FIRST DIVISION
G. R. No. 120646 - February 14, 2000
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. APOLINAR DANDO, Accused-Appellant.
KAPUNAN, J.:
This is an appeal from a decision of the Regional Trial Court, Branch 33, Siniloan, Laguna finding PO3
Apolinar E. Dando ("accused-appellant") guilty beyond reasonable doubt of murder.
The Information filed against accused-appellant reads:
That on or about 6:19 o'clock in the evening of November 20, 1991 at Barangay M. Pandeo,
Municipality of Siniloan, Province of Laguna and within the jurisdiction of this Honorable Court, the
above-named accused while conveniently armed with a deadly weapon (cal. 45) with intent to kill, with
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shoot several times one CESAR CASTRO y VALMONTE with the said weapon, thereby
inflicting upon him gunshot wounds on the vital parts of his body which directly caused his death, to
the damage and prejudice of the surviving heirs of the victim.
That the qualifying and aggravating circumstances of treachery, evident premeditation and abuse of
superior strength attended the commission of the crime.
CONTRARY TO LAW.1
On the same date, accused-appellant filed a motion for inhibition and for a change of venue of the case
because several staff members of Branch 33, RTC of Laguna were related to the victim. On February
12, 1992, Judge Venancio M. Tarriela, the Presiding Judge of said branch, granted the motion.2 On May
14, 1992, this Court approved the change of venue and designated Judge Jose C. Mendoza of Branch
26, RTC of Sta. Cruz, Laguna, to try and decide the case.3
Accused-appellant filed a petition for bail4 which was denied after hearing on the ground that the
evidence against accused-appellant is strong.5 Accused-appellant then went to the Court of Appeals via
petition for certiorari questioning the denial of his petition for bail.
Subsequently, on account of another motion for inhibition,6 filed by accused-appellant alleging that a
prosecution witness in the hearing for the petition for bail was related to a staff member of Branch 26,
the case was re-raffled and transferred to Branch 28, RTC of Sta. Cruz, Laguna, presided by Judge
Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its decision dismissing accused-appellant's petition
questioning the denial of his motion for bail, for lack of merit.7
During trial and after the prosecution witness had already rested its case, the Presiding Judge of Branch
28, RTC of Sta. Cruz, Laguna, likewise, inhibited himself from further hearing the case when accused-
appellant questioned his impartiality because of his refusal to grant accused-appellant's motion to recall
prosecution witness Susana Masacupan to the witness stand as a hostile witness.8 The case was
transferred back to Branch 26, RTC of Laguna, then presided by Judge Pablo Francisco.
On May 2, 1995, the trial court rendered its decision the dispositive portion of which reads:
WHEREFORE, this Court finds the accused Apolinar Dando guilty beyond reasonable doubt of the crime
of murder as charged in the information, qualified by treachery and committed with the aggravating
circumstances of use of craft or disguise and evident premeditation and hereby sentences him to suffer
the penalty of reclusion perpetua and to pay the heirs of Cesar Castro as follows:
a.) the sum of P50,000.00 as death indemnity;
b.) the sum of P1,628,000.00 for loss of earning capacity; and
c.) the sum of P35,974.00 as reimbursement for expenses incurred in the wake and burial of the victim;
and to pay the costs.
SO ORDERED.9
The prosecution's account of the case as narrated in the brief of the Solicitor General is as follows:
Prosecution witness Aldwin Gemanel testified that on November 20, 1991, he went to the house located
at Pandio Street, Siniloan, Laguna of his uncle, Angelito Millares, Jr. (Junior Millares) to look for his
(Gemanel's) father. Junior Millares' house was about 100 to 150 meters away from that of the victim,
Cesar Castro. Upon arrival at his uncle's place, a party was on-going as it was the birthday of the former
(p. 3, tsn, June 17, 1992). At the said party, gunshots were fired by appellant and Junior Millares to
celebrate the occasion (p. 4, tsn, October 20, 1992 and pp. 14-15, tsn, August 26, 1993). After a few
hours at the birthday party, Gemanel decided to go to his grandmother's house, a mere three (3) houses
away from his uncle's house (p. 5, tsn, June 17, 1992). On the way to his grandmother's house, he saw
appellant Apolinar Dando, sat on the side-car of a tricycle parked along Pandio Street in front of Junior
Millares' house and placed a white handkerchief over his face (p. 5-6, tsn, Ibid). Though puzzled by the
action of appellant, Gemanel proceeded to his grandmother's house and stayed there for almost an
hour (pp. 20-21, tsn, September 22, 1993). When Gemanel went out of the house, he saw appellant
get off the tricycle with the handkerchief covering his face and walk towards the direction of the town
plaza (pp. 30-31, tsn, Ibid.). At that time, Gemanel followed appellant and then he (Gemanel) entered
a bakery to buy bread (pp. 28-29, tsn, Ibid). While inside the bakery, Gemanel heard a shot, so he ran
outside to look where the shot came from (p. 36, tsn, Ibid). Thereupon, he saw appellant with the same
white handkerchief covering his face, firing three (3) more shots at Cesar Castro, who was standing on
the street in front of his (Castro's) house. After the fourth shot appellant ran towards the "paraanan"
or alley, to the direction of the town plaza (pp. 37-43, tsn, Ibid).
Gemanel rushed home and told his mother what he had just witnessed (p. 53, tsn, September 22,
1993). His mother then went to the crime scene while he was left to tend their store (p. 54, tsn, Ibid.)
When his mother came back after about ten (10) minutes, he confided to her that he saw appellant
shoot Cesar Castro (p. 54, tsn, Ibid). His mother then advised him not to tell anyone. Then he went to
the crime scene for a closer look of the victim (p. 55, tsn, Ibid).
The following day on November 21, 1991, Gemanel was fetched by police officers from his school and
was brought to the municipal building for questioning. The day after, on November 22, 1991, he
executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).
Gemanel further testified that he was present when a slug was recovered from the front yard of his
uncle's (Millares') house (p. 11, tsn, July 14, 1992). He personally saw the slug which was subsequently
handed to Celso Castro, son of Cesar Castro. He learned that the slug found was one of those fired from
the service pistol of appellant when the latter fired his gun during the birthday party of his uncle (pp.
11-12, tsn, Ibid).
Susan Masakupan, 29 years of age, married and a resident of Pandio Street, Siniloan, Laguna,
corroborated the testimony of Gemanel. She testified that on or about 6:00 o'clock in the evening of
November 20, 1991, while she was getting dry clothes hanging at their clothesline located at their front
yard, a man wearing a white polo shirt with designs and a pair of khaki pants and had a handkerchief
covering his face passed by. Surprised with the man's covered face, her gaze followed the man until
the latter stopped by victim Cesar Castro. Thereupon the man shot Cezar Castro and when the latter
fell down, the man continued on shooting at Cesar Castro two (2) or more shots. After the additional
shots, the man ran towards an alley (pp. 2-5, tsn, July 21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP, Siniloan, Laguna, testified that three (3)
slugs and three (3) empty shells were recovered from the crime scene on the night of November 20,
1991 (p. 6, tsn, October 5, 1992).
Josue Flores, property custodian of the PNP, Siniloan, Laguna, testified that he issued to appellant, who
is a member of PNP, Siniloan, Laguna, (one 1) service firearm, which was a caliber .45 pistol,
Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn, August 11, 1992).
Florentino Raada, a member of the Central Intelligence Service of Siniloan, Laguna, testified that he
received from the Siniloan, Laguna police station the following specimens:
- one (1) slug .45 caliber ammunition;
- three (3) pieces slug for .45 caliber ammunition;
- three (3) pieces empty shells for a .45 caliber ammunition;
- one (1) piece caliber Remington pistol with serial number 1945012.
and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20, tsn, August 11, 1992).
Raada further testified that one (1) slug of a .45 caliber pistol recovered from the body of the victim,
which was turned over to him by Arvee Castro, brother of the victim (pp. 27-28, tsn, Ibid) has [sic]
sent together with the above specimens to the PNP crime laboratory for ballistic examination (p. 30,
tsn, Ibid).
Susan R. Jalla, PNP officer and criminologist, testified that she conducted a ballistic examination on the
specimens submitted (Exhibits "H", "I", "J" and "K"; pp. 11-13, tsn Ibid).
She issued a certification (Exhibit "N") stating: ". . . microscopic examination, MS-1, MRS-1, MRS-15
revealed the same individual characteristics as the test bullets and test cartridges, respectively fired
from the above-mentioned firearm" (p. 17, tsn, Ibid).
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna, testified that she conducted
a postmortem examination on the cadaver of Cesar Castro. She issued an Autopsy Report (Exhibits "R"
and "R-1") finding that the victim sustained eleven (11) gunshot wounds (pp. 6-7, tsn Ibid) and that
one (1) bullet slug was extracted from his body (p. 12, tsn, Ibid).10
Accused-appellant, on the other hand, gave the following version of the incident: On November 20,
1991, he was a member of the Philippine National Police (PNP) with the rank of PO3 and detailed as
security to the mayor of Siniloan, Laguna. At around one o'clock in the afternoon of that day, he arrived
at the house of Junior Millares who was then celebrating his birthday. He participated in a drinking spree
up to three o'clock in the afternoon. On that occasion, there was no firing of a gun. He did not bring his
gun to the birthday party because he was not in a habit of bringing his gun when he attended such
occasions.11 When he left the party, he went straight home and slept. He woke up at around midnight
because of an upset stomach and vomitted. He went back to sleep and woke up the second time in the
morning of November 21, 1991, changed his clothes, ate his breakfast and went to work at around
eight o'clock in the morning.12It was only on November 22, 1991 that he learned from his wife that the
Chief of Police and the Mayor were looking for him and that he was a suspect in the killing of Castro.
After eating his supper, he went to the municipal building where the Chief of Police informed him that
he was a suspect in the killing of Castro and was placed under technical arrest. He surrendered his
firearm for ballistic examination to show that he had nothing to do with the killing. Thereafter, he did
not know what happened to firearm.13
The testimony of accused-appellant as to his whereabouts during the time the crime was committed
was supported by his wife Herninia Dando who testified before the trial court that on November 20,
1991 she went home at 4 o'clock in the afternoon to cook their supper. Less than an hour later, her
husband arrived, went to the sala and slept until the next morning. They had breakfast together and
after that, they went to their respective places of work.14
Accused-appellant assign the following errors committed by the trial court, to wit:
I A: - About the middle of that area, sir.
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF PROSECUTION
WITNESS ALDWIN OF GEMANEL THAT ACCUSED APPELLANT APOLINAR DANDO WAS THE ASSAILANT
WHO SHOT THE VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS AND SLUGS SUBMITTED FOR
BALLISTIC EXAMINATION WERE THOSE RECOVERED FROM THE SCENE OF THE CRIME AND ONE SLUG
FROM THE BODY OF THE VICTIM AND CAME FROM THE SERVICE FIREARM OF THE ACCUSED
APPELLANT.
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL EVIDENCE CONSISTING OF EMPTY
SHELLS AND SLUGS PRESENTED BY THE PROSECUTION AS TAINTED OR POLLUTED, AND HIGHLY
UNRELIABLE.
IV
THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF ALDWIN GEMANEL AND THE
BALLISTIC EXAMINATION OF THE SERVICE FIREARM OF ACCUSED APPELLANT CONSTITUTED PROOF
BEYOND REASONABLE DOUBT OF THE GUILT OF THE ACCUSED FOR THE CRIME OF MURDER.
V Q: - Do you know why them was a drinking spree at the time?
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER AND IN SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION
PERPETUA AND TO PAY THE HEIRS THE SUM OF P1,620,000.00 FOR LOSS OF EARNING CAPACITY OF
THE VICTIM, AND OTHER DAMAGES.15
The first and third issues shall be dealt with together as they are interrelated.
Accused-appellant assails the testimony of Aldwin Gemanel alleging that it was marred by
inconsistencies and was incredible, therefore, unworthy of belief. Among these inconsistencies,
according to accused-appellant, are:
1. Gemanel testified that there was a birthday party attended by accused-appellant in the house of his
(Gemanel's) uncle, Junior Millares, and there he saw accused-appellant pull out his gun and fire a shot
downward on the floor. However, Millares himself testified that accused-appellant merely gave to him
the gun and it was he (Millares) who fired two shots. Then he handed the gun to another guest, Agustin
Salinas, who likewise fired said gun twice and then it was returned to accused-appellant.16
2. Gemanel testified that moments before the shooting of Castro, he saw accused-appellant in front of
the house of Millares putting a handkerchief to cover his face and then going inside the tricycle to rest.
However, during the summary examination by the Municipal Judge who conducted the preliminary
investigation, he testified that he saw accused-appellant on board the tricycle sleeping.17
3. Gemanel testified that he was barely one house away from the place of the shooting when he heard
a shot. When he looked at the place where the shot came from, he saw a man already sprawled on the
ground and the man, whose face was covered by a handkerchief, fired two (2) more shots at the victim
and left passing through a pathway. In other words, there were three (3) shots fired. Later, he changed
his testimony stating that there were four (4) shots fired.18
4. Gemanel testified that after the shooting, he approached the victim then he went to his mother telling
her that Castro was shot without naming the assailant. He later testified that after the shooting, he
went home to his mother and revealed to her the identity of the assailant as Apolinar Dando. Then he
went back to the scene of the crime and saw that policemen were already investigating the incident.
When asked by the police investigator, he told him right then and there that it was accused-appellant
who shot the victim.19
The foregoing inconsistencies are but minor details and they do not discredit the positive identification
of accused-appellant as the perpetrator of the crime. The testimony of Gemanel on the events that
transpired on November 20, 1991 was clear, straightforward and consistent. Thus:
DIRECT-EXAMINATION BY FISCAL:
Q: - On November 20, 1991, where were you?
WITNESS
A: - I was on Pandeo Street Siniloan, Laguna, sir.
Q: - In what particular place in Brgy. Pandeo?
Q: - You were at the middle part of that area. Will you kindly tell to this Honorable Court your point of
reference as to the place where you were at the time?
A: - What I am saying is that I am at the middle of Pandeo Street, sir.
FISCAL
Q: - And when you said you were at the middle portion of Pandeo Street, will you tell this Honorable
Court the nearest house where you were at the time?
WITNESS
A: - Cesar Castro's house, sir.
Q: - And what are you doing then?
A: - None, sir, I was then going to my grandmother's house.
Q: - And were you able to proceed to the house of your grandmother?
A: - Yes, sir.
Q: - But prior to proceeding to the house of your "lola" did you go to any other place?
A: - Yes, sir.
Q: - Where?
A: - To my uncle Junior's house, sir, where there was a drinking spree.
A: - Yes, sir, it was my uncle Junior's birthday.
Q: - What was your purpose in going to the place of your uncle's birthday?
A: - I was going to look for my father, sir.
Q: - Did you. . .while you were there, by the way, where is the house of your uncle located?
A: - On Pandeo Street, sir.
Q: - How far from your house, how many houses apart?
A: - About 15 houses, sir.
Q: - What is the full name of your uncle Junior?
A: - Junior Millares, sir.
Q: - While you were there at the birthday celebration of your uncle Junior, what did you notice thereat?
WITNESS
A: - There was a firing of gun, sir.
Q: - Do you know the person who fired his gun at the time? Q: - After you saw Apolinar Dando sat on a tricycle and put a handkerchief on his face, what else
A: - Yes, sir, Polly Dando. happened?
Q: - Do you know Polly Dando personally? WITNESS
A: - Yes, sir. A: - He merely rested for a short while, sir.
Q: - Do you know the real name of Polly Dando? Q: - After that, what happened?
A: - Yes, sir, Apolinario Dando. A: - I left, sir.
Q: - Where did you see Apolinario Dando fired his gun? Q: - You mean to say after you saw Apolinar sat on a tricycle and put a handkerchief on his face and
A: - Under the table pointing downwards, sir. rested for a while, you went to your lola's house?
Q: - Do you know the caliber used by Dando? A: - Yes, sir.
ATTY. RAGAZA Q: - After that, where did you proceed?
Incompetent, your Honor. A: - I merely stayed on the street, sir.
COURT Q: - And again, while there on the street, did you again notice any unusual incident?
Objection noted, if he knows. A: - Yes, sir.
WITNESS Q: - What was that incident?
A: - Yes, sir. A: - Polly Dando got off the tricycle, sir.
FISCAL Q: - Where did he go?
Q: - Will you tell this Honorable Court the caliber? A: - Towards the plaza, sir.
A: - A .45 caliber, "yung lapad", sir. Q: - And what did you do?
Q: - Have you already seen a gun of that caliber? A: - I followed Polly, sir.
A: - Yes, sir. Q: - Up to what point did you follow him?
Q: - Where? A: - About 2 houses, sir.
A: - On TV and on posters, sir. Q: - While following Dando, what happened next?
xxx-xxx-xxx A - I entered a bakery, sir.
Q: - After that, where did you go? Q: - What was your purpose in going to that bakery?
A: - I went to my grandmother, sir. A: - I was going to buy bread, sir.
Q: - Where is the house of your grandmother located? Q: - Were you able to buy bread?
A: - Also an Pandeo Street, sir. A: - No, sir.
Q: - How far from the house of your uncle Junior? FISCAL
A: - Three houses away, sir. Q: - Where did you proceed after that?
Q: - What did you do in the house of your lola? A: - I heard a shot, sir.
A: - I entered the house, sir. Q: - What did you do. . . .
Q: - After that, what else happened? ATTY. RAGAZA
A: - I went out, sir. I moved to strike out the answer for not being responsive.
Q: - Where did you go? COURT
A: - On the street, sir. Sustained
Q: - Were you alone at the time? FISCAL
A: - Yes, sir. Q: - While you were at the bakery, what else happened?
Q: - While you were on the street, did you notice of any unusual incident? WITNESS
A: - Yes, sir. A: - I heard a shot, sir.
Q: - What was that incident? Q: - What shot did you hear?
A: - I saw Polly boarded a tricycle, sir. A: - A gunshot, sir.
Q: - When you said Polly Dando boarded a tricycle, you mean to say Dando went somewhere else? Q: - When you heard that gunshot, what did you do?
WITNESS A: - I went beside the street, sir.
A: - No, he merely sat on board a tricycle which was parked there, sir. Q: - What did you find out?
Q: - This tricycle has a driver? A: - I saw Cesar Castro already sprawled on the ground, sir.
A: - None, sir. Q: - Was Cesar Castro alone at the time?
Q: - What else did you notice? A: - Yes, sir.
A: - I saw Polly Dando placed a handkerchief over his face, sir. Q: - And do you know what was the cause of Cesar's falling to the ground?
xxx-xxx-xxx ATTY. RAGAZA
FISCAL Incompetent, your Honor, he already saw Cesar already sprawled on the ground.
Q: - Do you know the color of the handkerchief? COURT
A: - Yes, sir, white with small drawings. May answer. We will see the answer.
Q: - Will you tell this Honorable Court the attire used by the accused Apolinario Dando? WITNESS
A: - He was wearing a white polo shirt, sir, and a khaki pants. A: - No, sir.
FISCAL
Q: - At that precise moment when you heard the gunshot and you go (sic) to the street to find our ATTY. BALCE:
where the shot came from, where was Apolinar Dando at the time? I move that the last answer be placed in tagalog.
ATTY. RAGAZA A: - "Mga tatlo o apat"
There is no testimony that Apolinar Dando was present at the time. Q: - What did you say?
COURT A: - "Tatlo po o apat".
There was no testimony that Apolinar Dando was them. The fiscal was asking where was Apolinar at ATTY. BALCE:
the time. He was not asking why he was there. He did not assume. But your first answer that I heard was "tatlo bale apat."
WITNESS A: - Yes sir.
A: - I saw him walked a few steps and then fired his gun at Cesar, on his side, sir. COURT:
xxx-xxx-xxx Q: - Did you know where the shots came from?
Q: - After you saw Apolinar for the second time at the sprawled body of Cesar, what else happened? A: - Yes, Your Honor.
A: - He ran and went towards an alley, "paraanan", sir.20 Q: - Where?
On cross-examination, Gemanel gave substantially the same testimony: A: - From the house of Ka Cesar.
Q: - In answer to the question of the Court in the last hearing, you said you saw Dando going to the COURT:
plaza and you followed him far a distance of about 2 houses, during the time you were following, did Q: - After hearing those shots, what did you observe, if any?
you meet any person? A: - The person with his handkerchief covering his face, was running and entered an alley, "paraanan".22
A: - None, sir. Well-settled is the rule that "inconsistencies on minor and trivial matters only serve to strengthen rather
Q: - And during all the time that you were following Dando, was he wearing a handkerchief over his than weaken the credibility of witnesses for they erase the suspicion of rehearsed
face? testimony."23 Moreover, the alleged inconsistencies refer only to inconsequential details and not to the
A: - Yes, sir. crux of the case that Gemanel saw accused-appellant gun down Castro. Gemanel never wavered on
Q: - But you did not have much interest, that is why you stop following him and stopped at a bakery? this point even for a single moment. The consistency on the part of Gemanel in identifying accused-
A: - Yes, sir. appellant as the perpetrator of the crime makes him a credible witness. His testimony cannot be
ATTY. RAGAZA discredited by a mere alibi and denial on the part of accused-appellant.
Q: - And then you heard a shot? Alibi is one of the weakest defenses in criminal cases and it should be rejected when the identity of the
WITNESS accused is sufficient and positively established by the prosecution.24 Moreover, in order to overcome
A: - Yes, sir. the evidence of the prosecution, the accused must establish not only that he was somewhere else when
Q: - Exactly, where were you when you heard the first shot? the crime was committed but also that it was physically impossible for him to have been at the scene
A: - In the bakery about to buy bread, sir. of the crime at the time it was committed.25 In the present case, accused-appellant failed to show that
Q: - Where were you facing? it was physically impossible for him to be at the scene of the crime when it was committed. He even
A: - Towards the bakery, sir. admitted that his house was only about one-and-a-half kilometers away from the house of
Q: - Was there anybody attending to you in the bakery? Millares,26 which was very near the place where Castro was shot to death. Undoubtedly, the distance
A: - Yes, sir. did not render it impossible for accused-appellant to be at the scene of the crime at the time it was
Q: - Now, you were merely waiting for bread that you would buy in that bakery? committed. Accused-appellant's defense of alibi must necessarily fail.
A: - Yes, sir, when suddenly I heard a shot. As to the alleged inconsistency between the testimonies of Gemanel and that of Millares, we find the
Q: - How many shots did you hear while you were in the bakery? testimony of Gemanel to be more credible since the inconsistency lies in the affidavit and testimony of
A: - First, I heard one shot so I went out of the bakery and I saw Ka Cesar being shot, sir. Millares himself. In his affidavit, Millares averted that he fired the gun first and then accused-appellant
Q: - How many shots in all did you hear? fired the gun twice.27 In his testimony in court, however, he (Millares) claimed that after firing the gun,
A: - Three, sir. he gave the gun to Agustin Salinas.28 Confronted with the inconsistent statements of Millares and the
Q: - What was the interval between the first and the second shot? straightforward and categorical testimony of Gemanel, which was corroborated by that of Susana
A: - First, I was inside the bakery when I heard a shot so I immediately went out and saw Dando firing Masacupan, this Court believes and gives credence to the latter.
two shots on Ka Cesar who was already lying on the ground, sir.21 When he testified in court, Gemanel was then only thirteen (13) years old and a second year high school
xxx-xxx-xxx student at Siniloan Public Highhool. Indeed "the testimony of a child of sound mind is likely to be more
ATTY. BALCE: correct and truthful than that of older persons, so that once established that he has fully understood
Q: - You heard a shot and you went out and stopped at this point marked by an "x"? the character and nature of an oath, his testimony should be given full credence.29
A: - Yes, sir. In the second and third issues raised in his brief, accused-appellant opines that there is no proof showing
Q: - And it was only a gunshot that you heard? that the empty shells and slugs recovered at the scene of the crime were the same empty shells and
A: - On that moment, one. slugs submitted for ballistic examination. According to accused-appellant, the relatives of the victim
Q: - Just after the shot, did you not hear any person crying out in panic. tampered with these pieces of evidence making the same tainted or polluted, therefore, unreliable.
A: - Nobody, sir. Other than these bare allegations, however, accused-appellant failed to prove by convincing evidence
COURT: any irregularity in the handling by the police officers of these particular pieces of evidence. The ballistic
Q: - After that first shot, did you hear any other shot? examination report is thus clothed with the presumption of regularity. At any rate, the presentation of
A: - I heard, Your Honor. weapons (or the slugs and bullets, as in this case) used and ballistic examination are not prerequisites
COURT: for conviction.30 The corpus delicti and the positive identification of accused-appellant as the perpetrator
Q: - How many shots did you hear after hearing the first shot? of the crime are more than enough to sustain his conviction.
A: - Three to four shots, Your Honor.
Anent the fifth issue, accused-appellant contends that the trial court erred in convicting him for murder Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
and awarding in favor of the victim's heirs the sum of P1,620,000.00 for his loss of earning capacity
and other damages.
Art. 248 of the Revised Penal Code reads:
Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall
be guilty of murder and shall be punished by reclusion temporal in its maximum period to death31 if
committed with any of the following circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing THE UNITED STATES, Plaintiff-Appellee, v. RAFAEL BUMANGLAG ET AL., Defendants.
means to weaken the defense or of means or persons to insure or afford impunity. GREGORIO BUNDOC, Appellant.
xxx-xxx-xxx Iigo Bitanga for Appellant.
5. With evident premeditation. Attorney-General Villamor for Appellee.
xxx-xxx-xxx
The essence of treachery is that the attack comes without a warning and in a swift, deliberate and SYLLABUS
unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or 1. CRIMINAL PRACTICE AND PROCEDURE; HOMICIDE; PLEA OF SELF-DEFENSE. Unless the accused
escape.32 In this case, accused-appellant, whose face was covered by a handkerchief; approached the was first unlawfully attacked, it is not proper to admit the plea of self-defense and exempt him from
victim, who was merely standing by the gate in front of his house, and shot him. The victim was criminal responsibility; it is necessary, in order that such defense shall be effective, that the same shall
undoubtedly caught unaware and had no chance of putting up any defense. Clearly, treachery attended be proven as well as the crime charged.
the commission of the crime since the attack, although frontally, was no less sudden and unexpected,
giving the victim no opportunity to repel it or offer any defense of his person.33 2. ID.; ID.; MITIGATING CIRCUMSTANCES; PENALTY. The presence of the mitigating circumstance
The trial court further established that there was evident premeditation and that accused-appellant specified in article 9, paragraph 7, and that especially established by article 11 of the Penal Code, and
used "craft, fraud or disguise" in committing his dastardly act: the absence of aggravating circumstances which might neutralize the former, requires the imposition
. . . When DANDO (accused-appellant) boarded the tricycle parked in front of the residence of Angelito of the penalty immediately inferior to that prescribed by law and in the properly corresponding grade,
Millares, Jr., he did so not to rest or sleep there. He was there, with a handkerchief over his face, lying considering the number and character of the circumstances, all in accordance with article 81, rule 5, of
in wait for Cesar Castro to come out and stand by the gate of his house as he customarily did while said code.
taking a rest. And DANDO stayed inside the tricycle for a couple of hours, like an eagle waiting for its DECISION
prey. From the parked tricycle, DANDO could clearly see the gate of Cesar Castro's house, 100 to 150 TORRES, J. :
meters away. DANDO'S stay inside the tricycle lasted for about two (2) hours, a sufficient time for him
to reflect on the consequences of his plan to kill Cesar Castro. And when Cesar Castro did finally come On the night of January 2, 1909, Rafael Bumanglag, an inhabitant of the pueblo of San Nicolas, Province
out, and stood there unarmed by the gate of his house, DANDO swiftly swooped down on his prey and of Ilocos Norte, missed 4 baares or 40 bundles of palay which were kept in his granary, situated in the
triggered the burst from his service firearm which snuffed the life of his victim.34 place called "Payas," barrio No. 16 of the said pueblo, and on proceeding to search for them on the
Given the foregoing attendant aggravating circumstances, the trial court properly sentenced accused- following morning, he found them in an inclosed field which was planted with sugar cane, at a distance
appellant to suffer the penalty of reclusion perpetua. However, the amount it awarded in favor of the of about 100 meters from his granary; thereupon, for the purpose of ascertaining who had done it, he
heirs of the victim should be modified in accordance with prevailing jurisprudence. left the palay there, and that night, accompanied by Gregorio Bundoc. Antonio Ribao, and Saturnino
The trial court correctly awarded the amount of P50,000 as indemnity for the death for Cesar Castro. Tumamao, he waited near the said field for the person who might return to get the palay. A man, who
Said amount is awarded without need of further proof other than the death of the victim.35 In addition, turned out to be Guillermo Ribis, made his appearance and approaching the palay, attempted to carry
the heirs are also entitled to receive a compensation for the loss of earning capacity of the victim. The it away him, but at that instant Bumanglag, Bundoc, and Ribao assaulted the presumed thief with sticks
formula for computing the same as established in decided cases36 is as follows: and cutting and stabbing weapons; as a result of the struggle which ensued the person attacked fell
Net Earning Capacity = Life Expectancy x Gross Annual Income - Necessary Living Expenses down and died instantly, Bumanglag and his companions believing that Guillermo Ribis was the author
The life expectancy is equivalent to two thirds (2/3) multiplied by the difference of 80 and the age of of several robberies and thefts that had occurred in the place.
the deceased.37 Since Castro was 47 years old at the time of his death, his life expectancy was 22 more
years.38 Celso Castro testified that his father earned P3,000.00 monthly or P36,000.00 annually from In view of the foregoing, the provincial fiscal field a complaint on January 15, 1909, charging Rafael
the sash factory. In addition, the victim's annual income from farming, as found by the trial court, was Bumanglag, Gregorio Bundoc, and Antonio Ribao with the crime of homicide, and the trial judge, on
P53,000.00. The gross annual income of the deceased was P89,000.00. Allowing for necessary living February 5 of the present year, rendered judgment in the case, sentencing the three accused persons
expenses of fifty percent (50%) of his gross earnings, his total net earning capacity amounts to to the penalty of fourteen years eight months and one day of reclusion temporal, with the accessories,
P979,000.00.39 and to the payment of an indemnity of P1,000 to the heirs of the deceased, and the costs in equal parts,
As to the expenses actually incurred by the family of the victim for the wake and burial, Celso Castro from which decision only Gregorio Bundoc appealed.
was able to prove during trial that they incurred the sum of P39,974.00. The amount of P35,974.00
awarded by the trial court as reimbursement of funeral expenses is, accordingly, increased to From the facts above mentioned, fully proven in this case, the commission of the crime of homicide,
P39,974.00. defined and punished by article 404 of the Penal Code, is inferred, inasmuch as Guillermo Ribis was
WHEREFORE, premises considered, the decision of the trial court is hereby AFFIRMED with violently deprived of his life in consequence of serious wounds and bruises, some of them of a mortal
MODIFICATION that accused-appellant shall pay the heirs of the victim the following amounts: nature, as appears from a certificate issued by a physician who examined the body of the deceased,
1. death indemnity in the amount of P50,000.00; and who ratified said certificate at the trial under oath.
2. compensation for loss of earning capacity in the amount of P979,000.00; and The accused Bundoc, the only appellant, pleaded not guilty, but, in the absence of justification, and his
3. reimbursement of funeral expenses in the amount of P39,974.00. exculpatory allegation being unreasonable, it is not proper to hold that he assaulted and killed the
SO ORDERED. deceased, with the help of his codefendants, in order to defend himself from an attack made by the
former with a bolo.
Both Gregorio Bundoc and his codefendants Bumanglag and Ribao declared that, during the fight with
the deceased Ribis, they only beat the latter with sticks, because he unsheathed the bolo he carried;
but from the examination made of the body it appeared that several serious wounds had been inflicted
with cutting and stabbing weapons, besides some bruises, and according to the declaration of the health
officer Felipe Barba, which declaration was confirmed by the municipal president of Laoag, the bolo
worn by the deceased was in its heath and hanging from his waist; therefore it can not be concluded
that the deceased even intended to assault his murderers with his bolo either before he was attacked
by them or during the fight, because, had Ribis made use of the bolo he carried sheathed, the bolo
would have been found unsheathed at the place where the fight occurred, and it is not reasonable to
believe that, before falling to the ground in a dying condition he succeeded in sheathing his bolo, in
which condition it was found on his body.
It is therefore indisputable that, without any prior illegal aggression and the other requisites which
would fully of partially exempt the accused from criminal responsibility, the appellant and his two
companions assaulted Guillermo Ribis with sticks and cutting and stabbing arms, inflicting upon him
serious and mortal wounds, and therefore, the said accused is guilty of the crime of homicide as co-
principal by direct participation, fully convicted, together with his codefendants who are already serving
their sentence.
In the commission of the crime we should take into account the mitigating circumstance No. 7 of article
9 of the Penal Code, because the defendant acted with loss of reason and self-control on seeing that
Guillermo Ribis was taking material possession of the palay seized and hidden by him on the previous
night, thus committing one of the numerous unlawful acts perpetrated at that place, to the damage and
prejudice of those who, by their labor endeavor to provide themselves with the necessary elements for
their subsistence and that of their families. The special circumstance established by article 11 of the
same code should be also considered in favor of the accused, in view of the erroneous and quite general
belief that it is legal to punish, even to excess the thief who, in defiance of law and justice, while refusing
to work, devotes himself to depriving his neighbors of the fruits of their arduous labors; these two
circumstances are considered in the present case as especially admissible, without any aggravating
circumstance, and they determine, according to article 81, rule 5, of the Penal Code, the imposition of
the penalty immediately inferior to that prescribed by the law, and in its minimum degree, and therefore
order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares,
By virtue of the foregoing considerations, we are of the opinion that, the judgment appealed from being
reversed with respect to Gregorio Bundoc only, the latter should be, and is hereby, sentenced to the
penalty of six years and one day of prision mayor, to the accessories of article 61 of the code, to
indemnify the heirs of the deceased jointly or severally with his codefendants, in the sum of P1,000,
and to pay one-third the costs of both instances. So ordered.
Arellano, C.J., Mapa and Johnson, JJ., concur.
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
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.
 The prosecution in the court below contended that when these two accused saw the fight between their
father and Santiago they rushed to the place and proceeded to kill, as they thought, Santiago, and on
seeing Ciriaco approaching they met him and killed him outright.
THE UNITED STATES, Plaintiff-Appellee, v. PONCIANO ESMEDIA and MENA
ESMEDIA, Defendants-Appellants. As a result of this fight Ciriaco was left dead on the scene, Gregorio received fatal wounds from which
he died within about four hours, and Santiago also received fatal wounds from which he died five days
W. L. Wright, for Appellants. later.

Attorney-General Villamor, for Appellee. Ciriaco Abando received two wounds on the top of his head, one 8 centimeters and the other 3
centimeters in length, caused by some cutting instrument, and also sustained a fracture of the skull,
SYLLABUS apparently caused by means of a blow. He also had a wound on the head 3 centimeters in depth;
1. HOMICIDE IN DEFENSE OF AN IMMEDIATE RELATIVE. Any person who, in defending his father another on the neck below the left war 3 1/2 centimeters in depth and 3 centimeters in length; the left
against an unlawful attack, while he still honestly believes him to be in great danger, causes the death eye was bruised and he also had a wound on the palm of the right hand 3 centimeters in length and 2
of the attacking party, is exempt from criminal responsibility. (Art. 8, par. 5, Penal Code.) millimeters in depth.

2. HOMICIDE; AGGRAVATING CIRCUMSTANCE. When the victim of homicide is a man 80 years of Santiago Abando received in all seven wounds, one cross-wise of the head, back of the left ear, 8
age, and arrives upon the scene of an altercation after it has terminated, and is thereupon attacked centimeters in length and 1 centimeter in depth, another on top of the head, just above the first wound,
and killed, the aggravating circumstance No. 20 of article 10 of the Penal Code must be considered in 5 centimeters in length and a half centimeter in depth, a third wound on the left part of the neck 4
fixing the penalty, because of the disregard of and lack of respect for age. centimeters in length, all of these three wounds having been caused by a cutting instrument; a fourth
wound, also caused by some sharp instrument, 1 centimeter in depth and 8 centimeters in length, on
3. ID.; MITIGATING CIRCUMSTANCE OF LOSS OF REASON AND SELF-CONTROL. In order to justify the top of the head; a fifth wound, 2 1/2 centimeters in length and 5 millimeters in depth, which was
the application of the mitigating circumstance of loss of reason and self-control during a dispute, the in the nature of a contusion, appeared on the frontal region of the head; a sixth wound, 2 centimeters
acts of the person injured must have been the immediate cause of such loss of reason and self-control in length and 3 1/2 centimeters deep, in the back; and a seventh wound on the left hand, 4 centimeters
on the part of the person making the attack. When the victim arrives on the scene after the trouble has in length, 2 1/2 centimeters wide, and 2 millimeters in depth, which had apparently been caused by
terminated, and is then attacked by the contestants, the aforesaid circumstance can not be applied in some cutting instrument.
mitigation of the penalty.
DECISION The body of Gregorio Esmedia showed four wounds; a wound or bruise on the front of the head, 5 by 6
TRENT, J. : centimeters in dimension; another wound, caused by a cutting instrument, running across the head, 6
This is an appeal from a sentence rendered by the Court of First Instance of the Province of Antique, centimeters in length; another wound, apparently caused by a blow with some blunt instrument, on the
condemning Ponciano Esmedia and Mena Esmedia to twelve years and one day of reclusion temporal, breast; and another wound 1 centimeter in depth, apparently caused by a cutting instrument, and also
to jointly and severally pay to the heirs of Santiago Abando the sum of P1,000, and to pay the costs of a bruise on the left arm.
the cause, for the crime of double homicide.
The accused, Ponciano Esmedia, received one wound on the head, but it was not of a serious nature;
Ciriaco Abando, his wife, and their son, Santiago, lived in the jurisdiction of the municipality of Sibalom, the other accused, Mena Esmedia, escaped uninjured.
in the barrio of Bongbongan, Province of Antique. Gregorio Esmedia, father of these two accused, son-
in-law of Ciriaco Abando and brother-in-law of Santiago Abando, lived in the same barrio. These two The prosecution presented Andrea Lactoson, 60 years of age, wife of the deceased Ciriaco, and Julian
families lived very near to each other and owned adjoining rice lands. Before this trouble occurred there Alagos, a young boy about 16 years of age, a grandson of Ciriaco. These two witnesses saw the fight
had been a dispute between these two families relative to the ownership of the rice land then occupied and gave a detailed account of the same. While it is true that these two witnesses contradicted
by Ciriaco Abando. About 2 oclock on the afternoon of the 24th of June, 1909, Ciriaco Abando instructed themselves to some extent on cross-examination, they having testified on direct examination that
his son, Santiago, to go to a certain place in his rice field to let out the water in order that they could Ciriaco never did reach the scene of the fight but was killed by the two accused while on his way there,
plant rice in the said field. In compliance with these instructions of his father, Santiago proceeded to whereas on cross-examination they testified that Ciriaco was there and when the accused arrived, yet
the place designated, and while at work doing what he had been ordered by his father to do, Gregorio it is clear that they intended to say that when the two accused arrived Ciriaco was in that vicinity but
Esmedia appeared on the scene and started a quarrel with Santiago. Soon thereafter Gregorio drew a they did not mean to say that he was at the very side of his son.
dagger and stabbed Santiago in the back. Santiago fell to the ground, but arose immediately and
attacked Gregorio with his bolo, inflicting several wounds on the said Gregorio in consequence of which The theory of the defense that Ponciano was attacked by Ciriaco and Santiago is untenable, as the
he fell to the ground. Before this trouble finally terminated the two accused and Ciriaco Abando nature and character of the wounds on the bodies of these two persons show clearly that at least some
appeared in that immediate vicinity. of them were inflicted by bolos, and Ponciano must have used a bolo in the fight, though he contends
that he only made use of a club. The bolo wounds on the heads of Gregorio and Santiago were of such
These two accused contend that they were working in their rice field nearby, and on seeing Ciriaco a serious nature that it would have been impossible for them to have gone any distance after having
Abando and Santiago Abando attacking their father, Gregorio, they started to the place to render their been wounded. So they could not have rushed toward Ponciano and attacked him after having received
father assistance, Ponciano starting first; that when Ponciano got near the place of the trouble he was these wounds. Santiago was stabbed in the back by Gregorio, but this wound of itself was not
met by Ciriaco and Santiago who attacked him with bolos and clubs and that he, Ponciano, in self- necessarily fatal.
defense, knocked them both down, and after they had fallen the other accused, Mena Esmedia, arrived.
Ponciano further contends that he did not use a bolo in this fight, but used a club only. After a careful consideration of this entire record we are thoroughly satisfied that the following facts,
aside from those we have already related, have been established:chanrob1es virtual 1aw library

The two accused arrived on the scene about the time the fight between Santiago and Gregorio was
terminating, and on seeing their father, Gregorio, lying in the mud and water, fatally wounded and
dying, and honestly believing that Santiago, who was standing at the time, would inflict other wounds
upon their father, they, in his defense, immediately killed Santiago. Ciriaco was near the scene at this
time and on seeing him the two accused, under this great excitement, proceeded to attack him, and as
a direct result of the blows inflicted by them he fell to the ground, dying immediately. Ciriaco was an
old man, about 80 years of age, and used a cane to assist him in walking about.
Under the provisions of No. 5, article 8 of the Penal Code, the two accused are exempt from criminal
responsibility for having caused the death of Santiago Abando, inasmuch as it has been shown that
they inflicted these wounds upon him in defense of their father who was fatally wounded at the time.
They honestly believed, and had good grounds upon which to found their belief, that Santiago would
continue his attack upon their father. They are, however, guilty of having caused the death of the old
man, Ciriaco Abando. When they attacked and killed him the other trouble had terminated and they
were not in danger of bodily harm from him.
In the commission of this crime of homicide, we must take into consideration No. 20 of article 10 of the
Penal Code which provides, as an aggravating circumstance, that "when the act is committed with insult
or in disregard for the respect which may be due the aggrieved party on account of his rank, age, . . ."
inasmuch as the deceased, Ciriaco, was a man 80 years of age and did not arrive on the scene until
after the trouble between the two accused and Santiago had terminated.
As we have said, these two accused killed this old man, Ciriaco, while laboring under great excitement
and in the heat of passion, and it might be insisted that under these circumstances they should be given
the benefit of No. 7 of article 9 of the Penal Code, as an extenuating circumstance. This provision should
be applied to reduce the penalty in cases where the provocation which caused the heated passion was
made by the injured party. In the case at bar the provocation was made by Santiago and not Ciriaco,
as Ciriaco arrived after the fight had terminated and there was then no provocation running from the
old man, Ciriaco, to these accused. He was entirely unarmed and made no demonstration and said no
word prior to the assault upon him by the two accused. So the state of mind into which these two
accused were thrown by the provocation induced by Santiago can not modify the extent of their
punishment for killing the old man. In other words, before this provision can be applied as an
extenuating circumstance it is necessary, as we have said, that the person injured should have executed
the act producing arrebato y obcecacion. It can not be applied when an assault is made upon a person
who had taken no part in the quarrel and had not in any manner provoked the accused. (Decision of
the supreme court of Spain dated October 17, 1904, published in the Official Gazette on December 23
following; decision of the supreme court of Spain dated January 12, 1894; White v. State, 44 Tex. Cr.
Rep., 346; State v. Jackson, 45 La. Ann., 1031; State v. Vinso, 171 Mo., 576.)
In view of the fact that these two accused are ignorant the aggravating circumstance is compensated
by the provisions of article 11 of the Penal Code which we applied in this case.
The sentence appealed from is, therefore, affirmed; provided, however, that these two accused,
Ponciano Esmedia and Mena Esmedia, be condemned to fourteen years eight months and one day of
reclusion temporal, and to the accessory penalties; and, provided further, that they be declared exempt
from criminal responsibility for causing the death of Santiago Abando, which exemption relieves them
from paying any indemnity to the heirs of the said Santiago Abando.
Arellano, C.J., Torres, Johnson, and Moreland, JJ., concur.
REGINA v. DUDLEY AND STEPHENS
14 Q.B.D. 273 (1884)
LORD COLERIDGE, C J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard
Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th
of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been
argued before us, and on which we are now to pronounce judgment. The special verdict . . . is as follows.
That on July 5, 1884, the prisoners, Thomas Dudley and Edward [sic] Stephens, with one Brooks, all able-bodied English seamen,
and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered
English vessel, were cast away in a storm on the high seas 1,600 miles from the Cape of Good Hope, and were compelled to put
into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1
lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon
which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was
committed. That on the twelfth day the remains of the turtle were entirely consumed, and for the next eight days they had nothing
to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was
drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been
seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and
suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood
to refer, was not consulted. That on the 24th of July, the day before the act. now in question., the prisoner Dudley proposed to
Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was
not put to the boy, and in point of fact there was no drawing of lots. That on the day the prisoners spoke of their families, and
suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in
sight by the morrow morning the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks
that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner
Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless and
extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being
killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash
act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time
was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for
four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners
were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for
trial at Exeter. That if the men had not fed upon the body of the boy th.ey would probably not have survived to be so picked up
and rescued, but would within four days have died of famine. That the boy, being in a much weaker condition, was likely to have
died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That
under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy
or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one
for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of
the other three men. But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens
be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court
shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each
guilty of felony and murder as alleged in the indictment. . . .
From these facts, stated with the cold precision of a special verdict, it appears sufficiency that the prisoners were subject to terrible
temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other
details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in
my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the
chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving
him of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they
would probably not have survived," and that "the boy being in a much weaker condition was likely to have died before them." They
might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case
it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy
was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part
attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are
ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal
consequence which follows from the facts which they have found. . . .
[T]he real question in the case [is] whether killing under the circumstances set forth in the verdict be or not be murder. The
contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General
in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at
once dangerous, immoral, and opposed to all legal principle and analogy. . . . First it is said that it follows from various definitions
of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you
may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal
act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. . So spake the Fiend, and with necessity,
.. The tyrant's plea, excused his devilish deeds.
It is . . . clear . . . that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted
view the necessity which justified homicide is that only which has always been and is now considered a justification. . . . Lord might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain
Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe
to be what is commonly called "self defence." (Hale's Pleas of the Crown, i. 478.) on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands
But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he fittest to dispense it.
deals with the exemption created by compulsion or necessity he thus expresses himself -- "If a man be desperately assaulted and It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation
in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled
fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact [sic], for he ought rather to to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right
die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change
assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was
necessity, hath made him his own protector. . . ." (Hale's Pleas of the Crown, vol. i. 51.) willful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous
But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by opinion the prisoners are upon this special verdict guilty of murder.
Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable NOTE:
as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that here in England, that rule, *The Court then proceeded to pass sentence of death upon the prisoners.
at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon *This sentence was afterwards commuted by the Crown to six months' imprisonment.
that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable
with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
not justify larceny, what would he have said to the doctrine that it justified murder? [The opinion then reviewed other early text DECISION
writers and found that none of them supported the defendants' contentions.] TINGA, J.:
Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. . . . The American Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45, seeking to set aside
case cited by my Brother Stephen in his Digest [United States v. Holmes, 26 F. Cas. 360, 1 Wall. Jr. 1 (C.C.E.D. Pa. 1842)], from the Decision[1] of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July
Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save 2001. The Decision affirmed with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19,
themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise
the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. . . . known as the Bouncing Checks Law.
The one real authority of former time is Lord Bacon, who . . . lays down the law as follows: "Necessity carrieth a privilege in This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of
itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion
stranger. First of conservation of life; if a man steals viands to satisfy his present hunger, this is no felony nor larceny. So if divers of the Information in Criminal Case No. 93-130465 reads as follows:
be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and
keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor feloniously make or draw and issue to Manila Doctors Hospital to apply on account or for value to Editha L. Vecino Check No.
by misadventure, but justifiable." . . . Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount of P30,000.00, said accused well
upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness 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
of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down full upon its presentment, which check when presented for payment within ninety (90) days from the date hereof, was subsequently
the broad proposition that man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said
law at the present day. . . . Manila Doctors Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking
Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be days after receiving said notice.
justified by some well recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, Contrary to law.[3]
unless the killing was justified by what has been called "necessity." But the temptation to the act which existed here was not what The other Informations are similarly worded except for the number of the checks and dates of issue. The data
the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be are hereunder itemized as follows:
immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such Criminal Case No. Check No. Postdated Amount
divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To 93-130459 487710 30 March 1993 30,000.00
preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances 93-130460 487711 30 April 1993 P30,000.00
in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the 93-130461 487709 01 March 1993 P30,000.00
passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral 93-130462 487707 30 December 1992 P30,000.00
necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be 93-130463 487706 30 November 1992 P30,000.00
hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any 93-130464 487708 30 January 1993 P30,000.00
absolute or unqualified necessity to preserve one's life. Necesse est ut eam, non ut vivam, is a saying of a Roman officer quoted 93-130465 487712 30 May 1993 P30,000.00[4]
by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.[5]
a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from The evidence for the prosecution shows that Tys mother Chua Lao So Un was confined at the Manila Doctors
Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic Hospital (hospital) from 30 October 1990 until 4 June 1992.Being the patients daughter, Ty signed the
language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Acknowledgment of Responsibility for Payment in the Contract of Admission dated 30 October 1990.[6] As of 4 June
Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been 1992, the Statement of Account[7] shows the total liability of the mother in the amount of P657,182.40. Tys sister, Judy
contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount
Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity 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
which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most a promissory note wherein she assumed payment of the obligation in installments.[9] To assure payment of the
unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" -- 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.
The PEOPLE, Plaintiff and Respondent, v. Juan Manuel PELAYO et al., Defendants and Appellants.
No. B116693.
Decided: January 12, 1999
Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant Juan Manuel
Pelayo. Shawn O'Laughlin, La Jolla, under appointment by the Court of Appeal, for Defendant and Appellant Hilario
B. Pelayo. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin
Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, Noah P. Hill,
Deputy Attorney General, for Plaintiff and Respondent.
Juan Manuel Pelayo and Hilario B. Pelayo appeal judgments of conviction of committing sexual offenses against two
children.1 Juan asserts the evidence is insufficient to support his conviction of rape with a foreign object. Hilario
contends that excluding certain evidence and prohibiting references to newspaper articles in closing argument denied
him a fair trial. The People contend the trial court erred in the calculation of the sentences imposed upon appellants.
We affirm the judgments and remand for resentencing.
PROCEDURAL HISTORY
Appellants were charged with the crime of committing lewd acts on two children under fourteen years old, Nelida and
Amber. (Pen.Code, 288, subd. (a).)2 They were also charged with acting in concert to rape Nelida with a foreign
object ( 264.1, 289) and with acting in concert to forcibly rape Amber. ( 261, subd. (a)(2), 264.1.)
The jury found appellants guilty of committing lewd acts upon Amber and Nelida and of raping Nelida with a foreign
object while acting in concert and of forcibly raping Amber while acting in concert. Appellants were each sentenced
to prison for 18 years.
FACTS
Amber and Nelida were 12 and 10 years old when they became friends at Harding Elementary School. In the 1992-
1993 school year, Amber's parents arranged for Nelida's mother to take care of Amber after school until they could pick
her up after work.
Nelida's family shared their four-bedroom home with Nelida's aunt and uncle and their children. Appellants joined
these two families in about September 1992 and lived in the garage. They were 19 and 21 when the events occurred
that led to their convictions.
In November 1992, appellants went into Nelida's bedroom when she and Amber were doing their homework and
Nelida's younger sisters were out of the room. Appellants asked Nelida and Amber to give them back rubs and they
complied. Similar encounters continued for two or three weeks. Appellants then began to molest the children and
continued to do so two or three times per week through December 1992. They usually entered Nelida's room together
and locked the door, although on some occasions one would enter as the other left. If the victims tried to leave, one
of the appellants blocked the door. They made lewd statements about genitalia and sexual activity and told the victims
that they wanted to have sexual intercourse with them. They fondled the children and placed the victims' hands on
their penises. On one occasion, Hilario put his finger in Nelida's vagina.
In early 1993, Amber spent a night at Nelida's home. While the victims slept, appellants entered their bedroom, began
molesting them there and then dragged them to the garage where they continued to abuse them. The victims escaped,
ran back to Nelida's room and locked the door.
On another occasion in 1993, Amber and Nelida were alone in Nelida's bedroom doing their homework. Nelida left
to use the bathroom, and when she was gone, appellants entered the bedroom and locked the door. One of them
blocked the door, and when Amber tried to escape through a window, appellants dragged her back into the room. She
was forcibly raped by both appellants.
Amber and Nelida asked appellants many times to stop molesting them and threatened to tell others about the attacks.
Appellants made the children believe that they would be blamed for the attacks if anyone were told what happened.
The girls said they did not tell their parents or others because they were afraid and ashamed.
Amber disclosed the attacks to her mother about two years later. Nelida confirmed the attacks soon after Amber
described them to her mother and the police.
SUFFICIENCY OF THE EVIDENCE
Juan challenges his conviction for rape with a foreign object in concert as lacking evidentiary support. He asserts
the evidence did not establish he was acting in concert with Hilario when Hilario inserted his finger into Nelida's vagina.
In considering this challenge, we review the facts, and reasonable inferences to be drawn therefrom, in the light most
favorable to the judgment. (People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643; People v.
Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)
Juan's argument proceeds from the premise that Hilario was the only person who digitally raped Nelida and that the
evidence was insufficient to establish that he aided and abetted Hilario in this crime. We disagree. The evidence
and the reasonable inferences that can be drawn therefrom show that the digital penetration of Nelida was
accomplished by a common plan developed and executed by both appellants. Appellants facilitated Hilario's digital
penetration by locking the bedroom door and blocking the victims' means of escape. They also aided and abetted
each other's sexual abuse by threatening and intimidating Amber and Nelida so they would not disclose the crimes.
Whether Juan was aware that Hilario digitally penetrated Nelida's vagina, and whether he was otherwise occupied with
Amber at the time, is irrelevant. Juan's actions aided and abetted Hilario.
One who aids and abets a crime may be convicted for any natural or probable consequence of the act that was
encouraged or facilitated. (People v. Villa (1957) 156 Cal.App.2d 128, 134, 318 P.2d 828.) A person can be convicted
of an offense even if he is not in the room when the crime occurs. (People v. Lopez (1981) 116 Cal.App.3d 882, 885-
886, 172 Cal.Rptr. 374.) The evidence is sufficient to support Juan's conviction of the crime charged in count 3.
SCHOOL RECORDS
Hilario argues the trial court erred by excluding Amber's school records. We disagree. The Psychological Services
Department of the Los Angeles Unified School District maintained records concerning Amber. They were offered by
Hilario to contradict Amber's testimony that her grades suffered because of appellants' crimes. They were also offered
to rebut testimony that Amber's personality changed during the attacks to depressed, sullen and mean. The records
included reports and observations by Amber's teachers and others about her progress in school from kindergarten to
fifth grade. They also included test results, teaching recommendations, and conflicting observations about her
personality, behavior and learning disabilities.
Evidence Code section 352 gives the court discretion to exclude evidence that may be time-consuming, confusing or
misleading. The trial court weighed the relevance of the records and their probative value against the risk they could
be misconstrued. It concluded the records were too extensive and unduly time-consuming and they could confuse or
mislead the jury. These risks were determined to outweigh any probative value the records might have.
Hilario argues that the records should have been received because this was a close case that turned on Amber's
credibility. He recited a number of examples of inconsistencies between the testimony of Amber and other witnesses
and argued the factual impossibility of some of the events recalled by her. The jury considered these inconsistencies
and other exculpatory evidence but nevertheless found appellant guilty. It is highly unlikely that evidence Amber had
trouble in school before she was molested and raped, or that she exaggerated its effect on her grades and behavior in
school, would have altered the outcome of this trial.
The records were extensive and contained lengthy, differing opinions about the nature of her learning disability and
personality. The records did not specifically contradict any fundamental or critical evidence introduced by the
prosecution. The trial court's decision to exclude the records was not arbitrary or capricious and was proper. (People
v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal.Rptr. 197, 721 P.2d 79.)
REFERENCE TO NEWSPAPER ARTICLES
Hilario also complains that the court improperly restricted his counsel's closing argument by prohibiting reference to
newspaper articles about a person who was acquitted of sex crimes against children when it was discovered the stories
were fabricated by the children. We disagree.
The trial court's discretionary decision to prohibit reference to another trial involving different facts was not
erroneous as a matter of law. In People v. Mendoza (1974) 37 Cal.App.3d 717, 112 Cal.Rptr. 565, the defendant's
attorney wished to read substantially similar newspaper articles to the jury. The court concluded that summation
must be based upon the evidence in the case. Counsel may refer the jury to common experience, history, or literature
[citation], but he may not dwell on the particular facts of unrelated, unsubstantiated cases[T]he court properly denied
defense counsel license to read newspaper clippings about unrelated specific crimes, hearsay material which could only
confuse the jury with irrelevant facts. (Id., at p. 725, 112 Cal.Rptr. 565.)
SENTENCING
The People contend that elements of the trial court's 18-year sentence were unauthorized and should be corrected.
We agree. Although the People did not file a notice of appeal, an unauthorized sentence may be corrected at any time.
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, 66 Cal.Rptr.2d 423, 941 P.2d 56; People v. Serrato (1973) 9 Cal.3d
753, 764, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572,
583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144; People v. Crooks (1997) 55 Cal.App.4th 797, 810-811, 64 Cal.Rptr.2d 236.)
Section 1170.1 provides the general formula for determining consecutive terms of imprisonment for persons convicted
of two or more felonies. A principal term is selected and subordinate terms and enhancements are added to it to
produce an aggregate term of imprisonment. The principal term consists of the greatest term of imprisonment
imposed for any of the convictions. Subordinate terms for non-violent felonies are one-third of the middle term for
each felony, not to exceed five years; for violent felonies, it is one-third of the middle term plus one-third of all
enhancements. For a violation of listed sex crimes, the number of enhancements that may be imposed is unlimited.
Each enhancement must be a full and separately served enhancement and may not be merged with any term or
enhancement. ( 1170.1, subd. (h).)
Violent sex crimes are treated differently. The Legislature enacted section 667.6 in 1979 to significantly increase
prison terms for persons convicted of certain violent sex offenses. (Stats.1979, ch. 944, 10, p. 3258.) Section 667.6,
subdivisions (c) and (d) address the terms of imprisonment for 10 listed sex crimes commonly referred to as violent
sex crimes. Appellants' convictions for forcible rape in concert with a foreign object and forcible rape in concert are
among the enumerated offenses. Their convictions for lewd conduct with a child under 14 are not.
Appellants were each sentenced to a total of 18 years in prison. The trial court imposed a middle term of seven years
for appellants' convictions for rape with a foreign object in concert ( 261, 264.1, count 3) and a seven-year middle
term for rape in concert ( 264.1, 289, count 4). Two subordinate one-third middle terms of two years each were
imposed for their convictions for lewd conduct ( 288, subd. (a), counts 1 and 2).
The trial court said it was imposing the sentences for counts 3 and 4 pursuant to section 667.6, subdivision (d), and
that it was imposing the sentences for counts 1 and 2 under section 1170.1. But by treating both of the non-violent
sex offenses as subordinate counts under the one-third the middle term rule of section 1170.1, the court effectively
made one of the violent sex offenses a principal term under section 1170.1. This is not authorized by section 667.6,
subdivision (d).
Section 667.6, subdivision (c) provides that if a person is convicted of a violent sex offense against a single victim on
one occasion, the trial court may, in its discretion, impose a full, separate and consecutive sentence for such an offense.
Alternatively, it may sentence the defendant more leniently in the manner prescribed by section 1170.1. (People v.
Jones (1988) 46 Cal.3d 585, 593, 250 Cal.Rptr. 635, 758 P.2d 1165; People v. Belmontes 1983) 34 Cal.3d 335, 346, 193
Cal.Rptr. 882, 667 P.2d 686.) Subdivision (d) removes the trial court's discretion to impose a more lenient sentence
under section 1170.1 where two or more violent sex crimes are committed against more than one victim or where they
are committed against the same victim on more than one occasion. In such an instance, the defendant must serve a
full, separate and consecutive sentence for each conviction of an enumerated violent sex offense. ( 667.6, subd. (d);
Jones, supra, at p. 595, 250 Cal.Rptr. 635, 758 P.2d 1165; People v. Reeder (1984) 152 Cal.App.3d 900, 911, 200
Cal.Rptr. 479.) Further, the term imposed under section 667.6, subdivision (d) shall not be included in any
determination pursuant to Section 1170.1. Thus, when a defendant is convicted of both violent sex offenses and
crimes to which section 1170.1 applies, the sentences for the violent sex offenses must be calculated separately and then
added to the terms for the other offenses as calculated under section 1170.1. The trial court erred by making both
non-violent sex offenses subordinate counts and thereby effectively merging one of the section 667.6 offenses into a
section 1170.1 term.
Appellants argue that Belmontes gives the trial court discretion, even for convictions governed by section 667.6,
subdivision (d), to designate one of the violent sex offense convictions as a principal term and to treat other convictions
as subordinate to it. We disagree. Nothing in Belmontes makes this point.
Belmontes resolves two questions about the application of section 667.6, subdivision (c). First, it held the trial court
has discretion to choose between section 1170.1 and section 667.6, subdivision (c) in sentencing a defendant convicted
of a violent sex offense and another felony. Second, the court held that in exercising its discretion, the trial court is
not required to designate a sex offense with the longest term as the principal term. Such a conviction may be treated
under section 667.6, subdivision (c), given a full consecutive term and not considered in any other sentence determined
pursuant to section 1170.1. On the other hand, section 1170.1 could be selected as the sentencing formula for a
conviction of a sex offense enumerated in section 667.6, subdivision (c). If this approach is taken, this count could
be either the principal term or a one-third subordinate term to a longer nonsex offense. Finally, as Belmontes noted,
the trial court may properly designate the longest nonsex offense as the principal term and may treat all of the sex
offenses under section 667.6, subdivision (c). (People v. Belmontes, supra, 34 Cal.3d at pp. 345-346, 193 Cal.Rptr.
882, 667 P.2d 686.) These options exist, however, only because section 667.6, subdivision (c) specifically gives the
trial court this discretion.
Section 667.6, subdivision (d) does not permit any discretion in sentencing a person convicted of committing violent
sex offenses against more than one victim or against the same victim on more than one occasion. The Legislature
has declared that these serious crimes demand harsher punishment. Full, separate and consecutive sentences must
be served for each conviction. Further, a person subject to section 667.6, subdivision (d) must be sentenced in a
manner that does not dilute the impact of full, consecutive terms of imprisonment. The statute requires that the
prison term imposed shall not be included in any determination pursuant to Section 1170.1. Thus, it may not be
used to reduce the term of any other conviction. The computations under sections 1170.1 and 667.6, subdivision (d)
must always be done separately and the total of the section 667.6, subdivision (d) sentences added to any sentence
computed independently under section 1170.1.
Here the lewd conduct convictions on counts 1 and 2 ( 288, subd. (a)) are not listed in section 667.6 and are therefore
governed by the sentencing formula prescribed by section 1170.1. The crimes charged in counts 3 and 4 ( 261, 264.1,
289) are violent sex crimes committed against more than one victim and are governed by section 667.6, subdivision
(d). Because counts 3 and 4 are governed by section 667.6, subdivision (d), they may not be used as components of a
term calculated under section 1170.1, either as a principal term or as a subordinate term.
On resentencing, the trial court should calculate the appropriate terms for counts 1 and 2 under section 1170.1, making
the necessary discretionary choices concerning the length of the principal term (lower, middle, upper) and consecutive
versus concurrent sentences. The terms selected should be added to the full term, consecutive sentences imposed for
counts 3 and 4.
The matters are remanded to the trial court for resentencing. In all other respects, the judgments are affirmed.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PATROLMAN DOMINGO BELBES, accused-
appellant.
DECISION
QUISUMBING, J.:
Before the Regional Trial Court of Tabaco, Albay, Branch 18, Patrolman Domingo Belbes stood charged of Murder.
The information against him reads:
"That on or about the 16th of February, 1990 at 9:00 oclock in the evening, more or less, inside
the campus of Pili National High School, at Barangay Pili, Municipality of Bacacay, Province of
Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
with treachery, taking advantage of nighttime, employing means to insure or afford impunity, with
the use of high powered firearm, and with intent to kill, did then and there willfully, unlawfully,
feloniously, suddenly, unexpectedly and without any warning, attack, fire and shoot successively
with an armalite rifle (M-16) FERNANDO B. BATALLER while the latter was intoxicated, thereby
hitting and inflicting upon him multiple serious and mortal wounds on his head, at the right lower
face, the chest (front) at the left antero lateral approximately 5 cm. below but lateral to the left
nipple, at the left lateral waistline, thereby lacerating the liver, hitting the stomach portions of the
large and small intestines and lower vertebrae, and the chest (back) at the middle back and
another at the left back, lateral level of the lower rib, which caused Fernando B. Batallers direct
and instantaneous death, to the damage and prejudice of his legal heirs.
ACTS CONTRARY TO LAW."[1]
When arraigned, he pleaded not guilty.
The facts established during trial by the prosecution is summarized by the appellee in its brief, thus:
"In the evening of February 16, 1990, appellant Pat. Domingo Belbes and Pat. Jose Pabon were
assigned by the Bacacay Station Commander to maintain peace and order at the Junior and
Senior Prom of Pili Barangay High School, Pili, Bacacay, Albay.
Around 9:00 p.m. while Teacher-In-Charge Mila Ulanca, appellant, Pat. Pabon and Elmo Bes were
watching the dance, two students, Riselle Banares and Juliana Basaysay, approached Mrs.
Ulanca and said "Mam, it seems that there is somebody making trouble." Appellant and Pat.
Pabon, armed with an armalite rifle and a .38 caliber revolver, respectively, responded forthwith.
Moments after the two police officers left, bursts of gunfire-- "Rat-tat-tat-tat-tat" filled the air.
Fernando Bataller, a graduating student of Pili Barangay High School, was hit on different parts of
his body and died.
Moments before the gruesome incident, Fernando Bataller, then drunk, was in the company of
Carlito Bataller and Rosalio Belista. While Fernando was vomiting and holding on to the bamboo
wall of the schools temporary building, the bamboo splits broke. At this instance, appellant and
Pat. Pabon appeared. Without warning, appellant fired his gun. Fernando slumped on the ground,
bathed with his own blood. Appellant and Pat. Pabon fled from the crime scene.
Fernando was pronounced dead on arrival at the hospital. As shown in the autopsy report,
Fernando suffered the following gunshot wounds: (1) head, located at the right lower face, skin,
muscles, blood vessels, nerves, bone torn away; (2) chest (front, located at left, antero lateral
approximately 5 cm. below but lateral to the left nipple, another gunshot wound on the same
location with tattooing located at left lateral waistline; (3) chest (back) located at the middle back
 at the level of the lowest rib, skin and superficial muscles torn away, another gunshot wound
located at the left back, lateral level of the lowest rib, with tattooing. (Citations omitted)"[2]
In his defense, the accused-appellant presented his version of the fatal incident, summed up by the trial court as
follows:
"The accused, Domingo Belbes in his defense testified that he was at Pili Barangay High School
with P/Cpl. Jose Pabon because they were detailed by their Station Commander. x x x At 9:00
p.m. two female students reported to them and Mrs. Ulanca that somebody was making trouble at
the back of the temporary building. They were requested by Mrs. Ulanca to see what happened
and they went to the place. There they came upon somebody who was making trouble and
destroying the wall of the temporary building. He came to know that it was Fernando Bataller.
Fernando Bataller had some companions, Carlito Bataller and certain Belista. Fernando Bataller
was more than 20 years old at that time and Carlito was about Fernandos age. He saw Fernando
destroying the wall of the temporary building which was made of bamboo splits. Pabon was in
front of him. The two companions were prevailing upon Fernando. Fernando was drunk or a little
bit tipsy. He was not vomiting but he smelled of wine. They approached Fernando and identified
themselves as policemen. Fernando did not mind them. Fernando stabbed Pabon with a knife.
Belbes knew because he saw the glint of the blade when the thrust was made on Pabon. Pabon
and Bataller were about one (1) meter away from each other. Pabon was not hit, for he was able
to move backward. Fernando made two thrusts on Pabon. After Pabon retreated because of the
knife thrusts, he (Belbes) was also stabbed by Fernando. He was hit on his lower left shoulder.
He was able to hold Fernandos hand because he wanted to get the knife from him. His firearm
was slung on his shoulder. Fernando was able to free himself. Fernando made another thrust and
Belbes moved to his left. Then he made a warning shot. After the warning shot, Fernando suddenly
grabbed his firearm. Belista was quite aggressive at that moment, while Carlito wanted to kick him.
Fernando was able to hold the barrel of the armalite. They struggled with each other and the gun
went off considering that his armalite was semi-automatic, with one squeeze of the trigger one
shot came out. During the process of grappling for the armalite he could not recall how many shots
came out. When his service armalite went off he saw Fernando fall to the ground. When Fernando
fell, he took the knife from his hand. The people gathered around them. They asked that Fernando
be brought to the hospital. After one hour, the police mobile car arrived. They proceeded to the
Police Station. There they turned over the knife to the Desk Officer. The knife is now with the
Provincial Command."[3]
Defense witness Jose Pabon, also a policeman, who was present when the incident happened, corroborated the
testimony of the appellant. However, on cross-examination, Pabon belied the fact that the appellant fired a warning
shot. Pabon likewise failed to mention anything about aggression on the part of the companions of the deceased,
namely Carlito Bataller and Rosalio Belista. He only recalled that said companions ganged up on Belbes after he shot
the deceased.
Finding the defense weak, while the evidence for the prosecution sufficiently strong, the trial court convicted the
appellant of murder and sentenced him to reclusion perpetua.
In this appeal, counsel de oficio raised one issue:
WAS THE TRIAL [Court] CORRECT IN HOLDING ACCUSED-APPELLANT GUILTY OF
MURDER?[4]
We shall now consider this matter as well as the more basic issues of self-defense claimed by appellant and the
credibility of the witness for the prosecution. Appellant policeman admits firing the fatal gunshots that hit the deceased
student. But he claims that he did so in self-defense. He contends that he was only performing his official functions
when he responded in the course of police duties to the information that somebody was making trouble and disturbing
the peace. Being in charge of maintaining peace and order within the vicinity, he ascertained the veracity of the
information given by the students concerned. He asserts that in the absence of intent and voluntariness, he cannot be
faulted for the death of the deceased.
At the outset, we note that appellant questions the credibility of the sole eye-witness for the prosecution, Carlito Bataller.
He states that Carlito is the cousin and friend of the deceased. In his view, Carlito had strong motive to falsely testify
against him. Moreover, appellant says that Carlito kindled some moral guilt because he contributed to the sudden
death of his cousin. Appellant alleges that if only Carlito had prevailed over Fernando (instead of tolerating the hostility
of the deceased), he could have prevented the shooting incident.
Regrettably, appellant offers no material evidence to sufficiently support his claim of self-defense on the face of mortal
danger while on police duty. The cross-examination of Carlito Bataller did not bear out his averments of fraternal bias
and psychological guilt or moral taint in Carlitos testimony. The testimony of the single witness, if positive and clear, is
sufficient to sustain a judgment of conviction, even in a charge for murder. [5] Moreover, when the issue boils down to
the credibility of witnesses, the findings of the trial court deserve great respect since it is in a better position to observe
the demeanor of the witnesses while testifying in court, and to discern its dimensions, both verbal and non-verbal.[6] The
relationship of a witness to the victim does not necessarily diminish the formers credibility.[7]
It is a settled rule that the findings and conclusions of the trial court on the credibility of a witness deserve respect
because it is in a better position to determine whether the witness was telling the truth or not, having observed the
demeanor of the witness while testifying on the witness stand. [8] In the case at bar, there appears to be no cogent
reason why we should not adhere to this rule.
Where the accused owns up to killing the victim in self-defense, the burden of evidence shifts to him. He must show
by clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger.[9] To
prove self-defense, the accused must show with clear and convincing evidence, that: (1) he is not the unlawful
aggressor; (2) there was lack of sufficient provocation on his part; and (3) he employed reasonable means to prevent
or repel the aggression. Self-defense, like alibi, is a defense which can easily be concocted. It is well settled in this
jurisdiction that once an accused had admitted that he inflicted the fatal injuries on the deceased, it was incumbent
upon him, in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory
and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence,
"for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself had
admitted the killing."[10]
Appellant testified that upon responding to the report of two students, he and Patrolman Pabon, saw Fernando Bataller
destroying the bamboo wall of the schools temporary building. Fernando appeared to be drunk and a little bit tipsy.
They approached Fernando and identified themselves as policemen but the former ignored them. Instead, Fernando
lunged with a knife at Patrolman Pabon but the latter avoided the thrust. Afterwards, Fernando also stabbed the
appellant and hit his left shoulder. As another thrust was coming, appellant claims he fired a warning shot. Fernando
grabbed the armalite and they struggled until the gun went off hitting Fernando, according to appellant.
We have serious questions on accused-appellants claim of self-defense, on his part, against the alleged
aggressiveness of the deceased student. First, why was the knife allegedly used by the deceased mis-handled? It was
not even subjected to fingerprinting. Second, why was the wound on appellants shoulder medically examined only
after the lapse of more than twenty-one hours? Was it possibly self-inflicted? According to the doctor who examined
him, Dr. Evelyn Amador, it was a possibility.[11] Lastly, as observed by the trial court, if it was true that they grappled
face to face with each other, why was the victim hit sideways, as testified to by Amador?
The time factor here appears significant. Mrs. Mila Ulanca testified that it only took about six seconds from the time
Patrolman Belbes left his seat until she heard the burst of gunshots.[12] This testimony is not contradicted or rebutted.
Thus, appellants claim of self-defense could not prosper. The evidence on record, however, reveals an incomplete
justifying circumstance defined in Article 11, paragraph number 5 of the Revised Penal Code. [13] A person incurs no
criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. But we must stress
there are two requisites for this justifying circumstance: (a) that the offender acted in the performance of a duty or in
the lawful exercise of a duty or in the lawful exercise of a right: and (b) that the injury or offense committed be the
necessary consequence of the due performance of such right or office.[14] In the instant case, only the first requisite is
present; admittedly appellant acted in the performance of his duty. However, the second requisite is lacking, for the
killing need not be a necessary consequence of the performance of his duty. His duty is to maintain peace and order
during the Junior and Senior Prom. But he exceeded such duty, in our view, when he fired his armalite without warning.
No doubt, the concept of mitigating circumstances is founded on leniency in favor of an accused who has shown less
perversity in the commission of an offense.[15]Though his protestation of innocence is unavailing, his offense could only
be characterized as homicide, not murder, as hereafter shown.
On one hand, treachery did not attend the commission of the crime as to rule out murder. Treachery cannot be
presumed but must be proved by clear and convincing evidence as conclusively as the killing itself. For the same to
be considered as a qualifying circumstance, two conditions must concur: (a) the employment of means, method or
manner of execution which would ensure the safety of the malefactor from defensive or retaliatory acts on the part of
the victim, no opportunity being given the latter to defend himself or to retaliate; and (b) the means, method or manner
of execution were deliberately or consciously adopted by the offender.[16] There is no showing that the shooting was
premeditated or that appellant, in shooting the victim, employed means, methods or forms to ensure its execution,
without risk to himself arising from the defense which the offended victim might make. Likewise, mere suddenness of
the attack does not necessarily imply treachery.[17]
On the other hand, the offense is definitely not reckless imprudence resulting in homicide because the shooting was
intentional.[18] Illustrations of reckless imprudence resulting in homicide are: (1) exhibiting a loaded revolver to a friend,
who was killed by the accidental discharge brought about by negligent handling;[19] or (2) discharging a firearm from
the window of ones house and killing a neighbor who just at the moment leaned over the balcony front;[20] or (3) where
the defendant, to stop a fist fight, fired his .45 caliber pistol twice in the air, and, as the bout continued, he fired another
shot at the ground, but the bullet ricocheted and hit a bystander who died soon thereafter. [21] In this case, appellant
intended to fire AT the victim, and in fact hit ONLY the victim.
We conclude that appellant is guilty only of homicide, mitigated by the incomplete justifying circumstance of fulfillment
of duty. The penalty for homicide is reclusion temporal. There being one mitigating circumstance, the maximum of the
penalty should be reclusion temporal in its minimum period, which is 12 years and 1 day to 14 years and 8 months.
Applying the indeterminate sentence law, the minimum of said penalty should be taken from prision mayor.
WHEREFORE, the decision of the trial court convicting appellant Domingo Belbes of the crime of murder is hereby
MODIFIED. Appellant is found guilty of the crime of homicide and sentenced to an indeterminate penalty of eight (8)
years of prision mayor minimum, as minimum, to fourteen (14) years of reclusion temporal minimum, as maximum. He
is also ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity and P20,000.00 as moral
damages, and to pay the costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago
Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin
Labuguen as members; while Felix Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as
clerk of the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and
served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon instructions of
Headquarters, 15th Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts
and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the
Headquarters of the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18,
1945 with the following instructions:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.
1. Returned herewith are the papers on the case of Arsenio Borjal.
2. This is a matter best handled by your government and whatever disposition you make of the case is
hereby approved.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 18, 1945, 10:35 a.m.

(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 8, 8-a)
and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as
G.R. No. L-4445 February 28, 1955 executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was asked to
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church performed the
vs. last rites over Borjal's remains. Immediately after the execution, Beronilla reported the matter to Col. Arnold who in
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants- reply to Beronilla's report, sent him the following message:
appellants. HEADQUARTERS 3RD MILITARY DISTRICT
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants. 15TH INFANTRY, USAFIP
Prospero C. Sanidad and Claro M. Recto for defendant. In the Field
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee.
REYES, J.B.L., J.: 22 April 1945
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the
judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the execution of
Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra. Msg. No. 398
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during Subject: Report and information Re Borjal case
the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt upon his life by To: Military Mayor Beronilla
unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. 1. Received your letter dated 18 April 1945, subject, above.
Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the 2. My request that you withhold action in this case was only dictated because of a query from Higher
province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the
issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can
try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received only compliment you for your impartial independent way of handling the whole case.
from the Headquarters of the 15th Infantry a list of all puppet government officials of the province of Abra (which
included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate (Sgd.) R. H. ARNOLD
said persons and gather against them complaints from people of the municipality for collaboration with the enemy Lieut.-Colonel, 15th Inf., PA
(Exhibit 12-a). Commanding
Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio
Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla, pursuant to his Received April 26, 1947 7:00 a.m.
instructions, placed Borjal under custody and asked the residents of La Paz to file complaints against him. In no time, (Sgd.) MANUEL BERONILLA
charges of espionage, aiding the enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed Military Mayor, La Paz, Abra
(Exhibit 21, 21-a)
Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and
Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres
Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro
Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and Father Filipino
Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for allegedly
conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late President Manuel A. Roxas
issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under the
Revised Penal Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of the
enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted
amnesty by the Amnesty Commission, Armed Forces of the Philippines (Records, pp. 618-20). The rest of the
defendant filed their application for amnesty with the Second Guerrilla Amnesty Commission, who denied their
application on the ground that the crime had been inspired by purely personal motives, and remanded the case to
the Court of First Instance of Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the
Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed: defendant Juan
Balmaceda was discharged from the information so that he might be utilized as state witness, although actually he was
not called to testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio Afos( a
boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting
the members of the jury and the grave digger Antonio Palope on the ground that they did not participated in the killing
of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon
insufficiency of evidence to establish their participation in the crime; but convicting defendants Manuel Beronilla,
Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of murder, and
sentencing them to suffer imprisonment of from 17 years, 4 months and 1 day of reclusion temporal to reclusion
perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary
imprisonment in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants the Court a
quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were
not entitled to the benefits thereof because the crime was committed after the expiration of the time limit fixed by the
amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.
In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to
this Court.
The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal
were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all military
mayors under its jurisdiction to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to
try the accused and find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in
the list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with
instructions of superior military authorities, altho it point to irregularities that were due more to ignorance of legal
processes than personal animosity against Borjal. The state, however, predicates its case principally on the existence
of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling
attention to the illegality of Borjal's conviction and sentence, and which the prosecution claims was known to the
accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED
JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS
THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND
IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED
AND SENTENCED TO BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG
BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban,
Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together
with the package of records of Borjal's trial that was admittedly returned to and received by Beronilla on that date, after
review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his ordering
the execution of Borjal on the night of April 18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did
actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The messenger, or
"runner", Pedro Molina could not state what papers were enclosed in the package he delivered to Beronilla on that
morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of
the message, state the contents thereof.
The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael
Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of the
message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded credence, for
the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to
make any mention of the reading, or even the receipt, of the message. In the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra?
A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I was assigned as guard at the Presidencia
where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on
duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know
the reason why he would be tied, as he had not yet learned of the decision of the jury against him. Mayor
Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to be tied. I personally
delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but instead told me
that I should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the Presidencia,
and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla.
The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived,
otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it
is difficult to believe that having learned of the contents of the Volckmann message, Balmaceda should not have
relayed it to Borjal , or to some member of the latter's family, considering that they were relatives. In addition to
Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to
kill Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal in the early evening of April 18, while
Bayken testified that the agreement was made about ten o'clock in the morning, shortly after the accused had denied
Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in
violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very same day, April
18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more important, if Borjal was
executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can
only compliment you for your impartial but independent way of handling the whole case" instead of berating Beronilla
and ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the
Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal must be
rejected, because the accused had no need to conspire against a man who was, to their knowledge, duly sentenced
to death.
The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the
concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does not operate to
exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may not be held that the
manslaughter stemmed from purely personal motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June
30, 1951). Actually, the conduct of the appellants does not dispose that these appellants were impelled by malice
(dolo). The arrest and trial of Borjal were made upon express orders of the higher command; the appellants allowed
Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted
nineteen (19) days; it was suspended when doubts arose about its legality, and it was not resumed until headquarters
(then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the
proceedings, and whose suggestions on procedure were followed; and when the verdict of guilty was rendered and
death sentence imposed, the records were sent to Arnold's headquarters for review, and Borjal was not punished until
the records were returned eight days later with the statement of Arnold that "whatever disposition you make of the case
is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court, after
finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and civilians to be tortured,
and hidden American officers to be captured by the Japanese) expressly declared that "the Court is convinced that it
was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).
It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a
superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware
of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established
(U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886;
7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens si rea.
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 consequence, as, in law, is equivalent to
 criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not committed if the minds of
the person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).
But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not
have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground
that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy control and occupation. The
evidence on record regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission
that decided the case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was liberated on July 1,
1945, according to its records; and this finding was accepted by Judge Letargo when he dismissed the case against
said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of
the case, relied on Department Order No. 25, of the Department of the Interior, dated August 12, 1948, setting the
liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly
contradictory; but given the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of
October 2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall
be resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No.
12) p. 6093.
For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ., concur.
G.R. No. L-18660 December 22, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FELIPE DELIMA, defendant-appellant.
Tancinco & Rosales for appellant.
Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:
Lorenzo Napilon had escaped from the jail where he was serving sentence.
Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the house of Jorge Alegria,
armed with a pointed piece of bamboo in the shape of a lance, and demanded his surrender. The fugitive answered
with a stroke of his lance. The policeman dodged, it, and to impose his authority fired his revolver, but the bullet did
not hit him. The criminal ran away, without parting with his weapon. These peace officer went after him and fired again
his revolver, this time hitting and killing him.
The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the accessory penalties.
He appeals from that judgment which must be reversed.
That killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no
right, after evading service of his sentence, to commit assault and disobedience with a weapon in the hand, which
compelled the policeman to resort to such an extreme means, which, although it proved to be fatal, was justified by the
circumstances.lawphil.net
Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no crime, and he is hereby acquitted
with the costs de oficio. So ordered.
Araullo C.J., Street. Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.