US v.

Marasigan
August 15, 1914 G.R. No. L-9426 THE UNITED STATES, plaintiff-appellee, vs. FILOMENO MARASIGAN, defendant-appellant. Silvester Apacible for appellant. Office of the Solicitor-General Corpus for appellee. Moreland, J.: In this case it appears that about 4 o'clock of the afternoon of the 23d of January, 1913, Francisco Mendoza, while engaged in examining his sugar crop growing upon his lands in the barrio of Irucan, now called Calayan, in the municipality of Taal, Batangas Province, was asked by the accused and his wife to approach them. On arriving near them the accused said to Mendoza: "Why is this line curved?" [indicating the division line between the lands of the two.] "Let us make it straight." Francisco replied saying: "Why do you want to make the line straight? If you make the line straight, it will put certain logs and trees on your land.?" To this the accused replied: "This is false." Saying this he drew his knife and struck at Mendoza. On attempting to ward off the blow Mendoza was cut in the left hand. The accused continued the attack, whereupon Mendoza seized the accused by the neck and the body and threw him down. While both were lying upon the ground the accused still sought to strike Mendoza with his dagger. The latter seized the hand which held the dagger and attempted to loosen his hold upon it. While they were thus fighting for the possession of the knife, the wife of the accused came forward and took the dagger from her husband's hand, throwing it to one side. She then seized who after various maneuvers, struck Mendoza a blow which knocked him senseless. As a result of the fight Mendoza received three wounds, two in the chest and one in the left hand, the latter being the most serious, the extensor tendor in one of the seven days at a cost of about P45, but the middle finger of the left hand was rendered useless.

The story of the affair told by the accused is quite different from that just related, but the facts as stated were as found by the trial court and the evidence given fully supports the findings. We have examined the case carefully and see no reason why it should be reversed upon the facts. We may say the same as to the law FpQi. The accused asserts that he should have a new trial upon the ground that if he should be given another opportunity to present evidence he would be able to show by a physician, Gregorio Limjoco, that the finger which the court found to have been rendered useless by the cut already described was not necessarily a useless member, inasmuch as, if the accused would permit a surgical operation, the finger could be restored to its normal condition. He also asserts that he could demonstrate by the physician referred to that it was not the middle finger that was disabled but the third finger instead iOtE16. We do not regard the case made as sufficient to warrant a new trial. It is immaterial for the purposes of this case whether the finger, the usefullness of which was destroyed, was the middle finger or the third finger. All agree that one of the fingers of the left hand was rendered useless by the act of the accused. It does not matter which finger it was. Nor do we attach any importance to the contention that the original condition of the finger could be restored by a surgical operation to relieve the accused from the natural and ordinary results of his crime. It was his voluntary act which disabled Mendoza and he must abide by the consequences resulting therefrom without aid from Mendoza. The judgment appealed from is affirmed, with costs against the appellant.

People v. Genosa
THIS CASE IS WITH REGARD TO ART. 11 (1), AND ART 14 (16) OF THE R.P.C Case of People of the R.P. vs. Genosa G.R.No. 135981 15January2004 FACTS OF THE CASE: That Marivic Genosa, the Appellant on the 15November1995, attacked and wounded his husband, which ultimately led to his death. According to the appellant she did not provoke her husband when she got home that night it was her husband who began the provocation. The Appellant said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, The Appelant 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.

The Appellant 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. The Apellant said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu Rubillos. The Appellant after being interviewed by specialists, has been shown to be suffering from Battered Woman Syndrome. The appellant with a plea of self defense admitted the killing of her husband, she was then found guilty of Parricide, with the aggravating circumstance of treachery, for the husband was attacked while asleep. ISSUES OF THE CASE: Can Marivic Genosa be granted the Justifying circumstance of Selfdefense, and can she be held liable for the aggravating circumstance of treachery? No, Since self- defense since the existence of Battered woman syndrome, which the appellant has been shown to be suffering in the 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. In the present case, however, according to the testimony of the appellant there was a sufficient time interval between the unlawful aggression of the husband 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. Without continuous aggression there can be no self-defense. And absence of aggression does not warrant complete or incomplete selfdefense. No, 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. The circumstances must be shown as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. 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. In the present case, however it was not conclusively shown, that the 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 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, the doubt should be resolved in her favor. HELD: 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. ADDENDUM: When can BWS (Battered Woman Syndrome) as self defense be appreciated? 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.' 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. Considering such circumstances and the existence of BWS, self-defense may be appreciated.

People v. Taneo
Facts: Potenciano Taneo and his wife lived in his parents house in Dolores, Ormoc. On January 16, 1932, a fiesta was being celebrated in the said barrio and guests were entertained in the house, among them were Fred Tanner and Luis Malinao. Early that afternoon, Potenciano went to sleep and while sleeping, he suddenly got up, left the room bolo in hand and, upon meeting his wife who tried to stop him, wounded her in the abdomen. He also attacked Fred and Luis and tried to attack his father, after which, he wounded himself. Potencianos wife, who was 7 months pregnant at that time, died five days later as a result of the wound. The trial court found Potenciano guilty of parricide and was sentenced to reclusion perpetua.

It appears from the evidence that the day before the commission of the crime, the defendant had a quarrel over a glass of tuba with Collantes and Abadilla, who invited him to come down and fight. When he was about to go down, he was stopped by his wife and his mother. On the day of the commission of the crime, it was noted that the defendant was sad and weak, had a severe stomachache thats why he went to bed in the early afternoon. The defendant stated that when he fell asleep, he dreamed that Collantes was trying to stab him with a bolo while Abadila held his feet. Thats why he got up and it seemed to him that his enemies were inviting him to come down; he armed himself with a bolo and left the room. At the door, he met his wife who seemed to say to him that she was wounded. Then, he fancied seeing his wife really wounded and in desperation wounded himself. As his enemies seemed to multiply around him, he attacked everybody that came his way. Issue: WON defendant acted while in a dream. Ratio: Yes. The defendant acted while in a dream & his acts, therefore, werent voluntary in the sense of entailing criminal liability. The apparent lack of motive for committing a criminal act does not necessarily mean that there are none, but that simply they are not known to us. Although an extreme moral perversion may lead a man to commit a crime without a real motive but just for the sake of committing it. In the case at hand, the court found not only lack of motives for the defendant to voluntarily commit the acts complained of (read: he loved his wife dearly, he tried to attack his father in whose house the lived and the guests whom he invited), but also motives for not committing the acts. Dr. Serafica, an expert witness in the case, stated that considering the circumstances of the case, the defendant acted while in a dream, under the influence of a hallucination and not in his right mind. The wifes wound may have been inflicted accidentally. The defendant did not dream that he was assaulting his wife, but that he was defending himself from his enemies. Judgment: defendant not criminally liable for the offense. It was also ordered that he be confined in the government insane asylum and will not be released until the director thereof finds that his liberty would no longer constitute a menace

Tangan v. CA

G.R. No. 105830 - February 23, 2001 ELADIO C. TANGAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, Respondents. YNARES-SANTIAGO, J.: At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generoso's way, causing him to swerve to the right and cut Tangan's path. Tangan blew his horn several times. Generoso, slowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-tum. Generoso passed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangan's car, Generoso loudly retorted, " Putang ina mo, bakit mo ginigitgit ang sasakyan ko?" Generoso and Tangan then exchanged expletives. Tangari pointed his hand to Generoso and the latter slapped it, saying, "Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?" Tangan countered, "Ikaw, ano ang gusto mo?" With this, Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of the parties' respective witnesses were conflicting: According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in Tshirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it. On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda.1 After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General

Hospital but he expired on the way. Tangan was charged with the crime of murder with the use of an unlicensed firearm.2 After a reinvestigation, however, the information was amended to homicide with the use of a licensed firearm,3 and he was separately charged with illegal possession of unlicensed firearm.4 On arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this Court.5 On November 5, 1987, said petition was dismissed and the joint trial of the two cases was ordered.6 During the trial, the prosecution and the defense stipulated on the following: that the amount of P126,000.00 was incurred for the funeral and burial expenses of the victim;7 that P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum, and to indemnify the heirs of the victim.8 Tangan was released from detention after the promulgation of judgment and was allowed bail in the homicide case. Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quo's decision, but the same was dismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00.10 His subsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of Appeals.11 The office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No.103613, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate court's judgment be modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance.12 Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for extension to file comment to its own petition for certiorari.13 Discovering its glaring error, the Office of the Solicitor General later withdrew its motion for extension of time.14 Tangan filed a Reply asking that the case be submitted for decision.15 Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830.16 Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases were consolidated.17 The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that it be ex6used from filing a comment to Tangan's petition for review, in order to avoid taking contradictory positions.18 In the recent case of People v. Velasco and Galvez,19 we held that the prosecution cannot avail of the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a criminal case to correct a lower court's factual findings or evaluation of the evidence.20 Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear: Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent

by a court of competent jurisdiction, upon a valid complaint or information or other fom1al charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which, necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a pleas was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party, except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. Based on the foregoing, the Solicitor General's petition for certiorari under Rule 65, praying that no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be correspondingly increased, constitutes a violation of Tangan's right against double jeopardy and should be dismissed. We now come to the petition for review filed by Tangan. 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,21 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,22 the burden of proving the commission of the crime remained in the prosecution. Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit: ARTICLE 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. xxx - xxx - xxx

ARTICLE 13. Mitigating Circumstances. - The following are mitigating circumstances: 1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant. Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the crime charged in the information is not shifted to the accused.23 In order that it may be successfully appreciated, however, it is necessary that a majority of the requirements of selfdefense be present, particularly the requisite of unlawful aggression on the part of the victim.24 Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete,25 because if there is nothing to prevent or repel, the other two requisites of defense will have no basis.26 There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that Tangan shot the victim point-blank in the stomach at a distance of about one foot. On the other hand, Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and accidentally fired, hitting the victim. When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of the records on appeal becomes difficult. It is the word of one party against the word of the other. The reviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which had the unique opportunity of observing first-hand that elusive and incommunicable evidence of the witness' deportment on the stand while testifying.27 The trial court's assessments of the credibility of witnesses is accorded great weight and respect on appeal and is binding on this Court,28 particularly when it has not been adequately demonstrated that significant facts and circumstances were shown to have been overlooked or disregarded by the court below which, if considered, might affect the outcome hereof.29 The rationale for this has been adequately explained in that, The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and mien.30 Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the experience of the courts and the general observations of humanity teach us that the natural limitations of our inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message.31 Aside from this, it is not also unusual that the witness may have been coached before he is called to the stand to testify. Somewhere along the painstaking review of the evidence on record, one version rings the semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black and white, but oftentimes, and by design, are made to resemble each other so as to be hardly distinguishable.32 Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that:

When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw the accused already holding the gun, they started to grapple for the possession of the gun that it went off hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the accused, he never lost possession of the gun for if he did and when the gun fell to the ground, it will not first explode or if it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or horizontal.33 The Court of Appeals agreed The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were grappling for the possession of the gun immediately after the accused had taken his gun from inside his car and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The court also agrees with the court below that it was the accused-appellant who shot and killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the closeness of the Mirandas vis--vis appellant during the scuffle for the gun that the accused-appellant was compelled to pull the trigger in answer to the instinct of selfpreservation.34 No convincing reason appears for the Court to depart from these factual findings, the same being ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration must be substantiated by the physical evidence available to the court. The medical examiner testified that the distance between the muzzle of the gun and the target was about 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the victim and the alleged assailant were facing each other when the shot was made and the position of the gun was almost perpendicular when fired.35 These findings disprove Tangan's claim of accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the trigger to fire the revolver.36 Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim. A mere threatening or intimidating attitude is not sufficient.37 Likewise, the exchange of insulting words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical assault.38 There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the victim subsequently died as a result of the gunshot wound, though the shooter may not have the

intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him, he fired and fled. The third requisite of lack of sufficient provocation on the part of the person defending himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an inducement as to incite provocation for the other party to act violently. The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and obfuscation under Article 13, paragraphs 4 and 6,39 have no factual basis. Sufficient provocation as a requisite of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating circumstance can arise out of one and the same act.40 Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking can be considered as acts of provocation, the same were not sufficient. The word "sufficient" means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity.41 Moreover, Generoso's act of asking for an explanation from Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure Generoso.42 For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said 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.43 In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and unexpected occurrence which wuld have created such condition in his mind to shoot the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a startling occurrence, precisely because he had already passed them and was already the one blocking their path. Tangan's acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation can arise. With respect to the penalty, under the laws then existing, homicide was penalized with reclusion temporal,44 but if the homicide was committed with the use of an unlicensed firearm, the penalty shall be death.45 The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the retroactive application of the death penalty is unfavorable to him. Previously the accused may be prosecuted for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866.46 P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an unlicensed firearm is used in murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and no longer considered as a separate offense,48 which means that only one offense shall be punished - murder or homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal Procedure,49 the aggravating circumstance must be alleged in the information. Being favorable, this new rule can be given retroactive effect as they are applicable to pending cases.50 In any case, Tangan was acquitted of the illegal possession case. Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither

mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant circumstances, may be properly imposed, which in this case is reclusion temporal medium with an imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years.51 Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6) 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. The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line with jurisprudence.52 Moral damages are awarded in criminal cases involving injuries if supported by evidence on record,53 but the stipulation of the parties in this case substitutes for the necessity of evidence in support thereof. Though not awarded below, the victim's heirs are entitled to moral damages in the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought by his death.54 WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS: (1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties. (2) Tangan is ordered to pay the victim's heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial expenses, P5,000.00 as attorney's fees, and P50,000.00 as moral damages. SO ORDERED.

People v. Constantino
G.R. No. L-23558 August 10, 1967

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARCELO CONSTANTINO, GREGORIO CONSTANTINO, HILARION CONSTANTINO and FAUSTO CONSTANTINO, Defendants-Appellants. BENGZON, J.P., J.:
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This is an appeal from a judgment of conviction. The appellants - Marcelo, Gregorio, Fausto and Hilarion all surnamed Constantino - were charged with murder for the death of one Carlino Perdido. The Court of First Instance of Cagayan, after trial, found all of them guilty as charged and imposed on each life imprisonment and indemnification of the heirs of the deceased in the amount of P6,000.00.
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The prosecution's version of the facts, which the lower court upheld, is as follows: One Sabas Constantino was stabbed in Barrio Santor, Sanchez Mira, Cagayan, on June 24, 1963. Sabas is closely related to the

appellants, being the brother of Fausto and Gregorio, the nephew of Marcelo, and the cousin of Hilarion. The suspected assailant was Inocencio Romaguera who happened to be the brother-in-law of the decedent, Carlino Perdido. Inocencio Romaguera fled after the stabbing and he still remains at large.
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At about 10 o'clock in the evening of June 27, 1963, appellant Marcelo went with a group to the house of the deceased, looking for Inocencio. Encarnacion Perdido, sister of the decedent who was in her house just 12 meters away, heard Marcelo threaten the decedent by saying first, "if you are not going to bring out your brother-in-law, I will pierce you" and then, "if you are going to involve yourself in this case, you will be a victim." When these statements were made, Marcelo was at the foot of the stairs of Encarnacion's house, and was about 2-1/2 meters away from her. Thereafter, she talked with the decedent and confirmed that it was Marcelo who uttered those remarks.
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Early the following morning, June 28, 1963, before taking breakfast, the decedent left the house to see his plants and to gather vegetables in the field, despite the admonitions of his wife, Florentina Romaguera, not to go out in view of the incident the night before. When he did not return, Florentina went out to look for the decedent and failing to find him, she reported his absence to Barrio Lieutenant Ignacio de la Cruz. The latter, in turn, sought the aid of Sanchez Mira Police Chief Damaso Dumlao who sent policemen Dominador Valdez and Tito Mangligot to Barrio Santor to investigate.
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The two policemen arrived in Barrio Santor late that evening and early the next day, June 29, 1963, they started looking for the decedent, together with the Barrio Lieutenant, Quirino Callo and other barriomates. At around 10 o'clock that morning, they came upon the dead body of the decedent near the creek, south of Barrio Santor. The cadaver bore multiple stab wounds. The post mortem examination (Exhs. M & M-1) conducted by Dr. Herman Asanias that very morning showed the following wounds, to wit: (1) Wound, stab, neck, above medial third of Clavicle left, 1-1/4 inch long, directed downward. (2) Wound, stab, neck, left, lateral, 2 inches deep and 1-1/2 inch long. (3) Wound, stab, infrascapular region, left, 1-1/3 inch long.
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(4) Wound, stab, infrascapular region, left, below and medial to wound No. 3, 1-1/2 inch long. (5) Wound, stab, about 2 inches below wound No. 4, 1-1/3 inch long.
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(6) Wound, stab, about 2 inches below the left axilla, 1-1/2 inch long penetrating.

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(7) Wound, stab, hypochondriac region, left, along the anterior axillary line, 1-1/2 inch long, penetrating.
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(8) Wound, stab, lumbar region, left, located along the posterior axillary line, 1 inch long, penetrating.

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(9) Wound, stab, lumbar region, left, located along the mid auxillary line, 1-1/2 inch long, penetrating.
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(10) Wound, stab, lumbar region, left, along the anterior axillary line, on level with the navel, 1/2 inch long, penetrating.
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(11) Wound, stab, arm, left, middle third, lateral, 1 inch long.

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(12) Wound, incised, forearm, left, upper third, lateral, 2 inches long.

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(13) Wound, incised, forearm, left, upper third, posterior, 3 inches long above wound No. 12. (14) Wound, incised, palm, below left thumb, 1 inch long. (15) Wound, incised, forefinger, left posterior.
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(16) Wound, contused, thigh, right, middle third, anterior. Dr. Asanias established the approximate time of death as of the morning of June 28, 1963 and the cause thereof, as severe hemorrhage secondary to multiple stab wounds.
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Acting upon information linking the appellants to the death of the decedent, the two policemen went to arrest them that afternoon and brought them to the municipal building for investigation. Returning to Barrio Santor to look for the possible weapons used, Valdez got from Hilarion's mother his blood-stained bolo (Exh. B) and a blood-stained shirt (Exh. C). Mangligot, on the other hand, obtained from the house of Gregorio a blood-stained bolo (Exh. F)and a blood-stained calendar leaf (Exh. G).
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Said appellants were pinpointed due to the presence of Quirino Callo and two young boys, Benjamin Balicat, age 12, and Nonito Salmazan, age 13, who were all pasturing their carabaos, in the fields near the scene of the killing. The three gave sworn statements before the Municipal Mayor who conducted a preliminary examination on June 29, 1963 in the absence of the Municipal Judge, and on July 1, 1963, they re-subscribed their affidavits before the Municipal Judge.
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Balicat testified that in the early morning of June 28, 1963 he saw the four appellants, all armed with bolos, following and then chasing the decedent towards the creek south of Barrio Santor. Shortly afterwards, he again saw the four coming from the same direction and going homeward, with Hilarion, Fausto and Gregorio holding blood-drenched bolos. Salmazan and Callo declared that they saw the four appellants that morning coming from the same direction where on June 29, 1963, the dead body of Carlino Perdido was found. Of the four, only Hilarion and Fausto had their bolos unsheathed
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Appellants impute to the trial court, as first error, its having relied upon the prosecution witnesses and in not upholding their allegedly credible defenses. According to them what really happened was this: Fausto and his brother Gregorio were in Dugo, Cagayan from June 26 to June 28, 1963 together with their father and brother-in-law who brought Sabas Constantino to the Camalaniugan Emergency Hospital for treatment. Marcelo was in his house in Barrio Santor the whole morning of June 28, 1963. Hilarion killed the decedent, but only in self-defense.
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The defense of Fausto, Gregorio and Marcelo is, therefore, alibi. But it is too well settled that alibi can not overcome the positive identification of the accused unless the prosecution witnesses are unreliable or unworthy of credence - which is primarily for the trial court to determine1 - and the accused's presence in some other place is clearly and convincingly established.
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Here, the lower court gave much credence to the prosecution witnesses, especially to the youthful Balicat and Salmazan. We see no cogent reason to reverse it. These two immediately gave their sworn declarations2 to the authorities upon the discovery of the crime on June 29, 1963. It would have been quite hard for them to concoct a falsehood within so short a time. The records disclose that on July 31, 1963, both made written declarations Exhs.( 11 and 12) somewhat at variance with their previous affidavits. However, the lower court rejected these declarations on the finding that they were prepared under suspicious circumstances as evidenced by the fact that Exh. 11 bears thumbmark imprints whereas the affidavits found on pp. 15 to 16 of the Records bear the signature "Benjamin Balicat" (Exh. P[16]). In addition, We also note that Exhs. 11 and 12 were not sworn to and what is more, although counsel for appellants had them all the while, they

were never presented to the two boys for explanation during the trial.3

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The flaws and defects in the testimonies of the principal prosecution witnesses raised by appellants are too insubstantial to merit serious consideration. The relationship of Balicat, Callo and Encarnacion Perdido to the decedent does not necessarily vitiate their otherwise credible testimonies.4 Balicat's presence near the scene of the crime on the morning of June 28, 1963 is established not only by his testimony in court but also by his sworn affidavit and the statement (Exh. 11) taken by appellants' counsel. Salmazan's statement that Balicat told him about the chasing of the decedent by the appellants is hearsay to prove the chasing but as Balicat himself testified that he told the former about it, that merely corroborates the fact that the two boys talked about the incident.5 However, Salmazan is himself an eye-witness to the fact that appellants came from the place where the dead body of the decedent was found. Appellants also cite a portion of the testimony of the decedent's widow showing that it was stormy and rainy in the morning of June 28, 1963 but they have conveniently omitted her succeeding statement denying that it was raining hard that morning.6 Lastly, we can draw suspicious inference from the fact that Quirino Callo did not immediately denounce appellants before the authorities on June 28, 1963 since he did not actually see them kill the victim but only saw them 300 meters away from the scene of the crime.
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The alibi set up by appellants Fausto and Gregorio is not convincing. Although they claimed that in the reply morning of June 28, 1963 they were still in Dugo, Cagayan, 70 kms. away, they have failed to prove that it was physically impossible for them to have been at the scene of the crime.7 It was not impossible for them to have gone back to Barrio Santor on the evening of June 27 since they had nothing more to do in Dugo, assuming they really went there. In fact, two witnesses saw them in Barrio Santor that very evening policeman Mangligot while patrolling there, and Fausto's own wife who said on direct examination that he slept at home on the night of June 27, 1963. 8
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The only non-relative who would corroborate the alibi of Fausto and Gregorio is Francisco Salvador who testified that in the morning of June 28, 1963 he saw the two with their father, Ignacio, in the motorboat while crossing the Cagayan River. This cannot overcome the positive identification made by the three prosecution witnesses who had no evil motive against the appellants. Salvador's testimony is comparatively weak since it does not appear that he conversed at all with Fausto and Gregorio. Moreover, it is highly improbable that Salvador could still remember Ignacio Constantino whom he met two years before, while on a hectic campaign trail, at night, and for a very short time only.
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Marcelo's uncorroborated alibi cannot prevail over the positive identification of the prosecution witnesses for stronger reasons since on the morning of June 28, he was at home in Barrio Santor, not more than 2 kms. away from the scene of the crime. He was too near to altogether preclude his guilt.
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Hilarion admits having killed the decedent but insists that it was in self-defense only. According to him, while attending a benefit dance in Barrio Santor sometime in June, 1963 but the exact date of which he could not place, he had an altercation with the decedent wherein he knocked down the latter. The decedent then threatened to kill him and in the early morning of June 28,1963, while he was alone mending the gaps in their rice paddies, the decedent came, stabbed him suddenly, hitting him below the right elbow, and then chased him to the creek. But there, he was able to hold the decedent's hand and then stabbed the latter successively on the left side. This plea of self-defense is belied and negatived, however, by a number of reasons. First, is the nature, number and location of the decedent's wounds.9 Hilarion's version cannot explain the three wounds at the back and the other wound in the neck - directed downwards - of the decedent. The medico legal officer moreover stated that more than one weapon was used. Secondly, the alleged bolo used by the decedent was not presented nor was its non presentation explained. 10 Third, Hilarion's silence and failure to immediately report to the authorities the alleged attack upon him by the decedent shows that he was not really innocent. 11 Had he done so, he could have easily shown to them the wound allegedly inflicted by the decedent which must still have been fresh by then. 12 He had ample opportunity to do so in the investigation conducted on June 30, 1963. Lastly, the decedent had no motive to

assault him. For, contrary to Hilarion's claim, no benefit dance was held in Barrio Santor in the month of June, 1963, as established by Police Chief Damaso Dumlao who keeps a record of all the permits therefor, and Barrio Lieutenant de la Cruz. The supposed altercation between Hilarion and the decedent thus appears to be a mere fabrication.
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Appellants next assail the imposition by the lower court of a uniform penalty for all of them in the absence of direct proof of conspiracy. There were however sufficient facts and circumstances which impliedly showed conspiracy. 13 In this connection, We deem it sufficient to quote from the decision of the trial judge: As a whole, the circumstances that the accused with bolos chased Carlino Perdido, that afterwards they returned walking with Hilarion Constantino and Fausto Constantino holding their bolos with bloodstains while Marcelo and Gregorio Constantino had their bolos tucked at their waists; that the body of Carlino Perdido was found later on in the place where these accused came from; that the bolos, Exhibits B and F, with bloodstains were found in the homes of Hilarion and Gregorio Constantino, respectively; that Marcelo Constantino made the threats on the night of June 27, 1963 to Carlino Perdido and that the calendar sheet, Exhibit G, with bloodstains, was found in the house of Gregorio Constantino, all these point conclusively, to the participation of the accused in the death of Carlino Perdido and show their guilt beyond reasonable doubt.
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The motive on the part of the accused to kill Carlino Perdido is because they wanted to avenge on Carlino Perdido the death of their kin, Sabas Constantino, who was allegedly killed by Inocencio Romaguera, a brother-in-law of Carlino Perdido. They suspected that the disappearance of Inocencio Romaguera was made so by Carlino Perdido, thus Marcelo Constantino threatened Carlino Perdido to produce the body of Inocencio Romaguera otherwise he would be liquidated. The last error alleged is the failure of the lower court to appreciate certain mitigating circumstances in favor of appellants. Again, We see no error. Incomplete self-defense and unlawful provocation by the decedent can not be considered in Hilarion's favor since his version of the decedent's aggression is pure fabrication. There is neither passion and obfuscation nor proximate vindication of a grave offense since the killing of the decedent was four days after the stabbing of appellants' kin. 14 Moreover, it is doubtful if vengeance can be considered as a lawful sentiment.
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The trial court correctly sentenced the four appellants to life imprisonment. The penalty for murder 15 is reclusion temporal in its maximum period to death. Superior strength properly qualifies the killing to murder. For want of proof, treachery and evident premeditation must be brushed aside. There being no mitigating nor aggravating circumstances, the penalty should be imposed in the medium period, or life imprisonment.
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Wherefore, the appealed judgment of conviction is affirmed in toto. No costs. So ordered.

People v. Salazar