the Pontifical Institute of Foreign Mission
(PIME) Brothers, the congregation to which Father Tulio Favali belonged, a civil
indemnity of P12,000.00; attorney's fees in the sum of P50,000.00 for each of the
eight (8) accused or a total sum of P400,000.00; court appearance fee of P10,000.00
for every day the case was set for trial; moral damages in the sum of P100,000.00;
and to pay proportionately the costs.
Further, the Court finds the accused Norberto Manero, Jr. alias Commander Bucay
GUILTY beyond reasonable doubt of the offense of Arson and with the application of
the Indeterminate Sentence Law, hereby sentences him to an indeterminate penalty
of imprisonment of not less than four (4) years, nine (9) months, one (1) day of
prision correccional, as minimum, to six (6) years of prision correccional, as
maximum, and to indemnify the Pontifical Institute of Foreign Mission (PIME)
Brothers, the congregation to which Father Tulio Favali belonged, the sum of
P19,000.00 representing the value of the motorcycle and to pay the costs.
Finally, the Court finds the accused Norberto Manero, Jr., alias Commander Bucay,
Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo Espia
alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond reasonable doubt of the
offense of Attempted Murder and with the application of the Indeterminate Sentence
Law, hereby sentences each of them to an indeterminate penalty of imprisonment of
not less than two (2) years, four (4) months and one (1) day of prision correccional,
and minimum, to eight (8) years and twenty (20) days of prision mayor, as
maximum, and to pay the complainant Rufino Robles the sum of P20,000.00 as
attorney's fees and P2,000.00 as court appearance fee for every day of trial and to
pay proportionately the costs.
The foregoing penalties shall be served by the said accused successively in the order
of their respective severity in accordance with the provisions of Article 70 of the
Revised Penal Code, as amended.
7

From this judgment of conviction only accused Severino Lines, Rudy Lines, Efren
Pleago and Roger Bedao appealed with respect to the cases for Murder and
Attempted Murder. The Manero brothers as well as Rodrigo Espia did not appeal;
neither did Norberto Manero, Jr., in the Arson case. Consequently, the decision as
against them already became final.
Culled from the records, the facts are: On 11 April 1985, around 10:00 o'clock in the
morning, the Manero brothers Norberto Jr., Edilberto and Elpidio, along with Rodrigo
Espia, Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao, were inside the
eatery of one Reynaldo Diocades at Km. 125, La Esperanza, Tulunan, Cotabato. They
were conferring with Arsenio Villamor, Jr., private secretary to the Municipal Mayor
of Tulunan, Cotabato, and his two (2) unidentified bodyguards. Plans to liquidate a
number of suspected communist sympathizers were discussed. Arsenio Villamor, Jr.
scribbled on a cigarette wrapper the following "NPA v. NPA, starring Fr. Peter,
Domingo Gomez, Bantil, Fred Gapate, Rene alias Tabagac and Villaning." "Fr. Peter"
is Fr. Peter Geremias, an Italian priest suspected of having links with the communist
movement; "Bantil" is Rufino Robles, a Catholic lay leader who is the complaining
witness in the Attempted Murder; Domingo Gomez is another lay leader, while the
others are simply "messengers". On the same occasion, the conspirators agreed to
Edilberto Manero's proposal that should they fail to kill Fr. Peter Geremias, another
Italian priest would be killed in his stead.
8

At about 1:00 o'clock that afternoon, Elpidio Manero with two (2) unidentified
companions nailed a placard on a street-post beside the eatery of Deocades. The
placard bore the same inscriptions as those found on the cigarette wrapper except
for the additional phrase "versus Bucay, Edil and Palo." Some two (2) hours later,
Elpidio also posted a wooden placard bearing the same message on a street cross-
sign close to the eatery.
9

Later, at 4:00 o'clock, the Manero brothers, together with Espia and the four (4)
appellants, all with assorted firearms, proceeded to the house of "Bantil", their first
intended victim, which was also in the vicinity of Deocades' carinderia. They were
met by "Bantil" who confronted them why his name was included in the placards.
Edilberto brushed aside the query; instead, he asked "Bantil" if he had any qualms
about it, and without any provocation, Edilberto drew his revolver and fired at the
forehead of "Bantil". "Bantil" was able to parry the gun, albeit his right finger and the
lower portion of his right ear were hit. Then they grappled for its possession until
"Bantil" was extricated by his wife from the fray. But, as he was running away, he
was again fired upon by Edilberto. Only his trousers were hit. "Bantil" however
managed to seek refuge in the house of a certain Domingo Gomez.
10
Norberto, Jr.,
ordered his men to surround the house and not to allow any one to get out so that
"Bantil" would die of hemorrhage. Then Edilberto went back to the restaurant of
Deocades and pistol-whipped him on the face and accused him of being a communist
coddler, while appellants and their cohorts relished the unfolding drama.
11

Moments later, while Deocades was feeding his swine, Edilberto strewed him with a
burst of gunfire from his M-14 Armalite. Deocades cowered in fear as he knelt with
both hands clenched at the back of his head. This again drew boisterous laughter
and ridicule from the dreaded desperados.
At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his motorcycle. He
entered the house of Gomez. While inside, Norberto, Jr., and his co-accused Pleago
towed the motorcycle outside to the center of the highway. Norberto, Jr., opened the
gasoline tank, spilled some fuel, lit a fire and burned the motorcycle. As the vehicle
was ablaze, the felons raved and rejoiced.
12

Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. But the latter
simply stepped backwards and executed a thumbs-down signal. At this point,
Edilberto asked the priest: "Ano ang gusto mo, padre (What is it you want, Father)?
Gusto mo, Father, bukon ko ang ulo mo (Do you want me, Father, to break your
head)?" Thereafter, in a flash, Edilberto fired at the head of the priest. As Fr. Favali
dropped to the ground, his hands clasped against his chest, Norberto, Jr., taunted
Edilberto if that was the only way he knew to kill a priest. Slighted over the remark,
Edilberto jumped over the prostrate body three (3) times, kicked it twice, and fired
anew. The burst of gunfire virtually shattered the head of Fr. Favali, causing his brain
to scatter on the road. As Norberto, Jr., flaunted the brain to the terrified onlookers,
his brothers danced and sang "Mutya Ka Baleleng" to the delight of their comrades-
in-arms who now took guarded positions to isolate the victim from possible
assistance.
13

In seeking exculpation from criminal liability, appellants Severino Lines, Rudy Lines,
Efren Pleago and Roger Bedao contend that the trial court erred in disregarding
their respective defenses of alibi which, if properly appreciated, would tend to
establish that there was no prior agreement to kill; that the intended victim was Fr.
Peter Geremias, not Fr. Tulio Favali; that there was only one (1) gunman, Edilberto;
and, that there was absolutely no showing that appellants cooperated in the shooting
of the victim despite their proximity at the time to Edilberto.
But the evidence on record does not agree with the arguments of accused-
appellants.
On their defense of alibi, accused brothers Severino and Rudy Lines claim that they
were harvesting palay the whole day of 11 April 1985 some one kilometer away from
the crime scene. Accused Roger Bedao alleges that he was on an errand for the
church to buy lumber and nipa in M'lang, Cotabato, that morning of 11 April 1985,
taking along his wife and sick child for medical treatment and arrived in La
Esperanza, Tulunan, past noontime.
Interestingly, all appellants similarly contend that it was only after they heard
gunshots that they rushed to the house of Norberto Manero, Sr., Barangay Captain
of La Esperanza, where they were joined by their fellow CHDF members and co-
accused, and that it was only then that they proceeded together to where the crime
took place at Km. 125.
It is axiomatic that the accused interposing the defense of alibi must not only be at
some other place but that it must also be physically impossible for him to be at the
scene of the crime at the time of its commission.
14

Considering the failure of appellants to prove the required physical impossibility of
being present at the crime scene, as can be readily deduced from the proximity
between the places where accused-appellants were allegedly situated at the time of
the commission of the offenses and the locus criminis,
15
the defense of alibi is
definitely feeble.
16
After all, it has been the consistent ruling of this Court that no
physical impossibility exists in instances where it would take the accused only fifteen
to twenty minutes by jeep or tricycle, or some one-and-a-half hours by foot, to
traverse the distance between the place where he allegedly was at the time of
commission of the offense and the scene of the crime.
17
Recently, we ruled that
there can be no physical impossibility even if the distance between two places is
merely two (2) hours by bus.
18
More important, it is well-settled that the defense of
alibi cannot prevail over the positive identification of the authors of the crime by the
prosecution witnesses.
19

In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and Manuel
Bantolo, testified that they were both inside the eatery at about 10:00 o'clock in the
morning of 11 April 1985 when the Manero brothers, together with appellants, first
discussed their plan to kill some communist sympathizers. The witnesses also
testified that they still saw the appellants in the company of the Manero brothers at
4:00 o'clock in the afternoon when Rufino Robles was shot. Further, at 5:00 o'clock
that same afternoon, appellants were very much at the scene of the crime, along
with the Manero brothers, when Fr. Favali was brutally murdered.
20
Indeed, in the
face of such positive declarations that appellants were at the locus criminis from
10:00 o'clock in the morning up to about 5:00 o'clock in the afternoon, the alibi of
appellants that they were somewhere else, which is negative in nature, cannot
prevail.
21
The presence of appellants in the eatery at Km. 125 having been
positively established, all doubts that they were not privy to the plot to liquidate
alleged communist sympathizers are therefore removed. There was direct proof to
link them to the conspiracy.
There is conspiracy when two or more persons come to an agreement to commit a
crime and decide to commit it.
22
It is not essential that all the accused commit
together each and every act constitutive of the offense.
23
It is enough that an
accused participates in an act or deed where there is singularity of purpose, and
unity in its execution is present.
24

The findings of the court a quo unmistakably show that there was indeed a
community of design as evidenced by the concerted acts of all the accused. Thus
The other six accused,
25
all armed with high powered firearms, were positively
identified with Norberto Manero, Jr. and Edilberto Manero in the carinderia of
Reynaldo Deocades in La Esperanza, Tulunan, Cotabato at 10:00 o'clock in the
morning of 11 April 1985 morning . . . they were outside of the carinderia by the
window near the table where Edilberto Manero, Norberto Manero, Jr., Jun Villamor,
Elpidio Manero and unidentified members of the airborne from Cotabato were
grouped together. Later that morning, they all went to the cockhouse nearby to
finish their plan and drink tuba. They were seen again with Edilberto Manero and
Norberto Manero, Jr., at 4:00 o'clock in the afternoon of that day near the house of
Rufino Robles (Bantil) when Edilberto Manero shot Robles. They surrounded the
house of Domingo Gomez where Robles fled and hid, but later left when Edilberto
Manero told them to leave as Robles would die of hemorrhage. They followed Fr.
Favali to Domingo Gomez' house, witnessed and enjoyed the burning of the
motorcycle of Fr. Favali and later stood guard with their firearms ready on the road
when Edilberto Manero shot to death Fr. Favali. Finally, they joined Norberto Manero,
Jr. and Edilberto Manero in their enjoyment and merriment on the death of the
priest.
26

From the foregoing narration of the trial court, it is clear that appellants were not
merely innocent bystanders but were in fact vital cogs in perpetrating the savage
murder of Fr. Favali and the attempted murder of Rufino Robles by the Manero
brothers and their militiamen. For sure, appellants all assumed a fighting stance to
discourage if not prevent any attempt to provide assistance to the fallen priest. They
surrounded the house of Domingo Gomez to stop Robles and the other occupants
from leaving so that the wounded Robles may die of hemorrhage.
27
Undoubtedly,
these were overt acts to ensure success of the commission of the crimes and in
furtherance of the aims of the conspiracy. The appellants acted in concert in the
murder of Fr. Favali and in the attempted murder of Rufino Robles. While accused-
appellants may not have delivered the fatal shots themselves, their collective action
showed a common intent to commit the criminal acts.
While it may be true that Fr. Favali was not originally the intended victim, as it was
Fr. Peter Geremias whom the group targetted for the kill, nevertheless, Fr. Favali
was deemed a good substitute in the murder as he was an Italian priest. On this, the
conspirators expressly agreed. As witness Manuel Bantolo explained
28

Q Aside from those persons listed in that paper to be killed, were there other persons
who were to be liquidated?
A There were some others.
Q Who were they?
A They said that if they could not kill those persons listed in that paper then they will
(sic) kill anyone so long as he is (sic) an Italian and if they could not kill the persons
they like to kill they will (sic) make Reynaldo Deocades as their sample.
That appellants and their co-accused reached a common understanding to kill
another Italian priest in the event that Fr. Peter Geremias could not be spotted was
elucidated by Bantolo thus
29

Q Who suggested that Fr. Peter be the first to be killed?
A All of them in the group.
Q What was the reaction of Norberto Manero with respect to the plan to kill Fr.
Peter?
A He laughed and even said, "amo ina" meaning "yes, we will kill him ahead."
xxx xxx xxx
Q What about Severino Lines? What was his reaction?
A He also laughed and so conformed and agreed to it.
Q Rudy Lines.
A He also said "yes".
Q What do you mean "yes"?
A He also agreed and he was happy and said "yes" we will kill him.
xxx xxx xxx
Q What about Efren Pleago?
A He also agreed and even commented laughing "go ahead".
Q Roger Bedao, what was his reaction to that suggestion that should they fail to kill
Fr. Peter, they will (sic) kill anybody provided he is an Italian and if not, they will
(sic) make Reynaldo Deocades an example?
A He also agreed laughing.
Conspiracy or action in concert to achieve a criminal design being sufficiently shown,
the act of one is the act of all the other conspirators, and the precise extent or
modality of participation of each of them becomes secondary.
30

The award of moral damages in the amount of P100,000.00 to the congregation, the
Pontifical Institute of Foreign Mission (PIME) Brothers, is not proper. There is nothing
on record which indicates that the deceased effectively severed his civil relations with
his family, or that he disinherited any member thereof, when he joined his religious
congregation. As a matter of fact, Fr. Peter Geremias of the same congregation, who
was then a parish priest of Kidapawan, testified that "the religious family belongs to
the natural family of origin."
31
Besides, as We already held,
32
a juridical person is
not entitled to moral damages because, not being a natural person, it cannot
experience physical suffering or such sentiments as wounded feelings, serious
anxiety, mental anguish or moral shock. It is only when a juridical person has a good
reputation that is debased, resulting in social humiliation, that moral damages may
be awarded.
Neither can We award moral damages to the heirs of the deceased who may
otherwise be lawfully entitled thereto pursuant to par. (3), Art. 2206, of the Civil
Code,
33
for the reason that the heirs never presented any evidence showing that
they suffered mental anguish; much less did they take the witness stand. It has been
held
34
that moral damages and their causal relation to the defendant's acts should
be satisfactorily proved by the claimant. It is elementary that in order that moral
damages may be awarded there must be proof of moral suffering.
35
However,
considering that the brutal slaying of Fr. Tulio Favali was attended with abuse of
superior strength, cruelty and ignominy by deliberately and inhumanly augmenting
the pain and anguish of the victim, outraging or scoffing at his person or corpse,
exemplary damages may be awarded to the lawful heirs,
36
even though not proved
nor expressly pleaded in the complaint,
37
and the amount of P100,000.00 is
considered reasonable.
With respect to the civil indemnity of P12,000.00 for the death of Fr. Tulio Favali, the
amount is increased to P50,000.00 in accordance with existing jurisprudence, which
should be paid to the lawful heirs, not the PIME as the trial court ruled.
WHEREFORE, the judgment appealed from being in accord with law and the evidence
is AFFIRMED with the modification that the civil indemnity which is increased from
P12,000.00 to P50,000.00 is awarded to the lawful heirs of the deceased plus
exemplary damages of P100,000.00; however, the award of moral damages is
deleted.
Costs against accused-appellants.

JOSE JINGGOY E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD
DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE
OMBUDSMAN, respondents.
D E C I S I O N
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party
may be unconstitutional. This is the submission of the petitioner who invokes the
equal protection clause of the Constitution in his bid to be excluded from the charge
of plunder filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against
Joseph Ejercito Estrada, then President of the Republic of the Philippines, five
criminal complaints against the former President and members of his family, his
associates, friends and conspirators were filed with the respondent Office of the
Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution[1]
finding probable cause warranting the filing with the Sandiganbayan of several
criminal Informations against the former President and the other respondents
therein. One of the Informations was for the crime of plunder under Republic Act No.
7080 and among the respondents was herein petitioner Jose Jinggoy Estrada, then
mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as
Criminal Case No. 26558, the case was assigned to respondent Third Division of the
Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no
bail for petitioners provisional liberty was fixed.
On April 24, 2001, petitioner filed a Motion to Quash or Suspend the
Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080, is
unconstitutional and that it charged more than one offense. Respondent
Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for
petitioner and his co-accused. On its basis, petitioner and his co-accused were
placed in custody of the law.
On April 30, 2001, petitioner filed a Very Urgent Omnibus Motion[2] alleging
that: (1) no probable cause exists to put him on trial and hold him liable for plunder,
it appearing that he was only allegedly involved in illegal gambling and not in a
series or combination of overt or criminal acts as required in R.A. No. 7080; and
(2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded
from the Amended Information and be discharged from custody. In the alternative,
petitioner also prayed that he be allowed to post bail in an amount to be fixed by
respondent court.[3]
On June 28, 2001, petitioner filed a Motion to Resolve Mayor Jose Jinggoy
Estradas Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An
Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not
Make Out A Non-Bailable Offense As To Him.[4]
On July 3, 2001, petitioner filed a Motion to Strike Out So-Called Entry of
Appearance, To Direct Ombudsman To Explain Why He Attributes Impropriety To
The Defense And To Resolve Pending Incidents.[5]
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying
petitioners Motion to Quash and Suspend and Very Urgent Omnibus Motion.[6]
Petitioners alternative prayer to post bail was set for hearing after arraignment of all
accused. The court held:
WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit
the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by
accused Jose Jinggoy Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by
accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended
Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S.
Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose
Jinggoy Estrada, his VERY URGENT OMNIBUS MOTION, praying that he be: (1)
dropped from the information for plunder for want of probable cause and (2)
discharged from custody immediately which is based on the same grounds
mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his
alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET
for hearing together with the petition for bail of accused Edward S. Serapio
scheduled for July 10, 2001, at 2:00 oclock in the afternoon after the arraignment of
all the accused.[7]
The following day, July 10, 2001, petitioner moved for reconsideration of the
Resolution. Respondent court denied the motion and proceeded to arraign
petitioner. Petitioner refused to make his plea prompting respondent court to enter
a plea of not guilty for him.[8]
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted
without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack of jurisdiction in:
1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to
petitioner, and denying him the equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient
standards;
3) sustaining the charge against petitioner for alleged offenses, and with alleged
conspirators, with which and with whom he is not even remotely connected -
contrary to the dictum that criminal liability is personal, not vicarious - results in the
denial of substantive due process;
4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the
information which amounts to cruel and unusual punishment totally in defiance of the
principle of proportionality.[9]
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as
applied to him and denies him the equal protection of the laws.[10]
The contention deserves our scant attention. The constitutionality of R.A. No.
7080, the Anti-Plunder Law, has been settled in the case of Estrada v.
Sandiganbayan.[11] We take off from the Amended Information which charged
petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio,
Charlie Atong Ang, Yolanda T. Ricaforte and others, with the crime of plunder as
follows:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of
the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES,
Joseph Ejercito Estrada a.k.a. ASIONG SALONGA AND a.k.a JOSE
VELARDE, together with Jose Jinggoy Estrada, Charlie Atong Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of Plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as
follows:
That during the period from June, 1998 to January, 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by himself AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF
HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of
FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
[P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE
FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY
OR A combination OR A series of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on
SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF
FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING
IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connivance with co-accused CHARLIE ATONG ANG, Jose
Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AN
(sic) JOHN DOES AND JANE DOES, in consideration OF
TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount
of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00],
more or less, representing a portion of the TWO HUNDRED
MILLION PESOS [P200,000,000] tobacco excise tax share
allocated for the Province of Ilocor Sur under R.A. No. 7171,
BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie
Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS
PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES
OF STOCK MORE OR LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY
FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY PESOS
[P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF
SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF
ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM
THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME JOSE VELARDE;
(d) by unjustly enriching himself FROM COMMISSIONS,
GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE
VELARDE AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001[12]
Petitioners contention that R.A. No. 7080 is unconstitutional as applied to him
is principally perched on the premise that the Amended Information charged him
with only one act or one offense which cannot constitute plunder. He then assails
the denial of his right to bail.
Petitioners premise is patently false. A careful examination of the Amended
Information will show that it is divided into three (3) parts: (1) the first paragraph
charges former President Joseph E. Estrada with the crime of plunder together with
petitioner Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda
Ricaforte and others; (2) the second paragraph spells out in general terms how the
accused conspired in committing the crime of plunder; and (3) the following four
sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the
crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names
of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in sub-
paragraph (a) of the Amended Information which is of receiving or collecting,
directly or indirectly, on several instances, money in the aggregate amount of
P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback
or any form of pecuniary benefit x x x. In this sub-paragraph (a), petitioner, in
conspiracy with former President Estrada, is charged with the act of receiving or
collecting money from illegal gambling amounting to P545 million. Contrary to
petitioners posture, the allegation is that he received or collected money from illegal
gambling on several instances. The phrase on several instances means
the petitioner committed the predicate act in series. To insist that the
Amended Information charged the petitioner with the commission of only one act or
offense despite the phrase several instances is to indulge in a twisted, nay,
pretzel interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words
combination or series as they appear in R.A. No. 7080. For in Estrada v.
Sandiganbayan,[13] we held that where these two terms are to be taken in their
popular, not technical, meaning, the word series is synonymous with the clause on
several instances. Series refers to a repetition of the same predicate act in any of
the items in Section 1 (d) of the law. The word combination contemplates the
commission of at least any two different predicate acts in any of said items. Plainly,
sub-paragraph (a) of the Amended Information charges petitioner with
plunder committed by a series of the same predicate act under Section 1 (d)
(2) of the law.
Similarly misleading is petitioners stand that in the Ombudsman Resolution of
April 4, 2001 finding probable cause to charge him with plunder together with the
other accused, he was alleged to have received only the sum of P2 million, which
amount is way below the minimum of P50 million required under R.A. No. 7080. The
submission is not borne out by the April 4, 2001 Resolution of the Ombudsman,
recommending the filing of charges against petitioner and his co-accused, which in
pertinent part reads:
x x x x x
x x x x
Respondent Jose Jinggoy Estrada, the present Mayor of San Juan, Metro Manila,
appears to have also surreptitious collection of protection money from jueteng
operations in Bulacan. This is gleaned from the statements of Gov. Singson himself
and the fact that Mayor Estrada, on at least two occasions, turned over to a
certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2
million, i.e., P1 million in January, 2000 and another P1 million in February, 2000. An
alleged listahan of jueteng recipients listed him as one Jingle Bell, as affirmed by
Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI].[14]
Hence, contrary to the representations of the petitioner, the Ombudsman made
the finding that P2 million was delivered to petitioner as jueteng haul on at least
two occasions. The P2 million is, therefore, not the entire sum with which
petitioner is specifically charged. This is further confirmed by the conclusion of the
Ombudsman that:
x x x x x
x x x x
It is clear that Joseph Ejercito Estrada, in confabulation with Jose Jinggoy Estrada,
Atty. Edward Serapio and Yolanda Ricaforte, demanded and received, as bribe
money, the aggregate sum of P545 million from jueteng collections of the operators
thereof, channeled thru Gov. Luis Chavit Singson, in exchange for protection from
arrest or interference by law enforcers; x x x.[15]
To be sure, it is too late in the day for the petitioner to argue that the
Ombudsman failed to establish any probable cause against him for plunder. The
respondent Sandiganbayan itself has found probable cause against the petitioner for
which reason it issued a warrant of arrest against him. Petitioner then underwent
arraignment and is now on trial. The time to assail the finding of probable cause by
the Ombudsman has long passed. The issue cannot be resurrected in this petition.
II.
Next, petitioner contends that the plunder law does not provide sufficient and
complete standards to guide the courts in dealing with accused alleged to have
contributed to the offense.[16] Thus, he posits the following questions:
For example, in an Information for plunder which cites at least ten criminal acts,
what penalty do we impose on one who is clearly involved in only one such criminal
act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another
accused is shown to have participated in three of the ten specifications, what would
be the penalty imposable, compared to one who may have been involved in five or
seven of the specifications? The law does not provide the standard or specify the
penalties and the courts are left to guess. In other words, the courts are called to
say what the law is rather than to apply what the lawmaker is supposed to have
intended.[17]
Petitioner raises these hypothetical questions for he labors hard under the
impression that: (1) he is charged with only one act or offense and (2) he has not
conspired with the other accused named in sub-paragraphs (b) to (d) of the
Amended Information, ergo, the penalty imposable on him ought to be different from
reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable
penalty on an accused similarly situated as he is. Petitioner, however, overlooks that
the second paragraph of the Amended Information charges him to have conspired
with former President Estrada in committing the crime of plunder. His alleged
participation consists in the commission of the predicate acts specified in sub-
paragraph (a) of the Amended Information. If these allegations are proven, the
penalty of petitioner cannot be unclear. It will be no different from that of the
former President for in conspiracy, the act of one is the act of the other. The
imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
Section 2. Any public officer who, by himself or in connivance with the members
of his family, relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section 1(d) hereof in
the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
III.
Petitioner also faults the respondent Sandiganbayan for sustaining the charge
against petitioner for alleged offenses and with alleged conspirators, with which and
with whom he is not even remotely connected contrary to the dictum that criminal
liability is personal, not vicarious results in the denial of substantive due
process.[18]
The Solicitor General argues, on the other hand, that petitioner is charged not
only with the predicate act in sub-paragraph (a) but also with the other predicate
acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-
conspirator of the former President. This is purportedly clear from the first and
second paragraphs of the Amended Information.[19]
For better focus, there is a need to examine again the allegations of the
Amended Information vis--vis the provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges petitioner and
his other co-accused with the crime of plunder. The first paragraph names all the
accused, while the second paragraph describes in general how plunder was
committed and lays down most of the elements of the crime itself. Sub-
paragraphs (a) to (d) describe in detail the predicate acts that constitute
the crime and name in particular the co-conspirators of former President
Estrada in each predicate act. The predicate acts alleged in the said four
sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A.
No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several
instances, money from illegal gambling, in consideration of toleration or protection of
illegal gambling, and expressly names petitioner as one of those who conspired with
former President Estrada in committing the offense. This predicate act corresponds
with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No.
7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or
misappropriating a portion of the tobacco excise tax share allocated for the province
of Ilocos Sur, which act is the offense described in item [1] in the enumeration in
Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead
names other conspirators of the former President. Sub-paragraph (c) alleged two
predicate acts - that of ordering the Government Service Insurance System (GSIS)
and the Social Security System (SSS) to purchase shares of stock of Belle
Corporation, and collecting or receiving commissions from such purchase from the
Belle Corporation which became part of the deposit in the Jose Velarde account at
the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the
enumeration of R.A. No. 7080, and was allegedly committed by the former President
in connivance with John Does and Jane Does. Finally, sub-paragraph (d) alleged the
predicate act that the former President unjustly enriched himself from commissions,
gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the
same under his account name Jose Velarde at the Equitable-PCI Bank. This act
corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A.
No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all
the accused named in sub-paragraphs (a) to (d), thru their individual acts,
conspired with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of
P4,097,804,173.17. As the Amended Information is worded, however, it is not
certain whether the accused in sub-paragraphs (a) to (d) conspired with each
other to enable the former President to amass the subject ill-gotten wealth. In light
of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into
by the other accused with the former President as related in the second paragraph of
the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that
petitioner can be held accountable only for the predicate acts he allegedly
committed as related in sub-paragraph (a) of the Amended Information which were
allegedly done in conspiracy with the former President whose design was to amass
ill-gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot
be faulted for including the predicate acts alleged in sub-paragraphs (a) to
(d) of the Amended Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will show that the law was
crafted to avoid the mischief and folly of filing multiple informations. The Anti-
Plunder Law was enacted in the aftermath of the Marcos regime where charges of
ill-gotten wealth were filed against former President Marcos and his alleged cronies.
Government prosecutors found no appropriate law to deal with the
multitude and magnitude of the acts allegedly committed by the former
President to acquire illegal wealth.[20] They also found that under the then
existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal
Code and other special laws, the acts involved different transactions, different time
and different personalities. Every transaction constituted a separate crime and
required a separate case and the over-all conspiracy had to be broken down
into several criminal and graft charges. The preparation of multiple
Informations was a legal nightmare but eventually, thirty-nine (39) separate and
independent cases were filed against practically the same accused before the
Sandiganbayan.[21] R.A. No. 7080 or the Anti-Plunder Law[22] was enacted
precisely to address this procedural problem. This is pellucid in the Explanatory Note
to Senate Bill No. 733, viz:
Plunder, a term chosen from other equally apt terminologies like kleptocracy and
economic treason, punishes the use of high office for personal enrichment,
committed thru a series of acts done not in the public eye but in stealth and secrecy
over a period of time, that may involve so many persons, here and abroad, and
which touch so many states and territorial units. The acts and/or omissions
sought to be penalized do not involve simple cases of malversation of public
funds, bribery, extortion, theft and graft but constitute plunder of an entire
nation resulting in material damage to the national economy. The above-
described crime does not yet exist in Philippine statute books. Thus, the need to
come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination
to succumb to the corrupting influence of power.
There is no denying the fact that the plunder of an entire nation resulting in
material damage to the national economy is made up of a complex and manifold
network of crimes. In the crime of plunder, therefore, different parties may
be united by a common purpose. In the case at bar, the different accused and
their different criminal acts have a commonalityto help the former President
amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the
Amended Information alleged the different participation of each accused in the
conspiracy. The gravamen of the conspiracy charge, therefore, is not that each
accused agreed to receive protection money from illegal gambling, that each
misappropriated a portion of the tobacco excise tax, that each accused ordered the
GSIS and SSS to purchase shares of Belle Corporation and receive commissions from
such sale, nor that each unjustly enriched himself from commissions, gifts and
kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former President Estrada.
In the American jurisdiction, the presence of several accused in multiple
conspiracies commonly involves two structures: (1) the so-called wheel or circle
conspiracy, in which there is a single person or group (the hub) dealing individually
with two or more other persons or groups (the spokes); and (2) the chain
conspiracy, usually involving the distribution of narcotics or other contraband, in
which there is successive communication and cooperation in much the same way as
with legitimate business operations between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and consumer.[23]
From a reading of the Amended Information, the case at bar appears similar to
a wheel conspiracy. The hub is former President Estrada while the spokes are all
the accused, and the rim that encloses the spokes is the common goal in the overall
conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge against the
petitioner on the ground that the allegation of conspiracy in the Amended
Information is too general. The fear is even expressed that it could serve as a net to
ensnare the innocent. Their dissents appear to be inspired by American law and
jurisprudence.
We should not confuse our law on conspiracy with conspiracy in
American criminal law and in common law. Under Philippine law,
conspiracy should be understood on two levels. As a general rule,
conspiracy is not a crime in our jurisdiction. It is punished as a crime only
when the law fixes a penalty for its commission such as in conspiracy to
commit treason, rebellion and sedition. In contrast, under American
criminal law, the agreement or conspiracy itself is the gravamen of the
offense.[24] The essence of conspiracy is the combination of two or more persons,
by concerted action, to accomplish a criminal or unlawful purpose, or some purpose
not in itself criminal or unlawful, by criminal or unlawful means.[25] Its elements
are: agreement to accomplish an illegal objective, coupled with one or more overt
acts in furtherance of the illegal purpose; and requisite intent necessary to commit
the underlying substantive offense.[26]
A study of the United States Code ought to be instructive. It
principally punishes two (2) crimes of conspiracy[27] conspiracy to commit
any offense or to defraud the United States, and conspiracy to impede or injure
officer. Conspiracy to commit offense or to defraud the United States is penalized
under 18 U.S.C. Sec. 371,[28] as follows:
Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or
more persons conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any purpose,
and one or more of such persons to any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more than five years,
or both.
If, however, the offense, the commission of which is the object of the conspiracy, is
a misdemeanor only, the punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372,
viz:
Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any
State, Territory, Possession, or District conspire to prevent, by force, intimidation, or
threat, any person from accepting or holding any office, trust or place of confidence
under the United States, or from discharging any duties thereof, or to induce by like
means any officer of the United States to leave the place, where his duties as an
officer are required to be performed, or to injure him in his person or property on
account of his lawful discharge of the duties of his office, or while engaged in the
lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder,
or impede him in the discharge of his official duties, each of such persons shall be
fined not more than $5,000 or imprisoned not more than six years, or both.
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any
offense against the United States; and (2) conspiracy to defraud the United States or
any agency thereof. The conspiracy to commit any offense against the United
States refers to an act made a crime by federal laws.[29] It refers to an act
punished by statute.[30] Undoubtedly, Section 371 runs the whole gamut of
U.S. Federal laws, whether criminal or regulatory.[31] These laws cover
criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson,
murder, theft, bank robbery, etc. and also include customs violations, counterfeiting
of currency, copyright violations, mail fraud, lotteries, violations of antitrust laws and
laws governing interstate commerce and other areas of federal regulation.[32]
Section 371 penalizes the conspiracy to commit any of these substantive
offenses. The offense of conspiracy is generally separate and distinct from
the substantive offense,[33] hence, the court rulings that acquittal on the
substantive count does not foreclose prosecution and conviction for related
conspiracy.[34]
The conspiracy to defraud the government refers primarily to cheating the
United States out of property or money. It also covers interference with or
obstruction of its lawful governmental functions by deceit, craft or trickery, or at
least by means that are dishonest.[35] It comprehends defrauding the United States
in any manner whatever, whether the fraud be declared criminal or not.[36]
The basic difference in the concept of conspiracy notwithstanding, a study
of the American case law on how conspiracy should be alleged will reveal that it is
not necessary for the indictment to include particularities of time, place,
circumstances or causes, in stating the manner and means of effecting the
object of the conspiracy. Such specificity of detail falls within the scope of a bill of
particulars.[37] An indictment for conspiracy is sufficient where it alleges: (1)
the agreement; (2) the offense-object toward which the agreement was directed;
and (3) the overt acts performed in furtherance of the agreement.[38] To allege that
the defendants conspired is, at least, to state that they agreed to do the matters
which are set forth as the substance of their conspiracy. To allege a conspiracy is to
allege an agreement.[39] The gist of the crime of conspiracy is unlawful
agreement, and where conspiracy is charged, it is not necessary to set out
the criminal object with as great a certainty as is required in cases where
such object is charged as a substantive offense.[40]
In sum, therefore, there is hardly a substantial difference on how
Philippine courts and American courts deal with cases challenging
Informations alleging conspiracy on the ground that they lack particularities
of time, place, circumstances or causes. In our jurisdiction, as aforestated,
conspiracy can be alleged in the Information as a mode of committing a
crime or it may be alleged as constitutive of the crime itself. When
conspiracy is alleged as a crime in itself, the sufficiency of the allegations in
the Information charging the offense is governed by Section 6, Rule 110 of
the Revised Rules of Criminal Procedure. It requires that the information for
this crime must contain the following averments:
Sec. 6. Sufficiency of complaint or information.- A complaint or information is
sufficient if it states the name of the accused, the designation of the offense given by
the statute; the acts or omissions complained of as constituting the offense;
the name of the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be
included in the complaint or information.
The complaint or information to be sufficient must state the name of the accused,
designate the offense given by statute, state the acts or omissions constituting
the offense, the name of the offended party, the approximate date of the
commission of the offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or omissions
constituting the offense should be made in order to meet the standard of
sufficiency. Thus, the offense must be designated by its name given by statute or by
reference to the section or subsection of the statute punishing it.[41] The
information must also state the acts or omissions constituting the offense, and
specify its qualifying and aggravating circumstances.[42] The acts or omissions
complained of must be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment.[43] No information for a crime will be
sufficient if it does not accurately and clearly allege the elements of the crime
charged.[44] Every element of the offense must be stated in the information.[45]
What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified crimes.[46]
The requirement of alleging the elements of a crime in the information is to inform
the accused of the nature of the accusation against him so as to enable him to
suitably prepare his defense. The presumption is that the accused has no
independent knowledge of the facts that constitute the offense.[47]
To reiterate, when conspiracy is charged as a crime, the act of
conspiring and all the elements of said crime must be set forth in the
complaint or information. For example, the crime of conspiracy to commit
treason is committed when, in time of war, two or more persons come to an
agreement to levy war against the Government or to adhere to the enemies and to
give them aid or comfort, and decide to commit it.[48] The elements of this crime
are: (1) that the offender owes allegiance to the Government of the Philippines; (2)
that there is a war in which the Philippines is involved; (3) that the offender and
other person or persons come to an agreement to: (a) levy war against the
government, or (b) adhere to the enemies, to give them aid and comfort; and (4)
that the offender and other person or persons decide to carry out the
agreement. These elements must be alleged in the information.
The requirements on sufficiency of allegations are different when
conspiracy is not charged as a crime in itself but only as the mode of
committing the crime as in the case at bar. There is less necessity of reciting
its particularities in the Information because conspiracy is not the gravamen of
the offense charged. The conspiracy is significant only because it changes the
criminal liability of all the accused in the conspiracy and makes them answerable as
co-principals regardless of the degree of their participation in the crime.[49] The
liability of the conspirators is collective and each participant will be equally
responsible for the acts of others,[50] for the act of one is the act of all.[51] In
People v. Quitlong,[52] we ruled on how conspiracy as the mode of
committing the offense should be alleged in the Information, viz:
x x x. In embodying the essential elements of the crime charged, the information
must set forth the facts and circumstances that have a bearing on the culpability and
liability of the accused so that the accused can properly prepare for and undertake
his defense. One such fact or circumstance in a complaint against two or more
accused persons is that of conspiracy. Quite unlike the omission of an ordinary
recital of fact which, if not excepted from or objected to during trial, may be
corrected or supplied by competent proof, an allegation, however, of conspiracy,
or one that would impute criminal liability to an accused for the act of
another or others, is indispensable in order to hold such person, regardless
of the nature and extent of his own participation, equally guilty with the
other or others in the commission of the crime. Where conspiracy exists and
can rightly be appreciated, the individual acts done to perpetrate the felony becomes
of secondary importance, the act of one being imputable to all the others (People v.
Ilano, 313 SCRA 442). Verily, an accused must know from the information whether
he faces a criminal responsibility not only for his acts but also for the acts of his co-
accused as well.
A conspiracy indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that each of the
parties therein have performed, the evidence proving the common design or
the facts connecting all the accused with one another in the web of the
conspiracy. Neither is it necessary to describe conspiracy with the same
degree of particularity required in describing a substantive offense. It is
enough that the indictment contains a statement of facts relied upon to be
constitutive of the offense in ordinary and concise language, with as much
certainty as the nature of the case will admit, in a manner that can enable a
person of common understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction to a
subsequent indictment based on the same facts. It is said, generally, that an
indictment may be held sufficient if it follows the words of the statute and
reasonably informs the accused of the character of the offense he is charged with
conspiring to commit, or, following the language of the statute, contains a sufficient
statement of an overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the respective statutes
defining them (15A C.J.S. 842-844).
x x x x x
x x x x
x x x. Conspiracy arises when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Conspiracy comes to
life at the very instant the plotters agree, expressly or impliedly, to commit the
felony and forthwith to actually pursue it. Verily, the information must state
that the accused have confederated to commit the crime or that there has
been a community of design, a unity of purpose or an agreement to commit
the felony among the accused. Such an allegation, in the absence of the
usual usage of the words conspired or confederated or the phrase
acting in conspiracy, must aptly appear in the information in the form of
definitive acts constituting conspiracy. In fine, the agreement to commit
the crime, the unity of purpose or the community of design among the
accused must be conveyed such as either by the use of the term conspire
or its derivatives and synonyms or by allegations of basic facts constituting
the conspiracy. Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his plea, a matter
that is not to be confused with or likened to the adequacy of evidence that
may be required to prove it. In establishing conspiracy when properly alleged,
the evidence to support it need not necessarily be shown by direct proof but may be
inferred from shown acts and conduct of the accused.
x x x x x
x x x x.
Again, following the stream of our own jurisprudence, it is enough to
allege conspiracy as a mode in the commission of an offense in either of the
following manner: (1) by use of the word conspire, or its derivatives or
synonyms, such as confederate, connive, collude, etc;[53] or (2) by allegations of
basic facts constituting the conspiracy in a manner that a person of common
understanding would know what is intended, and with such precision as would enable
the accused to competently enter a plea to a subsequent indictment based on the
same facts.[54]
The allegation of conspiracy in the information must not be confused
with the adequacy of evidence that may be required to prove it. A conspiracy
is proved by evidence of actual cooperation; of acts indicative of an agreement, a
common purpose or design, a concerted action or concurrence of sentiments to
commit the felony and actually pursue it.[55] A statement of this evidence is not
necessary in the information.
In the case at bar, the second paragraph of the Amended Information
alleged in general terms how the accused committed the crime of
plunder. It used the words in connivance/conspiracy with his co-accused.
Following the ruling in Quitlong, these words are sufficient to allege the conspiracy
of the accused with the former President in committing the crime of plunder.
V.
We now come to petitioners plea for bail. On August 14, 2002, during the
pendency of the instant petition before this Court, petitioner filed with respondent
Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons. Petitioner
prayed that he be allowed to post bail due to his serious medical condition which is
life-threatening to him if he goes back to his place of detention. The motion was
opposed by respondent Ombudsman to which petitioner replied.
For three days, i.e., on September 4, 20 and 27, 2001, respondent
Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio,
a cardiologist of the Makati Medical Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court an Urgent
Motion for Early/Immediate Resolution of Jose Jinggoy Estradas Petition for Bail on
Medical/Humanitarian Considerations. Petitioner reiterated the motion for bail he
earlier filed with respondent Sandiganbayan.[56]
On the same day, we issued a Resolution referring the motion to respondent
Sandiganbayan for resolution and requiring said court to make a report, not later
than 8:30 in the morning of December 21, 2001.
On December 21, 2001, respondent court submitted its Report. Attached to
the Report was its Resolution dated December 20, 2001 denying petitioners motion
for bail for lack of factual basis.[57] Basing its finding on the earlier testimony of
Dr. Anastacio, the Sandiganbayan found that petitioner failed to submit sufficient
evidence to convince the court that the medical condition of the accused requires
that he be confined at home and for that purpose that he be allowed to post
bail.[58]
The crime of plunder is punished by R.A. No. 7080, as amended by Section 12
of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules,
offenses punishable by death, reclusion perpetua or life imprisonment are non-
bailable when the evidence of guilt is strong, to wit:
Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution.[59]
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on
Section 13, Article III of the 1987 Constitution which reads:
Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required.
The constitutional mandate makes the grant or denial of bail in capital offenses
hinge on the issue of whether or not the evidence of guilt of the accused is
strong. This requires that the trial court conduct bail hearings wherein both the
prosecution and the defense are afforded sufficient opportunity to present their
respective evidence. The burden of proof lies with the prosecution to show strong
evidence of guilt.[60]
This Court is not in a position to grant bail to the petitioner as the matter
requires evidentiary hearing that should be conducted by the Sandiganbayan. The
hearings on which respondent court based its Resolution of December 20, 2001
involved the reception of medical evidence only and which evidence was given in
September 2001, five months ago. The records do not show that evidence on
petitioners guilt was presented before the lower court.
Upon proper motion of the petitioner, respondent Sandiganbayan should
conduct hearings to determine if the evidence of petitioners guilt is strong as to
warrant the granting of bail to petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that the
respondent Sandiganbayan acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction.

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

D E C I S I O N

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

The Information
3
charged appellant with parricide as follows:
"That on or about the 15
th
day of November 1995, at Barangay Bilwang, Municipality
of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack, assault,
hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard
deadly weapon, which the accused had provided herself for the purpose, [causing]
the following wounds, to wit:
'Cadaveric spasm.
'Body on the 2
nd
stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding
from its sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of
the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."
4

With the assistance of her counsel,
5
appellant pleaded not guilty during her
arraignment on March 3, 1997.
6
In due course, she was tried for and convicted of
parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the
facts in this wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc
City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte.
For a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime
in 1995, however, appellant and Ben rented from Steban Matiga a house at
Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely:
John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving
their salary. They each had two (2) bottles of beer before heading home. Arturo
would pass Ben's house before reaching his. When they arrived at the house of Ben,
he found out that appellant had gone to Isabel, Leyte to look for him. Ben went
inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiao runner to place a bet. Arturo did not see appellant arrive but
on his way home passing the side of the Genosas' rented house, he heard her say 'I
won't hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?'
That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters from her house, to look after her pig because
she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to
sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no
money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the waiting
area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented
house. Joseph, appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul
odor emanating from his house being rented by Ben and appellant. Steban went
there to find out the cause of the stench but the house was locked from the inside.
Since he did not have a duplicate key with him, Steban destroyed the gate padlock
with a borrowed steel saw. He was able to get inside through the kitchen door but
only after destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming from. There, he
saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He
was only in his briefs with injuries at the back of his head. Seeing this, Steban went
out of the house and sent word to the mother of Ben about his son's misfortune.
Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at
the police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where
they found the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from where Ben
was, leaning against a wall. The metal pipe measured three (3) feet and six (6)
inches long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in disarray.
"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to
be taken outside at the back of the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of Ben's death was
'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a
depressed fracture of the occipital [bone].'
"Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet might
have gone gambling since it was a payday. With her cousin Ecel Arao, appellant
went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find
him there. They found Ben drunk upon their return at the Genosas' house. Ecel went
home despite appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a
fight. She allegedly ignored him and instead attended to their children who were
doing their homework. Apparently disappointed with her reaction, Ben switched off
the light and, with the use of a chopping knife, cut the television antenna or wire to
keep her from watching television. According to appellant, Ben was about to attack
her so she ran to the bedroom, but he got hold of her hands and whirled her around.
She fell on the side of the bed and screamed for help. Ben left. At this point,
appellant packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged appellant
outside of the bedroom towards a drawer holding her by the neck, and told her 'You
might as well be killed so nobody would nag me.' Appellant testified that she was
aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the
arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then
'smashed' Ben at his nape with the pipe as he was about to pick up the blade and his
wallet. She thereafter ran inside the bedroom.
"Appellant, however, insisted that she ended the life of her husband by shooting him.
She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not
die on the spot, though, but in the bedroom."
7
(Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to
her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree
of Bachelor of Science in Business Administration, and was working, at the time of
her husband's death, as a Secretary to the Port Managers in Ormoc City. The couple
had three (3) children: John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree cousins.
Both sets of parents were against their relationship, but Ben was persistent and tried
to stop other suitors from courting her. Their closeness developed as he was her
constant partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with
Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
'lived happily'. But apparently, soon thereafter, the couple would quarrel often and
their fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he could not remember
when Ben and Marivic married. He said that when Ben and Marivic quarreled,
generally when Ben would come home drunk, Marivic would inflict injuries on him.
He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben
had shouted for help as his left hand was covered with blood. Marivic left the house
but after a week, she returned apparently having asked for Ben's forgiveness. In
another incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an
empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for
Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and
Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said
as the marriage went along, Marivic became 'already very demanding. Mrs.
Iluminada Genosa said that after the birth of Marivic's two sons, there were 'three
(3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic
struck Ben on the forehead 'using a sharp instrument until the eye was also affected.
It was wounded and also the ear' and her husband went to Ben to help; and the third
incident was in 1995 when the couple had already transferred to the house in
Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After
we collected our salary, we went to the cock-fighting place of ISCO.' They stayed
there for three (3) hours, after which they went to 'Uniloks' and drank beer
allegedly only two (2) bottles each. After drinking they bought barbeque and went to
the Genosa residence. Marivic was not there. He stayed a while talking with Ben,
after which he went across the road to wait 'for the runner and the usher of the
masiao game because during that time, the hearing on masiao numbers was
rampant. I was waiting for the ushers and runners so that I can place my bet.' On
his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to
feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently
overheard by him was Marivic saying 'I will never hesitate to kill you', whilst Ben
replied 'Why kill me when I am innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa
residence. Basobas admitted that he and Ben were always at the cockpits every
Saturday and Sunday. He claims that he once told Ben 'before when he was stricken
with a bottle by Marivic Genosa' that he should leave her and that Ben would always
take her back after she would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but it was a long time that
they had been quarreling. He said Ben 'even had a wound' on the right forehead. He
had known the couple for only one (1) year.
"6. Marivic testified that after the first year of marriage, Ben became cruel to her and
was a habitual drinker. She said he provoked her, he would slap her, sometimes he
would pin her down on the bed, and sometimes beat her.
"These incidents happened several times and she would often run home to her
parents, but Ben would follow her and seek her out, promising to change and would
ask for her forgiveness. She said after she would be beaten, she would seek medical
help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the
injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her
or quarrel with her every time he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so closely related to Marivic, testified as
to the abuse and violence she received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified
that on November 15, 1995, he overheard a quarrel between Ben and Marivic.
Marivic was shouting for help and through the open jalousies, he saw the spouses
'grappling with each other'. Ben had Marivic in a choke hold. He did not do anything,
but had come voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos.
8
)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos,
testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa
house and saw 'the spouses grappling with each other then Ben Genosa was holding
with his both hands the neck of the accused, Marivic Genosa'. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at 8:00 the
next morning. (Again, please note that this was the same night as that testified to by
Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were
living in Isabel, Leyte. His house was located about fifty (50) meters from theirs.
Marivic is his niece and he knew them to be living together for 13 or 14 years. He
said the couple was always quarreling. Marivic confided in him that Ben would pawn
items and then would use the money to gamble. One time, he went to their house
and they were quarreling. Ben was so angry, but would be pacified 'if somebody
would come.' He testified that while Ben was alive 'he used to gamble and when he
became drunk, he would go to our house and he will say, 'Teody' because that was
what he used to call me, 'mokimas ta,' which means 'let's go and look for a whore.'
Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the witness pointed to his right breast)
as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified
that in the afternoon of November 15, 1995, Marivic went to her house and asked
her help to look for Ben. They searched in the market place, several taverns and
some other places, but could not find him. She accompanied Marivic home. Marivic
wanted her to sleep with her in the Genosa house 'because she might be battered by
her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss
Arano said that 'her husband was already there and was drunk.' Miss Arano knew he
was drunk 'because of his staggering walking and I can also detect his face.' Marivic
entered the house and she heard them quarrel noisily. (Again, please note that this
is the same night as that testified to by Arturo Basobas) Miss Arano testified that this
was not the first time Marivic had asked her to sleep in the house as Marivic would
be afraid every time her husband would come home drunk. At one time when she did
sleep over, she was awakened at 10:00 in the evening when Ben arrived because the
couple 'were very noisy in the sala and I had heard something was broken like a
vase.' She said Marivic ran into her room and they locked the door. When Ben
couldn't get in he got a chair and a knife and 'showed us the knife through the
window grill and he scared us.' She said that Marivic shouted for help, but no one
came. On cross-examination, she said that when she left Marivic's house on
November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until
November 9, 1995, there were six (6) episodes of physical injuries inflicted upon
Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.'
x x x x x x x x x
'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD
Chart of Marivic at the Philphos Clinic which reflected all the consultations made by
Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit
'3.'
"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological make-up of the patient,
'whether she is capable of committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past
8:00 in the evening. She sought his help to settle or confront the Genosa couple who
were experiencing 'family troubles'. He told Marivic to return in the morning, but he
did not hear from her again and assumed 'that they might have settled with each
other or they might have forgiven with each other.'
x x x x x x x x x
"Marivic said she did not provoke her husband when she got home that night it was
her husband who began the provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she would deliver her baby
safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she
was suffering from eclampsia and hypertension, and the baby was born prematurely
on December 1, 1995.
"Marivic testified that during her marriage she had tried to leave her husband at
least five (5) times, but that Ben would always follow her and they would reconcile.
Marivic said that the reason why Ben was violent and abusive towards her that night
was because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he
died in the bedroom; that their quarrels could be heard by anyone passing their
house; that Basobas lied in his testimony; that she left for Manila the next day,
November 16, 1995; that she did not bother anyone in Manila, rented herself a
room, and got herself a job as a field researcher under the alias 'Marvelous Isidro';
she did not tell anyone that she was leaving Leyte, she just wanted to have a safe
delivery of her baby; and that she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that
she did not know what happened to the pipe she used to 'smash him once'; that she
was wounded by Ben on her wrist with the bolo; and that two (2) hours after she
was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when
he saw that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation
was made of the foul odor emitting from the Genosa residence. This fact was
testified to by all the prosecution witnesses and some defense witnesses during the
trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel,
Leyte at the time of the incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of cadavers and the
autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the
medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw 'some police officer and neighbor
around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.
x x x x x x x x x
"Dra. Cerillo said that 'there is only one injury and that is the injury involving the
skeletal area of the head' which she described as a 'fracture'. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what
caused his death.
"Dra. Cerillo was not cross-examined by defense counsel.
"11. The Information, dated November 14, 1996, filed against Marivic Genosa
charged her with the crime of PARRICIDE committed 'with intent to kill, with
treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously
attack, assault, hit and wound x x x her legitimate husband, with the use of a hard
deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and
23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998,
and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial
date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime
of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and,
under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon,
filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary
measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which, for
reasons of her own, were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she
submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state of
mind at the time she killed her husband; and finally, to allow a partial re-opening of
the case a quo to take the testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then
the only qualified forensic pathologist in the country, who opined that the description
of the death wound (as culled from the post-mortem findings, Exhibit 'A') is more
akin to a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial
court for the reception of expert psychological and/or psychiatric opinion on the
'battered woman syndrome' plea, within ninety (90) days from notice, and,
thereafter to forthwith report to this Court the proceedings taken, together with the
copies of the TSN and relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were
done at the Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Joseph's College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo,
and a PhD from the U.P. She was the past president of the Psychological Association
of the Philippines and is a member of the American Psychological Association. She is
the secretary of the International Council of Psychologists from about 68 countries; a
member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of
families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book
entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan
Bernardo). The Genosa case is the first time she has testified as an expert on
battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic
and psychological profile of families involved in domestic violence, and nullity cases,
she looked at about 500 cases over a period of ten (10) years and discovered that
'there are lots of variables that cause all of this marital conflicts, from domestic
violence to infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.'
x x x x x x x x x
"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low
opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x
they usually think very lowly of themselves and so when the violence would happen,
they usually think that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even sexually
abusive to them.' Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very
low opinion of himself. But then emerges to have superiority complex and it comes
out as being very arrogant, very hostile, very aggressive and very angry. They also
had (sic) a very low tolerance for frustrations. A lot of times they are involved in
vices like gambling, drinking and drugs. And they become violent.' The batterer also
usually comes from a dysfunctional family which over-pampers them and makes
them feel entitled to do anything. Also, they see often how their parents abused each
other so 'there is a lot of modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons why a battered woman does not
leave her husband: poverty, self-blame and guilt that she provoked the violence, the
cycle itself which makes her hope her husband will change, the belief in her
obligations to keep the family intact at all costs for the sake of the children.
x x x x x x x x x
"Dra. Dayan said that abused wives react differently to the violence: some leave the
house, or lock themselves in another room, or sometimes try to fight back triggering
'physical violence on both of them.' She said that in a 'normal marital relationship,'
abuses also happen, but these are 'not consistent, not chronic, are not happening
day in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs day in
and day out, is long lasting and 'even would cause hospitalization on the victim and
even death on the victim.'
x x x x x x x x x
"Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered woman
because 'inspite of her feeling of self-confidence which we can see at times there are
really feeling (sic) of loss, such feelings of humiliation which she sees herself as
damaged and as a broken person. And at the same time she still has the imprint of
all the abuses that she had experienced in the past.'
x x x x x x x x x
"Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at the time
of the tragedy that Marivic then thought of herself as a victim.
x x x x x x x x x
"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association.
He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in
private practice, he was connected with the Veterans Memorial Medical Centre where
he gained his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical
Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the
University of Santo Tomas. He was also a member of the World Association of
Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine
Military Academy from the Period 1954 1978' which was presented twice in
international congresses. He also authored 'The Mental Health of the Armed Forces of
the Philippines 2000', which was likewise published internationally and locally. He
had a medical textbook published on the use of Prasepam on a Parke-Davis grant;
was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published
the use of the drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind
and neurology deals with the ailment of the brain and spinal cord enlarged.
Psychology, on the other hand, is a bachelor degree and a doctorate degree; while
one has to finish medicine to become a specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case in
1964. In the Armed Forces of the Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In those days, the primordial
intention of therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office in Quezon City
under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal abuse,
battering and boxing a woman even to an unconscious state such that the woman is
sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the
vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological
stamina and physiologic constitutional stamina of the victim is stronger, 'it will take
more repetitive trauma to precipitate the post-traumatic stress disorder and this x x
x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety
neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality,
trauma.'
x x x x x x x x x
"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or
trauma as if it were real, although she is not actually being beaten at that time. She
thinks 'of nothing but the suffering.'
x x x x x x x x x
"A woman who suffers battery has a tendency to become neurotic, her emotional
tone is unstable, and she is irritable and restless. She tends to become hard-headed
and persistent. She has higher sensitivity and her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background relates to an individual's
illness, such as the deprivation of the continuous care and love of the parents. As to
the batterer, he normally 'internalizes what is around him within the environment.'
And it becomes his own personality. He is very competitive; he is aiming high all the
time; he is so macho; he shows his strong faade 'but in it there are doubts in
himself and prone to act without thinking.'
x x x x x x x x x
"Dr. Pajarillo emphasized that 'even though without the presence of the precipator
(sic) or the one who administered the battering, that re-experiencing of the trauma
occurred (sic) because the individual cannot control it. It will just come up in her
mind or in his mind.'
x x x x x x x x x
"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that
is available in the immediate surrounding or in a hospital x x x because that abound
in the household.' He said a victim resorts to weapons when she has 'reached the
lowest rock bottom of her life and there is no other recourse left on her but to act
decisively.'
x x x x x x x x x
"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he
conducted for two (2) hours and seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his diagnosis. He came out
with a Psychiatric Report, dated 22 January 2001.
x x x x x x x x x
"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time
she killed her husband Marivic'c mental condition was that she was 're-experiencing
the trauma.' He said 'that we are trying to explain scientifically that the re-
experiencing of the trauma is not controlled by Marivic. It will just come in flashes
and probably at that point in time that things happened when the re-experiencing of
the trauma flashed in her mind.' At the time he interviewed Marivic 'she was more
subdued, she was not super alert anymore x x x she is mentally stress (sic) because
of the predicament she is involved.'
x x x x x x x x x
"20. No rebuttal evidence or testimony was presented by either the private or the
public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quo were elevated."
9

Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the
prosecution evidence that appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless when he was killed --
lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for
automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this
Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of
his death; (2) the examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had killed her spouse;
and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the
case for the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's
Motion, remanding the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the "battered woman syndrome" plea;
and requiring the lower court to report thereafter to this Court the proceedings taken
as well as to submit copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the examination of
Marivic by two clinical psychologists, Drs. Natividad Dayan
10
and Alfredo Pajarillo,
11

supposedly experts on domestic violence. Their testimonies, along with their
documentary evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the records of the case.
12

The Issues
Appellant assigns the following alleged errors of the trial court for this Court's
consideration:
"1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa
were legally married and that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a
pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from
impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa
was a battered husband.
"5. The trial court gravely erred in not requiring testimony from the children of
Marivic Genosa.
"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life
of her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her
to the ultimate penalty of death."
13

In the main, the following are the essential legal issues: (1) whether appellant acted
in self-defense and in defense of her fetus; and (2) whether treachery attended the
killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral
to the resolution of the principal issues. As consistently held by this Court, the
findings of the trial court on the credibility of witnesses and their testimonies are
entitled to a high degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or circumstances of weight
and substance that could affect the outcome of the case.
14

In appellant's first six assigned items, we find no grave abuse of discretion,
reversible error or misappreciation of material facts that would reverse or modify the
trial court's disposition of the case. In any event, we will now briefly dispose of these
alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision
without reflecting on the evidence adduced as to self-defense." We note that in his
17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both
the prosecution and the defense witnesses and -- on the basis of those and of the
documentary evidence on record -- made his evaluation, findings and conclusions.
He wrote a 3-page discourse assessing the testimony and the self-defense theory of
the accused. While she, or even this Court, may not agree with the trial judge's
conclusions, we cannot peremptorily conclude, absent substantial evidence, that he
failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty"
manner. The Information had been filed with the lower court on November 14, 1996.
Thereafter, trial began and at least 13 hearings were held for over a year. It took the
trial judge about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with dispatch should not
be taken against him, much less used to condemn him for being unduly hasty. If at
all, the dispatch with which he handled the case should be lauded. In any case, we
find his actions in substantial compliance with his constitutional obligation.
15

Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their marriage
contract. In People v. Malabago,
16
this Court held:
"The key element in parricide is the relationship of the offender with the victim. In
the case of parricide of a spouse, the best proof of the relationship between the
accused and the deceased is the marriage certificate. In the absence of a marriage
certificate, however, oral evidence of the fact of marriage may be considered by the
trial court if such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of
appellant's deceased spouse -- attested in court that Ben had been married to
Marivic.
17
The defense raised no objection to these testimonies. Moreover, during her
direct examination, appellant herself made a judicial admission of her marriage to
Ben.
18
Axiomatic is the rule that a judicial admission is conclusive upon the party
making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made.
19
Other than
merely attacking the non-presentation of the marriage contract, the defense offered
no proof that the admission made by appellant in court as to the fact of her marriage
to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Ben's
death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
"[c]onsidering that the appellant has admitted the fact of killing her husband and the
acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to
determine which of said acts actually caused the victim's death." Determining which
of these admitted acts caused the death is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben
was a drunk, gambler, womanizer and wife-beater. Until this case came to us for
automatic review, appellant had not raised the novel defense of "battered woman
syndrome," for which such evidence may have been relevant. Her theory of self-
defense was then the crucial issue before the trial court. As will be discussed shortly,
the legal requisites of self-defense under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute vital evidence at
the time.
Fifth, the trial court surely committed no error in not requiring testimony from
appellant's children. As correctly elucidated by the solicitor general, all criminal
actions are prosecuted under the direction and control of the public prosecutor, in
whom lies the discretion to determine which witnesses and evidence are necessary to
present.
20
As the former further points out, neither the trial court nor the prosecution
prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of
Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of
her guilt or are attempts to save the life of her unborn child. Any reversible error as
to the trial court's appreciation of these circumstances has little bearing on the final
resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-
defense and/or defense of her unborn child. When the accused admits killing the
victim, it is incumbent upon her to prove any claimed justifying circumstance by
clear and convincing evidence.
21
Well-settled is the rule that in criminal cases, self-
defense (and similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.
22

The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman
syndrome. While new in Philippine jurisprudence, the concept has been recognized in
foreign jurisdictions as a form of self-defense or, at the least, incomplete self-
defense.
23
By appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their "understanding of the justifiably fearful state
of mind of a person who has been cyclically abused and controlled over a period of
time."
24

A battered woman has been defined as a woman "who is repeatedly subjected to any
forceful physical or psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with men. Furthermore,
in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is
defined as a battered woman."
25

Battered women exhibit common personality traits, such as low self-esteem,
traditional beliefs about the home, the family and the female sex role; emotional
dependence upon the dominant male; the tendency to accept responsibility for the
batterer's actions; and false hopes that the relationship will improve.
26

More graphically, the battered woman syndrome is characterized by the so-called
"cycle of violence,"
27
which has three phases: (1) the tension-building phase; (2) the
acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent)
phase.
28

During the tension-building phase, minor battering occurs -- it could be verbal or
slight physical abuse or another form of hostile behavior. The woman usually tries to
pacify the batterer through a show of kind, nurturing behavior; or by simply staying
out of his way. What actually happens is that she allows herself to be abused in ways
that, to her, are comparatively minor. All she wants is to prevent the escalation of
the violence exhibited by the batterer. This wish, however, proves to be double-
edged, because her "placatory" and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not
usually successful, and the verbal and/or physical abuse worsens. Each partner
senses the imminent loss of control and the growing tension and despair. Exhausted
from the persistent stress, the battered woman soon withdraws emotionally. But the
more she becomes emotionally unavailable, the more the batterer becomes angry,
oppressive and abusive. Often, at some unpredictable point, the violence "spirals out
of control" and leads to an acute battering incident.
29

The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this incident as
unpredictable, yet also inevitable. During this phase, she has no control; only the
batterer may put an end to the violence. Its nature can be as unpredictable as the
time of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain,
although she may later clearly remember every detail. Her apparent passivity in the
face of acute violence may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful experience that it is futile to
fight back. Acute battering incidents are often very savage and out of control, such
that innocent bystanders or intervenors are likely to get hurt.
30

The final phase of the cycle of violence begins when the acute battering incident
ends. During this tranquil period, the couple experience profound relief. On the one
hand, the batterer may show a tender and nurturing behavior towards his partner.
He knows that he has been viciously cruel and tries to make up for it, begging for
her forgiveness and promising never to beat her again. On the other hand, the
battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and
caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation and despair, she feels responsible for
his well-being. The truth, though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional help as a way of
getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered woman's
psyche. In this phase, she and her batterer are indeed emotionally dependent on
each other -- she for his nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of "tension, violence and forgiveness," each partner may believe that
it is better to die than to be separated. Neither one may really feel independent,
capable of functioning without the other.
31

History of Abuse in the Present Case
To show the history of violence inflicted upon appellant, the defense presented
several witnesses. She herself described her heart-rending experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he was cruel
to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive
to you and cruel. In what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned
me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced and after that I
go to him and he said 'sorry'.
Q During those times that you were the recipient of such cruelty and abusive
behavior by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
x x x x x x x x x
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
x x x x x x x x x
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on
your occurred, after your marriage, from that time on, how frequent was the
occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me."
32

Referring to his "Out-Patient Chart"
33
on Marivic Genosa at the Philphos Hospital, Dr.
Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents which are found in the
chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2
o
to trauma. Attending physician: Dr.
Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the
patient. What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast.
So, [pain] meaning there is tenderness. When your breast is traumatized, there is
tenderness pain.
Q So, these are objective physical injuries. Doctor?
x x x x x x x x x
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of these injuries. And
she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
x x x x x x x x x
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in
the month of November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient
pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her
pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
x x x x x x x x x
Q Lets go back to the clinical history of Marivic Genosa. You said that you were able
to examine her personally on November 6, 1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I
think I have a record here, also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had
hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She
does not response when the medication was given to her, because tension headache
is more or less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the
family history in line of giving the root cause of what is causing this disease. So,
from the moment you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension
which is unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of
the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of
blood pressure?
A It was dangerous to the child or to the fetus."
34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in
Isabel, Leyte, testified that he had seen the couple quarreling several times; and
that on some occasions Marivic would run to him with bruises, confiding that the
injuries were inflicted upon her by Ben.
35

Ecel Arano also testified
36
that for a number of times she had been asked by Marivic
to sleep at the Genosa house, because the latter feared that Ben would come home
drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened
about ten o'clock at night, because the couple "were very noisy and I heard
something was broken like a vase." Then Marivic came running into Ecel's room and
locked the door. Ben showed up by the window grill atop a chair, scaring them with a
knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to
find Ben -- but they were unable to. They returned to the Genosa home, where they
found him already drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she
heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other
witnesses saw or heard the couple quarreling.
37
Marivic relates in detail the following
backdrop of the fateful night when life was snuffed out of him, showing in the
process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the
evening?
A Whole morning and in the afternoon, I was in the office working then after office
hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I
immediately asked my son, where was his father, then my second child said, 'he was
not home yet'. I was worried because that was payday, I was anticipating that he
was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o'clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at
that time because I had fears that he was again drunk and I was worried that he
would again beat me so I requested my cousin to sleep with me, but she resisted
because she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because
of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he
do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just
worried he might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid
trouble for fear that he will beat me again. Perhaps he was disappointed because I
just ignore him of his provocation and he switch off the light and I said to him, 'why
did you switch off the light when the children were there.' At that time I was also
attending to my children who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen and [got] a bolo and cut
the antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared
and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that
bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the
bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing
his clothes, then he dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he
drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on
shouting at me that 'you might as well be killed so there will be nobody to nag me.'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling
I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I
was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
x x x x x x x x x
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this
blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me."
38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert
witness to assist it in understanding the psyche of a battered person. She had met
with Marivic Genosa for five sessions totaling about seventeen hours. Based on their
talks, the former briefly related the latter's ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in
layman's term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was
suffering emotional anguish. There were a lot of instances of abuses, to emotional
abuse, to verbal abuse and to physical abuse. The husband had a very meager
income, she was the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will
trigger a lot of physical abuse. She also had the experience a lot of taunting from the
husband for the reason that the husband even accused her of infidelity, the husband
was saying that the child she was carrying was not his own. So she was very angry,
she was at the same time very depressed because she was also aware, almost like
living in purgatory or even hell when it was happening day in and day out."
39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but
wittingly or unwittingly put forward, additional supporting evidence as shown below:
"Q In your first encounter with the appellant in this case in 1999, where you talked
to her about three hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of
the facts of the case or at least you have substantial knowledge of the facts of the
case?
A I believe I had an idea of the case, but I do not know whether I can consider them
as substantial.
x x x x x x x x x
Q Did you gather an information from Marivic that on the side of her husband they
were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that
were fond of battering their wives?
A What I remember that there were brothers of her husband who are also battering
their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in
Ormoc where her husband followed her and battered [her] several times in that
room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it
really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I
think that is the first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was
really a self-defense. I also believe that there had been provocation and I also
believe that she became a disordered person. She had to suffer anxiety reaction
because of all the battering that happened and so she became an abnormal person
who had lost she's not during the time and that is why it happened because of all the
physical battering, emotional battering, all the psychological abuses that she had
experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.
40

Parenthetically, the credibility of appellant was demonstrated as follows:
"Q And you also said that you administered [the] objective personality test, what x x
x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone
who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can
trust. That the data that I'm gathering from her are the truth."
41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on
his Psychiatric Report,
42
which was based on his interview and examination of Marivic
Genosa. The Report said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and happy -- until "Ben
started to be attracted to other girls and was also enticed in[to] gambling[,]
especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his
family, particularly to his wife. The Report continued: "At first, it was verbal and
emotional abuses but as time passed, he became physically abusive. Marivic claimed
that the viciousness of her husband was progressive every time he got drunk. It was
a painful ordeal Marivic had to anticipate whenever she suspected that her husband
went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further
quoting from the Report, "[s]he also sought the advice and help of close relatives
and well-meaning friends in spite of her feeling ashamed of what was happening to
her. But incessant battering became more and more frequent and more severe. x x
x."
43

From the totality of evidence presented, there is indeed no doubt in the Court's mind
that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her
state of mind metamorphoses. In determining her state of mind, we cannot rely
merely on the judgment of an ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A Canadian court has aptly pointed out
that expert evidence on the psychological effect of battering on wives and common
law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask:
Why would a woman put up with this kind of treatment? Why should she continue to
live with such a man? How could she love a partner who beat her to the point of
requiring hospitalization? We would expect the woman to pack her bags and go.
Where is her self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"
44

To understand the syndrome properly, however, one's viewpoint should not be
drawn from that of an ordinary, reasonable person. What goes on in the mind of a
person who has been subjected to repeated, severe beatings may not be consistent
with -- nay, comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute common myths and
misconceptions about battered women.
45

The theory of BWS formulated by Lenore Walker, as well as her research on
domestic violence, has had a significant impact in the United States and the United
Kingdom on the treatment and prosecution of cases, in which a battered woman is
charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the
latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape."
46
In her years of research, Dr. Walker found
that "the abuse often escalates at the point of separation and battered women are in
greater danger of dying then."
47

Corroborating these research findings, Dra. Dayan said that "the battered woman
usually has a very low opinion of herself. She has x x x self-defeating and self-
sacrificing characteristics. x x x [W]hen the violence would happen, they usually
think that they provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them."
48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not
readily leave an abusive partner -- poverty, self-blame and guilt arising from the
latter's belief that she provoked the violence, that she has an obligation to keep the
family intact at all cost for the sake of their children, and that she is the only hope
for her spouse to change.
49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having evaluated
"probably ten to twenty thousand" violent family disputes within the Armed Forces of
the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to
her loss of consciousness.
50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in
posttraumatic stress disorder, a form of "anxiety neurosis or neurologic anxietism."
51

After being repeatedly and severely abused, battered persons "may believe that they
are essentially helpless, lacking power to change their situation. x x x [A]cute
battering incidents can have the effect of stimulating the development of coping
responses to the trauma at the expense of the victim's ability to muster an active
response to try to escape further trauma. Furthermore, x x x the victim ceases to
believe that anything she can do will have a predictable positive effect."
52

A study
53
conducted by Martin Seligman, a psychologist at the University of
Pennsylvania, found that "even if a person has control over a situation, but believes
that she does not, she will be more likely to respond to that situation with coping
responses rather than trying to escape." He said that it was the cognitive aspect --
the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out
to be less important than the individual's set of beliefs or perceptions concerning the
situation. Battered women don't attempt to leave the battering situation, even when
it may seem to outsiders that escape is possible, because they cannot predict their
own safety; they believe that nothing they or anyone else does will alter their terrible
circumstances."
54

Thus, just as the battered woman believes that she is somehow responsible for the
violent behavior of her partner, she also believes that he is capable of killing her, and
that there is no escape.
55
Battered women feel unsafe, suffer from pervasive anxiety,
and usually fail to leave the relationship.
56
Unless a shelter is available, she stays
with her husband, not only because she typically lacks a means of self-support, but
also because she fears that if she leaves she would be found and hurt even more.
57

In the instant case, we meticulously scoured the records for specific evidence
establishing that appellant, due to the repeated abuse she had suffered from her
spouse over a long period of time, became afflicted with the battered woman
syndrome. We, however, failed to find sufficient evidence that would support such a
conclusion. More specifically, we failed to find ample evidence that would confirm the
presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the "cycle of violence"
supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt
there were acute battering incidents. In relating to the court a quo how the fatal
incident that led to the death of Ben started, Marivic perfectly described the tension-
building phase of the cycle. She was able to explain in adequate detail the typical
characteristics of this stage. However, that single incident does not prove the
existence of the syndrome. In other words, she failed to prove that in at least
another battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute
battering? How did Marivic normally respond to Ben's relatively minor abuses? What
means did she employ to try to prevent the situation from developing into the next
(more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the
cycle. She simply mentioned that she would usually run away to her mother's or
father's house;
58
that Ben would seek her out, ask for her forgiveness and promise
to change; and that believing his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her
spouse? Did she believe that she was the only hope for Ben to reform? And that she
was the sole support of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in their relationship?
Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and
thoughts that would clearly and fully demonstrate the essential characteristics of the
syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the
defense. Indeed, they were able to explain fully, albeit merely theoretically and
scientifically, how the personality of the battered woman usually evolved or
deteriorated as a result of repeated and severe beatings inflicted upon her by her
partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to
them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance
must be proven in order to be appreciated. To repeat, the records lack supporting
evidence that would establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself
establish the legal right of the woman to kill her abusive partner. Evidence must still
be considered in the context of self-defense.
59

From the expert opinions discussed earlier, the Court reckons further that crucial to
the BWS defense is the state of mind of the battered woman at the time of the
offense
60
-- she must have actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-
defense must face a real threat on one's life; and the peril sought to be avoided
must be imminent and actual, not merely imaginary.
61
Thus, the Revised Penal Code
provides the following requisites and effect of self-defense:
62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
Unlawful aggression is the most essential element of self-defense.
63
It presupposes
actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life
or safety of a person.
64
In the present case, however, according to the testimony of
Marivic herself, there was a sufficient time interval between the unlawful aggression
of Ben and her fatal attack upon him. She had already been able to withdraw from
his violent behavior and escape to their children's bedroom. During that time, he
apparently ceased his attack and went to bed. The reality or even the imminence of
the danger he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom --
and based on past violent incidents, there was a great probability that he would still
have pursued her and inflicted graver harm -- then, the imminence of the real threat
upon her life would not have ceased yet. Where the brutalized person is already
suffering from BWS, further evidence of actual physical assault at the time of the
killing is not required. Incidents of domestic battery usually have a predictable
pattern. To require the battered person to await an obvious, deadly attack before she
can defend her life "would amount to sentencing her to 'murder by installment.'"
65

Still, impending danger (based on the conduct of the victim in previous battering
episodes) prior to the defendant's use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence of danger.
66

Considering such circumstances and the existence of BWS, self-defense may be
appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-
defense.
67
In the absence of such aggression, there can be no self-defense --
complete or incomplete -- on the part of the victim.
68
Thus, Marivic's killing of Ben
was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying
circumstances that would alter her penalty, we deem it proper to evaluate and
appreciate in her favor circumstances that mitigate her criminal liability. It is a
hornbook doctrine that an appeal in a criminal case opens it wholly for review on any
issue, including that which has not been raised by the parties.
69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her
Psychological Evaluation Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering
Marivic experienced with her husband constitutes a form of [cumulative] provocation
which broke down her psychological resistance and natural self-control. It is very
clear that she developed heightened sensitivity to sight of impending danger her
husband posed continuously. Marivic truly experienced at the hands of her abuser
husband a state of psychological paralysis which can only be ended by an act of
violence on her part."
70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of
"repetitious pain taking, repetitious battering, [and] repetitious maltreatment" as
well as the severity and the prolonged administration of the battering is
posttraumatic stress disorder.
71
Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity
of the battering. Third, the prolonged administration of battering or the prolonged
commission of the battering and the psychological and constitutional stamina of the
victim and another one is the public and social support available to the victim. If
nobody is interceding, the more she will go to that disorder....
x x x x x x x x x
Q You referred a while ago to severity. What are the qualifications in terms of
severity of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic
stress disorder is injury to the head, banging of the head like that. It is usually the
very very severe stimulus that precipitate this post[t]raumatic stress disorder.
Others are suffocating the victim like holding a pillow on the face, strangulating the
individual, suffocating the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like for example she is
pregnant, she is very susceptible because the woman will not only protect herself,
she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will
manifest now a severe emotional instability, higher irritability remorse, restlessness,
and fear and probably in most [acute] cases the first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any
prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6)
months. After this six (6) months you become chronic. It is stated in the book
specifically that after six (6) months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then become normal. This is how
you get neurosis from neurotic personality of these cases of post[t]raumatic stress
disorder."
72

Answering the questions propounded by the trial judge, the expert witness clarified
further:
"Q But just the same[,] neurosis especially on battered woman syndrome x x x
affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated."
73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant
resulted in "cumulative provocation which broke down her psychological resistance
and natural self-control," "psychological paralysis," and "difficulty in concentrating or
impairment of memory."
Based on the explanations of the expert witnesses, such manifestations were
analogous to an illness that diminished the exercise by appellant of her will power
without, however, depriving her of consciousness of her acts. There was, thus, a
resulting diminution of her freedom of action, intelligence or intent. Pursuant to
paragraphs 9
74
and 10
75
of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor.
76

In addition, we also find in favor of appellant the extenuating circumstance of having
acted upon an impulse so powerful as to have naturally produced passion and
obfuscation. It has been held that this state of mind is present when a crime is
committed as a result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to overcome reason.
77
To
appreciate this circumstance, the following requisites should concur: (1) there is an
act, both unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable length of
time, during which the accused might recover her normal equanimity.
78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor,
preceded his being killed by Marivic. He had further threatened to kill her while
dragging her by the neck towards a cabinet in which he had kept a gun. It should
also be recalled that she was eight months pregnant at the time. The attempt on her
life was likewise on that of her fetus.
79
His abusive and violent acts, an aggression
which was directed at the lives of both Marivic and her unborn child, naturally
produced passion and obfuscation overcoming her reason. Even though she was able
to retreat to a separate room, her emotional and mental state continued. According
to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of
fear that she and her baby were about to die. In a fit of indignation, she pried open
the cabinet drawer where Ben kept a gun, then she took the weapon and used it to
shoot him.
The confluence of these events brings us to the conclusion that there was no
considerable period of time within which Marivic could have recovered her normal
equanimity. Helpful is Dr. Pajarillo's testimony
80
that with "neurotic anxiety" -- a
psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim
relives the beating or trauma as if it were real, although she is not actually being
beaten at the time. She cannot control "re-experiencing the whole thing, the most
vicious and the trauma that she suffered." She thinks "of nothing but the suffering."
Such reliving which is beyond the control of a person under similar circumstances,
must have been what Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity. Accordingly, she should
further be credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well
as passion and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the
severity of the battery inflicted by the batterer-spouse upon appellant. That is, the
repeated beatings over a period of time resulted in her psychological paralysis, which
was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he
had inflicted on her prior to the killing. That the incident occurred when she was
eight months pregnant with their child was deemed by her as an attempt not only on
her life, but likewise on that of their unborn child. Such perception naturally
produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk to oneself
arising from the defense that the offended party might make.
81
In order to qualify an
act as treacherous, the circumstances invoked must be proven as indubitably as the
killing itself; they cannot be deduced from mere inferences, or conjectures, which
have no place in the appreciation of evidence.
82
Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself.
83

Ruling that treachery was present in the instant case, the trial court imposed the
penalty of death upon appellant. It inferred this qualifying circumstances merely
from the fact that the lifeless body of Ben had been found lying in bed with an "open,
depressed, circular" fracture located at the back of his head. As to exactly how and
when he had been fatally attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads us to the events
surrounding his death:
"Q You said that when Ben came back to your house, he dragged you? How did he
drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on
shouting at me that 'you might as well be killed so there will be nobody to nag me'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling
I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I
was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
x x x x x x x x x
Q You said that he dropped the blade, for the record will you please describe this
blade about 3 inches long, how does it look like?
A Three (3) inches long and ! inch wide.
Q It is a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
x x x x x x x x x
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed
him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before
when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood
pressure was raised. I was frightened I was about to die because of my blood
pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through with him, I took pity
on myself and I felt I was about to die also because of my blood pressure and the
baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."
84

The above testimony is insufficient to establish the presence of treachery. There is
no showing of the victim's position relative to appellant's at the time of the shooting.
Besides, equally axiomatic is the rule that when a killing is preceded by an argument
or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because
the deceased may be said to have been forewarned and to have anticipated
aggression from the assailant.
85

Moreover, in order to appreciate alevosia, the method of assault adopted by the
aggressor must have been consciously and deliberately chosen for the specific
purpose of accomplishing the unlawful act without risk from any defense that might
be put up by the party attacked.
86
There is no showing, though, that the present
appellant intentionally chose a specific means of successfully attacking her husband
without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about
the same moment when she decided to kill her batterer-spouse. In the absence of
any convincing proof that she consciously and deliberately employed the method by
which she committed the crime in order to ensure its execution, this Court resolves
the doubt in her favor.
87

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is
reclusion perpetua to death. Since two mitigating circumstances and no aggravating
circumstance have been found to have attended the commission of the offense, the
penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5
88

of the same Code.
89
The penalty of reclusion temporal in its medium period is
imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense.
90
Under
the Indeterminate Sentence Law, the minimum of the penalty shall be within the
range of that which is next lower in degree -- prision mayor -- and the maximum
shall be within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to
impose the penalty of prision mayor in its minimum period, or six (6) years and one
(1) day in prison as minimum; to reclusion temporal in its medium period, or 14
years 8 months and 1 day as maximum. Noting that appellant has already served
the minimum period, she may now apply for and be released from detention on
parole.
91

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was
neither easy nor simple to analyze and recognize vis--vis the given set of facts in
the present case. The Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which decisions are made --
on the basis of existing law and jurisprudence applicable to the proven facts. To give
a just and proper resolution of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies of the syndrome
and the distinct personality of the chronically abused person. Certainly, the Court has
learned much. And definitely, the solicitor general and appellant's counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work
within the limits of law, jurisprudence and given facts. We cannot make or invent
them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom,
may do so.
The Court, however, is not discounting the possibility of self-defense arising from the
battered woman syndrome. We now sum up our main points. First, each of the
phases of the cycle of violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate partner. Second, the final
acute battering episode preceding the killing of the batterer must have produced in
the battered person's mind an actual fear of an imminent harm from her batterer
and an honest belief that she needed to use force in order to save her life. Third, at
the time of the killing, the batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing facts of the present
case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby
AFFIRMED. However, there being two (2) mitigating circumstances and no
aggravating circumstance attending her commission of the offense, her penalty is
REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14
years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may immediately
RELEASE her from custody upon due determination that she is eligible for parole,
unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ.,
concur. Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice
Santiago in her dissent. Vitug and Quisumbing JJ., in the result. Ynares-Santiago J.,
see dissenting opinion.

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

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has
three phases, to wit: (1) the tension-building phase, where minor batterings in the
form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the
batterer through a show of kind, nurturing behavior; or by simply staying out of his
way; (2) the acute battering incident phase which is characterized by brutality,
destructiveness and sometimes, death. The battered woman usually realizes that she
cannot reason with him and that resistance would only exacerbate her condition; and
(3) the tranquil period, where the couple experience a compound relief and the
batterer may show a tender and nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense was able to establish the
occurrence on more than one occasion of the "tension-building phase" of the cycle.
The various testimonies of appellant's witnesses clearly reveal that she knew exactly
when she would once again be subjected to acute battery. Her cousin, Ecel Arano,
testified that she often asked the latter to sleep in her house as she was afraid every
time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay
captain, Panfilo Tero, also testified that appellant sought his help two months before
she killed her husband, again demonstrating that she was in the tension-building
phase and was attempting to prevent another incident of acute battery. Appellant
presented evidence to prove that the tension-building phase would occur whenever
her husband would go out looking for other women, would lose at cockfights or
would come home drunk. She often tried to ignore her husband's attitude or, as
testified to by some witnesses for the prosecution, even shouted back, fought off or
even injured her husband during the tension-building phase, if only to prevent the
onset of acute battery.
Appellant was able to perfectly describe the tension-building phase of the cycle
immediately prior to the death of her husband, i.e., when she knew or felt that she
was going to be killed by the deceased. She could not possibly have testified with
clarity as to prior tension-building phases in the cycle as she had never tried to kill
her husband before this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution
that appellant would seek shelter in her mother's or her father's house after an acute
battering incident, after which would begin the process of begging for forgiveness,
promises of change in behavior and return to the conjugal home, only for the same
cycle to begin all over again.
To require appellant to prove the state of mind of the deceased, as seems to be
required in the ponencia, would mean that no person would ever be able to prove
self-defense in a battered woman case. Appellant could not possibly prove whether
the deceased felt provoked into battering by any act or omission of appellant. She
cannot possibly prove that she felt herself to be the sole support of the deceased's
emotional stability and well-being. Nevertheless, appellant felt trapped and helpless
in the relationship as, in the end, she resorted to killing her husband as no one could
or did help her, whether out of fear or insensitivity, during the violent marriage she
endured.
The "acute battering incident stage" was well demonstrated by the severe beatings
suffered by Marivic in the hands of the deceased as well as the threats to kill her
using a bolo or a cutter.
2
The physical abuses occurred at least 3 times a week in the
11 miserable years of their marriage,
3
six incidents of which were documented by
the 1990-1995 medical records of Marivic. They included, among others, hematoma,
contusion, and pain on the breasts; multiple contusions and trauma on the different
parts of her body even during her pregnancy in 1995.
4
The tranquil period underwent
by Marivic was shown by the repeated "kiss and make-up" episodes of their
relationship. On more than 5 occasions, Marivic ran to her parents' house after
violent fights with the deceased only to forgive the latter every time he would fetch
her and promise to change.
5

All these recurring phases of cycle of violence, repentance and forgiveness developed
a trauma in the mind of Marivic making her believe that a forthcoming attack from
the deceased would cause her death. This state of mind of Marivic was revealed in
her testimony given way back in 1998, before she was examined by experts on BWS.
Unaware of the significance of her declarations, she candidly narrated how she felt
immediately before she killed the deceased, thus -
ATTY. TABUCANON
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx xxx xxx
Q What happened when you were brought to the drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key. [T]hen he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the room, and on that
very moment everything on my mind was pity on myself, then the feeling I had on
that very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
xxx xxx xxx
6

Q What else happened?
A When I was in the room, I felt the same thing like what happened before I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure has
raised. I was frightened I was about to die because of my blood pressure.
xxx xxx xxx
A Considering all the physical sufferings that I've been through him, I took pity on
myself and I felt I was about to die also because of my blood pressure and the baby,
so I got the gun and shot him.
7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised
by Marivic before the lower court but only here on automatic review. This makes the
foregoing testimony more worthy of great weight and credence considering that the
same could not have been cunningly given to suit or conform to the profile of a
battered woman.
Moreover, there was indeed basis for Marivic to fear death because of her medical
history. Dr. Dino Caing testified that he treated Marivic for hypertension due to
domestically related emotional stress on 23 separate occasions. The latest one was
on November 6, 1995 when she suffered from severe hypertension and had a blood
pressure of 180/120 on the 8
th
month of her pregnancy.
8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS
who examined Marivic, assessed the effects of the repeated violence on the latter as
follows:
A What I remember ... was it was more than ten years that she was suffering from
emotional anguish. There were a lot of instance of abuses, ... emotional
abuse...verbal abuse and... physical abuse. The husband had very meager income,
she was the one who was practically the bread earner of the family. The husband
was involved in a lot of vices, going out with barkadas, drinking, even womanizing,
being involved in cockfighting and in going home very angry which... triggered a lot
of physical abuse. She also had the experience of taunting from the husband for the
reason that the husband even accused her of infidelity, the husband was saying that
the child she was carrying was not his own. So she was very angry, she was at the
same time very depressed because she .. .[felt] almost like living in purgatory or
even in hell when it was happening day in and day out.
xxx xxx xxx
Q And what was it that triggered ... that tragedy in your opinion?
A I think for several weeks, she was already having all those tensions, all those
anxieties, they were not enough, that the husband was even going to cockfighting x
x x
A She was angry with him, he was angry with her and I think he dragged her and
even spun her around. She tried to fight him so there was a lot of fight and when she
was able to escape, she went to another room and she locked herself with the
children. And when the husband was for a while very angry he calms down then and
then (sic). But I remember before that the husband was looking for the gun and I
think he was not able to open the cabinet because she had the key. So during that
time, I remember, that she was very much afraid of him, so when the husband
calmed down and he was asleep, all she was concerned was to end up her misery, to
save her child which she was carrying and to save her two children. I believe that
somehow she's not rational.
9

xxx xxx xxx
PROS. TRUYA
Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on
this case that the books you studied in the expertise in line and in the 77 hour
contact with appellant Mrs. Genosa, could you say that this is not ordinary self-
defense but a survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?
A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need
to survive with her two sons and [the] child she's bringing.
Q Had she not able to kill her husband, would she still be in the very short moment
with the victim (sic)?
A If she did not do that she believes that she will be the one who would be killed.
10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman
Syndrome" and that it was an apprehension of death and the instinct to defend her
and her unborn child's life that drove her to kill her husband.
The ponente further refused to sustain the self-defense proffered by Marivic because
there was allegedly no aggression or danger posed on her life by the victim at the
time she attacked the latter. Again, I beg to disagree.
Traditionally, in order that self-defense may be appreciated, the unlawful aggression
or the attack must be imminent and actually in existence. This interpretation must,
however, be re-evaluated vis-a-vis the recognized inherent characteristic of the
psyche of a person afflicted with the "Battered Woman Syndrome." As previously
discussed, women afflicted by this syndrome live in constant fear for their life and
thus respond in self-defense. Once BWS and an impending danger based on the
conduct of the deceased in previous battering episodes are established, actual
occurrence of an assault is no longer a condition sine qua non before self defense
may be upheld. Threatening behavior or communication can satisfy the required
imminence of danger. As stated in the ponencia, to require the battered person to
await an obvious deadly attack before she can defend her life would amount to
sentencing her to murder by installment.
In the case at bar, the cycle of violence perpetrated by the deceased, which
culminated in the physical assaults and an attempt to shoot Marivic when she was 8
months pregnant, took the place of unlawful aggression, thus entitling her to a
complete self defense even if there was no actual employment of violence by the
deceased at the time of the killing. Marivic had every reason to believe that the
deceased would kill her that night not only because the latter was verbally
threatening to kill her while attempting to get a gun from the drawer, but more
importantly because the deceased wounded her on the wrist with a bolo, and
because of the deceased's previous conduct of threatening to cut her throat with a
cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of
Marivic -
A When I arrived home, he was already in his usual behavior.
xxx xxx xxx
A He was drunk again, he was yelling in his usual unruly behavior.
xxx xxx xxx
A He was nagging ... me at that time and I just ignore[d] him because I want to
avoid trouble for fear that he will beat me again. Perhaps he was disappointed
because I just ignore[d] hi[s] provocation and he switch off the light and I said to
him, "why did you switch off the light when the children were there." At that time I
was also attending to my children who were doing their assignments. He was angry
with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo
and cut the antenna wire to stop me from watching television.
xxx xxx xxx
A He switch[ed] off the light and the children were shouting because they were
scared and he was already holding a bolo.
Q How do you describe this bolo?
A 1 1/2 feet.
xxx xxx xxx
Q You said the children were scared, what else happened as Ben was carrying that
bolo?
A He was about to attack me so I ran to the room.
Q What do you mean that he was about to attack you?
A When I attempted] to run he held my hands and he whirled me and I fell [on] the
bedside.
11

xxx xxx xxx
COURT
To the witness
xxx xxx xxx
Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a
knife?
A Bolo.
Q Were you wounded or were there inflictions on your body when he was holding
and trying to frighten you [with] that bolo?
A No, only here.
COURT INTERPRETER
(The witness pointed to her wrist).
COURT
To the witness
Q You were demonstrating a motion, whirling, did your husband really whirl you?
A Yes, your Honor.
Q How did he whirl you?
A Whirled around.
Q Just like spinning.
xxx xxx xxx
Q Where did he whirl you, was it inside the bedroom or outside?
A In our bedroom.
Q Then after the whirling what happened?
A He kicked my ass and then I screamed.
12

xxx xxx xxx
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do...?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
13


A I was frightened that my husband would hurt me, so I packed all his things then
on the following day I will leave, I was afraid and I want to make sure I would
deliver my baby safely.
14

xxx xxx xxx
A After a couple of hours, he went back again and got angry with me for packing his
clothes, then he dragged me again outside of the bedroom holding my neck.
ATTY. TABUCANON
Q You said that when Ben came back to your house, he dragged you? How did he
drag... you?
COURT INTERPRETER
(The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backwards.
ATTY. TABUCANON
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept shouting
at me that "you might as well be killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx xxx xxx
Q What happened when you were brought to the drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key. [T]hen he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the room, and on that
very moment everything on my mind was pity on myself, then the feeling I had on
that very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
xxx xxx xxx
Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he intimidate me.
15

RE-DIRECT BY ATTY. TABUCANON
Q In other words, there were two (2) incidents, the first incident and then he left and
then two (2) hours after he came back?
A Yes, sir.
Q And the whirling happened in the first incident?
A Yes, sir.
Q And the dragging with arms flexed in her neck and on that blade
happened on the second incident (sic)?
A Ye, sir.
xxx xxx xxx
COURT
To the witness
Q Why, what is that blade about?
A A cutter about 3 inches long.
Q Who used that?
A Ben.
Q He used that on you?
A He scared me on that (sic).
xxx xxx xxx
Q But he did not hit you with that?
A Yes, because I managed to run every time he scared (sic).
16

There are many things which cannot be proved by direct evidence. One of this is
state of mind. In the case at bar, there is more than sufficient physical evidence
presented by the appellant from which her mental state can be inferred. The
prosecution did not object to the presentation of these physical and testimonial
pieces of evidence, namely, the medical records of 23 instances of domestic
violence-related injuries and the testimonies of neighbors, cousins and even the
barangay captain. Indeed, no person would endure 23 reported instances of beatings
if she were planning to kill her spouse in the first place. The majority need not worry
that women around the country will mastermind the killings of their husbands and
then use this Decision to bolster their attempts to employ the BWS defense.
Moreover, as found in the ponencia, appellant should be allowed the mitigating
circumstance of passion and obfuscation. This, at the very least, supports a finding
that the acts of violence and battery committed by the deceased were illegal and
unlawful and were committed immediately before appellant could recover her natural
equanimity. But what is the natural equanimity of a battered woman? Appellant was
not a normal married woman. She can never be in a state of natural equanimity as
she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted
with diminished will-power. However, he failed to go further. In the case of People v.
Javier,
17
it was held:
Since accused-appellant has already admitted to the killing, it is incumbent upon him
to prove the claimed mitigating circumstance of illness. In this case, however, aside
from the testimony of the accused that his mind went blank when he killed his wife
due to loss of sleep, no medical finding was presented regarding his mental condition
at the time of the killing. This Court can hardly rely on the bare allegations of
accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which
diminished his exercise of will-power at the time of the killing.
18

In the case at bar, appellant was allowed and did in fact present clear and convincing
evidence that she was a battered woman for 13-14 years and that she suffered from
the "Battered Woman Syndrome". Expert testimony was presented and admitted to
this effect, such that the ponente ably discussed the causes and effects of the
syndrome. To ignore the testimony and the evidence thus presented is to make
impossible the proof of mental state. Evidence as to the mental state need not be
also "beyond reasonable doubt."
Verily, the requirement of threatening behavioral pattern of the batterer in previous
violent episodes was sufficiently satisfied in the present case. This, juxtaposed to
Marivic's affliction with BWS justified the killing of the deceased. The danger posed
or created in her mind by the latter's threats using bladed weapons, bred a state of
fear, where under the circumstances, the natural response of the battered woman
would be to defend herself even at the cost of taking the life of the batterer.
The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of
self-defense, is a noble recognition of the plight of, and a triumph for battered
women who are trapped in a culture of silence, shame, and fear. This would however
be an empty victory if we deliberately close our eyes to the antecedents of this case.
The facts are simple. Marivic was suffering from the "Battered Woman Syndrome"
and was defending herself when she killed her husband. Her acquittal of the charge
of parricide is therefore in order.
IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

PEOPLE OF THE PHILIPPINES, appellee, vs. CARMELO CATBAGAN, appellant.
D E C I S I O N
PANGANIBAN, J.:
There can be no self-defense, whether complete or incomplete, unless the victim had
committed unlawful aggression against the person who resorted to self-defense.
The Case
Carmelo Catbagan appeals the May 19, 1999 Decision
1
of the Regional Trial Court
(RTC) of Malolos, Bulacan (Branch 21), in Criminal Case Nos. 1082-M-98, 1083-M-98
and 1099-M-98. In these cases, he was convicted of homicide, murder and frustrated
murder, respectively.
The decretal portion of the RTC Decision reads as follows:
"In sum and considering the foregoing findings, the Court hereby resolves and so
states that the defense has not been able to overcome the moral certainty
established upon the accuseds culpability. Stated otherwise, the prosecution has
successfully discharged its undertaking herein. Accordingly, this Court finds and so
holds that accused Carmelo Catbagan is GUILTY beyond reasonable doubt of the
crimes of Homicide in Crim. Case No. 1082-M-98, Murder in Crim. Case No. 10[8]3-
M-98 and Frustrated Murder in Crim. Case No. 1099-M-98.
"In Criminal Case No. 1082-M-98, the Court hereby credits the accused with the
mitigating circumstance of incomplete self-defense pursuant to Article 13, paragraph
1 of the Revised Penal Code. In which event, what should be imposable as penalty is
the minimum of Reclusion Temporal. Considering the application of the
Indeterminate Sentence Law, accused Carmelo Catbagan is hereby sentenced to
suffer the indeterminate prison term of ten (10) years and one (1) day of Prision
Mayor maximum to fourteen (14) years of Reclusion Temporal minimum.
"In Criminal Case No. 1083-M-98, absent any circumstance that would aggravate the
commission of the crime, the accused is sentenced to suffer the penalty of Reclusion
Perpetua together with the accessory penalties.
"In Criminal Case No. 1099-M-98, since the crime committed is Murder in its
frustrated stage, it is the penalty next lower in degree that should be imposed, which
is Reclusion Temporal. However, with the application of the Indeterminate Sentence
Law, accused Carmelo Catbagan is hereby sentenced to suffer the indeterminate
prison term of ten (10) years of Prision Mayor medium to fifteen (15) years of
Reclusion Temporal medium.
"In addition to the foregoing, the accused is also directed to pay the heirs of
deceased Celso Suico the sum of P500,000.00 in loss of earning capacity,
P50,000.00 as indemnity for Suicos death, and the further sum of P100,000.00 as
and for moral damages. With respect to deceased Danilo Lapidante, the accused is
ordered to pay his heirs the sum P400,000.00 in loss of earning capacity, the sum of
P50,000.00 as indemnity for Lapidantes death, the sum of P100,000.00 as moral
damages, and also the amount of P50,000.00 x x x for actual damages. Finally,
respecting complainant Ernesto Lacaden, the accused is directed to pay him the sum
of P50,000.00 as and for moral damages and the sum of P6,400.86 as actual
damages.
"With costs against the accused."
2

Except for the names of the victims, two (2) similarly worded criminal Informations
3

in Criminal Case Nos. 1082-M-98
4
and 1083-M-98,
5
both dated July 21, 1998,
charged appellant as follows:
"That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del
Monte, [P]rovince of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a gun, caliber .9MM pistol,
and with intent to kill one x x x, did then and there wilfully, unlawfully and
feloniously, with evident premeditation and treachery, attack, assault and shoot with
the said caliber .9MM pistol said x x x, hitting the latter on the different parts of his
body, thereby inflicting upon him mortal wounds which directly caused the death of
the said x x x."
6

For the third crime, the Information,
7
also dated July 21, 1998, charged appellant
with frustrated murder allegedly committed in this manner:
"That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del
Monte, [P]rovince of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a caliber .9MM pistol, did
then and there wilfully, unlawfully and feloniously, with intent to kill, evident
premeditation and treachery, attack, assault and shoot with the said caliber .9MM
pistol one Ernesto Lacaden y Tacata, thereby inflicting upon him physical injuries,
which ordinarily would have caused the death of the said Ernesto Lacaden y Tacata,
thus performing all the acts of execution which should have produced the crime of
murder as a consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is, by the timely and able medical assistance rendered to
said Ernesto Lacaden y Tacata which prevented his death."
8

Appellant was arraigned on August 26, 1998 in Criminal Case Nos. 1082-M-98 and
1083-M-98. With the assistance of counsel de oficio,
9
he pleaded not guilty to both
charges.
10
Thereafter, he was arraigned in Criminal Case No. 1099-M-98, in which,
with the assistance of his counsel de oficio,
11
he also pleaded not guilty.
12

Upon motion of appellant, the three cases were consolidated. After pretrial, trial on
the merits ensued, and the lower court eventually promulgated its assailed Decision.
Counsel
13
for appellant filed the Notice of Appeal
14
on July 5, 1999, but upon
discovering that it contained an error in the designation of the court to which the
case was being appealed, he filed an amended Notice of Appeal on September 10,
1999.
15

The Facts
Version of the Prosecution
In its Brief,
16
the Office of the Solicitor General (OSG) presents the prosecutions
version of the facts as follows:
"Danilo Lapidante, an employee of the Manila Water Company, held his birthday
party on March 15, 1998, one day in advance of his actual birthdate. That was
intended to accommodate his many relatives and friends who trooped to his
residence that Sunday at Block 5, Lot 28, Phase C-1 Francisco Homes, Barangay
Mulawin, San Jose del Monte, Bulacan Province. As it was already summertime, and
on account of the big attendance, the party had to be held in a vacant space within
the fenced perimeter, with vehicular and pedestrian steel gates. In front thereof was
a narrow concrete street.
"Inasmuch as Lapidante saw to it that drinks like gin and beer and appetizers were
plenty, even before 10:00 A.M., inevitably, the revelers were already displaying
excitement. Some were engaged in singing over a karaoke, while one Sgt. Celso
Suico of the Philippine Air Force and of the elite Presidential Security Group, who
lived in another phase of the subdivision, demonstrated his exuberance by firing
shots into the air with his Armalite rifle. Since the gunshots continued to ring out,
and election gun ban was then in effect, the attention of Carmelo Catbagan, an
investigator of the Criminal Investigation Service, Philippine National Police, whose
residential unit was just one block away south of the Lapidantes, was called.
"When, by 5:00 p.m., Catbagan went there to verify from the group who among
them had been firing the rifle, no one of those within the fenced area gave a positive
answer. The embar[r]assed Catbagan left the place. Coincidentally, some minutes
before that, Lapidante, driving his owner-type jeep, conducted home some of his
guests. Accompanying him were Sgt. Suico and his companion Ernesto Jun
Lacaden. Even as they returned the Armalite to the PSGs residence at Phase M,
Suico substituted it with a government-issued Springfield .45 caliber pistol which he
tucked to his waistband as they went back to rejoin the party.
"By about 5:30 p.m., while the celebrants were being entertained with a song by the
eldest daughter of Lapidante, Catbagan with [Zosimo] (Jess) Fababier returned to
Lapidantes place on board a motorized tricycle. This time, after he alighted on the
street in front, when Catbagan inquired about the gunshots of the Armalite, Sgt.
Suico answered that Its nothing; its just a part of the celebration. Suddenly, a
piece of stone hurled from the direction of the celebrants house landed on a tree and
thence to the body of Catbagan. Irritated and reacting thereto, the CIS agent
directed Fababier to look for the one who threw the stone.
"At that moment, Sgt. Suico got out of the pedestrian steel gate and extended his
hand towards Catbagan in the street as he introduced himself as being a PSG.
Completely ignoring the gesture of the latter, Catbagan drew out his .9mm
automatic pistol and with both hands holding the gun, fired successively at Suico,
who when hit stretched out his hand, shouting Huwag (Dont) Pare. Despite this
Catbagan fired more shots at the victim who fell on the pavement, bloodied and
dying from mortal wounds.
"As the shots were fired, Jun Lacaden who was taking a nap on the front seat of the
owner-type jeep parked on the other side of the street, in front of the residential unit
of Aida Villanueva, was abruptly awakened. Not fully aware of what happened, he
disembarked therefrom without knowing what to do. Unexpectedly, two shots were
also fired at him by Catbagan. One bullet found its mark in the body of Jun Lacaden
who then fell down.
"Almost simultaneously, Catbagan directed his attention to Lapidante who was then
inside their compound in the vicinity of their steel main gate. Upon the prompting of
his wife Rosita for him to run and evade the assailant, the celebrant turned towards
the main door of their house. But before he could reach the safety of their abode,
two rapid shots were aimed by Catbagan at him, one of which hit him in the upper
part of his body.
"After causing the mayhem, Catbagan then proceeded eastward to the main road.
Thereupon, Charles Lacaden picked up the weapon of the PSG man and threw it to a
vacant lot somewhere at the rear of the house and lot of Lapidante. As a
consequence of the injuries they sustained, Sgt. Suico died on the spot; Lapidante
later died in the hospital in Lagro, Quezon City; whereas Jun Lacaden had to be
treated and confined at the East Avenue Medical Center, Quezon City.
"Police investigators went to the scene and there recovered some pieces of evidence.
The .45 caliber Springfield pistol of Suico was retrieved in a place at the back of the
Lapidante residence. With a bullet vertically standing on the chamber, it had misfired
due to some vital defects. There were six (6) live ammunitions of the .45 caliber
pistol excluding the vertical one. No empty shell of .45 caliber pistol were recovered.
There were nine (9) empty shells of the .9 mm pistol; and a deformed slug of the
same weapon, aside from many shells from the Armalite rifle.
"Upon examination of Sgt. Suicos body, Dr. Dominic Aguda of the National Bureau of
Investigation found four (4) gunshot wounds, to wit:
No. 1 - left upper chest;
No. 2 - left chest above left nipple;
No. 3 - left anterior portion of forearm;
No. 4 - right palm (inside)
"Dr. Aguda concluded that the victim died from massive bleeding of the four injuries.
The most fatal was wound No. 1 as it perforated the aorta and the right upper lung.
Death therefrom was instantaneous. He opined that this wound was inflicted in a
level from a higher plane, whereas the others may have been inflicted on some level
with the victim. Suico died of massive bleeding.
"As regards the victim Lapidante, as shown by Dr. Agudas schematic sketch and the
post-mortem autopsy report, the entry wound was at the left side of the back,
exiting at the right anterior portion of the chest in a forward and upward trajection.
The bullet hit the upper left tube of the left lung and then penetrated the upper lobe
of the right lung. The victim also died from massive bleeding.
"From the shapes and measurement of the wound of entry, Dr. Aguda stated that
the (weapon) firearm used in the shooting of the two victims were probably the
same, they being approximately 1 x 1 cm.
"With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue Medical Center
found that he was hit at the right side of the back, the scapular and the bullet exited
at the uppermost part of the left arm, near the armpit. She said that as the slug
entered the thoracic cavity, they had to insert a tube to evacuate blood. Said victim
was confined for more than one week, and it would have taken another 30 days for
the victim to resume his usual activity."
17

Version of the Defense
Appellant argues that he was justified in shooting the victims, as he was merely
defending himself and fulfilling his sworn duties. On the basis of these justifying
circumstances, he insists on his acquittal. In his Brief,
18
he summarizes his version of
the facts as follows:
"The defense had a different version of the circumstances that led to the shooting
incident on March 15, 1998. On said date, between 9:00 and 11:00 in the morning,
ERNESTO PURBOS heard successive gunshots coming from the residence of Danilo
Lapidante at San Francisco Homes, San Jose del Monte, Bulacan. The gunshots
numbered about ten (10) in the span of two (2) hours. Alarmed and scared, as there
were children then playing in the vicinity, he went to the house of Carmelo Catbagan
to report the gun firing incident. He pleaded Catbagan, known in their place as a
policeman, to maintain the peace in the neighborhood. He was worried that the
children might be hit accidentally by the revelry. Catbagan retorted not to mind the
revelers, as they were just drinking. He then went home.
"At around 4:00 in the afternoon, he again heard successive gunshots coming from
the house of the Lapidantes. The gunshots were louder and rapid in succession.
Fearing for the safety of the children playing in the vicinity, he again proceeded to
the house of Catbagan, pleading the latter to pacify or maintain order in the place.
Catbagan replied that he would call the attention of the Barangay Captain and
advised him to go home.
"ZOSIMO PAVABIER corroborated the testimony of witness Ernesto Purbos. On
March 15, 1998, between the hours of 9:00 and past 11:00 in the morning, he heard
several gunshots coming from the house of Danilo Lapidante. The reverberating
gunshots were again heard at around 4:00 in the afternoon, prompting him to go out
to the street to observe the commotion. In the street, he saw children playing as well
as a group of his neighbors talking about the gunshots coming from the house of the
Lapidantes. The neighbors were complaining that the children might be accidentally
hit and that there was a gunban. On his way home, he met Carmelo Catbagan, who
asked if he would accompany him to the barangay captain to report the incident.
Catbagan was then limping and there was something bulging in his waist. They
proceeded to the house of the barangay captain onboard a tricycle. Upon reaching
the place, the wife of the barangay captain informed them that her husband left for
the police precinct and instructed them to proceed to the house of the Lapidantes as
the barangay captain might be already there. Catbagan then told him to proceed to
the barangay hall to call upon the tanods, but the place was closed. They then
proceeded to the house of Danilo Lapidante.
"At the residence of the Lapidantes, they found several persons engaged in a
drinking session. Catbagan then introduced himself as a CIS and inquired who fired
the firearm. The merrymakers ignored Catbagan and continued their merrymaking.
Seconds later, somebody threw a fist sized stone at Catbagan, hitting the lat[t]er on
the shoulder. The stone came from the side of the kitchen of the Lapidantes.
Catbagan directed him to find out who threw the stone. After he had taken five
steps, he saw Danilo Lapidante emerge from the side of the kitchen, rushing towards
Catbagan. About the same moment, Jun Lacaden and Celso Suico were likewise
proceeding towards the gate. Lacaden then went on the side of Catbagan, who was
stepping backward, while Suico, uttering that he is a PSG, drew his .45 caliber pistol
and cocked it. Instinctively, Catbagan drew his gun and fired at Suico, hitting the
latter with three shots. Lacaden, who was attacking Catbagan from the side, was
shot by the latter once. Seeing what happened to his companion, Danilo Lapidante
hurriedly retreated towards his house, shouting repeatedly akina iyong mahaba.
Catbagan made one shot upward, yelling at Lapidante, pare, pare, huwag kang
tatakbo. As Lapidante continued proceeding towards his house, Catbagan fired at
him once. Taken aback by the sudden turn of events, he retreated towards his house
and just peeped over the window. He then saw Catbagan rushing towards his own
house, gather his children and leave. At around 6:30 in the evening, he was picked-
up by police authorities for investigation.
"JONATHAN BELLOSILLO, the Barangay captain of Barangay Mulawin, Francisco
Homes San Jose del Monte, Bulacan, confirmed that a complaint/report was made by
Carmelo Catbagan at his home office, anent a gunfiring incident, at around 4:30 in
the afternoon of March 15, 1998. The Barangay Captain likewise testified on the
several complaints he received against Danilo Lapidante, for conducting gambling
and Jun Lacaden, for mauling incidents.
"The accused, CARMELO CATBAGAN, testifying on his behalf, averred that he is a
regular agent of the Criminal Investigation and Detection Group (CIDG), with a rank
of Crime Investigator I. As a regular agent of the CIDG, he was issued two (2)
official firearms, a 9MM Jericho pistol and a.38 caliber revolver. His principal duties
were to protect the innocent against deception, [and] against violence, arrest felons,
and in general, to respond to all calls for public assistance.
"On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1, Francisco
Homes, San Jose del Monte, Bulacan, tending to his five (5) children. His wife was
then in the province. At around 9:00 to 11:00 in the morning, he heard several
burst[s] of gunfire coming from the direction of the rear portion of his house. A
neighbor, Ernesto Purbos, then came to his house complaining about the gunshots.
Manong Erning wailed that the gunshots might accidentally hit the children playing
in the street. Having told from where the gunshots came from, he pacified the
complainant telling him that the revelers were just engaged in merrymaking and that
they will just stop later on. Ernesto Purbos then went home.
"The peace in the vicinity was again disturbed at around 4:00 in the afternoon of the
same day. Loud burst of rapid gunshots, to the tune of the song Lets Go, were
again heard coming from the same direction as that in the morning. From his
experience, he knew that the firearm used was an armalite (M-16). Two of their
neighbors came to him complaining about the gunshots. He advised them to go to
the barangay captain and he will just follow after finishing his chores. He then heard
a woman scream, complaining that the shots were being directed towards the
firewall of the house neighboring that of the Lapidantes. Ernesto Purbos likewise
returned, echoing his previous complaint about the gunshots. He assured Purbos that
he would act on his complaint, but first he would go to the barangay captain to
report the incident. He then got his service firearm and went out. On his way to the
house of the barangay captain, he met Zosimo Pavabier, who likewise complained of
the gunshots. He asked Pavabier to accompany him and the two of them proceeded
to the house of the said official. When they reached their destination, however, the
wife of the barangay official told them that her husband has gone to the Police on
the Block Headquarter. Learning the purpose of their visit, the wife told them to just
proceed to the vicinity in question as her husband might already be there. On their
way, they went by the barangay hall to fetch some tanods, but the place was
closed. They then proceeded to the house of the Lapidantes.
"Upon reaching the house of the Lapidantes, Catbagan and Pavabier noticed that the
Barangay Captain was not yet there. They likewise noticed that there were several
persons having a drinking spree inside the compound. Catbagan introduced himself
as a CIS and inquired upon the group who fired the gunshots. The merrymakers,
however, ignored him and laughed. As he was telling the group that: Dont you
know there are many residents here and you might hit somebody, a fist sized stone
was thrown which hit his left shoulder. The stone came from the rear of the house of
the Lapidantes. Alerted by the hostility of the crowd, he instructed Pavabier to look
for the one who threw the stone at him. As Pavabier was about to comply with his
instructions, Danilo Lapidante emerged from the side of his house and rushed to
where he was standing, uttering: ano ba ang problema pare? About the same time,
two more persons suddenly came out of the compound of the Lapidantes, rushing
and encircling him. One of the aggressors, Ernesto Lacaden, was toting an ice-pick
on one hand and positioned himself at his side. The other, whose identity he did not
kn[o]w at that moment, went straight to him, drew a gun from his waist and cocked
it, after which, aimed the pistol at him, uttering Pare PSG ito, in an arrogant voice.
Threatened of his safety, he drew his own gun while stepping backward and fired at
the aggressors.
"Simultaneously, Danilo Lapidante retreated towards his house, shouting: Akina
yung mahaba, yung mahaba, while Jun Lacaden attacked him coming from the side,
with the ice-pick. Catbagan side stepped and fired a shot at Lacaden before turning
his attention at Lapidante. He fired a warning shot, uttering: Tumigil ka, huwag
kang kikilos. Lapidante, however, did not heed Catbagans warning and continued
rushing towards his house, as if to get something. Fearing that Lapidante might be
able to get hold of the long gun, Catbagan fired a shot at him once.
"Concerned for his safety and that of his family, Catbagan brought his five children
to the house of his sister in Malabon, Metro Manila. He then surrendered himself and
his firearms to his superior officer at the CIDG Office.
"ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal Office and
immediate superior of the accused, testified on the latters official duties and
functions as well as his voluntary surrender on March 16, 1998[.] Accordingly,
accused Carmelo Catbagan was appointed as a regular and non-organic member of
the CIDG, with a rank of Criminal Investigator I. His official functions include the
authority to conduct investigation of cases involving violations of the Revised Penal
Code and other special laws, to effect arrest and to conduct search in accordance
with existing rules, to take sworn statements and to appear as a witness in
appropriate forum. As a regular agent, Catbagan was issued and authorized to carry
a firearm. The issued firearm to Catbagan was a 9MM Jericho pistol, with Serial No.
000748. Catbagan, as a CIDG agent, was likewise deputized by the COMELEC and
granted an exemption to carry firearm during election period.
"On March 15, 1998, at around 8:00 to 10:00 in the evening, he received a
telephone call from Agent Catbagan, informing him that he was involved in a
shooting incident, wherein he was able to shoot three (3) persons. Two (2) of the
protagonists allegedly died and the other was wounded and taken to a hospital.
Catbagan intimated that he wanted to be put under his custody as soon as he made
arrangements for his childrens security. On March 16, 1998, at around 1:00 in the
afternoon, Catbagan presented himself to Police Superintendent Edgardo Acua
together with his service firearm."
19

Ruling of the Trial Court
The RTC held that appellant did not know who had fired the gunshots at Lapidantes
party; thus, he could not claim that he had gone there to perform his duty to make
an arrest. Consequently, it brushed aside his defense of fulfillment of duty, or lawful
exercise of a right or office. It did not give credence, either, to his invocation of self-
defense.
With respect to Celso Suico in Criminal Case No. 1082-M-98, the trial court ruled that
there was unlawful aggression on the part of the victim, but that the means
employed to repel such aggression was unreasonable. It "entertain[ed] serious
doubts on the right of the [appellant] to continue firing at Suico after the latter was
dispossessed of his gun due to the injuries received from the gunfire of the
assailant."
20
It credited appellant with incomplete self-defense, because he
supposedly lost the right to kill or even wound the victim after the unlawful
aggression had ceased.
The RTC refused to qualify the crime against Suico. Ruling that there had been no
evident premeditation and treachery in the killing, it found appellant guilty only of
the crime of homicide.
As regards the victim Danilo Lapidante in Criminal Case No. 1083-M-98, he was
undisputedly unarmed, as he was inside his own premises -- within his fenced front
yard -- at the time of the incident. Thus, the lower court found no act of aggression
on his part. It held that "the belief on the part of [appellant] that the victim was
about to retrieve a rifle from the doorside of the house, existed only in his
imagination."
21
Consequently, "there was no moment for [appellant] to validly state
that his own life [was] in imminent danger from Lapidante."
22

Aside from rejecting self-defense, the trial court also held that treachery had
attended the killing, because the unarmed victim had unexpectedly been shot while
his back was towards appellant.
Finally, in Criminal Case No. 1099-M-98, the court a quo found that Ernesto Lacaden
had been shot in the back, apparently while "in the act of fleeing from the fury of
gunfire from [appellant]."
23
It did not accept the allegation that the victim had been
carrying an ice pick at the time of the shooting. Nonetheless, it explained that even if
he indeed had one at the time, he could not have done any real harm to appellant
who was just too far from him. Absent any clear and convincing proof that Lacaden
committed unlawful aggression, self-defense -- whether complete or incomplete --
could not be appreciated.
The RTC found the crime against Lacaden to be qualified by treachery, as he had not
posed any imminent danger to appellant. It ruled that treachery was proven by the
following circumstances: (1) the fact that the victim was running away from the
scene of the crime; and (2) appellants use of his .9 mm automatic pistol, a lethal
weapon used to wound the formers vital organs. Since death did not ensue by
reason of causes independent of the will of appellant, the court a quo found him
guilty of frustrated murder.
Hence, this appeal.
24

The Issues
Before us, appellant assigns to the trial court the following alleged errors for our
consideration:
"I
The court a quo gravely erred in finding accused-appellant Carmelo Catbagan guilty
beyond reasonable doubt of the offenses charged in Criminal Case Nos. 1082-M-98,
1083-M-98 and 1099-M-98, respectively.
"II
The court a quo gravely erred in failing to rule that accused-appellant Carmelo
Catbagan acted in the fulfillment of his sworn duties and/or acted in self-defense in
the commission of the offenses charged.
"III
Granting arguendo that the accused-appellants guilt was proven beyond reasonable
doubt, the court a quo still committed a reversible error in not considering the
attendance of the mitigating circumstance of voluntary surrender in the imposition of
the appropriate penalties for the offenses proved during the trial."
25

In sum, the issues to be resolved are as follows: 1) whether appellant was justified
in shooting the victims as a direct result of his "fulfillment of a lawful duty" and "self-
defense"; 2) whether he could be credited with the mitigating circumstance of
voluntary surrender; and 3) whether the characterization of the crimes and penalties
imposed by the trial court was correct.
The Courts Ruling
The appeal is partly meritorious.
First Issue:
Fulfillment of a Lawful Duty
In criminal cases, the prosecution has the burden of establishing the guilt of the
accused beyond reasonable doubt. But once the commission of the act charged is
admitted, the burden of proof shifts to the accused, who must now prove the
elements of the justifying circumstances cited.
26

Appellant invokes his lawful performance of duty as one such circumstance, arguing
that "his presence at the scene of the incident, prompted by the complaints in their
neighborhood and his own personal knowledge relative to the wanton discharge of a
firearm, the effectivity of the election gun ban, his coordination with the authorities
of the barangay, and the inquiry he made to the revellers, were all in consonance
with the legitimate performance of a sworn duty."
27
Citing these specific facts, he
argues that he was justified in shooting the victims. In effect, his contention is that,
being a regular agent of the Criminal Investigation and Detection Group (CIDG) of
the Philippine National Police (PNP), he was justified in maintaining public order, as
well as in protecting and securing life and property.
Although he is correct in arguing that he had the legal obligation to maintain peace
and order, he was not justified in shooting the victims. Article 11 of the Revised
Penal Code (RPC) provides that a person who acts in the fulfillment of a duty or in
the lawful exercise of a right or office does not incur any criminal liability. Two
requisites must concur before this defense can prosper: 1) the accused must have
acted in the performance of a duty or in the lawful exercise of a right or office; and
2) the injury caused or the offense committed should have been the necessary
consequence of such lawful exercise.
28

These requisites are absent in this case. Appellant was not performing his duties at
the time of the shooting, because the men he shot had not been indiscriminately
firing guns in his presence, as he alleges. Further, as found by the RTC, "nothing was
mentioned in [his] direct testimony that he was there to effect an arrest."
29
Said the
trial court:
"While he might have heard of gunfire, since there is no proof to the effect that
Catbagan had personal knowledge that it was Suico who had been firing the
Armalite, under no circumstances may it be said that the accused was justifiably
there to perform the duty of making the arrest in accordance with existing laws and
rules."
30

At most, appellant was in the house of the Lapidantes to determine who had fired
the gunshots that were heard by the neighborhood. But the fatal injuries that he
inflicted on the victims were not a necessary consequence of the performance of his
duty as a police officer.
Indeed, his "presence at the scene of the incident [was] all in the legitimate
performance and fulfillment of a sworn duty."
31
He was duty-bound to find out who
had fired the gun that day and to maintain peace and order in the neighborhood. But
his act of shooting of the victims cannot be justified. His presence at the scene of the
incident should be distinguished from his act of shooting them.
Appellant cites People v. Cabrera
32
to support his argument that he was performing
his duty and was thus justified in shooting the victims. There is an important
distinction between the present case and Cabrera. In the latter, the disturbance had
been created by the victim in the presence of the accused, who therefore had the
duty to immediately intervene and subdue the former, who was causing danger. In
the present case, appellant had no personal knowledge of who had fired the
gunshots. Thus, his duty at the time was simply to determine who was the subject of
the complaints of the residents of the village. It was never shown, though, that the
shooting was in furtherance of or was a necessary consequence of his performance
of such duty.
To be sure, the right to kill an offender is not absolute, and may be used only as a
last resort, and under circumstances indicating that the offender cannot otherwise be
taken without bloodshed. The law does not clothe police officers with authority to
arbitrarily judge the necessity to kill. It may be true that police officers sometimes
find themselves in a dilemma when pressured by a situation where an immediate
and decisive, but legal, action is needed. However, it must be stressed that the
judgment and discretion of police officers in the performance of their duties must be
exercised neither capriciously nor oppressively, but within reasonable limits. In the
absence of a clear and legal provision to the contrary, they must act in conformity
with the dictates of a sound discretion, and within the spirit and purpose of the law.
33

Second Issue:
Self-Defense
Appellant also invokes the principle of standing ones ground when in the right.
Allegedly, since he had the right to be where he was, "the law does not require him
to step aside when his assailant is rapidly advancing upon him with a deadly
weapon."
34
We clarify. Article 11 of the RPC provides:
"ART. 11. Justifying circumstances. The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
In self-defense, proof by clear and convincing evidence is incumbent upon the
accused.
35
Appellant cannot rely on the weakness of the evidence for the
prosecution, which can hardly be disbelieved after he himself admitted that he had
shot the victims.
36
A judicial confession constitutes evidence of a high order, on the
presumption that no sane person would deliberately confess to the commission of an
act unless moved by the desire to reveal the truth.
37

As the RTC correctly did, we should look at the circumstances of the shooting in the
case of each victim.
Circumstances Surrounding the Death of Suico
The first requisite of self-defense is unlawful aggression by the person who is
eventually injured or killed by the accused.
This Court is convinced that the RTCs finding of unlawful aggression on the part of
Suico is supported by the records, and we see no reason to disturb those findings.
Ruled the lower court:
"Under the given situation wherein the Sergeant cocking the pistol was one who was
trained, and skilled in the handling of guns, plus the fact that he was drunk, the
Court cannot blame accused Catbagan to believe and fear that Suico would attack
him in that mock introduction."
38

The prosecution presented, in fact, conflicting accounts of how Suico had been shot.
The shooting allegedly happened after he had offered a handshake to appellant,
39

according to Rosita Lapidante, the wife of another victim. On the other hand, Charlie
Lacaden, the brother of still another victim, gave testimony that conflicted with hers.
Suico was allegedly shot by appellant when the former turned his back to the latter.
On the other hand, appellant
40
and Defense Witness Zosimo Pavabier
41
positively and
consistently testified that it was Suico who had first drawn and aimed his gun at
appellant. This assertion was confirmed by the physical evidence that the victims
gun had a live bullet sandwiched between its breechblock and chamber.
42
This fact
proves that the gun was cocked and fired, but that the bullet was jammed in the
process.
The prosecution tried to explain this occurrence by inconsistent and incongruous
statements. According to the testimony of Rosita, Charlie took the gun from Suicos
belly then aimed it at appellant, but the gun did not fire because it was defective.
43

According to the testimony of Charlie, on the other hand, he took the gun because
he was afraid that appellant would come back, but that he later threw it towards the
rear portion of the house.
44
Thus, the RTC concluded:
"As regards the proof that Suicos gun misfired due to vital defects in its mechanism,
the Court suspects that the firearm was tampered with to create the scenario that
the PSG man was without fault. In fact, Mrs. Lapidante and Charles Lacadens
testimonies regarding what was done to the gun after the incident are in conflict with
each other."
45
(Italics supplied)
Unlawful aggression is an actual physical assault, or at least a threat to inflict real
imminent injury, upon a person.
46
In case of threat, it must be offensive and strong,
positively showing the wrongful intent to cause injury -- as in this case. Thus, Suicos
act of aiming a cocked gun at appellant is sufficient unlawful aggression.
The second element of self-defense -- reasonable necessity of the means employed
to prevent or repel it -- requires the following: 1) a necessity of the course of action
taken by the person making the defense and 2) a necessity of the means used. Both
the course of action taken and the means used must be reasonable.
47

Appellant argues that he was justified in wounding Suico, because the latter was
armed with a deadlier weapon and was still persistently aggressive after being shot
the first time. The former maintains that "[t]he fact that [he] struck one blow more
than [what] was absolutely [necessary] to save his own life, or that he failed to hold
his hand so as to avoid inflicting a fatal wound where a less severe stroke might
have served the purpose, would not [negate] self-defense, because [he], in the heat
of an encounter at close quarters, was not in a position to reflect coolly or to wait
after each blow to determine the effects thereof."
48

The means employed by the person invoking self-defense is reasonable if equivalent
to the means of attack used by the original aggressor.
49
Whether or not the means of
self-defense is reasonable depends upon the nature or quality of the weapon, the
physical condition, the character, the size and other circumstances of the aggressor;
as well as those of the person who invokes self-defense; and also the place and the
occasion of the assault.
50

The RTC made a definitive finding on the unreasonableness of the means employed
by appellant as follows:
"However, what followed, as testified by witnesses was that Catbagan continued
firing even while Suico was pleading Huwag pare! with outstretched hand and open
palm of his right hand. While the accused asserted that he had to fire his gun and hit
Suico with more shots to totally disable him, the same cannot be believed by the
Court, if we take stock of Dr. Agudas testimony that with the injured arm and that
on the chest being inflicted with the first double tap shots; the victim would have
had much difficulty to retaliate. In fact, Catbagan himself stated on clarification
questions that the .45 caliber gun of the victim fell already so that the threat of
continued aggression was no longer present.
x x x x x x x x x
"On this point, the Court entertains serious doubts on the right of the accused to
continue firing at Suico after the latter was dispossessed of his gun due to the
injuries received from the gunfire of the assailant. Additionally, we cannot accept as
credible Catbagans statement that he had to fire again at Suico inasmuch as the
latter had stooped acting to pick up his own pistol from the pavement. If ever the
victim was positioned that way, it was more of the impact of the bullets that hit him.
The logical explanation can be derived from the presence of the entry wound in the
inside of Suicos right palm."
51

These findings are well-supported by the evidence on record. Clearly, the nature and
the number of gunshot wounds -- debilitating, fatal and multiple -- inflicted by
appellant on the deceased shows that the means employed by the former was not
reasonable and commensurate to the unlawful aggression of the latter. The
unreasonableness becomes even more apparent from the fact, duly admitted by
appellant himself, that Suico had obviously been inebriated at the time of the
aggression. It would have thus been easier for the former to have subdued the
victim without resorting to excessive means.
Finally, as to the element of lack of sufficient provocation on the part of the person
resorting to self-defense, appellant has sufficiently established that he went to the
house of the Lapidantes to find out who had fired the gunshots earlier that day.
There was therefore absolutely no provocation from him, either by unjust conduct or
by incitement, that would justify Suicos acts of cocking and aiming a gun at him.
Not having proven all the elements of self-defense, appellant cannot use it to justify
sufficiently his fatal shooting of Suico. Having proven a majority of the elements,
however, the former may still be credited with a mitigating circumstance in
accordance with Article 13
52
of the RPC.
Circumstances Surrounding the Shooting of Lapidante
With respect to Lapidante, he allegedly rushed towards his house to get hold of the
"mahaba," so appellant had no other recourse but to shoot him. The purpose of the
victim in rushing towards his house was supposedly to recover the advantage he had
previously enjoyed. Hence, it is argued that unlawful aggression was present.
We disagree with appellants averments. Unlawful aggression presupposes an actual,
sudden and unexpected attack or imminent danger thereof. Such aggression refers
to an attack that has actually broken out or materialized or is at the very least
clearly imminent; it cannot consist merely of any oral threat or intimidating stance or
posture.
53

In this case, the RTC was categorical in ruling that the perceived danger was more in
the mind of appellant than in reality. The circumstances did not point to any actual
or imminent peril to his life, limb or right. On the part of Lapidante, the act of
running towards his house can hardly be characterized as unlawful aggression. It
could not have imperiled appellants life.
In a previous case,
54
this Court ruled that "a threat even if made with a weapon or
the belief that a person [is] about to be attacked, is not sufficient, but that it is
necessary that the intent be ostensibly revealed by an act of aggression or by some
external acts showing the commencement of actual and material unlawful
aggression."
55
We agree with the RTCs ratiocination, which we quote:
"With respect to the incident involving the victim Lapidante, it is not disputed that he
was unarmed as he was inside his own premises within the fenced area in front of his
house. What acts of aggression against Catbagan which he did are not apparent to
us. To this Court, the belief on the part of Catbagan that the victim was about to
retrieve a rifle from the doorside of the house, existed only in his imagination.
"Aside from its intrinsic ambiguity, the claims of the defense witnesses about the
alleged utterance of Lapidante about Ang mahaba! an[g] mahaba! do not sit well
with this Court. Indeed, we are not convinced that he could have uttered that
statement since the evidence points to the fact that he and his friends had just
arrived from another phase of the subdivision upon having delivered thereat, the
Armalite of Suico. On the contrary, Lapidante appeared to have been gripped by fear
and was obviously trying to escape from harm. Indeed, there was no moment for
Catbagan to validly state that his own life [was] in imminent danger from
Lapidante."
56

Neither do we accept the contention that unlawful aggression by Lapidante was
shown by his act of rushing towards his house for the purpose of taking a more
advantageous position. Referred to here is the rule that if it is clear that the purpose
of the aggressor in retreating -- or, as in this case, Lapidantes rushing towards his
house -- is to take a more advantageous position to ensure the success of the attack
already begun, the unlawful aggression is considered still continuing; and the one
resorting to self-defense has a right to pursue and disable the former.
57

Obviously, this rule does not apply to Lapidante, because 1) there was no clear
purpose in his act of retreating to take a more advantageous position; and 2) since
he never attacked appellant in the first place, the former could not have begun any
unlawful aggression and, hence, would not have had any reason to take a more
advantageous position. How could there have been a continuation of something that
had never been started? If any aggression was begun in this case, it was by Suico,
not by Lapidante.
Hence, no unlawful aggression by Lapidante was shown. Because the presence
thereof is a statutory and doctrinal conditio sine qua non of the justifying
circumstance of self-defense
58
-- complete or incomplete -- we need not examine the
presence of the other requisites.
Circumstances Surrounding the Shooting of Lacaden
Appellant asserts that Lacaden attacked him with an ice pick from the side.
Allegedly, this act clearly showed unlawful aggression on the latters part. All the
pieces of evidence on record, however, point to the absence thereof.
Most crucial is the position of the gunshot wound. As testified to by the doctor who
had treated the victim, its point of entry was on the right side of the back, just below
the scapula.
59
This incontestable fact belies the claim of appellant that he was
attacked by Lacaden with an ice pick. Such attack would have required the latter to
face him; and, logically, a gunshot entry wound would have been in the front -- not
in the back -- portion of Lacadens body. The wound in the back of the victim clearly
shows that he was shot while his back was turned to appellant. Hence, there was no
unlawful aggression on the part of the former.
Neither was any ice pick presented in the proceedings before the RTC. Appellant
maintains that his testimony, coupled with that of Pavabier, is sufficient to establish
the existence of the weapon. But the prosecution witnesses, including the victim
himself, testified otherwise -- that there was no unlawful aggression during the
incident, much less with the use of an ice pick. The RTC held thus:
"In the case of Jun Lacaden, he was shot in the back which could only corroborate
the evidence to the effect that he was also in the act of fleeing from the fury of
gunfire from Catbagan. As to the allegation of the latter that Jun Lacaden had an
icepick, that claim is rather nebulous. Firstly, as veteran criminal investigator, he
should have taken, kept and presented that said instrument to augment his legal
excuse. Secondly, if really there was one, it is rather surprising why he did not
demand Jun Lacaden for its surrender initially as he passed thru the pedestrian steel
door and subsequently while the latter had positioned himself near the owner-type
jeep.
"More importantly, granting that Jun Lacaden had an icepick, and/or had any design
to launch an attack against Catbagan, the former was just too far a distance away to
do real harm to the accused. From 6-7 meters, as clarified from the accused himself,
it is ridiculous for us to believe that Jun Lacaden could stab him. More so because the
accused himself testified that the two arms of Jun Lacaden were raised upward which
is not to mention that Catbagan had already demonstrated his proficiency and
accuracy in the use of his .9 mm automatic pistol. Thus, there was, like that of
Lapidante, no occasion to find as existing, the element of unlawful aggression."
60

Appellant has presented no sufficient reason to overturn these conclusive findings of
the trial court. Aside from being completely in accord with logic and human
experience, they are too solid to be debunked by him.
Third Issue:
Voluntary Surrender
Finally, appellant argues that even on the assumption that his guilt was proven
beyond reasonable doubt, he is still entitled to a mitigating circumstance. According
to him, he voluntarily surrendered to the authorities after the occurrence of the
incident, a fact not only uncontroverted but even admitted by the prosecution.
For voluntary surrender to mitigate criminal liability, the following elements must
concur: 1) the offender has not been actually arrested; 2) the offender surrendered
himself to a person in authority; and 3) the surrender was voluntary.
61
It is sufficient
that that act be spontaneous and clearly indicative of the intent of the accused to
surrender unconditionally, because there is either an acknowledgement of guilt or a
desire to save the authorities the trouble and the expense that would necessarily be
incurred in searching for and capturing the culprit.
62

It was established that on the night after the shooting incident, appellant called up
his immediate supervisor, Atty. Virgilio Pablico, to tell him about the incident that
had occurred that afternoon and to convey the formers intention to surrender.
63
The
following day, appellant surrendered himself and his firearm to Police Supt. Edgardo
Acua, the chief of the Assistant Directorate for Intelligence.
64
This surrender is
evidenced by a Progress Report
65
signed by Police Chief Superintendent Efren
Quimpo Fernandez.
At the time of his surrender, appellant had not actually been arrested. He
surrendered himself and his firearm to a person in authority, the chief of the
Assistant Directorate for Intelligence of the Philippine National Police. Finally, the
surrender was voluntary and spontaneous; it thus showed an intent to surrender
unconditionally to the authorities. In fact, in the aforementioned Progress Report,
appellant had given the same narration of events he later gave in court; moreover,
he owned responsibility for the shooting. Thus, we credit him with the mitigating
circumstance of voluntary surrender.
Final Issue:
Crimes and Penalties
Appellant was convicted of homicide, murder, and frustrated murder for the shooting
of Suico, Lapidante and Lacaden, respectively. In determining the crimes committed
and in imposing the proper penalties, it is necessary to look into the qualifying
circumstances alleged in the three Informations. Treachery and evident
premeditation were both alleged; thus, there is a need to ascertain their presence or
absence in the commission of the acts, in order to determine the crimes committed
by appellant.
To establish treachery, the following must be proven: 1) the employment of such
means of execution as would give the person attacked no opportunity for self-
defense or retaliation; and 2) the deliberate and conscious adoption of the means of
execution.
66
It is also the running case law that where treachery is alleged, the
manner of attack must be proven.
67
Such attack must be sudden and unexpected
and without the slightest provocation on the part of the victim, who is thus deprived
of any real chance for self-defense, thereby ensuring the commission of the crime
without risk to the aggressor.
68

With respect to the shooting of Suico, there was no treachery. The shooting was
perpetrated in a frontal encounter as shown by the location of his wounds. Appellant
did not make any deliberate, surprise attack against him or consciously adopt a
treacherous mode thereof. As established, he shot the victim after the latter had
aimed, cocked and fired a gun at him.
As to the shooting of Lapidante, the RTC qualified the crime to murder because of
the presence of treachery. According to the trial court, the shooting was unexpected,
he was unarmed, and his back was turned towards appellant when the incident
occurred. Treachery was also appreciated in the shooting and wounding of Lacaden,
since he had been shot at the back. Further, even if he had posed no imminent
danger to appellant, the former was nevertheless shot with a .9 mm automatic pistol
-- a lethal weapon. For this act, the latter was convicted of frustrated murder.
The mere fact that the attack against Lapidante and Lacaden was perpetrated when
their backs were turned did not by itself constitute treachery or alevosia.
69
Whether
the mode of attack was consciously adopted, and whether there was risk to the
offender, must be taken into account.
70
Treachery cannot be considered when there
is no evidence that the accused had resolved to commit the crime prior to the
moment of the killing; or that the death of the victim was the result of
premeditation, calculation or reflection.
71

In this case, it is evident that the decision to shoot Lapidante and Lacaden was
suddenly arrived at after the confrontation with Suico had already occurred. Even if
the positions of the victims were vulnerable, there was still no treachery, as
appellant did not deliberately adopt such mode of attack. Its presence was negated
by the fact that the shootings had sprung from the unexpected turn of events. The
treacherous character of the means employed does not depend upon its result, but
upon the means itself -- upon appellants purpose in employing it.
72

Treachery cannot be appreciated where, as in this case, there is nothing in the
records that shows that appellant pondered upon the mode or method of attack to
ensure the wounding and the killing of the victims; or to remove or diminish any risk
to himself that might arise from the defense that they might make.
73
His decision to
shoot them was clearly sudden. In the absence of treachery, the killing of Lapidante
and the wounding of Lacaden cannot be qualified to murder and frustrated murder,
respectively.
The allegation of evident premeditation was correctly rejected by the lower court. For
this aggravating circumstance to be appreciated, the following must be proven: 1)
the time when the accused decided to commit the crime; 2) an overt act manifestly
indicating that the accused clung to such determination; and, 3) between the
decision and the execution, a sufficient lapse of time that allowed time to reflect
upon the consequences of the act contemplated.
74
None of these elements has been
established in the case at bar.
Undeniably, the shooting of the victims was done without any prior plan to kill or
attack them. As previously stated, appellant began shooting at them after a cocked
gun had been aimed and fired at him. This fact negates any finding that he had
already previously conceived the shooting, and that he then manifestly clung to his
determination to commit the crime after a sufficient lapse of time.
Having rejected both treachery and evident premeditation in the killing of Suico and
Lapidante, we hold appellant guilty only of homicide in both cases. But for the
shooting of Lacaden, a careful review must be made of the crime that was actually
committed. The RTC charged him with frustrated murder and found him guilty
thereof; but, as ruled above, no qualifying circumstance was proven. Thus, his crime
can only be frustrated homicide, in which evidence of intent to kill is essential,
however.
75
It bears stressing that such intent determines whether the infliction of
injuries should be punished as attempted or frustrated murder, homicide or
parricide; or as consummated physical injuries.
76

Homicidal intent must be evidenced by acts that, at the time of their execution, are
unmistakably calculated to produce the death of the victim by adequate means.
77

The principal and essential element of attempted or frustrated homicide or murder is
the assailants intent to take the life of the person attacked.
78
Such intent must be
proved clearly and convincingly, so as to exclude reasonable doubt thereof.
79

Although the injury sustained by Lacaden was inflicted by appellant, the facts do not
support a finding that the latter had been impelled by an intent to injure to the point
of killing the former. The intent to kill is absent in this case. It was found that the
shooting was sudden and unexpected, having been brought about by a confrontation
between appellant and Suico and the commotion that ensued. The absence of such
intent was, in fact, even more apparent in the testimony of appellant, who said
therein that he did not even look at the victim anymore. The formers attention was
concentrated on the latter, who was shouting, "Ang mahaba, ang mahaba!"
80

The intent to kill, an essential element of the offense of frustrated or attempted
homicide, must be proved by clear and convincing evidence and with the same
degree of certainty as that required of the other elements of the crime.
81
The
inference that such intent existed should not be drawn in the absence of
circumstances sufficient to prove it beyond reasonable doubt. If it was absent but
wounds were inflicted, the crime is not frustrated murder, but only physical
injuries.
82
In this case, the expert opinion of the doctor who treated Lacaden was
that it would take the latter thirty days to heal and recover from the lone gunshot
wound and to resume his normal work.
83
Thus, a finding of less serious physical
injuries
84
is proper.
Although the charge in the instant case is frustrated murder, a finding of guilt for the
lesser offense of less serious physical injuries may be made, considering that the
essential ingredients of this lesser offense are necessarily included in or form part of
those constituting the graver one.
85
In the same manner, a conviction may be for
slight or serious physical injuries in a prosecution for homicide or murder, inasmuch
as the infliction of the former, when carried out to the utmost degree, could lead to
the latter offense. Such conviction may be made, without intent to kill -- an essential
element of the crime of homicide or murder.
86

To summarize, in Criminal Case No. 1082-M-98, appellant is found guilty of
homicide, for which the penalty prescribed is reclusion temporal.
87
Since he proved a
majority of the elements of self-defense -- unlawful aggression and lack of sufficient
provocation -- the penalty prescribed by law may be lowered by two degrees
88
to
prision correccional. Considering further the presence of the generic mitigating
circumstance of voluntary surrender without any aggravating circumstance, the
penalty shall be imposed in its minimum period.
89
The Indeterminate Sentence Law
is applicable in this case. Hence appellant should be sentenced to an indeterminate
sentence, the maximum term of which shall be that which may properly be imposed
under the Revised Penal Code; and the minimum of which shall be within the range
of the penalty next lower than that prescribed by the Code -- in this case, arresto
mayor.
In Criminal Case No. 1083-M-98, appellant is found guilty of homicide, for which the
penalty prescribed by law is reclusion temporal.
90
Again, considering the presence of
the generic mitigating circumstance of voluntary surrender without any aggravating
circumstance, the penalty shall be imposed in its minimum period.
91
The
Indeterminate Sentence Law is also applicable to this case. Hence, appellant should
be sentenced to an indeterminate sentence, the maximum term of which shall be
that which may properly be imposed under the Revised Penal Code; and the
minimum of which shall be within the range of the penalty next lower than that
prescribed by the Code -- in this case, prision mayor.
Finally, as to Criminal Case No. 1099-M-98, appellant is found guilty of less serious
physical injuries, for which the penalty prescribed by law is arresto mayor. Again,
considering the presence of the generic mitigating circumstance of voluntary
surrender without any aggravating circumstance, the penalty shall be imposed in its
minimum period.
Coming now to pecuniary liabilities, the heirs of the victims Suico and Lapidante in
Criminal Case Nos. 1082-M-98 and 1083-M-98, respectively, are entitled to a fixed
sum representing civil indemnity for death. Death indemnity is currently fixed at
P50,000.
92
This kind of civil indemnity is separate and distinct from other forms of
indemnity for damages and is automatically awarded without need of further proof
other than the fact of death and the responsibility of the accused therefor.
Proof of moral damages was presented through the testimony of Lapidantes wife.
The RTCs award of such damages herein is excessive, however, considering that it is
not meant to enrich an injured party.
93
Hence, in Criminal Case No. 1083-M-98, the
amount thereof should be reduced to P50,000. In the other two cases, there being
no proof of moral damages, the award therefor is deleted. Moral damages cannot be
granted in the absence of proof.
94

It is also proper to award compensation to the heirs of the victims for loss of earning
capacity, pursuant to Article 2206 of the Civil Code.
95
The documents presented,
coupled with the testimonies of Elsie Suico and Rosita Lapidante, are sufficient bases
for the award.
At the time of his death, Suico, forty-four (44) years old,
96
was receiving a monthly
take-home pay of P942.70,
97
as proven and admitted. To compute his net earnings,
we multiply this amount by 12 to get his annual income; then deduct the reasonable
and necessary living expenses which, in the absence of contrary evidence, is pegged
at 50 percent of the earnings. Applying the formula "Net earning capacity = [2/3 x
(80 age at time of death) x (gross annual income reasonable and necessary
living expenses)],
98
we arrive at a loss of earning capacity of P135,748.80.
Applying the same formula to Lapidante who was thirty-five (35) years old
99
at the
time of his death, with a monthly take-home pay of P10,004.24
100
and an additional
income of P1,000.00 for slaughtering pigs,
101
we arrive at a loss of earning capacity
of P1,980,763.20. His heirs are also entitled to actual damages in the amount of
P13,850 for hospital and funeral expenses. These expenses are supported by
receipts.
102
The receipt
103
for the amount of P6,000 -- which also mentions a
remaining payable balance of P6,500 -- was not properly identified and
characterized; thus, we should exclude it from the award of actual damages.
Finally, with respect to the civil indemnities for Lacaden, the award for actual
damages -- for hospitalization and medicines -- should be P4,589.86, as only this
amount was properly covered by receipts.
104
The amount of P1,831, allegedly for
hospital services, was included in a list presented by the victim, but was not properly
supported by any receipt or record; thus, we cannot grant such amount.
WHEREFORE, the appeal is partly GRANTED and the assailed Decision MODIFIED.
In Criminal Case No. 1082-M-98, Appellant Carmelo Catbagan is found guilty beyond
reasonable doubt of homicide and is SENTENCED to a prison term of one (1) month
and one (1) day arresto mayor as minimum; to one (1) year and six (6) months of
prision correccional as maximum. In Criminal Case No. 1083-M-98, he is found guilty
beyond reasonable doubt of homicide and SENTENCED to a prison term 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. In Criminal Case No. 1099-M-98, he is
found guilty of less serious physical injuries and SENTENCED to a prison term of one
(1) month and one (1) day of arresto mayor.
Appellant is also ORDERED to pay the following amounts: 1) to the legal heirs of
Suico, P50,000 as indemnity ex delicto and P135,748.80 for loss of earning capacity;
2) to the legal heirs of Lapidante, P13,850 for actual damages, P50,000 as indemnity
ex delicto, P50,000 as moral damages, and P1,980,763.20 for loss of earning
capacity; and 3) to Lacaden, P4,589.86 for actual damages. Costs against appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA,
accused-appellant.

SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo, Leyte,
sentencing the accused-appellant Francisco Abarca to death for the complex crime of
murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence imposed. With the
approval of the new Constitution, abolishing the penalty of death and commuting all
existing death sentences to life imprisonment, we required the accused-appellant to
inform us whether or not he wished to pursue the case as an appealed case. In
compliance therewith, he filed a statement informing us that he wished to continue
with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the
crime of Murder with Double Frustrated Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill and with evident premeditation, and with treachery, armed
with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully,
unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on
the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH
gunshot wounds which caused his instantaneous death and as a consequence of
which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on
the different parts of their bodies thereby inflicting gunshot wounds which otherwise
would have caused the death of said Lina Amparado and Arnold Amparado, thus
performing all the acts of execution which should have produced the crimes of
murders as a consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is by the timely and able medical assistance rendered to
Lina Amparado and Arnold Amparado which prevented their death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The Solicitor General
states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit
relationship. The illicit relationship apparently began while the accused was in Manila
reviewing for the 1983 Bar examinations. His wife was left behind in their residence
in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the
morning of that date he went to the bus station to go to Dolores, Eastern Samar, to
fetch his daughter. However, he was not able to catch the first trip (in the morning).
He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus
had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused,
then proceeded to the residence of his father after which he went home. He arrived
at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in
the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the
act of sexual intercourse. When the wife and Koh noticed the accused, the wife
pushed her paramour who got his revolver. The accused who was then peeping
above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the house of a
PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's
firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not
able to find his wife and Koh there. He proceeded to the "mahjong session" as it was
the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at
Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and
Lina Amparado who were occupying a room adjacent to the room where Koh was
playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn,
Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to
shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk
and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado
was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn,
Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the
hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who
received a salary of nearly P1,000.00 a month was not able to work for 1-1/2
months because of his wounds. He spent P15,000.00 for medical expenses while his
wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ).
2

On March 17, 1986, the trial court rendered the appealed judgment, the dispositive
portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt
of the complex crime of murder with double frustrated murder as charged in the
amended information, and pursuant to Art. 63 of the Revised Penal Code which does
not consider the effect of mitigating or aggravating circumstances when the law
prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to
death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand
Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to
pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and defendant's
wife had illicit relationship while he was away in Manila; that the accused had been
deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to reflect upon his acts.
Considering all these circumstances this court believes the accused Francisco Abarca
is deserving of executive clemency, not of full pardon but of a substantial if not a
radical reduction or commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the President of the
Philippines, thru the Ministry of Justice, Manila.
SO ORDERED.
3

xxx xxx xxx
The accused-appellant assigns the following errors committed by the court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF
ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED
PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE
OF TREACHERY.
4

The Solicitor General recommends that we apply Article 247 of the Revised Penal
Code defining death inflicted under exceptional circumstances, complexed with
double frustrated murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional circumstances.
Any legally married person who, having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them or both of them in the
act or immediately thereafter, or shall inflict upon them any serious physical injury,
shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt
from punishment.
These rules shall be applicable, under the same circumstances, to parents with
respect to their daughters under eighteen years of age, and their seducers, while the
daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or daughter, or
shall otherwise have consented to the infidelity of the other spouse shall not be
entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies in the
instant case. There is no question that the accused surprised his wife and her
paramour, the victim in this case, in the act of illicit copulation, as a result of which,
he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes
the following elements: (1) that a legally married person surprises his spouse in the
act of committing sexual intercourse with another person; and (2) that he kills any of
them or both of them in the act or immediately thereafter. These elements are
present in this case. The trial court, in convicting the accused-appellant of murder,
therefore erred.
Though quite a length of time, about one hour, had passed between the time the
accused-appellant discovered his wife having sexual intercourse with the victim and
the time the latter was actually shot, the shooting must be understood to be the
continuation of the pursuit of the victim by the accused-appellant. The Revised Penal
Code, in requiring that the accused "shall kill any of them or both of them . . .
immediately" after surprising his spouse in the act of intercourse, does not say that
he should commit the killing instantly thereafter. It only requires that the death
caused be the proximate result of the outrage overwhelming the accused after
chancing upon his spouse in the basest act of infidelity. But the killing should have
been actually motivated by the same blind impulse, and must not have been
influenced by external factors. The killing must be the direct by-product of the
accused's rage.
It must be stressed furthermore that Article 247, supra, does not define an offense.
5

In People v. Araque,
6
we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in the Code, the above-
quoted article, far from defining a felony, merely provides or grants a privilege or
benefit amounting practically to an exemption from an adequate punishment to
a legally married person or parent who shall surprise his spouse or daughter in the
act of committing sexual intercourse with another, and shall kill any or both of them
in the act or immediately thereafter, or shall inflict upon them any serious physical
injury. Thus, in case of death or serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused who would otherwise be
criminally liable for the crime of homicide, parricide, murder, or serious physical
injury, as the case may be is punished only with destierro. This penalty is mere
banishment and, as held in a case, is intended more for the protection of the accused
than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries
other than serious are inflicted, the offender is exempted from punishment. In effect,
therefore, Article 247, or the exceptional circumstances mentioned therein, amount
to an exempting circumstance, for even where death or serious physical injuries is
inflicted, the penalty is so greatly lowered as to result to no punishment at all. A
different interpretation, i.e., that it defines and penalizes a distinct crime, would
make the exceptional circumstances which practically exempt the accused from
criminal liability integral elements of the offense, and thereby compel the
prosecuting officer to plead, and, incidentally, admit them, in the information. Such
an interpretation would be illogical if not absurd, since a mitigating and much less an
exempting circumstance cannot be an integral element of the crime charged. Only
"acts or omissons . . . constituting the offense" should be pleaded in a complaint or
information, and a circumstance which mitigates criminal liability or exempts the
accused therefrom, not being an essential element of the offense charged-but a
matter of defense that must be proved to the satisfaction of the court-need not be
pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more manifest when we
consider that its counterpart in the old Penal Code (Article 423) was found under the
General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There
can, we think, hardly be any dispute that as part of the general provisions, it could
not have possibly provided for a distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal Code does not define
and provide for a specific crime, but grants a privilege or benefit to the accused for
the killing of another or the infliction of serious physical injuries under the
circumstances therein mentioned. ...
7

xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is banished, but that
is intended for his protection.
8

It shall likewise be noted that inflicting death under exceptional circumstances, not
being a punishable act, cannot be qualified by either aggravating or mitigating or
other qualifying circumstances, We cannot accordingly appreciate treachery in this
case.
The next question refers to the liability of the accused-appellant for the physical
injuries suffered by Lina Amparado and Arnold Amparado who were caught in the
crossfire as the accused-appellant shot the victim. The Solicitor General recommends
a finding of double frustrated murder against the accused-appellant, and being the
more severe offense, proposes the imposition of reclusion temporal in its maximum
period pursuant to Article 48 of the Revised Penal Code. This is where we disagree.
The accused-appellant did not have the intent to kill the Amparado couple. Although
as a rule, one committing an offense is liable for all the consequences of his act, that
rule presupposes that the act done amounts to a felony.
9

But the case at bar requires distinctions. Here, the accused-appellant was not
committing murder when he discharged his rifle upon the deceased. Inflicting death
under exceptional circumstances is not murder. We cannot therefore hold the
appellant liable for frustrated murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any
responsibility. Granting the fact that he was not performing an illegal act when he
fired shots at the victim, he cannot be said to be entirely without fault. While it
appears that before firing at the deceased, he uttered warning words ("an waray
labot kagawas,") 10 that is not enough a precaution to absolve him for the injuries
sustained by the Amparados. We nonetheless find negligence on his part.
Accordingly, we hold him liable under the first part, second paragraph, of Article 365,
that is, less serious physical injuries through simple imprudence or negligence. (The
records show that Arnold Amparado was incapacitated for one and one-half months;
11 there is no showing, with respect to Lina Amparado, as to the extent of her
injuries. We presume that she was placed in confinement for only ten to fourteen
days based on the medical certificate estimating her recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we therefore impose
upon the accused-appellant arresto mayor (in its medium and maximum periods) in
its maximum period, arresto to being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-
appellant is sentenced to four months and 21 days to six months of arresto mayor.
The period within which he has been in confinement shall be credited in the service
of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado
in the sum of P16,000.00 as and for hospitalization expense and the sum of
P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special
pronouncement as to costs.