ARTICLE 11, RPC

1. SOPLENTE V PEOPLE

2. PEOPLE V NARVAEZ

3. PEOPLE V BOHOLST-CABALLERO

4. PEOPLE V CA AND TANGAN

5. PEOPLE V FERNANDEZ

6. PEOPLE V GENOSA

7. PEOPLE V CHUAHIONG

8. PEOPLE V TORING

9. TY V PEOPLE

10. BAXINELA V PEOPLE

11. POMOY V PEOPLE

12. PEOPLE V ANGCACO

13. TABUENA V SANDIGAN BAYAN

14. PEOPLE V BOHOLST-CABALLERO

15. PEOPLE V SAMSON

 1 SOPLENTE V PEOPLE
SECOND DIVISION

ROGELIO SOPLENTE, G.R. No. 152715

Petitioner,
Present:

PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent.
Promulgated:

July 29, 2005

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

DECISION

TINGA, J.:

Self-preservation is the first law of nature.

- Samuel Butler

A person acting in self-defense is apt to unleash with lightning speed the terrible swift sword. It is perhaps the
speed with which the relevant actions transpire that poses some difficulty in the adjudication of many self-defense
claims. The events in this case involve several actors and a series of assaults, all occurring within the span of several
blinks of the eye. The totality of the picture convinces us that the accused was enmeshed in a web of danger which
convulsed him into a reasonable fear for his life. It is under that dark cloud that the accused, as he readily admits,
ended the life of Joel Notarte. The loss of life is cause for grief, but the facts dictate that the killing was justified
under the circumstances.

Rogelio Soplente (Rogelio) seeks the reversal of the Decision[1] and the Resolution[2] denying his motion for
reconsideration thereof, rendered by the Court of Appeals (CA) in CA-G.R. No. 20446. The CA affirmed
the Decision[3] of the Regional Trial Court (RTC) of General Santos City, Branch 22 acquitting Rogelio of the crime of
frustrated homicide in Criminal Case No. 5093 but convicting him of homicide in Criminal Case No. 5094.

The antecedent operative facts follow.

Originally, Rogelio and his first cousin Nicanor Soplente (Nicanor) were jointly charged with frustrated homicide
for the wounding of Eduardo Leyson VI (Leyson) and with homicide for the killing of Joel Notarte (Notarte) under
informations with the following accusatory portions:
I. Criminal Case No. 5093

That on or about 12:30 oclock in the early morning of May 4, 1988 at Purok Santa Cruz, San Pedro Street, Lagao,
General Santos City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with intent to kill and with the use of a knife, did then
and there willfully, unlawfully, and feloniously stab one Eduardo Leyson VI hitting him on his left arm (through and
through), which wound ordinarily would cause the death of said Eduardo Leyson VI, thus performing all the acts of
execution which should have produced the crime of homicide as a consequence, but nevertheless did not produce it
by reason of causes independent of his will and the timely and able medical assistance rendered to said Eduardo
Leyson VI which prevented his death.[4]

II. Criminal Case No. 5094

That on or about 12:30 oclock in the early morning of May 4, 1988 at Purok Santa Cruz, San Pedro St., Lagao,
General Santos City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with intent to kill and armed with a deadly weapon, did
then and there willfully, unlawfully and feloniously stab Joel Notarte, thereby inflicting upon the latter stab wound
which caused his instantaneous death.[5]

The prosecutions evidence, culled mainly from the oral testimonies of Gracidio Gulle (Gulle), Renato Besinga
(Besinga) and Leyson, revealed the following:

A group consisting of Leyson, Notarte, Besinga, Gulle, Ewing Bayani, Ralowe Velayo, Ebol Bayani, Reynaldo Jamerlan
and Bond de Vera were drinking and conversing in the early evening of 3 May 1988 which was the occasion of the
fiesta at Purok Sta. Cruz, San Pedro St., Lagao, General Santos City. They were at the store of a certain Diola which
was situated near the stage where the amateur singing contest was to be held.[6]

During the singing contest, which started at around ten oclock in the evening (10:00 p.m.), Bebong Cambarijan
(Cambarijan) approached Gulle to tell him that Rogelio and Nicanor Soplente (the two accused) had asked him and
Estoy Provido (Provido), who was tough among the group. Without telling anybody except Leyson and Notarte
about the incident, Gulle went to the house of policeman Rudy Penequito (Penequito) to get help. Penequito
instructed Gulle to refrain from accosting the Soplente cousins to avoid disturbing the singing contest. Penequito
also approached Rogelio and Nicanor and admonished them not to make trouble, but despite the intervention,
Gulle, Notarte and Leyson watched the Soplente cousins still. Gulle, along with Bebing Go, then accosted the
Soplente cousins and inquired where they came from. Nicanor politely answered that they were staying with Susing
Cafi (Susing). Since Gulle and the others knew that Susing was a local resident, they were satisfied with the answer
and they left the Soplente cousins alone. Gulle however noticed that Nicanor smelled of liquor.[7]

The group of Leyson and the Soplente cousins continued to watch the singing contest being held nearby. Some of
Leysons companions were barangay tanods and volunteers, thus, they were equipped with canes while Leyson was
armed with a handgun.[8]

While awaiting the announcement of winners at about twelve thirty in the early morning (12:30 a.m.) of 4 May
1988, the group of Leyson repaired to a place away from the stage to relieve themselves. Some of the spectators
began dispersing at this point. Notarte and Besinga were along one side of San Pedro St. while the others, including
Gulle, were on the left side. Suddenly, a commotion ensued as the Soplente cousins passed by. Gulle, Besinga and
Leyson offered the following accounts of what had transpired then.
Gulle testified that he saw Notarte fall to the ground, which was followed by a gun burst which he presumed came
from Leysons handgun. He saw Leyson, by then clearly wounded, chasing Rogelio. However, Gulle did not see the
actual stabbing of either Notarte or Leyson.[9]

Besinga testified that he saw the commotion at a distance of about thirty (30) meters while he was walking towards
the group of Leyson at the right side of San Pedro St. When he was barely three (3) meters away from them, he saw
Rogelio and Leyson approaching each other saying something unintelligible. Notarte was beside Leyson at this
juncture. Rogelio then stabbed Leyson, who drew a gun and fired in the air. Besinga did not notice the others but his
companions were nearby mingled with the people going home.[10]

Leyson, who survived the attack and sustained a wound on his left arm, claimed to have been taken by surprise
when the Soplente cousins suddenly attacked Notarte and himself. The assault was so sudden and fast that while he
was standing with arms akimbo, he was stabbed by Rogelio. Leyson reacted by drawing his gun and firing a shot in
the air to prevent further attack. Notarte who was a little to the rear but very near his right side was attacked by
Nicanor at the same instant that Rogelio had attacked his companion, Leyson. The assaults were done
simultaneously with lightning speed, with Rogelio concentrating on Leyson and Nicanor on Notarte. Rogelio fled
after the firing of the gun. (But Leyson did not testify whether Nicanor had also taken flight.) Leyson tried to go after
Rogelio used but since he was bleeding profusely, a policeman assisted him in going to the Canda clinic for medical
treatment. He learned the next day that Notarte died as a result of the stabbing.[11]

On the other hand, Rogelio admitted having stabbed both Leyson and Notarte, but claimed that he did so in self-
defense.[12] The testimony of Rogelio and Nicanor themselves were presented as well as that of their cousin Elena
Cafi (Bukay) and store owner, Joy Malig-on (Malig-on). Based on the findings of the lower court, the defenses
version of the incident is condensed as follows:

The cousins, Rogelio and Nicanor, watched the amateur singing contest being held near the Sta. Cruz Chapel at San
Pedro St. which started at about nine thirty in the evening (9:30 p.m.). They were standing only a few meters away
from the group of people who were drinking in the store of Diola. While engrossed with the singing contest, they
were approached by two (2) persons from the group of Leyson who then tapped Nicanors shoulder. They insisted
on bringing Nicanor along with them so Nicanor called for Rogelios help. The latter immediately intervened to stop
the two from harassing Nicanor.[13]

A few minutes after the incident, Nicanor went to the adjacent store of Malig-on and ordered orange.[14] When
Malig-on asked him what happened, Nicanor explained that the strangers were provoking him by deliberately
stepping on his feet. He claimed however that the incident was nothing to him.[15]

At about past eleven oclock in the evening (11:00 p.m.), before the conclusion of the amateur singing contest,
Rogelio and Nicanor decided to go home. They related how Nicanor was harassed near the stage of the amateur
show to their cousin, Susing and his wife, Bukay.[16]

At past midnight, Bukay asked Rogelio and Nicanor to accompany her in looking for her children who had watched
the singing contest. They obliged but before they had gone about three hundred (300) meters, Nicanor separated
from them to buy cigarettes from a nearby store. Rogelio and Bukay went onwards but at a distance of about fifty
(50) meters from the stage, Rogelio stopped and Bukay proceeded alone to look for her children. A few minutes
later, Bukay appeared with the children and they all headed home.[17]

While on the way home, Rogelio suddenly found himself surrounded by around ten (10) persons led by Leyson. He
shouted at Nicanor to run and the latter immediately scampered away. Leyson drew his gun and fired at Rogelio but
the latter was able to parry it by tapping the base of Leysons hand holding the gun. Forthwith, Rogelio stabbed
Leyson once. As Notarte had started mauling Rogelio after Leyson had fired his gun, Rogelio also stabbed Notarte.
He stabbed both Leyson and Notarte to protect himself from being killed by the group who were armed with canes
and a lead pipe aside from Leysons gun. Rogelio managed to escape after that and he sought refuge in the house of
Susing.[18]

Before dawn, a policeman arrived at Susings house and Rogelio voluntarily gave himself up. The knife he used was
also turned over to the police. He was brought to the police substation at Lagao. A few hours later, Nicanor was also
picked up by the police.[19]

In its assailed ruling, the RTC held that Nicanor had no participation in the fatal incident which occurred in the early
morning of 4 May 1988.[20] It also found that there was no evidence of conspiracy.[21] Accordingly, it absolved
Nicanor of the crimes charged in both Criminal Case Nos. 5093 and 5094.[22] On the other hand, Rogelios claim of
self-defense was deemed legally justified with respect to Leysons injury but not with respect to Notartes death.
Thus, while Rogelio was acquitted in Criminal Case No. 5093, he was found guilty of the crime of homicide in
Criminal Case No. 5094.[23]

Notwithstanding the above findings, the lower court ordered both Nicanor and Rogelio to jointly and severally
indemnify the family of Notarte for the latters death and to pay the hospitalization expenses of Leyson in its
decision dated 7 May 1996. The dispositive portion of the decision reads:

ACCORDINGLY, in the absence of proof of conspiracy, Nicanor Soplente is acquitted in both criminal cases nos. 5093
and 5094. Considering the admission and the evidence adduced, Rogelio Soplente is acquitted on reasonable doubt
in Criminal Case No. 5093 for frustrated homicide but he is found guilty beyond reasonable doubt in Criminal Case
No. 5094 for homicide with the attendance of the mitigating circumstances of provocation or threat and voluntary
surrender and he is hereby sentenced to 6 years of PRISION CORRECCIONAL to 8 years and 1 day of PRISION MAYOR
MEDIUM, to jointly and severally indemnify with accused Nicanor Soplente the heirs of the deceased Joel Notarte
the sum of P50,000.00, actual expenses of P12,500.00; they are also required to pay IN SOLIDUM the hospitalization
expenses of Eduardo Leyson VI plus costs.

SO ORDERED.[24]

Initially, both Nicanor and Rogelio filed their respective notices of appeal from the above decision. Later however,
Nicanor withdrew his notice of appeal and opted to merely move for a reconsideration of the portion of the decision
making him solidarily liable for monetary awards in favor of the victims.

In an Order[25] dated 26 June 1996, the lower court granted Nicanors motion thereby totally absolving him from
both criminal and civil liability. Thus, only Rogelios appeal to the CA remained. Concluding that there was no
unlawful aggression on the part of Notarte which would justify Rogelios claim of self-defense, the CA affirmed the
ruling of the RTC. Hence, Rogelios recourse to this Court.

In his petition, Rogelio claims that the CA erred when it held that on the basis of unlawful aggression alone,
Rogelios evidence fell short of being clear and convincing.[26] Rogelio vehemently argues that a holistic appreciation
of the evidence as presented by both the prosecution and the defense will show that self-defense lies in his favor.[27]

Doctrinally, findings of fact of trial courts are accorded the highest respect and weight. It is the peculiar province of
the trial court to determine the credibility of witnesses and related questions of fact because of its superior
advantage in observing the conduct and demeanor of witnesses while testifying. Thus, it has become a well-settled
rule that where the issue touches on the credibility of witnesses or factual findings, the appellate court will generally
not disturb the findings of the trial court, unless some facts or circumstances that may affect the result of the case
have been overlooked.[28]
In this case, a careful perusal of the records shows that the lower court overlooked material facts that would result
in Rogelios exculpation from liability. The lower courts failed to appreciate the fact that Rogelios testimony relative
to his claim of self-defense stands uncontradicted. His testimony coupled with the circumstances surrounding this
case sufficiently proves the claim of self-defense.

The three main witnesses for the prosecution, Gulle, Besinga and Leyson categorically stated that it was Nicanor, not
Rogelio who stabbed Notarte. Gulle testified thus:

Q Mr. Gulle, do you still remember where were you on May 4, 1988 at about 12:30 oclock early in the morning?
A I was at San Pedro St., Lagao, General Santos City.

Q What were you doing there at that particular time and place?
A I was standing beside my friends, Joel Notarte and Eduardo Leyson VI.

Q Aside from your friends, Joel Notarte and Eduardo Leyson VI, were there other persons present?
A Yes, sir.

Q What were you doing at that particular time?

A We were conversing.

Q While you were conversing with your friends which includes Eduardo Leyson VI and Joel Notarte, do you
remember of any extraordinary incident that happened in that early morning and at that particular place and time?
A Yes, sir.

Q Tell this Honorable Court what happened?

A Suddenly, Eduardo Leyson VI and Joel Notarte were stabbed.

Q Did you see the person who suddenly stabbed Eduardo Leyson VI?
A Yes, sir.

Q Is this person present in Court now?

A Yes, sir.

Q Will you please point him out to the court?

A He is there (witness is pointing to a person sitting on the accused bench who, when asked his name, answered
Rogelio Soplente.)

Q Did you see the person who stabbed Joel Notarte?

A Yes, sir.

Q Do you know that person?

A Yes, sir.

Q Is he present in Court now?

A Yes, sir.

Q Will you please point him out to the Court?

A That person, sir. (Witness points to a person seated on the accused bench, who, when asked his name,
answered Nicanor Soplente.)[29]

Besinga testified as follows:

Q Were you standing somewhere in that street at that particular time at 12:30 oclock in the early morning of
May 4, 1988?
A We were standing in front of the residence of Ventura.

Q While you were there standing along that street in front of the residence of Ventura as you stated, do you
remember if any extraordinary incident happened?
A Yes, sir.

Q Will you please tell this Court what happened?

A I saw that Gingging and Joel were stabbed.

Q When you said Gingging, whom are you referring to?

A I am referring to Eduardo Leyson VI.

Q Do you know who stabbed Eduardo Leyson VI?

A Yes, sir.

Q Will you please tell this Honorable Court who stabbed Eduardo Leyson VI?
A Rogelio Soplente.

Q Is this Rogelio Soplente present in court now?

A Yes, sir.

Q Will you please point him out to the Court?

A That person, sir. (Witness is pointing to a person, who, when asked his name, answered Rogelio Soplente.)

Q You said a certain Joel was also stabbed, what is the family name of Joel?
A Notarte.
Q And have you seen who stabbed Joel Notarte?

Atty. Vencer:

Leading, Your Honor.

Q Who stabbed Joel Notarte?

A Nicanor Soplente.

Q Is this Nicanor Soplente present in Court now?

A Yes, sir.

Q Will you please point him out?

A That person seated on the accused bench. (Witness is pointing to a person who, when asked his name,
answered Nicanor Soplente.)[30]

Leyson, on the other hand testified thus:

Q Will you please tell us what unusual incident was that?

A There was trouble at the place where the amateur singing contest was held.
Q Then, what happened next?
A I was stabbed, sir. One of my companions was also stabbed.

Q Where were you specifically when you were stabbed?

A I was at the road, waiting for my younger brother.

Q Were you able to identify the person who stabbed you?

A Yes, sir.

Atty. Vencer:

Leading, Your Honor.

Q The question is, were you able to identify the person.

Court:

Already answered.

Q This person, you said, stabbed you, is he in court now?

A Yes, sir.

Q Will you point him out?

A Those two persons sitting over there. (Witness is pointing to the two persons sitting on the accused bench,
who, when asked their names, answered Rogelio Soplente and Nicanor Soplente.

Q Of the two, Rogelio Soplente and Nicanor Soplente, who stabbed you?
A Rogelio, sir.

... .
Q By the way, you said that two of them attacked you and you pointed to one of them as the Rogelio Soplente
who personally stabbed you. How about the other one, what did he do?
A He was the one who stabbed Joel Notarte.[31]

Based on the foregoing, it is glaringly apparent that none of the main prosecution witnesses ever identified Rogelio
as the one who stabbed Notarte and caused his death. Rather, they pointed at Nicanor as the perpetrator of the
crime against Notarte. The declarations made by the witnesses were categorical and they never even made an
attempt to correct themselves. Yet, their categorical declarations were belied by the admission of Rogelio himself
who candidly admitted his own acts. Said declarations were also belied by the findings of the trial court which held
thus:

. . . The version given by Leyson that it was Rogelio who stabbed him and Nicanor who stabbed Notarte who was
standing less than a meter from him a little bit to his back on the right side would not be supported by the actual
happening because it would appear that the stabbing which he said happened simultaneously is against reality
because if it were true that Rogelio and Nicanor were on the left side of Leyson and that Leyson was a little bit
forward with Notarte on his right it would have been unlikely if not impossible for the two to simultaneously stab
because he (Leyson) would be blocking the way of Nicanor. What is more logical and believable is that after stabbing
Leyson Rogelio immediately stabbed Notarte hitting him on the left side of his body below the armpit.[32]
It has been ruled that the very act of giving false testimony impeaches that witness own testimony and the court is
compelled to exclude it from all consideration.[33] The findings of the trial court coupled with the admission of
Rogelio himself as to who actually stabbed Notarte discredits the testimony of the prosecution witnesses. The
veracity of their testimonies had been effectively destroyed.

Thus, left uncontradicted is the testimony of Rogelio admitting the act of stabbing Notarte. With the core of said
testimony being the exculpatory claim of self-defense, however, it is burdened by its own weight.

In order for self-defense to prosper, the following requisites must be present: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part
of the person defending himself.[34]

The appellate court held that on the element of unlawful aggression alone, appellants (Rogelios) evidence
relative thereto fell far short of being clear and convincing.[35]

We do not agree.

Rogelios testimony showed that there was indeed unlawful aggression on the part of Notarte. The pertinent parts
of the transcript of stenographic notes provide thus:

Q While you were walking, what happened?

A Suddenly, people were running.

Q Running towards what direction?

A Towards me and they suddenly surrounded me.

Q How many persons surrounded you?

A More than ten (10) persons.

Q And when these ten (10) persons surrounded you, what was the first thing that happened?
A One of them pointed at me and said, Do you want to fight?

Q And when he uttered those words, what did you tell him?
A I told him, We dont want a fight, we are here to watch the amateur singing contest.

Q And after telling him that, what did this person who pointed to you and challenged you to a fight do?
A That person pulled his revolver and said Do you want this?

Q Simultaneously saying, Do you want this, what happened?

A When he pulled a gun from his waist, he immediately pointed his gun at me, and I simultaneously parried the
gun and it burst.

Q And what did you do?

A After the gun burst, simultaneously I stopped (stabbed) him.

Q Where was he hit?

A On his left upper arm.

Q That gun that burst, where was it directed at that time it was pulled?
Prosecutor Oco:

Already answered, Your Honor.

Court:

Yes, It was pointed at him.

Q How far from your head was that gun when it burst?

Prosecutor Oco:

No, Your Honor, please. We object. It is misleading.

Court:

Sustained.

Q Where was the gun, what part of your body was the gun pointed?
A At my face.

Q And when he was hit, what happened to him?

A I did not know anymore, sir because simultaneous to that, I received kicks.

Q From where, left or right?

A From my right side.

Q And that person who kicked you, after kicking you, what did he do?
A He continued attacking me.

Q So, what did you do?

A I stabbed him.

Q Was he hit?
A Yes, sir.[36]

Based on the uncontradicted testimony of Rogelio, he was kicked by Notarte immediately after he stabbed Leyson.
Viewed in an isolated context, the act of kicking Rogelio by Notarte might seem insufficient as an act of unlawful
aggression, considering that Notarte just witnessed his friend, Leyson, being stabbed. Perhaps, this was the context
in which the lower courts appreciated Rogelios claim of self-defense. After all, the immediate vindication even of a
stranger is recognized as a justifying circumstance.

However, there is a wider context which should be appreciated. As concluded by the trial court, the Soplente
cousins were surrounded by Leyson and his companions, some of whom were armed.[37]Animosity between these
two sets had been fostered just a few hours earlier. Leyson had drawn first and fired first. At this juncture, Rogelio
had every reason to believe that it was not only Leyson who meant him harm, but that Leysons companions were of
the same mindset. The fact that Leysons aggression had already been repelled did not eliminate the threat to
Rogelios well-being in the hands of Leysons companions. The kicks employed by Notarte did nothing but remind
Rogelio that the threats to his life or limb had not ceased, even if those from Leysons had.
The Court of Appeals implied that it has not been indubitably ascertained that Notarte had kicked Rogelio, or that
Notarte was armed or otherwise attacked Rogelio. But the same time, it cannot be disputed that Notarte was no
neutral bystander with no interest in the confrontation at hand. Notarte was one of Leysons confederates, present
at the crucial moment for the same malevolent intentions towards Rogelio as that of his cohorts.

At the commencement of the attack, Rogelio could not have been obliged to view Notarte, or any other member of
the posse for that matter, as a less menacing threat than Leyson. We have to understand that these events
occurred spontaneously in a matter of seconds or even simultaneously. Rogelio bore no superhuman power to slow
down time or to prevent the events from unfolding at virtual warp speed, to be able to assess with measured
certainty the appropriate commensurate response due to each of his aggressors. Even those schooled in the legal
doctrines of self-defense would, under those dire circumstances, be barely able to discern the legally defensible
response and immediately employ the same. Our laws on self-defense are supposed to approximate the natural
human responses to danger, and not serve as our inconvenient rulebook based on which we should acclimatize our
impulses in the face of peril.

It would be wrong to compel Rogelio to have discerned the appropriate calibrated response to Notartes kicking
when he himself was staring at the evil eye of danger. That would be a gargantuan demand even for the coolest
under pressure. The Court has been reasonable enough to recognize some unreason as justifiable in the law of self-
defense. As stated in the case of People v. Boholst-Caballero.[38]

The law on self-defense embodied in any penal system in the civilized world finds justification in mans natural
instinct to protect, repel and save his person or rights from impending danger or peril; it is based on that impulse of
self-preservation born to man and part of his nature as a human being.[39]

The second element which is reasonable necessity of the means employed to prevent or repel the unlawful
aggression was likewise present in the case at bar. The knife Rogelio habitually carried was the only weapon he had
in his person.[40] It was but logical that the knife would be the only thing he could use against his attackers since the
latter were collectively armed with canes and a handgun.

Anent the third element of self-defense, there was no evidence to show that Rogelio had provoked Notarte into
a fight. The lower courts finding on this point is backed by the evidence on record. As the lower court held, it is a
fact that Rogelio had not done anything to provoke the victim prior to or at the time of the fatal encounter.[41]

All the elements of self-defense having been established through the uncontradicted testimony of Rogelio, the
reversal of the lower courts decision is in order. Under the law, a person does not incur any criminal liability if the
act committed is in defense of his person; thus, Rogelio is entitled to an acquittal in this case.

WHEREFORE, the decision appealed from is REVERSED and appellant Rogelio Soplente is ACQUITTED of the
crime charged. His immediate release is hereby ORDERED unless he is detained for some other lawful cause. No
costs.

SO ORDERED.
2. PEOPLE V NARVAEZ

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos.
1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in a decision rendered
on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident
premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been represented by a private prosecutor, and to pay the
costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been represent by a private prosecutor, and to pay the costs
(p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the
two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George Fleischer, father of deceased
Davis Fleischer. The place was in the boundary of the highway and the hacienda owned by George Fleischer. This is
located in the municipality of Maitum, South Cotabato. At the place of the fencing is the house and rice drier of
appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he
heard that the walls of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing
would go on, appellant would be prevented from getting into his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what
is good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however, answered:
'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant
fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a result
of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and
Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the
one hand, and the land settlers of Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos.
28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in
Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He established his residence
therein, built his house, cultivated the area, and was among those who petitioned then President Manuel L. Quezon
to order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000
hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros
Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and later abandoned
by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey
report was not submitted until 1946 because of the outbreak of the second world war. According to the survey, only
300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983,
while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33,
G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition,
appraised and advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer and
Company was the only bidder for P6,000.00. But because of protests from the settlers the corresponding award in
its favor was held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of
Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the representative
of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands, acting upon
the report of Atty. Gozon, approved the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted
only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural Resources which
affirmed the order of the Director of Lands awarding the contested land to the company. The settlers as plaintiffs,
lost that case in view of the amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the part of the company. They appealed to
the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the Court of
First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from
the land which they had been occupying for about 30 years. Among those ejected was the appellant who, to avoid
trouble, voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to his other
house which he built in 1962 or 1963 near the highway. The second house is not far from the site of the dismantled
house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also
transferred his store from his former residence to the house near the highway. Aside from the store, he also had a
rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the house,
which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed
Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the
order of award with prayer for preliminary injunction. During the pendency of this case, appellant on February 21,
1967 entered into a contract of lease with the company whereby he agreed to lease an area of approximately 100 to
140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration
of P16.00 monthly. According to him, he signed the contract although the ownership of the land was still uncertain,
in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental,
although he alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and ricemill
are located as per agreement executed on February 21, 1967. You have not paid as as even after repeated attempts
of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our
agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of
Fleischers & Co., Inc. This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company shall cause
their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo
posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of
appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to
appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the Fleischers'
side. The fencing continued on that fateful day of August 22, 1968, with the installation of four strands of barbed
wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was
awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of the window,
he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129,
t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is narrated in the
People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he
acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in
defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the
window of his house with the shotgun which he surrendered to the police authorities. He claims, however, that he
did so in defense of his person and of his rights, and therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal
Code, but in order for it to be appreciated, the following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised Penal Code,
as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi,
sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased Rubia, when he said,
"Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction
to his having been awakened to see the wall of his house being chiselled. The verbal exchange took place while the
two deceased were on the ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my
senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I
shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr. Fleischer
and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in the jeep
and thinking that if he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the
deceased were in lawful exercise of their rights of ownership over the land in question, when they did the fencing
that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of
the deceased and their three laborers, were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being nailed strands of barbed wire in several
layers. Obviously, they were using tools which could be lethal weapons, such as nail and hammer, bolo or bamboo
cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that the jeep which they used in
going to the place was parked just a few steps away, and in it there was a gun leaning near the steering wheel.
When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to look out of the
window. Then he saw the damage being done to his house, compounded by the fact that his house and rice mill will
be shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the deceased
Rubia, to stop what they were doing and to talk things over with him. But deceased Fleischer answered angrily with
'gademit' and directed his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the
further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and rice
mill-which were not only imminent but were actually in progress. There is no question, therefore, that there was
aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the fencing.
This was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested
property, to destroy appellant's house and to shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to
Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties could not have
known that the case would be dismissed over a year after the incident on August 22, 1968, as it was dismissed on
January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case
No. 240 filed in 1950 for the annulment of the award to the company, between the same parties, which the
company won by virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental petition filed by
the Republic of the Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the Director of Lands had no authority to conduct the
sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the
government's supplemental petition was premised on the ground that after its filing on November 28, 1968, nothing
more was done by the petitioner Republic of the Philippines except to adopt all the evidence and arguments of
plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755
filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not
know who really owns this portion to avoid trouble. To avoid trouble we better pay while waiting for the case
because at that time, it was not known who is the right owner of the place. So we decided until things will clear up
and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate
the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must
invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall
be protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles
536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's
house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over
with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs.
Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist,
pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense
of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his
window, killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the
part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His plea
for the deceased and their men to stop and talk things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification
are present. He should therefore be held responsible for the death of his victims, but he could be credited with the
special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal
Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in
this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the
aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed might have made. This cannot be said of a situation where the slayer acted
instantaneously ..." (People vs. Caete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The
only evidence presented to prove this circumstance was the testimony of Crisanto Ibaez, 37 years old, married,
resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr. and
Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife talked to him. Mrs.
Narvaez asked him to help them, as he was working in the hacienda. She further told him that if they fenced their
house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer
because there will be nobody who will break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia,
but the latter told him not to believe as they were only Idle threats designed to get him out of the hacienda (pp.
297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation to kill
the victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent must be
evidenced by notorious outward acts evincing the determination to commit the crime" (People vs. Ordioles, 42 SCRA
238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung to their
(his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the
crime to allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased Davis Fleischer, neutralizes his
credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the
accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence
of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying
his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it
appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find
his house being damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not only
was his house being unlawfully violated; his business was also in danger of closing down for lack of access to the
highway. These circumstances, coming so near to the time when his first house was dismantled, thus forcing him to
transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts
of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and
hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded-all these could be too much for any man-he should be credited with this
mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor
aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-in view
of the presence of unlawful aggression on the part of the victims and lack of sufficient provocation on the part of the
appellant-and by two generic mitigating circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article
69, supra, the penalty lower by one or two degrees shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same. Considering that the majority of the requirements
for defense of property are present, the penalty may be lowered by two degrees, i.e., to prision correccional And
under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto mayor, because of the
presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43
SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the gravity of defendant's
reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by damaging
appellant's properties and business. Considering appellant's standing in the community, being married to a
municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy his reputation.
The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and detained
without bail despite the absence of evidence linking her to the killings. She was dropped as a defendant only upon
motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive
landholdings in a Central Visayan province, to extend its accumulation of public lands to the resettlement areas of
Cotabato. Since it had the capability-financial and otherwise-to carry out its land accumulation scheme, the lowly
settlers, who uprooted their families from their native soil in Luzon to take advantage of the government's
resettlement program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus, the
moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests
mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the
rate of one (1) day for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on April 21, 1969
made the provisions of Art. 39 applicable to fines only and not to reparation of the damage caused, indemnification
of consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED
BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC
MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE
SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD
FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS
VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin Vasquez and Relova, JJ.,
concur.

Aquino, J., is on leave.

Plana, J., in the result.

 Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not property Plana,
J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art. 429, Civil
Code of the Philippines, provides that the owner or legal possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property. It seems to me, however, that an attack on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be invoked when
it is coupled with some form of attack on the person of one entrusted with said property. The defense of property,
whether complete or incomplete, to be available in prosecutions for murder or homicide must be coupled with an
attack by the one getting the property on the person defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made upon the
person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the unlawful aggression which
entitles appellant to the pela of self-defense. I agree with the majority opinion that the crime is homicide but
without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by the two generic
mitigating circumstances of voluntary surrender and obfuscation, without any aggravating circumstance, maximum
the sentence the appellant should have served was prision mayor plus the indemnification to each group of heirs of
Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since August 22, 1968, he
has served the penalty and should be released.
3. PEOPLE V CABALLERO

EN BANC

[G. R. No. 149028-30. April 2, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO
CABALLERO, JR., and ROBITO CABALLERO, accused.

ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.

DECISION

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision[1] of the Regional Trial Court of San Carlos City, Negros
Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano Caballero, Jr. of
murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the supreme penalty of death
and ordering them to pay damages; and of frustrated murder in Criminal Case No. RTC-1219 and imposing on them
the penalty of reclusion perpetua.

The Antecedents

Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New
Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were Ricardo Caballero
and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the compound was the house
of Leonilo Broce, a nephew of Wilma Broce.

In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero,
were having a drinking spree in the house of their brother Ricardo in the Mondragon Compound. At about 7:00 p.m.
of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma Broce which was across the
Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to the house of Susana Broce,
Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the store of Wilma. Momentarily,
Armando arrived in the store and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene
replied: What is this all about? We dont have any quarrel between us. Armando left the store but stood by the
gate of the barbed-wired fence of the Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined
him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing the store already,
he stood up and left the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the
window of their house saw her brother Eugene going out of the store and proceeding to the house of Susana. She
called out to him and advised him to go home. Myrna then left the window to pacify her crying baby.

As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the
compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and assaulted
Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The latter tried to parry
the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three times. As Eugene was
being assaulted, Myrna returned to the window of her house and saw the Caballero brothers assaulting
Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole incident, was shocked to
immobility at the sudden turn of events.

From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and Eugene? However,
Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr. and
Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid under
the house of a neighbor.

For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who
stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help: Tio, help me
because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon who was able to pacify the
Caballero brothers. They all returned to the compound.

In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters
Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they sustained.

Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing
the following findings:

POST-MORTEM EXAMINATION

Name: Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: August 3, 1994 @ 8:30 P.M.

Date & Time Examined: August 3, 1994 @ 10:40 P.M.

Post-Mortem Findings:

= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart, and
the (L) pulmonary artery and the left middle lobe of the lungs;

= Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;

= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L) and
Hemopneumothorax (R).[2]

He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-bladed
instrument, or by three instruments.[3]

Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem report
containing the following findings:

POST-MORTEM EXAMINATION

Name: Leonilo Broce, 22 years old, male, married

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.

Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.

Post-mortem findings:

= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]

Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate stating
that Arnold sustained the following injuries:

= Lacerated wound 2 cm. (R) forearm middle 3rd

= Incised wound 2 inches (L) forearm middle 3rd

= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7th intercostal space,
penetrating thoracic cavity and abdominal cavity.

... [5]

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by
three different sharp-pointed instruments.[6] He further testified that Arnold would have died because of the stab
wound on his chest, were it not for the timely medical intervention.

On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo
Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and
evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons,
attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking the latter with the use
of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce physical injury described as follows:

= Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.

CONTRARY TO LAW.[7]

They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as
Criminal Case No. RTC-1218, which reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and
evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons,
attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by striking the latter with use
of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to
the death of the latter.

That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.

CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold
Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence
upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him,
thereby inflicting upon the latter physical injuries which would have resulted to the death of said Arnold Barcuma,
thus performing all the acts of execution, which would have produced the crime of Murder, as a consequence, but
nevertheless did not produce it, by reason of causes independent of the will of the accused that is, the timely
medical assistance rendered to said Arnold Barcuma.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.[9]

Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not
guilty to all the charges. Robito Caballero remained at-large.

Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo
was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a motor cab
driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don Juan
Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.

On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of
his brother Ricardo to help in the construction of the latters house and to take care of Ricardos fighting cocks while
he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and Armando. Momentarily,
their sister Mila and their younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr. allegedly was
mauled by a group of men and sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo
and Armando brought their brother Marciano, Jr. to the hospital for treatment. On August 4, 1994, Marciano, Jr.
was treated for:

= Linear abrasion (L) scapula region;

= Contusion (R) lower lip lateral side;

= Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any
altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna
would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.

After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now
appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of which reads:

WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr.,
alias Jun, having been found GUILTYbeyond reasonable doubt of the offenses charged them as principals, are
hereby sentenced to suffer:

1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present,
with the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of
death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating
circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength,
the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and

3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of
Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present, an
imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no
award as to damages, no evidence having been introduced to establish, the same; and

4. To pay the costs in all three (3) cases.

SO ORDERED.[11]

In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause
injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed Eugene, and only
the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for the deaths of
Leonilo and Eugene and for the injuries of Arnold.

In their Brief, the accused, now appellants assail the decision of the trial court contending that:

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE
THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND
ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS KILLED THE VICTIMS.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE
ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12]

The Court will delve into and resolve the first two assignments of errors.

The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the
deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court committed
reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the incident they were
in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.

The appellants are partly correct.

The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are
criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the Revised Penal Code
provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit
it. Conspiracy is always predominantly mental in composition because it consists primarily of a meeting of minds
and intent.[13] Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof
beyond reasonable doubt.[14] However, direct proof is not required. Conspiracy may be proved by circumstantial
evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the
commission of a felony, all the accused aiming at the same object, one performing one part and another performing
another for the attainment of the same objective, their acts though apparently independent were in fact concerted
and cooperative, indicating closeness of personal association, concerted action and concurrence of
sentiments.[15] The overt act or acts of the accused may consist of active participation in the actual commission of
the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement
the criminal plan.[16] Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at
the time of the commission of a crime, all the malefactors had the same purpose and were united in their
execution.[17] Once established, all the conspirators are criminally liable as co-principals regardless of the degree of
participation of each of them for in contemplation of the law, the act of one is the act of all.[18]

Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and
presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to
cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with
a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally liable for his act
done outside the contemplation of the conspirators. Co-conspirators are criminally liable only for acts done
pursuant to the conspiring on how and what are the necessary and logic consequence of the intended crime.[21]

In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy
something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel between
them. Appellant Armando was likewise irked at the reaction of Eugene because from the store, appellant Armando
stationed himself by the gate of the Mondragon Compound near the sari-sari store of Wilma. Appellants Ricardo,
Marciano, Jr. and Robito joined their brother, appellant Armando at the gate. Appellant Ricardo and accused Robito
were armed with knives. When Eugene passed by the gate to the compound, appellant Armando pulled Eugene to
the gate but when the latter resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden
support of the clothesline and hit Eugene with it. Eugene was stabbed three times on his chest even as he tried to
parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and accused Robito, appellant
Ricardo stabbed him on the left side of his body. The other appellants and accused Robito joined appellant Ricardo
and ganged up on Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law
of appellant Ricardo intervened and forthwith, all the appellants, including accused Robito returned to the
Mondragon Compound. Patently, all the appellants by their simultaneous collective acts before and after the
commission of the crimes were united in one common objective, to kill Eugene, and cause injuries to Arnold for
trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene
and for the injuries of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on
Arnold. The act of one is the act of the others.

However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution
failed to adduce evidence that the appellants and the accused Robito conspired to kill Leonilo. The appellants did
not actually see Leonilo rushing out from his house to thesitus criminis. They had no foreknowledge that the accused
Robito would stab Leonilo. There was no evidence presented by the prosecution to prove that all the appellants
assisted the accused Robito in killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw
the commotion, with the intention of aiding the victim or pacifying the protagonists. He was, however, stopped by
accused Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce
testified that only the accused Robito stabbed Leonilo:

Q After that, what happened next?

A Leonilo Broce came out of his house.

Q Where is the house of Leonilo Broce?

A Still located at Sumakwel.

Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the four?

A Yes.

Q What happened after that?

A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to approach them but
he was not able to approach them because he was met by Robit Bebot Caballero and stabbed by Robito Caballero.

Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?

A Yes. He immediately ran back and said: Tio, help me because I am hit.

INTERPRETERS (observation)

Witness demonstrating by holding her left armpit.

Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?

A Not (sic).

Q Now what happened to Eugene Tayaktak?

A He appeared very weak and he was staggering.

Q Do you know where Eugene Tayaktak now?

A Already dead.

Q What happened to Leonilo Broce, where is he now?

A The two of them were (sic) already dead.

Q Now, when did the trouble stop if it stopped?

A It stopped when Dodong Mondragon arrived.

Q What did the accused do after the trouble was stopped?

A They went inside the compound of his (sic) father.

Q What happened next?

A Nothing happened. Both of them were brought to the hospital.[22]

In sum, the trial court committed reversible error in convicting the appellants of murder for the death of Leonilo. As
this Court held in People v. Flora:[23]

However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor
Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569,
570 (1967), we held:

... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For
other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical
consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot.

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has
no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes
Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified
by treachery. In order that treachery may be considered as a qualifying circumstance, the prosecution is burdened
to prove that:

.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to
retaliate; and (2) the means of execution was deliberately or consciously adopted.[24]

Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and
unexpected attack on the unarmed victim.[25]

In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his
girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden pole while appellant
Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift and
unannounced. Undeniably, the appellants killed Eugene with treachery.

In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article
6, first paragraph of the Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

Elements:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.[26]

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished an
attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all the acts which should produce the crime as a consequence, which act it is his intention to perform.

The subjective phase in the commission of a crime is that portion of the acts constituting the crime included
between the act which beginsthe commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime. Thereafter, the phase is objective.

In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The
offender does not arrive at the point of performing all of the acts of execution which should produce the crime. He
is stopped short of that point by some cause apart from his voluntary desistance.

On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should
result in the consummation of the crime. The offender has passed the subjective phase in the commission of the
crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective
phase. He did all that is necessary to consummate the crime. However, the crime is not consummated by reason of
the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have
performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the
victim barring medical intervention or attendance.[28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated
physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence
of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and
number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the
offender at the time the injuries are inflicted by him on the victim.

In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used
knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound sustained by
Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and
effective medical intervention:

Q And how about the size and the depth of the wounds and how big is each wound and how deep.

A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left, penetrating the chest
near the thorax along the lateral line.

Q So, aside from the 3rd wound there are wounds which are not really very serious?

A As I said before, the most serious is the 3rd wound.

Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the victim?

A Yes, Sir.[29]

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the acts of
execution but the crime was not consummated because of the timely medical intervention.

Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and
sudden. He had no means and there was no time for him to defend himself. In sum, the appellants are guilty of
frustrated murder.

The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail over
Wilmas and Arnolds positive and straightforward testimonies that the appellants killed Eugene and stabbed
Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said crimes; hence,
their testimony must be accorded full probative weight.[30]

Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to fabricate
and difficult to disprove. To merit approbation, the appellants were burdened to prove with clear and convincing
evidence that at the time the crimes were committed, they were in a place other than the situs of the crimes such
that it was physically impossible for them to have committed said crimes.[31] The appellants dismally failed in this
respect. They testified that they were at the house of appellant Ricardo, which was conveniently near the place
where Eugene was killed and Arnold was assaulted. Moreover, the records show that Marciano, Jr. was treated for
his superficial injuries on August 4, 1996, a day after the incident. This belies the claim of appellants Ricardo and
Armando that they were allegedly in the hospital at the time of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that treachery
and abuse of superior strength were attendant in the killing of Eugene. The Solicitor General does not agree with
the trial court and contends that abuse of superior strength was absorbed by treachery; hence, should not be
considered as a separate aggravating circumstance in the imposition of the penalty on the appellants. The Court
agrees with the Solicitor General. Abuse of superior strength, concurring with treachery is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, is reclusion
perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying circumstance was
attendant in the commission of the crime, the proper penalty for the crime is reclusion perpetua conformably with
Article 63 of the Revised Penal Code.

In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the indeterminate penalty
of from 12 years ofreclusion temporal as minimum, to 17 years, 4 months and 1 day of reclusion temporal as
maximum, imposed on the appellants is not correct. The Court agrees with the Solicitor General. The penalty for
frustrated murder is one degree lower than reclusion perpetua to death, which isreclusion temporal.[33] The latter
penalty has a range of 12 years and 1 day to 20 years. The maximum of the indeterminate penalty should be taken
from reclusion temporal, the penalty for the crime taking into account any modifying circumstances in the
commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision
mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the
commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years
and four (4) months of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months
ofreclusion temporal in its medium period, as maximum.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the victim Eugene
Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award moral damages to said
heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua, the civil indemnity
should be only P50,000. The heirs of the victim should also be awarded the amount of P50,000 as moral
damages.[34]

In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma on its
finding that the prosecution failed to adduce any evidence to prove said damages. The Court disagrees with the trial
court. The victim Arnold Barcuma himself testified on his injuries.[35] He is entitled to moral damages in the amount
of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well entitled to actual damages,
which in the absence of evidence would, nevertheless, entitle him to an award of temperate or moderate damages,
herein fixed at P10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental),
Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the following MODIFICATIONS:

1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the
prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment of the trial court and
ACQUITS them of the said charge.

2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article
248 of the Revised Penal Code, qualified by treachery, and are sentenced to suffer the penalty of reclusion
perpetua and ordered to pay in solidum the heirs of the victim Eugene Tayactac, the amounts of P50,000 as civil
indemnity and P50,000 as moral damages.

3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder
under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and are hereby sentenced to
suffer an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as
maximum. The appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount
of P25,000 as moral damages and P10,000 as temperate or moderate damages.

Costs de oficio.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.

4 PEOPLE V CA AND TANGAN

FIRST DIVISION

[G.R. No. 103613. February 23, 2001]

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C. TANGAN, respondents.

[G.R. No. 105830. February 23, 2001]

ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

DECISION

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 Generosos way, causing him to swerve to the right and cut Tangans 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-turn. 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 Tangans car, Generoso loudly retorted, Putang ina mo, bakit mo ginigitgit ang sasakyan
ko? Generoso and Tangan then exchanged expletives. Tangan 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 T-shirt 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[9] 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 quos 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 courts 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 excused from filing a
comment to Tangans 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 courts
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 formal 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 Generals 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 Tangans 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 self-defense 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 courts 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 self-
preservation.[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 Tangans 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, Generosos 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. Tangans 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 victims 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 victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial
expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
5 PEOPLE V FERNANDEZ

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. L-32322-23 January 27, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO FERNANDEZ Y JOCSON @ "EDDIE FERNANDEZ", ANTONIO ANTIDO Y BALATUCAN @ "TONY BAGYO",
ROBERTO LABRA Y SANTOS @ "BERTING LABRA" and BENJAMIN BARCELONA Y JUNGCOdefendants- appellants.

BARREDO, J.:

Appeal taken by the accused Eduardo Fernandez y Jocson alias "Eddie Fernandez", Antonio Antido y Balatucan
alias "Tony Bagyo", Roberto Labra y Santos alias "Berting Labra" and Benjamin Barcelona y Jungco from the
judgment of conviction for murder and frustrated murder rendered against them by the Circuit Criminal Court,
Seventh Judicial District, Pasig, Metro Manila, in its Criminal Cases Nos. CCC-VII-363-Q.C. and CCC-VII-367-Q.C.

In Criminal Case No. CCC-VII-363-Q.C., the above-named accused were charged with MURDER in an information
reading as follows:

That on or about September 17, 1969 in Quezon City, Philippines, the above-named accused, conspiring together,
confederating with and mutually helping one another, with intent to kill and without any justifiable motive, with
evident premeditation and with treachery, and by taking advantage of their superior strength, did, then and there,
willfully ,unlawfully, and feloniously attack, assault and employ personal violence upon the person of one RENATO
PANGILINAN y PANGILINAN, by then and there firing at and shooting said RENATO PANGILINAN y PANGILINAN with
different kinds of firearms which the accused had with them at the time, hitting the said victim on the chest,
inflicting upon him serious and mortal injury which was the direct and immediate cause of his death, to the damage
and prejudice to the heirs of the said RENATO PANGILINAN y PANGILINAN in such amount as they may be entitled to
under the provisions of our existing laws.

Contrary to law.

In Criminal Case No. CCC-VII-367-Q.C., the same accused were likewise indicted for FRUSTRATED MURDER in a
separate information with the following allegations:

That on or about September 17, 1969 in Quezon City, Philippines the above-named accused, conspiring together,
confederating with and mutually helping one another, with intent to kill and without any justifiable motive, with
evident premeditation and with treachery, and by taking advantage of their superior strength. did, then and there
willfully, unlawfully and feloniously attack, assault and employ personal violence upon one APOLINARIO LOPEZ y
LACSAMANA, by then and there firing at and shooting the latter with different kinds of firearms which the accused
had with them at the time, hitting said APOLINARIO LOPEZ y LACSAMANA on the chest, causing him to sustain
serious and mortal injuries, the above-named accused thereby performing all the acts of execution which would
produce the crime of MURDER as a consequence, but which nevertheless was not produced by reason of causes
independent of their will, that is, the timely intervention of medical science, to the damage and prejudice of the said
APOLINARIO LOPEZ y LACSAMANA in such amount has he may be entitled to under the provisions of our existing
laws.

Contrary to law.
Arraigned on said informations, all the accused entered separate pleas of "not guilty" to both charges. As the two
cases arose from a single occasion and under the same circumstances, a joint trial thereof was conducted by the
trial court, at the conclusion of which it rendered the abovementioned judgments of conviction with the following

WHEREFORE, in Case No. CCC-VII-367-Q.C., the Court finds the accused, namely: Eduardo Fernandez, Antonio
Antido, Benjamin Barcelona and Roberto Labra, all GUILTY, beyond reasonable doubt of the crime of frustrated
Murder, under Article 248 of the Revised Penal Code, in relation to Article 50 thereto, as charged in the information,
and hereby sentences each one of them to suffer an indeterminate penalty of, from EIGHT (8) YEARS AND ONE (1)
DAY, of prision mayor, as minimum, to SEVENTEEN (17) YEARS AND FOUR (4) MONTHS, of reclusion temporal as
maximum; to pay the victim Apolinario Lopez, the amount of Ten Thousand Pesos (Pl0,000.00) as moral damages,
and another Ten Thousand Pesos (Pl0,000.00) as exemplary damages, and to pay their proportionate share of the
costs.

In Criminal Case No. CCC-VII-363-Q.C., the Court finds the accused, namely: Eduardo Fernandez, Antonio Antido,
Benjamin Barcelona and Roberto Labra, all GUILTY, beyond reasonable doubt of the crime of Murder, under Article
248 of the Revised Penal Code, as charged in the information, and hereby sentences each one of them to suffer the
penalty of DEATH; to indemnify the heirs of the deceased Renato Pangilinan, the amount of Twelve Thousand Pesos
(Pl2,000.00), to pay Twenty Thousand Pesos (P20,000.00) as moral damages and another Twenty Thousand Pesos
(P20,000.00) as exemption damages to pay their proportionate share of the costs.

The prosecution's theory of what allegedly happened in this case, as purportedly portrayed in the direct testimonies
of its main witnesses Rosanna Ortiz, Hilario Sigua, Fernando Despo and Apolinario Lopez, is substantially thus:

On September 17, 1969, there was a location shooting of the motion picture "Ako Ang Sasagupa" in the house of
one Mr. Nasal at Biak-na-bato Street, Quezon City. Among those cast in the said story were accused Eduardo
Fernandez who was playing the leading man's role, Rosanna Ortiz (Violeta Orbeta in real life) starring as the leading
lady, and accused Roberto Labra who was cast in a secondary role.

Between 4:00 and 5:00 o'clock that afternoon, while the said location shooting was in progress, Renato Pangilinan
(the deceased) together with his driver Apolinario Lopez and another companion, Hilario Sigua, arrived at the place
purportedly to see Rosanna. Only Pangilinan and Sigua went inside the Nasal residence; Lopez stayed behind near
Pangilinan's car. Upon being told of their arrival, Rosanna came out and introduced them to Eduardo Fernandez and
Roberto Labra, among others. After the introductions, Rosanna resumed her shooting scenes inside the house,
leaving Pangilinan ang Sigua with Fernandez and Labra and some other members of the filming crew who were
doing their chores about the place. As Fernandez and Labra were then drinking White Horse Whiskey they invited
Pangilinan and Sigua to join them, which the latter two did.

While they were thus drinking and conversing, Fernandez, who by then appeared to be feeling the effects of the
drinks, voiced his resentment about Rosanna's having caused delay in their location shooting that day, saying that
she arrived only at about 2:00 o'clock despite she knew that the same was scheduled in the morning. After such
outburst, however, the conversation continued normaly. Fernandez and Pangilinan even talked about producing
films together, as they continued drinking.

Meanwhile, a telephone call was received at Precinct I of the Quezon City Police Department at Mayon Street
relaying the information that a group of men carrying firearms was in the Nasal residence at Biak-na-bato and,
shortly thereafter, two policemen in plain clothes arrived thereat. They introduced themselves and announced to
those present in the house their purpose in coming, i.e., vis-a-vis the call they received at the precinct, whereupon
Eduardo Fernandez stood from his seat, raised his shirt saying. "Ako pare, walang dala, sila meron", (I, friend, have
nothing with me, they have.) pointing at Pangilinan and Sigua. Pangilinan ang Sigua readily admitted to the peace
officers that they indeed were carrying firearms, albeit they reasoned out that the same were duly licensed- Just the
same, the duo were invited by the policemen to go with them to their precinct at Mayon Street for the verification
of their licenses. And so, Pangilinan and Sigua, as well as the former's driver,Lopez, went along with the peace
officers to the police precinct.

Thereat, while the desk officer was verifying the authenticity of the licenses of the guns presented by Sigua and
Pangilinan, the group of Fernandez, Labra, Rosanna, Sylvio, Ramiro their film director, and their driver, accused
Antido, arrived in a jeep. Rosanna Ortiz had requested Fernandez and his companions to accompany her to the
police precinct in order to help Pangilinan and Sigua in clearing the problem of their guns. And after a few minutes
of conversation in the conference room of the precinct among Pangilinan, Fernandez and the policemen, the
questioned guns were duly verified and cleared. Pangilinan and Sigua tarried a while inside the conference room of
the precinct waiting for the final release of their guns, while Fernandez and his group, including Rosanna Ortiz,
boarded the same jeep they rode in going there, evidently to go back to their location shooting.

At this juncture, Rosanna heard Fernandez ordering the jeep driver "Kunin mo ang mahaba" as he (Fernandez) got
off the jeep and walked back to the precinct. Rosanna followed Fernandez. However, when saw Rosana that
Pangilinan and his group were already coming out of the precinct, she did not go back to the jeep but instead went
to ride in Pangilinan' s car, after the latter consented to take her back to the location shooting. she occupied the
back seat on the right side of the car. Pangilinans also occupied the back seat on the left side, side Rosanna. Lopez
occupied the driver's seat, while Sigua took the front seat on the right beside, beside the driver and in front of
Rosanna.

From the police precinct at Mayon Street, the car left with Pangilinan- Rosanna, Sigua and Lopez on board, followed
by Eddie Fernandez and his companions riding in their jeep a while after. The car cruised along Mayon Street, but
instead of proceeding towards Biak-na-bato or the scene of the location shooting, the car turned right on A.
Bonifacio Street, apparently heading for Manila. Fernandez and his companions followed suit. But the car came to a
full stop when it reached the vicinity of a gas station on A. Bonifacio Street near the Manila-Quezon City boundary
because there was a heavy traffic jam and at this juncture, Eddie Fernandez and his group alighted from the jeep
and surrounded the car of Pangilinan. Eddie Fernandez armed with a pistolized carbine, approached the car from
the right side. Berting Labra and Antonio Antido, also with drawn guns, went to the left side, while Benjamin
Barcelona, who had been in the precinct during the vacation of the permits for the guns of Pangilinan and Sigua also
with a drawn firearm positioned behind behind the back of the car. From a distance of about one and a half (1-1/2)
meters from the right side of the car, Eddie Fernandez pointed his pistol carbine at the occupants thereof and
warned them: "Walang kikilos sa inyo, ang kikilos tatamaan". As the glass of the window on the right side of the car
was then open, Rosanna saw and heard Fernandez, and she pleaded to him, "Eddie, huwag, Eddie" (Eddie, don't,
Eddie). Likewise, Hilario Sigua quipped. .'Huwag, pare, hindi kami kalaban (Don't, friend, we will not fight.) In spite of
such pleas from Rosanna and Sigua, however, Eddie Fernandez, Antonio Antido, Roberto Labra and Benjamin
Barcelona fired at the occupants of the car almost simultaneously from the right and left sides of the car and from
behind, where they had respectively positioned themselves. The glass of the left side window of the car which was
then closed was completely shattered, while the glass on the rear was also broken. According to witness, PC Major
Crispin Garcia, there was a bullet hole at the center of the rear or back glass of the car. Renato Pangilinan was hit
with a bullet in the left chest. Apolonio Lopez received a gunshot wound in his upper left chest too, while Hilario
Sigua was wounded on his right hand between the thumb and the forefinger. As a result of the wound he received,
Renato Pangilinan slumped on Rosanna's lap, and the latter, upon realizing that Pangilinan was hit and was bleeding,
immediately ordered Lopez, the driver of the car, to move the car out of the place and proceed to the Chinese
General Hospital. Pangilinan 's wound proved to be fatal; in fact, he was pronounced dead on arrival at the hospital
Lopez survived after the gunshot wound in his chest was operated on, although he was confined therein for several
days and had to return thereto from time to time thereafter for further medical treatment. Sigua's minor wound in
his right hand required but little medical attention.

Importantly, the prosecution's own evidence (the testimonies of the police investigators) also proves that
immediately after the shooting just narrated, accused Fernandez was brought to the National Orthopedic Hospital
later transferred to the V. Luna General Hospital where he was treated and operated on for two gunshot wounds
and still later moved to the Quezon Medical Center where he was operated on again and a metallic substance
admitted to be part of a bullet of a. 32 caliber gun was found and extracted from his body by no less than Captain
(Dr.) Arnold Gruspe who had previously treated and operated on him at V. Luna General Hospital Surprisingly, there
is hardly any mention of this important evidence in the decision of the trial court.

Now, before Us, the common gripe of herein accuses in their separate briefs is that the trial court erred in rejecting
entirely the evidence in support of their individual defenses, and, instead, convicted them of Murder and Frustrated
Murder by relying solely upon the testimonies of the eye-witnesses for the prosecution despite, they claim, that the
same whether taken separately or together, suffer from fatal defects. In effect they all conclude that assessing all
the evidence presented at the trial wholly and impartially, their supposed guilt had not been proven beyond
reasonable doubt.

II

Indeed, it can be said that at first blush the above narration of the People's version of what happened on the
occasion under inquiry would, in fairness to the efforts of the prosecutors, likely persuade one to accept the theory
alleged in the information aforequoted that all the accused did, in conspiracy with each other, fire with their
respectively held guns at the deceased Renato Pangilinan and his companions, Rosanna Ortiz (Violets Orbeta),
Apolonio Lopez and Hilario Sigua, and also, that inasmuch as said accused, four in number, were all armed on said
occasion they may be deemed to have acted as a band.

On the other hand, even a cursory perusal of the same version, however, readily reveals that the "evident
premeditation, treachery and taking advantage of superior strength" expressly alleged as qualifying circumstances
to raise the offenses charged against the accused to murder and frustrated murder were not present in the shooting
that resulted in the death of Pangilinan and the serious and very light injuries suffered by Lopez and Sigua,
respectively. As a matter of fact, the Solicitor General himself concedes in his brief that "whether or not treachery
and superior strength may be considered as aggravating (sic) circumstances in the above-entitled cases should be
resolved in the negative. " (p. 48, Appellee's Brief, Italics Ours) Without in anyway agreeing fully with the inculpatory
parts thereof pinning down herein accused, but just to point out even at this outset, that to speak of murder and
frustrated murder in these cases should immediately be ruled to be juridically inaccurate, We quote from the
People's brief:

The claim of appellants that treachery cannot be decided in the absence of means, methods and forms which tend
directly and specially to insure the execution of the offense seems tenable. While it is true that the strategy of
appellant Fernandez in reporting Pangilinan and his group to the Police was designed to divest the victims of their
possession of firearms in order to render them defenseless against the contemplated attack, their purpose had not
been realized as the victims were released by the police without their arms confiscated. Therefore, the scheme
preparatory to the execution of the intended killing to insure appellants against risks apparently only exposed their
intentions and warned the victims thereof.

In fact, the disclosure of appellants' criminal intent to the victims even became evident when Rosanna Ortiz who
rode with the deceased Pangilinan overheard appellant Fernandez ordering, " Kunin mo ang mahaba " (t.s.n. p. 20,
May 12, 1970, Orbeta) which was meant for a long firearm. More than this, Sigua, another victim, naturally would
have placed himself on guard for the worst when he noticed Fernandez tucking his gun on his waist while the latter
and three other companions were on board the jeep that followed Pangilinan's car (t.s.n., p. 19, May 12, 1970,
Sigua). And yet, after appellants had surrounded their victims inside the car, the element of surprise was certainly
not taken advantage of, since Rosanna and Sigua still had time to remonstrate with Fernandez (t.s.n., pp. 36-39, May
12, 1970, Orbeta).

On the basis of the above-mentioned facts and contrary to the observations of the trial court, the execution of the
crimes was, therefore, carried out with risk from any possible defense which the Pangilinan group might have
offered. It is significant to note that in spite of the tactical advantage afforded to appellants in cordoning their
adversaries, these victims were not entirely helpless as they were indeed armed with two (2) pistols and a revolver
(t.s.n., pp. 1081 10, April 24, 1970, Sunico; pp. 46-49, May 13, 1970, Vinas).
There is no question that appellants deliberately endeavored to adopt means or forms in order to insure the
execution of the crimes without risk to themselves arising from the defense which the offended party might make
but obviously, the method resorted to did not provide appellants complete safety against any defensive or
retaliatory act from their victims, which means that no opportunity is given the latter to do so. The requirements,
therefore, of the existence of treachery as contemplated by Article 14, paragraph 16 of the Revised Penal Code was
not met in these cases.

Thus, the attack may be sudden, but if there is no showing that the victims were not completelydenied an
opportunity to prepare and repel or avoid that attack ... (People vs. Pengzon 44 Phil. 224; People vs. Sagayno, L-
15961-62, October 31, 1963; People vs. Glore, 87 Phil. 739, emphasis supplied) it would be erroneous to make a
finding that the offense was committed in a treacherous manner.

With respect to the aggravating circumstance of abuse of superior strength, the fact that the victims were also
armed as borne by evidence, to this effect is self-explanatory to negate the findings of the lower court that this
circumstance was present. In this regard, the contention of the four (4) appellants that the facts were insufficient to
consider abuse of superior strength as an aggravating circumstance in the instant case, is, perhaps well taken as the
consideration of this circumstance must depend upon the relative strength of the one attacking and the one
attacked (People vs. Bustos, 51 Phil. 385). (emphasis supplied) (Pp. 45-48, People's Brief)

But the prosecution nevertheless insists that evident premeditation has been proven. It argues that:

In the case of People vs. Belen, L-13895, September 30, 1963, the Supreme Court held that the existence of
conspiracy presupposes evident premeditation and in the case of People vs. Cadag, L-13830, May 31, 1961, the
same Court ruled that for conspiracy to exist, it does not require an agreement for an appreciable period prior to the
occurrence.

The above-mentioned cases are relevant to overcome appellants' view that where it appears that they had only
about half an hour for meditation and reflection, the same is insufficient in the juridical sense to establish evident
premeditation as contemplated by law. While it is conceded that the jurisprudence on appellant's claim conforms
with the requirement that there must be a period sufficient to afford and allow the conscience of the wrongdoers to
overcome the resolutions of their will, this defense cannot apply in the instant cases. As borne out by the evidence,
the premeditation of appellants to carry out the desired consequences of their collective acts appears to have begun
from the time the, deceased Renato Pangilinan and his group arrived at 5:00 P.M. on September 17, 1969, at Biak-
na-Bato where the location shooting of the picture "Ako Ang Sasagupa" was being filmed (p. 5, Appellant
Fernandez's brief). The crimes in question actually took place at 7 o'clock in the evening of the same date or two
hours, thereafter (t.s.n., p. 40, May 13, 1970, Vinas ).

The claim of appellant Fernandez that 'until the moment that Fernandez arrived at the Police Precinct, he has no ill
feeling as yet towards Pangilinan' p. 20, Appellant Fernandez's brief) is consistent with the records for his decision to
get rid of Pangilinan apparently came about when the latter and his companions arrived at 5:00 P.M. to visit
Rosanna Ortiz. Such intention is evident from the fact that he was not only angry with Rosanna at the moment but
also had caused Pangilinan and his companions to be disarmed by the police in order to insure the realization of the
desired liquidation without the least resistance from the victims. The argument of Fernandez that the trial court
found him to have decided to eliminate his rival came only when Rosanna rode with Pangilinan in his car is
untenable. What the court simply meant here was that because Rosanna Ortiz went with Pangilinan sitting herself at
the back seat of the car beside Pangilinan, the decision to liquidate victims even became firmer. Indeed, the
situation of Fernandez's being left behind, aggravated his embarrassment. On the basis of the above circumstances,
it is obvious that the decision of Fernandez to eliminate his rival was actually effected at 5 o'clock that afternoon,
when Pangilinan's group arrived.
Thus, between the time the intended killing was hatched, and the time it was actually carried out at about 7:00 P.M.
(t.s.n., p. 40, May 13, 1970, Vinas is some two (2) hours in duration. All appellants, therefore, had been afforded
more time, sufficient enough to reflect on the evil character of their acts, before the same were executed. The
contention of the accused that there was an absence of evident premeditation, since they had only about half an
hour or less for meditation and reflection to overcome the resolution of their wills is completely devoid of basis in
fact.

The decisions of this Court on this issue support the existence of evident premeditation. And so, it has been held
that premeditation is present where there was a lapse of two hours from the inception to execution (People vs.
Hanasan, L-25989, September 30, 1969; People vs. Pajenado, L-27680, February 29, 1970). (Pp. 42-45, People's
Brief.)

We do not agree. Trite to say, in a prosecution for murder, the qualifying circumstance must be proved beyond
reasonable doubt, like the killing itself, and in the instant cases, We find it difficult to conclude with moral certainty
that the testimonies on record show evident premeditation on the part of the accused, even if We looked
exclusively at the evidence of the prosecution, disregarding entirely that of the defense.

Reading between the lines, the basic assumption of the People, albeit it has not spelled it out expressly in its brief, is
that some kind of intimate amorous relationship was already existing that fatal afternoon between Rosanna and
accused Fernandez, or, at least, that the said accused must have been nursing some deep affection for her, so
intense as to make him furiously jealous of anyone who would also fall for her, hence, instantly, upon coming to
know Pangilinan and sensing somehow that Rosanna seemed to show unusual fondness not to say preference for
the new arrival, then and there, there arose immediately within him a determination to eliminate the latter by
killing him that very day. It is to emphasized, though, that all these are just conjectures to give some flesh to the
theory of evident premeditation of the prosecution.

What , on the other hand, to Us appears to be more proximate to the truth that stands out from the record is that
there is not a bit of evidence therein indicating anything of such feeling between Rosanna and Fernandez. To be
sure, what Fernandez was shown to have felt for Rosanna then was obvious anger, not because of any reason
having to do with love, but because she arrived almost half a day late for the shooting schedule of the film they
were co-starring with each other in, And he made no secret of the reason for his anger in his talk with Pangilinan,
even as he cooled down later and turned their conversation to the filming business, to the extent of their talking
about the possibility of co-producing a film together. These facts are proven beyond doubt by the People's own
evidence.

It is also theorized by the prosecution that it was at the instance of Fernandez that, while he and Pangilinan were
talking and drinking together, two Quezon City policemen arrived at the Nasal residence with the objectives, first, of
checking on whether or not the "location shooting" had the corresponding permit, and second, to follow up an
alleged telephone report received at the Precinct No. 1 that there were persons in that house with unlicensed or
illegal firearms. And just because Fernandez, according to Sigua, had instructed a certain Roger to call up Police
Precinct No. 1, and upon arrival at the Nasal residence of two Quezon City policemen,. Fernandez promptly
remarked that, 'Ako, pare wala, sila (referring to Pangilinan and Sigua) meron", it is claimed that Fernandez wanted
Pangilinan and his companion, whom he saw had guns, disarmed thereby facilitating his (Fernandez') then
instantaneously conceived plan to kill Pangilinan.

In this connection, We have already said We Cannot perceive in the record any evidence that could have suddenly
motivated Fernandez to incubate in his mind any Idea of doing away with Pangilinan. And what, to Our mind,
negates completely, the probability of such a dastardly intent is that according to the prosecution's own evidence,
Fernandez did his bit, in helping in the clearing of Pangilinan and Sigua's possession of their guns, even going to the
extent of boasting about his connections with the then Mayor of Quezon City, the late Hon. Norberto Amoranto,
and of spending P1,000.00 just to clear up matters with the policemen at the precinct. It is to Us beyond belief that a
person harboring an intent to kill would take the trouble of seeing to it that his intended victims were armed or
rearmed, Pangilinan with a powerful Browning 9 mm. auto pistol (p. 86, Record), and Sigua, with a .32 caliber nickel
revolver.

Withal, it is also to be wondered that whereas, according to the trial court, Sigua claimed he heard Fernandez
"called and ordered one Roger to 'Roger, tumawag ka sa Presinto Uno, sabihin mong may mga dalang baril ang mga
taong ito', " (p. 38-A, Decision, annexed to brief for Fernandez) it does not appear that Sigua did anything at all in
the face of such obviously alarming directive of Fernandez. Normally, he should have immediately told Pangilinan
about it and they could have explained to Fernandez that they had the appropriate licenses and permits therefor.
Such omission, We are inclined to believe, makes the supposed giving of any such order by Fernandez rather
doubtful.

Otherwise stated, We entertain serious doubt that there is any fact duly demonstrated in the record indicating why
Fernandez could have entertained then any premeditated desire to kill Pangilinan. The contention of the Solicitor
General that the act of Rosanna, upon coming out from the precinct, of going instead with Pangilinan in his car, after
she was already in the jeep with Fernandez and their other companions, must have so embarrassed Fernandez as to
induce him to conspire then and there with. his co-appellants to liquidate Pangilinan and his companions, is to Us a
rather stained theory, hardly probable in the ordinary course in the human experience. We cannot accept the same
as proof beyond reasonable doubt of something indicative of evident premeditation, considering the other details
extant in the record. If at all, what seems more reasonable to believe is that, under the circumstances, what must
have seized Fernandez was a suspicion, which turned out to be correct, that Rosanna would not go back to the
location shooting, causing him to be more angry at her for bungling and muddling their film work, thereby disrupting
in consequence his own schedule of other commitments. To Our mind, even his being that angry with Rosanna could
not have provoked him to kill anyone, much less Pangilinan.

We hold, therefore, that if the death of Pangilinan and the wounding of Lopez and Sigua, may ultimately be
attributed to appellants, as unjustified and unprovoked - the crucial question We shall deal with anon - the same
was not the result of evident premeditation, much less of treachery and use of superior strength as alleged in the
information against herein accused. As a matter of fact, in arriving at this conclusion, We do not even have to adopt
any degree of liberal attitude, dictated by the constitutional presumption of innocence, in favor of the appellants
herein. We only have to take a hard look at the evidence of the prosecution, as We are commanded by the law, and
not depend on any possible weakness in the evidence of the accused in criminal cases. It is quite plain to Us that, at
the most, taking into account, particularly, the shortness of the time that intervened between the events
emphasized by the People, on the one hand, and the actual shooting incident, on the other, which could not have
been more than half an hour, the probability that the four accused to have talked and deliberated on killing anybody
is most remote, what We can hold herein accused guilty of cannot be more than homicide and frustrated homicide.

III

Corollarily, the decisive issue that comes up, at this juncture is whether or not, viewing the matter before Us as a
whole in the light of the evidence of both the prosecution and the defense, such homicide and frustrated homicide
have been proven beyond reasonable doubt to be unprovoked and unjustified. As importantly, we have to
determine whether all the four accused now before Us or only some of them should be held responsible or hable in
the premises.

To begin with, it may not be amiss to bring out, at this point, the fact that reading the trial court's decision,
extending to 84 pages and rather detailed, the same appears to Us not to be entirely free from the possible
influence of some unfavorable impressions His Honor had been apparently entertaining inwardly even before the
trial began against actors and actresses in our movieland. Quite candidly, he could not hide such feeling in his
decision. Without any evidence at all presented to such effect, this is how he pictured them:

It is a sad commentary but nonetheless a glaring truth that we have been witnesses to many incidents of the past
where movie folks are in constant banner headline for their mischiefs in public, as well as private life. They seem to
have that unsatiable quest of getting entangled in deadly brawls, acting as though they are those notorious bandits
or rapacious pillagers ordinarily depicted on the screen. They lived as captives of their misguided illusions, exhibiting
the stance of being the untouchables, unconquerables, equal to none and unafraid to no one.

With respect to women actresses and starlets by their loose morals, conduct and behavior, they have gained that
common reputation as ruthless wreckers of decent homes and families, contributing to the already troubled society,
in destroying the basic foundation of our democratic institution, the home. They defy even the basic element of
decency inherent to Filipino womanhood, by parading themselves openly in public with nose high up and
disgustedly with false pride for the whole world to know, in the company of men with burden of responsibilities.
(Pp. 113-114, Vol. I, Record.)

We are not saying that His honor actually prejudged the case against accused movie actors Fernandez and Labra,
only because they are movie stars, but, certainly, it is difficult to assess how much actually was the degree of undue
influence the bad image he had spontaneously portrayed of movie actors and actresses might have swayed him to
unwittingly yield to an irresistible impulse to make movie figures learn a lesson or two from him in these cases. We
are apprehensive that to some extent his judicial eyes might have somehow been blurred by such prejudice, hence
his manifest deviation from the straight norm of judicious decision-making.

Furthermore, We note too that knowing, as he ought to have known, that technically, certain facts quite unsavory
about the appellants, are in law immaterial and could not affect the decision, still His Honor made it of record that:

In a report submitted by the Manila Police Department which is already a part of the records of this case, Fernandez
has been previously indicted of the following criminal offenses: Murder, in Criminal Case No. 4972 before the Pasay
City Court of First Instance; Slight Physical Injuries, in Criminal Cases Nos. 12094 & 12095 of the Municipal Court of
Paranaque, Rizal; and Grave Threats, in C Case No. 12093 before the Municipal Court of Paranaque, Rizal Accused
Antonio Antido in the same report, was previously convicted for Concealment of Deadly Weapon and indicted for
Attempted Murder, Grave Threats and Illegal Possession of Firearm and Ammunitions, on complaint of one Nilo
Calpe of the Tamaraw Studio, Inc. (Page 115, Vol. I, Record.)

The Solicitor General himself points out that such considerations ought to have been disregarded:

In the case of appellant Fernandez, the report submitted by the Manila Police Department that he has the following
criminal records:

'a) Murder, in Criminal Case No. 4972 before the Pasay City Court of First Instance; b) Slight Physical Injuries, in
Criminal Case Nos. 12094 & 12095 of the Municipal Court of Paranaque, Rizal; and c) Grave Threats, in Criminal Case
No. 12093 before the Municipal Court of Paranaque, Rizal'.

cannot be considered for the purpose of aggravating his criminal liability as a recidivist. The certificate of the Chief
of Police of the City of Manila showing that appellant Fernandez has been indicted of an offense is not the best
proof (People vs. Ong Chiu, 28 Phil. 242) and it cannot be assumed that such indictment ripened to final conviction,
more so, when appellant as in this case objected for the consideration of the same (Third assignment of error,
Fernandez).

It likewise appears in said report submitted by the Manila Police Deparment to the trial court and which now forms
part of the records of the case that appellant Antido was previously convicted for concealment of Deadly Weapon
and indicted for Attempted Murder, Grave Threats and Illegal Possession of Firearm and Ammunitions. While the
conviction of herein appellant for concealment of Deadly Weapon was already final during the trial of the above
entitled cases, yet recidivism as an aggravating circumstance cannot be considered against this appellant, since the
former conviction is not embraced in the same title of the Penal Code as the offense he has been prosecuted herein.
This being the case, the report bearing on the criminal records of appellant Antido did not, therefore, aggravate his
criminal liability in the cases at bar. (Pp. 53-54, People's Brief.)

Bearing in mind such out-of-place expressed perspectives of the trial judge, We do not wonder why there is a
notable dearth of appropriate attention given in the decision under review to the very important and vital
unrebutted evidence that aside from Pangilinan, Lopez and Sigua, accused Fernandez himself suffered gunshot
wounds on the occasion in question. Fernandez testified that as he approached the car of Pangilinan unarmed and
was merely asking Rosanna why they were going towards the direction opposite the site of the "location shooting"
they had not yet finished a most normal thing for anyone in his place would have done as co-star in the picture
then being prepared by both of them Pangilinan got angry, and told Sigua: "Talagang asar and taong ito, tirahin
mo na Totoy (Sigua)", whereupon Sigua took his nickel plated .32 caliber revolver from his side and fired at
Fernandez about four times; that Fernandez was actually hit and fell in a canal where he lost consciousness which he
regained only at the National Orthopedic Hospital from where he was transferred later to the V. Luna General
Hospital where he was treated for his two (2) gunshot wounds, one of them through and through at the left chest
and the other in the abdomen wherein part of a bullet was observed to be lodged, until it was removed at the
Quezon City Medical Center thru an operation undertaken by no less than Captain Arnold Gruspe the very surgeon
of the V. Luna General Hospital who had earlier attended to him thereat on the same night of September 17, 1969.
(Exhibit 6, Fernandez, t.s.n., pp. 18-24, May 28,1970.)

Most importantly, it is beyond Our comprehension why the trial judge paid no heed at all to the testimonies of
Major Constantino Leyva of the Philippine Constabulary and Domingo G. del Rosario, Assistant Chief of the Ballistic
Division of the NBI leading almost to a point of certainty that the,. deformed slug extracted from the body of
accused Fernandez by Capt. Gruspe surgeon of V. Luna Hospital was fired from the .32 Caliber gun of prosecution
witness Sigua.

Strangely, all that the trial judge remarked about those wounds of Fernandez was:

The defense has attached much significance to the findings of the National Bureau of Investigation that the lead
bullet taken from the body of Eddie Fernandez has markings indicating that it came from Exhibit M-3 the firearm
issued in the name of Hilario Sigua in order to bolster the claim that Eddie Fernandez did not fire a gun and that it
was the group of Pangilinan who were the aggressors. It will he noted however, that this is contrary to the findings
of the ballistician of the Philippine Constabulary to the effect that no definite conclusion can be made as to whether
or not the specimen, a .32 caliber deformed lead was fired from the exhibit firearm due to insufficient individual
characteristics. Of significant value and very relevant to the point at issue is the admission of defense witness, Dr.
Arnold Gruspe the principal attending physician of Eduardo Fernandez, that the lead bullet taken from the body of
Eddie Fernandez was examined by members of the family of Fernandez, and that he entrusted the same to Jose
Samson, the owner-administrator of the Quezon City Medical Center, and that the latter was the one who
submitted the lead bullet to the authorities for examination. From this circumstance, the danger and possibility of it
being substituted or tampered with is not at an remote or improbable, but on the contrary, it is very probable.
Corollary to this is the finding that Lopez, Sigua and Pangilinan were all found to be negative of powder burns,
whereas, Fernandez, Antido and Barcelona were found positive for powder burns, corroborating prosecution's
theory that they fired their guns against Pangilinan's group. Though Labra was found negative of powder burns, it
does not necessarily follow that he did not fire a gun for considering the make of gunpowders nowadays, powder
nitrates could be easily removed through the use of chemicals. (Pp. 108-109, Vol. I, Record.)

This, when even the witness who deserved an ecomium from the judge, albeit he did not see the actual shooting
incident but allegedly only the incidents thereafter, the thirteen year-old Fernando Despo, testified that he saw
Fernandez was being helped or aided by allegedly, his co-accused Labra, to a jeep behind another car that was
following Pangilinan's Mercury Cougar and that Fernandez "fell at the back of the jeep." (pp. 129-130, t.s.n., May 12,
1970.)

It is quite lamentable from the juridical point of view that, under the circumstances just discussed, the trial court
gave very little thought to the testimony of Fernandez in his defense. To be sure, Fernandez did not exactly try to
prove self-defense, because he denied being armed, thus claiming to be the victim of an offense rather than the
aggressor. But even if he were armed and had in fact fired a gun, what is undeniable is that he was himself injured.
Such a vital circumstance should have deserved due attention from His Honor as vital factor in assessing his guilt or
innocence. In a shooting incident where both opposing parties are injured, it is incumbent upon the trial judge to
weigh the conflicting versions of the protagonists in order to pinpoint as far as it is humanly ascertainable who in
fact started the shooting, what provoked the same and why, and whether or not the means employed in repelling
the aggression by either of them was justified. This is specially true in the instant cases where His Honor saw fit to
impose upon the accused Fernandez and Labra, against whom he visibly had bad impressions as movie stars, the
extreme penalty of capital punishment.

To reiterate, in the final analysis, the ultimate and pivotal issues We have to resolve here and should have been
thoroughly assayed by the trial court are: (1) whether or not the accused Fernandez and Antido, who admitted
presence at the scene of the offense charged acted in self-defense, and, (2) as to those who denied their presence
thereat, namely, Labra and Barcelona, whether or not their pretended alibi could be given sufficient credit to entitle
them to acquittal.

IV

Conceded as it must be, the evidence thereof being unassailable, that in the evening in question, Renato Pangilinan
died in his car, of gunshot wounds without his being able to use the powerful Browning 9 mm. auto-pistol he had
with him then, the central point to determine is who shot him and how. In this respect, and at the risk of repeating
an earlier reference to the four witnesses testified for the prosecution, namely, (1) Rosanna Ortiz (Violets Orbeta -
referred to herein only as Rosanna), (2) a 13-year old boy named Fernando Despo, (3) Hilario Sigua, the companion
of Pangilinan and (4) Apolinario Lopez, the driver of Pangilinan who at the time of the incident was the one actually
driving the fatal car.

Rosanna, Sigua and Lopez declared uniformly that as Pangilinan's car was stopped by a traffic jam near the comer of
A. Bonifacio and Blumentritt Streets, almost at the boundary line of Manila and Quezon City but still within the
territorial jurisdiction of the latter, they were surrounded by armed men, one of them definitely the accused
Fernandez, and that after a brief warning from said accused, who allegedly was aiming a pistolized carbine at all four
of them who were in the car, "Walang kikilos sa inyo, ang kikilos tatamaan," and Rosanna and Sigua had pleaded to
him not to harm them, hell broke loose, there was a flurry of gunshots, at the wake of which Pangilinan slumped
wounded on the lap of Rosanna, Lopez was also hit in his upper left chest while Sigua was slightly wounded between
the thumb and forefinger of his right hand. Rosanna was unhurt.

Despo did not see the actual shooting. He heard gunshots while he was at the Shell gas station on the opposite side
of A. Bonifacio street. To quote from the pertinent portions of his testimony:

Q While you were there at that particular hour (that) date (at seven o'clock in the evening), can you tell the Court if
there was anything unusual that happened?
A There were gunshots.
Q Where?
A At the other side of the road at A. Bonifacio Street.
Q And what did you do after you heard those gunshots?
A I climbed the top of a truck. (Pp. 122-123, t.s.n. May 12, 1970 )
xxx xxx xxx
Q You climbed on the truck. because you were afraid?
A Yes, sir.
Q And what did you do?
A On top of that truck I looked around because I thought there was a shooting.
Q Shooting film?
A Yes, sir. (P. 145, Id.)
xxx xxx xxx
Q What did you see?
A I saw Eddie Fernandez and Berting Labra.
Q Where did you see Eddie Fernandez and Berting Labra ?
A I saw them in a black car.
Q Inside or outside the car?
A Outside the black car.
Q And this car was running or in a stop position?
A It was in a stop position.
Q Do you know why the car was in a stop position?
A Because there was a traffic jam.
Q Where, in what portion of the car did you see Eddie Fernandez?
A I saw him at the right side of the car.
Q This Eddie Fernandez, can you point to him now?
A Yes, sir. (witness pointing to the man with green shirt who upon being sked, answered by the name of Eddie
Fernandez, the accused accused)
Q How about Berting Labra you mentioned, where was he?
A He was at the left side of the car.
Q What were they doing when you saw them?
A I saw them at the left and right side of the car hiding thru a passenger's jeep and then they went away.
Q That was immediately after you heard the gunshots?
A Yes, sir.
Q Do you know if any of them was holding anything?
A I saw Eddie Fernandez only holding something this length of one foot.
Q What was Eddie Fernandez?
A It was a gun, a long gun. (witness demonstrating a length of about one foot)
Q How about Berting Labra, was he holding something when you saw him?
A I did not notice.
Q Were there any person aside from Eddie Fernandez and Berting Labra that you saw around that black car?
A They were the only ones I noticed.
Q Why do you know this Eddie Fernandez and Berting Labra?
A Once in a while they lodged in the cockpit at La Loma.
Q The two of them?
A Yes, sir.
Q How about in the movies, have you seen the two in the movies?
A Yes, sir.
Q That place where you saw these two around that black car, was it lighted or dark?
A It was lighted.
Q Why was it lighted?
A Because it was earlier.
Q Was there a light on the electric post around?
A Yes sir.
Q This jeep that you saw where Eddie Fernandez and Berting Labra rode did you see the driver?
A Yes, sir.
Q Would you look around aid see if he is in Court?
A He is here.
Q Will you point to him?
A He is there. (witness pointing to a person who upon being asked, answered by the name of Antonio Antido)
Q Aside from this driver Antido, was there any other person inside the jeep where Berting Labra and Eddie
Fernandez rode?
A I only saw those three, Eddie Fernandez, Berting Labra and that one with curly hair.
Q After the incident were you able to see this person you pointed again?
A I saw him when Eddie Fernandez rode on a jeep which backed up and then fired another shot and then they made
short cut in Calavite Street. I recognized the driver, the one with a curly hair and black.
Q You said he fired another shot, who was that person who fired another shot?
A Eddie Fernandez.
Q Towards what direction did you see Eddie Fernandez fired the shot?
A He was firing it towards the black car.
Q After that what else did you see?
A The black car proceeded towards the Chinese.
Q How do you know that?
A Yes sir, they proceeded towards the Chinese.
Q After the incident were you investigated by any of the police agencies?
A After that the following day, two policemen arrived and it so happened that I have a police friend to whom I
narrated the incident and the policeman by the name of Cruz. My friend policeman narrated it to Dalanon.
Q And you were taken by Detective Dalanon to the police headquarter?
A Yes, sir.
Q You gave your statement there?
A Yes, sir. (P.123-128, Id.)
xxx xxx xxx

Q When you saw Eddie Fernandez for the first time he was being aided by somebody, is it not?
A I saw them boarded the jeep together and Berting Labra supported Eddie Fernandez, and Eddie fell at the back of
the jeep.
Q Inside or outside the jeep?
A Outside the jeep.
Q Eddie Fernandez, in spite of his being supported by his companion then fell on the ground outside the jeep?
A It was on the jeep when he fell.
Q And because Eddie Fernandez was very weak then that is why he was being supported by his companion, that is
correct, is it not?
A Yes, sir.
Q How far were you from Eddie Fernandez at the first time you saw him?
A I was very near, at a distance from this place up to that wood (witness estimating about 9 meters)
Q About what time was that in the evening?
A It was quite early seven o'clock.
Q According to you you saw him' holding something?
A Yes, sir.
Q And at that distance you thought it was a gun, is it not?
A I saw him holding something like this long. (witness demonstrating about 1 1/2 feet long)
Q That is all you can say - that he was holding something that is long, is it not?
A Yes, sir.
Q That was after the shooting that you heard?
A I heard it only.
Q This place where you saw Eddie Fernandez was on the street - side of the street from the gasoline station where
you were, is it not?
A Yes, sir.
Q That must have been more than nine meters because the street there definitely is more than nine meters, is it
not?
A No sir, it is very near to me.
Q After you heard the shots you must have sought cover, is it not?
A No, I climbed up the truck.
ATTY. CASTRO
We have no more questions, your Honor.

ATTY. BAUTISTA
Cross for Antido.
With the permission of the Honorable Court.
COURT
Proceed.

CROSS-EXAMINATION
ATTY. RAUTISTA
Q How long after the shooting after you saw the incident that you said you talked to the policeman whom you said
your friend?
A It was a long time.
Q Could it be two days after the incident?
A Yes, sir.
Q Who is this policeman, what is his name?
A He has a car inside the cockpit.
Q Aside from this policeman was there any person to whom you narrated this incident?
A None, sir.
Q Did you not tell this incident to your parents?
A I told it to the brother of my father.
Q How long after did you tell this incident to the brother of your father?
A After two days.
Q Who was the first one to whom you narrated this incident to the brother of your father or the policeman?
A At first to the policeman and second to the brother of my father.
Q Do you remember having been investigated in connection with the incident that you saw?
A Yes, sir.
Q When was that?
A That was Wednesday, September 17.
Q And was this investigation in writing?
A It was typewritten by Dalanon.
Q If shown to you this investigation in writing will you be able to recognize the same?
A Yes, sir.
ATTY. BAUTISTA
May we request the Fiscal to produce the statement given by this witness.

COURT
Granted.

FISCAL MELENDRES
I am handing to counsel Atty. Bautista statement of the witness Fernando Despo.

ATTY. BAUTISTA
Q I am showing to you this statement and for purposes of Identification I would like to request that the same be
marked as Exhibit 1 'for Antido. Please tell us if this is the same Exhibit 1 the statement that you gave on September
20?
A Yes, sir.
Q All the questions appearing here were asked of you, is it not?
A Yes, sir.
Q And that all the answers here were given by you, is that correct?
A Yes, sir.
Q You stated in your direct examination that you were able to know the driver of the red jeep and you pointed to
the person of Antonio Antido, is that correct?
A He is Antonio Antido, the one with a curly hair. (witness pointing to the accused Antonio Antido)
Q I am referring you now to question No. 10, of this particular statement marked Exhibit 1. The question here and I
quote: "Kung makikita mo uli iyong nagmamaneho ng pulang jeep na sinakyan ni Eddie Fernandez pagkatapos ng
barilan makikilala mo pa ba siya?" That is the question and the answer is: "Hindi ko na po makikilala. " Did you give
this answer to that question?
A During the trial when we used to go in and out I was able to recognize him and pointed to Detective Dalanon.
Q Why is it that you said you will not be able to recognize him anymore?
A After that when I entered the door I immediately recognized him. I was able to recall him, sir.
Q Is it not a fact that somebody told you that he was the driver of the jeep?
A No sir, I was the only one who pointed to him." (Page 130- 137, Id.)
xxx xxx xxx

Q What was the attire of Berting Labra?

A I did not notice, I only noticed his face.
Q Do you know whether he was wearing a hat or not?
A I saw his face only.
Q Did you notice if he was wearing a Barong Tagalog or a polo shirt?

FISCAL MELENDRES
Already answered.

COURT

Sustained.

ATTY. DIMAANO

I am testing the credibility of the witness.

COURT

witness may answer.

WITNESS

A I was just looking at his face.

Q What about Eddie Fernandez, what was he wearing?

A I was looking at his face only.

Q You did not notice whether Eddie Fernandez was wearing a polo shirt or a Barong Tagalog?

A Only faces. (Pp.145-147, Id.)

As can be readily observed, the foregoing testimony bears features that are rather unusual and unbelievable, such
as (1) his being afraid, (it was only after the fiscal that he talked of movie shooting) still, he climbed at the top of a
truck to see what was going on, a mere 13-year old boy as he was; (2) his vague description of where Fernandez and
Labra were when he first saw them and what they were respectively doing then; (3) his correction of his earlier
written statement given to the police about the Identification of accused Antido; (4) his belated (at first he said the
next day, only to admit later it was after two days) relating of what he saw to his policeman friend and the brother
of his father (They were the first to whom he revealed the incident; not to his family); (5) his inability to remember
how Fernandez and Labra were attired; etc.

But let Us leave such weaknesses of evidentiary value of his testimony for a while. At this juncture, the important
points to bear in mind are (1) that he did not see Fernandez firing the "long gun" the witness said Fernandez held,
except when he (Fernandez) and his companions were moving away from the scene; (2) he did not notice that Labra
was holding any weapon or gun; (3) that he did not notice any other person with Fernandez, Labra and Antido, thus
omitting Barcelona; and very relevantly (4) that he saw Fernandez being aided by somebody to his jeep. To quote
him again:

Q When you saw Eddie Fernandez for the first time he was being aided by somebody, is it not?
A I saw them boarded the jeep together and Berting Labra supported Eddie Fernandez, and Eddie fell at the back of
the jeep.
Q Inside or outside the jeep?
A Outside the jeep.
Q So Eddie Fernandez, in spite of his being supported by his companion then fell on the ground outside the jeep?
A It was on the jeep when he fell.
Q And because Eddie Fernandez was very weak then that is why he was being supported by his companion, that is
correct, is it not?
A Yes, sir. (P.130,t.s.n.,May l2, 1970.)

thereby introducing the first indication of the important element, We shall discuss later, that Fernandez came out of
the incident also wounded.
Rosanna's evidence corroborated Despo's in the sense that Barcelona was not noticed around the place of the
incident. And she added a pivotal point insofar as Labra is concerned. She did not notice him there, even as she
claimed she saw Antido, less known to her, who according to Sigua and Lopez was allegedly beside Antido; she
declared that Labra left the police precinct at Mayon ahead of them together with Director Molina and Antido,
thereby supporting the contention of the defense that Labra could not have been with Fernandez 1 at that fatal
shooting incident.

Thus, only the testimonies of two witnesses, Sigua and Lopez, are left to serve as possible basis for the conviction of
Labra and Barcelona. Let it be recalled that although Lopez claimed he had no gun of his own, the evidence shows
that in the glove compartment within his reach was no less than a. 45 caliber pistol, allegedly belonging also to
Pangilinan. (This gun was never produced in evidence; it was never shown to the police for examination.) Sigua, on
the other hand, who claimed to be a mere friend-companion of Pangilinan admitted that whenever they rode in the
car, he always had his .32 mm. gun by his side, not in a holster, not in his pocket but evidently ready for use. Thus, it
might be said, he was a sort of bodyguard of Pangilinan. Indubitably, therefore, We cannot but take their
declarations with grains of salt. They had to have somebody answer for the death of their "master", and, of course,
under the circumstances, who could come in handy but Fernandez and Labra, Antido and Barcelona whom they had
met earlier in the house of Nasal and were with them at the police precinct when their guns were being verified. In
other words, it was easy for them to surmise that those three were with Fernandez iii whatever he did. More, they
must have thought somehow, that because precisely Labra was one of the co-actors of Fernandez in the film then
being done and Antido was his driver to connect them with the doings or misdoings of Fernandez would easily be
swallowed by the undiscerning.
In these premises, We find no difficulty in holding that Labra and Barcelona cannot be held responsible for the
crimes charged herein. The least that can be said regarding the evidence against them is that the same does not
prove their guilt beyond reasonable doubt as required by the rules, the Constitution and the jurisprudence
interpretative thereof. After examining the eye-witness' declarations against said two accused, We cannot say with
moral certainty that they were even at the scene of the crimes charged.

Let Us take the case of Barcelona. As already stated, Despo did not notice his presence. Neither did Rosanna. Only
Sigua and Lopez who must have been impatiently concerned with the traffic jam that caused their car to stop and,
therefore, must have had their sight towards the front, declared they saw him firing his gun from, of all places,
behind the car. How they could have turned around while the shooting was going on to see Barcelona in the seven
o'clock darkness of the evening taxes Our credulity to its breaking point. Sigua, particularly, told the court that as
soon as the shooting started, he just slid down in his seat to avoid being hit. How could he have seen anyone behind
the car?

It is of signal relevance to note that Sigua gave two written statements relative to the incident under inquiry, the
first on the night of September 17, 1969 and the second on November 21, 1979, with the peculiarity that the latter
was prepared in the presence, if not with the assistance, of Atty. Norberto Quisumbing, the first private prosecutor
in these cases. In none of said statements, did Sigua even mention Barcelona or any fourth person with Fernandez.
(Exhibits 6 and 4-7, Barcelona) Neither was there any mention of any such fourth person, much less Barcelona, in
the written statement of Lopez given that evening of September 17, 1969.

Withal, Barcelona's alibi cannot be stronger. That he was at the Mayon police precinct at the time the shooting
incident in question took place was assured to the court by four members of the police department who were then
there. Sgt. Gonzalo Mariano testified that Patrolman Angel Domingo called him by phone to inform him there was a
shooting incident at A. Bonifacio and, therefore, he had to send more men thereto. He saw that Barcelona was then
at the precinct. He also testified that he dispatched Patrolman Magtanggol Pascual, Edilberto Jimenez and Romeo
Alonte to the place indicated by Pat. Domingo. Barcelona was left in the precinct. Patrolman Pascual and Patrolman
Jimenez corroborated Sgt. Mariano's testimony in open court which included the information that Barcelona helped
in handing of the gun to one of them. They even signed a joint affidavit with Alonte, to the same effect. (See Exhibit
8) All these policemen told the trial court that Barcelona was in the precinct long before the shooting incident and
was still there when they returned thereto. To disregard such evidence as against the shaky testimonies of Sigua and
Lopez would be irrational and contrary to common sense.

Of course, there is in the record the chemistry report that a single speck of nitrate was found at the region of the
distal phalange index finger of Barcelona's right hand and it appears that the shattered part of the back glass of
Pangilinan's car had a hole having the appearance of a bullet hole, which facts could in a way support the People's
pose that Barcelona did fire his gun from behind Pangilinan's car. But the single speck of nitrate referred to is to Us
inconclusive as, in fact, no attempt was made to make the expert, Mercedes Bautista of the NBI, give her opinion
that such was evidence that the subject had fired a gun. Besides, that apparent bullet hole may be explained by
Despo's declaration that Fernandez fired a parting shot at the back of the car.

Turning now to Labra, the first and most imporatant point in his favor is that his hands were found negative of any
traces that he had fired any gun. (Exhibit D, Exhibit 3, Labra) He denied being with Fernandez at the shooting
incident. Rosanna practically exculpated him not only by saying that she did not notice him at the gun shooting place
but by affirming further that he left the precinct ahead of everyone together with Director Molina. (pp. 94-95, t.s.n.,
May 12,1970) His alibi that he returned to the Nasal house and later to the house of Major Alverez and was there in
very drunken condition was corroborated by Director Molina and another person, Chito Baron. Despo's
Identification of Labra appears to Us very doubtful, as he was unable to say what he was wearing at the time,
whether a polo shirt, a barong or what. Moreover, as We shall discuss again later, it would be dangerous to convict
anyone, with Despo's evidence, cluttered as it was with peculiarities that engender disbelief.

Alibi as a general rule is the weakest of defenses in a criminal case. But this is so only when the Identity and
presence of the accused are definitely established by credible witnesses. In the cases of Labra and Barcelona, We
have taken pains to examine carefully not only their respective alibi and found them credible but more, the
purportedly inculpatory evidence against them by the prosecution. As far as Barcelona is concerned only Sigua and
Lopez claimed they saw him but as We have already discussed, those witnesses can hardly be deemed as having
given definite and clear evidence of the presence of Barcelona at the scene of the offenses in question. It is not easy
to believe that in the midst of the shooting, they could have seen him, behind their car, dark as the night was, as it
was already seven o'clock. Withal, said witness could hardly be considered as unbiased. Barcelona's alibi is
supported strongly by no less than officers of the law themselves, not one, but four of them. And the same may be
said of the attempts of Sigua and Lopez to inculpate Labra. He fired no gun, according to the NBI chemistry report.
Rosanna said he left ahead of them from the police precinct and was not with Fernandez; she did not, notice him at
the gun-shooting incident at A. Bonifacio. We are satisfied that his alibi supported by Director Molina and Chito
Baron outweigh the evidentiary value of Sigua's and Lopez' testimonies.

Accordingly, Our collective minds cannot rest easy in the moral conviction that Barcelona and Labra were at the
scene of the offense herein charged and that they took part in the killing of Pangilinan and the wounding of Lopez
and Sigua. Barcelona and Labra are entitled to acquittal. After all, if in truth, which the evidence before Us does not
show, they had anything to do with the crimes in question, their incarceration for about a decade now could almost,
if not completely serve as punishment enough, even under the Revised Penal Code, since, as earlier observed, the
most they could be guilty of is homicide and frustrated homicide.

The cases of accused Fernandez and Antido have to be viewed differently. Their presence at the scene of the subject
offenses is admitted by them and the only matter We have to inquire into as far as they are concerned is the degree
of their participation therein, first, whether it is culpable or not and, in the affirmative, what is the nature of their
respective liabilities.

To be sure, the thrust of the defense of Fernandez is that he was not the offender but, on the contrary, the victim of
aggression on the part of Pangilinan as instigator and Sigua as the actual aggressor with his.32 caliber colt revolver.
(Exh. M-3 ).

It may be recalled that according to the prosecution, Fernandez approached the stopped car of Pangilinan from its
right side, Labra and Antido from its left and Barcelona from behind and that after Fernandez had warned the four
passengers, "Walang kikilos sa inyo, ang kikilos tatamaan.", with his pistolized carbine aimed at all of them, and
Rosanna had pleaded "Huwag, Eddie, huwag.", while Sigua had remarked, "Hindi kami lalaban", shots were
simultaneously fired by all four accused. The aftermath was that Pangilinan fell wounded on the lap of Rosanna,
Lopez got hit on the right chest and Sigua was slightly hurt in the forefinger of his right hand. How Rosanna who was
nearest to Fernandez, for she was sitting on the right side of the car the rear window of which was open, came out
unscathed is not shown in the record.

According to the prosecution, Fernandez must have been infuriated by Rosanna's going with Pangilinan in the
latter's car instead of going back to work at the location in Nasal's house that he decided to kill Pangilinan, obviously
the cause of Rosanna's leaving, and within the scarcely five minutes that it took them to turn around and pursue
Pangilinan's car, he was able to convince his friends Labra and Barcelona and his driver Antido to conspire with him,
each with his definitely assigned part, hence the charges of murder and frustrated murder in band or with abuse of
superior strength against them.
That such version of the prosecution cannot be wholly true is immediately demonstrated in Our earlier discussion
that treachery and evident premeditation cannot be appreciated in these cases in the light of the circumstances
extant in the record. Also, the accusation that the foil-accused herein acted as a band or with abuse of superior
strength cannot hold water, for the simple reason that as We have found above, the presence, much less the
participation of Barcelona and Labra have not been proven beyond reasonable doubt, and anyway, all three of the
alleged victims were themselves armed. Consequently, if at all Fernandez and Antido may be held guilty, the
offenses committed by them would at most be only homicide and frustrated homicide, with the mitigating
circumstance of voluntary surrender, a circumstance conceded in the People's brief (p. 56).

In determining the degree of liability of Fernandez, two very significant circumstances, which to Us have been
satisfactorily proven by credible evidence, must above all be considered, namely:

1. That Fernandez himself was wounded during the shooting incident in his left chest and lower part of his body. The
testimony of Despo, the boy witness of the prosecution, more than suggested the veracity of this fact, when he
declared that he saw that Fernandez was being aided on the way to his jeep and that he "fell" inside it, albeit the
defense claim he fell on the roadside. Fernandez was medically treated that same night, first at the National
Orthopedic Hospital, later at the V. Luna General Hospital, and when he was ultimately operated on at the Quezon
City Medical Center by the same military surgeon who attended to him at V. Luna, Captain Arnold Gruspe a
deformed slug was found lodged in his body.

2. That deformed slug was Identified by Major Constantino Leyva, Chief Ballistics Branch of the Philippine
Constabulary as a .32 caliber bullet which when examined scientifically and compared with test bullets fired from
the .32 caliber gun Sigua had that evening of the event in question showed significant similarities, albeit not
necessarily conclusive to prove the connection between said two objects. (Exh. 12, Fernandez, pp. 3-51, t.s.n., May
29, 1970) When further tested by Assistant Chief Domingo R. del Rosario of the NBI Ballistics Division, said expert
definitely concluded that the deformed bullet (Exhibit 5) was "fired through the barrel of the above- mentioned
firearm", referring to Exhibit M-3, the same gun of Sigua. (p. 28, t.s.n., June 16, 1970; Exhibit 13 Fernandez)

By mere implication and without directly and expressly arguing to such effect, in its brief, the People suggests that
all the above evidence are incredible and could have been, to put it bluntly, fabricated. We must emphatically reject
such a wild and baseless theory, if only because, by its very nature, the supposed confabulation involves several
persons, of apparently good professional, official and social standing. It is ludicruous to conceive that they could
have, for no reason indicated anywhere in the prosecution's evidence, debased themselves in giving their
testimonies.

True, the prosecution tried to explain, when confronted with evidence that indeed Sigua's gun had traces of having
been fired, that it was one Reynalo Pangilinan, an uncle of the deceased, who fired the same in view of his disgust
over the death of his nephew and the failure of Sigua to defend him. One has to be very naive to accept such a
transparent explanation. Sigua's testimony as to how his gun landed in the hands of Reynaldo Pangilinan, that night
was not flawless. He claimed at one instance (in his written statement to the police that same night. Exhibit 4), he
could not remember to whom he handed it. At the trial he said he gave it to a security guard at the Chinese General
hospital but when Reynaldo Pangilinan and his companions arrived, he gave it to one of said companions, he could
not remember who. But even in his second statement given before Atty. Quisumbing on November 21, 1969, he
also did not mention the security guard nor the name of Reynaldo Pangilinan. (Exhibit 4-A) In any event, the fact
remains that the gun of Sigua was found to have been fired, and We are hard put to believe it being rather
unnatural, As we see it, that Reynaldo Pangilinan was the one who fired the same at nobody five times in the garage
of their house just out of disgust that it was not used, as far as he knew, to defend his nephew, Renato. It is more
likely that, such explanation was given to vainly hide the fact proven by the experts that Sigua had indeed fired said
gun during the shooting incident and the slug found in the body of Fernandez came from his .32 caliber gun he
always had, by his own admission, by his side in the car whenever- he rode with Renato Pangilinan.
B

In the face of these circumstances, Our task is to determine which 'Version approximates the truth, that of the
prosecution Lo the effect that Fernandez and his companions were the first to fire upon the passengers of the car,
or, that of Fernandez, who claimed that when he remonstrated Rosanna for not returning to their place of work,
Pangilinan ordered Sigua "Totoy, tirahin mo na" after saying "Talagang asar itong tarantadong ito" (referring to
Fernandez)?

There being no showing anywhere in the record of any amorous relationship between Fernandez and Rosanna, and
it being but natural that Fernandez, who had already been made to wait for her for half a day to make their scene in
the filming of "Ako and Sasagupa", should be very much concerned why Rosanna would take French leave,
something that to Our mind, could hardly induce any desire to take another man's life, We are more inclined to
believe that it was Pangilinan who considered Fernandez a nuisance and in a moment of bravado, he did direct Sigua
to give Fernandez the works. This is not to say, We are not convinced that Fernandez and Antido were armed. What
We are more persuaded to believe, however, is that the one who started the gun-shooting was Sigua.

VI

As We try to visualize what really happened that fatal evening from the thrust of the respective evidence of the
prosecution and the defense, the picture that emerges is one that practically reconciles the most important portions
of the opposing theories of the parties.

Let it be recalled that even before Pangilinan's car reached the traffic jam at A. Bonifacio and Blumentritt, omen of
something untoward that Fernandez entertained within him already became obvious to Sigua who declared that as
they changed their course to go towards Manila instead of Biak-na-Bato or Nasal's residence, he already noticed
that Fernandez followed them. He testified that in fact he saw Fernandez in the act of holding a gun then.

With this circumstance in mind added to Sigua's admission that he always kept his gun ready by his side, it is but
rational to assume that he had warned his companions accordingly. So, when, as they must have anticipated,
Fernandez overtook them and approached their car, they were not unprepared. We are convinced that Fernandez
and Antido, both of them brandishing their respective firearms, approached Pangilinan's car, Fernandez at the right
and Antido at the left thereof. We believe the prosecution's evidence that at that moment as he came near
Rosanna's side Fernandez did say, "Walang kikilos sa inyo, ang kikilos tatamaan. " We also believe, on the other
hand, that aside from the foregoing warning, Fernandez also berated Rosanna for taking French leave and not going
back to their work. Thus, We conclude that such acts of Fernandez and Antido constituted sufficient provocation for
Pangilinan and his companions to react, and, accordingly, We give credence to the testimony of Fernandez that
Pangilinan did say, "Talagang asar and tarantadong ito. Sigue, Totoy, tirahin mo na." And ready as he was, Sigua fired
at Fernandez from his .32 caliber gun. Fernandez was hit and must have instantly tried to retaliate, but there is no
clear evidence in what direction he succeeded in firing, no traces of the bullets of the nature of those that could
have come from the kind of firearm he used having been presented at the trial. For sure, it was not Fernandez who
hit Pangilinan. It was Antido who must have fired through the glass rear window of the car in an obvious effort to
avoid Pangilinan from joining Sigua's assault upon Fernandez. It was also Antido that must have hit Lopez, who must
have naturally tried himself to get reach of the.45 caliber pistol in the glove compartment of the car. How Sigua was
hurt, he himself did not explain.

In these circumstances, it is plain to Us that having acted, albeit instantaneously, to help his master Fernandez,
Antido is guilty of homicide and frustrated homicide. But We appreciate in his favor the mitigating circumstance of
having acted in incomplete defense of Fernandez. He only reacted to the assault upon Fernandez by Sigua, sensing
evidently that Pangilinan and Lopez might join Sigua. Of course, as already stated, there was sufficient provocation
on the part of Fernandez and Antido. But there was unlawful aggression on the part of Sigua and by and large, taking
all circumstances into account, We cannot hold that the means used by Antido to repel the aggression were entirely
unwarranted.
Inasmuch as the provocation came principally from Fernandez and it is satisfactorily proven that he also fired his
gun, he must also be liable for the death and injuries that resulted from his acts, even if it does not appear that he
himself hit Pangilinan and Lopez. As in the case of Antido, he tried to repeal an aggression with means which cannot
be said to be unreasonably uncalled for in the premises.

JUDGMENT

The foregoing opinion is shared by Chief Justice Fernando, Justices Concepcion, Fernandez, Guerrero and De Castro.

While Justices Makasiar, Plana and Escolin also agree as to the acquittal of appellants Labra and Barcelona, they find
and hold that the offenses of homicide and frustrated homicide committed by appellant Fernandez and Antido were
not acts of incomplete self-defense, and that they were mitigated only by their voluntary surrender, hence they
each deserve "accordingly " the indeterminate penalties of anywhere within prision mayor (from six (6) years and
one (1) day to twelve (12) years) as minimum to anywhere within reclusion temporal in its minimum period (from
twelve (12) years and one (1) day to fourteen (14) years and eight (8) months) as maximum, for the homicide and
another indeterminate penalty each of one degree lower for the frustrated homicide. Justice Ericta concluded that
all the appellants are guilty of homicide with the mitigating circumstance of voluntary surrender offset by the
aggravating circumstance of in band, for which the penalty should be indeterminate and anywhere within prision
mayor, as minimum, to reclusion temporal in its medium period, fourteen (14) years, eight (8) months and one (1)
day to seventeen (17) years and four (4) months), as maximum.

Justices Teehankee and Abad Santos voted to affirm the conviction of all the appellants for murder and frustrated
murder, with the mitigating circumstance of voluntary surrender offset by the aggravating circumstance of band, for
which the penalties should be reclusion perpetua each for the murder and six (6) years and one (1) day of prision
mayor to twelve (12) years and one (1) day of reclusion temporal each, for the frustrated murder.

Justices Aquino and Melencio-Herrera did not take part.

With the foregoing varying conclusions, the result is that nine (9) members of the Court are for the acquittal of the
appellants Labra and Barcelona, hence they are both hereby acquitted and their immediate release is ordered.

However, as regards appellants Fernandez and Antido, there are six (6) votes sustaining the finding of incomplete
self-defense (of the Chief Justice, Justices Concepcion Jr., Fernandez, Guerrero, De Castro and this writer) and for
the imposition upon each of them of the indeterminate penalties only of six (6) months of arresto mayor as
minimum to six (6) years ...of prision correccional as maximum, for the murder, plus the straight penalty four (4)
months of arresto mayor, for each of them, for the frustrated murder.

As already discussed above, six (6) other members of the Court, (Justices Teehankee, Makasiar, Abad Santos, Ericta,
Plana and Escolin) voted for higher penalties.

In other words, there are six (6) Justices who voted for the penalty imposed by this ponente appropriate for
homicide with the mitigating circumstances of incomplete self- defense and voluntary surrender and equally six (6)
votes for varying higher penalties.

Pursuant to Section 3 of Rule 125, when in an appeal in a criminal case the Court is equally divided as to the guilt of
the appellant or the necessary votes for a judgment of conviction (eight) can not be had, the "judgment of
conviction of the lower court shall be reversed and the defendant acquitted." By parity of reasoning, the Court, by
the vote of twelve (12) members of the Court, namely, the Chief Justice, and Justices Teehankee, Makasiar, Aquino,
Fernandez, Guerrero, De Castro, Herrera, Ericta, Plana, Escolin and this writer, and with Justice Abad Santos
reserving his vote and Justice Concepcion Jr. being on leave, at the time of inviting on this particular point of
construction rules that the lower penalty stated above should be imposed, as the same are hereby imposed upon
each of the appellants Fernandez and Antido. Importantly, it need be stated here that all four appellants herein have
been in detention for more than twelve years.
The appellants Fernandez and Antido are hereby further sentenced to pay jointly and severally the heirs of Renato
Pagilinan the sum of TWELVE THOUSAND (P12,000.00) PESOS and Apolinario Lopez the sum of FIVE THOUSAND
(P5,000.00) PESOS, as civil indemnity, without subsidiary imprisonment.

Should it appear that their period of preventive imprisonment, to full credit for which they are fully entitled, the
accused Fernandez and Antido have both already served the two penalties hereinabove imposed upon each of them
for homicide as well as that for frustrated homicide, the Director of Prisons is hereby ordered to immediately
release them together with the acquitted accused Labra and Barcelona, unless their continued confinement is
legally warranted for any other cause.

Fernando, CJ., Concepcion, Jr., Fernandez, Guerrero and De Castro, JJ., concur.

Teehankee, J., I concur with the dissenting opinion of Mr. Justice Abad Santos.

Aquino, J., took no part.

Melencio-Herrera, J., took no part.

Ericta, J., The four defendants should be convicted of homicide and frustrated homicide. The aggravating
circumstance of in band and voluntary surrender should be appreciated.

Plana, J., I join Mr. Justice Makasiar in his partial dissent.

Escolin, J., I concur in Justice Makasiar's dissent.

Separate Opinions

MAKASIAR, J., dissenting:

Appellants Fernandez and Antido are guilty of homicide and frustrated homicide, respectively, mitigated only by
voluntary surrender, and therefore should be sentenced accordingly. Incomplete self-defense should not be
appreciated in their favor as they were the ones who followed the victims and appellant Fernandez provoked the
incident by approaching the car of the victims and warned them not to move or they will be shot.

ABAD SANTOS, J., dissenting:

The crimes committed were murder and frustrated murder qualified by evident premeditation. Present the
aggravating circumstance of band and the mitigating circumstance of voluntary surrender the penalty for the first is
reclusion perpetua and for the second an indeterminate sentence of 6 years and I day of prision mayor to 12 Years
and 1 day of reclusion temporal.
6 PEOPLE V GENOSA

EN BANC

[G.R. No. 135981. January 15, 2004]

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

DECISION

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 childs.

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 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and
wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had
provided herself for the purpose, [causing] the following wounds, to wit:
Cadaveric spasm.

Body on the 2nd stage of decomposition.

Face, black, blownup & swollen w/ evident 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 prosecutions 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, Bens 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 Bens 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
wont 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 sons 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
Bens 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 appellants 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 husbands 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 Bens parents, together with Bens 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. Bens 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 Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his
father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty
bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness.

Mrs. Iluminada Genosa, Marivics 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 Marivics 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 Bens 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 lets 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 couldnt 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 Marivics house on November 15, 1995, the couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte.
Marivic was his patient many times and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic.
These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.
xxx xxx xxx

Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate
occasions was marked at Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3.

On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were
directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the
psychological make-up of the patient, whether she is capable of committing a crime or not.

7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2)
months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or
confront the Genosa couple who were experiencing family troubles. He told Marivic to return in the morning, but
he did not hear from her again and assumed that they might have settled with each other or they might have
forgiven with each other.

xxx xxx xxx

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.

xxx xxx xxx

Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she
described as a fracture. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not
testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.

11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of
PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x
which caused his death.

12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12
November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L.
Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond
reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.

14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000,
Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellants 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 quoto 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 Marivics 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. Josephs 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.

xxx xxx xxx

Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a
self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the
violence would happen, they usually think that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said
that usually a battered x x x comes from a dysfunctional family or from broken homes.

Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then
emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very
angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional
family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their
parents abused each other so there is a lot of modeling of aggression in the family.

Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty,
self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake of the children.

xxx xxx xxx

Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in
another room, or sometimes try to fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not consistent, not chronic, are not happening day
in [and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and
even would cause hospitalization on the victim and even death on the victim.

xxx xxx xxx

Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that
Marivic fits the profile of a battered woman because inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a
broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the
past.
xxx xxx xxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal
separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim.

xxx xxx xxx

19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified
before RTC-Branch 35, Ormoc City.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry
and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his
training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service,
he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He
was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan
Medical Society; and the Philippine Association of Military Surgeons.

He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period
1954 1978 which was presented twice in international congresses. He also authored The Mental Health of the
Armed Forces of the Philippines 2000, which was likewise published internationally and locally. He had a medical
textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an
E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.

Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the
ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate
degree; while one has to finish medicine to become a specialist in psychiatry.

Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit
involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent
family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial
intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse:
such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the
woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the
victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the
disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take
more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.

In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic
anxcietism. It is produced by overwhelming brutality, trauma.

xxx xxx xxx

Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real,
although she is not actually being beaten at that time. She thinks of nothing but the suffering.

xxx xxx xxx

A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is
irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her self-
world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an individuals 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.

xxx xxx xxx

Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who
administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control
it. It will just come up in her mind or in his mind.

xxx xxx xxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily
with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital
x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest
rock bottom of her life and there is no other recourse left on her but to act decisively.

xxx xxx xxx

Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and
seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx xxx xxx

On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc
mental condition was that she was re-experiencing the trauma. He said that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that
point in time that things happened when the re-experiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super alert anymore x x x she is mentally stress (sic)
because of the predicament she is involved.

xxx xxx xxx

20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in
accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were
elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that
appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying
in bed asleep when Marivic smashed him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of
Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified
psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts reports in the records of the case for purposes of the automatic review or, in the
alternative, a partial reopening of the case for the lower court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellants 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 Courts 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 Courts 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 Marivics 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 Courts 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 appellants 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 courts 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 judges 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 appellants 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 Bens 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 victims 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 appellants 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 courts 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 batterers 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 womans 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.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your
marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her
foregoing testimony on chronic battery in this manner:

Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending
physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending
physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o 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?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done
to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995
when this incident happened?
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.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on
November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a record here,
also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

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 oclock at night, because the couple were very noisy and I heard something was
broken like a vase. Then Marivic came running into Ecels 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 oclock.

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 Whats 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).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how
does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A Its 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 latters ordeal to the court a quo as follows:

Q: What can you say, that you found Marivic as a battered wife? Could you in laymans 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.

xxx xxx xxx

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
shes 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 Im
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 Courts 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, ones 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 latters 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 latters 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 victims
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
individuals 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 individuals set of beliefs or perceptions
concerning the situation. Battered women dont 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 Bens 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 mothers or fathers 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 others 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
ones 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 childrens 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 childrens 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 defendants 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,
Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter
her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including
that which has not been raised by the parties.[69]

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report
dated November 29, 2000, opined as follows:

This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her
husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural
self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband
posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part. [70]

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking,
repetitious battering, [and] repetitious maltreatment as well as the severity and the prolonged administration of
the battering is posttraumatic stress disorder.[71] Expounding thereon, he said:

Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the
prolonged administration of battering or the prolonged commission of the battering and the psychological and
constitutional stamina of the victim and another one is the public and social support available to the victim. If
nobody is interceding, the more she will go to that disorder....

xxx xxx xxx

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. Pajarillos 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).

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 inch wide.

Q It is a flexible blade?

A Its a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was 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 Ive 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 victims
position relative to appellants 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 appellants 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 persons 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.

7 PEOPLE V CHUA HIONG (PDF)

8 PEOPLE V TORING

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-56358 October 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.

The Solicitor General for plaintiff-appellee.

Fil C. Veloso counsel de oficio for Luis B. Toring.

Joel P. Alino for Berdon and Berdin.

FERNAN, C.J.:

The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal Court in Cebu City in
Criminal Case No. CCC-XIV-2170, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable doubt of the crime of MURDER by
direct participation as principal; Diosdado Berdon as accomplice thereto; and Carmelo Berdin as accessory after the
fact.

Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of voluntary surrender, the said
circumstance having been offset by the aggravating circumstance of nighttime, the accused Luis Toring should be, as
he is, hereby sentenced to the penalty of RECLUSION PERPETUA, with the accessory penalties of law.

There being neither mitigating nor aggravating circumstances on the part of the accused Diosdado Berdon, the said
accused should as he is hereby sentenced to the indeterminate penalty of from SIX (6) YEARS of Prision Correccional,
as minimum, to TWELVE (12) and ONE (1) DAY of ReclusionTemporal, as maximum, with the accessory penalties of
the law.

Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating circumstance of minority, the said
accused being only 17 years of age, the accused Carmelo Berdin should be, as he is, sentenced to the penalty of SIX
(6) MONTHS and ONE (1) DAY of Prision Correccional, with the accessory penalties of the law.

The defendants shall jointly and solidarily indemnify the heirs of the deceased Samuel Augusto for actual and
compensatory damages in the sum of P15,000.00 and for moral damages in the sum of P50,000.00, without
subsidiary imprisonment in case of insolvency.

The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of the government.

Proportionate costs.
SO ORDERED. 1

According to the prosecution, the antecedent facts are as follows:

In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu City for the last
canvassing of votes for the candidates for princesses who would reign at the sitio fiesta. As one of the candidates
was the daughter of Samuel Augusto, he and the members of his family attended the affair.

Also present were members of the kwaknit gang, a group which was noted for their bird-like way of dancing and
their propensity for drunkenness and provoking trouble. Its president, called the "alas" king, was Luis Toring. The
group was then outside the dancing area which was ringed by benches.

At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest. Beer and softdrinks having been
served the parents of the candidates by the officers of the Naga Chapel Association which took charge of the affair,
Samuel was tipsy when, after his daughter's proclamation, he stepped out of the dancing area to answer the call of
nature.

At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado Berdon proceed to a
dark area while whispering to each other. Diosdado Berdon handed a knife to Luis Toring, 2 who then approached
Samuel from behind, held Samuel's left hand with his left hand, and with his right hand, stabbed with the knife the
right side of Samuel's abdomen. 3 Upon seeing Felix running towards them, Luis Toring pulled out the knife and,
together with Carmelo Berdin and Diosdado Berdon, ran towards the dark. Felix tried to chase the three but he was
not able to catch them. He returned to where Samuel had slumped and helped others in taking Samuel to the
hospital.

According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis when the assault occurred,
Diosdado Berdon and Carmelo Berdin were poised to deliver fist blows on Samuel just before Luis Toring stabbed
him. Diosdado gave the knife to Luis Toring. 4

As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three assailants ran towards the
direction of the fields. Jacinto Lobas and Mario Andog responded to her shouts and brought Samuel to the Opon
Emergency Hospital where he died on arrival. According to the necropsy report, 5 Samuel, who was thirty years old,
died due to massive hemorrhage secondary to the stab wound on the abdomen. Said wound is described in the
report as follows:

Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long, running vertically downward, edges clean-
cut, superior extremity rounded, inferior extremity sharp, located at the abdominal region, right anterior aspect, 7.5
cms. to the right of anterior median line and 107.0 cms. above right heel, directed backward, upward and medially,
involving skin and the underlying soft tissues, penetrating right peritoneal cavity, incising inferior vena cava,
attaining an approximate depth of 15.0 cms.

The death weapon, a kitchen knife made of stainless steel and with a red-colored handle, was recovered from the
house of Luis Toring. According to Patrolman Pantaleon P. Amodia, the police found out during the investigation
that Luis Toring had left the weapon with "Camilo" Berdin. When the police confronted Berdin, the latter led them
to the house of Toring which Berdin entered. When he emerged from the house, Berdin handed the weapon to the
police. 6
An information for murder was filed against Toring. Subsequently, however, the information was amended to
include Diosdado Berdon and Carmelo Berdin as defendants. The three were charged therein with conspiracy in
killing Samuel Augusto in a treacherous manner. Berdon, it was alleged, "conveniently supplied the death weapon"
which Toring used in stabbing Samuel while Berdin allegedly concealed the weapon to prevent its discovery by the
police. 7 The crime was purportedly committed with the attendance of the generic aggravating circumstances of
evident premeditation and nighttime.

All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias "Lowe," testified that he
was not the president of the kwaknit gang. He went to the benefit dance in the company of Venir Ybaez, Joel
Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and Alex Augusta. Toring and his group were standing
outside the dancing area when, at around eleven o'clock in the evening, Samuel, a known tough guy ("maldito"),
approached them and held Venir Ybanez by his collar. Then Samuel thrust the butt of his shotgun on the chin of Joel
Escobia, 8 proceeded to another group who were also gangmates of Toring, and again, with the barrel of his
shotgun, hit Eli Amion's chest several times. 9

Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist, approached Samuel from the
latter's right side and stabbed him once as he did not intend to kill Samuel. Toring then ran towards the dark portion
of the area and went home. There, he left the knife and proceeded to the hut by the fishpond of one Roman. 10

Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o'clock in the morning of May
26, 1980, Edgar Augusto, the younger brother of Samuel, shot them. Arsenio was hit on the left leg and he stayed
two months in the hospital for the treatment of his wound. 11

At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine Constabulary soldiers. 12They
brought him to the police of Lapu-lapu City on May 28, 1980. 13 When the police asked him about the knife he used
in stabbing Samuel, Toring told them to go to Carmelo Berdin because he was the only person who knew where
Toring hid it. 14 Asserting that he was the one who returned the knife to his own house, Toring testified that Carmelo
Berdin used to see him hide his weapons upstairs because Berdin was a frequent visitor of his. 15

For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as "lilliputian," admitted that he
witnessed the stabbing incident but he ran away with his group immediately after because he was afraid he might
be shot by Samuel. He was with Toring when the latter hid the still bloodied knife under a trunk in Toring's house.
He was familiar with the hiding place of the knife because Toring showed it to him and there were times when he
would get the knife there upon Toring's request. Carmelo corroborated Toring's testimony that on that fateful night,
Toring carried the knife tucked at the back of his waistline. 16

In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his sworn statement dated May
28, 1980 and marked as Exhibit D, Toring stated that he took the knife from Diosdado to stab Samuel. Confronted
with said statement, Diosdado said that when he asked Toring why he implicated him, Toring allegedly replied that
he "included" Diosdado because of the case the barangay brigade had filed against Toring. 18

According to Diosdado, he did not attend the May 25 dance because of the trouble which erupted during the dance
the night before. He did not have anything to do with the stabbing of Samuel. He admitted, however, that a week
after the incident, his family went to barrio Andaliw Ronda, Cebu, for their yearly visit to his father-in-law. He stayed
there for fifteen days and would have stayed longer had not his mother informed him of the subpoena addressed to
him. 19
On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a decision discrediting Toring's
claim that the killing of Samuel was justified because it was done in defense of a stranger pursuant to Article 11 (3)
of the Revised Penal Code. The lower court found that Toring was the "aggressor acting in retaliation or revenge by
reason of a running feud or long-standing grudge" between the kwaknit gang and the group of Samuel, who, being
the son of the barangay captain, was a "power to be reckoned with." It mentioned the fact that a year before the
incident in question, Toring was shot by Edgar Augusto (Samuel's brother) and hence, in his desire to avenge
himself, Toring, "needed but a little excuse to do away with the object of his hatred. 21

The lower court could not believe that Samuel brought along his shotgun to the dance because he was "not reputed
to be a public official or functionary entitled to possess a firearm." Otherwise, the police and the barangay tanod
would have arrested him. The court surmised that if Samuel really carried a shotgun, he certainly must have had a
permit or license to possess the same.

It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon (Amion),
prosecution witness Joel Escobia claimed that he was at the receiving end of Samuel's thrusts with the butt of his
shotgun. To the court, such discrepancy is fatal to the defense because in appreciating the justifying circumstance of
defense of a stranger, the court must know "with definiteness the identity of the stranger defended by the
accused." 22

The lower court, however, ruled out the existence of conspiracy among the three accused on the ground that there
was no proof on what they were whispering about when Felix saw them. Accordingly, it held that the accused have
individual or separate liabilities for the killing of Samuel: Toring, as a principal, Diosdado Berdon as an accomplice by
his act of giving Toring the knife, and Carmelo Berdin as an accessory for concealing the weapon. It considered
treachery as the qualifying circumstance to the killing, found no proof as to allegation of evident premeditation but
appreciated nighttime as an aggravating circumstance. It meted the accused the penalties mentioned above.

All three accused appealed.

Toring seeks his exoneration by contending that his assault on Samuel was justified because he acted in defense of
his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides that no criminal liability is incurred by
anyone "who acts in defense of ... his relatives ... by consanguinity within the fourth civil degree, provided that the
first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in
case the provocation was given by the person attacked, that the one making defense had no part therein." The first
and second requisites referred to are enumerated in paragraph (b) in the same article on selfdefense as: (a)
unlawful aggression, and (b) lack of sufficient provocation on the part of the person defending himself.

Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of Toring their fathers being
brothers, 23 although no explanation appears on record why they have different surnames. At any rate, this
allegation on relationship was not rebutted by the prosecution.

The appreciation of the justifying circumstance of defense of a relative, however, hinges in this case on the presence
of unlawful aggression on the part of the victim. Corollarily, the claim of Toring that Samuel was, at the time of the
assault, carrying a shotgun to intimidate Toring's group must be proven.

Understandably, no prosecution witness attested that they saw Samuel with a firearm. The prosecution even
recalled to the witness stand Samuel's widow who asserted that her husband did not own any firearm. 24 Going
along with the prosecution's evidence, the lower court arrived at the rather gratuitous conjecture that Samuel could
not have had a shotgun with him because no one without a permit would carry a firearm without risking arrest by
the police or the barangay tanod. At the same time, however, the lower court described Samuel as the son of the
barangay captain who "had the run of the place and had his compelling presence felt by all and " sundry." 25

While matters dealing with the credibility of witnesses and appreciation of evidence are primarily the lower court's
province, this Court has the power to determine whether in the performance of its functions, the lower court
overlooked certain matters which may have a substantial effect in the resolution of a case. 26 Defense witness Joel
Escobia was, besides Toring, the only witness whose sworn statement was taken by the police on May 26, 1980, the
day after the fatal assault on Samuel.

In his sworn statement, 27 Escobia attested that as he was about to dance with a girl, Samuel stopped him, pointed
his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia and asked him, "Do you like this,
Dong?" to which Escobia replied, "No, Noy I do not like that." Samuel then placed the bullet in the shotgun and was
thus pointing it at Escobia when Toring came from behind Samuel and stabbed the latter. Even on cross-examination
at the trial, Escobia did not depart from his statement. In fact he added that Samuel pointed the shotgun at his chin
and told him to eat the bullet. 28

There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression inasmuch as his sworn
statement 29 and testimony in court had not been successfully discredited by the prosecution which also failed to
prove that Joel had reason to prevaricate to favor Toring.

The presence of unlawful aggression on the part of the victim and the lack of proof of provocation on the part of
Toring notwithstanding, full credence cannot be given, to Toring's claim of defense of a relative. Toring himself
admitted in court 30 as well as in his sworn statement 31 that in 1979, he was shot with a .22 caliber revolver by
Edgar Augusto, Samuel's brother. It cannot be said, therefore, that in attacking Samuel, Toring was impelled by pure
compassion or beneficence or the lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he
was motivated by revenge, resentment or evil motive 32 because of a "running feud" between the Augusto and the
Toring brothers. As the defense itself claims, after the incident subject of the instant case occurred, Toring's brother,
Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven both camps to commit
unlawful acts against each other. Hence, under the circumstances, to justify Toring's act of assaulting Samuel
Augusto would give free rein to lawlessness.

The lower court correctly considered the killing as murder in view of the presence of the qualifying circumstance of
treachery. The suddenness of the assault rendered Samuel helpless even to use his shotgun. We also agree with the
lower court that conspiracy and evident premeditation were not proven beyond reasonable doubt. Moreover,
nighttime cannot be considered as an aggravating circumstance. There is no proof that it was purposely sought to
insure the commission of the crime or prevent its discovery. 33 However, Toring should be credited with the
privileged mitigating circumstance of incomplete defense of relative and the generic mitigating circumstance of
voluntary surrender.

The penalty for murder under Article 248 of the Revised Penal Code being reclusion temporal maximum to death,
the imposable penalty is prision mayor maximum to reclusion temporal medium in view of the presence of the
mitigating circumstances of incomplete defense of relative and voluntary surrender (Art. 64 [5]). Applying the
Indeterminate Sentence Law, the proper penalty to be meted on Toring is prision correctional maximum as
minimum to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be sustained in the absence
of proof that it was physically impossible for him to be at the scene of the crime when it was committed. 34His house
was only a kilometer away from the place where he supplied the knife to Toring. 35 That distance does not preclude
the possibility that Diosdado aided Toring in the perpetration of the crime as it could be negotiated in just a few
minutes by merely walking. 36 Moreover, his alibi was uncorroborated as it was founded only on his own testimony
and what appears as a self-exonerating affidavit. 37

But what pins culpability on Diosdado were the testimonies of at least two prosecution witnesses who positively
identified him as the one who gave Toring the knife. Motive, therefore, has become immaterial in the face of such
positive identification 38 and hence, even if it were true that he was not a member of the kwaknit gang, his
participation in the killing has been proven beyond reasonable doubt. Added to this is the fact that Toring himself in
his sworn statement before the police pointed to him as the source of the knife. 39 Verily, Toting could not have
implicated him because of the incomprehensible reason that a case had been filed against Toring before the
barangay brigade.

Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of supplying Toring the death
weapon, Diosdado Berdon should be meted the penalty of prision mayor maximum to reclusion
temporalmedium which is the penalty next lower in degree to reclusion temporal maximum to death, the penalty
prescribed for murder by Article 248 (Article 6 [3]). There being no mitigating or aggravating circumstances, the
penalty should be in its medium period or reclusion temporal minimum (Article 64 [1]). Applying the Indeterminate
Sentence Law, the minimum penalty should be taken from prision mayor minimum while the maximum penalty
should be within the period of reclusion temporal minimum.

With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been proven beyond
reasonable doubt. The fact that he knew where Toring hid the knife does not imply that he concealed it to prevent
its discovery (Article 19 [2]). There simply is no proof to that effect. On the contrary, Luis Toring in his sworn
statement and testimony during the trial testified that after stabbing the victim, he ran away and went to his house
to hide the murder weapon. Being a close friend of Toring and a frequent visitor to the latter's house, it is not
impossible for Carmelo Berdin to know where Toring hid his knives. Significantly, Carmelo readily acceded to the
request of police officers to lead them to the place where Toring kept the knife. He willingly retrieved it and
surrendered it to the police, a behavior we find inconsistent with guilt.

WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis Toring as principal in the
murder of Samuel Augusto and Diosdado Berdon as an accomplice thereto.

The lower court's decision is modified as follows:

(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision correccional maximum as
minimum to twelve (12) years of prision mayor maximum as maximum;

(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayorminimum
as minimum to twelve (12) years and one (1) day of reclusion temporal minimum as maximum;

(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and

(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel Augusto an indemnity of
thirty thousand pesos (P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Feliciano, J., is on leave.

9 TY V PEOPLE

SECOND DIVISION

[G.R. No. 149275. September 27, 2004]

VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:

Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45, seeking to set aside the Decision[1] of
the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision affirmed
with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding
her guilty of seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise known as the Bouncing
Checks Law.

This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of
Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory
portion of the Information in Criminal Case No. 93-130465 reads as follows:

That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously make or draw and issue to Manila Doctors Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the
amount ofP30,000.00, said accused well knowing that at the time of issue she did not have sufficient funds in or
credit with the drawee bank for payment of such check in full upon its presentment, which check when presented
for payment within ninety (90) days from the date hereof, was subsequently dishonored by the drawee bank for
Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors
Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking days
after receiving said notice.

Contrary to law.[3]

The other Informations are similarly worded except for the number of the checks and dates of issue. The data are
hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount

93-130459 487710 30 March 1993 30,000.00

93-130460 487711 30 April 1993 P30,000.00

93-130461 487709 01 March 1993 P30,000.00

93-130462 487707 30 December 1992 P30,000.00

93-130463 487706 30 November 1992 P30,000.00

 93-130464 487708 30 January 1993 P30,000.00

93-130465 487712 30 May 1993 P30,000.00[4]

The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.[5]

The evidence for the prosecution shows that Tys mother Chua Lao So Un was confined at the Manila Doctors
Hospital (hospital) from 30 October 1990until 4 June 1992. Being the patients daughter, Ty signed the
Acknowledgment of Responsibility for Payment in the Contract of Admission dated 30 October 1990.[6] As of 4
June 1992, the Statement of Account[7] shows the total liability of the mother in the amount of P657,182.40. Tys
sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the
amount of P418,410.55.[8] The total hospital bills of the two patients amounted to P1,075,592.95. On 5 June 1992,
Ty executed a promissory note wherein she assumed payment of the obligation in installments.[9] To assure
payment of the obligation, she drew several postdated checks against Metrobank payable to the hospital. The
seven (7) checks, each covering the amount of P30,000.00, were all deposited on their due dates. But they were all
dishonored by the drawee bank and returned unpaid to the hospital due to insufficiency of funds, with the Account
Closed advice. Soon thereafter, the complainant hospital sent demand letters to Ty by registered mail. As the
demand letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.[10]

For her defense, Ty claimed that she issued the checks because of an uncontrollable fear of a greater injury. She
averred that she was forced to issue the checks to obtain release for her mother whom the hospital inhumanely and
harshly treated and would not discharge unless the hospital bills are paid. She alleged that her mother was deprived
of room facilities, such as the air-condition unit, refrigerator and television set, and subject to inconveniences such
as the cutting off of the telephone line, late delivery of her mothers food and refusal to change the latters gown
and bedsheets. She also bewailed the hospitals suspending medical treatment of her mother. The debasing
treatment, she pointed out, so affected her mothers mental, psychological and physical health that the latter
contemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother, and to
comply with the demands of the hospital, Ty was compelled to sign a promissory note, open an account with
Metrobank and issue the checks to effect her mothers immediate discharge.[11]

Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty issued the
checks subject of the case in payment of the hospital bills of her mother and rejected the theory of the
defense.[12] Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of
violation of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads:

CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid obligation,
which turned unfounded on their respective dates of maturity, is found guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or
a total of forty-two (42) months.

SO ORDERED.[13]

Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her defense
that she issued the checks under the impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She also argued that the trial court erred in finding her guilty when evidence showed there
was absence of valuable consideration for the issuance of the checks and the payee had knowledge of the
insufficiency of funds in the account. She protested that the trial court should not have applied the law
mechanically, without due regard to the principles of justice and equity.[14]

In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with modification. It
set aside the penalty of imprisonment and instead sentenced Ty to pay a fine of sixty thousand pesos (P60,000.00)
equivalent to double the amount of the check, in each case.[15]
In its assailed Decision, the Court of Appeals rejected Tys defenses of involuntariness in the issuance of the checks
and the hospitals knowledge of her checking accounts lack of funds. It held that B.P. 22 makes the mere act of
issuing a worthless check punishable as a special offense, it being a malum prohibitum. What the law punishes is
the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating
to its issuance.[16]

Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of the checks
as they were issued in payment of the hospital bills of Tys mother.[17]

In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court of
Appeals[18] wherein this Court declared that in determining the penalty imposed for violation of B.P. 22, the
philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable human
material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to
the protection of the social order.[19]

Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals. More
specifically, she ascribed errors to the appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.

B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR
IN AVOIDANCE OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN THE ISSUANCE
OFTHE SUBJECT CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN
THE ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.

In its Memorandum,[20] the Office of the Solicitor General (OSG), citing jurisprudence, contends that a check issued
as an evidence of debt, though not intended to be presented for payment, has the same effect as an ordinary check;
hence, it falls within the ambit of B.P. 22. And when a check is presented for payment, the drawee bank will
generally accept the same, regardless of whether it was issued in payment of an obligation or merely to guarantee
said obligation. What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued
nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum
prohibitum.[21]

We find the petition to be without merit and accordingly sustain Tys conviction.

Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are
entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that
the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the
case.[22] Jurisdiction of this Court over cases elevated from the Court of Appeals is limited to reviewing or revising
errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.[23]

In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the trial
court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the issuance of
the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or
injury. She would also have the Court believe that there was no valuable consideration in the issuance of the
checks.

However, except for the defenses claim of uncontrollable fear of a greater injury or avoidance of a greater evil or
injury, all the grounds raised involve factual issues which are best determined by the trial court. And, as previously
intimated, the trial court had in fact discarded the theory of the defense and rendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial court and the
Court of Appeals. They likewise put to issue factual questions already passed upon twice below, rather than
questions of law appropriate for review under a Rule 45 petition.

The only question of law raisedwhether the defense of uncontrollable fear is tenable to warrant her exemption
from criminal liabilityhas to be resolved in the negative. For this exempting circumstance to be invoked
successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be real
and imminent; and (3) the fear of an injury is greater than or at least equal to that committed.[24]

It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary
man would have succumbed to it.[25] It should be based on a real, imminent or reasonable fear for ones life or
limb.[26] A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote.[27] A person
invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as well.[28] It must be of such character as to leave no
opportunity to the accused for escape.[29]

In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was
compelled to issue the checksa condition the hospital allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might deteriorate further due to the inhumane treatment of the
hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear
contemplated by law.

To begin with, there was no showing that the mothers illness was so life-threatening such that her continued stay in
the hospital suffering all its alleged unethical treatment would induce a well-grounded apprehension of her
death. Secondly, it is not the laws intent to say that any fear exempts one from criminal liability much less
petitioners flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not
impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved
exclusively by the hospitals threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take
advantage of the many opportunities available to her to avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required prior to the discharge of her mother may be in the
form of postdated checks or jewelry.[30] And if indeed she was coerced to open an account with the bank and issue
the checks, she had all the opportunity to leave the scene to avoid involvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of
B.P. 22. She even testified that her counsel advised her not to open a current account nor issue postdated checks
because the moment I will not have funds it will be a big problem.[31] Besides, apart from petitioners bare
assertion, the record is bereft of any evidence to corroborate and bolster her claim that she was compelled or
coerced to cooperate with and give in to the hospitals demands.

Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying circumstance of
state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this
paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and less harmful means of preventing it.[32]

In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided
is merely expected or anticipated or may happen in the future, this defense is not applicable.[33] Ty could have taken
advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give
jewelry or other forms of security instead of postdated checks to secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been
brought about by the negligence or imprudence, more so, the willful inaction of the actor.[34] In this case, the
issuance of the bounced checks was brought about by Tys own failure to pay her mothers hospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the
justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty
been able to prove that the issuance of the bounced checks was done without her full volition. Under the
circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case[35] for damages filed by Tys
mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings
therein may establish a claim for damages which, we may add, need only be supported by a preponderance of
evidence, it does not necessarily engender reasonable doubt as to free Ty from liability.

As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the
contrary, that the same was issued for valuable consideration.[36] Section 24[37] of the Negotiable Instruments Law
creates a presumption that every party to an instrument acquired the same for a consideration[38] or for value.[39] In
alleging otherwise, Ty has the onus to prove that the checks were issued without consideration. She must present
convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. Valuable consideration
may in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who
makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given,
suffered or undertaken by the other aide. Simply defined, valuable consideration means an obligation to give, to do,
or not to do in favor of the party who makes the contract, such as the maker or indorser.[40]

In this case, Tys mother and sister availed of the services and the facilities of the hospital. For the care given to her
kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her
signature on her mothers Contract of Admission acknowledging responsibility for payment, and on the promissory
note she executed in favor of the hospital.

Anent Tys claim that the obligation to pay the hospital bills was not her personal obligation because she was not the
patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann, et al.[41] tells us that
it is no defense to an action on a promissory note for the maker to say that there was no consideration which was
beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a
detriment suffered by the promisee, at the instance of the promissor. It is enough if the obligee foregoes some right
or privilege or suffers some detriment and the release and extinguishment of the original obligation of George Vann,
Sr., for that of appellants meets the requirement. Appellee accepted one debtor in place of another and gave up a
valid, subsisting obligation for the note executed by the appellants. This, of itself, is sufficient consideration for the
new notes.

At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was issued nor
the terms and conditions relating to its issuance.[42] B.P. 22 does not make any distinction as to whether the checks
within its contemplation are issued in payment of an obligation or to merely guarantee the obligation.[43] The thrust
of the law is to prohibit the making of worthless checks and putting them into circulation.[44] As this Court held
in Lim v. People of the Philippines,[45] what is primordial is that such issued checks were worthless and the fact of its
worthlessness is known to the appellant at the time of their issuance, a required element under B.P. Blg. 22.

The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. 22
provides:

Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of
which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented
within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency
of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that
such check has not been paid by the drawee.

Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.[46] If not rebutted, it
suffices to sustain a conviction.[47]

Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with the
drawee bank and such knowledge necessarily exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as
deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the offense is the issuance of
a bad check, hence, malice and intent in the issuance thereof is inconsequential.[48]

In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this Court inquired into the true nature of
transaction between the drawer and the payee and finally acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special attention and do not warrant a strict and mechanical
application of the law.

Petitioners reliance on the case is misplaced. The material operative facts therein obtaining are different from
those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a warranty
deposit in a lease contract, where the lessor-supplier was also the financier of the deposit. It was a modus
operandi whereby the supplier was able to sell or lease the goods while privately financing those in desperate need
so they may be accommodated. The maker of the check thus became an unwilling victim of a lease agreement
under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks
were used as collateral for an accommodation and not to cover the receipt of an actual account or credit for value.

In the case at bar, the checks were issued to cover the receipt of an actual account or for value. Substantial
evidence, as found by the trial court and Court of Appeals, has established that the checks were issued in payment
of the hospital bills of Tys mother.

Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that petitioner
was not a first-time offender nor that she acted in bad faith. Administrative Circular 12-2000,[50] adopting the
rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the non-imposition of the penalty of
imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to modify the penalty in
view of Administrative Circular 13-2001[53] which clarified Administrative 12-2000. It is stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg.
22.

Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of the penal provisions of
B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a
clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more
appropriate penalty. Needless to say, the determination of whether circumstances warrant the imposition of a fine
alone rests solely upon the Judge. Should the judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment as an alternative
penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best
serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of
the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) should only
a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the Revised
Penal Code provisions on subsidiary imprisonment.[54]

WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001,
finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance
with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors Hospital,
the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the dishonored
checks. Costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.

Chico-Nazario, J., on leave.

10 PEOPLE V BAXINELA

THIRD DIVISION

[G.R. No. 121983. August 11, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VITERBO MONTERO, JR., JUANILLO BAXINELA, and SAMUEL
BIARE,accused, JUANILLO BAXINELLA, appellant.

DECISION

MELO, J.:

This concerns the appeal interposed by accused-appellant Juanillo Baxinela from the decision of the Regional Trial
Court of the sixth Judicial Region (Branch 39, Iloilo city), finding him and his co-accused Viterbo Montero, Jr., who
was tried in absentia, guilty beyond reasonable doubt of the special complex crime of robbery with homicide,
sentencing each of them to suffer the penalty of reclusion perpetua, and ordering them to pay jointly and severally
the legal heirs of the victim, Ferry Polluna, the amount of P50,000.00 for her wrongful death and another amount
of P30,000.00 as moral damages and the costs of suit.

In the Information filed by the provincial Fiscal of Iloilo, Viterbo Montero, Jr., Juanillo Baxinela, and Samuel Biare
were charged with the crime of Robbery with Homicide, committed as follows:

That on or about September 21, 1986, in the municipality of San Rafael, Province of Iloilo, Philippines, and within the
jurisdiction of this Court the above-named accused, conspiring, confederating and mutually helping one another to
better realize their purpose, armed with firearms, and taking advantage of their superior strength and number, and
with treachery and evident premeditation and with deliberate intent and decided purpose to kill, did then and there
willfully, unlawfully and feloniously attack, assault, shoot , hit and wound one Mrs. Ferry Polluna with the firearms
with which they were provided, thereby inflicting fatal gunshot wound on the vital part of her body which caused
her death immediately thereafter; that on the same occasion, the above-named accused in pursuance of their
conspiracy, with intent to gain, take , steal and carry away the wallet of Mrs. Ferry Polluna containing the amount of
TWELVE THOUSAND FIVE HUNDRED (P12,500.00) PESOS, Philippine currency.

CONTRARY TO LAW.

(Decision, Rollo, pp. 20-21)

Upon arraignment, all the accused, assisted by their counsel, pleaded not guilty.

After the trial had started, Samuel Biare died, while Viterbo Montero, Jr., after having been arraigned and identified
by the first witness for the prosecution, jumped bail. His bail bond was ordered confiscated by the court a quo. Trial
then proceeded against Juanillo Baxinela and also against Viterbo Montero, Jr., in absentia.

The prosecution presented three witnesses, namely Dr. Jeanne P. Declarador, Nory Polluna, and Floristo Causing.

The evidence of the prosecution tends to establish that:

At about 10 o'clock on the morning of September 21, 1986, the deceased Ferry Polluna, was walking on her way
home from the market at Sitio Tacayay, Barangay san Florentino, San Rafael, Iloilo. Nory Polluna, her 12-year old
daughter, was at their house watching the road awaiting the arrival of her mother. Upon seeing her mother from a
distance of fifty meters, Nory went out to meet her mother.

Nory then saw accused Viterbo Montero, Jr., shoot her mother with a short firearm hitting her once at the right side
of the forehead. Ferry Polluna fell on the ground. Thereupon, accused-appellant Juanillo Baxinela ran towards the
fallen Ferry Polluna and took her wallet containing cash. Nory also saw Samuel Biare, who acted as look-out, on the
side of the road near the kapok tree, emerge from his hiding place after Baxinela took the wallet of Ferry Polluna.
Then Biare, Viterbo, and accused-appellant Baxinela ran away.

Nory Polluna shouted for help and her father, Numeriano Polluna, who was in the rice field sisty meters away
responded. She told him that Viterbo Montero, Jr. shot her mother. Nory, her father and their neighbors placed
Ferry Polluna in a hammock and brought her to the town plaza of San Rafael. Nory, at this time, noticed her mother
was already dead. After waiting in vain for a doctor to arrive, they brought the body of Ferry Polluna to the funeral
parlor in the nearby town of Barotac Viejo. Nory and her father went home at around 6 o'clock in the evening.

Nory knew that the wallet of her mother contained money because earlier in the morning, she saw her father give
money to her mother intended to pay for the hospitalization expenses of Nory's grandfather who was in one of the
hospitals in Iloilo City.

The entire incident was also witnessed by Floresto Causing, a vendor of dried and fermented fish. Causing was
walking about 25 meters behind Ferry Polluna when she was shot by Viterbo Montero, Jr. He saw Nory Polluna
when she was approaching the fallen Ferry Polluna before he proceeded to by-pass the crime scene by taking
another route. He feared that he may set upon by the robbers.

The Rural Health Physician of San Rafael, Iloilo, Dr. Jeanne Declarador, conducted an autopsy on the cadaver of Ferry
Polluna on September 22, 1986. Her findings, which she confirmed on the witness stand, are embodied in her
Medico-Legal Report, as follows:

1. Post Mortem Examination Findings:

A. Rigor Mortis beginning with blood soaked clothings.

B. Gunshot wound on the right fronto-parietal area of the head causing rounded fracture of the skull
and massive brain injury and hemorrhage.

C. Several bone fragme(n)ts were recovered inside the cranial vault. No wound exit noted.

Cause of Death: Cardio-Respiratory Arrest Secondary to massive cerebral hemorrhage and injury secondary to
gunshot wound.

Upon the other hand, accused-appellant Juanillo Baxinela's defense is alibi and denial. He presented Apolinario
Pendilla, Ernesto Baylon, and his wife Nema Baxinela as witnesses to corroborate his alibi.

Their declarations are to the effect that from September 20, 1986 to the afternoon of September 21, 1986, accused-
appellant was at the farm of Apolinario Pendilla at Sitio Tacayay, Barangay San Florentino, San Rafael, Iloilo which is
about 600 to 700 meters away from the place where Ferry polluna was shot. Accused-appellant was then allegedly
helping in harvesting and threshing the palay in said farm, and in carrying the sacks of palay to the road. He went
home only at 10 P.M. of September 21, 1986, accompanied by two sons of Apolinario Pendilla. They learned of the
shooting incident only at about 3 o'clock or 3:30 o'clock on the afternoon of September 21, 1986.

It is also said that the family of Numeriano Polluna envied the families of Biare and Baxinela families because of their
farm.

The defense claimed that at about 10 o'clock on the morning of September 21, 1986, Nema Baxinela was picking
coffee in their yard. She heard Numeriano Polluna and Samuel Biare arguing along the road. Then she saw them
grappling for the possession of a short firearm. She saw Ferry Polluna ran towards the two in an attempt to separate
them. The gun then discharged and Ferry Polluna fell to the ground. Nema shouted for help and later, the brothers
of Ferry Polluna arrived. It is said that Nory Polluna, the daughter of the deceased, was not there at that time. And
according to Barangay Captain ernesto Baylon, Nory Polluna was not at the crime scene because she was watching a
basketball game at the poblacion.
After the incident, Samuel Biare ran away and was chased by Numeriano Polluna. Nema, however, did not tell the
policemen about the incident when the latter arrived at the scene and she did not also tell her husband what she
had witnessed.

On April 11, 1994, the trial court rendered judgment convicting accused-appellantJuanillo Baxinela and Viterbo
Montero, Jr., the dispositive portion of which reads:

WHEREFORE, premises considered, the accused Juanillo Baxinela and Viterbo Montero, Jr. are hereby found guilty
beyond reasonable doubt of the crime of Robbery with Homicide and are hereby sentenced each to suffer the
penalty of reclusion perpetua. Both accused are further ordered jointly and severally to pay the legal heirs of Ferry
Polluna the amount of P50,000.00 for her wrongful death and another amount of P30,000.00 as moral damages and
the costs of the suit.

Pursuant to the case of People vs. Ricardo c. Cortez., G.R. No. 92560, October 15, 1991, the bail bond put up by
accused Juanillo Baxinela is cancelled and the accused is hereby placed in confinement at the Iloilo Rehabilitation
Center to be transferred to the national Penitentiary pending resolution of appeal in case he appeals.

Let a warrant of arrest be issued against the accused Viterbo Montero, Jr.

Judgment is likewise rendered against the property bond put up by the accused Viterbo Montero, Jr. through his
bondsmen Francisco Magno, Rogelio Albelar and Pedro Albelar and Gil Azuelo in the amount of P50,000.00.

SO ORDERED.

(Rollo, pp. 39-40.)

Accused-appellant Baxinela is now before imputting to the trial court the lone assigned error that:

THE COURT A QUO MANIFESTED ERRED IN RENDERING A VERDICT OF CONVICTION DESPITE THE FACT THAT THE
GUILT OF ACCUSED-APPELLANT WAS NOT PROVED BEYOND REASONBLE DOUBT. (Rollo, p. 60.)

Accused-appellant contends that his evidence, although anchored on denial and alibi, was substantially
corroborated on material points; that what matters most is the fact that he was able to account for his exact
whereabouts when the incident took place; that the court a quo committed reversible error in not giving full faith
and credence to the corroborating testimony of his witnesses; and that his evidence gained commensurate strength
in view of the unfortified evidence of the prosecution. It is argued that one should not harbor mental prejudice
against a defendant who invokes the defense of denial and alibi.

These arguments boil down to the issue of credibility of the witnesses for the prosecution and for the defense.

It is a legal truism of long standing that the court accords great respect to the factual conclusions drawn by the trial
court, particularly on the matter of credibility of witnesses, since the trial judge had the opportunity to observe the
behavior and demeanor of witnesses while testifying (People vs. Soberano, 224 SCRA 467 [1995], unless some
material facts have been overlooked or misconstrued as to affect the result (People vs. Flores, 243 SCRA 374 [1995].
We find in this case no such material fact, after having conscientiously searched the record, that would impair the
correctness of the conclusions of the trial court.

Indeed, the trial court gave credence to the testimony of the two prosecution eyewitnesses, the same being clear
and convincing; and when lengthily cross-examined by the counsel for the accused, the witnesses did not waver.
Their testimony simply shows that they were present when the crime was perpetrated by the accused
(Decision, Rollo, p.28). The trial court did not believe Barangay Captain Baylon's declaration that Nory Polluna was
not at the scene of the crime at the time it was committed for she was allegedly watching a basketball game at the
Poblacion, because, so the trial judge said, this witness, upon the court's close observation , was a biased one and he
is the uncle of the wife of the accused-appellant (Rollo, p. 28).
The alibi of accused-appellant that he was not at the scene of the incident when it happened because from
September 20, 1986 up to the afternoon of September 21, 1986 he was working in the farm of Apolinario Pendilla
and went home only at 10 o'clock in the evening of September 21, 1986 was correctly rejected by the trial court.

Alibi to be given full faith and credit must be clearly established and must not leave any doubt as to its plausibility
and verity (People vs. Sagario, 121 Phil. 1257 [1965], 14 SCRA 468; People vs. Manalo, 135 SCRA 84 [1985]). The
accused must be able to establish that he was at another place at the time crime was committed and that it was
physically impossible for him to be at the scene of the crime at the particular moment it was perpetuated (People vs.
Urgel, 134 SCRA 483 [1985]). Alibi is not credible where prosecution witnesses directly testified on how the assault
was committed and positively identified the accused as the offender (People vs. Deus, 136 SCRA 660 [1985]); People
vs. Rosario and Rosario, 134 SCRA 496 [1985]; People vs. Serante, 152 SCRA 510, 525 [1987]).

As it is an established fact that the farm of Apolinario Pendilla where accused-appellant said he was allegedly
working at the time the crime was committed is only 600 to 700 meters away from the place of incident, it is
obvious that there was no physical impossibility for accused-appellant to have been at the scene of the crime at the
time of its commission. In People vs. Cristobal (252) SCRA 507; 517 [1996]), the court ruled out alibi when it was
proven that the accused was only three kilometers from where the crime was committed, " a manageable distance
to travel in a few minutes."

The two prosecution witnesses--Nory Polluna, who was 12 years old at the time of the incident and a daughter of
the deceased Ferry Polluna; and Floresto Causing , the dried fish and "bagoong" vendor-- testified on how the crime
was committed by accused-appellant and positively identified the two culprits. Nory declared:

Q. What were you doing there in your house on September 21, 1986 in that particular time?
A. I was waiting for my mother.
Q. Your mother, Ferry Polluna?
A. Yes, sir.
xxx xxx xxx
A. My mother went marketing.
xxx xxx xxx
Q. What did you do when you saw your mother arrive?
A. I went to her.

FISCAL:
You said you went to your mother, at the time you went to your mother, how far is your mother from your house?
A. About fifty meters.
Q. Were you able to go near your mother?
A. No, sir.
Q. Why did you not go near your mother?
A. She was shot.
Q. Who shot your mother?
A. Viterbo Montero, Jr. shot my mother.
xxx xxx xxx
Q. Did you actually see the accused Viterbo Montero, Jr. shot your mother?
A. Yes, sir.
Q. Was your mother hit?
A. Yes, sir.
Q. Where was your mother hit?
A. Here (witness is pointing to her right forehead).
(tsn, March 15, 1988, pp. 3-4.)
After declaring that her mother was shot only once by Viterbo Montero, Jr.(Ibid., p. 4), Nory Polluna continued her
testimony, describing clearly the participation of accused-appellant Juanillo Baxinela and accused Samuel Biare in
the commission of the crime. She declared:
Q. What happened to your mother after she was hit by that shot of Viterbo Montero, Jr.?
A. She fell down the ground.
xxx xxx xxx
A. I saw Juanillo Baxinela ran to where my mother was and pick up her wallet.
xxx xxx xxx
FISCAL:
My question is that, what happened after Juanillo Baxinela had picked up the wallet or bag which you demonstrated
to this court?
A. The three of them ran away.
Q. You said three of them ran away, who was the other one aside from Viterbo Montero, Jr. and Juanillo Baxinela?
A. Samuel Biare.
xxx xxx xxx
A. Samuel Biare stayed on the road side behind the duldol tree (Kapuk tree).
Q. After the three of them ran away, what did you do?
A. I shouted for help.
(tsn., March 15, 1988, p. 5.)
Floresto Causing, the second eyewitness to the crime presented by the prosecution identified the perpetrators
thereof and described how the crime was committed by them, thusly:
Q. At about 10:00 in the morning of September 21, 1986, do you recall where were you at that time?
A. Yes, sir.
xxx xxx xxx
A. At Brgy. San Florentino, San Rafael selling fish.
xxx xxx xxx
Q. You said you are at Sitio Tacayay, Barangay San Florentino on september 21, 1986 selling dried fish and
bagoong. On this particular time, did you notice any of the two witnesses or any incident that happened?
A. Yes, sir.
xxx xxx xxx
A. I saw Mrs. Polluna shot by Viterbo Montero, Jr.
Q. Where were you in relation to Mrs. Polluna when you saw her shot by the accused Viterbo Montero, Jr.?
A. I was following her.
Q. What happened to her because you said she was shot by Viterbo Montero, Jr.
A. She fell down the ground.
xxx xxx xxx
Q. And what happened after Mrs. Ferry Polluna fell on the ground after she was shot by Viterbo Montero, Jr.?
A. I saw Juanillo Baxinela take the wallet of Mrs. Polluna.
xxx xxx xxx
Q. In that particular time of September 21, 1986, when you saw the accused Viterbo Montero, Jr. shot Mrs.
Polluna and also you saw Juanillo Baxinela picked up the wallet of Mrs. Polluna, can you tell the court if you also saw
the person of Samuel Biare?
A. Yes, sir.
xxx xxx xxx
A. He was standing.
xxx xxx xxx
A. About two meters away.
Q. Aside from these three accused and Mrs. Polluna whom you were following, did you see other persons or
person?
A. The daughter of Mrs. Polluna was approaching her.
Q. What happened after Juanillo Baxinela picked up the wallet of the victim after she was shot Viterbo Montero,
Jr.?
A. I have not seen anything because I pass in another way.
xxx xxx xxx
A. Because it is dangerous to pass in that route I am afraid, I might be the next victim
(tsn., July 4, 1988, pp. 3-5.)
In the light of positive identification by the above witnesses who have no motive to falsely testify, accused-
appellant's alibi and denial are rendered worthless (People vs. Lansing, 248 SCRA 471 [1995]; People vs. Amania, 248
SCRA 486 [1995]; People vs. Lopez, 249 SCRA 610 [1995]; People vs. Diaz,et. al., G.R. No. 110829, April 18, 1997).
Causing is not related either by blood of affinity to any of the party litigants. He knew them all as a regular
customers. Being an independent witness who has not been shown to have any reason or motive to testify falsely,
Causing's testimony must prevail over the denials and alibis of accused-appellant (People vs. Lansing, supra).

And although Nory Polluna is a daughter of the victim, her relationship to her deceased mother does not
automatically impair her credibility. The Court has held that a witness' relationship to a victim, far from rendering
his testimony biased, would even render it more credible as it would be unnatural for a relative who is interested in
vindicating the crime to accuse somebody other than the real culprit. Relatives have a definite stake at seeing the
guilty person brought before the courts so that justice may be served. It is not to be lightly supposed that relatives
of the victim would callously violate their conscience to avenge the death of a dear one by blaming it on persons
who are in fact innocent of the crime (People vs. Galas, et. al. , G.R. No. 114007, September 24, 1996, citing People
vs. Vicente, 225 SCRA 361, 368-369 [1993]; People vs. Dominguez, 217 SCRA 170, 175 [1993]; and People vs. Boniao,
217 SCRA 653, 671 [1993]).

Moreover, Nory Polluna was only twelve years old at the time of the incident. It is worth stressing in this regard that
children of sound mind are likely to be more observant of incidents which take place within their view than older
persons and their testimony is, therefore, likely to be more correct in detail than that of older persons; and where
once established that they understood the nature and character of an oath, full faith and credit should be given
their testimony (People vs. Tanduyan, 236 SCRA 433 [1994]).

Indeed, the crime was committed in broad daylight, at 10 o'clock in the morning, and the record does not show any
circumstance that the visibility was then unfavorable. Where conditions of visibility are favorable, and the witness
does not appear to be biased, his assertion as to the identity of the malefactor should normally be accepted (People
vs. Bongadilla, 234 SCRA 233 [1994]).

Accused-appellant Baxinela's contention that he had nothing to do with the crime as shown by the fact that he did
not attempt to hide from the authorities before, during, and after the incident in question, and that he decided to
make himself readily available to the authorities, cannot prevail over the positive testimony of the two
eyewitnesses. Accused-appellant's pretended innocence is clearly non-sequitor to his decision not to flee. It is
illogical to hold that non-flight is a conclusive proof of innocence and the argument flies in the face of the definite
and clear identification of accused-appellant as one of the culprits. The material factor here is that there is positive
identification of accused-appellant as one of the authors of the crime (People vs. Precioso, 221 SCRA 748 [1993]).

Accused-appellant's contention that the lower court should have given credence to the story of the defense that
Nory was not at the scene of the incident and that Ferry Polluna was accidentally shot when she went between her
husband, Numeriano Polluna, and Samuel Biare, who were then grappling for possession of a short firearm does
not persuade the court.

Firstly, the trial court, upon observing Barangay Captain Ernesto Baylon, found him biased and thus debunked his
testimony to the effect that the victim's daughter and principal eyewitness to the incident, Nory Polluna, was at the
town plaza of San Rafael, Iloilo, watching a basketball game when the crime was committed.

Secondly, the testimony of Nema Baxinela, wife of accused-appellant , that Ferry Polluna was accidentally shot to
death during a grappling dispute between her husband Numeriano Polluna and Samuel Biare is
uncorroborated. There is even no explanation why Nema did not immediately inform the police authorities of this
vital circumstance which would exculpate her husband. Obviously, this tale is an afterthought.

And thirdly, where an accused's alibi is established only by himself and his relatives, his denial of culpability deserves
scant consideration, especially in the face of affirmative testimony of credible prosecution witnesses (People vs.
Corpuz, 240 SCRA 204 [1995]).

When homicide is committed as a consequence or on the occasion of the robbery, all those who took part as
principals in the robbery will also be liable as principals of the special complex crime of robbery with homicide,
although they did not actually take part in the homicide, unless it is clearly shown that they endeavored to prevent
the unlawful killing (People vs. Balanag, 236 SCRA 475 [1994]). In the case at bar, it has not been shown that
accused-appellant tried to prevent the shooting of Ferry Polluna. Instead, as soon as Ferry had fallen to the ground,
it was accused-appellant who took her bag containing money.

At the time of its commission in 1986, robbery with homicide was still punishable with reclusion perpetua,
notwithstanding the aggravating circumstance attending the commission of the crime (Ibid., p. 486).

The Court sustains the award of P30,000.00 for moral damages. Moral damages compensate for mental anguish,
serious anxiety, and moral shock suffered by the victim or his family as the proximate result of the wrongful act, and
they are recoverable where a criminal offense results in physical injuries as in the instant case before us which in
fact culminated in the death if the victim (People vs. Medroso, Jr., 62 SCRA 245, 251 [1975]).

WHEREFORE, for all the foregoing, the court hereby AFFIRMS in toto the decision appealed from. No special
pronouncement is made as to costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Francisco, and Panganiban, JJ., concur.
11 POMOY V PEOPLE

THIRD DIVISION

[G.R. No. 150647. September 29, 2004]

ROWENO POMOY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

Well-established is the principle that the factual findings of the trial court, when affirmed by the Court of Appeals,
are binding on the highest court of the land. However, when facts are misinterpreted and the innocence of the
accused depends on a proper appreciation of the factual conclusions, the Supreme Court may conduct a review
thereof. In the present case, a careful reexamination convinces this Court that an accident caused the victims
death. At the very least, the testimonies of the credible witnesses create a reasonable doubt on appellants
guilt. Hence, the Court must uphold the constitutional presumption of innocence.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to set aside the February 28, 2001
Decision[2] and the October 30, 2001 Resolution[3] of the Court of Appeals (CA) in CAGR CR No. 18759. The CA
affirmed, with modifications, the March 8, 1995 judgment[4] of the Regional Trial Court (RTC)[5] of Iloilo City (Branch
25) in Criminal Case No. 36921, finding Roweno Pomoy guilty of the crime of homicide. The assailed CA Decision
disposed as follows:

WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the [Petitioner] ROWENO POMOY is
sentenced to suffer an indeterminate prison term of six (6) years, four (4) months and ten (10) days of prision
mayor minimum, as minimum, to fourteen (14) years eight (8) months and twenty (20) days of reclusion temporal
medium, as maximum, the decision appealed from is hereby AFFIRMED in all other respects.[6]

The challenged CA Resolution denied petitioners Motion for Reconsideration.

Petitioner was charged in an Information worded thus:

That on or about the 4th day of January 1990, in the Municipality of Sara, Province of Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, armed with his .45 service pistol, with deliberate
intent and decided purpose to kill, and without any justifiable cause or motive, did then and there willfully,
unlawfully and feloniously assault, attack and shoot one TOMAS BALBOA with the service pistol he was then
provided, inflicting upon the latter gunshot wounds on the vital parts of his body, which directly caused the death of
said victim thereafter.[7]

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presented respondents version of the facts as follows:

Tomas Balboa was a master teacher of the Concepcion College of Science and Fisheries in Concepcion, Iloilo.

On January 4, 1990, about 7:30 in the morning, some policemen arrived at the Concepcion College to arrest Balboa,
allegedly in connection with a robbery which took place in the municipality in December 1989. With the arrest
effected, Balboa and the policemen passed by the Concepcion Elementary School where his wife, Jessica, was in a
get-together party with other School Administrators. When his wife asked him, Why will you be arrested? [H]e
answered [Even I] do not know why I am arrested. That is why I am even going there in order to find out the reason
for my arrest.

Balboa was taken to the Headquarters of the already defunct 321st Philippine Constabulary Company
at Camp Jalandoni, Sara, Iloilo. He was detained in the jail thereat, along with Edgar Samudio, another suspect in
the robbery case.

Later that day, about a little past 2 oclock in the afternoon, petitioner, who is a police sergeant, went near the
door of the jail where Balboa was detained and directed the latter to come out, purportedly for tactical
interrogation at the investigation room, as he told Balboa: Lets go to the investigation room. The investigation
room is at the main building of the compound where the jail is located. The jail guard on duty, Nicostrado Estepar,
opened the jail door and walked towards the investigation room.

At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was hanging by the side of his
belt. The gun was fully embedded in its holster, with only the handle of the gun protruding from the holster.

When petitioner and Balboa reached the main building and were near the investigation room, two (2) gunshots
were heard. When the source of the shots was verified, petitioner was seen still holding a .45 caliber pistol, facing
Balboa, who was lying in a pool of blood, about two (2) feet away. When the Commanding Officer of the
Headquarters arrived, he disarmed petitioner and directed that Balboa be brought to the hospital. Dr. Palma (first
name not provided) happened to be at the crime scene as he was visiting his brother in the Philippine
Constabulary. When Dr. Palma examined Balboa, he (Dr. Palma) said that it was unnecessary to bring Balboa to the
hospital for he was dead.

Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo Jabonete, the medico-legal officer of
the National Bureau of Investigation, Region VI, IloiloCity, conducted an autopsy on the remains of Tomas
Balboa. The following were his findings:

Pallor, integumens and nailbeds.

Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by sutures, surrounded by abrasion
collar, 0.6 cm. In its chest, left side, 10.0 cms. from anterior midline, 121.0 cms. From left heel, directed medially
backwards from left to right, penetrating chest wall thru 5th intercostals space into thoracic cavity, perforating thru
and thru, upper lobe, left lung, lacerating left ventricular wall causing punched out fracture, 8th thoracic vertebra
and make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges, modified by sutures, back, right side, 8.0 cms. From
posterior midline, 117.0 cms. From right heel (2) ENTRANCE, ovaloid, oriented medially downwards, edges sutured,
0.7 cm. on its widest portion, at infero-medial border, hypochondriac region, left side, 4.0 cms. From anterior
midline, 105.0 cms. From left heel, directed backwards, laterally wall into penetrating abdominal cavity, perforating
thru and thru, stomach, head of the pancreas and mesentery, make an exit, ovalid, 1.0 x 0.8 cm., oriented medially
upwards, edges, sutured, back, left side, level of 9th intercostal space, 4.5 cms. From posterior midline, 110.0 cms.
From left heel. x x x.

CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest and abdomen.

REMARKS: Body previously embalmed and autopsied.

Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboas body were gunshot wounds. The
entrance of [W]ound No. 1 was to the left side of the chest about the left nipple and exited to the right side of the
back. Its trajectory was backwards then downwards from left to right. As to the possible position of the assailant,
Dr. Jaboneta opined that the nozzle of the gun was probably in front of the victim and was more to the left side, and
the gun must have been a little bit higher than the entrance wound. Wound No. 2 was located immediately below
the arch of the ribs, left side. Its direction was backwards and laterally upwards. Dr. Jaboneta estimated that when
it was inflicted, the assailant must have pointed the guns nozzle to the right side front of the victim. The distance
between the entrance points of wounds No. 1 and No. 2 was found to be about 16.0 centimeters.[8]
Version of the Defense

The Petition adopted the narration of facts in the assailed CA Decision, which in turn culled them from the trial
court. The RTC summarized the testimonies of Defense Witnesses Erna Basa, the lone eyewitness to the incident;
Eden Legaspi; Dr. Salvador Mallo Jr.; and petitioner himself, as follows:

Erna Basa:

x x x [O]n January 4, 1990, she was working in their office in the camp up to the afternoon; at about past 2 oclock
that afternoon while working on the backlogs, she heard some noise and exchange of words which were not clear,
but it seemed there was growing trouble; she opened the door to verify and saw Roweno Pomoy and Tomas Balboa
grappling for the possession of the gun; she was inside the room and one meter away from the door; Pomoy and
Balboa while grappling were two to three meters away from the door; the grappling happened so fast and the gun
of Pomoy was suddenly pulled out from its holster and then there was explosion; she was not certain who pulled the
gun. x x x.

Eden Legaspi:

x x x [A]s early as 1:30 oclock in the afternoon of January 4, 1990 she was inside the investigation room of the PC at
Camp Jalandoni, Sara, Iloilo; at about 2 oclock that same afternoon while there inside, she heard a commotion
outside and she remained seated on the bench; when the commotion started they were seated on the bench and
after the commotion that woman soldier (referring to Erna Basa) stood up and opened the door and she saw two
persons grappling for the possession of a gun and immediately two successive shots rang out; she did not leave the
place where she was seated but she just stood up; after the shots, one of the two men fall down x x x.

Accused-petitioner Roweno Pomoy:

He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company then attached to the defunct
321st PC Company; he was one of the investigators of their outfit; about 2 oclock or past that time of January 4,
1990 he got Tomas Balboa from their stockade for tactical interrogation; as he was already holding the door knob of
their investigation room and about to open and enter it, all of a sudden he saw Tomas Balboa approach him and
take hold or grab the handle of his gun; Tomas Balboa was a suspect in a robbery case who was apprehended by the
police of Concepcion and then turned over to them (PC) and placed in their stockade; he asked the sergeant of the
guard to let Balboa out of the stockade for interrogation; from the stockade with Balboa walking with him, he had
his .45 caliber pistol placed in his holster attached to his belt on his waist; then as he was holding the doorknob with
his right hand to open the door, the victim, who was two meters away from him, suddenly approached him and
grabbed his gun, but all of a sudden he held the handle of his gun with his left hand; he released his right hand from
the doorknob and, with that right hand, he held the handle of his gun; Tomas Balboa was not able to take actual
hold of the gun because of his efforts in preventing him (Balboa) from holding the handle of his gun; he used his left
hand to parry the move of Balboa; after he held the handle of his gun with his right hand, in a matter of seconds, he
felt somebody was holding his right hand; he and Balboa grappled and in two or three seconds the gun was drawn
from its holster as both of them held the gun; more grappling followed and five seconds after the gun was taken
from its holster it fired, the victim was to his right side when the attempt to grab his gun began and was still to his
right when the gun was drawn from its holster until it fired, as they were still grappling or wrestling; his gun was
already loaded in its chamber and cocked when he left his house, and it was locked when it fired; during the
grappling he used his left hand to prevent Balboa from holding his gun, while the victim used his right hand in trying
to reach the gun; after the gun fired, they were separated from each other and Balboa fell; he is taller than Balboa
though the latter was bigger in build; he cannot say nor determine who of them was stronger; after Balboa fell, Sgt.
Alag shouted saying stop that and he saw Sgt. Alag approaching; sometime after, Capt. Rolando Maclang, their
commanding officer, came, got his gun, and said that the case be investigated as to what really happened. He said
that when his gun was put in its holster only its handle protrudes or comes out from it.
Upon cross-examination, he said that Balboa was a suspect in a robbery case that happened during the first week
of December, 1989; he was the one who filed that case in the town of San Dionisio and that case involves other
persons who were also detained; before January 4, 1990 he had also the chance to invite and interrogate Balboa but
who denied any robbery case; x x x [I]t was after he took his lunch that day when Capt. Maclang called him to
conduct the interrogation; when he took Balboa from the stockade he did not tell him that he (Balboa) was to be
investigated in the investigation room which was housed in the main building which is fifty meters, more or less,
from the stockade, likewise houses the administrative office, the office of the commanding officer, officer of the
operations division and that of the signal division; his gun was in its holster when the victim tried to grab it (gun);
from the time he sensed that the victim tried to grab his gun, he locked the victim; the hand of the victim was on top
of his hand and he felt the victim was attempting to get his gun; that the entire handle of his gun was exposed when
placed inside its holster; he cannot tell whether the victim, while struggling with him, was able to hold any portion
of his gun from the tip of its barrel to the point where its hammer is located; during the incident his gun was fully
loaded and cocked; Sgt. Alag did not approach, but just viewed them and probably reported the incident to their
commanding officer; he was not able to talk to Sgt. Alag as he (Pomoy) was not in his right sense; when his
commanding officer came some five to ten minutes later and took away his gun he did not tell him anything.

Dr. Salvador Mallo Jr.

He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver of Tomas Balboa that afternoon
of January 4, 1990; in his autopsy findings respecting which he made an autopsy report he said he found two
entrance wounds on the victim, the first on the left chest with trajectory medially downward, while the second one
is on the left side of the stomach with trajectory somewhat going upward; at the same time of his examination he
saw this victim to be wearing a light-colored T-shirt and a jacket; other than the T-shirt worn by the victim, he did
not see or find any powder burns and marks and that those dotted marks in the T-shirt were believed by him to be
powder burns as they look like one; he also found a deformed slug in the pocket of the jacket of the victim.[9]

Ruling of the Court of Appeals

The CA anchored its Decision on the following factual findings: 1) the victim was not successful in his attempts to
grab the gun, since petitioner had been in control of the weapon when the shots were fired; 2) the gun had been
locked prior to the alleged grabbing incident and immediately before it went off; it was petitioner who released the
safety lock before he deliberately fired the fatal shots; and 3) the location of the wounds found on the body of the
deceased did not support the assertion of petitioner that there had been a grappling for the gun.

To the appellate court, all the foregoing facts discredited the claim of petitioner that the death of Balboa resulted
from an accident. Citing People v. Reyes,[10] the CA maintained that a revolver is not prone to accidental firing if it
were simply handed over to the deceased as appellant claims because of the nature of its mechanism, unless it was
already first cocked and pressure was exerted on the trigger in the process of allegedly handing it over. If it were
uncocked, then considerable pressure had to be applied on the trigger to fire the revolver. Either way, the shooting
of the deceased must have been intentional because pressure on the trigger was necessary to make the gun fire.[11]

Moreover, the appellate court obviously concurred with this observation of the OSG:

[Petitioners] theory of accident would have been easier to believe had the victim been shot only once. In this case,
however, [petitioner] shot the victim not only once but twice, thereby establishing [petitioners] determined effort
to kill the victim. By any stretch of the imagination, even assuming without admitting that the first shot
wasaccidental, then it should not have been followed by another shot on another vital part of the body. The fact
that [petitioner] shot the victim two (2) times and was hit on two different and distant parts of the body, inflicted
from two different locations or angles, means that there was an intent to cause the victims death, contrary to
[petitioners] pretensions of the alleged accidental firing. It is an oft-repeated principle that the location,
number and gravity of the wounds inflicted on the victim have a more revealing tale of what actually happened
during the incident. x x x.[12]
Furthermore, the CA debunked the alternative plea of self-defense. It held that petitioner had miserably failed to
prove the attendance of unlawful aggression, an indispensable element of this justifying circumstance.

While substantially affirming the factual findings of the RTC, the CA disagreed with the conclusion of the trial court
that the aggravating circumstance of abuse of public position had attended the commission of the
crime. Accordingly, the penalty imposed by the RTC was modified by the appellate court in this manner:

x x x [F]or public position to be appreciated as an aggravating circumstance, the public official must use his
influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have
perpetrated the crime without occupying his position, then there is no abuse of public position. (People vs. Joyno,
304 SCRA 655, 670). In the instant case, there is no showing that the [petitioner] had a premeditated plan to kill the
victim when the former fetched the latter from the stockade, thus, it cannot be concluded that the public position of
the [petitioner] facilitated the commission of the crime. Therefore, the trial courts finding that the said aggravating
circumstance that [petitioner] took advantage of his public position to commit the crime cannot be
sustained. Hence, there being no aggravating and no mitigating circumstance proved, the maximum of the penalty
shall be taken from the medium period of reclusion temporal, a penalty imposable for the crime of homicide. x x
x.[13]

Hence, this Petition.[14]

Issues

In his Memorandum, petitioner submitted the following issues for the Courts consideration:

I. The Court of Appeals committed serious and reversible error in affirming petitioners conviction despite the
insufficiency of the prosecutions evidence to convict the petitioner, in contrast to petitioners overwhelming
evidence to support his theory/defense of accident.

II. The Court of Appeals committed grave and reversible error in affirming the conviction of the petitioner on a
manifestly mistaken inference that when the gun fired, the petitioner was in full control of the handle of the gun,
because what the testimonies of disinterested witnesses and the petitioner reveal was that the gun fired while
petitioner and Balboa were both holding the gun in forceful efforts to wrest the gun from each other.

III. The Court of Appeals gravely erred in affirming the solicitor generals observation that the fact that
petitioner shot the victim twice establishes petitioners determined effort to kill the victim.

IV. The appellate court committed serious misapprehension of the evidence presented when it ruled that the
trajectory of the wounds was front-to-back belying the allegation of petitioner that he and the victim were side-by-
side each other when the grappling ensued.

V. The Court of Appeals failed to discern the real import of petitioners reaction to the incident when it stated
that the dumbfounded reaction of petitioner after the incident strongly argues against his claim of accidental
shooting.

VI. The appellate court committed grave error when it disregarded motive or lack of it in determining the
existence of voluntariness and intent on the part of petitioner to shoot at the victim when the same was put in
serious doubt by the evidence presented.

VII. The Court of Appeals was mistaken in ruling that the defense of accident and self-defense are
inconsistent.

VIII. The Court of Appeals obviously erred in the imposition of the penalties and damages.[15]

In sum, the foregoing issues can be narrowed down to two: First, whether the shooting of Tomas Balboa was the
result of an accident; and second, whether petitioner was able to prove self-defense.
The Courts Ruling

The Petition is meritorious.

First Issue:

Accidental Shooting

Timeless is the legal adage that the factual findings of the trial court, when affirmed by the appellate court, are
conclusive.[16] Both courts possess time-honored expertise in the field of fact finding. But where some facts are
misinterpreted or some details overlooked, the Supreme Court may overturn the erroneous conclusions drawn by
the courts a quo. Where, as in this case, the facts in dispute are crucial to the question of innocence or guilt of the
accused, a careful factual reexamination is imperative.

Accident is an exempting circumstance under Article 12 of the Revised Penal Code:

Article 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability:

xxx xxx xxx

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or
intent of causing it.

Exemption from criminal liability proceeds from a finding that the harm to the victim was not due to the fault or
negligence of the accused, but to circumstances that could not have been foreseen or controlled.[17] Thus, in
determining whether an accident attended the incident, courts must take into account the dual standards of lack
of intent to kill and absence of fault or negligence. This determination inevitably brings to the fore the main
question in the present case: was petitioner in control of the .45 caliber pistol at the very moment the shots were
fired?

Petitioner Not in Control

of the Gun When It Fired

The records show that, other than petitioner himself, it was Erna Basa who witnessed the incident firsthand. Her
account, narrated during cross-examination, detailed the events of that fateful afternoon of January 4, 1990 as
follows:

ATTY. TEODOSIO:

Q. You said that while you were inside the investigation room you heard a commotion. That commotion which you
heard, did you hear any shouting as part of that commotion which you heard?

A. Moderately there was shouting and their dialogue was not clear. It could not be understood.

Q. Did you hear any voices as part of that commotion?

A. No, sir.

Q. From the time you entered the investigation room you did not hear any voice while you were inside the
investigation room as part of that commotion?

A. There was no loud voice and their conversation could not be clarified. They were talking somewhat like
murmuring or in a low voice but there was a sort of trouble in their talks.

COURT:
Q. Was there a sort of an exchange of words in their conversation?

A. Yes, sir.

xxx xxx xxx

Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in this case? Am I correct?

A. Yes, sir.

Q. And when you saw Sgt. Pomoy was he holding a gun?

A. Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I saw both of them grappling
for that gun.

Q. Where was the gun at that time?

A. The gun was in its holster. (Witness illustrating by pointing to [her] side.)

Q. When you demonstrated you were according to you saw the hands holding the gun. It was Sgt. Pomoy who was
holding the gun with his right hand?

A. I saw two hands on the handle of the gun in its holster, the hand of Sir Balboa and Sgt. Pomoy.

COURT:

Q. At that precise moment the gun was still in its holster?

A. When I took a look the gun was still in its holster with both hands grappling for the possession of the gun.

Q. How many hands did you see?

A. Two.

Q. One hand of Sgt. Pomoy and one hand is that of the victim?

A. Yes, sir.

COURT:

Proceed.

ATTY TEODOSIO:

Q. Which hand of Sgt. Pomoy did you see holding the gun?

A. Right hand of Sgt. Pomoy.

Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?

A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboas hand was also there. Both of them were
holding the gun.

Q. Which part of the gun was the right hand of Sgt. Pomoy holding?

A. The handle.

Q. And was he facing Tomas Balboa when he was holding the gun with his right hand?

A. At first they were not directly facing each other.

Q. So later, they were facing each other?

A. They were not directly facing each other. Their position did not remain steady as they were grappling for the
possession of the gun force against force.

COURT:

Q. What was the position of the victim when the shots were fired?

A. When I saw them they were already facing each other.

Q. What was the distance?

A. Very close to each other.

Q. How close?

A. Very near each other.

Q. Could it be a distance of within one (1) foot?

A. Not exactly. They were close to each other in such a manner that their bodies would touch each other.

Q. So the distance is less than one (1) foot when the gun fired?

A. One (1) foot or less when the explosions were heard.

Q. And they were directly facing each other?

A. Yes, sir.

COURT:

Proceed.

Q. Were you able to see how the gun was taken out from its holster?

A. While they were grappling for the possession of the gun, gradually the gun was released from its holster and
then there was an explosion.

Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired because they were grappling for the
possession of the gun.

Q. Did you see when the gun fired when they were grappling for its possession?

A. Yes sir, I actually saw the explosion. It came from that very gun.

Q. Did you see the gun fired when it fired for two times?

A. Yes, sir.

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed to because the gun was turning.

xxx xxx xxx

Q. Could you tell the court who was holding the gun when the gun fired?
A. When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He was the one holding the gun.

Q. After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?

A. Yes, sir.

Q. How soon after the gun went off when you saw the gun in the hand of Sgt. Pomoy?

A. After Balboa had fallen and after they had separated themselves with each other, it was then that I saw Sgt.
Pomoy holding the gun.

COURT:

Proceed.

ATTY. TEODOSIO:

Q. When the gun was taken out from its holster, Sgt. Pomoy was the one holding the handle of the gun? Am I
correct?

A. Both of them were holding the handle of the gun.

Q. So when the gun was still in its holster, two of them were holding the gun?

A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.

Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you testified?

A. Yes, sir.

Q. Which hand of Balboa was holding the handle of the gun?

A. Left hand.

Q. At the time Balboa was holding the handle of the gun with his left hand, was he in front of Sgt. Pomoy?

A. They had a sort of having their sides towards each other. Pomoys right and Balboas left sides [were] towards
each other. They were side by side at a closer distance towards each other.

xxx xxx xxx

Q. It was actually Sgt. Pomoy who was holding the handle of the gun during that time?

A. When I looked out it was when they were grappling for the possession of the gun and the right hand of Sgt.
Pomoy was holding the handle of the gun.

Q. When you saw them did you see what position of the handle of the gun was being held by Tomas Balboa? The
rear portion of the handle of the gun or the portion near the trigger?

A. When I looked at them it was the hand of Sgt. Pomoy holding the handle of the gun with his right hand with
the hand of Sir Balboa over the hand of Pomoy, the same hand holding the gun.

Q. It was in that position when the gun was removed from its holster?

A. When the gun pulled out from its holster, I was not able to notice clearly anymore whose hand was holding
the gun when I saw both their hands were holding the gun.

Q. When you said this in [the] vernacular, Daw duha na sila nagakapot, what you really mean?
A. Both of them were holding the gun.

Q. But Sgt. Pomoy still holding the handle of the gun?

A. Still both of them were holding the handle of the gun.

Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you have previously said when the
gun was in the holster of Sgt. Pomoy?

A. When the gun was pulled from its holster, I saw that Sgt. Pomoys right hand was still on the handle of the
gun with the left hand of Sir Balboa over his right hand of Sgt. Pomoy, like this (witness illustrating by showing his
right hand with her left hand over her right hand as if holding something. The thumb of the left hand is somewhat
over the index finger of the right hand.)

COURT:

Which hand of the victim was used by him when the gun was already pulled out form its holster and while the
accused was holding the handle of the gun?

A. Left hand.

Q. So, he was still using the same left hand in holding a portion of the handle of the gun up to the time when the
gun was pulled out from its holster?

A. Yes sir, the same left hand and that of Pomoy his right hand because the left hand of Pomoy was used by him in
parrying the right hand of Sir Balboa which is about to grab the handle of the gun.

COURT:

Q. So in the process of grappling he was using his left hand in pushing the victim away from him?

A. Yes, sir.

Q. What about the right hand of the victim, what was he doing with his right hand?

A. The victim was trying to reach the gun with his right hand and Pomoy was using his left hand to protect the
victim from reaching the gun with his right hand.

COURT:

Proceed.

ATTY. TEODOSIO:

Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of the gun of Sgt. Pomoy?

A. Yes, sir.

Q. And that was at the time before the shots were fired?

A. Yes, he was able to hold the tip of the barrel of the gun using his right hand.

COURT:

Q. That was before the gun fired?

A. Yes, sir.[18]
The foregoing account demonstrates that petitioner did not have control of the gun during the scuffle. The
deceased persistently attempted to wrest the weapon from him, while he resolutely tried to thwart those
attempts. That the hands of both petitioner and the victim were all over the weapon was categorically asserted by
the eyewitness. In the course of grappling for the gun, both hands of petitioner were fully engaged -- his right hand
was trying to maintain possession of the weapon, while his left was warding off the victim. It would be difficult to
imagine how, under such circumstances, petitioner would coolly and effectively be able to release the safety lock of
the gun and deliberately aim and fire it at the victim.

It would therefore appear that there was no firm factual basis for the following declaration of the appellate
court: [Petitioner] admitted that his right hand was holding the handle of the gun while the left hand of the victim
was over his right hand when the gun was fired. This declaration would safely lead us to the conclusion that when
the gun went off herein [petitioner] was in full control of the gun.[19]

Release of the Guns Safety Lock and

Firing of the Gun Both Accidental

Petitioner testified that the .45 caliber service pistol was equipped with a safety lock that, unless released, would
prevent the firing of the gun. Despite this safety feature, however, the evidence showed that the weapon fired and
hit the victim -- not just once, but twice. To the appellate court, this fact could only mean that petitioner had
deliberately unlocked the gun and shot at the victim. This conclusion appears to be non sequitur.

It is undisputed that both petitioner and the victim grappled for possession of the gun. This frenzied grappling for
the weapon -- though brief, having been finished in a matter of seconds -- was fierce and vicious. The eyewitness
account amply illustrated the logical conclusion that could not be dismissed: that in the course of the scuffle, the
safety lock could have been accidentally released and the shots accidentally fired.

That there was not just one but two shots fired does not necessarily and conclusively negate the claim that the
shooting was accidental, as the same circumstance can easily be attributed to the mechanism of the .45 caliber
service gun. Petitioner, in his technical description of the weapon in question, explained how the disputed second
shot may have been brought about:

x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic pistol, when fired, immediately
slides backward throwing away the empty shell and returns immediately carrying again a live bullet in its
chamber. Thus, the gun can, as it did, fire in succession. Verily, the location of, and distance between the wounds
and the trajectories of the bullets jibe perfectly with the claim of the petitioner: the trajectory of the first shot going
downward from left to right thus pushing Balboas upper body, tilting it to the left while Balboa was still clutching
petitioners hand over the gun; the second shot hitting him in the stomach with the bullet going upward of Balboas
body as he was falling down and releasing his hold on petitioners hand x x x.[20]

Thus, the appellate courts reliance on People v. Reyes[21] was misplaced. In that case, the Court disbelieved the
accused who described how his gun had exploded while he was simply handing it over to the victim. Here, no
similar claim is being made; petitioner has consistently maintained that the gun accidentally fired in the course of his
struggle with the victim. More significantly, the present case involves a semi-automatic pistol, the mechanism of
which is very different from that of a revolver, the gun used in Reyes.[22] Unlike a revolver, a semi-automatic pistol,
as sufficiently described by petitioner, is prone to accidental firing when possession thereof becomes the object of a
struggle.

Alleged Grappling Not Negated

by Frontal Location of Wounds

On the basis of the findings of Dr. Jaboneta showing that the wounds of the deceased were all frontal, the appellate
court rejected petitioners claim that a grappling for the weapon ever occurred. It held that if there was indeed a
grappling between the two, and that they had been side [by] side x x x each other, the wounds thus inflicted could
not have had a front-to-back trajectory which would lead to an inference that the victim was shot frontally, as
observed by Dr. Jaboneta.[23]

Ordinarily, the location of gunshot wounds is indicative of the positions of the parties at the precise moment when
the gun was fired. Their positions would in turn be relevant to a determination of the existence of variables such as
treachery, aggression and so on.

In the factual context of the present case, however, the location of the wounds becomes inconsequential. Where, as
in this case, both the victim and the accused were grappling for possession of a gun, the direction of its nozzle may
continuously change in the process, such that the trajectory of the bullet when the weapon fires becomes
unpredictable and erratic. In this case, the eyewitness account of that aspect of the tragic scuffle shows that the
parties positions were unsteady, and that the nozzle of the gun was neither definitely aimed nor pointed at any
particular target. We quote the eyewitness testimony as follows:

Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired because they were grappling for the
possession of the gun.

xxx xxx xxx

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed to because the gun was
turning.[24]

xxx xxx xxx

Q And was he facing Tomas Balboa when he was holding the gun with his right hand?

A At first, they were not directly facing each other.

Q So later, they were facing each other?

A They were not directly facing each other. Their position did not remain steady as they were grappling for the
possession of the gun force against force.[25]

In his Petition, this explanation is given by petitioner:

x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First, because the position of the gun
does not necessarily indicate the position of the person or persons holding the gun when it fired. This is especially
true when two persons were grappling for the possession of the gun when it fired, as what exactly transpired in this
case. x x x.

[The] testimony clearly demonstrates that the petitioner was on the left side of the victim during the grappling
when the gun fired. The second wound was thus inflicted this wise: when the first shot hit Balboa, his upper body
was pushed downward owing to the knocking power of the caliber .45 pistol. But he did not let go of his grip of the
hand of petitioner and the gun, Balboa pulling the gun down as he was going down. When the gun went off the
second time hitting Balboa, the trajectory of the bullet in Balboas body was going upward because his upper body
was pushed downward twisting to the left. It was then that Balboa let go of his grip. On cross-examination,
petitioner testified, what I noticed was that after successive shots we separated from each other. This sequence
of events is logical because the protagonists were grappling over the gun and were moving very fast. x x x. [26]

Presence of All the

Elements of Accident

The elements of accident are as follows: 1) the accused was at the time performing a lawful act with due care; 2) the
resulting injury was caused by mere accident; and 3) on the part of the accused, there was no fault or no intent to
cause the injury.[27] From the facts, it is clear that all these elements were present. At the time of the incident,
petitioner was a member -- specifically, one of the investigators -- of the Philippine National Police (PNP) stationed
at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful performance of his duties as investigating
officer that, under the instructions of his superior, he fetched the victim from the latters cell for a routine
interrogation.

Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of
the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the law, petitioner was
duty-bound to prevent the snatching of his service weapon by anyone, especially by a detained person in his
custody. Such weapon was likely to be used to facilitate escape and to kill or maim persons in the vicinity, including
petitioner himself.

Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to prevent his service
weapon from causing accidental harm to others. As he so assiduously maintained, he had kept his service gun locked
when he left his house; he kept it inside its holster at all times, especially within the premises of his working area.

At no instance during his testimony did the accused admit to any intent to cause injury to the deceased, much less
kill him. Furthermore, Nicostrato Estepar, the guard in charge of the detention of Balboa, did not testify to any
behavior on the part of petitioner that would indicate the intent to harm the victim while being fetched from the
detention cell.

The participation of petitioner, if any, in the victims death was limited only to acts committed in the course of the
lawful performance of his duties as an enforcer of the law. The removal of the gun from its holster, the release of
the safety lock, and the firing of the two successive shots -- all of which led to the death of the victim -- were
sufficiently demonstrated to have been consequences of circumstances beyond the control of petitioner. At the
very least, these factual circumstances create serious doubt on the latters culpability.

Petitioners Subsequent Conduct

Not Conclusive of Guilt

To both the trial and the appellate courts, the conduct of petitioner immediately after the incident was indicative of
remorse. Allegedly, his guilt was evident from the fact that he was dumbfounded, according to the CA; was
mum, pale and trembling, according to the trial court. These behavioral reactions supposedly point to his guilt.
Not necessarily so. His behavior was understandable. After all, a minute earlier he had been calmly escorting a
person from the detention cell to the investigating room; and, in the next breath, he was looking at his companions
bloodied body. His reaction was to be expected of one in a state of shock at events that had transpired so swiftly
and ended so regrettably.

Second Issue:

Self-Defense

Petitioner advanced self-defense as an alternative. Granting arguendo that he intentionally shot Balboa, he claims
he did so to protect his life and limb from real and immediate danger.

Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill. On the
other hand, self-defense necessarily contemplates a premeditated intent to kill in order to defend oneself from
imminent danger.[28] Apparently, the fatal shots in the instant case did not occur out of any conscious or
premeditated effort to overpower, maim or kill the victim for the purpose of self-defense against any aggression;
rather, they appeared to be the spontaneous and accidental result of both parties attempts to possess the firearm.

Since the death of the victim was the result of an accidental firing of the service gun of petitioner -- an exempting
circumstance as defined in Article 12 of the Revised Penal Code -- a further discussion of whether the assailed acts
of the latter constituted lawful self-defense is unnecessary.

WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED. Petitioner is ACQUITTED.

No costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

12 ANGCACO V PEOPLE

SECOND DIVISION

[G.R. No. 146664. February 28, 2002]

JOHN ANGCACO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari of the decision,[1] dated November 29, 2000, of the Court of Appeals, which
affirmed with modification the decision,[2] dated January 31, 1996, of the Regional Trial Court, Branch
1, Puerto Princesa City, finding petitioner John Angcaco guilty of murder and sentencing him accordingly.

Petitioner John Angcaco and his co-accused in the trial court, namely, Ramon Decosto, Protacio Edep, Lydio Lota,
and Mario Felizarte, were members of the Integrated National Police of Taytay, Palawan. At the time of the
incident, they were serving a warrant of arrest issued by the Municipal Trial Court ofTaytay on Restituto Bergante,
who was wanted in connection with a robbery case. Edep was acting station commander,
while Restituto Bergante was thebarangay captain of Bato, Taytay, Palawan. The information against petitioner and
his co-accused alleged

That on or about the 25th day of September, 1980, more or less 4:00 oclock in the morning in barangay Bato,
municipality of Taytay, province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually helping one another, armed with guns,
and with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault, fire at and shoot FREDDIE GANANCIAL, hitting the latter with gunshots on vital parts of
his body and inflicting upon him multiple gunshot wounds which were the direct and immediate cause of his instant
death.[3]

When arraigned on June 3, 1981, all of the accused, with the exception of Ramon Decosto, entered a plea of not
guilty to the crime charged.[4] Decosto, who failed to attend the hearing on that date, was later arraigned on June
23, 1981, during which he entered a plea of not guilty. Thereafter trial ensued.

The prosecution presented seven witnesses: Noe Bergante,[5] Noel Bergante, Dr. Alberto Lim, Honorato Flores,
Henry Pulga, Antonio Arosio, and AdolfoJagmis. The gist of their testimonies is as follows:
At around 4 oclock in the morning of September 25, 1980, Noe Bergante and his brother Noel Bergante and his
cousin Freddie Ganancial were awakened by the sound of gunfire while they were asleep in their house
in Bato, Taytay, Palawan. Their mother, who was frightened, fainted and had to be helped by Noe. Noel went to
the kitchen and, from there, saw Protacio Edep fire his carbine, as he shouted, Kapitan, you come down, this is [a]
peace officer. He was apparently referring to Restituto Bergante. Noel answered that his father was not in the
house, having gone to Puerto Princesa. Edep then ordered the men in the house to come out. Noel accordingly
went to the gate and later called Noe to also come out of the house. Noe and his cousin, Freddie Ganancial, did as
bidden.

Once they were outside the house, Noe and Freddie were flanked by petitioner Angcaco on the right side and
accused Ramon Decosto on the left side. Decosto pointed an armalite at the two and warned them not to
run. Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie saying, You are tough, and
pushed him. Then, shots rang out from the armalite and short firearm of Decosto and Edep, as a result of which
Freddie Ganancialturned around and dropped to the ground face down. Decosto was around three meters away
from Freddie.

In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw, through the
window, Lota and Angcaco turning over the body of FreddieGanancial. After briefly leaving the body, both came
back 15 minutes later. Noe said Lota brought with him an object wrapped in a newspaper, which Noesurmised was
a knife. Lota placed the object in the right hand of Freddie Ganancial. Noel, on the other hand, said that he
returned to the crime scene and recovered two empty shells which he gave to a certain Major Silos. Noe reported
the matter to Barangay Tanods Sabino Mahinay and a certain Ramon.[6]

Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies of Noe and Noel Bergante. According
to Arosio, at around 4:30 a.m. ofSeptember 25, 1980, while he was asleep in his house in Bato, Taytay, Palawan, he
was awakened by the sound of gunfire. He said he heard a commotion outside, followed by another volley of shots.
He claimed he recognized by their voices some of the persons involved, namely, Protacio Edep, Noel Bergante, and
Freddie Ganancial.

Arosio claimed that accused Decosto and Felizarte fetched him from his house a short time later and took him
to Edep, who was then in the house of thebarangay captain. Arosio was asked about the whereabouts of
the barangay captain. He told Edep that Restituto Bergante, the barangay captain, had gone to Puerto Princesa two
days earlier.

Arosio testified that on his way home he saw a person lying on the ground in a prone position. He later learned it
was Freddie Ganancial. Arosioidentified in court the policemen whom he saw that morning, that
is, Edep, Decosto, Felizarte, Lota, and Angcaco.

On cross-examination, Arosio claimed that he was investigated by a police officer, whose name he could not
remember, three years after the incident. The investigation was held in the house
of Barangay Captain Restituto Bergante, who told him that he would testify in this case. Although he was reluctant
to testify because of fear, Arosio said he finally agreed to do so in 1984. Prior to the incident, he had not
heard Edeps voice but only assumed that the voice he heard that morning was that of Edep as the latter was the
highest-ranking policeman he later saw.[7]

Although Dr. Romeo D. Valino conducted the postmortem examination on the body of Freddie Ganancial, it fell to
Dr. Alberto H. Lim, Assistant Provincial Health Officer in Palawan, to identify the medico-legal report of
Dr. Valino and to explain its contents in view of Dr. Valinos death pending the trial of the case.

Dr. Valinos report stated in pertinent parts:

Physical Examination:
1. Gunshot wound lateral aspect D/3rd arm right (entrance) with contusion collar thru and thru passing thru the
medial aspect arm right, entering to the lateral aspect mid axillary line at the level of the 9th rib hitting ascending
colon and small intestine.

2. Gunshot wound at the level of the 7th rib at anterior axillary line right with contusion collar (entrance) to
the epigastric region (exit) 10 cm[s]. x 3 cm[s]. hitting the liver (mascerated).

3. Gunshot wound subcostal region right at the level of mid clavicular line (entrance) right side to
the subcostal region left side (exit at the level of mid mammary line).

4. Stomach with alcoholic smell.

5. Clotted blood at abdominal cavity, about 500 cc.

Cause of Death:

- Shock secondary to internal and external hemorrhage due to gunshot wounds - body and abdomen.[8]

Dr. Lim identified the medical report signed by Dr. Valino because he was familiar with the handwriting of the
latter. As regards the contents of the medical certificate, Dr. Lim stated that Freddie Ganancial, alias Edgar Gallego,
25 years of age, died as a result of shock secondary to internal and external hemorrhage due to gunshot wounds on
the body and abdomen, which means that the victim died because of loss of blood resulting in shock due to a
gunshot wound in the abdomen. He testified that the victim sustained three gunshot wounds. The first gunshot
entered the body at the lateral aspect distal third arm with contusion collar, the bullet entering the lateral
aspect midaxillary line at the level of the ninth rib and hitting the colon and small intestine. The second gunshot
wound was located at the right side of the body at the seventh rib at right anterior axillary line with contusion collar
(entrance), the bullet passing through the epigastric region and hitting the liver, which was mascerated. The third
gunshot wound was in the right subcostal region at the level of themidclavicular line (entrance) right side to the left
side of the subcostal region, the bullet exiting below the nipple.

On cross-examination, Dr. Lim said that based on the findings of the medical report, the victim had been taking
liquor prior to his death. He also admitted that he had not undertaken studies on the identification of
handwriting. Dr. Lim claimed that he identified the signature of Dr. Valino in the medical report on the basis of the
other reports the latter had submitted to their office.[9]

Honorato Flores, senior ballistician of the National Bureau of Investigation (NBI) in Manila, identified the ballistics
report he had prepared and the shell fragments presented to him for examination. He said that the fragments could
have possibly been caused by the impact of the bullet on a human being.

When cross-examined, Flores said that no armalite rifle was given to him but only shell fragments were presented to
him for examination. He said that the gun and the lead would have to be examined by using the bullet comparison
microscope to determine whether the lead was fired from the same gun. A bone or a cement flooring could have
caused the shell fragments to break, according to Flores. Upon inquiry by the trial court, he said it was possible that
a piece of copper and the lead formed part of one bullet, but it was also possible that they did not.[10]

Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified that on October 6, 1980, he investigated
the complaint filed by BarangayCaptain Bergante regarding the killing of the latters nephew, Freddie Ganancial. He
identified the affidavits of Mario Felizarte (Exh. H) and Ramon Decosto(Exh. I), which he himself
prepared. According to Pulga, he informed Felizarte and Decosto of their rights to counsel and to remain silent and
explained to them the import of these rights. He said that Felizarte and Decosto voluntarily gave their statements
before him, although Pulga also admitted that the two did not have counsel to assist them during the
investigation.[11]
The last witness for the prosecution was Adolfo D. Jagmis, the chief investigator of the Palawan Constabulary based
in Tiniguiban. He testified that onOctober 6, 1980 he investigated Edep, Lota, and Angcaco. He said that
after Angcaco was apprised of his constitutional rights, the latter executed a statement (Exh.
J),[12] which Jagmis identified in court. But Jagmis admitted that the statement was made without the assistance of
counsel.[13]

On cross-examination by counsel for accused Decosto, Jagmis was confronted with the affidavit of Angcaco, in which
the latter identified an armalite which he allegedly used at the time of the incident. Jagmis said the armalite and the
lead recovered from the scene were both given to the Provincial Fiscals Office.

The defense presented as its witnesses Protacio Edep, Ramon Decosto, John Angcaco, and Lydio Lota, whose
testimonies are as follows:

In the early morning of September 25, 1980, petitioner and his co-accused, led by Edep, went to the house
of Restituto Bergante in Bato, Taytay,Palawan to serve a warrant for the latters arrest. When they reached the
house, Edep and his men took positions as they had been warned that RestitutoBergante might resist
arrest. Decosto and Angcaco were each armed with armalites, Lota had a carbine, Felizarte a revolver, and Edep a
carbine and a revolver. Decosto was on the left side of Edep, around seven to 10 meters from the latter. Angcaco,
on the other hand, was on right side of Edep, around four to seven meters from the
latter. Edep called Restituto Bergante to come out of the house as he (Edep) had a warrant for his
arrest. Restitutos wife replied that her husband was not in the house, having gone to Puerto Princesa. A
commotion then took place inside the house and, shortly after, petitioner saw a man coming down the house. They
fired warning shots to stop the man, but petitioner saw another person with a bolo near Edep. He shouted, Sarge,
this is the man who tried to hack you!, and shot the unidentified man, who fell to the ground face up. At the time
of the incident, Decosto was on the left side of Edep, while petitioner, Felizarte, and Lota were on the right side
of Edep. They later learned that the person killed was Freddie Ganancial.

Edep conducted an investigation and recovered from the scene of the crime empty shells from armalite bullets,
which he turned over to the provincial fiscal. Edep and his men were then taken to Taytay and investigated by
P/Sgt. Adolfo Jagmis. Thereafter, Edep and his men learned that they were charged with murder. An administrative
complaint for grave misconduct was likewise filed against them in the National Police Commission, but the case was
dismissed.[14]

On January 31, 1996, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, after a careful evaluation of the evidence on record, this court is of the considered opinion, and so
holds, that accused John Angcaco, is GUILTY beyond reasonable doubt of the crime of Murder defined and penalized
in Article 248 of the Revised Penal Code. With the presence of the mitigating circumstance of lack of intention to
commit so grave a wrong and with the application of the Indeterminate Sentence Law, this Court hereby imposes
upon him the penalty of imprisonment ranging from seventeen (17) years and four (4) months of reclusion
temporal as minimum, to twenty (20) years of reclusion temporal, as maximum, and to pay the heirs of
FreddieGanancial the amount of fifty thousand pesos (P50,000.00) as death indemnity.

Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte are ordered ACQUITTED for insufficiency
of evidence.[15]

Petitioner Angcaco filed an appeal with the Court of Appeals, which affirmed with modification the trial courts
decision. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, with the modification only that the mitigating circumstance of incomplete fulfillment of a lawful duty
should be appreciated in determining the imposable penalty, not lack of intention to commit so grave a wrong, the
trial court had correctly imposed the penalty of imprisonment ranging from seventeen (17) years and four (4)
months of reclusion temporal as minimum, to twenty (20) years of reclusion temporal as maximum the questioned
decision is affirmed in all other respects.

Costs against the accused.

SO ORDERED.[16]

Hence this appeal. Petitioner raises the following issues

I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR MISCONSTRUED THE EVIDENCE FOR THE
DEFENSE THAT ALL THE ELEMENTS OF DEFENSE OF [THE] PERSON OR RIGHTS OF A STRANGER ARE PRESENT.

II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-ACCUSED HAS BEEN VIOLATED WHEN THE
HONORABLE COURT OF APPEALS OVERLOOKED OR FAILED TO APPRECIATE THE WEAKNESS OF THE PROSECUTIONS
EVIDENCE AND ITS FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.

III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING [PETITIONER] APPELLANT.[17]

First. Petitioner Angcaco argues that the prosecution evidence failed to prove his guilt beyond reasonable doubt. He
points out inconsistencies and contradictions in the testimonies and affidavits of prosecution witnesses Noel
and Noe Bergante.

We agree with accused-appellants contention. Generally, contradictions between the contents of the witness
affidavit and his testimony in court do not impair his credibility because affidavits are usually taken ex parte and, for
that reason, often incomplete and inaccurate.[18] An affidavit will not always disclose all the facts and will even at
times, without being noticed by the witness, inaccurately describe the occurrences related therein. Thus, we have
time and again held that affidavits are generally inferior to testimonies in court. Affidavits are often prepared only
by the investigator without the affiant or witness having a fair opportunity to narrate in full the incident which took
place, whereas in open court, the latter is subjected to cross-examination by counsel for the accused.[19]

However, where the discrepancies between the affidavit and the witness testimony on the stand are irreconcilable
and unexplained and they refer to material issues, such inconsistencies may well reflect on the witness candor and
even honesty and thus impair his credibility.[20] Hence, we have recognized as exceptions to the general rule
instances where the narration in the sworn statement substantially contradicts the testimony in court or where the
omission in the affidavit refers to a substantial detail which an eyewitness, had he been present at the scene at the
time of the commission of the crime, could not have failed to mention.[21] The case at bar is such an instance.

Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie Ganancial.[22] However, in his affidavit,
dated November 24, 1980, Noe pointed to Decosto as the lone assailant. Noe also failed to mention the presence
of Angcaco at the scene at the time of the commission of the crime.[23] Noe tried to explain these material omissions
in his affidavit by claiming that he mentioned these details to the fiscal but the latter must have forgotten to include
them in the affidavit because he (the fiscal) was in a hurry to leave that day.[24] This explanation is too pat to be
accepted. To begin with, Noe admitted that the investigating fiscal, Fiscal Vergara, explained to him the contents of
the affidavit before he (Noe) signed it.[25] Noe, therefore, could have noticed the omission of such vital matters
which concerned the identification of the persons responsible for his cousins death and called attention to such
omission. The identity of the malefactors is too important a detail for anyone who allegedly witnessed the incident
to overlook its omission in the very statement of the incident one is giving. The omissions suggest Noes ignorance
of the details of the incident as well as his readiness to perjure himself in order to implicate all of the accused in this
case.

Noel Bergante fared no better than his brother on the witness stand. On direct examination, Noel, like his brother,
identified Edep and Decosto as the assailants of Freddie Ganancial.[26] However, Noels affidavit, dated November
24, 1980, only mentioned Decosto as the person responsible for the killing of Freddie Ganancial.[27] Worse, Noel
executed an affidavit earlier on September 26, 1980, in which he identified Jardiolin,[28] Mario Toledo, Lydio Lota,
and Mario Gonzales as the companions of Decosto at the time of the commission of the crime.[29] But, in his
testimony, Noel said that Decostos companions wereEdep, Angcaco, Felizarte, and Lota.[30] When confronted with
the discrepancy, Noel said that he really meant to refer to Angcaco, instead of Jardiolin, and to
Ramon Decosto instead of Toledo. When further questioned, Noel said that he was referring to Lota when he
mentioned the name of Toledo,[31] thus creating more confusion with his answers. These contradictions, when taken
together with Noels claim that he had known Jardiolin, Felizarte, and Angcaco for a long time, cast serious doubts
on his credibility.

Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible and consistent account of the identity
of the person or persons responsible for the killing of Freddie Ganancial. There is apparent from a reading of their
testimonies a manifest tendency to improvise, modify, and even contradict themselves in order to implicate each of
the accused. It is in fact doubtful whether Noe and Noel saw what they testified about. Even the trial court
disregarded the testimonies of Noe and Noel Bergante and acquitted Edep and Decosto in spite of their
identification by these witnesses.

We are thus left with no clear picture of the events that transpired on September 25, 1980 and of the identity of the
shooter or shooters. It cannot be overemphasized that the constitutional presumption of innocence demands not
only that the prosecution prove that a crime has been committed but, more importantly, the identity of the person
or persons who committed the crime.[32] But in the case at bar, what passed for the prosecution evidence was a
befuddling amalgamation of half-truths and lies obviously fabricated by these supposed eyewitnesses to hold
responsible each of the accused in this case for the killing of their cousin. For this reason, we hold that the
prosecution evidence failed to meet the quantum of proof beyond reasonable doubt necessary for conviction in a
criminal case.

Second. The conviction of petitioner Angcaco must, however, be upheld in view of his admission that he shot
Freddie Ganancial. The rule is that while the prosecution has the burden of establishing the guilt of the accused,
once the defendant admits commission of the act charged, although he invokes a justification for its commission,
the burden of proof is shifted to him to prove the said justifying circumstance.[33] Petitioner Angcaco cannot rely on
the weakness of the evidence for the prosecution, for even if it is weak, it cannot be disbelieved after he has
admitted the killing itself.[34] This is because a judicial confession constitutes evidence of a high order. It is
presumed that no sane person would deliberately confess to the commission of an act unless moved by the desire
to reveal the truth.[35]

Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom Freddie Ganancial was about to strike with a
bolo. We do not agree. For petitioner to successfully claim the benefit of Art. 11, par. 3 of the Revised Penal Code,
there must be proof of the following elements: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) the person defending be not induced by revenge, resentment, or other evil
motive.

Unlawful aggression on the part of the victim, which must be sufficiently proven by the defense,[36] is present when
there is actual or imminent peril to ones life, limb, or right. There must be actual physical force or actual use of a
weapon by the victim himself.[37] In this case, it is contended that the victim, who was armed with a bolo,
approached Edep menacingly. But, there is no other competent evidence to corroborate this self-serving
claim. Edep testified that he heard petitioners warning that an armed man was behind him.[38] However, when
asked about the weapon allegedly held by the victim, Edep replied that he did not see any as he turned around to
face his supposed assailant.[39] It was only later that Edep claimed seeing a knife in the area where the victim
fell.[40] One is thus led to suspect that Edeps claim that he saw a knife was a mere afterthought designed to
exculpate his fellow officer from the charges against him.

Petitioners own testimony suffers from inconsistencies and improbabilities on material points.

First, there was no reason for the victim, Freddie Ganancial, to attack Sgt. Edep, who was looking for Restituto,
because the latter was not there in his house, having earlier gone to Puerto Princesa. In fact, Edep admitted he was
about to order his men to leave the premises when they found that their quarry was not there. The victim himself
was not wanted by the police. Dr. Lim said Ganancial was drunk. In that condition, he could have easily have been
overpowered by any member of the arresting team, if he made any aggressive move, without shooting him to
prevent him from doing harm to the latter.

Second, when cross-examined about the bolo, petitioner said he could not remember who took it
away.[41] However, at a later hearing, petitioner stated that it was he who picked up the bolo and turned it over
to Edep, his superior officer.[42] But how could he not remember who took the bolo if he was the one who did
so? Once again, petitioner was prevaricating.

Third, petitioner said that he merely intended to fire a warning shot when he saw Ganancial. This claim is belied by
the fact that the victim sustained three gunshot wounds on the chest and abdomen. It is apparent that petitioner
intended to kill the victim and not merely to warn him.

Indeed, even assuming that the victim was charging at Sgt. Edep, it would have been sufficient for petitioner to warn
Sgt. Edep of the danger. Not that petitioner was not expected to pause for a moment while his colleague was in
danger.[43] However, the rules of engagement do not, on the other hand, require that he should immediately draw
or fire his weapon if the person accosted did not heed his call.[44] But rather than confront the victim as to his
intended purpose, petitioner immediately shot the former without further thought.

Petitioner claims the victim was armed with a bolo. The circumstances, however, indicate otherwise. Petitioner was
questioned by the prosecutor on the existence of the bolo during the hearing held on October 7, 1986. The bolo
was presented in court only on October 17, 1986. At the hearing on that date, petitioner and Lydio Lota both
claimed that they could identify the bolo by the markings placed on it by Sgt. Edep.[45] But Sgt. Edep made no
mention of having recovered a bolo, much less of marking it. In fact, Edep at one point testified that he did not see
any weapon near the victim. It is doubtful, therefore, that the bolo offered in evidence by the defense was the one
actually recovered from the scene of the crime.[46] It is more likely that the idea to offer the bolo in question was a
mere afterthought by the defense brought about by the fiscals own reminder that the presentation of the weapon
was crucial to petitioners plea of defense of stranger.[47]

Nor can petitioners claim that the killing was done in fulfillment of a lawful duty be sustained, as the Court of
Appeals ruled. For this justifying circumstance to be appreciated, the following must be established: (1) that the
offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such right or office.[48]

In this case, the mission of petitioner and his colleagues was to effect the arrest of Restituto Bergante.
As Edep himself explained, the standard procedure in making an arrest was, first, to identify themselves as police
officers and to show the warrant to the arrestee and to inform him of the charge against him, and, second, to take
the arrestee under custody.[49] But, it was not shown here that the killing of Ganancial was in furtherance of such
duty. No evidence was presented by the defense to prove that Ganancial attempted to prevent petitioner and his
fellow officers from arresting Restituto Bergante. There was in fact no clear evidence as to how
Freddie Ganancial was shot. Indeed, as already stated, any attempt by the victim to arrest the wanted person
was pointless as Restituto Bergante was not in his house. As regards the second requisite, there can be no question
that the killing of Freddie Ganancial was not a necessary consequence of the arrest to be made
on Restituto Bergante.

Reliance by the Court of Appeals on the case of People v. Oanis[50] is misplaced. In Oanis, the accused, who were
police officers, shot and killed the victim under the erroneous notion that the latter was the person they were
charged to arrest. The Court held that the first requisite that the offenders acted in performance of a lawful
duty was present because the offenders, though overzealous in the performance of their duty, thought that they
were in fact killing the man they have been ordered to take into custody dead or alive. In this case, petitioner did
not present evidence that he mistook Freddie Ganancialfor Restituto Bergante and, therefore, killed him (Ganancial)
perhaps because he placed the lives of the arresting officers in danger.
Third. On the other hand, we think the Court of Appeals erred in appreciating the qualifying circumstance of
treachery against petitioner. There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might take.[51] For treachery to
exist, two conditions must be present: (1) there must be employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or
consciously adopted.[52] As has been discussed, the testimonies of prosecution witnesses Noeand
Noel Bergante cannot be given credence. As we already stated, even the trial court acquitted
accused Decosto and Edep, both of whom were implicated as the assailants. Without evidence of the manner the
aggression was made or how the act resulting in the death of the victim began and developed, it is not possible to
appreciate the qualifying circumstance of treachery.[53]

Nor can evident premeditation be appreciated in this case. Evident premeditation requires proof of the following
elements: (1) the time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he
has clung to his determination; and (3) a sufficient lapse of time between decision and execution to allow the
accused to reflect upon the consequences of his act.[54] None of these elements has been shown in this case.

For the foregoing reasons, petitioner is liable only for homicide, for which the penalty under Art. 249 of the Revised
Penal Code is reclusion temporal. As neither mitigating nor aggravating circumstances attended the commission of
the crime, the penalty must be imposed in its medium period, pursuant to Art. 64(1) of the Revised Penal Code.
Applying the Indeterminate Sentence Law, the minimum imposable penalty on accused-appellant falls within the
range of the penalty next lower in degree, i.e., prision mayor, or from six (6) years and one (1) day to twelve (12)
years. Accordingly, the penalty to be imposed on accused-appellant must be fixed within the range of prision mayor,
or from six (6) years and one (1) day to twelve years (12) years, as minimum, to reclusion temporal medium, or from
fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months, as maximum.

Petitioner should also be made to pay the heirs of the victim, Freddie Ganancial, the amount of P50,000.00 as moral
damages,[55] in addition to the amount of P50,000.00 awarded by the trial court and the Court of Appeals as
indemnity.[56] The purpose of making such an award of moral damages is not to enrich the heirs of the victim but to
compensate them for injuries to their feelings.[57]

WHEREFORE, the decision of the Court of Appeals, dated November 29, 2000, is AFFIRMED with the MODIFICATION
that petitioner is found guilty of the crime of homicide and is sentenced to suffer the penalty of 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, and to pay the heirs of the victim, Freddie Ganancial, P50,000.00 as civil indemnity
andP50,000.00 as moral damages.

SO ORDERED.

Bellosillo, J., (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
13 TABUENA V SANDIGANBAYAN

EN BANC

[G.R. No. 103501-03. February 17, 1997]

LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE
PHILIPPINES, respondents.

[G.R. No. 103507. February 17, 1997]

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

DECISION

FRANCISCO, J.:

Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for
short) appeal the Sandiganbayan decision dated October 12, 1990,[2] as well as the Resolution dated December 20,
1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal
Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount
of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General
Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20)
years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS
(P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International
Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has
remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was
taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in
all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both
public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only
ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office
at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both
accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay,
Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both
public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only
ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office
at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both
accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both
public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of
the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they
being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION
PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care
of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both
accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what
the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will
do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a
Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in
black and white such verbal instruction, to wit:

Office of the President

of the Philippines

Malacaang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the
sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs account with said Company
mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by
this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.[4]

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the
MARCOS Memorandum, reads in full:

MEMORANDUM

F o r : The President

From : Minister Roberto V. Ongpin

Date : 7 January 1985

Subject : Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport
(BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13 5,758,961.52
3. Supplemental Contract No. 14
 Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15 1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has
accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments
for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million
are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of
approval/evaluation:

Approved by Price Escalation Committee (PEC) butP 1.9 million

pended for lack of funds
Endorsed by project consultants and currently being 30.7 million
evaluated by PEC
Submitted by PNCC directly to PEC and currently66.5 million
under evaluation
Total P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC
have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for
this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request
for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially
recognized by MIADP consultants but could not be paid due to lack of funding.Korte

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount
represents the excess of the gross billings of PNCC ofP98.4 million over the undeferred portion of the repayment of
advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN

Minister[5]

In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and
Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by
Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to
issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB
Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took
delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB
armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting
Malacaang. Mrs. Gimenez did not issue any receipt for the money received.

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on
January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-signatory to
the letter- request for a managers check for this amount. Peralta accompanied Tabuena to the PNB Villamor
branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in
two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver
the money to Mrs. Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez
issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacaang

Manila

January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the
following dates:

Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary
and not based on the normal procedure. Not only were there no vouchers prepared to support the disbursement,
the P55 Million was paid in cold cash. Also, no PNCC receipt for theP55 Million was presented. Defense witness
Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court
that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the
disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they
acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered
him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs
obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his
part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the
release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction,
Tabuena and Peralta now set forth a total of ten (10) errors[6] committed by the Sandiganbayan for this Courts
consideration. It appears, however, that at the core of their plea that we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation,
as the amended informations commonly allege that:

x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by negligence. In this connection, the Courts
attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for
reconsideration) wherein the Sandiganbayan said:

x x x xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were
not entitled thereto, either as representatives of MIAA or of the PNCC.Sclaw

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other
person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Underscoring supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the
same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended
informations charged them with intentional malversation.[7]

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the
accusation.[8]

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v.
Sandiganbayan[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello
whose conviction for the same crime of malversation was affirmed, in this wise:

x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by
negligence but the information was for intentional malversation, under the circumstances of this case his conviction
under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or
by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and
conviction thereof is proper. x x x.

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can
validly be convicted of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the
Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi
offense in our Penal Code, it may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser
offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but
from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which
made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to
take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man
would do. In other words, the information alleges acts which charge willful falsification but which turned out to be
not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and
proof, and is similar to some of the cases decided by this Tribunal.

xxx

Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense
charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof
be established to constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed with imprudence is of no
moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be
incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is
incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to
the felony of malversation, that is, that an accused charged with willful malversation, in an information containing
allegations similar to those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for
it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation
cases of US v. Catolico[10] and US v. Elvia,[11] the Court stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal
intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal
intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person
performing the act complained of is innocent.

The rule was reiterated in People v. Pacana,[12] although this case involved falsification of public documents
and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit
rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is
not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no
embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.[13] The accused
may thus always introduce evidence to show he acted in good faith and that he had no intention to convert.[14] And
this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are
swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such
memorandum. From this premise flows the following reasons and/or considerations that would buttress his
innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum
required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and
to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former
being then the President of the Republic who unquestionably exercised control over government agencies such as
the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and
transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it
should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no
less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS
Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to
an order issued by a superior for some lawful purpose.[16] The subordinate-superior relationship between Tabuena
and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has
for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin
Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in
this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985)
were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project,
while at the same time recognizing some of the PNCCs escalation billings which would result in making payable to
PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:

xxx

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request
for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially
recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount
represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of
advances of P63.9 million.

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1
million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6
million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos Memo was
based) they would only be for a sum of up to P34.5 million.[17]

xxx xxx xxx

V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was actually
baseless.

This is easy to see.

Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1, however, speaks
of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to withdraw the
amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of
January 7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.[18]

Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally
liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it
directs payment of an outstanding liability) and that Tabuena acted under the honest belief that theP55 million was
a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by
defense witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of
December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a,
sir, P102,475,392.35.
xxx xxx x x x.[19]

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that
the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of
price increases, sir.

xxx xxx x x x.[20]

ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you that these are due and demandable?

A Yes, sir.[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate
is not liable, for then there would only be a mistake of fact committed in good faith.[22] Such is the ruling in Nassif v.
People[23] the facts of which, in brief, are as follows:

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in
the commercial document alleged to have been falsified the word sold by order of his principal. Had he known or
suspected that his principal was committing an improper act of falsification, he would be liable either as a co-
principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability
as he was a mere employee following the orders of his principal.[24]

Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did not
comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be
made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D.
1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:

There were no vouchers to authorize the disbursements in question. There were no bills to support the
disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum
of P55 Million.[25]

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to
observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his
immediate compliance with the directive that he forward to the Presidents Office the P55 Million in cash. Be that
as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his
liability should only be administrative or civil in nature, and not criminal. This follows the decision in Villacorta v.
People[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of
malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good
faith to certain government personnel of their legitimate wages, leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they
were in good faith mainly to government personnel, some of them working at the provincial auditors and the
provincial treasurers offices. And if those payments ran counter to auditing rules and regulations, they did not
amount to a criminal offense and he should only be held administratively or civilly liable.

Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not amount to criminal
appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting
Opinions reference to certain provisions in the revised Manual on Certificate of Settlement and Balances -
apparently made to underscore Tabuenas personal accountability, as agency head, for MIAA funds - would all the
more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely
speak of civilly liable to describe the kind of sanction imposable on a superior officer who performs his duties
with bad faith, malice or gross negligence and on a subordinate officer or employee who commits willful or
negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order
or instructions of his superiors.

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55
Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion:

Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to ones own
use of anothers property which does not necessarily mean to ones personal advantage but every attempt by one
person to dispose of the goods of another without right as if they were his own is conversion to his own use. (Terry
v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)

- At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The
gist of conversion is the usurpation of the owners right of property, and not the actual damages inflicted. Honesty
of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

- At page 168, id.

xxx xxx xxx

The words convert and misappropriate connote an act of using or disposing of anothers property as if it were
ones own. They presuppose that the thing has been devoted to a purpose or use different from that agreed
upon. To appropriate to ones own use includes not only conversion to ones personal advantage but every attempt
to dispose of the property of another without right.

People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as
guilty of malversation as if he had personally taken them and converted them to his own use.

People vs. Luntao, 50 O.G.

p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the
Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that was what
Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery
to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had
reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware
that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of
Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the
MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the
money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who
has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence shall permit any other person to take such public funds. Where the payment
of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to
whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.[29]

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public
money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There
is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor
is there proof that he profited from the felonious scheme. In short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo[30] and Ang v.
Sandiganbayan,[31] both also involving the crime of malversation, the accused therein were acquitted after the
Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as municipal president
of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn
over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually
collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction after finding that the sums
were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which
we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear
in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of
the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the
secretary stole the money in question without the knowledge or consent of the appellant and without negligence on
his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof.[32]

In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks
drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently
dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his
collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to
him. And we also adopt the Courts observation therein, that:

The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks may be
proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger
evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The
prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof
that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt
by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed.[33]
The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation
to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of
Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order.
Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at
bench, the order emanated from the Office of the President and bears the signature of the President himself, the
highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the
memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides,
the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his
dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was
independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an
undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.[34]

But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic
constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs
words, is more important than securing a conviction based on a violation of the rights of the accused.[35] While
going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a
defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is
nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to
correct such errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not.[36]

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis
Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16)
questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course
of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes
questions and even more than the combined total of direct and cross-examination questions asked by the
counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten
(10) questions.[37] The trend intensified during Tabuenas turn on the witness stand. Questions from the court after
Tabuenas cross-examination totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes questions
on cross-examination (14), and more than double the total of direct examination and cross-examination questions
which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of forty-one
(41) questions.[39]

But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation.[40] (The insinuating type was best exemplified in one
question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts
pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and
italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA
totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless
all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation
billings. Were those escalation billings properly transmitted to MIA authorities?

A I dont have the documents right now to show that they were transmitted, but I have a letter by our President,
Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the
determination as to the correct amount?

A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in
fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct figure by MIA?

A I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a
document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or
approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and request for partial deferment of payment for
MIA Development Project, your Honor.

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do not have any proof of that?

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed
our billings to MIA, your Honor.

*AJ AMORES

*Q Were there partial payments made by MIA on these escalation billings?

A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection
is correct, your Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your
company?

WITNESS

A The payments were made after December 31, 1985 but I think the payments were made before the entry of
our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23
million; and then there was P17.8 million application against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual
stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the
remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been
payments in cash?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These
reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31,
1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation billings. Do we get it from you that there
was an admission of these escalation costs as computed by you by MIA, since there was already partial
payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or check, if there were payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against
these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were
collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation
billings. Was the payment in cash or just credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments
in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2
million of cash payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment,
was the payment in cash or check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say
that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a?

WITNESS
A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a
confirmation of the acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in
Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation
billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after
payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the
payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an
amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July and
November until December 1985. These were properly credited to the account of MIA?

WITNESS

A Yes, sir.

Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA for the
months of January to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on
September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment,
or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of settlement, your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State
Investment bought the credit of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?

A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6,
1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. x x x.[41]

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to
the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in
the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a
receipt. Tabuena also denied having used the money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many
occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed
by Mrs. Gimenez.

*Q Are you telling us that this Exhibit 3 was incorrectly dated?

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit 3 delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit 3 was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir.

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

A Yes, sir.

Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?

A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA

*Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated January 30?

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

Q In what particular place did Mrs. Gimenez sign this Exhibit 3?

A In her office at Aguado, sir.

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

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

Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and
signed?

A Yes, sir.

*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests
for something from me. Her writing is familiar to me.

*Q So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and
you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that
receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked
you, you said you saw her signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we
understand from you that this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second deliveries?

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

*Q So you know that the total amount to be delivered was P55 million?

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

*Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who handed
you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?

A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In
other words, why was the delivery of the money not covered by any voucher?Calrky

A The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in
payment of its obligation to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q Did you file any written protest with the manner with which such payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office
in cash, your Honor.

*PJ GARCHITORENA

*Q By I OWE, you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

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

A I just said, Yes, sir, I will do it/

*Q Were you the one who asked for a memorandum to be signed by him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own
accord already prepare the necessary papers and documents for the payment of that obligation?

A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your
Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the President?

A Yes, your Honor.

*Q And was that the last time also that you received such a memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be
followed instead of the regular procedure?

A: No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

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

*AJ HERMOSISIMA

*Q You said there was an I OWE YOU?

A Yes, your Honor.

*Q Where is that I OWE YOU now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and
then the mechanics will come after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time
and the PNCC is a separate corporation, not an adjunct of Malacaang?

WITNESS

A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

*Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other
words, who signed the contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT
which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to
MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your
Honor.

*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacaang was not the creditor?

A I saw nothing wrong with that because that is coming from the President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through
a mere receipt from the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for
sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your joining the MIA, did you ever work for the government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with
the government?

A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board, your Honor.

*Q But you were not the executive or operating officer of the Games and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time?

A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years,
you also ran the Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Game Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: Chairman
or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and we learn to adopt to
them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there
is reason in this apparent madness of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular
credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time in dealing with COA people, did it not
occur to you to call a COA representative and say, What will I do here?

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this
matter so that you will do it properly?

WITNESS

A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the
COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for
issuance of Managers checks and you were accommodated by the PNB Office at Nichols without any internal
documentation to justify your request for Managers checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily
Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come
with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal
in the government and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak
you out and banner headline it in some mosquito publications like the Malaya at that time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We are in the government and we in the
government fear the COA and we also fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado
usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car
and then you had a back-up truck following your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car,
was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. x x x.[42]

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the
Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing
obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB
Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or
any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

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

A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have
my signature because I was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the
issuance of Managers checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the
issuance of Managers check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA
Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was marked as exhibit N.

PROS VIERNES

It was marked as Exhibit M, your Honor.

Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of
December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your
Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after
the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday
of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month
will be presented and discussed during the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of
the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that
request?

A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I
just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit 2 and 2-A, your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB
Extension Office at Villamor?

A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million
and it was placed in two (2) peerless boxes.

Q Did you actually participate in the counting of the money by bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes, sir.

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind
and I went back to my office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00
oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of
the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for
Malacaang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure,
your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by
vouchers?

A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to
prepare a request to the PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA?

A The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application for Managers Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the
payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to
Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that
receipt as a supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

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

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor.

*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check
be issued only after it is covered by a disbursement voucher duly approved by the proper authorities?

A Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of Mr.
Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction
covered by a disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal
Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor
of Mr. Luis Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay
PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that the witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5
million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a
fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds
from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order
was to pay the PNCC through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is
supposed to be paid in check?

A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also
he received an order coming from the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts
earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not
recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the
exceptional nature of the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is
properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness
stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you
might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this
particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the
order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

A Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch
as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the
President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability
of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1
million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid
obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there
was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever
you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of
these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President
Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos,
and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is
this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

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

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the amount is.....

(interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope
that we will forget what the question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment
of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as
you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different officials in any company either
government or private, which are supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so
that nobody will restrain him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same
purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory
are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and,
therefore, I will not sign it., if in your opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?
A Yes, your Honor.

*Q And this is something you know by the nature of your position and because you are a Certified Public
Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were
disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such amount was being disposed of?

A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment
was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an
extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your
Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. x x x.[43]

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon
any material point which presents itself during the trial of a case over which he presides.[44] But not only should his
examination be limited to asking clarificatory questions,[45] the right should be sparingly and judiciously used; for
the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct
of the trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid the impression that the
Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations
supplementing those made by Prosecutor Viernes and far exceeding the latters questions in length. The cold
neutrality of an impartial judge requirement of due process was certainly denied Tabuena and Peralta when the
court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the
observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with
the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the
majority opinion not to focus on numbers alone, but more importantly to show that the court questions were in
the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In
fact, it is very difficult to be, upon review of the records, confronted with numbers without necessarily realizing
the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required
because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the
reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto case that the
judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judges
questions to the defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels, 201. After
referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself

determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant
himself by the judge, and the repeated belittling by the judge of defendants efforts to establish the time that Fine
left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an
impression of the courts belief in the defendants probable guilt to permit the jury freely to perform its own
function of independent determination of the facts. x x x

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be
justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the
judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant
evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence
on record, and on the admission of Tabuena himself, the P55 million was delivered to the Presidents Office thru
Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following
questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year,
did you not entertain any doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the question on the ground that
it is

improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I dont think there was any basis,
Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then,
can this be considered even relevant? What is the connection between the payment made to the Presidents office
and the then forthcoming presidential snap election? In another instance, consider the following questions of
Presiding Justice Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts
earlier made in the same journal?

xxx

*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise
not recorded.

xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the
exceptional nature of the transactions?

xxx

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is
properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness
stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you
might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this
particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the
order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid
obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever
you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of
these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is
this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope
that we will forget what the question is?

xxx

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment
of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as
you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different officers and different officials in any company either
government or private, which are supposed to check and balance each other, is it not?

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so
that nobody will restrain him?

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same
purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory
are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and,
therefore, I will not sign it., if in your opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?

*Q And this is something you know by the nature of your position and because you are a Certified Public
Accountant?[47]
How can these questions be considered clarificatory when they clearly border more on cross-examination
questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify the
Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and witness Monera,
with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with
the prosecution.[48]

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never
proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the
enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of
crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the
interests of society.[49]

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances
may be such in a given case as to justify the court in so doing....This court, however, has more than once said that
the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the
conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always
embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a
lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a
mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary
to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be
determined by the circumstances of each particular case, but in so doing he must not forget the function of the
judge and assume that of an advocate....[50]

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it
must be understood that we have not adopted in this country the practice of making the presiding judge the chief
inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often
his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to
take the trial of the cause out of the hands of counsel.[51]

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare
and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and
conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem
such action necessary or advisable.[52]

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of
time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or
participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those
who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of
the cause, or the ascertainment of the truth in respect thereto.[53]

The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the
other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....[54]

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose
of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain
from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression
in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the
peoples faith in our courts.[55]
Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial
judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear
to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no
less than this, as a minimum guaranty of due process.[56]

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

Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of

constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most
dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to
sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the
Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the
wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby
ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The
Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET
ASIDE.

SO ORDERED.

Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur.

Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent.

Hermosisima, Jr., J., took no part being a signatory to SB decision.