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EN BANC asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her

C.A. No. 384 February 21, 1946 husband prevented her from doing so, stating that Amado probably did not realize what he was
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's
vs. parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told
AVELINA JAURIGUE, appellant. them to end the conversation, as he might not be able to control himself.
Jose Ma. Recto for appellant. In the morning of September 20, 1942, Avelina received information that Amado had been
Assistant Solicitor General Enriquez and Solicitor Palma for appellee.. falsely boasting in the neighborhood of having taken liberties with her person and that she had
DE JOYA, J.: even asked him to elope with her and that if he should not marry her, she would take poison;
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of and that Avelina again received information of Amado's bragging at about 5 o'clock in the
Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant afternoon of that same day.
Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went
ranging from seven years, four months and one day of prision mayor to thirteen years, nine to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just
months and eleven days of reclusion temporal, with the accessory penalties provided by law, across the provincial road from his house, to attend religious services, and sat on the front
to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one- bench facing the altar with the other officials of the organization and the barrio lieutenant,
half of the costs. She was also credited with one-half of the period of preventive imprisonment Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.
suffered by her. Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of father, also for the purpose of attending religious services, and sat on the bench next to the last
Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed one nearest the door. Amado Capina was seated on the other side of the chapel. Upon
(1) That the lower court erred in not holding that said appellant had acted in the observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which
legitimate defense of her honor and that she should be completely absolved of all Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the
criminal responsibility; greatest of impudence, placed his hand on the upper part of her right thigh. On observing this
(2) That the lower court erred in not finding in her favor the additional mitigating highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her
circumstances that (a) she did not have the intention to commit so grave a wrong as personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B,
that actually committed, and that (b) she voluntarily surrendered to the agents of the which she had in a pocket of her dress, with the intention of punishing Amado's offending
authorities; and hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand
(3) That the trial court erred in holding that the commission of the alleged offense and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound
was attended by the aggravating circumstance of having been committed in a sacred about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on
place. one of the front benches, saw Amado bleeding and staggering towards the altar, and upon
The evidence adduced by the parties, at the trial in the court below, has sufficiently established seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you
the following facts: do that," and answering him Avelina said: "Father, I could not endure anymore." Amado
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was
in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to also in the same chapel, approached Avelina and asked her why she did that, and Avelina
the stabbing of the deceased by defendant and appellant, in the evening of September 20, surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take
1942, the former had been courting the latter in vain, and that on one occasion, about one care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's
month before that fatal night, Amado Capina snatched a handkerchief belonging to her, relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein
bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay. defendant and appellant to go home immediately, to close their doors and windows and not to
On September 13, 1942, while Avelina was feeding a dog under her house, Amado admit anybody into the house, unless accompanied by him. That father and daughter went
approached her and spoke to her of his love, which she flatly refused, and he thereupon home and locked themselves up, following instructions of the barrio lieutenant, and waited for
suddenly embraced and kissed her and touched her breasts, on account of which Avelina, the arrival of the municipal authorities; and when three policemen arrived in their house, at
resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She about 10 o'clock that night, and questioned them about the incident, defendant and appellant
kept the matter to herself, until the following morning when she informed her mother about it. immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly
Since then, she armed herself with a long fan knife, whenever she went out, evidently for self- of what had actually happened in the chapel and of the previous acts and conduct of the
protection. deceased, as already stated above, and went with said policemen to the police headquarters,
On September 15, 1942, about midnight, Amado climbed up the house of defendant and where her written statements were taken, and which were presented as a part of the evidence
appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, for the prosecution.
evidently with the intention of abusing her. She immediately screamed for help, which The high conception of womanhood that our people possess, however humble they may be, is
awakened her parents and brought them to her side. Amado came out from where he had universal. It has been entertained and has existed in all civilized communities.
hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father,

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A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman her consent, the said chapel was lighted with electric lights, and there were already several
represents the only true nobility. And they are the future wives and mothers of the land. Such people, about ten of them, inside the chapel, including her own father and the barrio lieutenant
are the reasons why, in the defense of their honor, when brutally attacked, women are and other dignitaries of the organization; and under the circumstances, there was and there
permitted to make use of all reasonable means available within their reach, under the could be no possibility of her being raped. And when she gave Amado Capina a thrust at the
circumstances. Criminologists and courts of justice have entertained and upheld this view. base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in his death a few moments later, the means employed by her in the defense of her honor was
the days of chivalry. There is a country where women freely go out unescorted and, like the evidently excessive; and under the facts and circumstances of the case, she cannot be legally
beautiful roses in their public gardens, they always receive the protection of all. That country declared completely exempt from criminal liability..
is Switzerland. But the fact that defendant and appellant immediately and voluntarily and unconditionally
In the language of Viada, aside from the right to life on which rests the legitimate defense of surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased,
our own person, we have the right to property acquired by us, and the right to honor which is immediately after the incident, and agreed to go to her house shortly thereafter and to remain
not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173). there subject to the order of the said barrio lieutenant, an agent of the authorities (United
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate
of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as vindication of a grave offense committed against her a few moments before, and upon such
precious, if not more, than her very existence; and it is evident that a woman who, thus provocation as to produce passion and obfuscation, or temporary loss of reason and self-
imperiled, wounds, nay kills the offender, should be afforded exemption from criminal control, should be considered as mitigating circumstances in her favor (People vs. Parana, 64
liability, since such killing cannot be considered a crime from the moment it became the only Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th Defendant and appellant further claims that she had not intended to kill the deceased but
ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). . merely wanted to punish his offending hand with her knife, as shown by the fact that she
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, inflicted upon him only one single wound. And this is another mitigating circumstance which
in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs.
about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning Diaz, 15 Phil., 123).
and without revealing his identity, and, in the struggle that followed, touched her private parts, The claim of the prosecution, sustained by the learned trial court, that the offense was
and that she was unable to free herself by means of her strength alone, she was considered committed by the defendant and appellant, with the aggravating circumstance that the killing
justified in making use of a pocket knife in repelling what she believed to be an attack upon was done in a place dedicated to religious worship, cannot be legally sustained; as there is no
her honor, and which ended in his death, since she had no other means of defending herself, evidence to show that the defendant and appellant had murder in her heart when she entered
and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344). the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her greatest provocation. She is a God-fearing young woman, typical of our country girls, who
assailant with a bolo which she happened to be carrying at the time, even though her cry for still possess the consolation of religious hope in a world where so many others have
assistance might have been heard by people nearby, when the deceased tried to assault her in a hopelessly lost the faith of their elders and now drifting away they know not where.
dark and isolated place, while she was going from her house to a certain tienda, for the The questions raised in the second and third assignments of error appear, therefore, to be well
purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249). taken; and so is the first assignment of error to a certain degree.
In the case, however, in which a sleeping woman was awakened at night by someone touching In the mind of the court, there is not the least doubt that, in stabbing to death the deceased
her arm, and, believing that some person was attempting to abuse her, she asked who the Amado Capina, in the manner and form and under the circumstances above indicated, the
intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it defendant and appellant committed the crime of homicide, with no aggravating circumstance
was held that, notwithstanding the woman's belief in the supposed attempt, it was not whatsoever, but with at least three mitigating circumstances of a qualified character to be
sufficient provocation or aggression to justify her completely in using deadly weapon. considered in her favor; and, in accordance with the provisions of article 69 of the Revised
Although she actually believed it to be the beginning of an attempt against her, she was not Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed
completely warranted in making such a deadly assault, as the injured person, who turned out upon her. And considering the circumstances of the instant case, the defendant and appellant
to be her own brother-in-law returning home with his wife, did not do any other act which should be accorded the most liberal consideration possible under the law (United States vs.
could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391).. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil.,
In the instant case, if defendant and appellant had killed Amado Capina, when the latter 950)..
climbed up her house late at night on September 15, 1942, and surreptitiously entered her The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it
bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and should be reduced by two degrees, the penalty to be imposed in the instant case is that
conduct, instead of merely shouting for help, she could have been perfectly justified in killing of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the
him, as shown by the authorities cited above.. Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and
According to the facts established by the evidence and found by the learned trial court in this appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its
case, when the deceased sat by the side of defendant and appellant on the same bench, near the medium degree, to prision correccional in its medium degree. Consequently, with the
door of the barrio chapel and placed his hand on the upper portion of her right thigh, without modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby

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sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, and the hacienda owned by George Fleischer. This is located in the
as minimum, to two years, four months, and one day of prision correccional, as maximum, municipality of Maitum, South Cotabato. At the place of the fencing is the
with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to Pieza II). At that time, appellant was taking his rest, but when he heard
exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and that the walls of his house were being chiselled, he arose and there he saw
appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife the fencing going on. If the fencing would go on, appellant would be
marked Exhibit B ordered confiscated. So ordered.. prevented from getting into his house and the bodega of his ricemill. So he
Ozaeta, Perfecto, and Bengzon, JJ., concur. 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
EN BANC hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
G.R. Nos. L-33466-67 April 20, 1983 Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Appellant's Brief, p.161, rec.).
vs. It appears, however, that this incident is intertwined with the long drawn out legal battle
MAMERTO NARVAEZ, defendant-appellant. between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer
The Solicitor General for plaintiff-appellee. and deceased Rubia the assistant manager, on the one hand, and the land settlers of Cotabato,
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant. among whom was appellant.
From the available records of the related cases which had been brought to the Court of
MAKASIAR, J.: Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, 26757 and L-45504), WE take judicial notice of the following antecedent facts:
in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the Appellant was among those persons from northern and central Luzon who went to Mindanao
conviction of the accused in a decision rendered on September 8, 1970, with the following in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of
pronouncement: South Cotabato. He established his residence therein, built his house, cultivated the area, and
Thus, we have a crime of MURDER qualified by treachery with the was among those who petitioned then President Manuel L. Quezon to order the subdivision of
aggravating circumstance of evident premeditation offset by the mitigating the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares,
circumstance of voluntary surrender. The proper penalty imposable, for distribution among the settlers.
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American
Code). landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of area formerly leased and later abandoned by Celebes Plantation Company, covering
the crime of murder, 1,017.2234 hectares.
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in 1941 but the survey report was not submitted until 1946 because of the outbreak of the second
the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38,
damages, P 2,000.00 as attorney's fees, the offended party having been Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were
represented by a private prosecutor, and to pay the costs; subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33,
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION G.R. No. L-45504).
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the The 300 hectares set aside for the sales application of Fleischer and Company was declared
sum of P12,000.00 as compensatory damages, P10,000.00 as moral open for disposition, appraised and advertised for public auction. At the public auction held in
damages, P2,000.00 as attorney's fees, the offended party having been Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But
represent by a private prosecutor, and to pay the costs (p. 48, rec.). because of protests from the settlers the corresponding award in its favor was held in
The facts are summarized in the People's brief, as follows: abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed
Verano and Cesar Ibanez together with the two deceased Davis Fleischer by the representative of the settlers. This amicable settlement was later repudiated by the
and Flaviano Rubia, were fencing the land of George Fleischer, father of settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the same
deceased Davis Fleischer. The place was in the boundary of the highway and ordered the formal award of the land in question to Fleischer and Company. The settlers

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appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the to appellant's house and rice mill from the highway, since the door of the same opens to the
decision in favor of the company. Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of installation of four strands of barbed wire to the posts.
Cotabato which then consisted only of one sala, for the purpose of annulling the order of the At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm
Secretary of Agriculture and Natural Resources which affirmed the order of the Director of all morning, was awakened by some noise as if the wall of his house was being chiselled.
Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case in Getting up and looking out of the window, he found that one of the laborers of Fleischer was
view of the amicable settlement which they had repudiated as resulting from threats and indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased
intimidation, deceit, misrepresentation and fraudulent machination on the part of the company. Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers. The
They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on jeep used by the deceased was parked on the highway. The rest of the incident is narrated in
August 16, 1965 the decision of the Court of First Instance in favor of the company. the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing
This resulted in the ouster of the settlers by an order of the Court of First Instance dated with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense
September 24, 1966, from the land which they had been occupying for about 30 years. Among Exhibits).
those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built Appellant now questions the propriety of his conviction, assigning the following errors:
in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in First Assignment of Error: That the lower court erred in convicting
1962 or 1963 near the highway. The second house is not far from the site of the dismantled defendant-appellant despite the fact that he acted in defense of his person;
house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion and
thereof. He also transferred his store from his former residence to the house near the highway. Second Assignment of Error: That the court a quo also erred in convicting
Aside from the store, he also had a rice mill located about 15 meters east of the house and a defendant-appellant although he acted in defense of his rights (p. 20 of
concrete pavement between the rice mill and the house, which is used for drying grains and Appellant's Brief, p. 145, rec.).
copra. The act of killing of the two deceased by appellant is not disputed. Appellant admitted having
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa shot them from the window of his house with the shotgun which he surrendered to the police
and other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. authorities. He claims, however, that he did so in defense of his person and of his rights, and
to obtain an injunction or annulment of the order of award with prayer for preliminary therefore he should be exempt from criminal liability.
injunction. During the pendency of this case, appellant on February 21, 1967 entered into a Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of
contract of lease with the company whereby he agreed to lease an area of approximately 100 the Revised Penal Code, but in order for it to be appreciated, the following requisites must
to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for occur:
Defense) for a consideration of P16.00 monthly. According to him, he signed the contract First. Unlawful aggression;
although the ownership of the land was still uncertain, in order to avoid trouble, until the Second. Reasonable necessity of the means employed to prevent or repel
question of ownership could be decided. He never paid the agreed rental, although he alleges it;
that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased Third. Lack of sufficient provocation on the part of the person defending
Fleischer wrote him a letter with the following tenor: himself (Art. 11, par. 1, Revised Penal Code, as amended).
You have not paid six months rental to Fleischers & Co., Inc. for that The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
portion of land in which your house and ricemill are located as per following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
agreement executed on February 21, 1967. You have not paid as as even his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
after repeated attempts of collection made by Mr. Flaviano Rubia and kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
myself. awakened to see the wall of his house being chiselled. The verbal exchange took place while
In view of the obvious fact that you do not comply with the agreement, I the two deceased were on the ground doing the fencing and the appellant was up in his house
have no alternative but to terminate our agreement on this date. looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks
I am giving you six months to remove your house, ricemill, bodega, and caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed
water pitcher pumps from the land of Fleischers & Co., Inc. This six- and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132,
month period shall expire on December 31, 1966. supra). As for the shooting of Rubia, appellant testified:
In the event the above constructions have not been removed within the six- When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
month period, the company shall cause their immediate demolition hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
(Exhibit 10, p. 2, supra). Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 there was a firearm in the jeep and thinking that if he will take that firearm
by putting bamboo posts along the property line parallel to the highway. Some posts were he will kill me, I shot at him (p. 132, supra, Emphasis supplied).
planted right on the concrete drier of appellant, thereby cutting diagonally across its center The foregoing statements of appellant were never controverted by the prosecution. They
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, claim, however, that the deceased were in lawful exercise of their rights of ownership over the
t.s.n., supra). The fence, when finished, would have the effect of shutting off the accessibility land in question, when they did the fencing that sealed off appellant's access to the highway.

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A review of the circumstances prior to the shooting as borne by the evidence reveals that five the place. So we decided until things will clear up and determine who is
persons, consisting of the deceased and their three laborers, were doing the fencing and really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
chiselling of the walls of appellant's house. The fence they were putting up was made of In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense
bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously, Exhibits) within which to vacate the land. He should have allowed appellant the peaceful
they were using tools which could be lethal weapons, such as nail and hammer, bolo or enjoyment of his properties up to that time, instead of chiselling the walls of his house and
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that closing appellant's entrance and exit to the highway.
the jeep which they used in going to the place was parked just a few steps away, and in it there The following provisions of the Civil Code of the Philippines are in point:
was a gun leaning near the steering wheel. When the appellant woke up to the sound of the Art. 536. In no case may possession be acquired through force or
chiselling on his walls, his first reaction was to look out of the window. Then he saw the intimidation as long as there is a possessor who objects thereto. He who
damage being done to his house, compounded by the fact that his house and rice mill will be believes that he has an action or a right to deprive another of the holding
shut off from the highway by the fence once it is finished. He therefore appealed to of a thing must invoke the aid of the competent court, if the holder should
his compadre, the deceased Rubia, to stop what they were doing and to talk things over with refuse to deliver the thing.
him. But deceased Fleischer answered angrily with 'gademit' and directed his men to proceed Art. 539. Every possessor has a right to be respected in his possession; and
with what they were doing. should he be disturbed therein he shall be protected in or restored to said
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would possession by the means established by the laws and the Rules of Court
have resulted in the further chiselling of the walls of appellant's house as well as the closure of (Articles 536 and 539, Civil Code of the Philippines).
the access to and from his house and rice mill-which were not only imminent but were actually Conformably to the foregoing provisions, the deceased had no right to destroy or cause
in progress. There is no question, therefore, that there was aggression on the part of the damage to appellant's house, nor to close his accessibility to the highway while he was
victims: Fleischer was ordering, and Rubia was actually participating in the fencing. This was pleading with them to stop and talk things over with him. The assault on appellant's property,
indeed aggression, not on the person of appellant, but on his property rights. therefore, amounts to unlawful aggression as contemplated by law.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence Illegal aggression is equivalent to assault or at least threatened assault of
off the contested property, to destroy appellant's house and to shut off his ingress and egress to immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
his residence and the highway? In the case at bar, there was an actual physical invasion of appellant's property which he had
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:
tenements. Art. 429. The owner or lawful possessor of a thing has the right to exclude
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of any person from the enjoyment and disposal thereof. For this purpose, he
the order of award to Fleischer and Company was still pending in the Court of First Instance may use such force as may be reasonably necessary to repel or prevent an
of Cotabato. The parties could not have known that the case would be dismissed over a year actual or threatened unlawful physical invasion or usurpation of his
after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground property (Emphasis supplied).
of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. The reasonableness of the resistance is also a requirement of the justifying circumstance of
240 filed in 1950 for the annulment of the award to the company, between the same parties, self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code.
which the company won by virtue of the compromise agreement in spite of the subsequent When the appellant fired his shotgun from his window, killing his two victims, his resistance
repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also was disproportionate to the attack.
carried the dismissal of the supplemental petition filed by the Republic of the Philippines on WE find, however, that the third element of defense of property is present, i.e., lack of
November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of title sufficient provocation on the part of appellant who was defending his property. As a matter of
issued to the company, on the ground that the Director of Lands had no authority to conduct fact, there was no provocation at all on his part, since he was asleep at first and was only
the sale due to his failure to comply with the mandatory requirements for publication. The awakened by the noise produced by the victims and their laborers. His plea for the deceased
dismissal of the government's supplemental petition was premised on the ground that after its and their men to stop and talk things over with him was no provocation at all.
filing on November 28, 1968, nothing more was done by the petitioner Republic of the Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the
Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as elements for justification are present. He should therefore be held responsible for the death of
parties-plaintiffs. his victims, but he could be credited with the special mitigating circumstance of incomplete
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.
Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on The crime committed is homicide on two counts. The qualifying circumstance of treachery
February 21, 1967 was just to avoid trouble. This was explained by him during cross- cannot be appreciated in this case because of the presence of provocation on the part of the
examination on January 21, 1970, thus: deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
It happened this way: we talked it over with my Mrs. that we better rent unprovoked attack is therefore lacking.
the place because even though we do not know who really owns this Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault
portion to avoid trouble. To avoid trouble we better pay while waiting for adopted by the aggressor was deliberately chosen with a special view to the accomplishment
the case because at that time, it was not known who is the right owner of of the act without risk to the assailant from any defense that the party assailed might have

5
made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. mitigating circumstance of incomplete defense-in view of the presence of unlawful aggression
Caete, 44 Phil. 481). on the part of the victims and lack of sufficient provocation on the part of the appellant-and by
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not two generic mitigating circumstance of voluntary surrender and passion and obfuscation.
sufficiently established. The only evidence presented to prove this circumstance was the Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum, South Cotabato, and temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be
a laborer of Fleischer and Company, which may be summarized as follows: imposed if the deed is not wholly excusable by reason of the lack of some of the conditions
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he required to justify the same. Considering that the majority of the requirements for defense of
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the property are present, the penalty may be lowered by two degrees, i.e., to prision
crossing, Maitum, South Cotabato, when the accused and his wife talked correccional And under paragraph 5 of Article 64, the same may further be reduced by one
to him. Mrs. Narvaez asked him to help them, as he was working in the degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no
hacienda. She further told him that if they fenced their house, there is a aggravating circumstance.
head that will be broken. Mamerto Narvaez added 'Noy, it is better that The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American
you will tell Mr. Fleischer because there will be nobody who will break World Airways (43 SCRA 397), the award for moral damages was reduced because the
his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not
the latter told him not to believe as they were only Idle threats designed to only contributed but they actually provoked the attack by damaging appellant's properties and
get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2). business. Considering appellant's standing in the community, being married to a municipal
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance councilor, the victims' actuations were apparently designed to humiliate him and destroy his
of evident premeditation. As WE have consistently held, there must be "direct evidence of the reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in
planning or preparation to kill the victim, .... it is not enough that premeditation be suspected these two cases and detained without bail despite the absence of evidence linking her to the
or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the killings. She was dropped as a defendant only upon motion of the prosecution dated October
determination to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p.
be a "showing" that the accused premeditated the killing; that the culprit clung to their (his) 58, CFI rec. of Criminal Case No. 1815).
premeditated act; and that there was sufficient interval between the premeditation and the Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
execution of the crime to allow them (him) to reflect upon the consequences of the act" despite its extensive landholdings in a Central Visayan province, to extend its accumulation of
(People vs. Gida, 102 SCRA 70). public lands to the resettlement areas of Cotabato. Since it had the capability-financial and
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased Davis otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their
Fleischer, neutralizes his credibility. families from their native soil in Luzon to take advantage of the government's resettlement
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the program, but had no sufficient means to fight the big landowners, were the ones prejudiced.
victims nor that the accused premeditated the killing, and clung to his premeditated act, the Thus, the moral and material suffering of appellant and his family deserves leniency as to his
trial court's conclusion as to the presence of such circumstance may not be endorsed. civil liability.
Evident premeditation is further negated by appellant pleading with the victims to stop the Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
fencing and destroying his house and to talk things over just before the shooting. correccional or arrests mayor and fine who has no property with which to meet his civil
But the trial court has properly appreciated the presence of the mitigating circumstance of liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50.
voluntary surrender, it appearing that appellant surrendered to the authorities soon after the However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
shooting. provisions of Art. 39 applicable to fines only and not to reparation of the damage caused,
Likewise, We find that passion and obfuscation attended the commission of the crime. The indemnification of consequential damages and costs of proceedings. Considering that
appellant awoke to find his house being damaged and its accessibility to the highway as well Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be
as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his given retroactive effect pursuant to Article 22 of the Revised Penal Code.
business was also in danger of closing down for lack of access to the highway. These WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
circumstances, coming so near to the time when his first house was dismantled, thus forcing ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
him to transfer to his only remaining house, must have so aggravated his obfuscation that he CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
lost momentarily all reason causing him to reach for his shotgun and fire at the victims in GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
defense of his rights. Considering the antecedent facts of this case, where appellant had thirty OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS
years earlier migrated to this so-called "land of promise" with dreams and hopes of relative HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER
dispassionate plea going unheeded-all these could be too much for any man-he should be AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
credited with this mitigating circumstance. WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
Consequently, appellant is guilty of two crimes of homicide only, the killing not being MORAL DAMAGES AND ATTORNEY'S FEES.
attended by any qualifying nor aggravating circumstance, but extenuated by the privileged

6
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST The evidence shows that at around two o' clock in the morning of 22 December 1995
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST Buenaventura Wapili was having a high fever and was heard talking insensibly to himself in his
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS. room. His brother-in-law, Dario Leydan, convinced him to come out of his room and talk to
SO ORDERED. him, but Wapili told Leydan that he could not really understand himself. After a while, Wapili
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin went back to his room and turned off the lights. Moments later, the lights went on again and
Vasquez and Relova, JJ., concur. Leydan heard a disturbance inside the room, as if Wapili was smashing the furniture. [3] Unable
Aquino, J., is on leave. to pacify Wapili, Leydan called Pastor Bonid of the Alliance Church of Kidapawan to help him
Plana, J., in the result. "pray over" Wapili, but they could not enter the latter's room as he became wild and
violent. Suddenly, Wapili bolted out of his room naked and chased Leydan. Thereafter, Leydan
with the aid of two (2) of his neighbors attempted to tie Wapili with a rope but was unsuccessful
as Wapili was much bigger in built and stronger than anyone of them. [4] Wapili, who appeared
to have completely gone crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and asked
for assistance. As Wapili passed by the house of Plando, he banged Plando's vehicle parked
outside. Using a hand-held radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 Edilberto
Espadera and SPO2 Crispin Pillo, all members of the PNP assigned to secure the premises of
the nearby Roman Catholic Church of Kidapawan.[5]
At around four o'clock in the morning of the same day, SPO1 Ulep together with SPO1
Espadera and SPO2 Pillo arrived at the scene on board an Anfra police service jeep. The three
(3) police officers, all armed with M-16 rifles, alighted from the jeep when they saw the naked
Wapili approaching them. The kind of weapon Wapili was armed with is disputed. The police
claimed that he was armed with a bolo and a rattan stool, while Wapili's relatives and neighbors
said he had no bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or
they would shoot him. But Wapili retorted "pusila!" ("fire!") and continued advancing towards
the police officers. When Wapili was only about two (2) to three (3) meters away from them,
SPO1 Ulep shot the victim with his M-16 rifle, hitting him in various parts of his body. As the
victim slumped to the ground, SPO1 Ulep came closer and pumped another bullet into his head
and literally blew his brains out.[6]
The post mortem examination of the body conducted by Dr. Roberto A. Omandac,
Municipal Health Officer of Kidapawan, showed that Wapili sustained five (5) gunshot
wounds: one (1) on the right portion of the head, one (1) on the right cheek, one (1) on the
abdomen and two (2) on the right thigh: SHEENT - gunshot wound on the right parietal area
with fractures of the right temporoparietal bones with evisceration of brain tissues, right
zygomatic bone and right mandible, lateral aspect; CHEST AND BACK - with powder burns
on the right posterior chest; ABDOMEN - gunshot wound on the right upper quadrant measuring
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ERNESTO 0.5 cm. in diameter (point of entry) with multiple powder burns around the wound and on the
ULEP, accused-appellant. right lumbar area (point of exit). Gunshot wound on the suprapubic area (point of entry);
EXTREMETIES - with gunshot wounds on the right thigh, upper third, anterior aspect
measuring 0.5 cm. in diameter with powder burns (point of entry) and right buttocks measuring
DECISION 0.5 cm. in diameter (point of exit); gunshot wound on the right thigh, upper third, posterolateral
aspect; CAUSE OF DEATH - multiple gunshot wounds.[7]
BELLOSILLO, J.:
Dr. Omandac concluded that the shots were fired at close range, perhaps within twenty-
four (24) inches, judging from the powder burns found around some of the wounds in the body
In the aftermath of an incident where a certain Buenaventura Wapili [1] went berserk at of the victim,[8] and that the wound in the head, which caused the victim's instantaneous death,
Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December was inflicted while "the victim was in a lying position."[9]
1995, Police Officer Ernesto Ulep was found guilty of murder and sentenced to death by the The Office of the Ombudsman for the Military filed an Information for murder against
trial court for killing Wapili. Ulep was also ordered to indemnify the heirs of the victim in the SPO1 Ulep. The accused pleaded not guilty to the charge on arraignment, and insisted during
amount of P50,000.00 and to pay the costs.[2]

7
the trial that he acted in self-defense.However, on 28 October 1997, the trial court rendered an encounter at close quarters - to pause for a long moment and reflect coolly at his peril, or to
judgment convicting the accused of murder and sentencing him to death - wait after each blow to determine the effects thereof.
However, while accused-appellant is to be commended for promptly responding to the
The means employed by the accused to prevent or repel the alleged aggression is not call of duty when he stopped the victim from his potentially violent conduct and aggressive
reasonable because the victim, Buenaventura Wapili, was already on the ground, therefore, behavior, he cannot be exonerated from overdoing his duty during the second stage of the
there was no necessity for the accused to pump another shot on the back portion of the victim's incident - when he fatally shot the victim in the head, perhaps in his desire to take no chances,
head. Clearly the gravity of the wounds sustained by the victim belies the pretension of the even after the latter slumped to the ground due to multiple gunshot wounds sustained while
accused that he acted in self-defense. It indicates his determined effort to kill the victim. It is charging at the police officers. Sound discretion and restraint dictated that accused-appellant, a
established that accused (sic) was already in the ground that would no longer imperil the veteran policeman,[11] should have ceased firing at the victim the moment he saw the latter fall
accused's life. The most logical option open to the accused was to inflict on the victim such to the ground. The victim at that point no longer posed a threat and was already incapable of
injury that would prevent the victim from further harming him. The court is not persuaded by mounting an aggression against the police officers. Shooting him in the head was obviously
the accused's version because if it is true that the victim attacked him and his life was unnecessary. As succinctly observed by the trial court -
endangered - yet his two (2) companions SPO1 Espadera and SPO2 Pillo did not do anything
to help him but just witness the incident - which is unbelievable and unnatural behavior of Once he saw the victim he fired a warning shot then shot the victim hitting him on the
police officers x x x x different parts of the body causing him to fall to the ground and in that position the accused
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the shot the victim again hitting the back portion of the victim's head causing the brain to scatter
accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the accused is on the ground x x x x the victim, Buenaventura Wapili, was already on the ground. Therefore,
hereby sentenced to suffer the extreme penalty of Death, to indemnify the heirs of there was no necessity for the accused to pump another shot on the back portion of the victim's
Buenaventura Wapili the amount of P50,000.00 without subsidiary imprisonment in case of head.
insolvency and to pay the costs.
It cannot therefore be said that the fatal wound in the head of the victim was a necessary
Death penalty having been imposed by the trial court, the case is now before us on consequence of accused-appellant's due performance of a duty or the lawful exercise of a right
automatic review. Accused-appellant prays for his acquittal mainly on the basis of his claim that or office.
the killing of the victim was in the course of the performance of his official duty as a police Likewise, the evidence at hand does not favor his claim of self-defense. The elements in
officer, and in self-defense. order for self-defense to be appreciated are: (a) unlawful aggression on the part of the person
Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the injured or killed by the accused; (b) reasonable necessity of the means employed to prevent or
burden of proving legal justification therefor. He must establish clearly and convincingly how repel it; and, (c) lack of sufficient provocation on the part of the person defending himself. [12]
he acted in fulfillment of his official duty and/or in complete self-defense, as claimed by him; The presence of unlawful aggression is a condition sine qua non. There can be no self-
otherwise, he must suffer all the consequences of his malefaction. He has to rely on the defense, complete or incomplete, unless the victim has committed an unlawful aggression
quantitative and qualitative strength of his own evidence, not on the weakness of the against the person defending himself.[13] In the present case, the records show that the victim
prosecution; for even if it were weak it could not be disbelieved after he had admitted the was lying in a prone position on the ground - bleeding from the bullet wounds he sustained, and
killing.[10] possibly unconscious - when accused-appellant shot him in the head. The aggression that was
Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The initially begun by the victim already ceased when accused-appellant attacked him. From that
Revised Penal Code may be successfully invoked, the accused must prove the presence of two moment, there was no longer any danger to his life.
(2) requisites, namely, that he acted in the performance of a duty or in the lawful exercise of a This Court disagrees with the conclusion of the court a quo that the killing of Wapili by
right or an office, and that the injury caused or the offense committed be the necessary accused-appellant was attended by treachery, thus qualifying the offense to murder. We discern
consequence of the due performance of duty or the lawful exercise of such right or office. The nothing from the evidence that the assault was so sudden and unexpected and that accused-
second requisite is lacking in the instant case. appellant deliberately adopted a mode of attack intended to insure the killing of Wapili, without
Accused-appellant and the other police officers involved originally set out to perform a the victim having the opportunity to defend himself.
legal duty: to render police assistance, and restore peace and order at Mundog Subdivision On the contrary, the victim could not have been taken by surprise as he was given more
where the victim was then running amuck.There were two (2) stages of the incident at Mundog than sufficient warning by accused-appellant before he was shot, i.e., accused-appellant fired a
Subdivision. During the first stage, the victim threatened the safety of the police officers by warning shot in the air, and specifically ordered him to lower his weapons or he would be
menacingly advancing towards them, notwithstanding accused-appellant's previous warning shot. The killing of Wapili was not sought on purpose. Accused-appellant went to the scene in
shot and verbal admonition to the victim to lay down his weapon or he would be shot. As a pursuance of his official duty as a police officer after having been summoned for assistance. The
police officer, it is to be expected that accused-appellant would stand his ground. Up to that situation that the victim, at the time accused-appellant shot him in the head, was prostrate on the
point, his decision to respond with a barrage of gunfire to halt the victim's further advance was ground is of no moment when considering the presence of treachery. The decision to kill was
justified under the circumstances. After all, a police officer is not required to afford the victim made in an instant and the victim's helpless position was merely incidental to his having been
the opportunity to fight back. Neither is he expected - when hard pressed and in the heat of such previously shot by accused-appellant in the performance of his official duty.

8
There is treachery when the offender commits any of the crimes against persons, from the penalty next lower in degree which is prision correccional, in any of its periods, the
employing means, methods, or forms in the execution thereof which tend directly and specially range of which is six (6) months and one (1) day to six (6) years.
to insure its execution, without risk to himself arising from the defense which the offended party The right to kill an offender is not absolute, and may be used only as a last resort, and
might make.[14] Considering the rule that treachery cannot be inferred but must be proved as under circumstances indicating that the offender cannot otherwise be taken without
fully and convincingly as the crime itself, any doubt as to its existence must be resolved in favor bloodshed. The law does not clothe police officers with authority to arbitrarily judge the
of accused-appellant. Accordingly, for failure of the prosecution to prove treachery to qualify necessity to kill.[18] It may be true that police officers sometimes find themselves in a dilemma
the killing to murder, accused-appellant may only be convicted of homicide. when pressured by a situation where an immediate and decisive, but legal, action is
Indeed, to hold him criminally liable for murder and sentence him to death under the needed.However, it must be stressed that the judgment and discretion of police officers in the
circumstances would certainly have the effect of demoralizing other police officers who may be performance of their duties must be exercised neither capriciously nor oppressively, but within
called upon to discharge official functions under similar or identical conditions. We would then reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in
have a dispirited police force who may be half-hearted, if not totally unwilling, to perform their conformity with the dictates of a sound discretion, and within the spirit and purpose of the
assigned duties for fear that they would suffer the same fate as that of accused-appellant. law.[19] We cannot countenance trigger-happy law enforcement officers who indiscriminately
This brings us to the imposition of the proper penalty. employ force and violence upon the persons they are apprehending. They must always bear in
We find in favor of accused-appellant the incomplete justifying circumstance of mind that although they are dealing with criminal elements against whom society must be
fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised Penal Code, "a protected, these criminals are also human beings with human rights.
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1
not wholly excusable by reason of the lack of some of the conditions required to justify the same ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced to an
or to exempt from criminal liability in the several cases mentioned in Arts. 11 and 12, provided indeterminate prison term of four (4) years, two (2) months and ten (10) days of prision
that the majority of such conditions be present. The courts shall impose the penalty in the period correccional medium as minimum, to six (6) years, four (4) months and twenty (20) days
which may be deemed proper, in view of the number and nature of the conditions of exemption of prision mayor minimum as maximum. He is further ordered to indemnify the heirs of
present or lacking." Buenaventura Wapili in the amount of P50,000.00, and to pay the costs.
Incomplete justification is a special or privileged mitigating circumstance, which, not only
cannot be offset by aggravating circumstances but also reduces the penalty by one or two SO ORDERED.
degrees than that prescribed by law.[15]Undoubtedly, the instant case would have fallen under
Art. 11, par. 5 of The Revised Penal Code had the two (2) conditions therefor concurred which,
to reiterate: first, that the accused acted in the performance of a duty or the lawful exercise of a
right or office; and second, that the injury or offense committed be the necessary consequence
of the due performance of such duty or the lawful exercise of such right or office. But here, only
the first condition was fulfilled. Hence, Art. 69 is applicable, although its "that the majority of
such conditions be present," is immaterial since there are only two (2) conditions that may be
taken into account under Art. 11, par. 5. Article 69 is obviously in favor of the accused as it
provides for a penalty lower than that prescribed by law when the crime committed is not wholly
justifiable. The intention of the legislature, obviously, is to mitigate the penalty by reason of the
diminution of either freedom of action, intelligence, or intent, or of the lesser perversity of the
offender.[16]
We likewise credit in favor of accused-appellant the mitigating circumstance of voluntary
surrender. The police blotter of Kidapawan Municipal Police Station shows that immediately
after killing Wapili, accused-appellant reported to the police headquarters and voluntarily
surrendered himself.[17]
Article 249 of The Revised Penal Code prescribes for the crime of homicide the penalty
of reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20)
years. There being an incomplete justifying circumstance of fulfillment of a duty, the penalty
should be one (1) degree lower, i.e., from reclusion temporal to prision mayor, pursuant to Art.
69, in relation to Art. 61, par. 2, and Art. 71, of the Code, to be imposed in its minimum period
since accused-appellant voluntarily surrendered to the authorities and there was no aggravating
circumstance to offset this mitigating circumstance. Applying the Indeterminate Sentence Law,
the maximum of the penalty shall be taken from the minimum period of prision mayor, the range
of which is six (6) years and one (1) day to eight (8) years, while the minimum shall be taken

9
NOEL GUILLERMO yBASILIANO, G.R. No. 153287
Petitioner,
Present:

QUISUMBING, J., Chairperson,


CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:


Respondent.
June 30, 2008

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

DECISION

BRION, J.:

For our review is the petition[1] filed by the petitioner Noel Guillermo y Basiliano (petitioner)
against the decision[2] dated November 15, 2001 and the resolution[3] dated April 5, 2002 of the
Court of Appeals (CA) in CA-G.R. CR No. 24181. The challenged decision[4] affirmed the
decision of the Regional Trial Court (RTC), Branch 18, Roxas City convicting and penalizing
the petitioner for the crime of homicide with an indeterminate sentence of six (6) years of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum. The assailed
resolution, on the other hand, denied the petitioners motion for reconsideration.

BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo
Socias,[5] Joemar Palma, and the petitioner with the crime of homicide under an Information that
states:

xxx

That at or about 5:40 oclock in the afternoon, on or about July 21,


1996, at Brgy. Poblacion Takas, Municipality of Cuartero, Province of
Capiz, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating[,] and mutually helping
one another, armed with knives and with intent to kill, did then and there
willfully, unlawfully and feloniously assault, attack and stab one WINNIE
ALON y BILLANES, hitting the latter and inflicting multiple stab wounds

10
on the different parts of his body, which injuries caused his death shortly cutting of wood by means of a chain saw [sic]. The argument was so heated
thereafter. that each of the protagonists stood up and Arnel Socias took 2 bottles which
were thrown to Vicente Alon who was hit on the forehead.[17]
That due to the untimely death of Winnie Alon y Billanes[,] his
heirs are entitled to death indemnity in the amount of P50,000.00 and other Noel Guillermo hugged or embraced Winnie Alon and stabbed
damages pursuant to the provisions of the Civil Code of the Philippines. him three times (3) on [sic] the neck with a Batangueo knife. Arnel Socias
went around, then behind, and stabbed Winnie Alon once, on the left side
ACTS CONTRARY TO LAW.[6] of his body, just below his left armpit, with a pointed object, but he could
not determine what weapon was used. Joemar Palma also helped in stabbing
The petitioner and his co-accused were arraigned and pleaded not guilty to the offense charged Winnie Alon once, hitting him at the right side of his body. [18]
with the assistance of their counsel de parte. The prosecution presented Vicente Alon (Vicente)
and Eddie Roque (Eddie) as witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr. Winnie Alon resisted trying to struggle [sic], but could not move
Betita), Baby Lou Felipe (Baby Lou), and the three accused the petitioner, Arnaldo Socias, and because he was ganged up by the three.[19] [Footnotes referring to the
Joemar Palma took the witness stand for the defense. pertinent parts of the record supplied]

The material points in the testimony of Vicente were summarized by the trial court in its
decision[7] as follows: Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness stand
that he conducted on July 22, 1996 a postmortem examination on the body of Winnie[20] and
Vicente Alon averred that at 5:40 in the afternoon of July 21, made the following findings:
1996, Winnie Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at
the public market of Cuartero, at [sic] the restaurant of Melecio Heyres to POSTMORTEM EXAMINATION
eat.[8] Noel Guillermo, Arnel Socias, and Joemar Palma were at the The postmortem examination is done on the remains of Winnie
restaurant drinking beer. Noel Guillermo and Arnel Socias are known to Alon, 31 years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic]
him since childhood since they come from the same barangay.[9] Joemar to death at about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz
Palma is known to him only recently in that incident.[10] sustaining the following injuries:

While sitting at the table inside the restaurant, an altercation 1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest
between Arnel Socias and Winnie Alon regarding the cutting of wood by a at level of 5th rib mid clavicular area.
chain saw [sic] transpired. Noel Guillermo suddenly took hold of Winnie
Alon and stabbed the latter at the neck three (3) times.[11] Joemar Palma 2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above
went to the kitchen and got a knife. Arnel Socias hit him with a bottle of the sternum.
beer by [sic] the head. He fell down and lost consciousness.[12] [Footnotes
referring to the pertinent parts of the record supplied] 3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.

Significantly, Vicente admitted on cross-examination that he and Winnie were already drunk The most probable cause of death was massive [H]emorrhage
even before they went to the restaurant where the stabbing took place. [13] secondary to multiple stab wounds.[21]

Eddie corroborated the testimony of Vicente on material points, particularly on the According to Dr. Betita, the cause of death was massive hemorrhage due to multiple stab
state of their intoxication even before going to the scene of the stabbing. His testimony on what wounds.[22] He added that the three (3) stab wounds were probably caused by a sharp-bladed
transpired at the restaurant was summarized in the RTC decision[14] as follows: instrument like a knife.[23]
The petitioner gave a different version of the events, summarized in the RTC decision
Eddie Roque alleged that at around 5:40 oclock in the afternoon as follows:
of July 21, 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo
Cabison, were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public Noel Guillermo testified that at 5:30 in the afternoon of July 21,
Market to leave their tools of the chain saw [sic] and to eat and 1996, he was in Cuartero at the restaurant of Melecio Heyres, husband of
drink.[15] Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of Gertrudes Heyres, together with Arnel Socias and Joemar Palma drinking
them to [sic] the restaurant and were drinking beer. They invited them and beer, consuming only about half a bottle, when Winnie Alon, Eddie Roque,
they joined them.[16] Before each of them could fully consume a bottle Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou
served upon each of them, Winnie Alon and Arnel Socias argued about the Felipe. Winnie Alon came to him and requested to join them in their table

11
which he affirmatively answered. Winnie Alon then had an altercation with can. At that point, Winnie stood up and grabbed him by the collar. The petitioner intervened and
Arnel Socias regarding labtik (string used in marking wood to be cut).[24] told them to settle their differences peacefully. Winnie then grabbed a bottle and struck the
petitioner on the head three times.[34] Arnaldo added that he did not see who stabbed Winnie,
Winnie Alon challenged Arnel Socias to a contest on clean or because while the petitioner and Winnie were grappling, he was busy fighting with Vicente. [35]
straight cutting of wood. Arnel declined the challenge claiming that he is
only an assistant to his brother-in-law. Winnie Alon got angry and told him Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner, Arnaldo, and he
that he has long been in [the] chain saw [sic] business but youre stupid were drinking beer at the restaurant of Mr. Heyres when four persons, who appeared to be drunk
(gago ka!). Arnel responded: If the wood is crooked and you would deviate (later identified as Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and
from line, youre stupid.[25] ordered beer.[36] After the latter group joined them at their table, Winnie and Arnaldo had a
heated discussion regarding expertise in operating a chainsaw. Winnie grabbed the shirt collar
Winnie Alon suddenly stood up and said to Arnel: Dont ever call of Arnaldo in the course of the heated exchange.[37] The petitioner advised them to calm down,
me stupid, pointing his finger to Arnel. He told them to settle the matter but Winnie struck him (petitioner) on the head with a beer bottle three times. Vicente also tried
peacefully as they are friend [sic], but Winnie Alon was so furious and to strike Arnaldo, but the latter managed to duck and so he (Joemar) took the hit
grabbed Arnel Socias by the collar. Arnel tried to release the hold of Winnie instead. Thereafter, he and Arnaldo engaged Vicente.[38]
from his collar. While he was pacifying the two telling them to settle the
matter peacefully, Winnie Alon turned to him and said: you also, then struck The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime of homicide,
him with a beer bottle. He was hit at the right top of his head thrice. He but acquitted Arnaldo and Joemar. The dispositive
stood up and boxed Winnie who again picked up a bottle break [sic] it portion of the decision reads:
against the wall, and struck him with the broken bottle. He stepped back,
pulled his knife, and stabbed him three (3) times but cannot remember what WHEREFORE, the evidence on record having established the
part of his body was hit by his successive stabs.[26] x x x [Footnotes referring guilt of Noel Guillermo as principal in the crime of homicide for stabbing
to the pertinent parts of the record supplied] three (3) times Winnie Alon which caused the latters death, attended by a
special or privileged mitigating circumstance of incomplete justification,
and without any aggravating or mitigating circumstances attendant, he is
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the imposed an indeterminate sentence of six (6) years of prision
afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar, arrived at the correccional, as minimum, to ten (10) years of prision mayor, as maximum,
restaurant and ordered beer.[27] A few minutes later, Vicente, Eddie, Winnie, and Wilfredo with the corresponding accessory penalties, and to pay death indemnity of
Cabison arrived and also ordered beer. She then saw the group of Winnie transfer to the table P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he
occupied by the petitioner and his companions. Thereafter, the group had a heated argument shall be credited the period that he undergone [sic] preventive
among themselves regarding labtik.[28] In the course of the exchange, she saw Winnie strike the imprisonment, conformably with Art. 29 of the Code.
petitioner on the head with a bottle. Winnie and the petitioner then grappled with each other. At
that point, she hid behind the refrigerator and did not see what happened next. Afterwards, she Costs against the accused.
saw the bloodied body of Winnie lying outside the restaurant.[29] She likewise saw the petitioner
outside the restaurant; his shirt was splattered with blood.[30] For insufficiency of evidence, the accused Arnaldo Socias and Joemar
Palma are acquitted of the crime charged. The bail bond for their provisional liberty
Dr. Betita, this time testifying as defense witness, stated, among others, that the contusion is CANCELLED AND DISCHARGED.
hematoma suffered by the petitioner could have been caused by a hard object like a beer bottle,
while the linear abrasion could have been caused by a fingernail. [31] SO ORDERED.[39] [Emphasis in the original]

Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and Joemar, was
drinking beer at the restaurant of Melecio Heyres[32] when Winnie stood up and asked if they The petitioner appealed to the CA whose decision is now assailed in the present petition. The
(Winnies group) could join them at their table. Arnaldo and his companions agreed. Winnies petitioner essentially claims that the RTC and the CA erred in failing to recognize the existence
group then transferred to the table of Arnaldos group.[33] of all the elements of self-defense.

The discussion took a bad turn when the matter of cutting by chainsaw was raised. Winnie THE COURTS RULING
challenged Arnaldo to a contest to determine who could do the cleanest cut. He declined and
claimed he does not know how to operate a chainsaw. To this, Winnie retorted, You are already We resolve to deny the petition for lack of merit.
old in that business, but your finished product is still crooked. You are all dumb. He countered,
If the wood itself is crooked, you cannot have a straight lumber. You are dumb if you insist you Plea of Self-Defense

12
As a justifying circumstance, self-defense may be complete or incomplete. It is complete when
We note at the outset that the petitioner does not deny that he killed Winnie. He all the three essential requisites are present; it is incomplete when the mandatory element of
expressly made this admission in his testimony of July 15, 1999: unlawful aggression by the victim is present, plus any one of the two essential requisites.[42]
ATTY. VILLAREAL:
In the present case, we find it beyond dispute that the victim Winnie started the fight that ended
Q: And what did you do when he struck you with the bottle? in his death; he struck the petitioner on the head when the latter intervened to pacify the quarrel
between Winnie and Arnaldo. In short, the victim was the unlawful aggressor while the
NOEL GUILLERMO: petitioner was in the lawful act of pacifying the quarreling parties; thus, the latter has in his
favor the element of unlawful aggression by the victim.
A: I was able to move backward and I realized that I have a knife on [sic]
the back of my waist. We consider it also established that the petitioner did not provoke the fight that
ensued; he was a third party to the quarrel between the original protagonists Winnie and Arnaldo
Q: And what did you do with your knife? and did not at all initiate any provocation to ignite the quarrel. Thus, the petitioner also has the
element of lack of sufficient provocation in his favor.
A: I then stabbed him.
The third element the reasonableness of the means to repel the aggression is the critical element
Q: How many times? that the lower courts found lacking in the petitioners case. Generally, reasonableness is a
function of the nature or severity of the attack or aggression confronting the accused, the means
A: About three times as far as I can remember.[40] [Emphasis supplied] employed to repel this attack, the surrounding circumstances of the attack such as its place and
occasion, the weapons used, and the physical condition of the parties which, when viewed as
The petitioner justifies the stabbing as an act of self-defense. material considerations, must show rational equivalence between the attack and the
defense.[43] In People v. Escarlos,[44] this Court held that the means employed by a person
As the lower courts did, we do not recognize that the petitioner fully acted in self- invoking self-defense must be reasonably commensurate to the nature and the extent of the
defense. attack sought to be averted. In Sienes v. People,[45] we considered the nature and number of
wounds inflicted on the victim as important indicia material to a plea for self-defense.
As a rule, the prosecution bears the burden of establishing the guilt of the accused
beyond reasonable doubt. However, when the accused admits the killing and, by way of In the present case, the attack on the petitioner came as he intervened in a quarrel between the
justification, pleads self-defense, the burden of evidence shifts; he must then show by clear and victim and another party. As we concluded above, we deem it established that the victim was
convincing evidence that he indeed acted in self-defense. For that purpose, he must rely on the the unlawful aggressor who attacked the petitioner. Physical evidence shows that indeed the
strength of his own evidence and not on the weakness of the prosecutions evidence. [41] petitioner suffered the following injuries:

The elements that the accused must establish by clear and convincing evidence to 1. Contusion Hematoma 2 x 3 left parital area just above the left
successfully plead self-defense are enumerated under Article 11(1) of the Revised Penal Code: ear.
2. Linear abrasion 3 4 cm left hand medial side.
ART. 11. Justifying circumstances. The following do not incur 3. Linear abrasion 2 3 cm left head ulnar side.[46]
any criminal liability:
1. Anyone who acts in defense of his person or rights, The weapons that caused these injuries were a beer bottle and, quite possibly, fingernails as the
provided that the following circumstances concur; victim and the appellant grappled with each other.[47] In contrast, the victim suffered three stab
wounds: at the neck, at the abdomen and in the chest. The weapon used was a Batangas knife
First. Unlawful aggression; that admittedly belonged to the petitioner. Thus, the physical evidence in the case stands.

Second. Reasonable necessity of the means employed to The petitioner claims self-defense on the position that Winnie, after hitting him on the head
prevent or repel it; three times with an empty bottle, grabbed another bottle, broke it against the wall, and thrust it
towards him. It was at this point that the petitioner used his knife to inflict Winnies fatal wounds.
Third. Lack of sufficient provocation on the part of the person Clearly, the petitioner wants to impress upon us that his response to Winnies attack was
defending himself. reasonable; he used a knife to repel an attacker armed with a broken beer bottle.

Several reasons militate against our acceptance of the petitioners version and interpretation of
events.

13
Joemar. However, the Appellant did not submit any Counter-
First, there is intrinsic disproportion between a Batangas knife and a broken beer Affidavit claiming that he was impelled to stab Winnie three (3) successive
bottle. Although this disproportion is not conclusive and may yield a contrary conclusion times on mortal parts of his body and killing [sic] him because Winnie
depending on the circumstances, we mention this disproportionality because we do not believe picked up a bottle, hit the same against a wall and hit the Appellant anew
that the circumstances of the case dictate a contrary conclusion. with the broken bottle.[48] [Underscoring in the original]

Second, physical evidence shows that the petitioner suffered only one contusion hematoma at We see no reason to disturb these findings as they are based on existing evidence, and the
the parietal area above the left ear. Unless the three (3) beer bottle blows that the petitioner conclusions drawn therefrom are patently reasonable. We have time and again held that the
alleged all landed on the same site a situation that could have incapacitated the petitioner the findings of facts of the trial court, its assessment of the credibility of witnesses and the probative
more plausible conclusion from the physical evidence is that the petitioner received only one weight of their testimonies, and the conclusions based on the these factual findings are to be
blow, not three as he claimed. Contrary to what the petitioner wishes to imply, he could not have given the highest respect; the trial court enjoys the unique advantage of being able to observe,
been a defender reeling from successive head blows inflicted by the victim. at close range, the conduct and deportment of witnesses as they testify. These factual findings,
Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the restaurant when adopted and confirmed by the CA, are final and conclusive and need not be reviewed on
before the fatal fight. This state of intoxication, while not critically material to the stabbing that the appeal to us. We are not a trier of facts; as a rule, we do not weigh anew the evidence already
transpired, is still material for purposes of defining its surrounding circumstances, particularly passed on by the trial court and affirmed by the CA.[49] Only after a showing that the courts
the fact that a broken beer bottle might not have been a potent weapon in the hands of a drunk below ignored, overlooked, misinterpreted, or misconstrued cogent facts and circumstances of
wielder. substance that would alter the outcome of the case, are we justified in undertaking a factual
review. No such exceptional grounds obtain in this case.
Fourth, and as the CA aptly observed as well, the knife wounds were all aimed at vital parts of
the body, thus pointing against a conclusion that the petitioner was simply warding off broken In sum, we rule that there was no rational equivalence between the means of the attack and the
beer bottle thrusts and used his knife as a means commensurate to the thrusts he avoided. To be means of defense sufficient to characterize the latter as reasonable.
precise, the petitioner inflicted on the victim: one stab wound at the chest, 6-8 cms. deep, at
the 5th rib clavicular area, or in plainer terms, in the area of the victims heart; another was at
the neck, 5 cms. deep, just above the breastbone; and a last one was in the abdominal area, The Proper Penalty
3-5 cms. deep. The depth of these wounds shows the force exerted in the petitioners thrusts
while the locations are indicative that the thrusts were all meant to kill, not merely to disable the The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion
victim and thereby avoid his drunken thrusts. temporal in its full range.[50] Article 69 of the Code however provides that:

Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to disbelieve ART. 69. Penalty to be imposed when the crime committed is not wholly
the petitioners allegation of complete self-defense, as reflected in the CAs further cogent excusable. A penalty lower by one or two degrees than that prescribed by
observations that: law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt
(b) If, indeed the deceased picked up another bottle of beer, hit the same from criminal liability in the several cases mentioned in Articles 11 and 12,
against the wall, resulting in the breakage of the bottle, and with it, hit the provided that the majority of such conditions be present. The courts shall
Appellant anew, it behooved the Appellant to have rushed posthaste to the impose the penalty in the period which may be deemed proper, in view of
police station and report the stabbing, with the request that a policeman be the number and nature of the conditions of exemption present or lacking.
dispatched to the locus criminis and confirm the presence of broken pieces
of beer bottle in the restaurant. The Appellant did not. He and his Since the petitioners plea of self-defense lacks only the element of reasonable means, the
companions, Arnaldo and Joemar, fled from the scene, via the back door, petitioner is, therefore, entitled to the privileged mitigating circumstance of incomplete self-
and escaped on board a motorcycle. defense. Consequently, the penalty for homicide may be lowered by one or two degrees, at the
discretion of the court.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
Appellant that, after the Appellant boxed Winnie, who lost his hold of the The penalty which the RTC imposed and which the CA affirmed lowered the penalty
bottle of beer, he picked up another bottle and struck the bottle of beer of reclusion temporal by one degree, which yields the penalty of prision mayor. From this
against the wall and hit the Appellant with the bottle. The appellant relied penalty, the maximum of the indeterminate penalty is determined by taking into account the
solely on is own testimony to buttress his defense. attendant modifying circumstances, applying Article 64 of the Revised Penal Code.[51] Since no
aggravating nor mitigating circumstance intervened, the maximum of the indeterminate penalty
(d) The Municipal Trial Court conducted a preliminary investigation of shall be prision mayor in its medium period whose range is from 8 years and 1 day to 10 years.
the Criminal Complaint filed against the Appellant, Arnaldo, and

14
To determine the minimum of the indeterminate penalty, prision mayor has to be reduced by
one degree without taking into account the attendant modifying circumstances. The penalty
lower by one degree is prision correccional whose range is from 6 months and 1 day to 6 years.
The trial court is given the widest discretion to fix the minimum of the indeterminate penalty
provided that such penalty is within the range of prision correccional.

The CA affirmed the indeterminate penalty of six (6) years prision correccional, as minimum,
to ten (10) years of prision mayor, as maximum, as imposed by the RTC on petitioner. We
affirm this to be the legally correct and proper penalty to be imposed upon petitioner.

We also affirm the P50,000.00 death indemnity awarded to Winnies heirs, in accordance with
prevailing jurisprudence.[52]

We add that moral damages should be awarded as they are mandatory in murder and homicide
cases without need of allegation and proof other than the death of the victim. [53] The award
of P50,000.00 as moral damages is, therefore, in order.

WHEREFORE, in light of all the foregoing, we DENY the petition. The assailed decision and
resolution of the CA dated November 15, 2001 and April 5, 2002, respectively, in CA-G.R. CR
No. 24181 are AFFIRMED with the MODIFICATION that the petitioner is ordered to pay
the heirs of Winnie Alon the amount of P50,000.00 as moral damages. Costs against the
petitioner.

SO ORDERED.

G.R. No. L-30801 March 27, 1974


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres
and Solicitor Vicente P. Evangelista for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of
the Court of First Instance of Zamboanga del Sur, convicting him of murder, sentencing him
to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of
twelve thousand pesos and to pay the costs (Criminal Case No. 3280).

15
The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in
old former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder the evening of July 31st. Matugas denied that Alberio was in the municipal building at eight
and then set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo, o'clock.
Dumalinao where his father resided. On July 31, 1966, he intended to go to his residence at The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It
Barrio Upper Lamari, Buug but night overtook him in the town. He decided to sleep in the observed that Ural's alleged act of removing Napola's burning shirt was at most an indication
Buug municipal building where there would be more security. that he was "belatedly alarmed by the consequence of his evil act" but would not mean that he
Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary was not the incendiary.
occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of
Ural was boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Alberio, pointed out that he was not listed as a prosecution witness and that he was convicted
Napola collapsed on the floor. Ural, the tormentor, stepped on his prostrate body. of murder.
Ural went out of the cell. After a short interval, he returned with a bottle. He poured its Those circumstances would not preclude Alberio from being a credible witness. It should be
contents on Napola's recumbent body. Then, he ignited it with a match and left the cell. noted that the accused was a policeman. Ordinarily, a crime should be investigated by the
Napola screamed in agony. He shouted for help. Nobody came to succor him. police. In this case, there was no police investigation. The crime was investigated by a special
Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. counsel of the fiscal's office. That might explain why it was not immediately discovered that
Before his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberio was an eyewitness of the atrocity perpetrated by Ural.
Alberto did not sleep anymore that night. From the municipal building, he went to the The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are
crossing, where the cargo trucks passed. He hitchhiked in a truck hauling iron ore and went compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the
home. factual issue is: who should be given credence, Alberio or Ural? As already stated, the trial
Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, court which had the advantage of seeing their demeanor and behavior on the witness stand,
whom she treated twice, sustained second-degree burns on the arms, neck, left side of the face chose to believe Alberio. This Court, after a searching scrutiny of the whole record, does not
and one-half of the body including the back (Exh. A). She testified that his dermis and find any justification for disbelieving Alberio.
epidermis were burned. If the burns were not properly treated, death would unsue from This case is covered by article 4 of the Revised Penal code which provides that "criminal
toxemia and tetanus infection. "Without any medical intervention", the burns would cause liability shall be incurred by any person committing a felony (delito) although the wrongful act
death", she said. She explained that, because there was water in the burnt area, secondary done be different from that which he intended". The presumption is "that a person intends the
infection would set in, or there would be complications. ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es
"burn" as the cause of death (Exh. B). causa del mal causado" (he who is the cause of the cause is the cause of the evil
The trial court fittingly deplored the half-hearted manner in which the prosecution caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones
(represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido,
bewailed the prosecution's failure to present as witnesses Juanito de la Serna and Ernesto la constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la
Ogoc, the detention prisoners who saw the burning of Napola. They had executed a joint pulmonia, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo
affidavit which was one of the bases of the information for murder. 1 Penal, 12th Ed., 1968, p. 335-336).
It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness The similar rule in American jurisprudence is that "if the act of the accused was the cause of
who should have been presented as a witness to prove the victim's dying declaration or his the cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the
statements which were part of the res gestae.2 accused struck the victim with a lighted lamp, which broke and fell to the floor, causing the oil
In this appeal appellant's three assignment of error may be condensed into the issue of to ignite and set fire to the rug, and, in the course of the scuffle, which ensued on the floor, the
credibility or the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable victim's clothes caught fire, resulting in burns from which he died, there was a sufficient
doubt. causal relation between the death and the acts of the accused to warrant a conviction of
His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).
jail on guard duty. He heard a scream for help from Napola. He entered the cell and found There is a rule that "an individual who unlawfully inflicts wounds upon another person, which
Napola's shirt in flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed result in the death of the latter, is guilty of the crime of homicide, and the fact that the injured
Napola's shirt. Ural did not summon a doctor because, according to Napola, the burns were not person did not receive proper medical attendance does not affect the criminal responsibility"
serious. Besides, he (Ural) was alone in the municipal building. (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the victim was wounded on the wrist. It
Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete would not have caused death had it been properly treated. The victim died sixty days after the
liar", testified that she heard Napola's scream for help. She saw that Napola's shirt was burning infliction of the wound. It was held that lack of medical care could not be attributed to the
but she did not know how it happened to be burned. She said that Ural and Siton removed the wounded man. The person who inflicted the wound was responsible for the result thereof.
shirt of Napola and put out the fire. The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art.
248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432,
440).3

16
The trial court correctly held that the accused took advantage of his public position (Par. 1,
Art. 14, Revised Penal Code). He could not have maltreated Napola if he was not a policeman
on guard duty. Because of his position, he had access to the cell where Napola was confined.
The prisoner was under his custody. "The policeman, who taking advantage of his public
position maltreats a private citizen, merits no judicial leniency. The methods sanctioned by
medieval practice are surely not appropriate for an enlightened democratic civilization. While
the law protects the police officer in the proper discharge of his duties, it must at the same
time just as effectively protect the individual from the abuse of the police." U.S. vs. Pabalan,
37 Phil. 352).
But the trial court failed to appreciate the mitigating circumstance "that the offender had no
intention to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal
Code). It is manifest from the proven facts that appellant Ural had no intent to kill Napola. His
design was only to maltreat him may be because in his drunken condition he was making a
nuisance of himself inside the detention cell. When Ural realized the fearful consequences of
his felonious act, he allowed Napola to secure medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of
abuse of his official position. The trial court properly imposed the penalty of reclusion
perpetua which is the medium period of the penalty for murder (Arts. 64[4] and 248, Revised
Penal Code).
Finding no error in the trial court's judgment, the same is affirmed with costs against the
appellant.
So ordered.

[G.R. No. 139542. June 21, 2001]


17
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. INOCENCIO GONZALEZ, front of the appellants car. Andres allegedly got out of his vehicle again and continued shouting
JR., accused-appellant. and cursing at the appellant.[4] Dino, the appellants son, who rode in another vehicle decided to
go back when he did not see his fathers car behind him. When Dino arrived at the scene he
DECISION confronted Andres and the two had an altercation. Both Dino and the appellant stated that
Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly
GONZAGA-REYES, J.: reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted
the appellant to get his gun from the glove compartment and feeling that his son was threatened
he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put
Many unfortunate tragedies would not have happened if the improvident use of a firearm
down his hand holding the gun. This is when the appellants daughter Trisha who was riding in
did not exacerbate a simple altercation over traffic. This is one of them.
Dinos car arrived at the scene, walked past Dino and Andres, and pushed the appellant
On a day intended to pay homage to the dead, a pregnant woman was shot to death in the
away. She hugged her father and in the process held his hand holding the gun. The appellant
course of her husbands altercation with the accused-appellant and his son along the Garden of
tried to free his hand and with Trishas substantial body weight pushing against him the appellant
Remembrance within the Loyola Memorial Park in Marikina. The trial court found the accused
lost his balance and the gun accidentally fired. The accused stated that he did not know he shot
guilty of the complex crime of murder and two counts of frustrated murder and accordingly
somebody until the private complainants sister-in-law, Francar Valdez, got out of the vehicle
sentenced him to death. This case is before us on automatic review.
carrying a bloodied small boy. The defense claims that the appellant did not try to flee and even
The details of what actually transpired in the few seconds immediately preceding the
told the complainants sister-in-law to take the wounded to the hospital.
shooting are controverted by both parties but the events leading to this tragedy are not disputed.
On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private
Murder and Attempted Murder was filed against herein accused-appellant:
complainant Noel Andres and that of the accused-appellant Inocencio Gonzalez were on their
way to the exit of the Loyola Memorial Park. The appellant was driving a white Isuzu Esteem
with his grandson and three housemaids, while the private complainant was driving a maroon That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within
Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew the jurisdiction of this Honorable Court, the above-named accused, did then and there
Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of willfully, unlawfully and feloniously with intent to kill, attack, assault and employ personal
Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and the violence by means of treachery and abuse of superior strength upon the person of Noel Andres
complainant Noel Andres was headed straight along the road to the exit their two vehicles almost y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but instead hitting one
collided. Noel Andres was able to timely step on the brakes. The appellant continued driving Feliber Andres y Ordoo, on the left back portion of her head, thereby inflicting upon her
along his way while Noel Andres drove behind the appellants vehicle for some time and cut him serious and mortal wound which directly caused her death, as well as hitting John Kenneth
off when he found the opportunity to do so.[1] Noel Andres then got out of his vehicle and Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have
knocked on the appellants car window.[2] This is as far as their versions of the incident coincide. caused their death, thus performing all the acts of execution which would have produced the
The prosecutions version of the incident is that Noel Andres calmly told the appellant to crime of murder as a consequence, but nevertheless did not produce it by reason of some cause
be careful with his driving and informed the latter that he, Andres, is with his family and to this or causes, independent of their will, that is, the timely and able medical assistance rendered to
Gonzalez allegedly replied, Accidents are accidents, whats your problem. Andres stated that he John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as
saw the appellant turning red in anger so he decided to go back to his vehicle when he was well as to the damage and prejudice of the heirs of Feliber Andres y Ordoo.
blocked by the appellants son who said, Anong problema mo sa erpat ko. Andres testified that
he felt threatened and so he immediately boarded his vehicle, sat at the drivers seat, closed the On arraignment the accused-appellant pleaded not guilty to the crimes charged.
door, and partially opened the car window just wide enough to talk back to appellants son, The case records show that Feliber Andres, the wife of Noel Andres did not die
Dino. Suddenly, one of his passengers said Binaril kami. He turned to his wife Feliber Andres instantaneously. She lived to give birth to a baby girl[5] by caesarian section and died the
and saw her bloodied and unconscious. He turned around and saw his son Kenneth and nephew following morning on November 1, 1998. The Autopsy Report[6] states:
Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each
other so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant
not to flee. He then took the wounded members of his family to the exit where there was an FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem
ambulance standing by. The three were then taken to the Sta. Monica Hospital and were later lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions were noted
transferred to the Quezon City Medical Center. at left tempero-parietal region. Surgical incisions is also noted at the abdominal region
The defenses version of the incident is that Andres cut the appellants path by positioning secondary to a caesarian section.
his FX obliquely along the appellants lane from the latters left side. Andres then got out of his HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm,
vehicle, stood beside the appellants car window, and repeatedly cursed the appellant, Putang ina 9 cm from the anterior midline, with a uniform abraided collar measuring 0.2 cm., directed
mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo.[3] The posteriorwards, slightly downwards, and medialwards, fracturing the frontal, and left temporal
appellant stayed inside his car and allegedly replied, Pasensiya ka na hindi kita nakita, nasilaw bones, lacerating the left cerebral hemisphere, with a deformed slug fragment embedded and
ako. Aksidente lang. The appellant Gonzalez and another witness for the defense, Quidic, recovered at the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital
testified that Noel Andres went back to his vehicle to move it in such a way that it is straight in region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural and
18
subarachnoidal hemorrages. Stomach contains 1 glassful of partially digested food particles without risk to himself arising from any defense which the offended party might make (People
mostly rice and meaty material. vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To
CONCLUSION: Cause of death is gunshot wound on the head. appreciate treachery two (2) conditions must be present, to wit: 1) the employment of means
of execution that give the person attacked no opportunity to defend himself or retaliate; and 2)
Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They the means of execution were deliberately or consciously adopted. (People vs. Azugue, 268
were discharged from the hospital six days later or on November 6, 1998. SCRA 711; People vs. Pea, G. R. No. 116022, July 1, 1998, p. 1)
On June 25, 1999 the trial court rendered judgement finding that the shooting was attended In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is
by the qualifying circumstance of treachery and held the appellant guilty of the complex crime positive of the crime charged against him. When he alighted with a drawn gun to protect his
of murder for the death of Feliber Andres and for two counts of frustrated murder for the injuries son and released all the safety measures of his gun as he fired and missed at Noel who was
sustained by Kenneth Andres and Kevin Valdez and sentenced the appellant to the maximum of then unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres which
the imposable penalty which is death. The trial court held: resulted to the death of the latter, demonstrate that the accused has executed the two (2)
conditions to generate treachery enough to qualify the crime committed to murder.
Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the
accused that the court a quo has jurisdiction over the case; that he owns the black Gluck 9 mm. XXXX XXXXX XXXX
automatic pistol; that the said gun will never fire even if he drops it; that only one bullet was
fired from his gun; and that the victim Feliber Andres is already dead. With this exegesis and WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y
the declarations in open court of the eyewitness of both the prosecution and some of the Esquivel is hereby found guilty beyond reasonable doubt of the complex crime of Murder with
defense, there is no real dispute on the antecedent facts showing that the accused fired on Noel Double Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by
Andres but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin Republic Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to
Valdez and Feliber Andres resulting to the ultimate death of the latter. The court takes further suffer the maximum penalty of Death by lethal injection.
judicial admissions of the accused made in their memorandum demonstrating the existence of The accused is further ordered to pay the following civil liabilities:
five (5) sequences of events leading to the death of Feliber Andres and the wounding of John
Kenneth Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook 1. To the private complainant Noel Andres:
the car driven of the accused and cut cross his path; Second is when Noel Andres alighted
from his vehicle and confronted Inocencio; Third is when Noel had an argument with Dino
Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son having a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
confrontation with Noel, got his gun to protect Dino; and Fifth is when Inocencio had a b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the
struggle with his daughter. Trisha Gonzalez, who tried to reach for the gun and as a result of deceased Feliber Andres;
which Inocencio lost his balance and as he was falling backward to his side, his right arm c) the amount of P98,384.19 as funeral expenses;
holding the gun hit the rear window of the Tamaraw FX van and the gun accidentally went off d) the amount of P271,800.56 for the hospitalization expenses incurred for the
hitting the victim, who were all then inside the van. injuries sustained by the deceased Feliber Andres and the amount of P23,622.58
The court likewise take judicial notice on the feature of the automatic pistol used in this case representing the expenses for the untimely delivery of the child Ma. Clarisse
which is capable of unquestionable demonstration or ought to be known to judges because of Andres;
their judicial functions. Practically, the stages before an automatic firearm would be capable of e) the amount of P51,566.00 representing the hospitalization expenses for the
firing are as follows: 1) the loading of a bullet into the chamber of the gun; 2) the cocking of injuries sustained by the victim John Kenneth Andres;
the hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to f) the amount of P150,000.00 as moral damages suffered for the untimely death of
unleash the hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the his wife Feliber Andres and for the injuries caused to his son John Kenneth
target. Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its Andres;
chamber if the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if g) the amount of P50,000.00 as and by way of attorneys fees and a fee of P2,000.00
the safety pin is disengaged if the trigger will not be pressed. However, even if the gun is fired per appearance; and
if it is not aimed and leveled to the target, the purpose of firing it shall not be h) the costs of the suit.
achieved. Contrarily, once a gun is drawn against a person, the means methods and forms
employed for its execution is already conceived. And once it is tended directly and specifically 2. To the private complainant Nicasio Valdez:
to insure its execution, it consequently produces the conscious and deliberate intention. Finally
if all the acts of execution had been effectively done without risk on the part of the offender a) the amount of P73,824.75 as actual damages for the injuries sustained by the
arising from any defense coming from the offended party, treachery results. In brief, there is victim Kevin Valdez; and
treachery when the offender commits any crime against persons, employing means, methods b) the amount of P75,000.00 as and by way of moral damages.
and forms in the execution thereof which tend directly and specially to insure its execution,

19
SO ORDERED. by treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel Andres
only that very moment when his son Dino and Noel Andres were arguing. This conclusion has
In his appeal, Gonzalez submits the following assignments of error: no basis on record. The appellant testified that his gun was loaded before he left the house and
two witnesses for prosecution stated in court that a few seconds after Noel Andres and Dino
started shouting at each other, the appellant got out of his car and shot at the last window on the
1. The trial court committed reversible error when it found that treachery was present. left side of the complainants vehicle. Further, the appellant assigns as error the procedure
2. The trial court committed reversible error when it presumed that there was treachery by adopted by the trial court in taking judicial notice that the gun used by the appellant is an
taking judicial notice of the feature of the automatic pistol involved in this case. automatic pistol and as such, it will not fire unless aimed at the intended target. The procedure
3. The trial court committed reversible error when it violated the constitutional right of the taken by the trial court is contrary to Section 3, Rule 129 of the Rules of Court.[7] The trial court
accused-appellant to due process when it took judicial notice of the feature of the automatic should have given both parties the opportunity to present evidence, expert evidence, if
pistol involved in this case without notice. necessary, to inform the court on the subject matter. The appellant argues that the factual finding
4. The trial court committed reversible error when it found Accused-Appellant guilty beyond borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a
reasonable doubt of the complex crime of Murder with Double Frustrated Murder. semi-automatic and not an automatic pistol which means that the pistol used has no external
5. The trial court committed reversible error when it failed to appreciate the mitigating safety pin to be released and that the hammer need not be cocked. The pulling of the trigger,
circumstances of passion or obfuscation, lack of intention to commit so grave a wrong, intentional or not, will fire the gun. The use of a semi-automatic pistol does not necessarily
provocation or threat on the part of the offended party immediately preceded the act, imply treachery.
incomplete defense of relative, and voluntary surrender. Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos
6. The trial court committed reversible error when it failed to find that the shooting incident were improperly given credence by the trial court. The appellant contends that a reading of their
was accidental. testimonies would show that their narration of the incident is rather absurd and would show that
7. The trial court committed reversible error when it gave credence to the testimonies of they did not witness the actual shooting. Defense witnesses, Gonzalez and his daughter, Trisha,
prosecution witnesses Elmer Ramos and Moises Castro. on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting.
8. The trial court committed reversible error when it disregarded the basic principle that the As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that
accused is presumed innocent and his guilt must be proven beyond reasonable doubt. there was no intent to kill and that they stayed in the hospital only for six days, the crime
9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the committed is physical injuries. It is argued that the trial court erred in awarding damages. The
civil liabilities. bunch of receipts allegedly representing the medical expenses incurred for the injuries sustained
by the victims was erroneously admitted in evidence, without first requiring the prosecution to
The appellant seeks a reversal and prays that judgment be rendered exempting him from establish the authenticity of the receipts. The appellant also points out that the award for loss of
criminal and civil liabilities. Appellant declared that he had no intention to shoot Noel Andres earning capacity has no basis as the deceased was unemployed at the time of the incident.
much less his wife nor the children. He lost his balance when his daughter Trisha approached Finally, the appellant assigns as error the trial courts rejection of the mitigating
and pushed him backwards to stop him from joining Dino and Noel Andres but the appellant circumstances pleaded by the defense which allegedly attended the commission of the crime,
tried to free his right hand holding the gun and it accidentally fired. The single bullet fired hit i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense of
the last window on the left side of the Tamaraw FX. The appellant claims that he did not see the a relative and voluntary surrender. The appellant asserts that these mitigating circumstances
passengers inside the vehicle at the time of the shooting. This is corroborated by the testimony were duly proven during the trial and are supported by the evidence on record. The private
of two witnesses for the prosecution who testified that the windows of Andres vehicle are complainant Noel Andres testified that he saw the appellant getting red in anger after they,
heavily tinted so that a person outside the vehicle would not be able to see if there are people Andres and the appellant, had a heated argument immediately prior to the shooting. These
inside. It is also argued that had the appellant intended to shoot Noel Andres he could have admitted circumstances show that the appellant was not in his proper state of mind at the time
simply done so by shooting at him directly. The defense asserts that the evidence for the of the shooting.First, he was angered by Andres abusive language and later he got out of his car
prosecution failed to establish the attendance of treachery and without the attendance of the said with a loaded gun to protect his son from a perceived danger. The appellant clams that his
qualifying circumstance the crime committed is homicide, not murder. willingness to help the injured and his voluntary surrender to the police should likewise be
The appellant also points out that the trial court made the factual finding that the shooting considered as mitigating circumstances in the imposition of penalties.
happened in a matter of seconds and that it was preceded by a heated argument between the The Solicitor-General agrees with the appellant that the crime was not attended by the
parties. Such being the case, it is argued that the shooting could not have been attended by qualifying circumstance of treachery and hence the crime committed by the appellant for the
treachery. There was no time for the appellant to consciously and deliberately employ the mode death of Feliber Andres is homicide, not murder. The appellee takes into consideration that the
of attack against Noel Andres, nor against any one of the actual victims, to insure its execution shooting was preceded by a heated argument and that the supposed victim was placed on guard
and at the same time to eliminate any form of retaliation from the alleged intended victim. And that attack was imminent. It also appears that the shooting was done impulsively. There is no
yet, the trial court, contrary to the evidence on record, held that the loading of the bullet into the evidence that the appellant deliberately employed the means of attack to insure execution of the
chamber of the gun, the cocking of the hammer, the release of the safety pin and the pulling of crime and at the same time eliminate the risk of retaliation from the private complainant. The
the trigger by the appellant of his automatic pistol constitute conscious and deliberate effort to appellee also agrees with the appellant that the trial court erred in equating the use of an
employ the gun as a means of committing the crime and resultantly, qualified its commission automatic pistol with treachery. The trial court made the factual finding that the appellants

20
automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence the vulnerable position of the victim at the time the attack was made or the fact that the victim
treachery attended the shooting. The appellee submits that if we follow the reasoning of the trial was unarmed do not by themselves render the attack as treacherous. [9] This is of particular
court it would appear that the appellant intended to shoot at the complainants vehicle only as significance in a case of an instantaneous attack made by the accused whereby he gained an
the shot was fired at the last window on the left side of the FX away from where Andres was advantageous position over the victim when the latter accidentally fell and was rendered
allegedly seated. The fact that the gun was drawn and fired does not mean that the mode of defenseless.[10] The means employed for the commission of the crime or the mode of attack must
attack was consciously and deliberately employed. be shown to have been consciously or deliberately adopted by the accused to insure the
However, with respect to the injuries sustained by Kevin and Kenneth, the appellee consummation of the crime and at the same time eliminate or reduce the risk of retaliation from
disagrees with the contention that the appellant is liable only for slight physical injuries. The the intended victim.[11] Accordingly, it has been consistently held by this court that chance
injuries sustained by both children are head injuries and could have caused their death if not for encounters, impulse killing or crimes committed at the spur of the moment or that were preceded
the immediate medical attention given them. The number of days spent in the hospital is not by heated altercations are generally not attended by treachery for lack of opportunity of the
determinative of the severity of the wounds. Their nature and location should instead be accused to deliberately employ a treacherous mode of attack.[12] Thus, the sudden attack made
considered. The appellant cannot escape liability for frustrated homicide for the injuries of the by the accused due to his infuriation by reason of the victims provocation was held to be without
two children on the ground that he fired a single shot at the vehicle of Noel Andres. He is liable treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or
for all the consequences of his unlawful act even if the crime committed is different from that acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were
intended. held to be without treachery as the victim was sufficiently forewarned of reprisal.[13] For the
As regards the pleaded mitigating circumstances, appellee asserts that none can be rules on treachery to apply the sudden attack must have been preconceived by the accused,
considered in favor of the appellant. There is evidence on record that the appellant did not unexpected by the victim and without provocation on the part of the latter.[14]
voluntarily surrender to the police and it appears from the testimonies of witnesses that he This Court has also had occasion to state that whether or not the attack succeeds against
entertained the possibility of flight but his car was stuck in traffic along the exit of the memorial its intended victim or injures another or whether the crime committed is graver than that
park. His pretense of incomplete defense of a relative is belied by his own admission that when intended is immaterial, as long as it is shown that the attack is attended by treachery, the said
he saw that Noel Andres did not have a gun he lowered his hand holding the gun. There was qualifying circumstance may still be considered by the court.[15] Thus, the determining factor on
allegedly no threat on the life of his son at the time of the shooting, no uncontrollable fear nor whether or not the commission of a crime is attended by treachery is not the resulting crime
irresistible force that would mitigate the commission of the offense. committed but the mode of attack employed in its execution.[16]
The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial Treachery is never presumed. It is required that the manner of attack must be shown to
court. The appellee alleges that it is not denied by the appellant that Feliber Andres was a 38 have been attended by treachery as conclusively as the crime itself. [17]
year old registered nurse at the time of the shooting. Although she was then unemployed on We affirm the recommendation of the Solicitor-General that the shooting was not attended
account of her pregnancy, she still had earning capacity and the trial court properly applied the by treachery and accordingly the crime committed for the death of Feliber Andres is homicide
salary of a government nurse under the salary standardization scheme in the computation of and not murder.
damages for the loss of earning capacity. The receipts presented in evidence by the prosecution The encounter between Noel Andres and the appellant was a chance encounter. They were
to establish hospitalization and other medical expenses incurred by the private complainants by total strangers before their vehicles almost collided at an intersection inside the memorial
reason of the injuries suffered by the victims were duly authenticated by the prosecution park. Unfortunately, heated exchange of remarks that followed the near collision was fanned by
witnesses and there is no dispute that they are exact copies of the original receipts presented in a short temper, which in the case of the appellant, was augmented by the improvident use of a
court. The objections raised by the appellant in this regard were duly met by the evidence firearm.
presented by the private complainants. From a reading of the transcript of the testimonies of the witnesses, it would appear that
In sum, the appellee asserts that considering that the appellant fired a single shot and in Noel Andres, who had his pregnant wife and child with him, among others, on board the
the process committed four offenses the appellant should be held liable for the complex crime Tamaraw FX provoked the altercation. After the near collision of his vehicle with that of the
of homicide for the death of Feliber Andres, double frustrated homicide against Kevin and appellant, he tailed behind the latters car towards the exit until he had the chance to cut him off
Kenneth and attempted homicide against Noel Andres. Under the rules on complex crimes the to scold him for his failure to observe traffic rules.[18] Andres stated in court that he calmly told
penalty for the gravest offense, i.e., reclusion temporal for homicide, should be imposed in its the appellant to be careful with his driving and denied that he was angry when he alighted from
maximum period. his vehicle to confront the appellant.[19] His statement is belied by the witnesses, two prosecution
The appeal has merit. witnesses included, who uniformly testified that Andres quarreled with or shouted and cursed
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate at the appellant for the latters recklessness at the intersection.[20] The appellant narrated in court
employment of means, methods or forms in the execution of a crime against persons which tend that Andres repeatedly shouted at him, Putang ina mo, ang tanda-tanda mo na gago ka
directly and specially to insure its execution, without risk to the offender arising from the pa.[21] Andres hostile behavior towards the appellant is evident from his statement in court that
defense which the intended victim might raise. For treachery to be appreciated two elements he noticed the appellant turning red in anger.[22] It is highly improbable for Gonzalez to have
must concur: 1) the employment of means of execution that would insure the safety of the turned red in anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres
accused from retaliatory acts of the intended victim and leaving the latter without an opportunity could have simply communicated to the appellant his disgust for the latters bad driving when he
to defend himself and 2) the means employed were deliberately or consciously adopted by the overtook the appellants car near the scene of the shooting but instead he chose to block the
offender.[8] The suddenness of the attack, the infliction of the wound from behind the victim, appellants path, insult and virtually provoke the appellant to retaliate.

21
Andres stated in court that when he noticed Gonzalez infuriation he immediately walked evidence before us reveals that the position of the appellants car was not of his own doing but it
towards his vehicle, because according to him the altercation was over. On his way to his FX he became so when Noel Andres overtook his car and cut off his path.
met another man, whom he later found out to be the appellants son, Dino. It appears that the We note further, that the appellant did not act belligerently towards Noel Andres even
altercation was far from over because again Andres had a shouting match this time with after the latter cut off the appellants path. Andres stated in court that the appellant did not alight
Dino.[23] In a matter of seconds, the appellant alighted from his car and fired a single shot at the from his car nor opened his window until he, Andres, tapped on it. [35] For his part Gonzalez
last window on the left side of Andres vehicle at an angle away from Noel Andres. The single categorically stated in court that he did not point his gun nor threatened Andres during their
bullet fired hit Feliber Andres on the forehead near the temporal region above the left eye and short spat.[36] Gonzalez, although he had his gun in his car, did not react to Andres cursing until
the two children with metallic fragments of the bullet on their faces, one at the cheek and the the latter was having an altercation with the appellants son, Dino. Gonzalez claimed that he
other below his left eye. perceived that his son was in imminent danger.[37] Whether he overreacted or he shot at Andres
The prosecution did not present evidence as to the exact seating arrangement of the vehicle out of rage over Andres aggressive behavior, one thing appears clear to us, that the
victims inside the vehicle; suffice it to say, that an examination of the pictures of the shooting was not done in cold blood. It is undisputed that the windows of the FX are heavily or
vehicle[24] one of which shows a mass of blood stains on the left side (towards the drivers seat) darkly tinted so that a person outside would not see if anybody was inside.[38] The pictures of
of the white seat cover below the head rest[25], would show that the deceased Feliber must have the FX[39] on record confirm the testimonies of both prosecution and defense witnesses that the
been seated at the front passengers seat and the children at the middle row behind the drivers other passengers of the FX were not visible from the outside. Gonzalez admitted in court that
seat.[26] Another picture shows a bullet hole on the last window on the left side of the Noel Andres mentioned that he has passengers with him while he was shouting and cursing at
vehicle[27] and another shows that the front windshield appears undamaged.[28] A ballistics Gonzalez but there is no indication that Gonzalez had any opportunity to see the passengers
expert appeared in court for the prosecution and testified that the bullet fired at the FX came when he fired the shot. The totality of the evidence on record fails to support a conclusion that
from the appellants gun, which fact was admitted by the defense. The prosecution did not inquire Gonzalez deliberately employed the mode of attack to gain undue advantage over the intended
from the ballistics expert regarding the trajectory of the bullet or the approximate distance of nor the actual victim. Without any decisive evidence to the contrary, treachery cannot be
the appellant from the FX when he fired his gun to establish whether or not the appellant aimed considered; thus the crime committed is homicide.[40]
for Noel or Feliber or simply fired indiscriminately at the latters vehicle.[29] The trial courts finding that the loading of the gun, the cocking of the hammer and finally
At first blush it would seem that the shooting of Feliber Andres was attended by treachery the pulling of the trigger constitute a deliberate effort on the part of appellant to use the gun as
as she was inside the FX witnessing her husbands altercation, first, with the appellant then with a means of a treacherous attack is patently erroneous. A single and continuous attack cannot be
the appellants son, totally defenseless from the shot that came suddenly from her left side. Public divided into stages to make it appear that treachery was involved. [41] The entire incident
outrage over the death of Feliber was heightened by the fact that she was then pregnant with her happened in a matter of minutes, as testified to by witnesses, and as noted by the trial court.[42] It
second child and her death left a new born baby girl and a two year old boy motherless. was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion
However, a meticulous review of the evidence prevents a conclusive finding of treachery that the mode of attack was consciously employed by the appellant. Contrary to the finding of
and any doubt must be resolved, like the fact of the commission of an offense, in favor of the the trial court that the appellant prepared the gun before getting out of his car, the appellant
accused. The pictures indicate that Gonzalez fired at the FX at an angle away from Noel Andres testified that he loaded his gun before he left the house and that it was ready to fire when he
and that Gonzalez was not aiming at anybody in particular. It is not disputed that the appellants alighted his car. There was no time for him to reflect on the mode of attack since he just picked
car was directly behind the complainants FX and that Gonzalez who was then seated at the up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel
drivers seat alighted from his car, took a few steps then fired at the left side of the FX. Whether Andres started shouting at each other.[43] We note further that the trial court pointed out that
Noel Andres was seated at the drivers seat inside his vehicle when Gonzalez fired at the FX, as from the fact that the appellant prepared his gun to shoot, this was an indication of the deliberate
the prosecution asserts, or was standing by the door of the drivers seat outside his vehicle, as employment of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the
the defense submits, it is clear that the shot was fired away from Noel Andres. The bullet hit shooting was attended by treachery.
Feliber near her temple above the left eye indicating that she was facing left towards her husband We do not agree that the weapon used, by itself, is determinative of treachery, unless it is
when the shot was fired.[30] The direct hit on Felibers head shows that the angle of the shot was shown, and it is not herein shown, that the appellant deliberately used the gun to insure the
indeed away from Noel Andres. Even the eyewitness for the prosecution testified that had the commission of the crime and to render the unarmed victim defenseless. As discussed above, the
appellant intended to kill Noel Andres he could have shot directly at him, considering that Noel encounter between the appellant and the Andresses was a chance encounter and the appellants
Andres was just a few steps away from him[31] and that Noel Andres was visible from the outside gun was in the glove compartment of his car even before he left his house. The shooting was
because his window was partially open.[32] The pictures show that the bullet hole was on the clearly a spur of the moment or impulsive decision made by the appellant preceded by a heated
third window on the left side of the Tamaraw FX [33] belying any attempt to shoot Noel altercation at the instance of the private complainant. Jurisprudence teaches us that under the
Andres. Two prosecution witnesses Ramos and Castro unequivocally declared that nothing or circumstances, treachery is not obtaining. In the case of People vs. Valles,[44] the accused, a
no one prevented Gonzalez from shooting directly at Noel Andres and that Gonzalez could have security guard, fired his Armalite and mortally wounded the victim when the latter approached
simply done so if he wanted to. But after alighting from his car, Gonzalez took a few steps and the accused four times insisting on entering the workplace wearing improper uniform, then
shot at the left side window of the FX.[34] cursed and insulted and challenged the accused to a fight. We held that the shooting was not
The fact that the appellant fired his gun from behind the victim does not by itself amount attended by treachery as the shooting was preceded by a heated altercation at the instance of the
to treachery. There is no evidence on record that the appellant deliberately positioned himself victim. It is to be noted that the kind of weapon used against an unarmed victim was not taken
behind the victim to gain advantage over him when he fired the shot. On the contrary, the into consideration in determining the attendance of treachery; it is the mode of attack employed

22
by the accused under the particular circumstances of a case that determines its attendance in the be sufficient to excite a person to commit the wrong committed and that the provocation must
commission of a crime. We find that the prosecution has not discharged its burden to show that be commensurate to the crime committed. The sufficiency of provocation varies according to
the shooting was attended by treachery and we are convinced that the crime committed for the the circumstances of the case.[53] The aggressive behavior of Noel Andres towards the appellant
death of Feliber Andres is homicide. and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the
As regards the injuries sustained by the two children we find that the crime committed are complainants vehicle.
two counts of slight physical injuries. The intent to kill determines whether the crime committed The plea for the appreciation of the mitigating circumstance of incomplete defense of a
is physical injuries or homicide and such intent is made manifest by the acts of the accused relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant
which are undoubtedly intended to kill the victim.[45] In a case wherein the accused did not know and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the
that a person was hiding behind a table who was hit by a stray bullet causing superficial injuries plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a
requiring treatment for three days, the crime committed is slight physical injuries.[46] In case of wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a
doubt as to the homicidal intent of the accused, he should be convicted of the lesser offense of notable disparity between the means employed by the accused to commit a wrong and the
physical injuries.[47] We have earlier pointed out that the intent to kill is absent in this case. It resulting crime committed. The intention of the accused at the time of the commission of the
was also found that one small metallic fragment was extracted from Kenneth below his left eye crime is manifested from the weapon used, the mode of attack employed and the injury sustained
while another fragment was extracted from Kevin immediately below the level of his skin before by the victim.[54] The appellants use of a gun, although not deliberately sought nor employed in
the cheek bone.[48] An examination of the testimonies of the attending physicians, showed that the shooting, should have reasonably placed the appellant on guard of the possible consequences
the wounds sustained by the two children from the metallic fragments are not in themselves fatal of his act. The use of a gun is sufficient to produce the resulting crimes committed.
but may cause death if left untreated. One of the attending physician testified in court that the For the death of Feliber Andres, and in the absence of any mitigating circumstance, the
fragments themselves will not cause complication, it is the entry of the fragment or the open appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor,
wound that is susceptible to infection.[49] Two small fragments were no longer extracted from in its medium period, as minimum to 14 years 8 months and 1 day of reclusion temporal in its
the face of Kevin Valdez, as the doctor deemed it to be without danger of complication. [50] We medium period, as maximum. For each count of the slight physical injuries committed against
note that the various sizes of the metallic fragments were not established, at least to give an Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor
indication of the severity of the wounds sustained. Both children were discharged after six days in its medium period.
of treatment and there is no showing that they required subsequent treatment or that they were The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised
immobilized for a greater number of days by reason of the injuries sustained. Considering the Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more
nature and location of their injuries and the number of days required for their treatment, we find grave and less grave felonies or when an offense is a necessary means of committing another;
that the crime committed for the injuries sustained by the children are two counts of slight in such a case, the penalty for the most serious offense shall be imposed in its maximum
physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of arresto period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave felonies as those to
menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated the victim which the law attaches the capital punishment or afflictive penalties from reclusion perpetua to
for one to nine days or required medical attendance for the same period. For evident lack of prision mayor; less grave felonies are those to which the law attaches a penalty which in its
criminal intent to kill the complainant, Noel Andres, as above stated, the information for maximum period falls under correctional penalties; and light felonies are those punishable by
attempted homicide must fail. arresto menor or fine not exceeding two hundred pesos. Considering that the offenses committed
The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and
defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense, two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for
were not convincingly proved and none can be considered in the imposition of penalties. The complex crimes, which requires two or more grave and/or less grave felonies, will not apply.
testimony of prosecution witness contradicts the appellants pretense of voluntary The pecuniary award granted by the trial court for actual damages was duly established
surrender. Witness Ramos testified that the appellant drove away towards the gate of the by the testimonies of the prosecution witnesses as supported by the original receipts for
memorial park while he was questioning him after the shooting and had not Noel Andres and hospitalization and other medical expenses presented in evidence by the prosecution. The award
onlookers blocked his path the appellant could have fled the scene of the crime. [51] for loss of earning capacity is likewise sustained for the reason that while Feliber Andres was
The mitigating circumstance of passion and obfuscation is also not obtaining. For this pregnant and was unemployed at the time of death, it is not disputed that she was a registered
mitigating circumstance to be considered, it must be shown that (1) an unlawful act sufficient nurse and had earning capacity.Noel Andres also testified that he and his wife had plans to go
to produce passion and obfuscation was committed by the intended victim; (2) that the crime back to Saudi Arabia to work after Feliber had given birth to their second baby. While there is
was committed within a reasonable length of time from the commission of the unlawful act that no evidence as to Felibers actual income at the time of her death, in view of her temporary
produced the obfuscation in the accuseds mind; and that (3) the passion and obfuscation arose separation from work because of her pregnancy, we do not consider it reversible error for the
from lawful sentiments and not from a spirit of lawlessness or revenge. [52] Noel Andres act of trial court to peg her earning capacity to that of the salary of a government nurse under the salary
shouting at the appellants son, who was then a nurse and of legal age, is not sufficient to produce standardization law, as a fair estimate or reasonable assessment of her earning capacity at the
passion and obfuscation as it is claimed by the accused. Besides, the appellants son, Dino was time of her death. It would be grossly inequitous to deny her spouse and her minor children
shouting back at Noel Andres. It was not a case wherein the appellants son appeared helpless damages for the support that they would have received, considering clear evidence on record
and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The same that she did have earning capacity at the time of her death.
holds true for the appellants claim of provocation on the part of Noel Andres. Provocation must

23
The awards for moral damages for the death of Feliber Andres and for the injuries currency, to the damage and prejudice of the said Gau Guan in the said
sustained by the two children, which under the circumstances are reasonable, are likewise sum of Pl,281.00; that on the occasion of the said robbery and for the
sustained. purpose of enabling them to take, steal and carry away the said amount of
WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is P1,281.00, the herein accused, in pursuance of their conspiracy, did then
hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an and there wilfully, unlawfully and feloniously, with intent to kill and
indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as minimum, taking advantage of their superior strength, treacherously attack, assault
to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For and use personal violence upon the said Gau Guan, by then and there
each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, stabbing him with an icepick and clubbing him with an iron pipe on
the appellant is hereby sentenced to 20 days of arresto menor. different parts of his body, thereby inflicting upon him mortal wounds
The pecuniary awards granted by the trial court are hereby sustained. which were the direct and immediate cause of his death thereafter.
Contrary to law, and with the generic aggravating circumstances of (1)
SO ORDERED. nightime purposely sought to better accomplish their criminal design; (2)
evident premeditation; (3) in disregard of the respect due the offended
party; and (4) with abuse of confidence, the accused being then employees
of the offended party. 1
When the case was called for affaigmnent, counsel de oficio for the accused infomred said
court of their intention to enter a plea of guilty provided that they be allowed afterwards to
prove the mitigating circumstances of sufficient provocation or threat on the part of the
offended party immediately preceding the act, and that of having acted upon an impulse so
powerful as to produce passion and obfuscation. 2 Therafter, the trial judge propounded to
them the questions and the accused gave the answers quoted hereunder: +.wph!1
Court:
Your lawyer here has manifested your desire to enter a
plea of guilty to the offense charged, robbery with
homicide. Do you know that by agreeing to that
manifestation of your lawyer, you will be admitting
the commission of the crime charged?
Accused:
We agree, your honor, to what our lawyer said, but we
would like to explain something.
Court:
G.R. No. L-32040 October 25, 1977 Your lawyer here has stated that you will still prove
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, mitigating circumstances. Is that what you like to
vs. explain?
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants- Accused:
appellants. Yes, your honor.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Court:
Solicitor Leonardo L. Cruz for appellee. If that is the case, I will give you a chance.
Ciriaco Lopez, Jr. for appellants. Accused:
Yes, your honor.
CONCEPCION, JR. J.:t.hqw Court:
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Do you know that by agreeing to that manifestation,
Pedro Pagal y Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery you will be admitting the commission of the crime
with homicide, committed as follows: +.wph!1 charged, robbery wit,. homicide?
That on or about December 26, 1969, in the City of Manila, Philippines, Accused:
the said accused, conspiring and confederating together and mutually Yes, your honor.
helping each other, did then and there wilfully, unlawfully and Court:
feloniously, with intent to gain, and by means of violence, take away from And for which this court might sentence you to death
the person of one Gau Guan, cash amounting Pl,281.00. Philippine or life imprisonment?

24
Accused: himself. 10 We find, therefore, that the trial court did not commit any error in convicting the
Yes, your honor. appellant Pedro pagal of the crime of robbery with homicide.
Court: The appellants further assail the trial court in not appreciating in their favor the mitigating
And notwithstanding what is explained to you, you circumstances of sufficient provocation, and passion or obfuscation.
still insist in your desire to enter a plea of guilty to the Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation
offense charged? which caused the obfuscation of the appellants arose from the same incident, that is, the
Accused: alleged maltreatment and/or ill-treatment of the appellants by the deceased, these two
Yes, your honor. mitigating circumstances cannot be considered as two distinct and separate circumstances but
Court: should be treated as one. 11 Secondly, the circumstance of passion and obfuscation cannot be
Q Notwithstanding again the warning of the court that mitigating in a crime which as in the case at bar is planned and calmly meditated before
the maximum penalty impossable is death? its execution. Thus, in People vs. Daos, 12 a case of robbery with homicide, this Court rejected
A Yes, your honor. the claim of the appellants therein that passion and obfuscation should have been estimated in
Court: their favor, because the death of the victim therein took place on the occasion of a robbery,
Arraign the accused. which, before its execut,.on, had been planned and calmly meditated by the appellants.
(At this stage, both accused were arraigned and both pleaded guilty to the Thirdly, the maltreatment that appellants claim the victim to have committed against them
offense charged). 3 occurred much earlier than the date of the commission of the crime. Provocation in order to be
Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient a mitigating circumstance must be sufficient and immediately proceeding the act. We hold that
provocation on the part of the victim immediately preceding the act and acting upon an the trial court did not commit any error in not appreciating the said mitigating circumstances
impulse so powerful as to produce passion and obfuscation. After the accused had rested their in favor of the appellants.
case, the prosecution presented the statements 4 of the accused, and other pertinent documents Finally, the appellants claim that the trial court erred in considering the aggravating
regarding the investigation of the case. 5 circumstances of nighttime, evident premeditation, and disregard of the respect due the
After the trial, the court a quo rendered its decision, the dispositive portion of which reads as offended party on account of his rank and age.
follows: +.wph!1 Although the trial court correctly considered the aggravating circumstance of nocturnity
WHEREFORE, both accused are hereby found guilty beyond reasaonable because the same was purposely and deliberately sought by the a,)pellants to facilitate the
doubt as principals of the crime of robbery with homicide and there being commission of the crime, nevertheless, We disagree with its conclusion that evident
proven the aggravating circumstances of nighttime, evident premeditation premeditation and disregard of the respect due the offended party were present in the
and disregard of respect due the offended party offset only by the commission of the crime.
mitigating circumstance of their plea of guilty, sentences each one of them Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery
to DEATH, jointly and severally indemnify the heirs of the deceased Gau with homicide, if there is evident premeditation to kill besides stealing, it is considered as an
Guan; P15,000.00 for moral damages; P15,000.00 for exemplary damages, aggravating circumstance. 14 In other words, evident premeditation will only be aggravating in
all amounts to bear interest until they shall have been fully paid; the sum a complex crime of robbery with homicide if it is proved that the plan is not only to rob, but
of P1,281.00 represnting the amount taken from the victim; and to pay also to kill. 15 In the case at bar, a perusal of the written statements 16 of the appellants before
proportionately the costs. 6 the police investigators show that their original plan was only to rob, and that, they killed the
The case is now before this Court for mandatory review on account of the death penalty deceased only when the latter refused to open the "kaha de yero", and fought with them. The
imposed upon the accused. trial court, therefore, erred in taking into consideration the aggravating circumstance of
The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of evident premeditation.
robbery with homicide instead of declaring him liable only for his individual acts, claiming The aggravating circumstance that the crime was committed with insult or in disregard of the
that the record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino respect due the offended party on account of his rank, age or sex may be taken into account
conspired to commit the crime of robbery with homicide. only in crimes against persons or honor, when in the commission of the crime there is some
The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose insult or disrespect shown to rank, age, or sex. 17 lt is not proper to consider this aggravating
Torcelino cannot be given credence in view of the clear and convincing confession of his guilt circumstance in crimes against property. 18 Robbery with homicide is primarily a crime against
in his statement 7 signed by him before the police investigators several hours after the property and not against persons. Homicide is a mere incident of the robbery, the latter being
commission of the crime. Besides, when he pleaded guilty to the charge, he is deemed to have the main purpose and object of the criminal. 19 The trial court erred in taking into account this
admitted all the material facts alleged in the information. 8 By his plea, the appellant admitted aggravating circumstance.
not only the commission of the crime but also the circumstances surrounding its commission, It results that in the commission of the crime, there is only generic aggravating circumstance,
including the allegations of conspiracy. A plea of guilty when formally entered on i.e., nighttime or nocturnity.
arraignment, is sufficient to sustain a conviction even for a capital offense without the Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating
introduction of further evidence, 9 the requisite proofs having been supplied by the accused circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser
penalty, which is reclusion perpetua, should be imposed upon the appellants. 21

25
ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Jr. on December 12, 1969. The killing was qualified by treachery and aggravated by
Marcelino and Jose Torcefino y Torazo are hereby sentenced to suffer each the penalty premeditation and disregard of rank. It was mitigated by plea of guilty.
of reclusion perpetua. In all other respects, the judgment of the trial court is affirmed. With After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
costs against the appellants. affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating
SO ORDERED. circumstance of voluntary surrender. The penalty was reduced to reclusion perpetua . (People
vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating
circumstances of disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement, which was taken, about five hours
after the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police , recounted the background and circumstances of the tragic
incident in this manner (Exh. A):
... you know, I was a former Civil Service Commission employee at P.
Paredes, Sampaloc, Manila, and I was Clerk 2 in the Administrative
Division and I started working in the Civil Service since November 1965
were suspended in my job because they suspected me of "DISHONESTY"
and suspended for 60 days and returned to work in January 1966 but they
again raised me "MALVERSARTION OF PUBLIC FUNDS,
QUALIFIED THEFT, ESTAFA and FALSIFICATION OF PUBLIC
DOCUMENT and UNITED STATES I'm also a Civil Service of the
Administrative Case of "DISHONESTY" and I was dismissed by the
Commissioner Subido on February 16, 1966.
And since then I have lost my job but all the time they came to me that I
told you was just fabricated the evidences and the work that I had shot
earlier by PETER MONCAYO JR. Y RAMOS and now pending City
Fiscal of Manila with Asst. Fiscal Magat and that's the "dismissal order"
of Commissioner Subido I appealed to the Civil Service Board of Appeals.
Since they were imprisoned for my work because of "fabricated" charges I
suffered from my life and I was ashamed of my friends. I was assigned to
the collecting department and the Civil Service employees were angry
with me because I was tight on them.
It was around 7 pm on Dec. 11, 1969, I went to the Civil Service on the
street Paredes and saw Mr. MONCAYO, Jr. and I talked to her and asked
her that you have been in my case for a long time and have not been able
to help her and her answer is "YOU SHOULD HAVE BEEN THERE
ARE YOU AND YOU HAVE TO HELP HERE" and leave ko.
At around 11:00 am we met Pete Moncayo Jr. within the compound of the
Civil Service and in front of many people he said that "HAPPY
GR No. L-32042 December 17, 1976 BETWEEN HERE HERE" so what I did was go away.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, At around 5:25 pm, this day, December 12, 1969, I saw Father Moncayo
vs. Jr. who cared about his car on the street P. Paredes opposite the Civil
ALBERTO BENITO y RESTUBOG accused-appellant. Service, I followed him and his car at the corner of P. Paredes and
RESOLUTION Lepanto, Sampaloc, Manila, shot me eight times and struck him and
knocked him in his car seat.
AQUINO, J .: Then I called the MPD Headquarters telephone to surrender and you came
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he with your partners.
pleaded guilty to the charge of murder for a shot with a .22 caliber revolver Pedro Moncayo, Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight
empty shells of the bullets which he had fired at Moncayo.

26
The Police report contains the following background and description of the killing (Exh. B): Jr.) to the FEU Hospital. Unfortunately, the victim was pronounced DOA
According to the suspect, he was a former employee of the Civil Service by Dr. P. PAHUTAN, SOD, at 5:40 pm of Dec. 12, 1969.
Commission at its main office located at P. Paredes, Sampaloc. Mla., And The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the
was assigned as Clerk 2 in the Administrative Division from Nov. 1963 Personnel Transactions Division and Acting Chief, Administrative Division of the Civil
continuously up to Nov. 1965 when he was suspended for Service Commission (Exh E to E-2). The accused was a clerk in the cash section,
"DISHONESTY". Administrative Division of the Commission, receiving P1,884 per annum (Exh. D). He started
After two months, he was reinstated but was criminally charged for working in the Commission on November 7, 1963.
QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS, On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of
ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and Civil Service that Benito admitted having malversed an amount between P4,000 and P5,000
administratively charged for "DISHONESTY" culminating in his from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
dismissal from the Civil Service on February 1966. MEMORANDUM for
The aforecited criminal charges against the suspect were allegedly The Commissioner
investigated by Asst. Fiscal MAGAT. Records from the CRID, MPD, Through Proper Channels
reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the
Mla. issued a Warrant No. E-316758 for the arrest of the suspect for the Administrative Division of this Commission, who, as had previously been
crime of ESTAFA. reported, malversed public funds in the amount of approximately
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued P5,000.00 out of his collections from the sale of examination fee stamps.
an order no. OA-87409 for the arrest of the suspect for the crime of I wish to state that this matter came to my attention on the evening of
MALVERSATION OF PUBLIC FUNDS. According to the suspect, the March 1, 1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to
aforecited criminal and administrative charges filed him were allegedly me that fifty (50) money orders at P2.00 each with a total vlaue of P100.00
instigated and contrived by the victim and since the time of his dismissal, were missing from a bundle of money orders received from the Provincial
he was allegedly jobless. Treasurer of Cotabato, which were kept by him in one of the cabinets
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes inside the Cashier's Cashier 'room.
st. and asked the victim to help him in his cases but the former allegedly At the same time he also informed me that he suspected that Mr. Benito
uttered to the suspect "IF YOU ARE LOOKING FOR THEM AND YOU stole the missing money orders. His suspicion arose from the fact that he
MAY EAT TO USE". found several money orders marked "Cotabato" as their place of issue
The suspect left and returned the following morning at 11:00 am of among the cash receipts turned over to him by Mr. Benito that afternoon
Dec. 12, 1969, and when they met again, the victim allegedly remarked in as his collection from the sale of examination fee stamps. Mr. Abarquez
the presence of many people, "NAGIISTAMBAY ALWAYS HERE". The showed to me the said money orders issued in Cotabato which were turned
suspect who was humiliated and incensed, left. over to him by Mr. Benito and after checking their serial numbers with the
At about 5:25 pm of that same day, Dec. 12, 1969, the suspect who was records of list of remittances on file, we were able to establish definitely
armed with an unlicensed Cal. 22 black revolver (w / SN - P-5317, the fact that the said money orders were those missing.
Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC. It may be stated that at that time, Mr. Benito was assigned to work in the
MLA. PI) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited Cash Section and one of his duties was to sell examination fee stamps to
for the victim outside the Civil Service compound at P. Paredes applicants for examinations. It was then the practice of the cashier to issue
st. Sampaloc, Mla. to Mr. Benito in the morning examination fee stamps to be sold during the
The victim showed up and drove his green Chevrolet 2 door car (w / Plate day and in the afternoon he turned over to the Cashier the proceeds from
No. the sale of stamps including the unsold stamps issued to him. After
L-10578 Mla. 69) along P. Paredes st. The suspect with evident considering the work performed by Mr. Benito, it became evident that he
premeditation, surreptitiously followed the victim and when the latter's car succeeded in malversing the amount of P100.00 by substituting equivalent
was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy amount of money orders in the place of the cash extracted by him from his
traffic of motor vehicles, the suspect without any warning or provocation, daily collections from the sale of examination fee stamps when he clears
suddenly and treacherously shot the victim eight (8) times on the head and his accountability with the Cashier.
different parts of the body at near range which consequently caused the The following day, I confronted Mr. Benito in the presence of
latter's death on the spot inside his car. Mr. Abarquez and ask him whether he had something to do with the loss
The suspect then fled while the victim was conveyed on board a red of the fifty (50) money orders at P2.00 each. At first he denied, but when I
private car (w / Plate No. L-55117) by his co-employees (composed of asked him where he obtained the money orders issued in Cotabato which
VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE were included in his collections the day preceding, he admitted having
stolen the missing money orders.

27
Having confessed his guiltk, I then asked Mr. Benito when he started and pleasure spots and for personal purposes. The decision dismissing him from the service
committing the said irregularity and how much in all did he actually reads as follows (Exh. G):
malversed out of his daily collections from the time that he started the This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash
anomaly. He stated in the presence of Mr. Abarquez that he started in Section, Administrative Division of this Office, for dishonesty.
January, 1965 and that although he did not know exactly the total amount The following excerpts from the letter dated October 22, 1965 of the
malversed by him, he believed the amount to be between P4,000 to Commissioner of Civil Service connect respondent with the alleged
P5,000.00. He also confessed that he used the money orders remitted by misappropriation of public funds representing his collection from the sale
the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 of examination fee stamps and constitute the basis of the instant case
in substituting various amounts extracted by him from his daily cash against him:
collections and used by him for personal purposes. An investigation made by this Commission shows that
It appears from the records that the List of Remittances covering the you malversed public funds in the amount of
money orders received from the Provincial Treasurer of Negros P3,536.00 out of your collections from the sale of
Occidental was duly receipted by Mr. Benito. He was supposed to issue an examination fee stamps while in the performance of
Official Receipt therefor in favor of the said Provincial Treasurer and then your official duties as Clerk II in the Cash Section,
turn over to the Cashier the amount involved for deposit to the National Administrative Division of this Office. It appears that
Treasurer. The said List of Remittances, duly signed by Mr. Benito, is you succeeded in malversing the above-stated amount
enclosed for use as evidence in this case. from your cash collections by substituting in lieu
I told Mr. Benito that I can not do anything but report the matter to the thereof money orders worth P3,436.00 remitted to this
Commissioner. However, he pleaded that he be given first an opportunity Commission by the Provincial Treasurer of Negros
to restore the amount before I make my report in order that the penalty that Occidental which were duly receipted for by you. It
may be imposed upon him may be lessened to a certain degree. As I also appears that you extracted from a bundle of
thought it wise in the interest of the service to recover the amount money orders remitted by the Provincial Treasurer of
involved, I allowed him to go and see his parents in Naga City to raise the Cotabato the amount of P100.00 in money orders
amount in question. which were kept in one of the cabinets in the Cashier's
After two weeks, Mr. Benito informed me that his parents filed an room.
application for a loan with the Government Service Insurance System and Respondent denied the charge. He explained, among others, that money
that the proceeds of the said loan which he intended to use in restoring the orders were always kept in the cashier's safe and he had no access to
amount malversed by him were expected to be released during the last them. Although he admitted having received money orders amounting to
week of May, 1965. However, when the month of May, 1965 elapsed P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and
without the amount involved having been restored, I conferred with another remittance of the Provincial Treasurer of Cotabato, he was
Mr. del Prado, my immediate superior and asked him whether we should disclaimed having substituted the same for cash collections in his sale of
wait further for the release of the said loan in order that the amount examination fee stamps. He reasoned out further that he could not be
involved may be recovered. Mr. Prado consented to giving him a little charged with malversation of public funds inasmuch as he was not then an
more time. accountable officer.
When Mr. Benito still failed to restore the amount in question by the end It appears that respondent, as Clerk in the Cash Section, performs, among
of June, 1965, I got hold of him on July 5, 1965 and together with other duties, the selling of examination fee stamps, receiving payments
Messrs. del Prado, Abarquez and Gatchalian, also of this Commission, therefor, and receiving remittances in form of cash and / or money orders
brought him before Deputy Commissioner AL Buenaventura and reported from provincial treasurers in connection with examinations held in the
the whole matter to the Deputy Commissioner. In the presence of provinces. It was also his duty to issue official receipts for said
Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted remittances. In the course of the performance of his duties, he received
readily and voluntarily before the Deputy Commissioner the commission said remittances from the Provincial Treasurers of Negros Occidental and
of the offense of malversation of public funds as stated above. Cotabato, but no official receipts were issued by him, as shown by the
In view of the foregoing, it is recommended that Mr. Benito be charged reply telegrams pertaining thereto. While records disclosed that
formally and that he be suspended from office immediately considering remittances from the province of Cotabato were submitted to the Cashier
the gravity of the offense committed by him. of the Civil Service Commission, there is no evidence showing that
DRO R. MONCAYOicer II remittances from Negros Occidental were also submitted.
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Investigation further reveals that 50 money orders were found missing
Buenaventura that he had misappropriated his collections and spent the amount in nightclubs from the remittances of the Cotabato Provincial Treasurer which were kept
in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of

28
the Commission noticed that 15 money orders turned over by respondent That on or about and during the period comprised
as part of his collections in the sale of examination fee stamps were among between October 17, 1964, to February, 1965,
the missing money orders. This triggered off the filing of this case against inclusive, in the City of Manila Philippines, the said
the respondent. accused being then employed as Clerk I of the Civil
On July 5, 1965, respondent admitted before the then Deputy Service Commission, a branch of the government of
Commissioner Alipio Buenaventura having misappropriated an aggregate the Republic of the Philippines, among which duties
amount ranging from P3,000 to P7,000, which he spent in night clubs, were to accept payments of fees collected from the
pleasure spots and other personal benefits. Despite the testimonies of examinees of the 1964 Patrolman examination, and by
several witnesses regarding his confession, including that of the then reason of his said position received the total amount of
Deputy Commissioner himself, respondent, when asked to take the stand, P3,536.00, with the duty to turn over and / or account
denied his previous admission. for his collections to the cashier of the Civil Service
Instead, he argued that the cash and accounts of the Cashier of the Civil Commission immediately or upon demand but the said
Service Commission, when examined by representatives of the Auditor's accused once in possession of the said amount of
Office, did not indicate any shortage and therefore there was no P3,536.00, with intent to defraud, despite repeated
irregularity involved. This argument is not well taken. Inasmuch as the demands made upon him to turn over and to account
remittances received by respondents from said Provincial Treasurers of for the same, did then and there willfully, unlawfully
Negros Occidental and Cotabato were not in turn given corresponding and feloniously misappropriate,misapply and convert
official receipts, naturally, the same were not reflected on the Cashier's and malverse the said amount to his own personal use
cash book. and benefit, to the detriment of public interest and to
The weakness of respondent's defense lies not so much on its failure to the damage and prejudice of the said Civil Service
establish convincingly his innocence as its irreconciliability with Commission in the said amount of P3,536.00,
established facts. Obviously, none of the circumstances in this case is Philippine currency.
consistent with his claim of innocence. On the contrary, all of them put Contrary to law.
together produce reasonable assurance of respondent's guilt. The evidence shows that the accused had an appointment as clerk in the
In view of the foregoing, this Office finds respondent Alberto R. Benito Civil Service Commission from May 27, 1964, as clerk I, range 23 from
guilty as charged. Wherefore, he is dismissed from the service effective June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A -1,
upon his receipt of this decision. A-2). He had the duty, among others, of selling Civil Service examination-
In the interest of the service this decision is executed also on the date of fee stamps and to receive payment therefor, as well as to receive
his receipt of this decision. remittances of money orders and checks from the provincial treasurers for
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision payments of examination fee stamps (Exhibit B).
dismissing him. The appeal was pending at the time when he assassinated Moncayo (Exh. I). Teodoro Abarquez, a cashier of the Civil Service Commission during the
The foregoing antecedents of the assassination shed light on the remark which the victim, period alleged in the information, testified in his direct examination that
Moncayo, allegedly made upon seeing Benito in the compound of the Civil Service Benito was working in his office; that one of the duties that he assigned to
Commission near the canteen at eleven o'clock in the morning of December 12, 1969 (about him was to sell examination fee stamps; that it was customary for him to
six hours before the shooting): "It's here and thieves." (Exh. A or 1); or, as Benito testified, give stamps to Benito at the start of office hours in the morning and that
Moncayo said: "I do not know that this Civil Service is a stealer." (27 tsn December 26, 1969). Benito turned over to him the proceeds of the sale, as well as the unsold
Mitigating circumstance of immediate vindication of a grave offense . - Benito contends that stamps, at the close of office hours in the afternoon; that one afternoon he
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises noticed that Benito turned over to him 50 money orders from Cotabato,
of the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a together with some cash, as proceeds of the sale of stamps for that
man already down and to rubbing salt into a raw wound" and that, as it was made publicly and day; that he remembered that he was missing money orders from one of
in a loud voice, he was exposed to ridicule in the presence of his officemates. his cabinets where he kept them; that when he discovered that the 50
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January money orders were those which were missing, he reported the matter to
16, 1975, acquitting him of the charge of malversation in connection with his alleged Pedro Moncayo, the chief administrative officer; on March 1, 1965; that
misappropriation of the fees collected from the examinees of the 1974 patrolman the money orders were for P2.00 each, and were payments of the
examination. That same decision makes reference to Benito's exoneration from the examination fees from Cotabato (Exhibit F); that he discovered the loss of
administrative charge. The court's decision reads as follows: the 50 money orders on February 28, 1965 and reported it to Moncayo on
The accused is charged with malversation under the following March 1, 1965, together with the list of missing orders (Exhibit M); that
information: after receiving the report, Moncayo called Benito to the office of
Abarquez where he admitted taking the missing money orders; that

29
Moncayo submitted a memorandum to the Commissioner, dated October accused, who denied the testimonies of the witnesses for the prosecution,
21, 1965, after giving Benito a chance to refund the value of the money the court believes that the prosecution has failed to prove the guilt of the
orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at accused.
the time, and Eliseo S. Gatchalian, budget officer, testified that when WHEREFORE, judgment is hereby rendered acquitting the accused, with
Benito was confronted with the report of Moncayo and Abarquez, costs de oficio .
Under cross-examination, Abarquez elucidated his testimony in his direct The Solicitor General argues that the defamatory remark imputed to Moncayo can not give
examination and explained that when Benito turned over the proceeds of rise to the mitigating circumstance of vindication of a grave offense because it was not
the sale of stamps for that particular day, he kept the sum of P100.00 and specifically directed at Benito. The prosecution notes that the remark was uttered by Moncayo
replaced it with the 50 money orders that he had taken from the cashier's at eleven o'clock in the morning. According to Benito's testimony (not consistent with his
office to cover up the money that he had pocketed. When he was asked confession), he saw Moncayo three hours later or at two o'clock in the afternoon and inquired
when he discovered that Benito substituted the 50 money orders from from him about his case and Moncayo said that he had already submitted his report and he
Cotabato, he replied that he checked them the following night (March 2, could not do anything more about Benito's case (26 tan). As already stated, the assassination
1965) with the list of money orders remitted by the Provincial treasurer was perpetrated at around five o'clock in the afternoon of the same day.
(Exhibits F, F-1 ); but when he was confronted with his affidavit which he Assuming that Moncayo's remark was directed at Benito, we see no justification under the
executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he circumstances recited above for changing our prior opinion that the mitigating circumstance of
had only verified 15 money orders missing as of April 18, "haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del
He also admitted that the room where he kept the money orders in an delito," can not be appreciated in Benito's favor. As aptly stated by the ponente , Justice
unlocked drawer was also occupied by two other persons, and that was the Esguerra, Benito "had more than enough time to suppress his emotion over said remark if he
first time he had not followed the usual procedure of keeping them in the ever did resent it."
safe. He further admitted that, although regular examinations were "La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de
conducted during the period of October 1, 1964 to February 28, 1965 by Espaa) no ha apreciado la proximidad ... cuando la offensa se realizo por la maana y el
the examiners of the Civil Service Commission and the auditors of the delito tuvo lugar por la tarde (Sentencia de 11 novembre 1921) ; por regla general no es
General Auditing Office, they did not find any shortage in the accounts of proxima cuando transcurre tiempo suficiente para la razon recobre su imperio
Benito. sobreponiendose a la pasion (Sentencias de 28 may 1882, 4 novembre 1893, 24 junio 1908,
Finally, when the Court asked him what happened to the 50 money orders, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950).
at first he hinted that they were not deposited with the Bureau of Treasury Exige gravedad en la ofensa y proximada en la reaccion. " (Note 9, 1 Cuello Candidate,
because they were reported missing; but when pressed further, he said that Derecho Penal, 1975 Ed., P. 564).
he deposited them, but did not issue any official receipt for them. When The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante
asked if he had any evidence to show that they were actually deposited, he en favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el
admitted that he could not even remember when he deposited them. interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre
The testimony of Teodoro Abarquez upon which the prosecution has built los golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24
its case, is too weak and shaky to sustain a finding of guilt because of his Junio 1908, Gaceta 28 August 1909, IV-V Enciclopedia Juridica Espaola 1182).
glaring inconsistencies, contradictions and gaps in memory. The The six-hour interval between the alleged grave offense committed by Moncayo against
prosecution has failed to present convincing evidence that the 50 money Benito and the assassination was more than sufficient to enable Benito to recover his
orders were even lost: According to Abarquez he only verified the loss of serenity. But instead of using that time to regain his composure, he evolved the plan of
15 on April 18, 1966, although he testified earlier that he determined the liquidating Moncayo after office hours. Benito literally ambushed Moncayo just a few minutes
loss of 50 the night after March 1 , 1965. after the victim had left the office. He acted with treachery and evident premeditation in
The examiners of the Civil Service Commission and the auditors of the perpetrating the cold-blooded murder.
General Auditing Office did not find any irregularity in the cash The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo
accountability of Benito, according to Abarquez. This was corroborated by was not the latter's alleged defamatory remark that the Civil Service Commission compound
Romeo Jarabelo, auditor of the Commission on Audit and Miguel Games, was a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to
auditing examiner assigned to the Civil Service Commission, who testified favor Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but
for the accused. Benito was in fact exonorated the administrative charge mainly to chastise Moncayo for having exposed the alleged anomalies or defraudation
filed against him for the same time transaction (Exhibit E). committed by Benito and for obstinately refusing to change his report.
In fact, the testimony of Abarquez under cross-examination that he has not Aggravating circumstance of disregard of rank . - Benito contends that disregard of rank
issued any official receipt for the 50 money orders and his inability to should not be considered against him because there was no evidence that he "deliberately
prove that he deposited them with the bureau of Treasury gives rise to the intended to offend or insult the rank" of Moncayo. That contention has no merit.
suspicion that other persons, not the accused , have stolen the 50 missing It should be borne in mind that the victim was a ranking official of the Civil Service
money orders. Even without taking into account the testimony of the Commission and that the killer was a clerk in the same office who resented the victim's

30
condemnatory report against him. In that situation, the existence of the aggravating CARPIO MORALES, J.:
circumstance of "desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance
superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and
Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines
the funds of the consulate, which misappropriation was discovered by the victim (People vs. (Edzel).[1]
Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by
disregard of rank.
WHEREFORE, the motion for reconsideration is denied. Jonathan and Edzel left the dance hall. Not long after, the victim and his companions
SO ORDERED. also left and on their way home, they encountered Jonathan and Edzel. It appears that the two
groups then and there figured in a misunderstanding.
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall,
noticed a commotion. He soon saw that Melchor was hugging Edzel, and later tying Jonathan
with his hands. Still later, he saw the victim hit Edzel with a stick.[2] He thus told the victim and
his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon
Eduardo[3] told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded
to Edzels residence to report to his father what he had witnessed. In the meantime, Edzel and
Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his
nephews, and Edzels father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and
Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and
Edzel were carrying a piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions
mistook Jonathan and Edzel for other persons. Jesus blurted out, however, You are just bragging
RICARDO BACABAC, G.R. No. 149372 that you are brave. You are only bullying small children.[4] Petitioner, at that instant, fired his
Petitioner, armalite into the air, while Jose fired his armalite (as if spraying his rifle from right to left) at
Present: the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) was on the move to
strike [the victim] with a piece of wood. Eduardo fell. And so did the victim who was in a
PUNO, C.J.,* kneeling position, and as he was raising his hands in surrender, Jose shot him again.
- versus - QUISUMBING, J., Chairperson,**
CARPIO,*** Meanwhile, Melchor escaped.[5]
CARPIO MORALES,
TINGA, and The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
VELASCO, JR., JJ. pronounced dead on arrival. Eduardo died two hours later.
PEOPLE OF THE
PHILIPPINES, Promulgated: Post-mortem examination showed that the victim sustained two bullet wounds in the
Respondent. September 11, 2007 thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to
maceration of the internal organs due to bullet wounds.[6] Eduardo sustained two bullet wounds
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -x in the thoraco-abdominal region, and died of hemorrhage due to gunshot wounds. [7]

Two Informations for Murder were filed with the Regional Trial Court (RTC)
of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory
DECISION portion of the first Information, docketed as Criminal Case No. 35783, reads:

31
That on or about the 23rd day of December, 1990, in the aggravating circumstances with one mitigating circumstance
Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and [immediate vindication for Jose and Jesus; voluntary surrender for Pat.
within the jurisdiction of this Honorable Court, the above-named Ricardo Bacabac[12]], and applying the indeterminate sentence law,
accused, conspiring, confederating and mutually helping one another to accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin
better realize their purpose, armed with two (2) M16 Rosadio are hereby sentenced each to suffer imprisonment for a period
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as
and caliber, with deliberate intent and decided purpose to kill, with maximum; while accused Edzel Talanquines and Jonathan Bacabac
treachery and evident premeditation and without any justifiable cause who are entitled to the privileged mitigating circumstance of minority
or motive, did then and there willfully, unlawfully and feloniously and the ordinary mitigating circumstance of immediate vindication of a
assault, attack and shoot one HERNANI QUIDATO with the firearms grave offense are hereby sentenced each to suffer imprisonment for a
they were then provided, period of four (4) years, 2 months, and 1 day, as minimum, to 10 years
inflicting upon the latter gunshot wounds on the different parts of his and 1 day as maximum. All the accused are ordered to pay jointly and
body which caused the immediate and instantaneous death of said severally the heirs of the deceased Hernani Quidato, the amount
Hernani Quidato. of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the
CONTRARY TO LAW.[8] suit. (Underscoring supplied)

The accusatory portion of the second Information, docketed as Criminal Case No. In Criminal Case No. 35784, judgment is hereby rendered as
35784, reads: follows:
All the accused, namely; Jose Talanquines, Jr., Edzel
That on or about the 23rd day of December, 1990, in the Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin
Municipality of San Joaquin, Province of Iloilo, Philippines, and within Rosadio are hereby found guilty of the crime of Murder and there being
the jurisdiction of this Honorable Court, the above-named accused, no aggravating circumstance with one mitigating circumstance, accused
conspiring, confederating and mutually helping one another to better Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are
realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and hereby sentenced each to suffer imprisonment for a period of 10 years
one (1) nickel-plated revolver of unknown make and caliber, with and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum;
deliberate intent and decided purpose to kill, with treachery and evident while accused Edzel Talanquines and Jonathan Bacabac who are
premeditation and without any justifiable cause or motive, did then and entitled to the privileged mitigating circumstance of minority and the
willfully, unlawfully and feloniously assault, attack and shoot one ordinary mitigating circumstance of immediate vindication of a grave
EDUARDO SELIBIO with the firearms they were then provided offense, are hereby sentenced to suffer imprisonment for a period of 4
inflicting upon the latter gunshot wounds on the different parts of his years, 2 months and 1 day, as minimum to 10 years and 1 day as
body which caused the immediate and instantaneous death of said maximum. All the accused are ordered to pay jointly and severally the
Eduardo Selibio. heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for
his wrongful death; P20,000.00 for moral damages; P10,000.00 for
CONTRARY TO LAW.[9] attorneys fees; and the costs of the suit. (Underscoring supplied)

The cases were jointly tried. Accused Jesus Delfin Rosadio, who is detained, is hereby
credited with the number of days he spent under detention, if he is
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of qualified.
conspiracy among petitioner and his co-accused,[10] convicted them of murder qualified by
treachery.[11] The dispositive portion of the decision of the trial court reads: SO ORDERED.[13]

WHEREFORE, premises considered, judgment is hereby While petitioner and his co-accused filed a Notice of Appeal[14] which was given due
rendered as follows: course,[15]
only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the
Court of Appeals to dismiss his appeal.[16] The conviction of petitioners co-accused had thus
In Criminal Case No. 35783, all the accused, namely; become final and executory.
Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty
beyond reasonable doubt of the crime of murder and there being no

32
Petitioners Motion for Reconsideration[17] of the dismissal of his appeal having been In his Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest
denied,[18] he filed a Petition for Review with this Court which, by Resolution of October 22, Issued by the Regional Trial Court . . . , petitioner argues that
1997, directed the Court of Appeals to reinstate petitioners appeal.[19]
[T]he basis of the RTCs Order of February 7, 2000 was
By Decision[20] of June 28, 1999, the Court of Appeals affirmed the trial courts the Entry of Judgment by the Court of Appeals dated 25 November
decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.[21] 1999.[36] BUT THE SAID ENTRY OF JUDGMENT was
ALREADY VACATED and SET-ASIDE BY THE COURT OF
The trial court thereafter issued a February 7, 2000 Order directing the issuance of APPEALS ITSELF ON ITS RESOLUTION DATED 13
warrants for the arrest of the accused.[22] Except petitioner, all were arrested.[23] DECEMBER 2000. Therefore, the RTCs Order of 7 February
2000 was ipso facto vacated.[37] (Emphasis in the original)
On February 24, 2000, petitioner filed before the appellate court a Petition for Relief
from Judgment, Order, and/or Denial of Appeal[24] which was granted,[25] hence, the Entry of and that
Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a [T]he second sentence of Section 7, Rule 65 of the Rules of
Motion for Reconsideration[26] of the appellate courts June 28, 1999 Decision which was denied Court cited by the Order of 13 July 2006 does not apply to the case at
by Resolution of August 8, 2001;[27] hence, the present Petition for Review on Certiorari.[28] bench because the main case on the merits which originated in the
RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as
Petitioner assails the Court of Appeals decision as follows: CA-G.R. No. 16348 and is now pending in the Supreme Court (Third
Division) as G.R. No. 149372 because of the Petition for Review On
First: Contrary to its conclusion on the basis of the facts of Certiorari filed by Movant herein x x x.THE MAIN CASE IS NO
the case, Petitioner may not be deemed to be in conspiracy with the LONGER PENDING IN THIS HONORABLE COURT
other Accused. [sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO
REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY
Second: Contrary to its conclusion, there was no treachery. 2000.[38] (Emphasis in the original)

Third: Contrary to its conclusion, Petitioner, assuming in


gratis argumenti the correctness of the pronouncement of guilt, should As this Court hereby affirms petitioners conviction, resolution of his Motion to Vacate
have been credited with the mitigating circumstance of immediate . . . is rendered unnecessary.
vindication of a grave offense, in the same manner that the other
Accused were so credited. Petitioner, denying the presence of conspiracy on his part, argues:

Fourth: Contrary to its conclusion, the guilt of the Petitioner [The petitioner] affirms that he was at the scene of the
has not been proved beyond reasonable doubt; hence, by the equipoise incident and merely fired a warning shot into the air to respond to a
rule, should have been acquitted. public disturbance, and his firing a warning shot into the air was
intended to avert further acts of violence; both circumstances,
Fifth: Contrary to its conclusion, Petitioner is not civilly therefore, being merely and solely in pursuance to his avowed duty to
liable.[29] (Emphasis in the original) keep peace and order in the community and clearly not to be part of any
alleged community of design to kill the victims.
The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised
before the appellate court.[30] xxxx
Another indication that there was no unity of purpose and
During the pendency of the present petition, petitioner, through counsel, filed before of execution in so far as the Petitioner is concerned is his conduct after
the trial court an Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabacs Motion for Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that
Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the after that lone warning shot, closely followed by Jose Talanquines, Jr.
accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat. firing at the victims, the petitioner merely stood there and did nothing
Ricardo Bacabac Only is Concerned).[31] The trial court denied[32] the motion as it did and said nothing. This is obviously because he was himself stunned by
deny[33] petitioners motion for reconsideration,[34] drawing petitioner to file before this Court the fast happening of events. The investigating police officer, PO3
on October 5, 2006 a Motion to Vacate Order for the Arrest of the Accused and the Warrant of NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts
Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City.[35] that ten (10) minutes after the incident, they (the police) responded and
upon arrival thereat, learned that the Petitioner already reported the

33
incident to their station and that it was the Petitioner who first arrival of the group of the victims. But such a scenario is, likewise,
reported the shooting incident officially to their office. The unnatural. Because, will the male relatives unhesitatingly expose
aforedescribed proven conduct of the Petitioner during and immediately their defenseless womenfolk to imminent danger?[40] (Citations
after the incident in question are, Petitioner respectfully omitted, emphasis in the original, and underscoring supplied)
submits, inconsistent with what a co-conspirators is [sic] wont to do
under the circumstances. It is submitted instead that his conduct on the
contrary underscores the lack or want of community of purpose and Petitioners argument that it is improbable for him and his co-accused to have waited
interest in the killing incident to make him criminally liable under the for the victims at a well-lighted street corner does not persuade. Crimes are known to have been
conspiracy theory. brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace
officers, completely impervious of the inevitability of criminal prosecution and conviction. [41]
Finally, in connection with the conspiracy theory and anent
the finding below that the Petitioner and his Co-Accused waited for From the mode and manner in which the crimes were perpetrated, the conduct of
the victims arrival at the corner of St. Domingo and M.H. del Pilar petitioner before, during, and after their commission, [42] and the conditions attendant
Streets, it is asserted that the same runs counter to the natural and thereto,[43] conspiracy, which need not be proved by direct evidence, is deduced. [44] Petitioners
ordinary experience of things and event [sic], and raises a cloud of firing of his armalite could not have amounted to none other than lending moral assistance to his
doubt over the correctness of the lower Courts decision which are based co-accused, thereby indicating the presence of conspiracy.[45]
on the Prosecutions version of the incident.Since, according to the
prosecution, the Petitioner and the other Accused were armed with high- As the appellate court observed which is quoted with approval:
powered firearms (armalite rifles and revolver); they waited at the In the present recourse, when informed that Jonathan and
stated street corner for thirty (30) minutes; the stated street corner Edzel were being manhandled and assaulted by male
was well lighted; accompanying them were the wife and two (2) persons, Appellant armed himself with an M-16 armalite. Jose
young daughters of Jose Talanquines, Jr; and they stood there Talanquines, Jr., the father of Edzel, followed suit and armed himself
conversing with the group of Elston Saquian [a prosecution witness with an M-16 armalite gun. Jesus armed himself with a revolver while
who testified that he saw the petitioner and his co-accused waiting for Jonathan armed himself with a piece of wood. Jonathan and Edzel were
the victims[39]] and admitting that they were waiting for certain persons nephews of the Appellant who resided in the house of Jose Talanquines,
who mauled Edzel Talanquines and Jonathan Bacabac. Jr. All the Accused including the Appellant then proceeded
posthaste to the corner of M.H. del Pilar corner Sto. Domingo
In other words, the lower Courts gave credence to Streets where the culprits would pass by and waited for the advent
an improbable scenario painting the Petitioner, known to the place as of the culprits. Even as Hernani apologized for his and his
a police officer, and co-accused to have recklessly and uncaringly companions assault of Edzel and Jonathan, Jesus berated Hernani
displayed, for all and sundry to see, their alleged criminal intentions. It and his companions. Almost simultaneously, the Appellant fired his
would indeed be the height of foolishness for them to be by a well gun into the air as Jonathan lunged at Hernani and his companions
lighted street corner, perhaps even well traversed, conspicuously fully to hit them with the piece of wood. Almost simultaneously, Jose
armed, waiting for persons who were not even sure would pass by such Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them
place, and apparently willing to admit to other passers-by that they were and, in the process, hitting his nephew, Jonathan Bacabac. The
indeed waiting for the persons who mauled Edzel and Jonathan, and Appellant did not lift a finger when Jose fired at and shot Hernani
consequently give out the impression that they were intending to and Eduardo. He stood by as Jose shot Hernani anew when the
retaliatewhich is what the lower Courts regrettably observed. latter on bended knees, raised his two (2) hands, in surrender. The
Appellant and the other Accused then fled from the scene, with
xxxx their respective firearms and weapons. The overt act of the Accused
Likewise, the presence of the wife and two (2) young and the Appellant in conjunto, constitute proof of conspiracy.
daughters of the accused Jose Talanquines, Jr. at the scene of the
alleged crimes, as testified to by the prosecution witnesses and believed The Appellant and Jose were armed with high-powered
by the lower Courts, assumes importance in the matter of determining guns. Jesus was armed with a revolver. The nature of the weapons of
which version of the incident is correct. the Accused evinced a common desire to do away with the culprits,
not merely to scare them.
The Prosecution places the wife and the daughters with the
alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets, What is outrageous is that the Appellant was a
also waiting during the same length of time as the men for the (probable) policeman. He could very well have just arrested the culprits as

34
they sauntered by and brought them to the police station for the
requisite investigation and the institution of criminal complaints, if As for petitioners invocation of the mitigating circumstance of immediate vindication
warranted. He could have dissuaded Jose and Jesus and assured of a grave offense, it fails. For such mitigating circumstance to be credited, the act should be,
them that the culprits will be duly investigated and charged if following Article 13, paragraph 5 of the Revised Penal Code, committed in the immediate
warranted. The Appellant did not. He armed himself with an M-16 vindication of a grave offense to the one committing the felony (delito), his spouse,
armalite x x x. [T]he three (3) positioned themselves at the corner of ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by
M.H. del Pilar and Sto. Domingo Streets for the culprits to affinity within the same degree.[59] The offense committed on Edzel was hitting his ear with
arrive. Hernani and his companions were doomed. It may be true that a stick[60] (according to Jesus), a bamboo pole (according to Edzel).[61]By Edzels own
the Appellant did not aim his gun at the deceased but the same is peu de clarification, [he] was hit at [his] ear, not on [his] head. [62] That act would certainly not be
chose. By his overt acts, in unison with the other Accused and his classified as grave offense. And Edzel is petitioners nephew, hence, not a relative by affinity
kinship with Jonathan and Edzel, We are convinced that he conspired within the same degree contemplated in Article 13, paragraph 5 of the Revised Penal Code.
with Jose Talanquines, Jr. and the other Accused to achieve a common
purpose to kill Hernani and Eduardo.[46] (Emphasis and underscoring WHEREFORE, the petition is DISMISSED and the appellate courts decision
supplied) is AFFIRMED.

Petitioners failure to assist the victims after the shooting reinforces this Courts Costs against petitioner.
appreciation of community of design between him and his co-accused to harm the victims. That
it was he who first officially reported the shooting to the police station[47] does not make him any SO ORDERED.
less a conspirator. Voluntary surrender and non-flight do not conclusively prove
innocence.[48] Besides, a conspirator who wants to extricate himself from criminal liability
usually performs an overt act to dissociate or detach himself from the unlawful plan to commit
the felony while the commission of the felony is in progress.[49] In petitioners case, he reported
the shooting incident after it had already taken place. In legal contemplation, there was no longer
a conspiracy to be repudiated since it had already materialized. [50]

Contrary to petitioners assertion,[51] the appellate court did not err in appreciating the
presence of conspiracy despite its finding that there was no evident premeditation. This Courts
pronouncement that conspiracy presupposes the existence of evident premeditation [52] does not
necessarily imply that the converse that evident premeditation presupposes the existence of a
conspiracy is true. In any event, a link between conspiracy and evident premeditation is
presumed only where the conspiracy is directly established and not where conspiracy is only
implied, as in the present case.[53]

Neither did the appellate court err in finding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present when the offender commits
any of the crimes against the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

What is decisive in treachery is that the attack was executed in such a manner as to
make it impossible for the victim to retaliate.[54] In the case at bar, petitioner, a policeman, and
his co-accused were armed with two M-16 armalites and a revolver. The victim and his
companions were not armed.[55] The attack was sudden and unexpected,[56] and the victim was
already kneeling in surrender when he was shot the second time. Clearly, the victim and his
companion Eduardo had no chance to defend themselves or retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical nor
legal to hold him guilty of treachery.[57] This argument falls in the face of the settled doctrine
that once conspiracy is established, the act of one is the act of all even if not all actually hit and
killed the victim.[58]

35
mistook Jonathan and Edzel for other persons. Jesus blurted out, however, You are just bragging
RICARDO BACABAC, G.R. No. 149372 that you are brave. You are only bullying small children.[4] Petitioner, at that instant, fired his
Petitioner, armalite into the air, while Jose fired his armalite (as if spraying his rifle from right to left) at
Present: the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) was on the move to
strike [the victim] with a piece of wood. Eduardo fell. And so did the victim who was in a
PUNO, C.J.,* kneeling position, and as he was raising his hands in surrender, Jose shot him again.
- versus - QUISUMBING, J., Chairperson,**
CARPIO,*** Meanwhile, Melchor escaped.[5]
CARPIO MORALES,
TINGA, and The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
VELASCO, JR., JJ. pronounced dead on arrival. Eduardo died two hours later.
PEOPLE OF THE
PHILIPPINES, Promulgated: Post-mortem examination showed that the victim sustained two bullet wounds in the
Respondent. September 11, 2007 thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to
maceration of the internal organs due to bullet wounds.[6] Eduardo sustained two bullet wounds
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -x in the thoraco-abdominal region, and died of hemorrhage due to gunshot wounds. [7]

Two Informations for Murder were filed with the Regional Trial Court (RTC)
of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory
DECISION portion of the first Information, docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the


CARPIO MORALES, J.: Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance accused, conspiring, confederating and mutually helping one another to
hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and better realize their purpose, armed with two (2) M16
Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
(Edzel).[1] and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause
or motive, did then and there willfully, unlawfully and feloniously
Jonathan and Edzel left the dance hall. Not long after, the victim and his companions assault, attack and shoot one HERNANI QUIDATO with the firearms
also left and on their way home, they encountered Jonathan and Edzel. It appears that the two they were then provided,
groups then and there figured in a misunderstanding. inflicting upon the latter gunshot wounds on the different parts of his
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, body which caused the immediate and instantaneous death of said
noticed a commotion. He soon saw that Melchor was hugging Edzel, and later tying Jonathan Hernani Quidato.
with his hands. Still later, he saw the victim hit Edzel with a stick.[2] He thus told the victim and
his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon CONTRARY TO LAW.[8]
Eduardo[3] told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded
to Edzels residence to report to his father what he had witnessed. In the meantime, Edzel and The accusatory portion of the second Information, docketed as Criminal Case No.
Jonathan managed to flee. 35784, reads:

The victim and his companions thereafter headed for home in the course of which That on or about the 23rd day of December, 1990, in the
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his Municipality of San Joaquin, Province of Iloilo, Philippines, and within
nephews, and Edzels father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and the jurisdiction of this Honorable Court, the above-named accused,
Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and conspiring, confederating and mutually helping one another to better
Edzel were carrying a piece of wood and a revolver, respectively. realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and
one (1) nickel-plated revolver of unknown make and caliber, with
Jesus thereupon pointed to the victim and his companions as the ones who had deliberate intent and decided purpose to kill, with treachery and evident
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions premeditation and without any justifiable cause or motive, did then and

36
willfully, unlawfully and feloniously assault, attack and shoot one ordinary mitigating circumstance of immediate vindication of a grave
EDUARDO SELIBIO with the firearms they were then provided offense, are hereby sentenced to suffer imprisonment for a period of 4
inflicting upon the latter gunshot wounds on the different parts of his years, 2 months and 1 day, as minimum to 10 years and 1 day as
body which caused the immediate and instantaneous death of said maximum. All the accused are ordered to pay jointly and severally the
Eduardo Selibio. heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for
his wrongful death; P20,000.00 for moral damages; P10,000.00 for
CONTRARY TO LAW.[9] attorneys fees; and the costs of the suit. (Underscoring supplied)

The cases were jointly tried. Accused Jesus Delfin Rosadio, who is detained, is hereby
credited with the number of days he spent under detention, if he is
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of qualified.
conspiracy among petitioner and his co-accused,[10] convicted them of murder qualified by
treachery.[11] The dispositive portion of the decision of the trial court reads: SO ORDERED.[13]

WHEREFORE, premises considered, judgment is hereby While petitioner and his co-accused filed a Notice of Appeal[14] which was given due
rendered as follows: course,[15] only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the
Court of Appeals to dismiss his appeal.[16] The conviction of petitioners co-accused had thus
In Criminal Case No. 35783, all the accused, namely; become final and executory.
Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty Petitioners Motion for Reconsideration[17] of the dismissal of his appeal having been
beyond reasonable doubt of the crime of murder and there being no denied,[18] he filed a Petition for Review with this Court which, by Resolution of October 22,
aggravating circumstances with one mitigating circumstance 1997, directed the Court of Appeals to reinstate petitioners appeal.[19]
[immediate vindication for Jose and Jesus; voluntary surrender for Pat.
Ricardo Bacabac[12]], and applying the indeterminate sentence law, By Decision[20] of June 28, 1999, the Court of Appeals affirmed the trial courts
accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.[21]
Rosadio are hereby sentenced each to suffer imprisonment for a period
of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as The trial court thereafter issued a February 7, 2000 Order directing the issuance of
maximum; while accused Edzel Talanquines and Jonathan Bacabac warrants for the arrest of the accused.[22] Except petitioner, all were arrested.[23]
who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a On February 24, 2000, petitioner filed before the appellate court a Petition for Relief
grave offense are hereby sentenced each to suffer imprisonment for a from Judgment, Order, and/or Denial of Appeal[24] which was granted,[25] hence, the Entry of
period of four (4) years, 2 months, and 1 day, as minimum, to 10 years Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a
and 1 day as maximum. All the accused are ordered to pay jointly and Motion for Reconsideration[26] of the appellate courts June 28, 1999 Decision which was denied
severally the heirs of the deceased Hernani Quidato, the amount by Resolution of August 8, 2001;[27] hence, the present Petition for Review on Certiorari.[28]
of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the Petitioner assails the Court of Appeals decision as follows:
suit. (Underscoring supplied)
First: Contrary to its conclusion on the basis of the facts of
In Criminal Case No. 35784, judgment is hereby rendered as the case, Petitioner may not be deemed to be in conspiracy with the
follows: other Accused.
All the accused, namely; Jose Talanquines, Jr., Edzel
Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin Second: Contrary to its conclusion, there was no treachery.
Rosadio are hereby found guilty of the crime of Murder and there being
no aggravating circumstance with one mitigating circumstance, accused Third: Contrary to its conclusion, Petitioner, assuming in
Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are gratis argumenti the correctness of the pronouncement of guilt, should
hereby sentenced each to suffer imprisonment for a period of 10 years have been credited with the mitigating circumstance of immediate
and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum; vindication of a grave offense, in the same manner that the other
while accused Edzel Talanquines and Jonathan Bacabac who are Accused were so credited.
entitled to the privileged mitigating circumstance of minority and the

37
Fourth: Contrary to its conclusion, the guilt of the Petitioner [The petitioner] affirms that he was at the scene of the
has not been proved beyond reasonable doubt; hence, by the equipoise incident and merely fired a warning shot into the air to respond to a
rule, should have been acquitted. public disturbance, and his firing a warning shot into the air was
intended to avert further acts of violence; both circumstances,
Fifth: Contrary to its conclusion, Petitioner is not civilly therefore, being merely and solely in pursuance to his avowed duty to
liable.[29] (Emphasis in the original) keep peace and order in the community and clearly not to be part of any
alleged community of design to kill the victims.
The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised
before the appellate court.[30] xxxx
Another indication that there was no unity of purpose and
During the pendency of the present petition, petitioner, through counsel, filed before of execution in so far as the Petitioner is concerned is his conduct after
the trial court an Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabacs Motion for Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that
Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the after that lone warning shot, closely followed by Jose Talanquines, Jr.
accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat. firing at the victims, the petitioner merely stood there and did nothing
Ricardo Bacabac Only is Concerned).[31] The trial court denied[32] the motion as it did and said nothing. This is obviously because he was himself stunned by
deny[33] petitioners motion for reconsideration,[34] drawing petitioner to file before this Court the fast happening of events. The investigating police officer, PO3
on October 5, 2006 a Motion to Vacate Order for the Arrest of the Accused and the Warrant of NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts
Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City.[35] that ten (10) minutes after the incident, they (the police) responded and
upon arrival thereat, learned that the Petitioner already reported the
In his Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest incident to their station and that it was the Petitioner who first
Issued by the Regional Trial Court . . . , petitioner argues that reported the shooting incident officially to their office. The
aforedescribed proven conduct of the Petitioner during and immediately
[T]he basis of the RTCs Order of February 7, 2000 was after the incident in question are, Petitioner respectfully
the Entry of Judgment by the Court of Appeals dated 25 November submits, inconsistent with what a co-conspirators is [sic] wont to do
1999.[36] BUT THE SAID ENTRY OF JUDGMENT was under the circumstances. It is submitted instead that his conduct on the
ALREADY VACATED and SET-ASIDE BY THE COURT OF contrary underscores the lack or want of community of purpose and
APPEALS ITSELF ON ITS RESOLUTION DATED 13 interest in the killing incident to make him criminally liable under the
DECEMBER 2000. Therefore, the RTCs Order of 7 February conspiracy theory.
2000 was ipso facto vacated.[37] (Emphasis in the original)
Finally, in connection with the conspiracy theory and anent
and that the finding below that the Petitioner and his Co-Accused waited for
[T]he second sentence of Section 7, Rule 65 of the Rules of the victims arrival at the corner of St. Domingo and M.H. del Pilar
Court cited by the Order of 13 July 2006 does not apply to the case at Streets, it is asserted that the same runs counter to the natural and
bench because the main case on the merits which originated in the ordinary experience of things and event [sic], and raises a cloud of
RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as doubt over the correctness of the lower Courts decision which are based
CA-G.R. No. 16348 and is now pending in the Supreme Court (Third on the Prosecutions version of the incident.Since, according to the
Division) as G.R. No. 149372 because of the Petition for Review On prosecution, the Petitioner and the other Accused were armed with high-
Certiorari filed by Movant herein x x x.THE MAIN CASE IS NO powered firearms (armalite rifles and revolver); they waited at the
LONGER PENDING IN THIS HONORABLE COURT stated street corner for thirty (30) minutes; the stated street corner
[sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO was well lighted; accompanying them were the wife and two (2)
REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY young daughters of Jose Talanquines, Jr; and they stood there
2000.[38] (Emphasis in the original) conversing with the group of Elston Saquian [a prosecution witness
who testified that he saw the petitioner and his co-accused waiting for
the victims[39]] and admitting that they were waiting for certain persons
As this Court hereby affirms petitioners conviction, resolution of his Motion to Vacate who mauled Edzel Talanquines and Jonathan Bacabac.
. . . is rendered unnecessary.
In other words, the lower Courts gave credence to
Petitioner, denying the presence of conspiracy on his part, argues: an improbable scenario painting the Petitioner, known to the place as
a police officer, and co-accused to have recklessly and uncaringly

38
displayed, for all and sundry to see, their alleged criminal intentions. It and his companions. Almost simultaneously, the Appellant fired his
would indeed be the height of foolishness for them to be by a well gun into the air as Jonathan lunged at Hernani and his companions
lighted street corner, perhaps even well traversed, conspicuously fully to hit them with the piece of wood. Almost simultaneously, Jose
armed, waiting for persons who were not even sure would pass by such Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them
place, and apparently willing to admit to other passers-by that they were and, in the process, hitting his nephew, Jonathan Bacabac. The
indeed waiting for the persons who mauled Edzel and Jonathan, and Appellant did not lift a finger when Jose fired at and shot Hernani
consequently give out the impression that they were intending to and Eduardo. He stood by as Jose shot Hernani anew when the
retaliatewhich is what the lower Courts regrettably observed. latter on bended knees, raised his two (2) hands, in surrender. The
Appellant and the other Accused then fled from the scene, with
xxxx their respective firearms and weapons. The overt act of the Accused
Likewise, the presence of the wife and two (2) young and the Appellant in conjunto, constitute proof of conspiracy.
daughters of the accused Jose Talanquines, Jr. at the scene of the
alleged crimes, as testified to by the prosecution witnesses and believed The Appellant and Jose were armed with high-powered
by the lower Courts, assumes importance in the matter of determining guns. Jesus was armed with a revolver. The nature of the weapons of
which version of the incident is correct. the Accused evinced a common desire to do away with the culprits,
not merely to scare them.
The Prosecution places the wife and the daughters with the
alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets, What is outrageous is that the Appellant was a
also waiting during the same length of time as the men for the (probable) policeman. He could very well have just arrested the culprits as
arrival of the group of the victims. But such a scenario is, likewise, they sauntered by and brought them to the police station for the
unnatural. Because, will the male relatives unhesitatingly expose requisite investigation and the institution of criminal complaints, if
their defenseless womenfolk to imminent danger?[40] (Citations warranted. He could have dissuaded Jose and Jesus and assured
omitted, emphasis in the original, and underscoring supplied) them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16
armalite x x x. [T]he three (3) positioned themselves at the corner of
Petitioners argument that it is improbable for him and his co-accused to have waited M.H. del Pilar and Sto. Domingo Streets for the culprits to
for the victims at a well-lighted street corner does not persuade. Crimes are known to have been arrive. Hernani and his companions were doomed. It may be true that
brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace the Appellant did not aim his gun at the deceased but the same is peu de
officers, completely impervious of the inevitability of criminal prosecution and conviction. [41] chose. By his overt acts, in unison with the other Accused and his
kinship with Jonathan and Edzel, We are convinced that he conspired
From the mode and manner in which the crimes were perpetrated, the conduct of with Jose Talanquines, Jr. and the other Accused to achieve a common
petitioner before, during, and after their commission, [42] and the conditions attendant purpose to kill Hernani and Eduardo.[46] (Emphasis and underscoring
thereto,[43] conspiracy, which need not be proved by direct evidence, is deduced.[44] Petitioners supplied)
firing of his armalite could not have amounted to none other than lending moral assistance to his
co-accused, thereby indicating the presence of conspiracy.[45] Petitioners failure to assist the victims after the shooting reinforces this Courts
appreciation of community of design between him and his co-accused to harm the victims. That
As the appellate court observed which is quoted with approval: it was he who first officially reported the shooting to the police station[47] does not make him any
In the present recourse, when informed that Jonathan and less a conspirator. Voluntary surrender and non-flight do not conclusively prove
Edzel were being manhandled and assaulted by male innocence.[48] Besides, a conspirator who wants to extricate himself from criminal liability
persons, Appellant armed himself with an M-16 armalite. Jose usually performs an overt act to dissociate or detach himself from the unlawful plan to commit
Talanquines, Jr., the father of Edzel, followed suit and armed himself the felony while the commission of the felony is in progress.[49] In petitioners case, he reported
with an M-16 armalite gun. Jesus armed himself with a revolver while the shooting incident after it had already taken place. In legal contemplation, there was no longer
Jonathan armed himself with a piece of wood. Jonathan and Edzel were a conspiracy to be repudiated since it had already materialized. [50]
nephews of the Appellant who resided in the house of Jose Talanquines,
Jr. All the Accused including the Appellant then proceeded Contrary to petitioners assertion,[51] the appellate court did not err in appreciating the
posthaste to the corner of M.H. del Pilar corner Sto. Domingo presence of conspiracy despite its finding that there was no evident premeditation. This Courts
Streets where the culprits would pass by and waited for the advent pronouncement that conspiracy presupposes the existence of evident premeditation[52] does not
of the culprits. Even as Hernani apologized for his and his necessarily imply that the converse that evident premeditation presupposes the existence of a
companions assault of Edzel and Jonathan, Jesus berated Hernani conspiracy is true. In any event, a link between conspiracy and evident premeditation is

39
presumed only where the conspiracy is directly established and not where conspiracy is only
implied, as in the present case.[53]

Neither did the appellate court err in finding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present when the offender commits
any of the crimes against the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

What is decisive in treachery is that the attack was executed in such a manner as to
make it impossible for the victim to retaliate.[54] In the case at bar, petitioner, a policeman, and
his co-accused were armed with two M-16 armalites and a revolver. The victim and his
companions were not armed.[55] The attack was sudden and unexpected,[56] and the victim was
already kneeling in surrender when he was shot the second time. Clearly, the victim and his
companion Eduardo had no chance to defend themselves or retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical nor
legal to hold him guilty of treachery.[57] This argument falls in the face of the settled doctrine
that once conspiracy is established, the act of one is the act of all even if not all actually hit and
killed the victim.[58]

As for petitioners invocation of the mitigating circumstance of immediate vindication


of a grave offense, it fails. For such mitigating circumstance to be credited, the act should be,
following Article 13, paragraph 5 of the Revised Penal Code, committed in the immediate
vindication of a grave offense to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by
affinity within the same degree.[59] The offense committed on Edzel was hitting his ear with
a stick[60] (according to Jesus), a bamboo pole (according to Edzel).[61]By Edzels own
clarification, [he] was hit at [his] ear, not on [his] head. [62] That act would certainly not be
classified as grave offense. And Edzel is petitioners nephew, hence, not a relative by affinity
within the same degree contemplated in Article 13, paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate courts decision


is AFFIRMED.

Costs against petitioner.

SO ORDERED.

40
Moro dialect for a few minutes, asked the corporal to come out of said room; in response
thereto the corporal appeared at the door of the room, and after a short conversation, Current
approached Hicks and they shook hands, when Hicks asked him the following question: "Did I
not tell you to leave this woman alone?," to which Current replied: "That is all right, she told
me that she did not want to live with you any longer, but if she wishes, she may quit me, and
you can live with her." The accused then replied: "God damn, I have made up my mind;" and
as Corporal Current saw that Hicks, when, he said this, was drawing a revolver from his
trousers' pocket, he caught him by the hand, but the latter, snatching his hand roughly away,
said: "Don't do that," whereupon Current jumped into the room, hiding himself behind the
partition, just as Hicks drew his revolver and fired at Agustina Sola who was close by in
the sala of the house. The bullet struck her in the left side of the breast; she fell to the ground,
and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance
and wrested the weapon from the hand of the accused. The latter immediately fled from the
house and gave himself up to the chief of police of the town, H. L. Martin, asking him to lock
him up in jail; and, when a few minutes later a policeman came running in and reported that
Hicks had fired a shot at Agustina, the said chief of police caused Hicks to be arrested. The
latter, when once in jail, threw eight revolver cartridges out of the window; these were picked
up by a policeman who reported the occurrence and delivered the cartridges to his chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint
with the Court of First Instance of said province charging Augustus Hicks with the crime of
murder. Proceedings were instituted, the trial court, after hearing the evidence adduced,
entered judgment on the 10th of September of the same year, sentencing the accused to the
penalty of death, to be executed according to the law, to indemnify the heirs of the deceased in
the sum of P1,000, and to pay the costs. The case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case, constitute the crime
of murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina
Sola met a violent death, with the qualifying circumstance of treachery (alevosia), she being
suddenly and roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at
close, if not point blank range, while the injured woman was unarmed and unprepared, and at
a time when she was listening to a conversation, in which she was concerned, between her
aggressor and third person, and after usual and customary words had passed between her and
G.R. No. 4971 September 23, 1909 her aggressor. From all of the foregoing it is logically inferred that means, manners, and forms
THE UNITED STATES, plaintiff, were employed in attack that directly and specially insured the consummation of the crime
vs. without such risk to the author thereof as might have been offered by the victim who, owing to
AUGUSTUS HICKS, defendant. the suddenness of the attack, was doubtless unable to flee from the place where she was
Office of the Solicitor-General Harvey for plaintiff. standing, or even escape or divert the weapon.
Jose Robles Lahesa for defendant. The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory
TORRES, J.: allegations which were certainly not borne out at the trial, the evidence in the case is
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro- absolutely at variance therewith and conclusively establishes, beyond peradventure of doubt,
American, and Agustina Sola, a Christian Moro woman, illicitly lived together in the his culpability as the sole fully convicted author of the violent and treacherous death of his
municipality of Parang, Cotabato, Moro Province, until trouble arising between them in the former mistress, Agustina Sola.
last-mentioned month of 1907, Agustina quitted Hick's house, and, separation from him, went It is alleged by the accused that when he withdrew his hand from that of Current, who had
to live with her brother-in-law, Luis Corrales. A few days later she contracted new relations seized him, he fell backward but managed to support himself on his two hands, and when he
with another negro named Wallace Current, a corporal in the Army who then went to live in got up again the said corporal threatened him with a revolver thrust into his face; whereupon
the said house. he also drew his revolver, just as Edward Robinson caught him from behind, when his
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a revolver went off, the bullet striking the deceased.
soldier named Lloyd Nickens called at said house, and from the sala called out to his old This allegation appears to be at variance with the testimony of the witnesses Wallace Current,
mistress who was in her room with Corporal Current, and after conversing with her in the Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially

41
with that of the second and third, who witnessed the actual firing of the shot by the aggressor
at the deceased, as shown by the fact that Robinson immediately approached the accused in
order to take his weapon away from him which he succeeded in doing after a brief struggle,
whereupon the aggressor ran out of the house. Thus, the shot that struck the deceased in the
breast and caused her death was not due to an accident but to a willful and premeditated act on
the part of the aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the presence of
other aggravating circumstances, such as premeditation, and the fact that the crime was
committed in the dwelling of the deceased should be taken into consideration. The last-
mentioned circumstances appears proven from the testimony of several witnesses who were
examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as committed with
treachery, the circumstance of premeditation should only be considered as a merely generic
one. Premeditation is, however, manifest and evident by reason of the open acts executed by
the accused. According to the testimony of Charles Gatchery and Eugenio R. Whited, Hicks
asked leave from the former to be absent from the canteen where he was working on the
morning of the day when the affray occurred, alleging that his mind was unsettled and that he
feared getting into trouble. It is also shown by the fact that Whited, who was in Hicks' house
about noon upon the latter's invitation, and while both where drinking gin, and while the
revolver, the instrument of the crime, was lying on the table on which were also several loaded
cartridges, heard the accused repeatedly say, referring to the deceased, that her time had come,
adding that he would rather see her dead than in the arms of another man, and when the
accused went to bed apparently very much worried, and refusing to answer when called, the
witness left him. On the day after the crime the police found on a table in the cuprit's house
several loaded cartridges, a bottle of oil and a piece of cloth used undoubtedly for cleaning the
revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be a proper manner, disguising his intention
and claiming her by his apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating circumstances is
present, not even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of
reason and self-control produced by jealousy as alleged by the defense, inasmuch as the only
causes which mitigate the criminal responsibility for the loss of self-control are such as
originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral
passions.
From the foregoing considerations, and as the judgment appealed from is in accordance with
the law, it is our opinion that the same should be affirmed, as we do hereby affirm it with
costs, provided, however, that the death penalty shall be executed according to the law in
force, and that in the event of a pardon being granted, the culprit shall suffer the accessory
penalties of article 53 of the Penal Code unless the same be expressly remitted in the pardon.
So ordered.

42
This is an appeal from the decision of the Regional Trial Court, Branch 26, Surallah, South
Cotabato, finding Eduardo Gelaver, guilty beyond reasonable doubt of Parricide (Art. 246,
Revised Penal Code) and sentencing him to "suffer the penalty of reclusion perpetua and to
indemnify the heirs of his wife, Victoria Pacinabao, in the amount of P30,000.00." (Decision,
p. 7; Rollo, p. 28)
In the Information filed with the trial court and docketed as Criminal Case No. 643, Eduardo
Gelaver, was charged with Parricide committed as follows:
That on or about the 24th day of March, 1988 at 7:00 o'clock in the
morning, more or less, in Barangay Poblacion, Municipality of Sto. Nio,
Province of South Cotabato, Philippines, and within the jurisdiction of this
Honorable Court, said accused with intent to kill and being then armed
with a knife did then and there wilfully, unlawfully and feloniously attack,
assault and stab one VICTORIA GELAVER Y PACINABAO, his
lawfully wedded wife, with the use of the said knife hitting her and
wounding her on the different parts of her body and as a result thereof said
Victoria Gelaver y Pacinabao died instantly. (Rollo, p. 7)
At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on the merits
ensued.
The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of March 24, 1988,
he heard shouts coming from the house of Tessie Lampedario in Barangay Poblacion,
Municipality of Sto. Nio, South Cotabato. He saw the appellant and a woman having a heated
argument. Thereafter, appellant held the neck of the victim, dragged her and with a knife on
his right hand, stabbed the latter three times on the breast. Appellant then went out of the gate
and fled in the direction of the public market of Sto Nio. (TSN, June 27, 1988, pp. 7-10)
Eduardo Gelaver admitted killing his wife but claimed that he did so after catching her having
carnal act with her paramour.
Appellant testified that he was married to Victoria Pacinabao, with whom he begot four
children. (TSN, December 19, 1988, p. 9) They lived together at their conjugal home until July
3, l987 when she abandoned her family to live with her paramour. (TSN, December 19, 1988,
pp. 10-11) He did not know the name of his wife's paramour nor the name of the owner of the
house where his wife and her paramour had lived together.
Appellant further testified that on March 24, 1988, after he was informed by his daughter that
his wife and paramour were living at a house in front of the Sto. Nio Catholic Church,
appellant immediately repaired to that place. Upon entering the house, he saw his wife lying
on her back and her paramour on top of her, having sexual intercourse.
Appellants version of the killing was that when his wife saw him, she pushed her paramour
aside. Her paramour immediately stood up, took a knife placed on top of the bedside table and
attacked appellant. The latter was able to wrest possession of the knife and then used it against
the paramour, who evaded the thrusts of the appellant by hiding behind the victim. Thus, it
was the victim who received the stab intended for the paramour.
G.R. No. 95357 June 9, 1993 As to why he continued to stab his wife, appellant said that his mind had been "dimmed" or
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, overpowered by passion and obfuscation by the sight of his wife having carnal act with her
vs. paramour.
EDUARDO GELAVER, accused-appellant. Appellant faults the trial court in imposing the penalty of reclusion perpetua for the crime of
The Solicitor General for plaintiff-appellee. parricide, instead of the penalty of destierro for killing under exceptional circumstances
Joffrey L. Montefrio for accused-appellant. pursuant to Article 247 of the Revised Penal Code. (Appellant's Brief, p. 1)
Appellant's contention is bereft of merit.
QUIASON, J.: Before Article 247 of the Revised Penal Code can be operative, the following requisites must
be compresent:

43
1. That a legally married person or a parent surprises his spouse or his However, the trial court erred in finding the presence of the mitigating circumstance of
daughter, the latter under 18 years of age and living with him, in the act of passion or obfuscation "as a result of his (appellant's) wife leaving their home and their
committing sexual intercourse with another person. children." (Rollo, p. 28) Before this circumstance may be taken into consideration, it is
2. That he or she kills any or both of them or inflicts upon any or both of necessary to establish the existence of an unlawful act sufficient to produce such a condition
them any serious physical injury in the act or immediately thereafter. of mind. The act producing the obfuscation must not be far removed from the commission of
3. That he has not promoted or facilitated the prostitution of his wife or the crime by a considerable length of time, during which the accused might have recovered his
daughter, or that he or she has not consented to the infidelity of the other equanimity. (I Revised Penal Code, Aquino, 1987 ed., p. 267) The crime was committed
spouse. (II Reyes, The Revised Penal Code, 12th Ed., pp. 452-53; almost a year after the victim had abandoned the conjugal dwelling.
Emphasis supplied) WHEREFORE, the Judgment appealed from is AFFIRMED except with the
These requisites must be established by the defense. MODIFICATION that the indemnity, be increased to P50,000.00 (People v. Sison, 189 700
Implicit in this exceptional circumstance is that the death caused must be the proximate result [1990]).
of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity SO ORDERED.
(People v. Abarca, 153 SCRA 735 [1987]). In this case, appellant wants this Court to believe
that he caught his wife and her paramour in sexual intercourse. However, his testimony is
tainted with inconsistencies which leads Us to believe otherwise.
Appellant's failure to inform the police that he killed his wife when he saw her having sexual
intercourse with her paramour, devastated in one fell swoop whatever credibility could
possibly be accorded to his version of the incident. As noted by the Solicitor General, the
natural thing for a person to do under the circumstances was to report to the police the reason
for killing his wife. (Appellee's Brief, p. 8; Rollo, p. 76) Appellant's contention that he thought
that only the killing itself should be blottered, reserving the details to the defense lawyer,
sounded like a spoonfed afterthought.
If there was a naked man with the victim, he would have had no time to get dressed because he
was then under attack by appellant. There would then have been the spectacle of a man in the
nude running in the streets.
The trial court noted several contradictions in appellant's testimony. Appellant claimed that he
chased the paramour but was unable to overtake him and at the same time, he testified that the
paramour stayed in the room and used the victim as a shield against appellant's attack with the
knife. Appellant also claimed that upon entering the gate of the fence, he saw his wife and her
paramour having carnal act and at the same breath, he testified that he saw his wife and her
paramour only when he opened the main door of the house.
The trial court found as contrary to human nature appellant's claims that he went to confront
the paramour of his wife unarmed and that he never learned the name of the paramour inspite
of the fact that his wife, allegedly, had been living with the paramour in the same town for
almost a year before the incident.
Absent any substantial proof that the trial court's decision was based on speculation, the same
must be accorded full consideration (People v. Martinada, 194 SCRA 36 [1991) and should
not be disturbed on appeal (Mercury Drug v. CIR, 56 SCRA 694 [1974]).
Appellant's claim that on the day prior to his killing of the victim, his daughter Sheryl had
confided to him that her mother was living with a paramour at the house in front of the Sto.
Nio Catholic Church was belied by Sheryl herself. In her testimony, she stated that she did
not know the house where the crime was committed and she had not gone to that place. She
further testified that she had not seen her mother in any other house except that of her
grandfather's. (TSN, January 17, 1989, p. 5)
The trial court was correct in finding the presence of the mitigating circumstance of voluntary
surrender to the authorities. Appellant, immediately after committing the offense, voluntarily
placed himself at the disposal of the police authorities as evidenced by the entry in the official
police blotter.
(Exh. "1")

44
G.R. No. L-18792 February 28, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO BELLO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Ferdinand E. Marcos for defendant-appellant.
REYES, J.B.L., J.:
Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case No.
592-G, for murder.
The information filed against the accused alleged four (4) aggravating circumstances, namely:
treachery, evident premeditation, nighttime, and superior strength. The trial court made a
finding of "treachery, evident premeditation and in cold blood and without any provocation";
however, the dispositive portion of the appealed decision states as follows:
... the Court finds the accused Guillermo Bello guilty beyond reasonable doubt of
the crime of murder defined an punished by Article 248 of the Revised Penal Code
with the aggravating circumstances of (1) nighttime, (2) abuse of confidence and
obvious ungratefulness, (3) superior strength offset only by his surrender to the
authorities and hereby sentence him to DIE by electrocution in the manner provided
by law ordering his heirs, after his death, to indemnify the heirs o the deceased
Alicia Cervantes in the sum of P3,000.00, wit costs.
The record bears out, the Office of the Solicitor General does not challenge, and the
counsel de oficio agree with, and adopts, the following findings of fact of the trial court:
From the evidence adduced at the hearing of the case, it has been established to the
satisfaction of the Court (1) that on September 17, 1954, the accused Guillermo
Bello, a widower who at that time was about 54 years of age, took a young peasant
lady named Alicia Cervantes, about 24 years old his common-law wife; (2) that
from that day they lived together apparently in blissful harmony as man and wife
without the benefit of marriage bearing, however, no child, ...; (3) that on May 15,
1958, the accused who had no means of substantial livelihood except that of making
"kaingin" and who apparently was then in financial straits induced Alicia Cervantes
to accept an employment as entertainer in a bar and restaurant establishment known
as Maring's Place situated the corner of Aguinaldo and Bonifacio Streets, Gumaca,
Quezon (4) that Alicia Cervantes entered the service of Maring's Place on that day
as a public hostess; (5) that the accused being infatuated with his young bride used
to watch her movements in Maring's Place everyday; (6) that on May 16 he saw
Alicia enter the Gumaca theater in Gumaca with a man whom the accused found
later was caressing his common-law wife inside the movie house; (7) that being in
love with her he took her out from the movie and warned her to be more discreet in
her personal conduct in Gumaca; (8) that Alicia Cervantes continued to serve at
Maring's Place as a public hostess; (9) that on May 20, 1958, at 3:00 p.m. the
accused went to Maring's Place to ask for some money from Alicia; (10) that
Maring, the owner of the place, and Alicia refused to give money, Maring telling
him to forget Alicia completely because he was already an old man, an invalid
besides and should stop bothering Alicia; (11) that having failed to obtain financial
assistance from his paramour, accused left the place somewhat despondent and went
home passing Bonifacio Street; (12) that on his way home he met the brothers Justo
Marasigan and Luis Marasigan who greeted the accused, Luis saying to his brother
Justo the following: "So this is the man whose wife is being used by Maring for
EN BANC white slave trade"; (13) that these remarks of Luis Marasigan naturally brought grief

45
to the accused, to drown which he sought Paty's place in Gumaca where he drank 5 Since the aggravating circumstances of treachery, evident premeditation, and abuse of superior
glasses of tuba; (14) that from Paty's place he went to Realistic Studio which is in strength, which could have qualified the crime as murder, were not present, and since the
front of Maring's Place and from there watched the movements of Alicia; (15) that at generic aggravating circumstances of nighttime and abuse of confidence and obvious
about 9:00 o'clock that night he entered Maring's Place and without much ado held ungratefulness have not been established, the accused can only be liable for homicide.
Alicia from behind with his left hand in the manner of a boa strangulating its prey Both defense and prosecution agree that the accused-appellant is entitled to the benefit of the
and with his right hand stabbed Alicia several times with a balisong; (16) that seeing mitigating circumstances of voluntary surrender to the authorities. The remaining area of
Alicia fallen on the ground and believing her to be mortally wounded, he fled and conflict is reduced to whether the accused may lay claim to a second mitigating circumstance,
went to the municipal building and there surrendered himself to the police of that of having acted on a provocation sufficiently strong to cause passion and obfuscation. The
Gumaca. defense submits that accused is so entitled, because the deceased's flat rejection of petitioner's
Both the prosecution and the defense also agree that the crime committed is not murder but entreaties for her to quit her calling as a hostess and return to their former relation, aggravated
only homicide, but they disagree in the qualifying or aggravating and mitigating by her sneering statement that the accused was penniless and invalid (baldado), provoked the
circumstances. The prosecution holds that the crime is homicide, aggravated by abuse of appellant, as he testified, into losing his head and stabbing the deceased. The state disputes the
superior strength, but offset by voluntary surrender. On the other hand, the defense maintains claim primarily on the strength of the rule that passion and obfuscation can not be considered
that the accused is entitled to the additional mitigating circumstance of passion and when "arising from vicious, unworthy, and immoral passions" (U.S. vs. Hicks, 14 Phil. 217).
obfuscation. The trial court held a different conclusion, as earlier stated. We are inclined to agree with the defense, having due regard to the circumstances disclosed by
While it cannot be denied that Alicia was stabbed at the back, the wound was but a part and the record. It will be recalled that the lower court found that the accused had previously
continuation of the aggression. The four (4) stab wounds (the 3 others were in the breast, reproved the deceased for allowing herself to be caressed by a stranger. Her loose conduct was
hypogastric region, and in the left wrist as shown in the certificate of the Municipal Health forcibly driven home to the accused by Marasigan's remark on the very day of the crime that
Officer) were inflicted indiscriminately, without regard as to which portion of her body was the accused was the husband "whose wife was being used by Maring for purposes of
the subject of attack. The trial court itself found that the stab in the back was inflicted as Alicia prostitution," a remark that so deeply wounded the appellant's feelings that he was driven to
was running away. For this reason, treachery cannot be imputed (People v. Caete, 44 Phil. consume a large amount of wine (tuba) before visiting Alicia (the deceased) to plead with her
478). to leave her work. Alicia's insulting refusal to renew her liaison with the accused, therefore,
Evident premeditation was, likewise, not established. The accused had been carrying was not motivated by any desire to lead a chaste life henceforth, but showed her determination
a balisong with him for a long time as a precaution against drunkards, and without any present to pursue a lucrative profession that permitted her to distribute her favors indiscriminately. We
plan or intent to use it against his common-law wife. That he watched her movements daily can not see how the accused's insistence that she live with him again, and his rage at her
manifest his jealous character, but there is no evidence that from this jealousy sprouted a plan rejection of the proposal, can be properly qualified as arising from immoral and unworthy
to snuff out her life.1wph1.t passions. Even without benefit of wedlock, a monogamous liaison appears morally of a higher
The evidence does not show, either, any superior strength on the part of the accused, and, not level than gainful promiscuity.
possessing it, he could not take advantage of it. True that he was armed with a balisong, but he WHEREFORE, the appealed decision should be, and hereby is, modified. This Court finds the
was old and baldado (invalid), while Alicia was in the prime of her youth, and not infirm. The accused-appellant, Guillermo Bello, guilty beyond reasonable doubt of the crime of homicide,
facts are not sufficient to draw a comparison of their relative strength. Possession of attended by two (2) mitigating circumstances: (a) passion and obfuscation, and (b) voluntary
a balisong gives an aggressor a formidable advantage over the unarmed victim, but the surrender, and, therefore, imposes upon him an indeterminate sentence ranging from a
physique of the aggressor ought also to be considered. At any rate, taking into account the minimum of six (6) years and one (1) day of prision mayor to a maximum of ten (10) years
emotional excitement of the accused, it is not clearly shown that there was "intencion of prision mayor; orders him also to personally indemnify the heirs of Alicia Cervantes in the
deliberada de prevalerse de la superioridad o aprovecharse intencionadamente de la misma" amount of P6,000.00, and to pay the costs. So ordered.
(Sent. TS. 5 Oct. 1906), i.e., deliberate intent to take advantage of superior strength. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon,
The crime was committed at nighttime, but the accused did not seek or take advantage of it the Regala and Makalintal, JJ., concur.
better to accomplish his purpose. In fact, Maring's Place was bright and well-lighted; hence,
the circumstance did not aggravate the crime. (U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs.
Bonete, 40 Phil. 958.)
We can not understand how the trial court came to couple the crime with the aggravating
circumstance of abuse of confidence and obvious ungratefulness. There is nothing to show that
the assailant and his common-law wife reposed in one another any special confidence that
could be abused, or any gratitude owed by one to the other that ought to be respected, and
which would bear any relation, or connection, with the crime committed. None is inferable
from the fact that the accused was much older than his victim, or that he was penniless while
she was able to earn a living and occasionally gave him money, since both lived together as
husband and wife. Neither is it shown that the accused took advantage of any such special
confidence in order to carry out the crime.

46
G.R. No. L-45284 December 29, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FRANCISCO DE LA CRUZ, ET AL., defendants.
FRANCISCO DE LA CRUZ, appellant.
Marciano Sayoc for appellant.
Undersecretary of Justice Melencio for appellee.

AVANCEA, C.J.:
This case was prosecuted upon the following information:
That on or about the 30th day of May, 1936, in the City of Manila, Philippine Islands, the said
accused Francisco de la Cruz, Fernando Legaspi and three other persons whose identities are
still unknown, confederating together and helping one another, did then and there willfully,
unlawfully and feloniously, and with intent of gain, attack, assault and use personal violence
upon one Yu Wan, by then and there giving him blows with his fist on the face and other parts
of the body, thereby inflicting upon him physical injuries which have required and will require
medical attendance for a period of more than one but less than nine days and have prevented
and will prevent the said Yu Wan from engaging in his customary labor for the same period of
time; and afterwards took, stole and carried away with him without the consent of the owner
thereof the following personal property, to wit:
Twenty-six (P26) pesos in cash, consisting of different denominations ................
P26.00
belonging to said Yu Wan, to the damage and prejudice of the said owner in the said sum of
P26, Philippine currency.
That the said accused Francisco de la Cruz is a habitual delinquent under the
provisions of the Revised Penal Code, he having been previously convicted once of
the crime of theft and twice of the crime of estafa, by virtue of final judgments
rendered by competent courts, having been last convicted on July 24, 1933.
Upon arraignment, the accused pleaded not guilty.
During the trial and after two witnesses for the prosecution had testified, the accused withdrew
their plea of not guilty, substituting it by that of guilty. The court sentenced Francisco de la
Cruz to six months and one day of prision correccional and, considering him a habitual
delinquent, sentenced him furthermore to the additional penalty of six years and one day
of prision mayor. The other accused Fernando Legaspi was sentenced to ten months of prision
correccional. Francisco de la Cruz appealed for this sentence.

47
The facts charged constitute the crime of robbery defined in article 294 of the Revised Penal
Code and punished by the penalty of prision correccional to prision mayor in its medium
period.
The allegations of the information with respect to the appellant Francisco de la Cruz are not
sufficient to consider him a habitual delinquent (People vs. Venus, p. 435, ante). However, the
facts alleged in this respect constitute the aggravating circumstance of recidivism.lawphi1.net
On the other hand, the appellant's plea of guilty does not constitute a mitigating circumstance
under article 13, subsection 7, of the Revised Penal Code, which requires that this plea be
spontaneous and that it be made prior to the presentation of evidence by the prosecution. The
confession of guilt, although subsequent to the consummation of the crime and entirely alien
to its development, constitutes a cause for the mitigation of the penalty, not because it is a
circumstance modifying criminal responsibility already incurred and in the evolution of which
it has not intervened absolutely, but because, as an act of repentance and respect for the law, it
indicates a moral disposition in the accused favorable to his reform. It is clear that these
benefits are not deserved by the accused who submits to the law only after the presentation of
some evidence for the prosecution, believing that in the end the trial will result in his
conviction by virtue thereof.
Wherefore, eliminating the additional penalty by reason of habitual delinquency, considering G.R. Nos. 54344-45 January 10, 1994
the presence of an aggravating circumstance in the commission of the crime without any PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
mitigating circumstance, and applying the Indeterminate Sentence Law, the appellant is vs.
sentenced to the penalty of from six months of arresto mayor, as minimum, to six years, ten WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused.
months and one day of prision mayor, as maximum, affirming the appealed sentence in all WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants.
other respects, with the costs. So ordered. The Solicitor General for plaintiff-appellee.
Sixto P. Demaisip for accused-appellants.

BELLOSILLO, J.:
The coup de main on the Oro brood sent two brothers to the mortuary and a third to medical
care. The bloodbath resulted in the brothers Willie, Gildo and Celso, all surnamed Amaguin,
being charged with the murder of the Oro brothers Pacifico and Diosdado. Willie and Gildo
went through trial while Celso to this date remains a fugitive.
The culpability of the Amaguin brothers was recounted by Hernando Oro, a younger brother
of Pacifico and Diosdado. Hernando narrated that in the afternoon of 24 May 1977, he and his
brothers Diosdado and Danilo, brother-in-law Rafael Candelaria, an first cousin Sergio
Argonzola were invited by their eldest brother Pacifico to the latter's house in the interior of
Divinagracia Street, La Paz, Iloilo City, for a small gathering to celebrate the town fiesta. 1 At
about five o'clock in the afternoon, after partaking of the meager preparations put together by
Pacifico, he (Hernando) and his companions decided to leave. They were accompanied by
their host to the plaza where they could get a ride.
On their way, while traversing Divinagracia Street, Pacifico was called by accused Celso
Amaguin : "Pare, come here." But Pacifico answered : "Pare, not yet because I have to
conduct my guests first." Immediately, Celso, with a butcher's knife in hand, rushed towards
Pacifico. Gildo, Celso's younger brother, with a knife tucked to his waist, followed with a
slingshot known as "Indian pana" or "Indian target". While Gildo aimed the dart from his
slingshot at Danilo, which hit the latter on the chest, Celso hacked Pacifico. Gildo then
stabbed Diosdado with a knife. Thereafter, Willie, the eldest of the Amaguin brothers,
appeared with a handgun and successively shot the brothers Pacifico, Diosdado and the fleeing
Danilo. Diosdado, own kneeling, gasping for breath and pleading for his life, was again shot
by Willie who next fired anew at Pacifico. Meanwhile, Gildo and Celso repeatedly stabbed
Pacifico who already lying prostrate and defenseless.2

48
Danilo Oro, the youngest of the Oros, likewise testified. He said that at around five o'clock in Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that after hearing
the afternoon of 24 May 1977, while walking along Divinagracia Street on their way to the six explosions, she saw an unidentified man with a revolver running away from the scene of
plaza for ride home with his three brothers and two others, they were waylaid by Celso, Willie the crime, followed by accused Celso who was holding a knife. She was certain that the
and Gildo, their cousin Danny, all surnamed Amaguin, and several others. Celso placed an unidentified man was not accused Willie as the latter was very well known to her, she being a
arm on the shoulder of Pacifico and stabbed him with a knife.3 Then there was a clash between former neighbor of the Amaguins. 12
the two groups. In a split second, he (Danilo) was hit on the left chest by a dart from the Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District Command, INP,
slingshot of Gildo whom he saw aiming at him. He (Danilo) pulled the dart from his chest and conducted an autopsy on Pacifico and Diosdado. He declared that out of the 15 stab wounds
ran away but was hit on the lips by a bullet. Then he was pushed by Hernando to seek cover. 4 and one gunshot wound Pacifico sustained, five of the stab wounds were fatal. With regard to
Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His version was Diosdado, four (4) stab wounds, out of the ten (10), and the lone bullet he had sustained were
that while he, his brothers-in-law and one Sergio Argonzola were walking along Divinagracia considered fatal. 13
Street that afternoon, two men approached them. Without any provocation, one suddenly After a joint trial, and finding the version of the prosecution to be more credible, the then
stabbed him. After being hit on the left arm, he immediately fled to the plaza where he flagged Court of First Instance of Iloilo, Br. II, 14 found the accused Gildo Amaguin, also known as
down a passing cab to take him to the hospital. He did not see what happened next to his "Tigib," guilty beyond reasonable doubt of the crime of Murder, and . . . sentenced (him)
companions.5 to Reclusion Perpetua, both in Criminal Cases Nos. 8041 and 8042, together with all the
The defense however maintains that it was the Oro brothers who started the fight. Accused accessory penalties, and to pay the costs."
Gildo Amaguin recounted that on 24 May 1977, at about five o'clock in the afternoon, Pacifico As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as accomplice in
with five others went to their house in Divinagracia Street, La Paz, Iloilo City, and approached both Criminal Cases 8041 and 8042, and . . . sentenced (him) to an indeterminate penalty of
his brother Celso, who was waiting for his wife at the foot of the stairs. While Pacifico was Seventeen (17) Years, Four (4) Months, and One (1) Day to Twenty (20) Years each in said
talking to Celso, a companion of Pacifico came forward, held Celso by the shoulder and said : cases together with all the accessory penalties, and to pay the costs."
"This is the bravest man in Divinagracia Street, the Amaguin." Meanwhile, another Both accused were "further sentenced to indemnify the heirs of the late Pacifico Oro and
companion of Pacifico gave Celso a flying kick that sent him reeling. Gildo then went down Diosdado Oro, jointly and severally in the total sum of P24,000.00 as death compensation;
the house shouting : "Don't fight." However, the attackers drew their knives and slingshots. In P20,000.00 (as) moral damages; P10,000.00 (as) exemplary damages; and P5,000.00 for burial
return, Celso pulled out his knife. Since one of the companions of Pacifico lunged at him, expenses, in both Criminal cases nos. 8041 and 8042."
Gildo retreated to the other side of the road and threw stones at his attackers. In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a quo erred:
Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot. But later (a) in categorizing the offense/s as murder; (b) in finding Willie Amaguin to be the person
Danny himself was stabbed from behind by one of Pacifico's companions. Then Ernie Ortigas, involved in the incident; (c) in holding that there was conspiracy between the brothers Gildo
a guest of Celso, emerged from the Amaguin residence holding a revolver. Ernie initially fired and Celso Amaguin (the latter is at large); (d) in finding Gildo Amaguin to be armed with a
three warning shots, after which he successively shot Pacifico and a person who tried to stab knife and an Indian target when he was only armed with stones; and, (e) even assuming the
the former as well as an identified companion of Pacifico. Later, both Ernie Ortigas and Celso accused to be guilty, in not holding them responsible for their individual acts, and in not
Amaguin escaped towards the railway tracks.6 The following day, he was brought by his uncle appreciating the mitigating circumstance of voluntary surrender. 15
to the PC authorities in Fort San Pedro for "safe-keeping" and turned over to the local police Before disposing of the other issues raised by appellants, we resolve the second and fourth
after a week. assigned errors first to determine which of the two conflicting versions of the incident
The story of Gildo was confirmed by Vicente Belicano7 and Nilda Tagnong,8 long-time deserves credence. Their resolution rests upon the credibility of the witnesses who have come
residents of Divinagracia Street, and Nenita Amaguin, mother of the accused brothers, who forward, a matter addressed to the sound judgment of the trial court which is in a better
even affirmed that her son Celso was indeed troublesome,9 but added that Willie "never had position to decide them, it having heard the witnesses and observed their deportment and
any brush with the manner of testifying during the trial. Consequently, the assessment of the trial judge is usually
law." 10 received with respect, if not conclusiveness, on appeal unless there is a showing of
On his part, Willie related that he was in the house of his uncle along Divinagracia Street that arbitrariness. Always, this has been the familiar rule. 16
afternoon drinking with some friends. He left the group after hearing some explosions coming In the instant case, the trial court has accepted as credible the testimonies of Hernando and
from the direction of his mother's house and then seeing his cousin Danny, with a stab wound Danilo Oro who positively identified accused Celso and Gildo Amaguin as having started the
at the back, being taken by two policemen, and his wounded brother Gildo running towards assault on the Oro brothers with the use of a knife and an "Indian pana," and accused Willie
the plaza. Thus, he went to his mother's residence to find out what happened. But when he got Amaguin as the gunwielder who shot the brothers Pacifico, Diosdado and Danilo during the
there, the incident had already ended. As a consequence, he was told by his mother to look for fray. We see no reason to disregard the assessment. We simply cannot set aside the factual
his two brothers who were wounded in the fight and to take them to the hospital. 11 He turned findings of the trial court absent any showing of capriciousness on its part.
himself in after five days, upon learning that law enforcers were looking for him. The defense belittles the testimony of Hernando Oro pointing to accused Willie Amaguin as
Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused Willie only left the gunman as it stands "singly and alone," in contrast to the declaration of the defense
their gathering after the explosions were heard, and only after seeing his wounded brother witnesses exonerating Willie and Gildo. While the defense may have presented a number of
Gildo and his cousin Danny, who was in the company of two policemen, pass by. witnesses who, as the trial court puts it, "virtually 'sang' in a chorus that the killers (Celso and
Danny Amaguin and a certain Ernie Ortigas) not the two accused herein (Willie and Gildo

49
Amaguin)," 17 still the trial judge had the opportunity, as well as the right and responsibility, to acted in unison and cooperated with each other toward the accomplishment of a common
assess their credibility just like all other witnesses. After all, there is no law which requires felonious objective. Certainly, there was conspiracy between the brothers Gildo and Celso,
that the testimony of a single witness needs corroboration except when the law so expressly and it was not necessary to prove a previous agreement to commit the crime since from their
requires. As it is often said, witnesses are to be weighed, not numbered. If credible and overt acts, it was clear that they acted in concert in the pursuit of their unlawful design.
positive, the testimony of a single witness is sufficient to convict. 18 Indeed the determination However, it was error to rule that accused Willie was an accomplice to his brothers. There
of the credibility of witnesses is the trial court's domain, hence, we respect its factual findings. being no sufficient evidence to link him to the conspiracy, he should be liable for the natural
For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi that he and logical consequence of his own felonious acts. Hence, we take exception to the conclusion
did not participate in the fray and that he was in the nearby house of his uncle drinking with of the trial court that Pacifico and Diosdado did not die due to the gunshot wounds inflicted by
his friends, and accused Gildo Amaguin's denial that he was unarmed but later forced to hurl Willie.
stones to defend himself, are without sound basis. Alibi is one of the weakest defenses that can Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico and
be resorted to especially where there is direct testimony of an eyewitness, not only because it Diosdado, testified that while the gunshot wound sustained by Pacifico was not fatal, that
is inherently weak and unreliable but also because of the ease of its fabrication and the suffered by Diosdado was fatal.26
difficulty of checking and rebutting it.19 Besides, alibi to be believed must be supported by the Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he should be
physical impossibility of the accused to have been at the scene of the crime. 20 And as in an liable for homicide. And, since Diosdado was already on bended knees and pleading for his
alibi, a denial, if unsubstantiated by clear and convincing evidence, is a negative and self- life when fatally shot, the aggravating circumstance of the abuse of superior strength, although
serving evidence which deserves no weight in law and cannot be given greater evidentiary not alleged in the information but proven during the trial, may be considered as a generic
value over the testimony of credible witnesses who testify on affirmative matters. 21 Thus, as aggravating circumstance. 27
between a mere denial of the accused and the positive identification and detailed declarations In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already with
of the prosecution witnesses, the trial court committed no error in according heavier weight to numerous fatal stab wounds, Willie should be liable for frustrated homicide it appearing that
the latter. 22 the gunshot wound was not fatal although his intent to kill was evident. Likewise, the
Hence, this version of the prosecution prevails: Celso and Gildo, together with others, attacked aggravating circumstance of abuse of superior strength may be appreciated as a generic
the Oros. During the fray, Gildo was armed with a knife and an "Indian target." And just as aggravating circumstance.
they were about to finish off the Oro brothers, Willie, the eldest of the Amaguins, appeared Finally, we agree with accused-appellants' view that voluntary surrender should be appreciated
with a revolver and delivered the coup de grace. in their favor. While it may have taken both Willie and Gildo a week before turning
The factual setting having been settled, we now go to the first assigned error , i.e., thwt the themselves in, the fact is, they voluntarily surrendered to the police authorities before arrest
lower court erred in categorizing the offense as murder there being no treachery since "the could be effected. For voluntary surrender to be appreciated as a mitigating circumstance, the
combatants were face to face" and "[c]onfronting each other frontally . . . that each will know following elements must be present: (a) the offender has not been actually arrested; (b) the
each other's next move." 23 Except for appellants' premise, the argument has merit. The killing offender surrendered himself to a person in authority; and (c) the surrender must be
of Pacifico and Diosdado cannot be qualified by treachery. voluntary. 28 All these requisites appear to have attended their surrender.
While we have already ruled that even a frontal attack can be treacherous, as when it is sudden Now, we turn to the penalties.
and unexpected and the victim is unarmed, 24 here, it appears that the aggressors did not In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate crimes of
employ means tending directly and specially to ensure the execution of the crime without risk homicide for the death of Diosdado and Pacifico, respectively. The penalty prescribed by law
to themselves arising from the defense which the offended parties might take. for homicide is reclusion
It must be noted that the assailants attacked a group of six (6) individuals who could have been temporal. 29 Applying the Indeterminate Sentence Law, and appreciating the mitigating
armed. circumstance of voluntary surrender with no aggravating circumstance, the maximum penalty
It is highly probable that at least one of those attacked could offer resistance and could put the to be imposed on accused Gildo Amaguin for each of the homicide he has committed, which
lives of the aggressors in danger, as what indeed happened when accused-appellant Gildo he must serve successively, should be taken from the minimum of the imposable penalty,
Amaguin and his cousin Danny suffered injuries as a result of the fight which, from all which is reclusion temporal the range of the minimum period of which is twelve (12) years
indications, ended in a free-for-all. That Pacifico sustained 15 stab wounds and a gunshot and one (1) day to fourteen (14) years and eight (8) months, while the minimum should be
wound, and Diosdado, ten stab wounds and a bullet wound, does not necessarily mean that taken from the penalty next lower in degree, which is prision mayor the full range of which is
treachery attended the killings. As already adverted to, for treachery to be appreciated, the six (6) years and one (1) day to twelve (12) years, in any of its periods.
offender must employ means, methods, or forms in the commission of the crime which tend In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of superior
directly and specially to insure its execution without risk to himself arising from the defense strength but offset by the mitigating circumstance of voluntary surrender, and in Crim. Case
which the offended party might take.25 Here, there is serious doubt. No. 8042, he is guilty of frustrated homicide likewise aggravated by abuse of superior strength
On the third assigned error, i.e., that there was conspiracy between Gildo and Celso, who but offset by voluntary surrender. For the homicide, applying the Indeterminate Sentence Law
remains at large, the evidence shows how Celso and Gildo simultanously assaulted the Oro and taking into account the mitigating circumstance of voluntary surrender which, as earlier
brothers. While Celso lunged at Pacifico, Gildo aimed his slingshot at Danilo who was hit by mentioned, offsets the aggravating circumstance of abuse of superior strength, the maximum
its dart, and immediately penalty should be taken from the medium of the imposable penalty, which is reclusion
attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo and Celso temporal the range of the medium period of which is fourteen (14) years eight (8) months and

50
one (1) day to seventeen (17) years and four (4) months, while the minimum should be taken
from the penalty next lower in degree which is prision mayor in any of its periods.
For the frustrated homicide, the imposable penalty is one degree lower than the penalty
prescribed by law for the consummated offense, and one degree lower than reclusion
temporal is prision mayor. Applying the Indeterminate Sentence Law and the attending
circumstances which offset each other, the maximum penalty to be imposed should be taken
from the medium of the imposable penalty, which is prision mayor the range of the medium
period of which is eight (8) years and one (1) day to ten (10) years, while the minimum should
be taken from the penalty next lower in degree, which is prision correccional the full range of
which is six (6) months and one (1) day to six (6) years, in any of its periods.
WHEREFORE, the decision of the court a quo finding the accused-appellants WILLIE
AMAGUIN and GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and 8042 is
MODIFIED as follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim. Case No.
8041 and is sentenced to six (6) years, two (2) months and one (1) day of prision
mayor minimum as minimum, to fourteen (14) years, eight (8) months and twenty (20) days
of reclusion temporal medium as maximum, and of FRUSTRATED HOMICIDE in Crim.
Case No. 8042 and is sentenced to six (6) months and twenty (20) days of prision
correccional minimum as minimum, to eight (8) years, four (4) months and ten (10) days
of prision mayor as maximum, to be served successively;.
(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate crimes of
HOMICIDE in Crim. Cases Nos. 8041 and 8042 and is sentenced to six (6) years two (2)
months and one (1) day of prision mayor minimum as minimum, to twelve (12) years, six (6)
months and ten (10) days of reclusion temporal minimum as maximum, for each homicide, to
be served successively;
(c) in Crim. Case No. 8041, accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN
are declared jointly and severally liable to the heirs of Diosdado Oro for P50,000.00 as civil
indemnity consistent with prevailing jurisprudence; and,
(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the heirs of
Pacifico Oro for P50,000.00 as civil indemnity.
Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in both cases.
SO ORDERED.
Cruz, Davide, Jr. and Quiason, JJ., concur.

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and
resolution, dated November 22, 1999, of the Court of Appeals,[1] which affirmed the decision of
the Regional Trial Court, Branch 25, Maasin, Southern Leyte,[2] finding petitioner Exuperancio
Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of

51
1974, and sentencing him to ten (10) years and one (1) day of prision mayor, as minimum, to Villanueva in consideration for which petitioner would get a calf if the cow produced two
twelve (12) years, five (5) months, and eleven (11) days of reclusion temporal medium, as offsprings. Petitioner claimed that the cow in question was his share and that it was born on
maximum, and to pay the costs. December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner said he
The information against petitioner alleged: reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on December 3, 1985
(Exh. A and Exh. 1).[10]
That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the
accused with intent to gain, did then and there, willfully, unlawfully and feloniously, take, mother cow on March 14, 1986 to see whether the cow would suckle the mother cow. As the
steal and carry away one (1) black female cow belonging to Narciso Gabriel valued at Three cow did, petitioner took it with him and brought it, together with the mother cow, to his father
Thousand Pesos (P3,000.00) without the knowledge and consent of the aforesaid owner, to his Florentino Canta.[11] Maria Tura tried to get the cow, but Florentino refused to give it to her and
damage and prejudice in the amount aforestated. instead told her to callNarciso so that they could determine the ownership of the cow. [12] As
CONTRARY TO LAW.[3] Narciso did not come the following day, although Maria did, Florentino said he told his son to
take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he was told.Three days
later, Florentino and Exuperancio were called to the police station for investigation. [13]
The prosecution established the following facts: Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,
Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case, 1985[14] and a statement executed by Franklin Telen, janitor at the treasurers office of the
upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter for municipality of Padre Burgos, to the effect that he issued a Certificate of Ownership of Large
sometime. Subsequently, Narciso gave the care and custody of the animal, first, to Generoso Cattle in the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5). [15] The
Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from May 17, 1985 to statement was executed at the preliminary investigation of the complaint filed by petitioner
March 2, 1986; and lastly, to Gardenio Agapay, from March 3, 1986 until March 14, 1986 when against Narciso.[16]
it was lost.[4] It appears that at 5 oclock in the afternoon of March 13, 1986, Agapay took the Petitioners Certificate of Ownership was, however, denied by the municipal treasurer,
cow to graze in the mountain of Pilipogan in Barangay Candatag, about 40 meters from his who stated that petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle
hut. However, when he came back for it at past 9 oclock in the morning of March 14, 1986, in the municipality of Padre Burgos (Exhs. E, E-1 and 2).[17] On the other hand, Telen testified
Agapay found the cow gone. He found hoof prints which led to the house of Filomeno that he issued the Certificate of Ownership of Large Cattle to petitioner on March 24, 1986 but,
Vallejos. He was told that petitioner Exuperancio Canta had taken the animal.[5] at the instance of petitioner, he (Telen) antedated it to February 27, 1985.[18]
Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the
petitioners wife, but they were informed that petitioner had delivered the cow to his father, offense charged. In giving credence to the evidence for the prosecution, the trial court stated:
Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos, Southern
Leyte. Accordingly, the two went to Florentinos house. On their way, they met petitioner who
told them that if Narciso was the owner, he should claim the cow From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that
himself. Nevertheless, petitioner accompanied the two to his fathers house, where Maria it was accused Exuperancio Canta who actually took the cow away without the knowledge and
recognized the cow. As petitioners father was not in the house, petitioner told Gardenio and consent of either the owner/raiser/caretaker Gardenio Agapay.
Maria he would call them the next day so that they could talk the matter over with his father. That the taking of the cow by the accused was done with strategy and stealth considering that
However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the it was made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away
police of Malitbog, Southern Leyte.[6] As a result, Narciso and petitioner Exuperancio were tethered to a coconut tree but separated by a hill.
called to an investigation. Petitioner admitted taking the cow but claimed that it was his and that The accused in his defense tried to justify his taking away of the cow by claiming
it was lost on December 3, 1985. He presented two certificates of ownership, one dated March ownership. He, however, failed to prove such ownership. Accused alleged that on February
17, 1986 and another dated February 27, 1985, to support his claim (Exh. B). [7] 27, 1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by
Narciso presented a certificate of ownership issued on March 9, 1986, signed by the Franklin Telen, a janitor at the Office of the Municipal Treasurer of Padre Burgos, a
municipal treasurer, in which the cow was described as two years old and female. On the reverse neighboring town. On rebuttal Franklin Telen denied in Court the testimony of the accused
side of the certificate is the drawing of a cow with cowlicks in the middle of the forehead, and even categorically declared that it was only on March 24, 1986 that the accused brought
between the ears, on the right and left back, and at the base of the forelegs and hindlegs (Exhs. the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of Ownership of
C, C-1 to 4).[8] All four caretakers of the cow identified the cow as the same one they had taken Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus:
care of, based on the location of its cowlicks, its sex, and its color. Gardenio described the cow
as black in color, with a small portion of its abdomen containing a brownish cowlick, a cowlick Q. According to the defense, this Certificate of Ownership of Large Cattle was
in the middle of the forehead, another at the back portion between the two ears, and four issued by you on February 27, 1985. Is that correct?
cowlicks located near the base of its forelegs and the hindlegs.[9] A. Based on the request of Exuperancio, I antedated this.
On the other hand, petitioner claimed he acquired the animal under an agreement which (TSN, June 3, 1992, p. 7)
he had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat.

52
The testimony of Franklin Telen was confirmed in open court by no less than the Municipal Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which
Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8). petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in the
If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its municipal treasurers office, admitted that he issued the certificate to petitioner 10 days after
registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is Narcisos cow had been stolen. Although Telen has previously executed a sworn statement
clear that accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning claiming that he issued the certificate on February 27, 1985, he later admitted that he antedated
and manipulation (Exhs. A & B) only after the act complained of in the instant case was it at the instance of petitioner Exuperancio Canta, his friend, who assured him that the cow was
committed on March 14, 1986. His claim of ownership upon which he justifies his taking his.[21]
away of the cow has no leg to stand on.Upon the other hand, the complainant has shown all Telens testimony was corroborated by the certification of the municipal treasurer of Padre
the regular and necessary proofs of ownership of the cow in question.[19] Burgos that no registration in the name of petitioner was recorded in the municipal
records. Thus, petitioners claim that the cowlicks found on the cow tally with that indicated on
The Court of Appeals affirmed the trial courts decision and denied petitioners motion for the Certificate of Ownership of Large Cattle has no value, as this same certificate was issued
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond after the cow had been taken by petitioner from Gardenio Agapay. Obviously, he had every
reasonable doubt his criminal intent in taking the disputed cow. opportunity to make sure that the drawings on the certificate would tally with that existing on
First. Petitioner claims good faith and honest belief in taking the cow. He cites the the cow in question.
following circumstances to prove his claim: The fact that petitioner took the cow to the barangay captain and later to the police
authorities does not prove his good faith. He had already committed the crime, and the barangay
1. He brought the mother cow to Pilipogan to see if the cow in question would suckle captain to whom he delivered the cow after taking it from its owner is his own father. While the
to the mother cow, thus proving his ownership of it; records show that he filed on April 30, 1986 a criminal complaint against Narciso Gabriel, the
2. He compared the cowlicks of the subject cow to that indicated in the Certificate complaint was dismissed after it was shown that it was filed as a countercharge to a complaint
of Ownership of Large Cattle issued on February 27, 1985 in his name, and earlier filed on April 16, 1986 against him by Narciso Gabriel.
found that they tally; Petitioner says that he brought a mother cow to see if the cow in question would suckle to
3. He immediately turned over the cow to the barangay captain, after taking it, and the mother cow. But cows frequently attempt to suckle to alien cows.[22] Hence, the fact that the
later to the police authorities, after a dispute arose as to its ownership; and cow suckled to the mother cow brought by petitioner is not conclusive proof that it was the
4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No. offspring of the mother cow.
533. Second. Petitioner contends that even assuming that his Certificate of Ownership is not in
order, it does not necessarily follow that he did not believe in good faith that the cow was his. If
These contentions are without merit. it turned out later that he was mistaken, he argues that he committed only a mistake of fact but
P.D. No. 533, 2(c) defines cattle-rustling as he is not criminally liable.
Petitioners Certificate of Ownership is not only not in order. It is fraudulent, having been
. . . the taking away by any means, methods or scheme, without the consent of the antedated to make it appear it had been issued to him before he allegedly took the cow in
owner/raiser, of any of the abovementioned animals whether or not for profit or gain, or question. That he obtained such fraudulent certificate and made use of it negates his claim of
whether committed with or without violence against or intimidation of any person or force good faith and honest mistake. That he took the cow despite the fact that he knew it was in the
upon things. custody of its caretaker cannot save him from the consequences of his act. [23] As the Solicitor
General states in his Comment:
The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it
belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is If petitioner had been responsible and careful he would have first verified the identity and/or
done by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6) ownership of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioners
the taking is accomplished with or without violence or intimidation against person or force upon cousin (TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite the opportunity and
things.[20] instead rushed to take the cow. Thus, even if petitioner had committed a mistake of fact he is
These requisites are present in this case. First, there is no question that the cow belongs to not exempted from criminal liability due to his negligence.[24]
Narciso Gabriel. Petitioners only defense is that in taking the animal he acted in good faith and
in the honest belief that it was the cow which he had lost.Second, petitioner, without the consent In any event, petitioner was not justified in taking the cow without the knowledge and
of the owner, took the cow from the custody of the caretaker, Gardenio Agapay, despite the fact permission of its owner. If he thought it was the cow he had allegedly lost, he should have
that he knew all along that the latter was holding the animal for the owner, Narciso. Third, resorted to the court for the settlement of his claim. Art. 433 of the Civil Code provides that The
petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen to antedate it true owner must resort to judicial process for the recovery of the property. What petitioner did
prior to the taking to make it appear that he owned the cow in question. Fourth, petitioner in this case was to take the law in his own hands.[25] He surreptitiously took the cow from the
adopted means, methods, or schemes to deprive Narciso of his possession of his cow, thus custody of the caretaker, Gardenio Agapay, which act belies his claim of good faith.
manifesting his intent to gain. Fifth, no violence or intimidation against persons or force upon
things attended the commission of the crime.
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For the foregoing reasons, we hold that the evidence fully supports the finding of both the
trial court and the Court of Appeals that accused-appellant is guilty as charged. There is
therefore no reason to disturb their findings.
However, the decision of the Court of Appeals should be modified in two respects.
First, accused-appellant should be given the benefit of the mitigating circumstance
analogous to voluntary surrender. The circumstance of voluntary surrender has the following
elements: (1) the offender has not actually been arrested; (2) the offender surrenders to a person
in authority or to the latters agent; and (3) the surrender is voluntary.[26] In the present case,
petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been
filed against him when he surrendered the cow to the authorities. It has been repeatedly held
that for surrender to be voluntary, there must be an intent to submit oneself unconditionally to
the authorities, showing an intention to save the authorities the trouble and expense that his
search and capture would require.[27] In petitioners case, he voluntarily took the cow to the
municipal hall of Padre Burgos to place it unconditionally in the custody of the authorities and
thus saved them the trouble of having to recover the cow from him. This circumstance can be
considered analogous to voluntary surrender and should be considered in favor of petitioner.
Second, the trial court correctly found petitioner guilty of violation of 2(c) of P. D. No.
533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing
the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months and 11
days of reclusion temporal medium, as maximum. The trial court apparently considered P. D.
No. 533 as a special law and applied 1 of the Indeterminate Sentence Law, which provides that
if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term prescribed by the same.
However, as held in People v. Macatanda,[28] P. D. No. 533 is not a special law. The penalty for
its violation is in terms of the classification and duration of penalties prescribed in the Revised
Penal Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal
Code with respect to the offense of theft of large cattle. In fact, 10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised
Penal Code, as amended, pertinent provisions of the Revised Administrative Code, as
amended, all laws, decrees, orders, instructions, rules and regulations which are inconsistent
with this Decree are hereby repealed or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the


commission of the crime, the penalty to be imposed in this case should be fixed in its minimum
period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal
Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is
within the range of the penalty next lower in degree, i. e., prision correccional maximum
to prision mayor medium, and the maximum of which is prision mayor in its maximum period.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the
modification that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison term
of four (4) years and two (2) months of prision correccionalmaximum, as minimum, to ten (10)
years and one (1) day of prision mayor maximum, as maximum.
SO ORDERED.

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