Crim-mid.docx

G.R. No. 80762 March 19, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.: In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to indemnify the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo. Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial court's decision. During the pendency of their appeal and before judgment thereon could be rendered by the Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose instead to pursue their respective applications for parole before the then Ministry, now Department, of Justice, Parole Division. 3 On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for review.6 The antecedent facts are as follows: At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to the authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on his motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada, clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a photographer, went back to the scene of the killing to conduct further investigations. Fausta Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to the police substation in Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were already there conducting their own investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy. The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after completed, a report was made with the following findings: PHYSICAL FINDINGS 1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity. EXTERNAL FINDINGS 1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the arm, right, directed upward to the right axillary pit. 2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the forearm, right, with 1 cm. wound exit. 3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm. in width. 4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th ribs, right located 1.5 inches below the right nipple. 5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located at the left midclavicular line at the level of the 5th rib left.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at the mid left scapular line at the level of the 8th intercostal space. 7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left thoracic cavity. 8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located at the upper 3rd axilla left. 9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm left, directed downward. 10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right. 11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and mysentery coming out. 12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed downward to the aspex of the light thoracic cavity. 13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial border of the right scapula. 14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right elbow. 15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd, forearm, right. 16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull. INTERNAL FINDINGS: 1. Stab wound No. 5, injuring the left ventricle of the heart. 2. Stab wound No. 6, severely injuring the right lower lobe of the lungs. 3. Stab wound No. 7, injuring the right middle lobe of the lungs. 4. Stab wound No. 11, injuring the descending colon of the large intestine, thru and thru. 5. Stab wound No. 12, severely injuring the apex of the right lungs (sic). CAUSE OF DEATH: MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED (sic), INCISED AND PUNCTURED WOUNDS. JESUS D. ROJAS, M.D. Rural Health Physician Ajuy, Iloilo 11 The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because they penetrated the internal organs, heart, lungs and intestines of the deceased." 12 On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody for "having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the P.C. headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy police force. 13 Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses Augusto and Fausta Gonzales. The information read as follows: The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of the crime of MURDER committed as follows:

That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused with four other companions whose identities are still unknown and are still at large, armed with sharp-pointed and deadly weapons, conspiring, confederating and helping each other, with treachery and evident premeditation, with deliberate intent and decided purpose to kill, and taking advantage of their superior strength and number, did then and there wilfully, unlawfully and feloniously attack, assault, stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said accused were provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on different parts of his body as shown by autopsy report attached to the record of this case which multifarious wounds caused the immediate death of said Lloyd D. Peñacerrada. CONTRARY TO LAW. Iloilo City, August 26, 1981. 14 When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial, however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as earlier explained, Lanida, pleaded not guilty to the crime. At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow. Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless opined that due to the number and different characteristics of the wounds, the probability that at least two instruments were used is high. 18 The police authorities and the P.C. operatives for their part testified on the aspect of the investigation they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses she incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the events surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the accused, as well as on other matters. By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to approach the place where the shouts were emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to sleep. 27Huntoria explained that he did not immediately report to the police authorities what he witnessed for fear of his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed, bothered by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29 Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to rape her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr., claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the crime 31 when the incident happened. He asserted that he only came to know of it after his grandchildren by Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32 The trial court disregarded the version of the defense; it believed the testimony of Huntoria. On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not appreciating his defense of alibi. The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate court held that: . . . Huntoria positively identified all the accused, including the herein accused-appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty recognizing the assailant at a distance of 15 to 20 meters is without merit, considering that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking and who was stabbing the deceased, it was only because the assailant were moving around the victim. As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal case is of judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in this country to volunteer information about a criminal case and their unwillingness to be involved in or dragged into criminal investigations is common, and has been judicially declared not to affect credibility.'"

It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10 years and that he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not think of any reason why Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33 The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the sentence imposed by the trial court on the accusedappellant erroneous. Said the appellate court: Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and 1 day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248 is reclusion temporal in its maximum period to death. As there was no mitigating or aggravating circumstance, the imposible penalty should be reclusion perpetua. Consequently, the appeal should have been brought to the Supreme Court. With regard to the indemnity for death, the award of P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987).35 The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed being reclusion perpetua. After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the appellant of the crime charged. To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged various blood stains and their locations relative to the scene of the crime, there was however no indication as to their quantity. This is rather unfortunate for the prosecution because, considering that there are two versions proferred on where the killing was carried out, the extent of blood stains found would have provided a more definite clue as to which version is more credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of the Gonzales spouses, there would have been more blood stains inside the couple's bedroom or even on the ground directly under it. And this circumstance would provide an additional mooring to the claim of attempted rape asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed in the field near the linasan is the truth, then blood stains in that place would have been more than in any other place. The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C. investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have conspired in killing Lloyd Peñacerrada. Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned, Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the sixteen described in the autopsy report. We shall discuss more the significance of these wounds later. It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous scrutiny of Huntoria's testimony is compelling. To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a "linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from where the crime was being committed. According to him, he recognized the six accused as the malefactors because the scene was then illuminated by the moon. He further stated that the stabbing and hacking took about an hour. But on cross-examination, Huntoria admitted that he could not determine who among the six accused did the stabbing and/or hacking and what particular weapon was used by each of them. ATTY. GATON (defense counsel on cross-examination): Q And you said that the moon was bright, is it correct? A Yes, Sir. Q And you would like us to understand that you saw the hacking and the stabbing, at that distance by the herein accused as identified by you? A Yes, sir, because the moon was brightly shining. Q If you saw the stabbing and the hacking, will you please tell this Honorable Court who was hacking the victim? A Because they were surrounding Peñacerrada and were in constant movement, I could not determine who did the hacking. ATTY. GATON:

The interpretation is not clear. COURT: They were doing it rapidly. A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the rapid movement of their arms, Your Honor, and I cannot determine who was hacking and who was stabbing. But I saw the hacking and the stabbing blow. ATTY. GATON: Q You cannot positively identify before this Court who really hacked Lloyd Peñacerrada? A Yes sir, I cannot positively tell who did the hacking. Q And likewise you cannot positively tell this Honorable Court who did the stabbing? A Yes sir, and because of the rapid movements. Q I noticed in your direct testimony that you could not even identify the weapons used because according to you it was just flashing? A Yes, sir.39 (Emphasis supplied) From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the appellant in the killing of Lloyd Peñacerrada. It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which would categorize the criminal liability of the appellant as a principal by direct participation under Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that inculpates him by inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under paragraph 3 thereof. What then was the direct part in the killing did the appellant perform to support the ultimate punishment imposed by the Court of Appeals on him? Article 4 of the Revised Penal Code provides how criminal liability is incurred. Art. 4. Criminal liability — Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Emphasis supplied.) Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the Revised Penal Code, on the other hand, provides how felonies are committed. Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. (Emphasis supplied.) Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of deceit or fault. Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by the appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any

bodily movement tending to produce some effect in the external world." 40 In this instance, there must therefore be shown an "act" committed by the appellant which would have inflicted any harm to the body of the victim that produced his death. Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who "hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen inflicted, as adverted to above, while there are six accused charged as principals, it follows to reason that one of the six accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not after all the oldest (already sexagenarian at that time) and practically the father of the five accused? And pursuing this argument to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of the accused could have inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it is possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by Fausta in rage against the assault on her womanhood and honor. But more importantly, there being not an iota of evidence that the appellant caused any of the said five fatal wounds, coupled with the prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not be sustained. Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the failure of a witness to report at once to the police authorities the crime he had witnessed should not be taken against him and should not affect his credibility,41 here, the unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for eight months. Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained. His lame excuse that he feared his life would be endangered is too pat to be believed. There is no showing that he was threatened by the accused or by anybody. And if it were true that he feared a possible retaliation from the accused, 44 why did he finally volunteer to testify considering that except for the spouses Augusto and Fausta Gonzales who were already under police custody, the rest of the accused were then still free and around; they were not yet named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and present when he testified. Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because the victim was also his landlord. xxx

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Q Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada about what happened to her husband? A At first I was then afraid to tell anybody else but because I was haunted by my conscience and secondly the victim was also my landlord I revealed what I saw to the wife of the victim.46 xxx

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(Emphasis ours.) At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves with the latter. In this instance, volunteering his services as a purported eyewitness and providing that material testimony which would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself with the surviving family of his deceased landlord. This is especially so because the need to get into the good graces of his landlord's family assumed a greater urgency considering that he ceased to be employed as early as May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved quite sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's widow, he was taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and provided lodging for his family. 48 Given all the foregoing circumstances, we can not help but dismiss Huntoria as an unreliable witness, to say the least. At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and culture, aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm. It is therefore improbable for the other accused who are much younger and at the prime of their manhood, to summon the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone adversary, granting that the victim was indeed an adversary. And considering that the appellant's residence was about one kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy. Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be sufficient to acquit the accused. 52 In fine, the guilt of the appellant has not been proven beyond reasonable doubt. WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby ACQUITTED. Costs de oficio. SO ORDERED.

G.R. No. 152133

February 9, 2006

ROLLIE CALIMUTAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, ET AL., Respondents. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001,1affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, Masbate, in Criminal Case No. 8184, dated 19 November 1998,2 finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. The Information3 filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly committed as follows – That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due to impact which caused his death a day after. CONTRARY TO LAW. Masbate, Masbate, September 11, 1996. Accordingly, the RTC issued, on 02 December 1996, a warrant4 for the arrest of petitioner Calimutan. On 09 January 1997, however, he was provisionally released5 after posting sufficient bailbond.6 During the arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged against him.7 In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L. Sañano, companion of the victim Cantre when the alleged crime took place. Their testimonies are collectively summarized below. On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Sañano, together with two other companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke bar, the victim Cantre and witness Sañano proceeded to go home to their respective houses, but along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantre’s house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness Sañano. Petitioner Calimutan then picked up a stone, as big as a man’s fist, which he threw at victim Cantre, hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his back. Witness Sañano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also urged victim Cantre and petitioner Calimutan to just go home. Witness Sañano accompanied victim Cantre to the latter’s house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the stone. They arrived at the Cantre’s house at around 12:00 noon, and witness Sañano left victim Cantre to the care of the latter’s mother, Belen.8 Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some food. He was able to eat a little, but he also later vomited whatever he ate. For the last time, he complained of backache and stomachache, and shortly thereafter, he died.9 Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem Examination Report10 and Certification of Death,11 issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996. Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr. Ronaldo B. Mendez on 15 April 1996,12 after which, he reported the following findings – Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche. Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side.

Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line. Hemoperitoneum, massive, clotte [sic]. Laceration, spleen. Other visceral organ, pale and embalmed. Stomach contains small amount of whitish fluid and other partially digested food particles. xxxx CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN. In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan.13 To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein petitioner, Calimutan. According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with the victim Cantre and witness Sañano. The victim Cantre took hold of Bulalacao and punched him several times. Petitioner Calimutan attempted to pacify the victim Cantre but the latter refused to calm down, pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone, which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim Cantre chased after them, but witness Sañano was able to pacify the victim Cantre. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek medical help despite the advice of petitioner Calimutan and, instead, chose to go back to his hometown.14 Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February 1996, because of food poisoning. Petitioner Calimutan maintained that he had no personal grudge against the victim Cantre previous to the stoning incident.15 On 19 November 1998, the RTC rendered its Decision,16 essentially adopting the prosecution’s account of the incident on 04 February 1996, and pronouncing that – It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion, a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the Revised Penal Code. The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964) One is not relieved from criminal liability for the natural consequences of one’s illegal acts merely because one does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310). The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code. WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (₱50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (₱50,000.00) Pesos as moral damages, without subsidiary imprisonment in case of insolvency. Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in its Decision, dated 29 August 2001,17 sustained the conviction of homicide rendered by the RTC against petitioner Calimutan, ratiocinating thus – The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which, the accused-appellant does not deny. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. It resulted to a traumatic injury of the abdomen causing the laceration of the victim’s spleen.

This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the exhumation of the victim’s cadaver… The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the victim’s death was food poisoning. Dr. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not made available for cross-examination on the accuracy and correctness of her findings. Dr. Conchita Ulanday’s post mortem report cannot prevail over the autopsy report (Exh. "C") of the Medico-Legal Officer of the NBI who testified and was crossexamined by the defense. Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr. Conchita Ulanday, why did they not present her as their witness to belie the report of the Medico-Legal Officer of the NBI. The trial court’s evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED. The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision, dated 29 August 2001. Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August 2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on reasonable doubt. Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for the said death, arguing that – x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially, it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner. As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as to the petitioner’s guilt and therefore, he is entitled to acquittal (People vs. Delmendo, G.R. No. 32146, November 23, 1981).19 In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind; it does not demand absolute certainty and the exclusion of all possibility of error.20 In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre. Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan. Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner Calimutan at the victim Cantre. It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose "competency and academic qualification and background" was admitted by the defense itself.21 As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology, surgery, gynecology, toxicology, and such other branches of medicine germane to the issues involved in a case.22 Dr. Mendez’s testimony as an expert witness is evidence,23 and although it does not necessarily bind the courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value. Having testified as to matters undeniably within his area of expertise, and having performed a thorough autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which, subsequently, resulted in the latter’s death. With no apparent mistake or irregularity, whether in the manner by which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and testimony must be seriously considered by this Court. Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre. One source explains the nature of abdominal injuries24 in the following manner –

The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the source of its blood supply and at the point where blood vessels change direction. The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk, its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and transverse colon are in the triangle, located in the peritoneal cavity. Compression or blow on the area may cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41). As to injuries to the spleen, in particular,25 the same source expounds that – The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by the ribs and also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually affected by trauma. x x x. Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary to common perception, the abdominal area is more than just the waist area. The entire abdominal area is divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The laceration of the victim Cantre’s spleen can be caused by a stone thrown hard enough, which qualifies as a nonpenetrating trauma26 – Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents provide the predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact sports are frequently implicated in children. x x x The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen – an organ described as vulnerable, superficial, and fragile – even without causing any other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal. Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."27 The two other witnesses presented by the prosecution, namely Sañano and Belen Cantre, had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen. Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulanday’s post-mortem report, the defense insisted on the possibility that the victim Cantre died of food poisoning. The post-mortem report, though, cannot be given much weight and probative value for the following reasons – First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death certificate of the victim Cantre, reveals that although she suspected food poisoning as the cause of death, she held back from making a categorical statement that it was so. In the post-mortem report, 28 she found that "x x x the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be confirm (sic) by laboratory e(x)am." In the death certificate of the victim Cantre, 29 she wrote that the immediate cause of death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was no showing that further laboratory tests were indeed conducted to confirm Dr. Ulanday’s suspicion that the victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of death remains just that – a suspicion. Second, Dr. Ulanday executed before the NBI a sworn statement30 in which she had explained her findings in the post-mortem report, to wit – 05. Q: Did you conduct an autopsy on his cadaver? A: I did sir, but not as exhaustive as that done by the NBI Medico-legal. 06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE? A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didn’t state that he was a case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm that suspicion.

07. Q: What gave you that suspicion of poisoning? A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation. 08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you open the body of the cadaver? A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found none. I did not open the body of the cadaver. 09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located? A: On the left portion of his back, sir. 10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could be injured? A: Yes, sir. But that would depend on how strong or forceful the impact was. In contrast, Dr. Mendez described in his testimony before the RTC31 how he conducted the autopsy of the body of the victim Cantre, as follows – Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case? A We opened the head, chest and the abdomen. Q That was part of the autopsy you have conducted? A Yes, sir. Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in connection therewith? A We examined the internal organs. Q What in particular internal organs you have examined? A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines. xxxx Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen? A We, medico-legal officers of the NBI don’t do what other doctors do as they make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim. Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located? A Along the midline but the damaged organ was at the left. Q What particular organ are you referring to? A The spleen, sir. The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence by the courts. Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her testimony would be adverse to the prosecution if produced.32 As this Court already expounded in the case of People v. Jumamoy33 –

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution. While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless, is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for. Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender – In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is "unintentional, it being simply the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill.34 In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code. Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence – Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner Calimutan’s lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutan’s reckless imprudence. The RTC and the Court of Appeals may have failed to appreciate, or had completely overlooked, the significance of such circumstances. It should be remembered that the meeting of the victim Cantre and witness Sañano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Sañano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.1avvphil.net In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre. The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible.

The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was petitioner Calimutan’s intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim Cantre.35 Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a man’s fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters. Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latter’s death, despite being done with reckless imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of ₱50,000.00 as civil indemnity for his death and another ₱50,000.00 as moral damages. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of ₱50,000.00 as civil indemnity for the latter’s death and ₱50,000.00 as moral damages. SO ORDERED.

G.R. No. L-4774

November 18, 1908

THE UNITED STATES, plaintiff-appellee, vs. A. H. BARNES, defendant-appellant. Southworth and Ingersoll, for appellant. Attorney-General Villamor, for appellee.

TORRES, J.: At about 10 o'clock on the morning of the 15th of December, 1906, A. H. Barnes, J. A. Ryan, and three Filipinos, one of whom was Pedro Leonardo, were out duck shooting and went through the barrio of San Pablo, sitio of Muyot, in the municipality of San Antonio, Nueva Ecija; when they were about to return it was noticed that there were ducks on an estero or stream; Barnes at once fired his gun twice, the said Pedro Leonardo being near to him at the time; when trying to reload the weapon, the cartridge would not go in easily, and Barnes had to force it by closing the breech of the gun which is automatic, pressing the same upon his knee, at which moment the gun was discharged, Barnes being still on his knees; when he rose to look for the ducks he saw the said Leonardo sinking beneath the water, for which reason he left his gun on the ground and told his friend Ryan that it looked as if the said individual was hurt; they went into the river and with the assistance of the other men recovered the body of Pedro Leonardo who was already dead; a surgeon who examined the body found a gunshot wound in the back of the head; bones had been broken, and the wound was of necessity a mortal one. The provincial fiscal therefore filed a complaint against A. H. Barnes on the 27th of March, 1907, charging him with the crime of reckless negligence; the prosecution was begun, and the trial judge, in view of the conclusions, sentenced the accused to the penalty of six months of arresto mayor, to pay an indemnity of P300 to the heirs of the deceased, or, in case of insolvency, to suffer subsidiary imprisonment, not to exceed one-third of the term of the main penalty, and costs, one-half of the time during which he suffered prision preventiva to be credited in his favor. From that judgment the accused has appealed. For the proper and just classification of the dead ending in the violent death of Pedro Leonardo, caused by the discharge of a firearm loaded with shot, and taking into the consideration the result and merits of the case, the classification of murder and homicide comprised in articles 403 and 404 of the Penal Code must of course be discarded, since it does not appear, nor has it even been indicated that the shot was purposely fired, with the malicious and criminal intent to kill the man or to cause him some bodily harm, so much so that the provincial fiscal, in view of the result of the preliminary investigation made immediately after the affair, in his written complaint limited the charge against Barnes to homicide committed through imprudence, defined and punished by article 568 of the said code, which reads as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of prision mayor in its maximum degree to prision correccional in its minimum degree, and with arresto mayor in its minimum and medium degrees, if it shall constitute a less grave crime. If, according to article 1 of the said code crimes or misdemeanors are voluntary acts and omissions punished by law, once having been fully demonstrated in this case that the third shot fired from the gun which the accused Barnes had in his hands on the morning of the occurrence and which caused the death of the said individual, was an entirely involuntary act, as it had not been proven in any manner that he fired the weapon purposely in the direction of the ducks, but that it went off at the moment when he pressed the gun against his knee in order to force the cartridge into the chamber which showed some kind of obstruction, and without aiming at the birds, or doing something to cause the weapon to discharge, it follows that such act being an involuntary one, should not be considered to apply thereto the provisions of article 568 of the code, apart from the circumstance that no malice was present, it is above all indispensable that the act in question should be a voluntary one according to the doctrine established by the supreme court of Spain, when applying the provisions of article 581 of the Peninsular Code, equivalent to the said article 568 of the code in force in this country, in its decision of June 28, 1881. It is true that the second paragraph of article 1 of the code above cited provides that acts and omissions punished by law are always presumed to be voluntary unless the contrary shall appear; but as it is proven in the proceedings, by undeniable evidence, that the gun which is of the automatic class, and for the use of which the accused carried a license, went off at the moment when the accused was placing the cartridge into the chamber and pressing the gun against his knee, and not when he was in the act of aiming and firing; and inasmuch as it has not been proven, even by circumstantial evidence, that the accused saw or was aware that the deceased Leonardo, who stood behind him, had moved near him and in front of the muzzle of the gun; the conclusion to be arrived at must necessarily be that the said death was not the result of a voluntary and criminal act, nor of an omission or reckless negligence, but an involuntary act devoid of a criminal character, that is a regretable and unfortunate accident without any effort of the will.lawphil.net In view of the foregoing, and as the facts proven in the case do not constitute a crime, not even that of homicide through imprudence, it is our opinion that the judgment appealed from should be reversed, and that A.H. Barnes should be acquitted and he is hereby acquitted of the charge, with the costs of both instances de oficio. So ordered. Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

G.R. No. 165842 November 29, 2005 EDUARDO P. MANUEL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña]. CONTRARY TO LAW. 3 The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.4 He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina’s resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tina’s parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.5 It appeared in their marriage contract that Eduardo was "single."

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.6 Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.7 She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.8 For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a "love-bite" on her neck. He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of ₱200,000.00 by way of moral damages, plus costs of suit.9 The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo’s belief, that his first marriage had been dissolved because of his first wife’s 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no

longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Peñalosa11 and Manahan, Jr. v. Court of Appeals.12 The Office of the Solicitor General (OSG) averred that Eduardo’s defense of good faith and reliance on the Court’s ruling in United States v. Enriquez13 were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,14 the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage; the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainant’s knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaña’s presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.17 Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.18 The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouse’s reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a "GRO" before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioner’s conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.19 The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.20 The phrase "or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised Penal Code because the drafters of the law were of the impression that "in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy."21 For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.22 It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.23 Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.24 On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado v. Tan,27 under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.28 He explained that: … This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.29 As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.30 Although the words "with malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word "voluntary."31 Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.32 When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.33 Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.34 For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.35 In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.36 The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase "or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social institution." Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.37 The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing

essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse38 after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.39 Only with such proof can marriage be treated as so dissolved as to permit second marriages.40 Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,41 namely, a judgment of the presumptive death of the absent spouse. The petitioner’s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide – Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration.42 However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.43 With the effectivity of the Family Code,44 the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,45 without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:46 In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioner’s contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.48 In In Re Szatraw,49 the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard

from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.50 The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,51 the Court declared that the words "proper proceedings" in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,52 the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings" is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.53 A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.54 Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.56 The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.57 Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: … Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.58 Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause "before the absent spouse has been declared presumptively dead x x x" should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.59 According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.60 Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.61 Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, "which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry." Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.62 On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,63 where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los daños de ₱5,000.00 arriba mencionados.64

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.65 An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.66 Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named. Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 221967 and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)68 Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, "every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith." This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.69 Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.70 If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same." On the other hand, Article 21 provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages." The latter provision is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes." Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.71

In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance – that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioner’s chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.72 The Court rules that the petitioner’s collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,73 the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant’s conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendant’s bigamous marriage to her and the attendant publicity she not only was embarrassed and "ashamed to go out" but "couldn’t sleep" but "couldn’t eat," had terrific headaches" and "lost quite a lot of weight." No just basis appears for judicial interference with the jury’s reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955). The Court thus declares that the petitioner’s acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioner’s perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:75 Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendant’s misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendant’s fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendant’s misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.76 Considering the attendant circumstances of the case, the Court finds the award of ₱200,000.00 for moral damages to be just and reasonable. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals isAFFIRMED. Costs against the petitioner. SO ORDERED.

G.R. No. 166479

February 28, 2006

RODOLFO C. VELASCO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari which seeks to set aside the decision1 of the Court of Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which affirmed the decision2 of Branch 41 of the Regional Trial Court (RTC) of Dagupan City in Criminal Case No. 98-02175-D dated 29 June 1999, finding accused-petitioner Rodolfo C. Velasco guilty of Attempted Murder, and its Resolution3 dated 21 December 2004 denying petitioner’s motion for reconsideration. An Information4 dated 20 April 1998 charged petitioner with the crime of Attempted Murder committed as follows: That on or about the 19th day of April, 1998, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SN I RODOLFO C. VELASCO, being then armed with a gun, with treachery and with intent to kill one FREDERICK MARAMBA, did then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by shooting him, hitting him on the left upper arm, the said accused having thus commenced a felony directly by overt acts but did not perform all the acts of execution which could have produced the crime of murder, by reason of some cause or accident other than his own spontaneous desistance, to the damage and prejudice of said FREDERICK MARAMBA. When arraigned, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime charged.5 On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of Dagupan City, ordered the release of petitioner after a surety bond was posted by the Mega Pacific Insurance Corporation in the amount of ₱120,000.00.6 The evidence is summarized by the trial court as follows: The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30 o’clock in the morning, private complainant Frederick Maramba was cleaning and washing his owner type jeep in front of his house at Lasip Grande, Dagupan City when a motorized tricycle stopped near him. Accused Rodolfo Velasco dashed out of the tricycle, approached the complainant and fired at him several times with a .45 caliber pistol. The accused missed with his first shot but the second one hit the complainant at the upper arm, causing him to stumble on the ground. The complainant stood up and ran, while the accused continued firing at him but missed. The shooting incident was reported to the police sub-station in Malued District by Barangay Captain Dacasin of Lasip Grande, describing the suspect as wearing a vest or a "chaleco." The police, composed of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and SPO1 Soliven respondent and pursued the accused who proceeded on board a motorized tricycle to the highway going to Barangay Banaoang in Calasiao town. The police caught up with the tricycle and brought the accused to the police sub-station. A firearm (Exhibit "A") protruding from the waistline of the accused, three (3) magazines (Exhibit "B", "B-1" & "B-2") and fourteen (14) live ammunitions (Exhibits ‘C" to "C-13") were confiscated from the possession of the accused. The police also recovered seven (7) spent ammunitions (Exhibits "D" to "D-6") at the crime scene. At the City Jail in Dagupan City where the accused was subsequently brought, the private complainant Frederick Maramba identified and pointed to the accused as the one who fired at him, hitting him on the upper left arm. Complainant identified the affidavit which he executed naming the accused as his assailant (Exhibit "H") and who shot him on the morning of April 19, 1998 in front of his residence at Lasip Grande. Private complainant further testified that he was hospitalized and treated at the Region 1 Medical Center, Dagupan City by Dr. Arturo de Vera, Jr. who issued a MedicoLegal Certificate stating that the victim sustained, "Gunshot wound point of entry: 1.5 cm lateral aspect distal, 3rd arm left" and; "Gunshot wound point of exit: 4 cm lateral aspect posterior, 3rd arm left" (Exhibit "I"). By reason of his wounds, complainant incurred expenses for hospitalization and medicines in the total amount of ₱2,696.06 (Exhibit "J" to "J-14"). Armando Maramba, the driver of the tricycle in which the accused rode, testified that he picked up the accused who was wearing a chaleco, at the intersection of PogoLasip Road. Upon reaching the parked jeep which was being washed by the private complainant, the accused ordered him to stop. The accused alighted and fired several shots at the victim. Then the accused went back to the tricycle and ordered him to proceed to Calasiao. The accused alighted at the intersection of the De Venecia Highway and Malued Road and took another tricycle. Witness executed an affidavit before the Police Headquarters in Dagupan City (Exhibit "G") and identified the accused as the one who shot the private complainant. The accused, on the other hand, interposed the defense of alibi. He said that on April 18, 1998, he went to a friend’s house in Lingayen, Pangasinan and spent the night there. The following morning, April 19, 1998, between 6:00 to 7:00 o’clock, he left Lingayen riding in the Volkswagen car of Berting Soriano. He alighted at the corner of Banaoang diversion road. From there he took a tricycle and told the driver to bring him at the foot of the bridge going to Bayambang. While on his way to Calasiao, he heard a jeep behind him blowing its horn and when he looked back he saw three men on board pointing their guns at him. He told the tricycle driver to stop and thereupon the three men approached him and introduced themselves as policemen. They confiscated his gun and then brought him to the police station for interrogation. Thereafter, the police lodged him in the City Jail of Dagupan.

Accused testified that he did not know personally the complaining witness and denied having fired at him. He further said that his .45 caliber pistol which was seized from him by the police is licensed (Exhibit "2").7 In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41, found petitioner guilty of the crime charged, disposing of the case in this wise: WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond reasonable doubt of the crime of attempted murder, defined and penalized under Article 248, in relation to the 3rd par. of Arts. 6 and 51 of the Revised Penal Code, he is hereby sentenced to suffer the indeterminate penalty of Four (4) years of prision correccional, as minimum to Eight (8) years and One (1) day of prision mayor, as maximum. Accused is further ordered to indemnify the complaining witness the amount of ₱2,696.00, as actual damages.8 The trial court gave credence to the testimonies of the private complainant Frederick Maramba and Armando Maramba when they identified petitioner as the assailant. It rejected petitioner’s defense of alibi saying it was not impossible for him to be at the crime scene when the crime was committed because the place where he allegedly alighted from the car of a certain Berting Soriano was only about ten minutes away. It concluded that his defense cannot prevail over the positive identification made by the prosecution witnesses. On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention to appeal to the Court of Appeals.9 Pending appeal with the Court of Appeals, petitioner, after filing a Motion to Bail, was allowed to post bail in the amount of ₱160,000.00.10 To obviate the possibility of flight, the Bureau of Immigration and Deportation (BID) was directed to include petitioner in its hold departure list.11 On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the decision of the RTC. The decretal portion of the decision reads: WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated June 29, 1999 of the Regional Trial Court, Branch 41 of Dagupan City, in Criminal Case No. 98-02175-D, is hereby AFFIRMED. Costs against accused-appellant.12 Petitioner moved for a reconsideration of the decision which motion was denied per resolution13 dated 21 December 2004. Petitioner is now before us via petition for review on certiorari, raising the following grounds: I THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE DECISION OF THE REGIONAL TRIAL COURT. II THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE MOTION FOR RECONSIDERATION PER THE RESOLUTION DATED DECEMBER 21, 2004.14 Petitioner invokes the defenses of denial and alibi. He denies having shot the victim. He alleges that the prosecution was not able to sufficiently establish the identity of the assailant because the Barangay Chairman, who reported the incident to the policemen, identified the assailant as one wearing a "chaleco," was not presented to corroborate the testimony of petitioner. He contends that had the Barangay Chairman been presented, the latter’s testimony would have been adverse to the prosecution. Instead, he points out that the prosecution presented police officers who were not eyewitnesses. He adds that he had no motive to harm, much less kill, the victim, the latter being a total stranger. He explains that since the identity of the assailant is in doubt, motive becomes important and his alibi gains weight and value.15 In a resolution dated 6 April 2005, the Court, without giving due course to the petition, required respondent to file a Comment.16 In its Comment17 dated 8 September 2005, respondent People of the Philippines, through the Office of the Solicitor General (OSG), argues that the factual findings of the Court of Appeals cannot be reviewed since the issue (i.e., positive identification) petitioner is raising involves the credibility of witnesses and the weighing of evidence. It asserts that since the same deals with a question of fact and there being no instance present to take the case out of the general rule that factual findings of the Court of Appeals may be reviewed, a review thereof cannot be made because only a question of law can be re-examined if a petition for review on certiorari under Rule 45 of the Rules of Court has been filed. It adds that even if the case is to be decided on the merits, the petition likewise will fail. In his Reply,18 petitioner submits that a review of the facts of the case is justified on the ground that the Court of Appeals sanctioned substantial and jurisprudential departures committed by the trial court. He maintains that (1) the trial court precipitately observed that alibi is a weak defense; (2) the trial court did not consider that the prosecution had no evidence proving his intention to kill; (3) the trial court did not consider the fact that victim did not know him and vice-versa; (4) it was impossible for him, a navy man – a protector of the people – to have failed to fatally hit the victim after firing seven shots; and (5) the instant case is a frame up. On 17 October 2005, the Court gave due course to the petition and required the parties to submit their respective memoranda.19 In his memorandum, petitioner further argues that the findings of fact in this case should be reviewed because the Court of Appeals erroneously restated the factual findings of the trial court when it purposely omitted and added words changing the tenor of the shooting incident as found by the trial court. He adds that the findings of fact of the trial court do not support a conviction of attempted murder but only attempted homicide as there was no treachery since private complainant was still able to focus his eyes on the gunman until he was fired upon. Further, he points out that the Court of Appeals made different findings as to where the seven spent shells were recovered. He maintains there was suppression of evidence when the prosecution failed to present a ballistic report on the seven empty shells that would

show the identity of the assailant. In addition, he claims that since there was suppression of evidence on the part of the prosecution, the testimony of Armando Maramba is not credible, he being a relative of the victim. Petitioner primarily invokes the defenses of denial and alibi. It is his claim that the prosecution failed to conclusively establish the identity of the assailant and that he was merely framed-up. At the outset, it must be stressed that the instant petition for review on certiorari was filed pursuant to Rule 45 of the Rules of Court where a review is not a matter of right but of sound judicial discretion and will be granted only when there are special and important reasons therefor. It is not the function of this Court to re-examine the evidence submitted by the parties unless the findings of fact of the Court of Appeals are not supported by evidence on record or the judgment is based on a misapprehension of facts. This Court is limited to the review or revision of errors of law and not to analyze or weigh the evidence all over again.20 We agree with the OSG that as ruled by this Court, no questions of facts may be raised in this Court under Rule 45 of the Rules of Court, unless, among other grounds, there is clear and convincing proof that the judgment of the Court of Appeals is based on a misapprehension of facts or when the Court of Appeals failed to notice and appreciate certain relevant facts of substance which if properly considered would justify a different conclusion, and when there is a grave abuse of discretion in the appreciation of facts in the light of the evidence on record. Anything less will not suffice to overturn the decision of the Court of Appeals affirming on appeal the decision of the trial court. It bears stressing that the findings of facts of the trial court, its calibration of the testimonial evidence of the parties and the assessment of the credibility and probative weight of the evidence of the parties and its conclusion anchored on its findings are given high respect if not conclusive effect by this Court, especially if affirmed by the Court of Appeals because of the unique advantage of the trial court of observing and monitoring the demeanor, conduct and deportment of the witnesses as they regale the court with their testimonies. The exception to this rule is when the trial court ignored, overlooked, misconstrued or misappreciated cogent facts and circumstances of substance which if considered would alter the outcome of the case.21 After scrutinizing the records of the case and thoroughly evaluating all the evidence proffered, we find no reason to deviate from the findings of facts of the trial court as affirmed by the Court of Appeals. In the case at bar, the testimonies of private complainant Frederick Maramba and Armando Maramba were given credence and full probative weight and credence by the trial court in the identification of petitioner as the assailant. Private complainant saw petitioner alight from the tricycle of Armando Maramba before he successively shot at him at a distance of about four meters while chasing him for 25 to 30 meters.22 Armando Maramba witnessed the shooting because he was the driver of the tricycle in which petitioner rode in going to the house of private complainant and in leaving the crime scene.23 After the shooting incident, private complainant went to the City Jail and identified petitioner as the person who shot him.24 At the Dagupan City Police Station, Armando Maramba pointed to petitioner as the assailant not because he saw a man wearing a chaleco, but because it was he whom he saw shoot the private complainant.25 Petitioner asks that the findings of fact of the case should be reviewed because the Court of Appeals erroneously restated the factual findings of the trial court when it purposely omitted and added words changing the tenor of the shooting incident as found by the trial court. Petitioner said the Court of Appeals purposely added the word "suddenly" and replaced the phrase "near him" with "in front of." He adds that the Court of Appeals added the phrase "without any warning" and removed the phrase "approached the complainant." He even claims that the Court of Appeals changed the manner how private complainant was shot, when he was hit, and how he stumbled and how he was able to stand up and continue running. He further states that the Court of Appeals made a different finding as to where the seven spent shells were recovered. He points out that the Court said the seven spent shells were recovered from the accused while the trial court found that the same were found in the crime scene. As above discussed, the findings of the trial court on its assessment of the credibility of the witnesses and their testimonies and the probative weight thereof, are accorded by the appellate court high respect if not conclusive effect, unless the trial court ignored, misconstrued or misinterpreted facts and circumstances, which if considered, would alter the outcome of the case.26 In the case at bar, the addition or omission of these words, and the difference between the findings of the trial court and the Court of Appeals as to where the seven spent shells were found, are too minor and inconsequential to affect the outcome of this case. These, even if considered, would not overturn the established fact that petitioner was identified as the assailant. Nothing in the record shows that there was any inconsistency as regards the identity of the assailant. Both private complainant and Armando Maramba were one in pointing to petitioner as the culprit. Petitioner interposes the defenses of denial and alibi. He denies participation in the crime claiming that he was aboard a tricycle on his way to Calasiao, Pangasinan, when policemen arrested him and brought him to the Dagupan Police Station. On the other hand, the victim himself identified petitioner as his attacker which statement was corroborated by Armando Maramba. To be believed, denial must be buttressed by strong evidence of non-culpability. Otherwise, it is purely self-serving and without merit.27 Settled is the rule that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters.28 Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime.29 There being no strong and credible evidence adduced to overcome the testimonies of private complainant and Armando Maramba pointing to him as the culprit, no weight can be given petitioner’s denial. Petitioner’s defense of alibi likewise fails. As against positive identification by prosecution witnesses, the accused’s alibi is worthless.30 Having been identified by two credible witnesses, petitioner cannot escape liability. Moreover, for alibi to prosper, it must be proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the locus criminis.31 Courts view the defense of alibi with suspicion and caution not only because it is inherently weak and unreliable, but also it can be fabricated easily.32 As found by the trial court, it was not physically impossible for petitioner to be at the crime scene when the crime was committed since it only takes a ten-minute ride from the place where he allegedly alighted from the car of one Berting Soriano to the crime scene. We have held that: Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common notion, alibi is in fact a good defense. But to be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accused’s presence at the crime scene, the alibi will not hold water.33

Petitioner contends there was suppression of evidence when the prosecution did not place on the witness stand Barangay Captain Dacasain of Lasip Grande and when it failed to present a ballistic report on the seven empty shells because both are vital evidence to prove the identity of the assailant. We find such contention untenable. As to the non-presentation of Barangay Captain Dacasin, the same does not constitute suppression of evidence. Barangay Captain Dacasin was not an eyewitness to the shooting incident contrary to the claim of petitioner. Although he was the one who reported the incident to the police station, he was merely informed by Armando Maramba that the person who shot private complainant wore a "chaleko" or vest.34 Thus, not being an eyewitness, his testimony, even if taken, would have nothing to do with the identification of the assailant. If he really wanted to have Barangay Captain Dacasin take the witness stand, he could have asked the trial court for a subpoena ad testificandum. This, he did not do. As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide for the courts in considering the ultimate facts of the case.35 It would be indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in nature.36 The presentation of weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than enough to sustain his conviction.37 Even without a ballistic report, the positive identification by prosecution witnesses is more than sufficient to prove accused’s guilt beyond reasonable doubt. 38 In the instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioner’s guilt beyond reasonable doubt. Petitioner’s asseveration that it is unthinkable for him to shoot private complainant because he has no motive to harm, much less kill the latter, he being a total stranger, deserves scant consideration. It must be stressed that motive is a state of (one’s) mind which others cannot discern. It is not an element of the crime, and as such does not have to be proved. In fact, lack of motive for committing a crime does not preclude conviction. It is judicial knowledge that persons have been killed or assaulted for no reason at all.39 Even in the absence of a known motive, the time-honored rule is that motive is not essential to convict when there is no doubt as to the identity of the culprit.40 Motive assumes significance only where there is no showing of who the perpetrator of the crime was.41 In the case at bar, since petitioner has been positively identified as the assailant, the lack of motive is no longer of consequence. Petitioner argues that the testimony of prosecution witness Armando Maramba should not be given weight because the same is biased and incredible on the ground that he is the uncle of the private complainant. This argument does not inspire belief. The blood relationship of Armando Maramba and private complainant would not render the former’s testimony unworthy of belief. On the contrary, relationship could strengthen the witnesses’ credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. Their natural interest in securing the conviction of the guilty would deter them from implicating a person other than the true offender.42 It is settled that where there is no evidence and nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit.43 The weight of the testimony of witnesses is not impaired nor in anyway affected by their relationship to the victim when there is no showing of improper motive on their part.44Jurisprudence likewise holds that if an accused had really nothing to do with a crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.45 In the case before us, aside from petitioner’s claim that he was framed-up, there is nothing in the records that shows that Armando Maramba had ulterior motives in testifying against him. Necessarily, the testimony of Armando Maramba must be given full credit. Petitioner claims that as a navy man who is trained to kill enemies of the state, a "protector of the people," he could not have acted in the manner which the prosecution pointed out. He said it is against human experience to attempt to kill a person in the presence of a witness and in broad daylight, and that it is preposterous that after firing seven shots at close range, he failed to fatally hit the private complainant. All these, he said, only point to a different assailant. We are not convinced. The records show that the shooting happened at around 7:30 a.m. The fact that the shooting occurred in broad daylight does not render its commission impossible.46 This Court takes notice that it is not unusual that killings are perpetrated in front of witnesses. In the instant case, the attempted killing was witnessed by Armando Maramba, the driver of the tricycle which petitioner rode in going to, and in leaving, the crime scene. Petitioner argues that he could not have been the assailant because it was simply impossible for him, being a navy man, not to fatally hit private complainant after firing seven shots at close range. In effect, what he is saying is that the bungled killing cannot be the handiwork of an experienced soldier like him. Such an argument does not hold water. In the case of People v. Mamarion,47 we brushed aside the very same argument raised by the accused therein who was an experienced military man. We ruled that an accused is not entitled to an acquittal simply because of his previous, or even present, good moral character and exemplary conduct. The fact that petitioner was a navy man -- a protector of the people -- does not mean that he is innocent of the crime charged or that he is incapable of doing it. This argument fails in light of the identification made by the victim himself and by Armando Maramba that it was petitioner who was the assailant. Finally, petitioner submits that if ever he committed a crime, he merely committed attempted homicide. He maintains there was no sudden firing because the victim testified he was observing the alleged gunman for a period of ten seconds before the latter finally drew his .45 caliber pistol and fired at him. After the first shot, the victim was able to run away. The lower court was correct in appreciating treachery in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.48 The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the victim.49 It was clearly established that private complainant, while washing his jeep, was suddenly fired upon by petitioner for no reason at all. The suddenness of the shooting and the fact that he was unarmed left private complainant with no option but to run for his life. It is likewise apparent that petitioner consciously and deliberately adopted his mode of attack making sure that private complainant will have no chance to defend himself by reason of the surprise attack. Petitioner’s claim that the shooting was not sudden because private complainant was observing him from the time he alighted from the tricycle is belied by the fact that private complainant was not able to run when he was first fired upon. Though private complainant was looking at him, the former was not forewarned by any outward sign that an attack was forthcoming. It was only after the first shot that he felt his life was in danger.

Having commenced the criminal act by overt acts but failing to perform all acts of execution as to produce the felony by reason of some cause other than his own desistance, petitioner committed an attempted felony. Petitioner already commenced his attack with a manifest intent to kill by shooting private complainant seven times, but failed to perform all the acts of execution by reason of causes independent of his will, that is, poor aim and the swiftness of the latter. Private complainant sustained a wound on the left arm that is not sufficient to cause his death. The settled rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only attempted murder, since the accused did not perform all the acts of execution that would have brought about death.50 The penalty imposed by the trial court is correct. Under Article 51 of the Revised Penal Code, the penalty lower than two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpertua to death. The penalty two degrees lower is prision mayor. Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstances, the minimum of the penalty to be imposed should be within the range of prision correccional, and the maximum of the penalty to be imposed should be within the range of prision mayor in its medium period. WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against petitioner. SO ORDERED.

G.R. No. L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant. Gibb & Gale, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law. At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability: xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language: It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine: In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that — There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also — Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And — In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of selfdefense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily." Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such

doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland and Elliott, JJ., concur. Arellano, C.J., and Mapa, J., dissent.

G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present — appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

G.R. No. L-29066 March 25, 1970 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO AMIT, defendant-appellant. Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiros for plaintiff-appellee. Emilia Vidanes-Balaoing as counsel de officio for defendant-appellant.

PER CURIAM: Marcelo Amit was charged in the court below with the complex crime of rape with homicide described and penalized in Article 335 of the Revised Penal Code, as amended. Arraigned with the assistance of a counsel de officio, he pleaded guilty. Due to the gravity of the offense charged, however, the Court required additional evidence from the prosecution, which the latter presented in the form of (1) the extrajudicial confession of appellant in Ilocano (exhibit A) and its translation into English (Exhibit A-1) wherein he narrated in detail how the crime was committed; (2) the autopsy report (Exhibit B) describing the injuries suffered by the victim as she resisted appellant's criminal advances against her honor; and (3) the medical certificate (Exhibit C) describing the personal injuries suffered by the appellant himself during the struggle put up against him by the victim. On the basis of appellant's plea of guilty and the abovementioned evidence, the trial court rendered judgment sentencing him "to suffer the supreme penalty of death, with the accessories prescribed by law; to indemnify the heirs of the deceased Rufina Arellano in the amount of P6,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs." Pursuant to the provisions of Section 9, Rule 122 of the Revised Rules of Court, said judgment was elevated to us for review. While appellant does not question the correctness of the decision under review in so far as it finds him guilty of the crime charged, he claims, through his counsel de officio, that the penalty of death imposed upon him should be reduced to reclusion perpetua in view of the presence of three mitigating circumstances which the trial court should have considered in his favor, namely: (1) plea of guilty; (2) voluntary surrender, and (3) lack of intention to commit so grave a wrong as the one actually committed. The Solicitor General admits that the mitigating circumstances of plea of guilty and voluntary surrender have been proven, but denies that the mitigating circumstance of lack of intention to commit so grave a wrong as the one actually committed was similarly established. We agree with this latter contention. Appellant's contention — because of its nature, must necessarily be judged in the light of the acts committed by him and the circumstances under which they were committed. Should they show a great disproportion between the means employed to accomplish the criminal act — on the one hand — and its consequences — on the other — the mitigating circumstance under consideration must be considered in favor of the accused (U.S. vs. Reyes, 36 Phil. 904, 906-907). Otherwise, it should not. In the case at bar, the following excerpts taken from appellant's extrajudicial confession (Exhibit A-1, translation) give us an idea of the acts committed by him in executing the crime: Q: And what did Rufina Arellano do to you when you made her lay down and you immediately place yourself on top of her? A: She resisted a little, nevertheless I was able to do sexual intercourse with her, sir. Q: In her act of resisting you, what did Rufina Arellano do to you? A: She bit me and scratched me, sir. Q: What part of your body did Rufina Arellano bit and scratched? A: She bit me on a place a little below my shoulder and scratched me on my breast, sir. Q: When Rufina Arellano put up a little resistance when you placed yourself on top of her, what did you do also? A: I held her on the neck and pressed it downward, sir.

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Q: The left cheek of Rufina Arellano even swelled, do you know how she sustained it that caused it to swell? A: I boxed her when she resisted, sir. Q: What hand of yours boxed the left cheek of Rufina Arellano? A: My left hand, sir, for my right hand was holding her neck. Q: So what was the position of Rufina Arellano when your right hand was holding her neck as you boxed her on the cheek with your left hand? A: Rufina Arellano was lying down on her back and I was on top of her, sir. (pp. 23-24, rec.) At the time of the commission of the crime, appellant was 32 years of age, while his victim was 25 years his senior; his victim resisted his attempt to rape her by biting and scratching him; to subdue her, appellant boxed her and then "held her on the neck and pressed it down" while she was lying on her back and he was on top of her. These acts, We believe, were reasonably sufficient to produce the result that they actually produced — the death of appellant's victim. Consequently, what we said in People vs. Yu, G.R. L-13780, promulgated on January 28, 1961, would seem to apply: The lack of intention to commit so grave a wrong as that committed cannot be appreciated in favor of an accused who employed brute force — choking a 6-year old girl to death, who tried to shout while he was raping her — intention being gathered from and determined only by the conduct and external acts of the offender, and the results of the acts themselves. The penalty of Death prescribed in the last paragraph of Article 335 of the Revised Penal Code, as amended by Republic Acts Nos. 2632 and 4111 being an indivisible penalty, it has to be imposed regardless of the presence of mitigating circumstances, especially in a case like the present where, according to the evidence of record, the crime was committed with the aggravating circumstances of nighttime and abuse of superior strength (first paragraph, Article 63, Revised Penal Code). Moreover, the civil indemnity awarded by the trial court must be increased to P12,000.00. MODIFIED AS ABOVE INDICATED, the judgment appealed from is affirmed in all other respects. With costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

G.R. No. L-47941 April 30, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME TOMOTORGO y ALARCON, defendant-appellant.

ALAMPAY, J.: Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows: WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor. Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole. SO ORDERED. Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA Judge (Rollo, pg. 10)

The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to. On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains. After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife. Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused. After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation. With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred:

1. In disregarding its own findings of fact which showed manifest lack of intent to kill; 2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; 3. In not following the mandatory sequence of procedures for determining the correct applicable penalty; 4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4) We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him. Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that: ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed; 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty. Under Article 64, sub-par. 5, of the Penal Code, When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9) Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law. These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that — ... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150).

Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied) We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence. The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole. WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole. SO ORDERED.

G.R. No. L-36858 June 20, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MACARIO A. ULEP, accused-appellant. The Solicitor General for plaintiff-appellee. Castor Naval for accused-appellant.

GANCAYCO, J.: A man must love his wife. He must not lift a finger to hurt her. Indeed he must be her protector. When against this unwritten rule he beats her, he ceases to be a man. He becomes a beast. And the law imposes the supreme penalty when in the process he kills her. It is parricide pure and simple. This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos Norte, Second Judicial District. He was sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the deceased in the amount of P12,000.00 and to pay the costs in a decision of March 20, 1973. The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as a result of physical injuries inflicted upon her on that very day by her husband, accused Macario Ulep. The following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of the said death of Asuncion Pablo who allegedly died of a heart attack. The Chief of Police and the Rural Health Officer went to the house of the deceased and there they saw the body on a bamboo bed surrounded by relatives, friends, and the husband of the deceased, Macario. The Chief of Police suggested that an autopsy be conducted but the husband refused to allow the same. However, the daughter of the deceased by a previous marriage asked for a day or two to decide on her preference. At the behest of the daughter, the request for an autopsy was made shortly before the burial. Accordingly, the police chief and Dr. Eliseo Bonoan, a physician, caught up with the funeral Procession at the Catholic cemetery and thereupon conducted an autopsy on the deceased. The autopsy reports read as follows: POSTMORTEM EXAMINATION Name: ASUNCION PABLO ULEP Age: 42 Nationality: Filipino Address: No. 24, San Nicolas, Ilocos Norte Date: May 25, 1970 PATHOLOGICAL DIAGNOSIS SKIN: A rectangular area of about 1" x 3" bluish black in color was noted on the upper half, anterior aspect of the arm, left. SKELETAL SYSTEM: Complete fracture of the 4th, 5th, 6th and 7th ribs, left. The 4th and 5th ribs fractured along the midolavicular line, left. The 6th and 7th ribs fractured along the anterior auxillary line, left. Presence of extravascated blood and injuries of the surrounding tissues of the broken ribs areas, left. Complete fracture of the 3rd and 4th ribs at the juncture of the rib and external cartillages with concomitant injury to its sounding tissues and extravascated blood, right side. THORACIC CAVITY:

Presence of about 200 cc. of a serous fluid found within the cavity. Pleura lacerated at the points of fractures. CARDIOVASCULAR SYSTEM: Heart with small amount of clotted blood. Coronary vessels congested. The big blood vessels contained small amount of clotted blood. ABDOMINAL CAVITY: Presence of about 500 cc. of serous fluid within the cavity. DIGESTIVE SYSTEM: Apparently normal CENTRAL NERVOUS SYSTEM: The meningeal vessels were congested. CAUSE OF DEATH: CARDIAC ARREST PRIMARY SHOCK. (Exh. D, p. 16, rec.). 1 Two weeks after the burial, two (2) constabulary sergeants investigated Macario Ulep. A statement was prepared and signed by the accused and was subsequently sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this statement, marked as Exhibit "A", he admitted that he caused the death of his wife by elbowing her because his wife was then drunk and was uttering indecent words. The following day, PC sergeant Damian Bautista of Camp Juan, Laoag City conducted another investigation of accused Macario Ulep. His statement was reduced to writing and then subscribed to before Fiscal Abaya. He reiterated that the cause of death of his wife, Asuncion Pablo, was his elbowing her on her breast. This statement was marked Exhibit "B". Ulep narrated that this elbowing and attack took place at their home at 5:30 in the afternoon. She vomitted and then went to bed, The accused then left for the fields and returned at around 9:00 in the evening and found his wife dead on her bed. He reported this death to their barrio captain. Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted his statement in court by narrating that more than a year before that, and while his wife went to have their palay milled, their bullcart loaded with sacks of rice turned upside down and pinned his wife on her breast. With the pain in her chest, she was treated by a country quack doctor or "arbularyo." The accused took exception to his conviction when he raised the following errors: I THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE ACCUSEDAPPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART. II THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY DR. PEDRO BLANCO FOR THE DEFENSE. III THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM OF THE CRIME OF PARRICIDE. Our primary concern is to determine the cause of death of Asuncion Pablo, the wife, of the accused. Was her death a result of cardiac arrest and primary shock due to fractured ribs? The appellant alleges that the gradual weakening of the heart due to a long standing illness of the body system caused the cardiac arrest which claimed the life of Asuncion Pablo.

The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who conducted an autopsy at the behest of a daughter of tile deceased by a previous marriage. The husband who previously denied permission to conduct an autopsy was present when the autopsy was performed shortly before the body was buried at the cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the cause of death was manifestly due to cardiac arrest and primary shock. We agree and see no fault in this finding made in the necropsy report of Dr. Bonoan. The defense took exception to Dr. Bonoan's testimony that the fractures in the chest could have been caused by blows or physical pressure. Could such injuries not have been inflicted by elbow blows when the victim was standing or by knee or feet blows when the victim was lying on her back or was sitting with her back against the wall? While the accused admitted that he delivered several elbow blows on the chest of his wife immediately before her death and the prosecution attributed these blows as the proximate cause of the cardiac arrest and primary shock which resulted in the wife's death, the defense assails this theory of the prosecution in the following manner: First, there were no contusions on the chest of the victim. This indicates that the elbow blows were not of sufficient force to fracture the ribs. This is so because a fracture necessarily results in the extravasation of blood in the fractured area and it is the extravasated blood that causes the swelling or contusion. 2 Dr. Blanco attributes the absence of swelling or contusion on the chest, where the fractures were found, to the fact that the fracture conditions Were of long standing; that is, some repairs has happened and that sufficient time have elapsed for the swelling to disappear (t.s.n., p. 180). Second, even on the theory that fractures of the ribs as that found by Dr. Bonoan were present, the same could have not caused cardiac arrest and primary shock. This is so because only extravasated blood was present around the immediate area of the fractures, This means that the fractures were not depressed or that the fractured ends did not cave-in, so as to injure the heart and impede its functions to cause cardiac arrest. The claim of Dr. Bonoan that the chest is pliant and is like an accordion which can be compressed is puerile to say the least. Even so, the elbow blows of the accused could not have caused a compression of the chest wall, no matter how pliant it could be. And even on the theory that the fractures were caused by stamping the foot on a piece of wood placed on the chest, while the victim was lying on her back, still the fractures could not have injured the heart or impede its functions to cause cardiac arrest, because the fractures, were not depressed fractures or cave-in fractures. The fractures merely caused the extravasation of blood within the fractured areas. And neither would the fractures cause primary shock because they were merely complete fractures; which means a mere breakage that would not cause the stoppage of the heart, because it does not tend to compress the heart. 3 And third, although the pleura or thoracic cavity was lacerated at the points of fracture, the same could not have caused cardiac arrest or primary shock because the lacerations were limited to the pleura. The points of fracture did not cave-in or were not depressed and they did not injure or impede the heart to cause cardiac arrest. Neither did the lacerations of the pleura cause primary shock because blood did not spill into the pleura, which indicates that the hemorrhage was nil. This is so because the serous fluid in the pleura -as not reddish. On the contrary, the evidence of the prosecution shows that the deceased died of cardiac arrest because of the weakening of the heart due to a long standing process or condition in her body system. Thus the theory of the defense is strengthened by the very evidence of the prosecution. 4 Furthermore, both sides in this case took issue to the presence of 200 cc. of serous fluid in the pleura. The appellant claims that it is not normal whereas the prosecution says that the pleura normally contains 100 to 200 cc. of serous fluid and that this is normal. Anyway both agree that there should be enough serous fluid to lubricate the tissues. The presence of 500 cc. of serous fluid in the abdominal cavity which, according to Dr. Blanco, the physician, witness for the appellant, may be due to the chronic condition of the kidney like nephritis and edema or the hardening of the liver or a long progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view when he said that the fluid was rather increased as a result of the diffusion of the medicine used in the embalming. 6 We find cogent basis in the explanation given by Dr. Bonoan. Another point raised in the necropsy report pertains to the presence of clotted blood in the heart and blood vessels as well as the congestion of the meningeal vessels. The appellant bares that this is a sign of the hardening of the heart. Dr. Bonoan of the prosecution disclosed that there were no signs of circulatory weakening and that blood clots were not found adherent to the heart and such being the condition there could be no abnormality and thus he further declares that such clots are normally found in the heart of a dead person or in any part of the circulatory system. 7 There is an admission by Dr. Blanco, the appellant's witness, that he has not "attended a case of fractured ribs" 8and that he explains cardiac failure as a "failing of the heart" and his further concept is that it is "the stopping of the heart." He says that such stoppage could be due to trauma, such as a fracture of the ribs. 9 A resume of the evidence presented by the parties establishes the fact of death of Asuncion Pablo on May 21, 1970. She was legally married to Macario Ulep, the appellant herein. The death, established in two affidavits, Exhibits "A" and "B," was caused by said accused. In these affidavits, the appellant admitted that he elbowed and attacked his wife. This attack caused the complete fracture of the 4th, 5th, 6th and 7th ribs on her left chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo on the same evening of May 21, 1970. The trial judge observed: "There was never any attempt on the part of the accused to repudiate the sworn statements wherein he admitted that the cause of death of his wife was his having elbowed her many times on her breast." 10 Having realized the gravity of his act, the appellant presented a witness to prove that sometime in February or March, 1969 his wife was pinned down by a sack of rice and the side portion of a bullcart and was attended to by a town quack doctor called an arbularyo. This witness said that two (2) ribs on each side of the chest were fractured, without stating which particular ribs were so affected. From all these observations, findings, and an incisive study of the necropsy report, the cause of death of the wife-victim in this case is cardiac arrest and primary shock caused by the strong pressure applied on the upper front chest bone. This happens when one steps, kneels or presses the body of a victim against a wall. The man-size blows coming from the elbow of the aggressor upon a thin-framed woman can only bring about fatal results.

We find relevance in Wharton and Stilles' findings in their book, Medical Jurisprudence under the title of "SHOCK," to wit: Sec. 225. Shock. — Death may also be due to the shock associated with the injury. The possibility of a person dying from the shock attendant upon an injury which, by itself appears to be unimportant is attested by experience. No satisfactory explanation of the cause of the shock seems to have been found, though it is due in some way to the upsetting of the nervous equilibrium of the body. Shock from an injury may be fatal even when the blow leaves no trace behind it; as, for instance, when a person receives a violent blow upon the pit of the stomach, or behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et al., 11 the deceased had received injuries to the abdomen by kick and blows, but there were no marks of bruises present, or anything to show the cause of death. Death however, had followed twenty minutes after the maltreatment and was evidently due to the shock. The prisoners were convicted of murder. 12 We have previously stated that: Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if the blow delivered by the accused — (a) is the efficient cause of death; or (b) accelerated his death; or (c) is the proximate cause of death; then there is criminal liability. 13 Apropos to all these is that time-respected doctrine: "He who is the cause of the cause is the cause of the evil caused." This is the rationale in Article 4 of the Revised Penal Code which provides that "criminal liability shall be incurred by a person committing a felony (delito) although the wrongful act done be different from that which he intended." Again, We elucidated that: even though a blow with the fist or a kick does not cause any external wound, it may easily produce inflammation of the spleen and peritonitis and cause death, and even though the victim may have been previously affected by some internal malady, yet if the blow with the fist or foot accelerated death, he who caused such acceleration is responsible for the death as the result of an injury willfully and unlawfully inflicted. 14 We are, therefore, convinced that there is no fundamental disagreement between the two medical witnesses as to the cause of the victim's death and that cardiac arrest and primary shock took away the life of the victim, Asuncion Pablo. There is that clear and categorical showing that on the appellant fell the blame for these in human acts on his wife. He should answer for her tragic death. The indemnity to the heirs of his deceased wife should be increased to P30,000.00. WHEREFORE, with the above modification as to indemnity, the judgment appealed from is hereby AFFIRMED in all other respects. SO ORDERED.

G.R. No. 72964 January 7, 1988 FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.: This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide. The records disclose the following facts of the case. At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine. After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads: TO WHOM IT MAY CONCERN: This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following: 1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right. As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records) Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit: xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.) Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven. At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows: Date Diagnosis 11-14-80 ADMITTED due to trismus adm. at DX TETANUS 1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm. 02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records) In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District. Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states: That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982; That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province; That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced; That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes; That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo) The motion was denied. Hence, this petition. In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said: The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death. Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418). Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo) The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record. In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause: xxx xxx xxx ... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: ... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186) The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent. Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied) Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118). "A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125) It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16). We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said: xxx xxx xxx ... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? "For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged." The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio. SO ORDERED.

G.R. No. 103119 October 21, 1992 SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder. From the records, we gathered the following facts. In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed. At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire. Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides: Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred: xxx xxx xxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that: . . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3 Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5 This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus: Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14 The impossibility of killing a person already dead 15 falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17 The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that: The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that: It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party. In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit: It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that: . . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission. Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was

achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said: Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt. To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge — that is, attempt. This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs. SO ORDERED.

G.R. No. 166326

January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming, with modification, the Decision2 of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al. On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads: That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit with a piece of hollow block, one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the different parts of his body, the accused thus commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution which would produce the crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen, to his damage and prejudice. CONTRARY TO LAW.3 Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would-be rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the television network ABS-CBN for saving the would-be victim. His wife eked out a living as a manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo. At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued. At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house. Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital left.4 The doctor declared that the lacerated wound in the parietal area was slight and superficial and would heal from one to seven days.5 The doctor prescribed medicine for Ruben’s back pain, which he had to take for one month.6 Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to Ruben, the latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and brought to their house. For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo at the scene. Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and ordered him to get out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and asked Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at Edgardo’s shirt and hair, and, in the process, Ruben’s head hit the lamp post.7 On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00. SO ORDERED.8 The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed decision. The dispositive portion of the CA decision reads: WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED. SO ORDERED.9 The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in affirming the RTC decision. They insist that the prosecution failed to prove that they had the intention to kill Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area; hence, they should be held criminally liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only of attempted homicide. On the other hand, the CA held that the prosecution was able to prove petitioners’ intent to kill Ruben: On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows: Q: And while you were being boxed by Esmeraldo and Bong, what happened next? A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head, Sir. Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol? A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir. As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them even picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.10 The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus: The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent to kill is very evident and was established beyond reasonable doubt. Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. They further narrated that, soon thereafter, his two brothers Ismael and Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera and the simultaneous attack of the two other petitioners. It was also established that the victim was hit by Edgardo "Dagul" Rivera, while he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed the victim had he not managed to escape and had the police not promptly intervened. Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court of Appeals held: As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.11 The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo. In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed. In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral contusions. That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate petitioners’ criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still criminally liable for attempted murder. The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. The essential elements of an attempted felony are as follows: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offender’s act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.13 The first requisite of an attempted felony consists of two elements, namely: (1) That there be external acts; (2) Such external acts have direct connection with the crime intended to be committed.14 The Court in People v. Lizada15 elaborated on the concept of an overt or external act, thus: An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d’etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.16 In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have died. We reject petitioners’ contention that the prosecution failed to prove treachery in the commission of the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-year-old daughter, impervious of the imminent peril to his life. He had no chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden and unexpected attack on the victim.17 Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or defend himself, there would be treachery.18 Obviously, petitioners assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners, treachery is considered against all of them.19 The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccionalin its minimum period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor.

In the absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years. Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. No costs. SO ORDERED.

G.R. No. 166479

February 28, 2006

RODOLFO C. VELASCO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari which seeks to set aside the decision1 of the Court of Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which affirmed the decision2 of Branch 41 of the Regional Trial Court (RTC) of Dagupan City in Criminal Case No. 98-02175-D dated 29 June 1999, finding accused-petitioner Rodolfo C. Velasco guilty of Attempted Murder, and its Resolution3 dated 21 December 2004 denying petitioner’s motion for reconsideration. An Information4 dated 20 April 1998 charged petitioner with the crime of Attempted Murder committed as follows: That on or about the 19th day of April, 1998, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SN I RODOLFO C. VELASCO, being then armed with a gun, with treachery and with intent to kill one FREDERICK MARAMBA, did then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by shooting him, hitting him on the left upper arm, the said accused having thus commenced a felony directly by overt acts but did not perform all the acts of execution which could have produced the crime of murder, by reason of some cause or accident other than his own spontaneous desistance, to the damage and prejudice of said FREDERICK MARAMBA. When arraigned, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime charged.5 On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of Dagupan City, ordered the release of petitioner after a surety bond was posted by the Mega Pacific Insurance Corporation in the amount of ₱120,000.00.6 The evidence is summarized by the trial court as follows: The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30 o’clock in the morning, private complainant Frederick Maramba was cleaning and washing his owner type jeep in front of his house at Lasip Grande, Dagupan City when a motorized tricycle stopped near him. Accused Rodolfo Velasco dashed out of the tricycle, approached the complainant and fired at him several times with a .45 caliber pistol. The accused missed with his first shot but the second one hit the complainant at the upper arm, causing him to stumble on the ground. The complainant stood up and ran, while the accused continued firing at him but missed. The shooting incident was reported to the police sub-station in Malued District by Barangay Captain Dacasin of Lasip Grande, describing the suspect as wearing a vest or a "chaleco." The police, composed of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and SPO1 Soliven respondent and pursued the accused who proceeded on board a motorized tricycle to the highway going to Barangay Banaoang in Calasiao town. The police caught up with the tricycle and brought the accused to the police sub-station. A firearm (Exhibit "A") protruding from the waistline of the accused, three (3) magazines (Exhibit "B", "B-1" & "B-2") and fourteen (14) live ammunitions (Exhibits ‘C" to "C-13") were confiscated from the possession of the accused. The police also recovered seven (7) spent ammunitions (Exhibits "D" to "D-6") at the crime scene. At the City Jail in Dagupan City where the accused was subsequently brought, the private complainant Frederick Maramba identified and pointed to the accused as the one who fired at him, hitting him on the upper left arm. Complainant identified the affidavit which he executed naming the accused as his assailant (Exhibit "H") and who shot him on the morning of April 19, 1998 in front of his residence at Lasip Grande. Private complainant further testified that he was hospitalized and treated at the Region 1 Medical Center, Dagupan City by Dr. Arturo de Vera, Jr. who issued a MedicoLegal Certificate stating that the victim sustained, "Gunshot wound point of entry: 1.5 cm lateral aspect distal, 3rd arm left" and; "Gunshot wound point of exit: 4 cm lateral aspect posterior, 3rd arm left" (Exhibit "I"). By reason of his wounds, complainant incurred expenses for hospitalization and medicines in the total amount of ₱2,696.06 (Exhibit "J" to "J-14"). Armando Maramba, the driver of the tricycle in which the accused rode, testified that he picked up the accused who was wearing a chaleco, at the intersection of PogoLasip Road. Upon reaching the parked jeep which was being washed by the private complainant, the accused ordered him to stop. The accused alighted and fired several shots at the victim. Then the accused went back to the tricycle and ordered him to proceed to Calasiao. The accused alighted at the intersection of the De Venecia Highway and Malued Road and took another tricycle. Witness executed an affidavit before the Police Headquarters in Dagupan City (Exhibit "G") and identified the accused as the one who shot the private complainant. The accused, on the other hand, interposed the defense of alibi. He said that on April 18, 1998, he went to a friend’s house in Lingayen, Pangasinan and spent the night there. The following morning, April 19, 1998, between 6:00 to 7:00 o’clock, he left Lingayen riding in the Volkswagen car of Berting Soriano. He alighted at the corner of Banaoang diversion road. From there he took a tricycle and told the driver to bring him at the foot of the bridge going to Bayambang. While on his way to Calasiao, he heard a jeep behind him blowing its horn and when he looked back he saw three men on board pointing their guns at him. He told the tricycle driver to stop and thereupon the three men approached him and introduced themselves as policemen. They confiscated his gun and then brought him to the police station for interrogation. Thereafter, the police lodged him in the City Jail of Dagupan.

Accused testified that he did not know personally the complaining witness and denied having fired at him. He further said that his .45 caliber pistol which was seized from him by the police is licensed (Exhibit "2").7 In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41, found petitioner guilty of the crime charged, disposing of the case in this wise: WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond reasonable doubt of the crime of attempted murder, defined and penalized under Article 248, in relation to the 3rd par. of Arts. 6 and 51 of the Revised Penal Code, he is hereby sentenced to suffer the indeterminate penalty of Four (4) years of prision correccional, as minimum to Eight (8) years and One (1) day of prision mayor, as maximum. Accused is further ordered to indemnify the complaining witness the amount of ₱2,696.00, as actual damages.8 The trial court gave credence to the testimonies of the private complainant Frederick Maramba and Armando Maramba when they identified petitioner as the assailant. It rejected petitioner’s defense of alibi saying it was not impossible for him to be at the crime scene when the crime was committed because the place where he allegedly alighted from the car of a certain Berting Soriano was only about ten minutes away. It concluded that his defense cannot prevail over the positive identification made by the prosecution witnesses. On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention to appeal to the Court of Appeals.9 Pending appeal with the Court of Appeals, petitioner, after filing a Motion to Bail, was allowed to post bail in the amount of ₱160,000.00.10 To obviate the possibility of flight, the Bureau of Immigration and Deportation (BID) was directed to include petitioner in its hold departure list.11 On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the decision of the RTC. The decretal portion of the decision reads: WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated June 29, 1999 of the Regional Trial Court, Branch 41 of Dagupan City, in Criminal Case No. 98-02175-D, is hereby AFFIRMED. Costs against accused-appellant.12 Petitioner moved for a reconsideration of the decision which motion was denied per resolution13 dated 21 December 2004. Petitioner is now before us via petition for review on certiorari, raising the following grounds: I THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE DECISION OF THE REGIONAL TRIAL COURT. II THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE MOTION FOR RECONSIDERATION PER THE RESOLUTION DATED DECEMBER 21, 2004.14 Petitioner invokes the defenses of denial and alibi. He denies having shot the victim. He alleges that the prosecution was not able to sufficiently establish the identity of the assailant because the Barangay Chairman, who reported the incident to the policemen, identified the assailant as one wearing a "chaleco," was not presented to corroborate the testimony of petitioner. He contends that had the Barangay Chairman been presented, the latter’s testimony would have been adverse to the prosecution. Instead, he points out that the prosecution presented police officers who were not eyewitnesses. He adds that he had no motive to harm, much less kill, the victim, the latter being a total stranger. He explains that since the identity of the assailant is in doubt, motive becomes important and his alibi gains weight and value.15 In a resolution dated 6 April 2005, the Court, without giving due course to the petition, required respondent to file a Comment.16 In its Comment17 dated 8 September 2005, respondent People of the Philippines, through the Office of the Solicitor General (OSG), argues that the factual findings of the Court of Appeals cannot be reviewed since the issue (i.e., positive identification) petitioner is raising involves the credibility of witnesses and the weighing of evidence. It asserts that since the same deals with a question of fact and there being no instance present to take the case out of the general rule that factual findings of the Court of Appeals may be reviewed, a review thereof cannot be made because only a question of law can be re-examined if a petition for review on certiorari under Rule 45 of the Rules of Court has been filed. It adds that even if the case is to be decided on the merits, the petition likewise will fail. In his Reply,18 petitioner submits that a review of the facts of the case is justified on the ground that the Court of Appeals sanctioned substantial and jurisprudential departures committed by the trial court. He maintains that (1) the trial court precipitately observed that alibi is a weak defense; (2) the trial court did not consider that the prosecution had no evidence proving his intention to kill; (3) the trial court did not consider the fact that victim did not know him and vice-versa; (4) it was impossible for him, a navy man – a protector of the people – to have failed to fatally hit the victim after firing seven shots; and (5) the instant case is a frame up. On 17 October 2005, the Court gave due course to the petition and required the parties to submit their respective memoranda.19 In his memorandum, petitioner further argues that the findings of fact in this case should be reviewed because the Court of Appeals erroneously restated the factual findings of the trial court when it purposely omitted and added words changing the tenor of the shooting incident as found by the trial court. He adds that the findings of fact of the trial court do not support a conviction of attempted murder but only attempted homicide as there was no treachery since private complainant was still able to focus his eyes on the gunman until he was fired upon. Further, he points out that the Court of Appeals made different findings as to where the seven spent shells were recovered. He maintains there was suppression of evidence when the prosecution failed to present a ballistic report on the seven empty shells that would

show the identity of the assailant. In addition, he claims that since there was suppression of evidence on the part of the prosecution, the testimony of Armando Maramba is not credible, he being a relative of the victim. Petitioner primarily invokes the defenses of denial and alibi. It is his claim that the prosecution failed to conclusively establish the identity of the assailant and that he was merely framed-up. At the outset, it must be stressed that the instant petition for review on certiorari was filed pursuant to Rule 45 of the Rules of Court where a review is not a matter of right but of sound judicial discretion and will be granted only when there are special and important reasons therefor. It is not the function of this Court to re-examine the evidence submitted by the parties unless the findings of fact of the Court of Appeals are not supported by evidence on record or the judgment is based on a misapprehension of facts. This Court is limited to the review or revision of errors of law and not to analyze or weigh the evidence all over again.20 We agree with the OSG that as ruled by this Court, no questions of facts may be raised in this Court under Rule 45 of the Rules of Court, unless, among other grounds, there is clear and convincing proof that the judgment of the Court of Appeals is based on a misapprehension of facts or when the Court of Appeals failed to notice and appreciate certain relevant facts of substance which if properly considered would justify a different conclusion, and when there is a grave abuse of discretion in the appreciation of facts in the light of the evidence on record. Anything less will not suffice to overturn the decision of the Court of Appeals affirming on appeal the decision of the trial court. It bears stressing that the findings of facts of the trial court, its calibration of the testimonial evidence of the parties and the assessment of the credibility and probative weight of the evidence of the parties and its conclusion anchored on its findings are given high respect if not conclusive effect by this Court, especially if affirmed by the Court of Appeals because of the unique advantage of the trial court of observing and monitoring the demeanor, conduct and deportment of the witnesses as they regale the court with their testimonies. The exception to this rule is when the trial court ignored, overlooked, misconstrued or misappreciated cogent facts and circumstances of substance which if considered would alter the outcome of the case.21 After scrutinizing the records of the case and thoroughly evaluating all the evidence proffered, we find no reason to deviate from the findings of facts of the trial court as affirmed by the Court of Appeals. In the case at bar, the testimonies of private complainant Frederick Maramba and Armando Maramba were given credence and full probative weight and credence by the trial court in the identification of petitioner as the assailant. Private complainant saw petitioner alight from the tricycle of Armando Maramba before he successively shot at him at a distance of about four meters while chasing him for 25 to 30 meters.22 Armando Maramba witnessed the shooting because he was the driver of the tricycle in which petitioner rode in going to the house of private complainant and in leaving the crime scene.23 After the shooting incident, private complainant went to the City Jail and identified petitioner as the person who shot him.24 At the Dagupan City Police Station, Armando Maramba pointed to petitioner as the assailant not because he saw a man wearing a chaleco, but because it was he whom he saw shoot the private complainant.25 Petitioner asks that the findings of fact of the case should be reviewed because the Court of Appeals erroneously restated the factual findings of the trial court when it purposely omitted and added words changing the tenor of the shooting incident as found by the trial court. Petitioner said the Court of Appeals purposely added the word "suddenly" and replaced the phrase "near him" with "in front of." He adds that the Court of Appeals added the phrase "without any warning" and removed the phrase "approached the complainant." He even claims that the Court of Appeals changed the manner how private complainant was shot, when he was hit, and how he stumbled and how he was able to stand up and continue running. He further states that the Court of Appeals made a different finding as to where the seven spent shells were recovered. He points out that the Court said the seven spent shells were recovered from the accused while the trial court found that the same were found in the crime scene. As above discussed, the findings of the trial court on its assessment of the credibility of the witnesses and their testimonies and the probative weight thereof, are accorded by the appellate court high respect if not conclusive effect, unless the trial court ignored, misconstrued or misinterpreted facts and circumstances, which if considered, would alter the outcome of the case.26 In the case at bar, the addition or omission of these words, and the difference between the findings of the trial court and the Court of Appeals as to where the seven spent shells were found, are too minor and inconsequential to affect the outcome of this case. These, even if considered, would not overturn the established fact that petitioner was identified as the assailant. Nothing in the record shows that there was any inconsistency as regards the identity of the assailant. Both private complainant and Armando Maramba were one in pointing to petitioner as the culprit. Petitioner interposes the defenses of denial and alibi. He denies participation in the crime claiming that he was aboard a tricycle on his way to Calasiao, Pangasinan, when policemen arrested him and brought him to the Dagupan Police Station. On the other hand, the victim himself identified petitioner as his attacker which statement was corroborated by Armando Maramba. To be believed, denial must be buttressed by strong evidence of non-culpability. Otherwise, it is purely self-serving and without merit.27 Settled is the rule that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters.28 Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime.29 There being no strong and credible evidence adduced to overcome the testimonies of private complainant and Armando Maramba pointing to him as the culprit, no weight can be given petitioner’s denial. Petitioner’s defense of alibi likewise fails. As against positive identification by prosecution witnesses, the accused’s alibi is worthless.30 Having been identified by two credible witnesses, petitioner cannot escape liability. Moreover, for alibi to prosper, it must be proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the locus criminis.31 Courts view the defense of alibi with suspicion and caution not only because it is inherently weak and unreliable, but also it can be fabricated easily.32 As found by the trial court, it was not physically impossible for petitioner to be at the crime scene when the crime was committed since it only takes a ten-minute ride from the place where he allegedly alighted from the car of one Berting Soriano to the crime scene. We have held that: Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common notion, alibi is in fact a good defense. But to be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accused’s presence at the crime scene, the alibi will not hold water.33

Petitioner contends there was suppression of evidence when the prosecution did not place on the witness stand Barangay Captain Dacasain of Lasip Grande and when it failed to present a ballistic report on the seven empty shells because both are vital evidence to prove the identity of the assailant. We find such contention untenable. As to the non-presentation of Barangay Captain Dacasin, the same does not constitute suppression of evidence. Barangay Captain Dacasin was not an eyewitness to the shooting incident contrary to the claim of petitioner. Although he was the one who reported the incident to the police station, he was merely informed by Armando Maramba that the person who shot private complainant wore a "chaleko" or vest.34 Thus, not being an eyewitness, his testimony, even if taken, would have nothing to do with the identification of the assailant. If he really wanted to have Barangay Captain Dacasin take the witness stand, he could have asked the trial court for a subpoena ad testificandum. This, he did not do. As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide for the courts in considering the ultimate facts of the case.35 It would be indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in nature.36 The presentation of weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than enough to sustain his conviction.37 Even without a ballistic report, the positive identification by prosecution witnesses is more than sufficient to prove accused’s guilt beyond reasonable doubt. 38 In the instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioner’s guilt beyond reasonable doubt. Petitioner’s asseveration that it is unthinkable for him to shoot private complainant because he has no motive to harm, much less kill the latter, he being a total stranger, deserves scant consideration. It must be stressed that motive is a state of (one’s) mind which others cannot discern. It is not an element of the crime, and as such does not have to be proved. In fact, lack of motive for committing a crime does not preclude conviction. It is judicial knowledge that persons have been killed or assaulted for no reason at all.39 Even in the absence of a known motive, the time-honored rule is that motive is not essential to convict when there is no doubt as to the identity of the culprit.40 Motive assumes significance only where there is no showing of who the perpetrator of the crime was.41 In the case at bar, since petitioner has been positively identified as the assailant, the lack of motive is no longer of consequence. Petitioner argues that the testimony of prosecution witness Armando Maramba should not be given weight because the same is biased and incredible on the ground that he is the uncle of the private complainant. This argument does not inspire belief. The blood relationship of Armando Maramba and private complainant would not render the former’s testimony unworthy of belief. On the contrary, relationship could strengthen the witnesses’ credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. Their natural interest in securing the conviction of the guilty would deter them from implicating a person other than the true offender.42 It is settled that where there is no evidence and nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit.43 The weight of the testimony of witnesses is not impaired nor in anyway affected by their relationship to the victim when there is no showing of improper motive on their part.44Jurisprudence likewise holds that if an accused had really nothing to do with a crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.45 In the case before us, aside from petitioner’s claim that he was framed-up, there is nothing in the records that shows that Armando Maramba had ulterior motives in testifying against him. Necessarily, the testimony of Armando Maramba must be given full credit. Petitioner claims that as a navy man who is trained to kill enemies of the state, a "protector of the people," he could not have acted in the manner which the prosecution pointed out. He said it is against human experience to attempt to kill a person in the presence of a witness and in broad daylight, and that it is preposterous that after firing seven shots at close range, he failed to fatally hit the private complainant. All these, he said, only point to a different assailant. We are not convinced. The records show that the shooting happened at around 7:30 a.m. The fact that the shooting occurred in broad daylight does not render its commission impossible.46 This Court takes notice that it is not unusual that killings are perpetrated in front of witnesses. In the instant case, the attempted killing was witnessed by Armando Maramba, the driver of the tricycle which petitioner rode in going to, and in leaving, the crime scene. Petitioner argues that he could not have been the assailant because it was simply impossible for him, being a navy man, not to fatally hit private complainant after firing seven shots at close range. In effect, what he is saying is that the bungled killing cannot be the handiwork of an experienced soldier like him. Such an argument does not hold water. In the case of People v. Mamarion,47 we brushed aside the very same argument raised by the accused therein who was an experienced military man. We ruled that an accused is not entitled to an acquittal simply because of his previous, or even present, good moral character and exemplary conduct. The fact that petitioner was a navy man -- a protector of the people -- does not mean that he is innocent of the crime charged or that he is incapable of doing it. This argument fails in light of the identification made by the victim himself and by Armando Maramba that it was petitioner who was the assailant. Finally, petitioner submits that if ever he committed a crime, he merely committed attempted homicide. He maintains there was no sudden firing because the victim testified he was observing the alleged gunman for a period of ten seconds before the latter finally drew his .45 caliber pistol and fired at him. After the first shot, the victim was able to run away. The lower court was correct in appreciating treachery in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.48 The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the victim.49 It was clearly established that private complainant, while washing his jeep, was suddenly fired upon by petitioner for no reason at all. The suddenness of the shooting and the fact that he was unarmed left private complainant with no option but to run for his life. It is likewise apparent that petitioner consciously and deliberately adopted his mode of attack making sure that private complainant will have no chance to defend himself by reason of the surprise attack. Petitioner’s claim that the shooting was not sudden because private complainant was observing him from the time he alighted from the tricycle is belied by the fact that private complainant was not able to run when he was first fired upon. Though private complainant was looking at him, the former was not forewarned by any outward sign that an attack was forthcoming. It was only after the first shot that he felt his life was in danger.

Having commenced the criminal act by overt acts but failing to perform all acts of execution as to produce the felony by reason of some cause other than his own desistance, petitioner committed an attempted felony. Petitioner already commenced his attack with a manifest intent to kill by shooting private complainant seven times, but failed to perform all the acts of execution by reason of causes independent of his will, that is, poor aim and the swiftness of the latter. Private complainant sustained a wound on the left arm that is not sufficient to cause his death. The settled rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only attempted murder, since the accused did not perform all the acts of execution that would have brought about death.50 The penalty imposed by the trial court is correct. Under Article 51 of the Revised Penal Code, the penalty lower than two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpertua to death. The penalty two degrees lower is prision mayor. Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstances, the minimum of the penalty to be imposed should be within the range of prision correccional, and the maximum of the penalty to be imposed should be within the range of prision mayor in its medium period. WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against petitioner. SO ORDERED.

G.R. Nos. 149028-30

April 2, 2003

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused. ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants. CALLEJO, SR., J.: Before the Court on automatic review is the Decision1 of the Regional Trial Court of San Carlos City, Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case No. RTC-1219 and imposing on them the penalty of reclusion perpetua. The Antecedents Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the compound was the house of Leonilo Broce, a nephew of Wilma Broce. In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to the house of Susana Broce, Eugene’s girlfriend, for a chat. Susana’s house was about 15 meters away from the store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an angry tone: "Gene mopalit ka?" (Gene, will you buy?). Eugene replied: "What is this all about? We don’t have any quarrel between us." Armando left the store but stood by the gate of the barbed-wired fence of the Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing the store already, he stood up and left the store on his way to Susana’s house. At that time, Myrna Bawin, who was standing by the window of their house saw her brother Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him to go home. Myrna then left the window to pacify her crying baby. As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole incident, was shocked to immobility at the sudden turn of events. From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the protagonists. Arnold told the Caballero brothers: "Bay, what is the trouble between you and Eugene?" However, Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid under the house of a neighbor. For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help: "Tio, help me because I am hit." The commotion stopped only upon the arrival of Teresito Mondragon who was able to pacify the Caballero brothers. They all returned to the compound. In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they sustained. Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing the following findings: POST-MORTEM EXAMINATION Name:

Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ. Place of Incident: New Sumakwel, San Carlos City, Neg. Occ. Place of Examination: San Carlos City Hospital Date & Time of Incident: August 3, 1994 @ 8:30 P.M. Date & Time Examined: August 3, 1994 @ 10:40 P.M. Post-Mortem Findings:

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

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

=

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

CAUSE OF DEATH:

Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L) and Hemopneumothorax (R).2

He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-bladed instrument, or by three instruments.3 Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem report containing the following findings: POST-MORTEM EXAMINATION Name: Leonilo Broce, 22 years old, male, married Address: New Sumakwel, San Carlos City, Neg. Occ. Place of Incident: New Sumakwel, San Carlos City, Neg. Occ. Place of Examination: San Carlos City Hospital Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M. Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M. Post-mortem findings: =

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

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.4 Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate stating that Arnold sustained the following injuries: =

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

=

Incised wound 2 inches (L) forearm middle 3rd

= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7th intercostal space, penetrating thoracic cavity and abdominal cavity. ... 5 On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by three different sharp-pointed instruments.6 He further testified that Arnold would have died because of the stab wound on his chest, were it not for the timely medical intervention. On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads: That on or about 8:00 o’clock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce physical injury described as follows: =

Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce. That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense. CONTRARY TO LAW.7 They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as Criminal Case No. RTC-1218, which reads: That on or about 8:00 o’clock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent

to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to the death of the latter. That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense. CONTRARY TO LAW.8 Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads: That on or about 8:00 o’clock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries which would have resulted to the death of said Arnold Barcuma, thus performing all the acts of execution, which would have produced the crime of "Murder", as a consequence, but nevertheless did not produce it, by reason of causes independent of the will of the accused that is, the timely medical assistance rendered to said Arnold Barcuma. That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.9 Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not guilty to all the charges. Robito Caballero remained at-large. Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation. On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of his brother Ricardo to help in the construction of the latter’s house and to take care of Ricardo’s fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for: =

Linear abrasion (L) scapula region;

=

Contusion (R) lower lip lateral side;

=

Swelling left face.

No. of days of healing: 5-7 days barring complication.10 Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold. After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of which reads: WHEREFORE, accused Armando Caballero, alias "Baby", Ricardo Caballero, alias "Ricky" and Marciano Caballero, Jr., alias "Jun", having been found GUILTY beyond reasonable doubt of the offenses charged them as principals, are hereby sentenced to suffer: 1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity; 2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and 3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no award as to damages, no evidence having been introduced to establish, the same; and 4. To pay the costs in all three (3) cases.

SO ORDERED.11 In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold. In their Brief, the accused, now appellants assail the decision of the trial court contending that: I THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS KILLED THE VICTIMS. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.12 The Court will delve into and resolve the first two assignments of errors. The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr. The appellants are partly correct. The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy is always predominantly mental in composition because it consists primarily of a meeting of minds and intent.13 Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt.14 However, direct proof is not required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the same object, one performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.15 The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan.16 Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all the malefactors had the same purpose and were united in their execution.17 Once established, all the conspirators are criminally liable as coprincipals regardless of the degree of participation of each of them for in contemplation of the law, the act of one is the act of all.18 Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions.19Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common objective and purpose.20 Moreover, one is not criminally liable for his act done outside the contemplation of the conspirators. Coconspirators are criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the intended crime.21 In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel between them. Appellant Armando was likewise irked at the reaction of Eugene because from the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left side of his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon Compound. Patently, all the appellants by their simultaneous collective acts before and after the commission of the crimes were united in one common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is the act of the others. However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution failed to adduce evidence that the appellants and the accused Robito conspired to kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had no foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed Leonilo:

Q

After that, what happened next?

A

Leonilo Broce came out of his house.

Q

Where is the house of Leonilo Broce?

A

Still located at Sumakwel.

Q

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

A

Yes.

Q

What happened after that?

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

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

A

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

INTERPRETER’S (observation) Witness demonstrating by holding her left armpit. Q

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

A

Not (sic).

Q

Now what happened to Eugene Tayaktak?

A

He appeared very weak and he was staggering.

Q

Do you know where Eugene Tayaktak now?

A

Already dead.

Q

What happened to Leonilo Broce, where is he now?

A

The two of them were (sic) already dead.

Q

Now, when did the trouble stop if it stopped?

A

It stopped when Dodong Mondragon arrived.

Q

What did the accused do after the trouble was stopped?

A

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

Q

What happened next?

A

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

In sum, the trial court committed reversible error in convicting the appellants of murder for the death of Leonilo. As this Court held in People v. Flora:23 However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held: "... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators

are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot." To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes Flora. Crimes Committed by Appellants In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the prosecution is burdened to prove that: .... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted.24 Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and unexpected attack on the unarmed victim.25 In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his girlfriend Susana’s house. On the other hand, appellant Armando was armed with a wooden pole while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery. In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads: A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. The essential elements of a frustrated felony are as follows: Elements: 1. The offender performs all the acts of execution; 2. All the acts performed would produce the felony as a consequence; 3. But the felony is not produced; 4. By reason of causes independent of the will of the perpetrator.26 In the leading case of United States v. Eduave,27 Justice Moreland, speaking for the Court, distinguished an attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his intention to perform. The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective. In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.28 If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim. In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and effective medical intervention:

Q

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

A

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

Q

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

A

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

Q

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

A

Yes, Sir.29

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the acts of execution but the crime was not consummated because of the timely medical intervention. Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and sudden. He had no means and there was no time for him to defend himself. In sum, the appellants are guilty of frustrated murder. The appellants’ denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail over Wilma’s and Arnold’s positive and straightforward testimonies that the appellants killed Eugene and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said crimes; hence, their testimony must be accorded full probative weight.30 Equally barren of merit is appellants’ defense of alibi. Alibi as a defense is inherently weak for it is easy to fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove with clear and convincing evidence that at the time the crimes were committed, they were in a place other than the situs of the crimes such that it was physically impossible for them to have committed said crimes.31 The appellants dismally failed in this respect. They testified that they were at the house of appellant Ricardo, which was conveniently near the place where Eugene was killed and Arnold was assaulted. Moreover, the records show that Marciano, Jr. was treated for his superficial injuries on August 4, 1996, a day after the incident. This belies the claim of appellants Ricardo and Armando that they were allegedly in the hospital at the time of the incident. Penalties Imposable on Appellants The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor General does not agree with the trial court and contends that abuse of superior strength was absorbed by treachery; hence, should not be considered as a separate aggravating circumstance in the imposition of the penalty on the appellants. The Court agrees with the Solicitor General. Abuse of superior strength, concurring with treachery is absorbed by treachery.32 The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying circumstance was attendant in the commission of the crime, the proper penalty for the crime is reclusion perpetuaconformably with Article 63 of the Revised Penal Code. In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1 day of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.33 The latter penalty has a range of 12 years and 1 day to 20 years. The maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime taking into account any modifying circumstances in the commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. Civil Liabilities of Appellants The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the victim Eugene Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award moral damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua, the civil indemnity should be only P50,000. The heirs of the victim should also be awarded the amount of P50,000 as moral damages.34 In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma on its finding that the prosecution failed to adduce any evidence to prove said damages. The Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his injuries.35 He is entitled to moral damages in the amount of P25,000.36 Having suffered injuries and undergone medical treatment he is, as well entitled to actual damages, which in the absence of evidence would, nevertheless, entitle him to an award of temperate or moderate damages, herein fixed at P10,000. The Verdict of the Court IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC1219 is AFFIRMED with the following MODIFICATIONS:

1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment of the trial court and ACQUITS them of the said charge. 2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, qualified by treachery, and are sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages. 3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. The appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages and P10,000 as temperate or moderate damages. Costs de oficio. SO ORDERED.

G.R. No. 122099

July 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused, AGAPITO LISTERIO y PRADO, accused-appellant. DECISION YNARES-SANTIAGO, J.: For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre, Bonifacio Bancaya and several others who are still at large were charged in two (2) separate Amended Informations with Murder and Frustrated Murder. In Criminal Case No. 91-5842 the Amended Information1 for Murder alleges – That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, all armed with bladed weapons and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of superior strength did then and there willfully, unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his body, thereby inflicting upon the latter mortal wounds which directly caused his death. CONTRARY TO LAW. In Criminal Case No. 91-5843, the Amended Information2 for Frustrated Homicide charges: That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction this Honorable Court, the abovenamed accused, conspiring, confederating together, mutually helping and aiding one another, with intent to kill did then and there willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions of his body, thereby inflicting serious and mortal wounds which would have cause[d] the death of the said victim thus performing all the acts of execution which should have produce[d] the crime of Homicide as a consequence but nevertheless did not produce it by reason of causes independent of their will, that is by timely and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death. CONTRARY TO LAW. Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their other co-accused have remained at large. Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito Listerio because his co-accused Samson dela Torre escaped during the presentation of the prosecution’s evidence and he was not tried in absentia. The dispositive portion of the decision3 reads: WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced: 1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA; 2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one (1) day as minimum, to four (4) years as maximum; 3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of : P54,200.66 as actual damages; P50,000.00 as moral damages; P5,000.00 as exemplary damages. 4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of :

P5,000.00 as actual damages; P5,000.00 as moral damages; and P5,000.00 as exemplary damages SO ORDERED.4 Dissatisfied, accused Agapito Listerio interposed this appeal alleging that – I THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. II THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF TREACHERY. The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness account of Marlon Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from a certain Tino.5 Having failed to collect anything from Tino, Marlon and Jeonito then turned back.6 On their way back while they were passing Tramo near Tino’s place,7 a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya8 blocked their path9 and attacked them with lead pipes and bladed weapons.10 Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed Jeonito Araque from behind.11 Jeonito sustained three (3) stab wounds on the upper right portion of his back, another on the lower right portion and the third on the middle portion of the left side of his back12 causing him to fall down.13 Marlon Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and momentarily lost consciousness.14 When he regained his senses three (3) minutes later, he saw that Jeonito was already dead.15Their assailants then fled after the incident.16 Marlon Araque who sustained injuries in the arm and back,17 was thereafter brought to a hospital for treatment.18 Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-PGH, 19 who thereafter issued a Medical Certificate20 indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in length located in the center (mid-parietal area) of the ear.21 The second lacerated wound measuring 2 centimeters in length is located at the mid-frontal area commonly known as the forehead.22 A third lacerated wound measuring 1.5 centimeters long is located at the forearm23 and a fourth which is a stab wound measuring 3 centimeters is located at the right shoulder at the collar.24 Elaborating on the nature of Marlon Araque’s injuries, Dr. Manimtim explained in detail during cross-examination that the two (2) wounds on the forearm and the shoulder were caused by a sharp object like a knife while the rest were caused by a blunt instrument such as a lead pipe.25 Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito Araque26 and prepared an Autopsy Report27 of his findings. The report which contains a detailed description of the injuries inflicted on the victim shows that the deceased sustained three (3) stab wounds all of them inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or any similar instrument.28 The first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic aorta.29 Considering the involvement of a vital organ and a major blood vessel, the wound was considered fatal.30 The second wound, measuring 2.4 centimeters, affected the skin and underlying soft tissues and did not penetrate the body cavity.31 The third wound measuring 2.7 centimeters was like the second and involved only the soft tissues.32 Unlike the first, the second and third wounds were non-fatal.33 Dr. Munoz averred that of the three, the first and second wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were standing behind the victim.34 On the other hand, accused-appellant’s version of the incident is summed thus in his brief: 1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by selling vegetables.35 2. At around 1:00 o’clock in the afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa Agustin having a little fun with Edgar Demolador and Andres Gininao drinking beer. At around 2:00 o’clock Accused-appellant went to his house and slept.36 3. While asleep, at about 5 o’clock, Edgar Remolador and Andres Gininao woke him up and told him there was a quarrel near the railroad track.37 4. At around 6:00 o’clock two (2) policemen passed by going to the house of Samson de la Torre while Accused-appellant was chatting with Edgar Remolador and Andres Gininao. These two (2) policemen together with co-accused Samson de la Torre came back and invited Accused-appellant for questioning at the Muntinlupa Police Headquarters together with Edgar Demolador and Andres Gininao. Subsequently, Edgar Demolador and Andres Gininao were sent home.38 5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the death of Jeonito Araque and the frustrated murder of Marlon Araque. Accused-Appellant confronted Marlon Araque as to why he was being included in the case. Marlon Araque answered "because you eject[ed] us from your house."39

Professing his innocence, accused-appellant claims that Marlon Araque’s uncorroborated testimony failed to clearly and positively identify him as the malefactor responsible for his brother’s death. In fine, he insists that Marlon’s testimony is insufficient to convict him of the crimes charged. We disagree. It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single, trustworthy and credible witness could be sufficient to convict an accused.40 More explicitly, the well entrenched rule is that "the testimony of a lone eyewitness, if found positive and credible by the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be weighed not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness."41 The trial court found Marlon Araque’s version of what transpired candid and straightforward. We defer to the lower court’s findings on this point consistent with the oft-repeated pronouncement that: "the trial judge is the best and the most competent person who can weigh and evaluate the testimony of witnesses. His firsthand look at the declarant’s demeanor, conduct and attitude at the trial places him in a peculiar position to discriminate between the true and the false. Consequently appellate courts will not disturb the trial court’s findings save only in cases where arbitrariness has set in and disregard for the facts important to the case have been overlooked."42 The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was given in a categorical, convincing and straightforward manner: Q Mr. Witness, do you know a certain Jeonito Araque y Daniel? A Yes, sir. Q And why do you know him? A He is my brother. Q Where is Jeonito Araque now? A He is already dead. Q When did he die? A Last August 14. Q Do you know of your own knowledge how he died? A Yes, sir. Q Will you please inform the Honorable Court what is your own knowledge? A He was stabbed, sir. Q Do you know the person or persons who stabbed him? A Yes, sir. Q Will you please inform the Honorable Court who are these person or persons, if you know? A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio. Q Now if these persons [are] inside the courtroom, could you identify them? A They (sic) are only two persons but the three persons is (sic) not around. Q Could you please point to this Honorable Court who are these two persons in side the courtroom? A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.) Q Now, at around 5:00 o’clock in the afternoon of August 14, 1991, do you recall where were you? A Yes, sir.

Q Will you please inform the Honorable Court where were you at that time? A I’m in Alabang at Purok 4 and I’m collecting. Q Do you have any companion at that time? A Yes, sir. Q What are you doing at that time in [that] particular date? A I’m collecting from a certain Tino. Q Were you able to collect? A No, sir. Q If you said that there were no collections, what did you do? A We went back. Q When you went back, did you have any companion? A Yes, sir. Q Who was your companion? A My brother. Q While you were going back, was there any untoward incidents that happened? A Yes sir "Hinarang po kami." Q Now, what particular place [where] you were waylaid, if you recall? A In Tramo, near Tino’s place. Q And who were the persons that were waylaid (sic)? A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio. Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons? A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards. Q Who were the persons that waylaid you? A Agapito Listerio, George and Marlon. Q How about your brother, what happened to him? A He fall (sic) down. Q And after he fall (sic) down, do you know what happened? A I was hit by a lead pipe that’s why I painted (sic). Q Do you know the reason why your brother fall (sic) down? A I cannot recall, sir. Because I already painted (sic).

Q Do you know the reason why your brother fall (sic) before you painted (sic)? A Yes, sir. Q Will you please inform the Honorable Court why your brother fall (sic) down? xxx

xxx

xxx

A Yes, sir, because he was stabbed. Q What particular place of his body was [he] stabbed if you know? A At the back of his body. Q Do you know the person or persons who was (sic) stabbed him? A Yes, sir. Q Will you please inform the Honorable Court who was that persons was stabbed him? A Agapito, Marlon and George. COURT How many stabbed [him], if you know? A Three (3), sir. COURT In what particular part of his body was stabbed wound (sic)? A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion of the left side at the back. COURT Proceed. Q Will you please inform the Honorable Court why you are (sic) lost consciousness? A I was hit by [a] lead pipe by Samson and Bonifacio. Q And when did you regain consciousness? A After three minutes. Q And when you gain[ed] consciousness, what happened to your brother? A He was already dead. Q How about you, what did you do? A I go (sic) to the Hospital. Q How about the accused, the persons who way laid, what happened to them? A From what I know, they ran away.43 Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon Araque an admission that he and the deceased had a drinking spree with their attackers prior to the incident, proved futile as Marlon steadfastly maintained on cross examination that he and his brother never drank liquor on that fateful day:

Q After your work, was there an occasion when you drink something with your borther (sic)? A No, sir. Q And you stand to your testimony that you never drink (sic) on August 14, 1991? A Yes, sir. Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991? A No, sir. Q And did you not have a drinking spree with George dela Torre? A No, sir. Q Marlon dela Torre? A No, sir. Q Bonifacio? A With your borther (sic)? Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a sip of wine? A No, sir. Q Neither your brother? Atty. Agoot Objection, Your Honor, the question is vague. COURT Ask another question. Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio were? Atty. Agoot Witness is incompetent. Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4? A Yes, sir. Atty. Lumakang That will be all for the witness, your Honor.44 That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a natural knack for remembering the faces of the attackers and they, more than anybody else, would be concerned with obtaining justice for the victim by the felons being brought to the face of the law.45 Indeed, family members who have witnessed the killing of a loved one usually strive to remember the faces of the assailants.46 Marlon’s credibility cannot be doubted in this case because as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing excerpts of his testimony that he remembered with a high degree of reliability the identity of the malefactors.47 Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against accused-appellant. Being a victim himself, he is expected to seek justice. It is settled that if the accused had nothing to do with the crime, it would be against the natural order of events to falsely impute charges of wrongdoing upon him.48Accused-appellant likewise insists on the absence of conspiracy and treachery in the attack on the victims.

We remain unconvinced. It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots.49 Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest.50 Indeed – A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To establish the existence of a conspiracy, direct proof is not essential since it may be shown by facts and circumstances from which may be logically inferred the existence of a common design among the accused to commit the offense charged, or it may be deduced from the mode and manner in which the offense was perpetrated.51 More explicitly – … conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to establish a conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be indicative of a common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy can be established.52 Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime itself.53 In the absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest.54Hence, it is necessary that a conspirator should have performed some overt acts as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his con-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators.55 Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the common design and purpose.56 "Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.57 From the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution."58 In this case, the presence of accused-appellant and his colleagues, all of them armed with deadly weapons at the locus criminis, indubitably shows their criminal design to kill the victims. Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path of the victims and as a group attacked them with lead pipes and bladed weapons. Accused-appellant and his companions acted in concert during the assault on the victims. Each member of the group performed specific and coordinated acts as to indicate beyond doubt a common criminal design or purpose.59 Thus, even assuming arguendo that the prosecution eyewitness may have been unclear as to who delivered the fatal blow on the victim, accused-appellant as a conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in conspiracy, the act of one is the act of all.60 As to the qualifying circumstances here present, the treacherous manner in which accused-appellant and his group perpetrated the crime is shown not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the deliberate manner in which the assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed with bladed weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off their escape.61 In the ensuing attack, the deceased was stabbed three (3) times from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or similar instrument62 while Marlon Araque sustained lacerated wounds in the head caused by blows inflicted by lead pipes as well as stab wounds on the shoulder and forearm which were caused by a sharp object like a knife.63 It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased were clearly meant to kill without posing any danger to the malefactors considering their locations and the fact that they were caused by knife thrusts starting below going upward by assailants who were standing behind the victim.64 Treachery is present when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.65 That circumstance qualifies the crime into murder. The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his companions were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes, purposely used force out of proportion to the means of defense available to the persons attacked. However, this aggravating circumstance is already absorbed in treachery.66 Furthermore, although alleged in the information, evident premeditation was not proved by the prosecution. In the light of the finding of conspiracy, evident premeditation need not be further appreciated, absent concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it was carried out.67 In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-appellant proffers the defense of alibi. At the risk of sounding trite, it must be remembered that alibi is generally considered with suspicion and always received with caution because it can be easily fabricated.68 For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was present at another place at the time of the perpetration of the offense; and b.] it would thus be physically impossible for him to have been at the scene of the crime.69 Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the accused as one of the perpetrators of the crime by the prosecution eyewitness, absent any showing of ill-motive, must prevail over the weak and obviously fabricated alibi of accused-appellant.70 Furthermore, as aptly pointed out by the trial court "[t]he place where the accused was at the time of the killing is only 100 meters away. The distance of his house to the place of the incident makes him physically possible to be a participant in the killing [of Jeonito] and [the] wounding of Marlon."71 All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accused-appellant is guilty as charged for Murder in Criminal Case No. 91-5842.

In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial court convicted accused-appellant of Attempted Homicide only on the basis of Dr. Manimtim’s testimony that none of the wounds sustained by Marlon Araque were fatal. The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds inflicted which determines whether a felony is attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed. By subjective phase is meant "[t]hat portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward, the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control – that period between the point where he begins and the point where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated."72 It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of execution which would produce the felony; 2.] the felony is not produced due to causes independent of the perpetrator’s will.73On the other hand, in an attempted felony: 1.] the offender commits overt acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution which should produce the felony; and 3.] his failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance.74 The distinction between an attempted and frustrated felony was lucidly differentiated thus in the leading case of U.S. v. Eduave:75 A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of crime and the moment when all the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. To put it another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed. On the other hand, in case of frustrated crimes, the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control. In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries should be punished as attempted or frustrated murder, homicide, parricide or consummated physical injuries.76 Homicidal intent must be evidenced by acts which at the time of their execution are unmistakably calculated to produce the death of the victim by adequate means.77 Suffice it to state that the intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given the prevailing facts of the case. It also can not be denied that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell, Marlon’s attackers apparently thought he was already dead and fled. An appeal in a criminal case throws the whole case wide open for review78 and the reviewing tribunal can correct errors, though unassigned in the appealed judgement79 or even reverse the trial court’s decision on the basis of grounds other than those that the parties raised as errors.80 With the foregoing in mind, we now address the question of the proper penalties to be imposed. With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that – ART. 250. Penalty for frustrated parricide, murder, or homicide. – The courts, in view of the facts of the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under the provisions of article 50.81 The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under article 51 should be imposed for an attempt to commit any of such crimes. The penalty for Homicide is reclusion temporal82 thus, the penalty one degree lower would be prision mayor.83 With the presence of the aggravating circumstance of abuse of superior strength and no mitigating circumstances, the penalty is to be imposed in its maximum period.84 Prision mayor in its maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying further the Indeterminate Sentence Law,85 the minimum of the imposable penalty shall be within the range of the penalty next lower in degree, i.e. prision correccional in its maximum period which has a range of six (6) months and one (1) day to six (6) years. What now remains to be determined is the propriety of the awards made by the trial court with regard to the civil aspect of the case for the death of Jeonito Araque and the injuries sustained by Marlon Araque. Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses or those which appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts.86 In this case, the expenses incurred for the wake, funeral and burial of the deceased are substantiated by receipts.87 The trial court’s award for actual damages for the death of Jeonito Araque should therefore be affirmed. In line with current jurisprudence,88 the award of P50,000.00 as civil indemnity ex delicto must also be sustained as it requires no proof other than the fact of death of the victim and the assailant’s responsibility therefor.89 The award for moral damages for the pain and sorrow suffered by the victim’s family in connection with his

untimely death must likewise be affirmed. The award is adequate, reasonable and with sufficient basis taking into consideration the anguish and suffering of the deceased’s family particularly his mother who relied solely upon him for support.90 The award of exemplary damages should likewise be affirmed considering that an aggravating circumstance attended the commission of the crime.91 The trial court, however, correctly ignored the claim for loss of income or earning capacity of the deceased for lack of factual basis.1âwphi1 The estimate given by the deceased’s sister on his alleged income as a ‘pre-cast’ businessman is not supported by competent evidence like income tax returns or receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of damages92 and as such requires due proof thereof.93 In short, there must be unbiased proof of the deceased’s average income.94 In this case, the victim’s sister merely gave an oral, self-serving and hence unreliable statement of her deceased brother’s income. As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same is supported by documentary evidence.95 With regard to moral and exemplary damages, the same being distinct from each other require separate determination.96 The award for moral damages must be struck down as the victim himself did not testify as to the moral suffering he sustained as a result of the assault on his person. For lack of competent proof such an award is improper.97 The award for exemplary damages must, however, be retained considering that under Article 2230 of the Civil Code, such damages may be imposed "when the crime is committed with one or more aggravating circumstances."98 Finally, this Court has observed that the trial court did not render judgment against accused Samson dela Torre, notwithstanding that he was arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in absentia and, considering the evidence presented by the prosecution against him, convicted of the crime charged together with appellant Agapito Listerio. WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS: 1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED; 2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision Mayor, as maximum. After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render judgment based on the evidence against Samson dela Torre y Esquela. SO ORDERED.

G.R. No. 165483

September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: For what is a man, what has he got? If not himself, then he has naught. To say the things he truly feels; And not the words of one who kneels. The record shows I took the blows And did it my way! The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent behavior resulting in people coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo each other in their rendition of the song. In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same Code. On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus Election Code,8allegedly committed as follows: CRIMINAL CASE NO. U-9608 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his damage and prejudice. CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9609 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the medical assistance rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice. CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9610 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the instantaneous death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs. CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634 That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first securing the necessary permit/license to do the same. CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.) When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12 The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the Solicitor General,13 to wit: On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living in San Fernando, La Union, visited his three brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking beer. Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said "You are already insulting me inthat way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went back inside the bar and continued their fight with Jaime. Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place. Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in the right shoulder. On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of facts: On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'. After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer. Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger. On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him.17 In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael, and that Ferdinand is not criminally responsible for the act of petitioner.

Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand.19 It reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the petitioner for help up to the point of the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the shooting. Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22 As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities.23 In conclusion, the trial court held: WHEREFORE, JUDGMENT is hereby rendered as follows: 1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses. Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. 2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses and P50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. 3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610. 4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS.24 Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of Appeals' Decision reads: WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be imposed for the crimes which the appellant committed are as follows: (1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual damages in the amount of P43,556.00. (2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the amount of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount of P30,000.00.27 On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments: I. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT. II. THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE.28 Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges.29 Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the "warning shot."30 Petitioner's contention must fail. Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. x x x. As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril.31 It is an act positively strong showing the wrongful intent of the aggressor and not merely a threatening or intimidating attitude.32 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.33 There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.34 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.35 In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36 Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former.37 Petitioner was not cornered nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed, petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun. The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in self-defense.38There is no evidence to show that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb were in actual peril.39

Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones,40 will not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however, opted to shoot the Ferrer brothers. It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death.41 As regards Servillano, a bullet penetrated two of his vital organs, namely, the large intestine and urinary bladder.42 He underwent two (2) surgeries in order to survive and fully recover.43 Michael, on the other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital portions of their body, which even led to the death of Melton who was shot at his head.45 It is an oft-repeated rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-defense.46 Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-defense.48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case. The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers.51 Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression. With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self-defense. Petitioner's argument is bereft of merit. In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense.52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.53 As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of self-defense. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.54 In the present case, we find no compelling reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful self-defense. On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide. Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner: ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (italics supplied). Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows: 1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution. 2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender's own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present.55 However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide.56 If there was no intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury.57 Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and that the treatment duration for such wound would be for six to eight days only.59 Given these set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No. U-9609. With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed against him before the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and not a generic aggravating circumstance. Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.61 It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.62 Moreover, it cannot be offset by an ordinary mitigating circumstance. It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance. Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused."66Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance.67 This interpretation is erroneous since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance. As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its maximum period.69 As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts. In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.70However, based on the receipts for hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the same.71 Although there may be exceptions to this rule,72 none is availing in the present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00.74 In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide shall be P25,000.00 for each. WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. (2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayorunder Article 50 of the Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. (3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18. SO ORDERED.

G.R. No. 142500

April 20, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DECOROSO ACA-AC y CESPON, accused-appellant. MENDOZA, J.: This is an appeal from the decision,1 dated February 19, 1994, of the Regional Trial Court, Branch 4, City of Tagbilaran, finding accused-appellant Decoroso Aca-ac y Cespon, alias "Kokong," guilty of frustrated rape and sentencing him to suffer the indeterminate penalty of imprisonment from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as maximum, with accessory penalties, and to indemnity the complainant Fritzie Aca-ac the amount of P30,000.00 as moral damages and P20,000.00 as exemplary damages. Originally taken to the Court of Appeals, the appeal was certified to this Court pursuant to rule 124, §13 of the Revised Rules on Criminal Procedure in view of the appeals court's ruling2that accused-appellant is guilty of consummated, not frustrated, rape and that the appropriate penalty to be imposed on accused-appellant is reclusion perpetua. The facts are as follows: On the basis of criminal complaints3 of the minor Fritzie Aca-ac, four informations4 for rape were filed against accused-appellant in the Regional Trial Court of Tagbilaran City. In Criminal Case No. 7091, the information alleged: That on or about the 22nd day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to the former's house and to his bedroom and thereafter, with intent to have sexual intercourse, removed the victim's panty, let her lie down while he lay on top her, inserted his penis into her labia minora near the clitoris of the vagina and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. In Criminal Case No. 7092, the information charged: That on or about the 17th day of October, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to remove her shorts and panty and to lie down on the ground, and thereafter, the accused inserted his penis into her vagina near the clitoris and vaginal opening and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party.1âwphi1.nêt CONTRARY TO LAW. In Criminal Case No. 7093, the information alleged: That on or about the 12th day of January, 1991 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to go to a bushy place near a nipa plantation, and, upon reaching the place, let her undress and lie down while he lay on top of her, and thereafter, he inserted his penis inside her vaginal opening near her clitoris and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party CONTRARY TO LAW. In Criminal Case No. 7094, the information asserted: That on or about the 8th day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to an old uninhabited house, and thereafter, upon reaching the place, took off her shorts and her panty with intent to ace sexual intercourse with her and then let her lie down after which the accused lay on top of her and inserted his penis into the labia minora near the clitoris of the vagina of the victim and succeeded in having carnal knowledge with her vitiated consent since she is below twelve years old, to the damage and prejudice of the aid offended party. CONTRARY TO LAW. Accused-appellant having pleaded not guilty to the charges, the joint trial of the cases was set. Five witnesses were presented by the prosecution in support of its case, namely, complainant Fritzie Aca-ac, her mother, Felipa Aca-ac, her classmate, Algerico Lonio, the physician, Dr. Stella Maris J. Amora, and rebuttal witness Esteban Dagandan.

In Criminal Case No. 7094, complainant testified that on September 8, 1990, she was asked by her mother Felipa Aca-ac to buy cooked fish (inon-onan) for dinner from a store in Barangay Villalimpia, Loay, Bohol. On her way home, she met accused-appellant, who held her by the hand and forced her to go with him to the vacant house of one Pinay Aguirre. Once inside, accused-appellant removed complainant's shorts and panty and made her lie down on the floor, which was covered with coconut leaves. Complainant claimed that accused-appellant fondled her breasts and licked her private parts. He then went on top of her and made "push and pull movements." When he was through, complainant said, accused-appellant withdrew his penis and white fluid came out. Complainant said she then wiped her private parts and put on her cloths. She said she did not tell anyone what happened to her.5 Algerico Lonio, a resident of Barangay Villalimpia, Loay, Bohol and a classmate of complainant testified that at about 7:00 p.m. of September 8, 1990, he was at the house of one Emmie Blasco when he saw accused-appellant and complainant going inside the house of Pinay Aguirre, which was known in the neighborhood to be haunted. Out of curiosity, he said, he followed the two and peeped through the fence at the back. He saw accused-appellant undress complainant, go on top of her, and make "push and pull movements." Lonio said he knew that the two were having sexual intercourse, which lasted for about three minutes. He claimed he did not tell anyone what he saw for fear of his life. But, Lonio said, on February 27, 1991, he and complainant had a quarrel in school during which he asked complainant about the rape. According to Lonio, complainant admitted that accused-appellant had raped her and then left crying. Lonoi later narrated the incident to complainant's mother.6 In Criminal Case No, 7091, complainant testified that at about 4:00 p.m. of September 22, 1990, after gathering some guavas in Barangay Villalimpia, Loay, Bohol, she passed by the house of accused-appellant on her way home. When accused-appellant saw her, he tried to lure her on the pretext that he had some papayas for her. Complainant got inside the house, but sensing that there was no papaya in the house, she immediately tried to leave. Accused-appellant, however, closed the door and brought her to his bedroom where he raped her. Accused-appellant threatened her with harm if she told anyone about the incident.7 In Criminal Case No. 7092, complainant testified that at about 4:30 p.m. of October 17, 1990, as she was gathering firewood in Barangay Villalimpia, Loay, Bohol, accused-appellant came and forced her to remove her shorts and panty. She was made to lie down on the ground covered with nipa leaves and was then raped by accused-appellant. Complainant went home after the incident, bringing with her the firewood she had gathered.8 In Criminal Case No. 7093, complainant testified that at about 1:00 p.m. of January 12, 1991, as she was on her way home from the house of a certain Betty, she saw accused-appellant near the house of one Ned Reyes in Villalimpia, Loay, Bohol. Accused-appellant seized her and dragged her to a bush near the plantation and made her undress and lie down. Then he allegedly forced her to have sexual intercourse with him.9 Complainant's mother, Felipa Aca-ac, testified that accused-appellant is the cousin of her father-in-law, Faustino Aca-ac. She said that in the afternoon of February 27, 1991, she learned from Lonio that her daughter had been raped by accused-appellant. She said that when she confronted her daughter, the latter admitted that accused-appellant had raped her four times. According to her, the next day, February 28, 1991, she took Fritzie to Dr. Stella Maris J. Amora of the Governor Celestino Gallares Memorial Hospital for medical examination. Felipa said that accused-appellant offered to pay P12,000.00 as settlement of the case.10 Dr. Amora testified that there was no laceration in the hymen of complainant. She said, however, that it was possible that there could be a penetration of a male organ up to the labia minora and the hymen would still be intact.11 The defense presented six witnesses, namely, accused-appellant Decoroso Aca-ac, Faustino Aca-ac, Felix Adorable, Rosalio Pamayloan, Petronia Aca-ac, and Alberto Cempron. Accused-appellant Decoroso Aca-ac y Cespon, 57 years old at the time of the alleged rape incidents, denied the charges and claimed that Felipa Aca-ac had instigated complainant to file the charges because he told Felipa's husband that Felipa was having an affair with another man. He said the charges because he told Felipa's husband that Felipa was having an affair with another man. He said the charges were trumped up by Felipa because she wanted to extort P30,000.00 from him. He also stated that he had a quarrel with Felipa's husband, Roberto, because the latter had stolen his chicken. Accused-appellant said he reported the matter to Barangay Captain Felix Adorable. He stated that Faustino Aca-ac tried to get the parties to settle the case, but he failed in his efforts. Accused-appellant alleged that at 57, he was already old and that he could no longer have an erection.12 Faustino Aca-ac, grandfather of complainant and a cousin of accused-appellant, testified that he did not believe accused-appellant committed the crime. He said accused-appellant and complainant's parents had a misunderstanding which he tried to settle insuccessfully.13 Felix Adorable, a former barangay captain of Villalimpia, Loay Bohol and an incumbent barangay kagawad, confirmed accused-appellant's claim that he had filed a complaint against Roberto Aca-ac, complainant's father, with the Katarungang Pambarangay.14 Rosalio Pamayloan was a neighbor of accused-appellant and a resident of Villalimpia, Loay, Bohol for 12 years. He testified that he had been a principal in a public school since 1983. He personally knew accused-appellant and vouched for the character of accused-appellant as a good man.15 Petronia P. Aca-ac, wife of accused-appellant, testified that she and her husband had been married for 36 years and had six children, two of whom had died. On the four occasions on which it was alleged accused- appellant had raped complainant, Petronia said her husband was in their house helping her make "nipa shingles."16 On rebuttal, the prosecution presented Esteban Dagandan, who testified that complainant's mother, Felipa, worked as a nurse of his (Dagandan's) wife, because the latter had suffered a stroke. Dagandan disputed accused-appellant's claim that complainant and her mother had demanded P30,000.00 for the settlement of the case. He said that sometime in May 1992, Albert "Berting" Cempron, a nephew of accused- appellant, accompanied by his wife Lydia, thrice went to his (Dagandan's) house asking Felipa to withdraw the case against accused-appellant. Accused-appellant offered to pay Felipa P12,000.00 as settlement of the case, but the same was rejected.17 Felipa Aca-ac was recalled to the stand. She denied Rosalio Pamayloan's testimony that she proposed a settlement of the case for P30,000.00 and that accusedappellant had no criminal record in their barangay. She said that she rejected Albert Cempron's P12,000.00 offer, made in behalf of accused-appellant, for the settlement of the case.18

Complainant Fritzie Aca-ac was also recalled to the stand. She rebutted the testimony of accused-appellant that he could no longer have an erection. She said she saw accused-appellant insert his erect penis into her vulva.19 On sur-rebuttal, Alberto A. Cempron, the barangay captain of Matin-aw, Carmen, Bohol, testified that he tried to bring the parties to an amicable settlement of their case because they are relatives and his wife is a cousin of complainant's father. However, he said he was unsuccessful as accused-appellant's wife was willing to pay only P12,000.00 but Felipa wanted P30,000.00.20 On February 19, 1994, the trial court rendered a decision convicting accused-appellant of frustrated rape in Criminal Case No. 7094 and acquitting him of the charges in the rest of the cases. The dispositive portion of its decision reads: WHEREFORE, under Criminal Case No. 7094, the Court finds accused Decoroso Aca-ac y Cespon guilty beyond reasonable doubt of the crime of frustrated rape and he is hereby sentenced to undergo an indeterminate penalty of imprisonment ranging from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, with all its accessory penalties, to indemnify the offended party Fritzie Aca-ac the sum of P30,000.00 as moral damages and another amount of P20,000.00 in the concept of exemplary damages. As regards the three other above-entitled cases, Criminal Case Nos. 7091, 7092, & 7093, all for rape, accused Decoroso Aca-ac y Cespon, alias Kokong, is hereby acquitted on the ground of reasonable doubt. SO ORDERED.21 On appeal, the Court of Appeals held that accused-appellant was guilty of consummated rape and accordingly sentenced him to reclusion perpetua. Hence, this appeal. First. In holding that the crime committed was frustrated rape, the trial court relied on the findings of Dr. Amora which showed that complainant did not have any lacerations in her hymen which in fact was intact. The trial court pointed out that there was no evidence of penetration into the vagina of complainant. This is error. As this Court explained in People v. Orita,22 rape is either attempted or consummated. There can be no frustrated rape. While the penultimate paragraph of Art. 335 of the Revised Penal Code23 prescribes death for attempted or frustrated rape, and a homicide committed by reason or on the occasion thereof, the provision on frustrated rape is a "dead provision." This Court said in Orita: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In along line of cases (people v. Oscar, 48 Phil. 527 (1925); People v. Hernandez, 49 Phil. 980 (1925); People v. Royeras, 56 SCRA 666 (1974); People v. Amores, 58 SCRA 505 (1974)), we have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 (1935); People v. Rabadan and Olaybar, 53 Phil. 694 (1927); United States v. Garcia, 9 Phil. 434 (1907)) because not all acts of execution were performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements, and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.24 As the Court of Appeals noted, accused-appellant should be convicted of rape in its consummated stage and not merely for frustrated rape, since the entry of the male organ into the labia of the female organ alone is sufficient to constitute consummated rape. For that matter, the mere touching of the labia or pudendum by the male organ is enough to consummate the crime of rape.25 It is enough that there is a penetration, however slight, of the external genitalia.26 Consequently, the fact that there was no laceration of complainant's private parts or that her hymen was intact, as testified to by Dr. Amora,27 does not preclude a finding of rape against accused-appellant. It bears emphasis that a broken hymen or laceration of any part of the female genital is not a pre-requisite for a conviction for rape.28 Accused-appellant's claim that it was impossible for him, then 57 years old, to commit the crime of rape because he could no longer have an erection is self-serving. Age is not the criterion in determining sexual interest and potency. The birth certificate (Exh. C) of complainant shows that she was born on April 9, 1979. Since complainant was then about 11 years old when she was raped by accusedappellant on September 8, 1990, the crime is statutory rape under Art. 335, paragraph 3 of the Revised Penal Code. Second. Accused-appellant contends that the way complainant narrated the lurid details of how she was allegedly raped is not the way an innocent child below 12 years of age testifies, but the way a woman, who is worldly and experienced in sex, will testify. Accused-appellant questions complainant's narration as he likens them to stories contained in pornographic magazines and movies. The contention has no merit. Where an alleged rape victim says she was sexually abused, she says almost all that is necessary to show that rape had been inflicted on her person, provided her testimony meets the test of credibility.29 For no woman would allow an examination of her private parts or go through the humiliation of a trial unless she has actually been so brutalized that she desires justice for her suffering.30

In this case, accused-appellant has not shown any reason for complainant's testimony not to be given credence. At the time she was raped, complainant was an 11 year-old Grade 5 student of Loay Central School in Loay, Bohol. After she was deflowered by accused-appellant, she was forced to silence by threats on her life. It was only on March 1, 1991 when she executed a sworn statement31 before the police authorities narrating therein how she had been raped four times by accusedappellant. She told her story in open court. Complainant testified how she was raped on September 8, 1991, thus: ATTY. ALEXANDER H. LIM: Q-

Now, what happened after your short pants and panty were removed?

A-

That was the time that I squatted, I have no more panty and short pants.

Q-

.Now, when you said you were squatting, did it not occur to your mind to run away or shout?

A-

No, I did not.

Q-

And so what happened after that?

A-

He pushed down my knees and caused me to lie down.

COURT: Q-

You mean the accused pushed down your knees and thereafter pushed your body causing you to lie down face up?

A-

When he pushed down my knees, so I squatted at that time and he also pushed my shoulder that caused me to lie down on my back.

ATTY. ALEXANDER H. LIM: Q-

After that what happened next?

A-

He kissed me on the lips.

Q-

Now, when he did that to you, did you not resist?

A-

I did not.

COURT (TO WITNESS) Q-

Why did you not like to be kissed by the accused at that time?

A-

I tried to avoid his kiss but he held my hands.

ATTY. ALEXANDER H. LIM: Q-

Now, did you not bite him? When you did not like his kiss?

A-

I did not.

Q-

Still you did not offer any resistance to shout?

A-

I resisted but he held my hands.

Q-

Why did you tell the Court that you uttered something?

A-

I told him.

Q-

Meaning your voice was not heard?

A-

He told me not to shout.

Q-

Why did you not shout the way that it could be heard by your neighbors?

A-

Because he told me not to make any noise for he will kill me.

Q-

Is that all?

A-

Yes, sir.

Q-

But he did not carry any weapon?

A-

No, sir.

Q-

Now, after that kiss on your lips, what happened next?

A-

He sucked my nipples.

Q-

Did you not push him when he sucked your nipples?

A-

I held the back of his head.

Q-

How did he suck your nipples?

FISCAL REINERIO S. NAMOCA TCA T: Is there a particular way of sucking nipples? ANSWER OF WITNESS: He raised my t-shirt. ATTY. ALEXANDER H. LIM: Q-

So, he raised your t-shirt in sucking your nipples?

A-

Yes, sir

Q-

Still in raising your t-shirt, you did not shout?

A-

I told him don't, but he did not heed.

Q-

Still in a low voice?

A-

Yes, sir.

Q-

You did not shout loudly?

A-

I did not because he told me if I will make a noise or report the matter, he will kill me.

Q-

You were afraid of him when you said he did not hold any weapon?

A-

I was afraid he would box me.

COURT: Any further questions? ATTY. ALEXANDER H. LIM: Q-

Now, at that time according to you he sucked your nipples, you did not consider that you were already endangered?

A-

I have not known of such danger.

Q-

After that, what happened next?

A-

He also sucked the other nipple.

Q-

So, the two nipples were sucked?

A-

Yes, sir.

Q-

So, what happened after that?

A-

He licked my vagina.

Q-

When he licked your vagina, you did not shout or protest?

A-

I told him don't, I tried to stand up but he pushed me and pressed my forehead.

Q-

At that moment he was very busy licking your vagina, what else did he do?

A-

He pressed my forehead.

Q-

While he was licking your vagina, you pushed his head?

A-

I pushed his forehead.

COURT: Q-

Did you succeed when you stand up after pushing the forehead of the accused?

A-

Because of his strength, when I stood up, he held my hand and I was made to lie down again.

Q-

While he was licking your vagina, where was the hand of the accused?

A-

When I pushed the forehead, he was licking my vagina.

Q-

So, what happened after that?

A-

He mounted on me.

Q-

Before that, while the accused was licking your vagina, were your legs apart?

A-

Because my legs were apart, he licked my vagina.

Q-

You made it voluntarily or the accused made it apart?

A-

I was the one who spread my two legs.

ATTY. ALEXANDER H. LIM: Q-

In doing so, when you spread your legs, the accused used his two hands?

A-

Yes, sir, he used his two hands.

Q-

At the same time he was licking your vagina?

A-

Yes, sir.

Q-

And in that very moment you could stand up or you could squat or use your hand to fight back or to resist?

A-

I tried to rise up and pushed his forehead.

Q-

And you succeeded in rising up pushing his forehead?

A-

After I pushed his forehead, he crawled and held my hands and let me lie down again.

Q-

In that process, did you not shout?

A-

I did not shout, I was afraid he might press me.

Q-

But he did not press you?

A-

But he told me if I will make noise, he will kill me.

Q-

Now, after that what happened?

A-

He mounted on me.

Q-

His whole weight mounted on you?

A-

Yes, sir, his whole body.

Q-

And how did you feel?

A-

I cannot push his head because he held my hands this was the time I could not move.

Q-

So, he was holding your hands and you could cross your leg if you want to?

A-

I cannot cross my legs because his two legs were over me.

COURT (TO WITNESS): Q-

You mean his body was over your spread legs while mounting from the licking until he mounted on you?

A-

Yes, sir, his body was over my two legs.

COURT: Any further questions? ATTY. ALEXANDER H. LIM: Q-

Now, what happened after that?

A-

He made a push and pull movement.

Q-

What did you feel when he was doing that act of push and pull movement?

A-

There was something hot that I felt on my vagina.

COURT: Why did you feel something hot in your vagina? A-

It seems that there was something hot that went out from my vagina. It was a sticky fluid.

Q-

.Where did the fluid come from?

A-

May be it came out when he put his penis on my vagina.

Q-

Did you feel the hot fluid coming from the penis of the accused and did you feel inside your vagina or from the labia of your vagina?

A-

The penis was inside my vagina because he tried to make way to the large opening of my vagina so that his penis will enter.

Q-

Did you feel the penis of the accused penetrating your vagina?

A-

Yes, sir, it went inside.

COURT (TO WITNESS) Q-

What happened to your vagina, did it bleed when the penis of the accused entered your vagina?

A-

The penis did not enter but just inside the opening of my vagina.

Q-

You mean in the vulva of your vagina?

A-

It was not inside the opening of the vagina but near the clitoris.

QSo, you are now changing your testimony, you said earlier that the penis of the accused penetrated your vagina and now you are changing your testimony by saying that the penis of the accused only touched the clitoris of your vagina? FISCAL REINERIO S. NAMOCATCAT: The witness is trying to say to enter the mouth of the vagina until the clitoris. This child is still very young to demonstrate the fact that the penetration was made up to the labia minora of the victim.32 Her consistent testimony despite intense and lengthy interrogation33 belies accused-appellant's claim that she was telling a tale culled from pornographic magazines or movies. Faced with complainant's testimony, accused-appellant could only offer the defense of denial. It is well-settled that denial cannot prevail over the positive identification and categorical testimony of complainant. The rule is that between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserves more credence.34 That is why accused-appellant had to summon to his aid an alleged affidavit of desistance (Exh. 3) of complainant and her mother. But how could this bind complainant and her mother or prove anything when the so-called affidavit is unsigned? Third. Accused-appellant says complainant did not immediately report the incidents to the authorities nor tell the same to her mother. He claims that the cases were filed merely to extort money from him. These claims have no basis. The fact that complainant did not immediately report the matter to the authorities was fully explained by the prosecution. Complainant was only 11 years old when the rape incidents took place. Young girls usually conceal for some time their defilement.35 Moreover, accused-appellant, being the cousin of her paternal grandfather, exercised moral ascendancy over complainant and even threatened her with death if she told anyone what he had done to her. Nor is there any probable reason for complainant to allow herself to be used as a pawn of her mother Felipa to extort money from accused-appellant. Unless it can be shown that complainant was moved by ill will to falsely implicate accused-appellant, the inescapable conclusion is that her testimony is worthy of full faith and credit.36 Fourth. Accused-appellant doubts the veracity of Algerico Lonio's testimony that he had witnessed the rape of complainant on September 8, 1990. Accused-appellant points out that Lonio failed to report the incident to complainant's parents or to the authorities despite the fact that there was no threat to his life. Accused-appellant also points out certain improbabilities in the testimony of Lonio, to wit: that he peeped through the "back fence of the house" and saw accused-appellant raping complainant; that despite the fact that the supposed incident happened between 7:00 to 8:00 p.m., no mention was made of any form of illumination of the place; and that accused-appellant made "push and pull movements" when the medical findings show that complainant's hymen was intact, thereby proving that there could not have been any penetration by accused-appellant's organ. These arguments have no merit. On cross-examination, Lonio said that he knew what would happen to complainant when accused appellant took her to the empty house of Pinay Aguirre because his (Lonio's) own younger sister and the sister of complainant had been abused by accused-appellant before. He said he saw how accused-appellant violated complainant against her will.37 Answering questions of the trial court, Lonio categorically said: COURT: (TO WITNESS) Q You said that you followed the two, accused and the complainant, after they entered the gate of the house of Pinay Aguirre. Did accused Decoroso not close the gate after they gained entrance to the gate? A

Decoroso closed the gate.

Q

Was it locked?

A

He just closed it without locking.

Q

How far is the gate to the house of Pinay Aguirre? To the main door of her house?

INTERPRETER: Witness pointing to a distance indicating 3 to 4 meters. COURT: Q

What door was used when they entered the house? The back door, or front door, or side door .

A

Side door.

Q

How do you know that they were using the side door when they entered the house?

A

Because I saw them.

Q

The two were seeing you when you entered the gate following them?

A

They did not see me.

Q

Did you enter the house of Pinay Aguirre using the side door taken by the two when they entered the same house?

A

No.

Q

Where were [you] posted then?

A

Inside the fence because I climbed over the bamboo fence.

Q

Fence around the house of Pinay Aguirre?

A

It only connected the gate because there was a poultry .

Q So, you did not enter the house of Pinay Aguirre where the complainant and the accused had entered at 7 :00 o'clock in the evening of September 8, 1990? A

I did not.

Q

Why did you say that Fritzie Aca-ac was already lying down and her short was pulled and her blouse was raised above her breast?

A

I peeped.

Q

There was a hole or there was a window?

A

From a hole of a fence which is a hogwire.

Q

How far was that fence made of hogwire to the house of Pinay Aguirre where the complainant and the accused entered?

INTERPRETER: Witness indicating a distance of 3 to 4 meters. COURT: Q

So that that portion of the house where the two entered was not surrounded by any walling in such a way that they could be seen from the wire?

A

No wall.

Q

How do you describe the house? Is it two storeys, or a building without walls?

A

A two-storey house. Only the first storey has no wall because it was already destroyed by a storm.

Q

Was the place lighted, considering that it was already 7:00 o'clock in the evening the incident allegedly happened?

A

It was well lighted because the opposite house was well lighted.

Q

And the light would reach the house of Pinay Aguirre?

A

Yes.

Q When you saw the complainant with her shorts already pulled down, did I hear you correctly that the accused with the bended knees made a pushand-pull movement of the body of the complainant? A

Yes.

Q

Was his penis exposed?

A

Yes, I saw.

Q

You said that the accused licked the vagina of the complainant. Which happened first, the licking of the vagina or the push-and-pull movement?

A

The licking of the vagina happened first and after that, the accused made a push-and-pull movement.

Q Since you said that the penis of the accused was exposed, did we understand from you that the accused also pulled down his trousers, as well as his underwear? A

Yes.

Q

Did you see the penis of the accused penetrate into the vagina of the complainant?

A

I did not see because Fritzie was under .

Q

In that precise moment, how far were you to the two?

INTERPRETER: Witness indicating a distance of 3 to 4 meters. COURT: Q Did you hear any utterances [from] either of the two regarding the push-and-pull movement made by the accused? Did you hear anything from the accused while making a push-and-pull movement? A

None.

Q

From complainant Fritzie, did you hear anything from her while the accused was making a push-and-pull movement over her?

A

I did not hear any word from Fritzie.

Q You said earlier that the accused and the complainant had several intercourse. This is also testified to by you during the cross-examination. Do you know that the two were having sexual intercourse? A

Because of the movement of Decoroso.

Q

After the push-and-pull movement, what transpired next?

A

No more.

The alleged inconsistencies in the testimony of Lonio as to the details of the September 8, 1990 rape incident are inconsequential. It was evident that Lonio was telling the truth. He cried after narrating to the court how he told his mother about the incident. When the trial judge asked him why he cried, Lonio said that he was hurt because the same thing happened to his younger sister.39 He also said that he kept his silence in the beginning because he feared for his life.40 The testimony of Lonio contains details that dovetails on material points with the testimony of complainant.

Fifth. While increasing the imposable penalty to reclusion perpetua in view of its conclusion that accused-appellant was guilty of statutory rape, the Court of Appeals affirmed the trial court's award of P30,000.00 for moral damages and P20,000.00 for exemplary damages in favor of the complainant. This ruling must be modified. In accordance with current rulings of this Court, the award of moral damages should be increased to P50,000.00.41 In addition, complainant should be paid P50,000.00 as civil indemnity.42 On the other hand, the award of P20,000.00 as exemplary damages should be deleted for lack of basis. WHEREFORE, the decision of the Court of Appeals finding accused-appellant Decoroso Aca-ac y Cespon guilty of statutory rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay complainant Fritzie Aca-ac P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award of P20,000.00 as exemplary damages is hereby deleted.1âwphi1.nêt SO ORDERED.

G.R. No. 114261

February 10, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERLY FABRO y AZUCENA, accused-appellant. KAPUNAN, J.: Appellant Berly Fabro y Azucena, together with her common-law husband Donald Pilay y Calag ad Irene Martin, was charged with the crime of "violation of Section 21 (b) Art. IV, in relation to Section 4, Art. II of Republic Act No. 6425, as amended," under Criminal Case No. 11231-R of the Regional Trial Court of Baguio City, in an information that reads: That on or about the 7th day of April 1993, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously sell and/or deliver to PO2 ELLONITO APDUHAN, who acted as poseur-buyer, one (1) kilo of dried marijuana leaves, a prohibited drug without any authority of law, in violation of the aforementioned provision of law. CONTRARY TO LAW.1 Upon arraignment, appellant and Donald Pilay pleaded not guilty to the crime charged.2 A co-accused, Irene Martin, remains at large. The prosecution's case against herein appellant is as follows: At around 5:00 o'clock in the afternoon of April 7, 1993 in Camp Henry Allen, Baguio City, two "concerned individuals," later identified as Gloria and Emma Borce,3 reported to Chief Inspector Allyn Evasco of the 14th Narcotics Regional Field Office, that a couple living together as husband and wife in Quirino Hill, Baguio City, was engaged, in selling marijuana. They added that sales usually took place between 5:00 and 6:00 p.m.4 Acting on that report, Chief Inspector Evasco organized two teams to conduct a buy-bust operation. The first team was composed of SPO1 Modesto Carrera, SPO3 Delfin Salaria, SPO1 Galutan and one civilian agent while the second team had Senior Inspector Franklin Mabanag and three (3) members of the 191st Mobile Force Company.5Mabanag was to be the overall team leader with Batag as his assistant.6 SPO2 Ellonito Apduhan was designated poseur-buyer in the operation. After briefing the group, Chief Inspector Evasco gave P600.00 as purchase money to Apduhan. The amount consisted of six P100-bills with their serial numbers duly listed down.7 With the civil informers in tow, the group proceeded to Quirino Hill on board three vehicles. They arrived at around 5:45 p.m.8 All of disembarked from the vehicles except for Mabanag who stayed in his car. Apduhan, Gloria and Emma took a stairway down to the house of Pilay and appellant below street level. Batag stationed himself on the top portion of the stairway about twenty (20) meters from Pilay's house.9 Carrera positioned himself at the upper portion of the road about thirty (30) meters away from the same house.10 The back-up team deployed within the immediate vicinity in such a way that they could clearly see the transaction between the suspected pushers and the poseur-buyer. As Apduhan, Gloria and Emma drew near Pilay's residence, appellant met them. Her common-law husband who appeared drunk was inside the house by the main door.11 Gloria and Emma introduced Apduhan to appellant as a stranger in the place who wanted to buy marijuana. Appellant told them that a kilo would cost them P700.00 but she agreed to Apduhan's price of P600.00.12 After Apduhan had ordered a kilo of the contraband, appellant told them to wait a while.13 Appellant then went to a house just behind her own.14 After a few minutes, she returned in the company of another woman who was later identified as Irene Martin. Appellant was holding something that looked like a brick wrapped in newspaper and placed inside a transparent plastic bag.15 Appellant handed the stuff to Apduhan. Her companion, Irene Martin, demanded payment therefor. Apduhan gave her the P600.00. Apduhan removed the wrapped of the merchandise. After ascertaining that it was a brick of marijuana, he made the prearranged signal of lighting his cigarette.16 Immediately, the back-up team rushed towards their direction. However, before the team could reach them, Irene Martin ran away. Apduhan held appellant so that she could not escape.17 Donald Pilay was also arrested. The buy-bust team in pursuit of Irene Martin ended up in her house with barangay councilman Dominic Dicoy. Since her house was locked, the team forcibly opened it. Inside, they found Irene's husband, Eusebio Martin. The team obtained his consent to search the house.18 The search proved futile — neither Irene nor marijuana was found there.19 Thereafter, the team brought the suspects and the confiscated marijuana to their office at Camp Allen. The police prepared the booking sheet and arrest reports as regards Donald Pilay and appellant.20 SPO1 Carrera, SPO2 Apduhan and SPO3 Batag executed a joint affidavit of arrest.21 The police requested the PNP Crime Laboratory Service to examine the confiscated item. To identify it, Apduhan, Batag and Carrera affixed their signatures thereon.22 Forensic Chemist Lalaine Ong Rodrigo confirmed that the seized item weighing one (1) kilo was indeed positive for marijuana.23 However, since she could not go to Baguio City to testify, another forensic chemist, Alma Margarita Villaseñor conducted another test on 995.5 grams of specimen and found it to be positive for marijuana.24 The defense presented a different version of the incident leading to the arrest of appellant and her common-law husband. Appellant denied having sold marijuana to Apduhan, claiming that Gloria and Emma were the ones carrying the pack of marijuana when the team approached her. According to appellant, at around 6:00 p.m. of April 7, 1993, she was busy cooking in her house at Middle Quirino Hill, Baguio City. Her "husband" Donald was then drinking liquor with their neighbors Eusebio Martin, George Matias and others.25

While cooking, appellant noticed Gloria and Emma Borce pass by. They went straight to the house of her neighbor Irene Martin which was just behind her own house.26 After a while, Irene summoned appellant to her house where she was introduced to Gloria and Emma. The two asked appellant if she could do home service for them as appellant was a beautician. They added that they needed a favor from appellant. However, they were not able to tell appellant what favor it was because appellant excused herself to go back home and resume cooking. Moments later, Gloria and Emma followed appellant to her house. They reiterated their need for appellant's services as a beautician provided that she would do them a favor. Appellant replied that she could not attend to them. Hearing this, the two women left her. Appellant noticed that Gloria and Emma carried a regular-sized black shoulder bag.27 Gloria and Emma returned three minutes later. Gloria was no longer carrying the shoulder bag. Instead, she was holding something wrapped in a newspaper.28 Appellant overheard Emma telling Gloria to hold the marijuana.29Armed men also accompanied the two women. Despite her objections, appellant was immediately handcuffed by one of the armed men.30 A commotion ensued in the midst of which Gloria and Emma disappeared. Appellant was led to a waiting vehicle and was brought to the investigating division of the 14th NARCOM unit in Camp Allen, Baguio City. Appellants' co-accused, Donald Pilay recounted that on April 7, 1993, he and one Pelayos were at the house of Dr. Pilando to get their wages as the latter's workers. Subsequently, they engaged in a drinking spree somewhere in Hilltop near the vegetable section. In the afternoon of the same day, they transferred to Doro's place. They resumed their drinking session at the house of Eusebio Martin in Quirino Hill. On his way home, someone poked a gun at him and placed him in the trunk of a vehicle. He was brought to Camp Allen where he saw his wife, appellant herein, with barangay councilman Dicoy.31 Dominic Dicoy, the other witness for appellant, testified on how Donald Pilay wrestled with four NARCOM agents on April 7, 1993 prior to his arrest. He corroborated the testimonies of the arresting officers regarding the search conducted on the residence of Irene Martin. On January 4, 1994, the trial court rendered the Decision disposing of Criminal Case No. 11231-R as follows: WHEREFORE, the Court Finds the accused Berly Fabro guilty beyond reasonable doubt of the offense of Violation of Section 4 Article II of Republic Act No. 6425 as amended (Sale and/or Delivery of Marijuana) as charged in the body of the Information, not its caption, and hereby sentences her to Life Imprisonment and to pay a Fine of Twenty Thousand Pesos (P20,000.00) without subsidiary imprisonment in case of Insolvency and to pay the costs. The marijuana confiscated from accused Berly Fabro (Exh. H) being the subject of the offense is hereby ordered confiscated and forfeited in favor of the State and referred to the Dangerous Drugs Board for immediate destruction. The accused Berly Fabro being a detention prisoner is entitled to be credited in the service of her sentence 4/5 of her preventive imprisonment in accordance with Article 29 of the Revised Penal Code. For failure of the prosecution to prove his guilt beyond reasonable doubt, the accused Donald Pilay is Acquitted of the offense charged in the Information with costs de oficio. Let an alias warrant of arrest be issued against co-accused Irene Martin to be implemented by any law enforcing agency in the country so that upon her arrest she shall have a separate arraignment and trial of her own. SO ORDERED.32 In this appeal, appellant assails her conviction on the ground that her guilt has not been proven beyond reasonable doubt. She contends that the following circumstances create a doubt as to her culpability for the crime charged: (1) Contrary to the allegation of the prosecution, the amount of the confiscated marijuana "weighed only 99.5 grams and not one (1) kilo;" (2) The marked money allegedly used in the buy-bust operation was not recovered and presented during the trial; and (3) Based on the testimony of the NBI, the real possessor of the confiscated properties was her co-accused Irene Martin. The grounds relied on by the appellant are clearly without merit. Appellant posits that the amount of marijuana confiscated weighed only 99.5 grams. Appellant relies on the testimony of Forensic Chemist Alma Margarita Villaseñor where she referred to the confiscated marijuana as weighing 99.5 grams:33 Q

Could you remember madame witness if your predecessor Sr. Inspector Lalaine Ong conducted her own examination of this item?

A

It states on the chemical report that she conducted the examination.

Q

And how many grams of this item did she use of the examination (sic)?

A

I did not see the representative sample.

Q

But when you received the item, how much did it weight?

A

99.5.

Q

So it must be lesser now?

A

Yes, sir.34

However, it should be noted that in her written report Villaseñor indicated that the specimen had a "total of 999.5 grams of dried suspected marijuana fruiting tops."35 As between a writing or document made contemporaneously with a transaction in which are evidenced facts pertinent to an issue, when admitted as proof of these facts, is ordinarily regarded as more reliable proof and of greater probative value than oral testimony of a witness as to such facts based upon memory and recollection. The reason behind this is obvious, human memory is fallible and its force diminishes with the lapse of time.36 Hence, as between Villaseñor's testimony and her written report, the latter is considered as the more accurate account as to the amount of marijuana examined. Moreover, the initial Chemistry Report conducted by Forensic Chemist Lalaine Ong Rodrigo on April 8, 1993, a day after its confiscation, recorded that the specimen submitted for laboratory examination was "one (1) kilo of suspected dried fruiting tops."37 This Court is convinced that despite Villaseñor's testimony that the marijuana weighed 99.5 grams, there is overwhelming documentary and testimonial evidence, as correctly appreciated by the trial court, pointing to the fact that the contraband weighed one (1) kilo when it was seized. The prosecution's failure to present the marked money used in buying marijuana from appellant did not cause a dent on the prosecution's case. Such failure was on account of Irene Martin's flight after taking the money used in the sale. It must be stressed, however, that failure to present the marked money is of no great consequence. The Dangerous Drugs Law punishes the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the prohibited drug seller.38 Rather, of importance are the facts that the prohibited drug given or delivered by the accused was presented before the court and that the accused was clearly identified as the offender by the prosecution eyewitness.39 Stated differently, the buy-bust money is not indispensable to the conviction of an accused provided that the prosecution has adequately proven the sale of the dangerous drug.40 Appellant's contention that Irene Martin was the real culprit being the source of the contraband does not in any way absolve her of the crime of selling marijuana. While it is true that it was Irene Martin who took the money, appellant was the one who negotiated with the poseur-buyers; fetched her co-accused; carried and handed over the marijuana to Apduhan. The acts of Martin and appellant clearly show a unity of purpose in the consummation of the sale of marijuana. In other words, between Martin and appellant, conspiracy in the commission of the crime was indubitably proven by the prosecution. A final note. The information denotes the crime as a "VIOLATION OF SECTION 21 (b) ART. IV IN RELATION TO SECTION 4/ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED".41 This is an erroneous designation of the crime committed. Section 21 of R.A. 6425 reads: Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of the offense shall be imposed in case of any . . . conspiracy to commit the same in the following cases: xxx

xxx

xxx

b) Sale, administration, delivery, distribution and transportation of dangerous drugs. It is clear that Section 21 (b) of R.A. 6425 punishes the mere conspiracy to commit the offense of selling, delivering, distributing and transporting of dangerous drugs. Conspiracy herein refers to the mere agreement to commit the said acts and not the actual execution thereof. While the rule is that a mere conspiracy to commit a crime without doing any overt act is not punishable, the exception is when such is specifically penalized by law, as in the case of Section 21 of Republic Act 6425. Conspiracy as crime should be distinguished from conspiracy as a manner of incurring criminal liability the latter being applicable to the case at bar. In any event, such error in the information is not fatal. The body of the information states that the crime for which the petitioner is charged is as follows: the above-named accused, conspiring, confederating and mutually aiding one another, did there willfully, unlawfully and feloniously sell and/or deliver to PO2 Elonito Apduhan, who acted as poseur buyer, one (1) kilo of dried marijuana leaves. . . It has been our consistent ruling that what is controlling are the actual recital of facts in the body of the information and not the caption or preamble of the crime.42 Having considered the assignments of error and finding no basis which, from any aspect of the case, would justify us in interfering with the findings of the trial court, it results that the appealed decision must be AFFIRMED in toto. SO ORDERED.1âwphi1.nêt

G.R. No. 131966

August 16, 2004

REPUBLIC OF THE PHILIPPINES, petitioners, vs. HON. ANIANO A. DESIERTO, as Ombudsman, EDUARDO C. CONJUANGCO, JR., JUAN PONCE ENRILE, MA. CLARA S. LOBREGAT, ROLANDO DE LA CUESTA, JOSE C. CONCEPCION, JOSE R. MENDOZA, EMMANUEL M. ALAMEDA, HERMENEGILDO C. ZAYCO, TEODORA A. REGALA, AMADO C. MAMURIC, DOUGLAS LU YM, JAIME GANDIAGA, NARCISO PINEDA and DANILO S. URSUA, respondents.

RESOLUTION

AUSTRIA-MARTINEZ, J.: This resolves the motions for reconsideration filed by private respondent Eduardo M. Cojuangco, Jr. and petitioner Republic of the Philippines. The Court’s decision dated September 23, 2002, granted the petition for certiorari filed by the Republic of the Philippines, set aside the resolution of the Ombudsman in OMB-0-90-2811 dismissing the Republic’s complaint, and ordered the Ombudsman to proceed with the preliminary investigation in said case. Also on record is a Notice filed by the counsel for the late Maria Clara L. Lobregat informing the Court of respondent Lobregat’s demise on January 2, 2004,1 and praying for the dismissal of the case against her. Respondent Cojuangco contends: a. It was because of lack of evidence or probable cause that the Ombudsman dismissed the complaint in OMB-0-90-2811, not because the offense has prescribed or that LOI 926 and PD Nos. 961 and 1468 precluded prosecution under RA No. 3019 and Article 186 of the Revised Penal Code. Since the Court in its decision of September 23, 2002 did not overturn the Ombudsman’s finding of lack of probable cause, the Ombudsman’s Resolution of June 2, 1997 may not be nullified. b. No evidentiary basis exists for the Court’s finding that the offense had not prescribed; it was, consequently, error for the Court to have found that the offense charged had not prescribed. c. It was also error for the Court to have found that PD Nos. 961 and 1468, LOI No. 926 may not be taken into account in determining whether the respondent violated R.A. No. 3019 and Article 186 of the Revised Penal Code. d. The Court, apparently, overlooked respondent’s contention that his constitutional right to speedy disposition of his case has been violated warranting dismissal of OMB-0-90-2811.2 For its part, petitioner Republic of the Philippines assails the ruling of the Court ordering the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811.3 The Court finds no compelling reason to reconsider the assailed Decision. While it is true that the Ombudsman concluded that there is "no sufficient evidence to engender a well-founded belief that violation of the Anti-Graft Law was committed and that respondents are probably guilty thereof," it must be pointed out that such conclusion is premised on its finding that the acquisition by UNICOM of the sixteen (16) oil mills was done in accordance with existing laws,4 and not because there was no evidence that respondent did not commit the crime at all. Thus, the Ombudsman stated, "respondents cannot be made criminally liable for implementing a government policy because there is no element of evident bad faith or malice."5 But, as was stated, in the assailed Decision, the validity of LOI No. 926, and Presidential Decree (P.D.) Nos. 961 and 1468 will not protect private respondents from criminal prosecution for violations of Republic Act (R.A.) No. 3019 and Article 186 of the Revised Penal Code.6 It is also incorrect for respondent to say that there is no evidentiary basis for the Court’s finding that the offense had not prescribed, as it was resolved in the assailed Decision that since the ten-year prescriptive period in violation of R.A. No. 3019 is governed by Section 2 of Act No. 3326, and applying further the ruling in Domingo vs. Sandiganbayan,7 the complaint in this case, which was filed on March 2, 1990, was well within the prescriptive period.8 At pain of being redundant, we restate our ruling in the assailed Decision that: . . . the fact that the transactions were done pursuant to P.D. Nos. 961 and 1468 will not shield the respondents from being charged considering that prosecution for violations of R.A. 3019 involves questions as to whether the contracts or transactions entered pursuant thereto by the private respondents

were manifestly and grossly disadvantageous to the government; whether they caused undue injury to the government; and whether the private respondents were interested for personal gain or had material interests in the transactions.9 In other words, while P.D. Nos. 961 and 1468 may have sanctioned UNICOM’s acquisition of the sixteen (16) oil mills, it does not detract from the fact that such acquisition caused undue prejudice, disadvantage and injury to the government, or that private respondents had a material and personal interest in the acquisition thereof, acts which have already been defined as corrupt practices and declared unlawful under R.A. No. 3019. If the Court were to adhere to private respondent’s argument that valid laws may not be taken into account in determining whether there was a violation of R.A. No. 3019 and Article 186 of the Revised Penal Code, then the validity of laws would create a blanket shield and there would be no prosecution for violations of R.A. No. 3019 and Article 186 of the Revised Penal Code, as all acts committed by public officers will be beyond reach, despite the undue damage, injury and prejudice to the government, and the personal gain and material interest of the public officers involved. As regards respondent’s contention that the seven-year delay in the disposition of the preliminary investigation by the Ombudsman warrants the dismissal of the case against him, the Court finds the same wanting in merit. In the case of Dela Peña vs. Sandiganbayan, the Court had the occasion to restate the doctrine that: The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.10 Nevertheless, despite the finding that there was a considerable delay by the Sandiganbayan in the disposition of the petitioners’ case, the Court did not dismiss its case for the reason that the failure of the petitioner therein to assert its right to a speedy disposition of its case amounts to a waiver of such right. Thus, the Court held: Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their Motion to Quash/Dismiss, "[o]ther than the counter-affidavits, [they] did nothing." Also, in their petition, they averred: "Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not file nor send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the preliminary investigation." They slept on their right – a situation amounting to laches. The matter could have taken a different dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of their cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not waiving that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the petitioner therein was "insensitive to the implications and contingencies" of the projected criminal prosecution posed against him "by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with his acquiescence."11 In the present case, a review of the records shows that the last pleading filed prior to the Ombudsman’s Resolution dated June 2, 1997 was respondent’s Motion to Suspend Filing of Counter-Affidavit, which was filed on May 15, 1991.12 Between 1991 and 1997, respondent did nothing to assert his right to a speedy disposition of his case. Clearly, his silence during such period amounts to a waiver of such right. Moreover, respondent’s right to a speedy disposition of his case should not work against and preclude the people's equally important right to public justice13 considering that the funds used to acquire the sixteen (16) mothballed oil mills came from the coconut levy funds, which are not only affected with public interest, but are, in fact, prima faciepublic funds.14 It is noted that the Court’s decision in the Orosa case,15 which we cited in the decision of the present case, was set aside per Resolution dated July 7, 2004, on the ground that two (2) of the respondents therein, Ma. Clara Lobregat and Jose C. Concepcion, were deprived of their right to file their comments on the petition, and as such, the case was not yet ripe for resolution when the Court rendered its decision. Be that as it may, said resolution does not bear any consequence on the present case as the jurisprudence relied upon in the Orosa case are still valid and binding precedents. As regards petitioner Republic’s motion that the assailed Decision be reconsidered insofar as the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811 is concerned, the Court finds the same bereft of merit. According to petitioner, respondents Regala and Concepcion should not be excluded as respondents because they are being charged for illegal acts committed in their official capacity as members of the Board of Directors of UNICOM and UCPB, in conspiracy with the other private respondents.16 Such argument, however, has already been resolved by the Court in both the Regala17 and Castillo18 cases, wherein the Court found that the acts complained of were done by the respondents in connection with the legal services they rendered to the other respondents. Thus, the Court held in the Castillo case that: This was the same argument raised by the Republic in the case of Regala. In overruling the Republic’s position, this Court ruled: "An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objection. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality."19

Finally, during the pendency of this petition, respondent Maria Clara L. Lobregat died on January 2, 2004.20 The death of an accused prior to final judgment terminates his criminal liability as well as the civil liability based solely thereon.21 Consequently, the case should be dismissed with regard to her. WHEREFORE, the Motions for Reconsideration filed by private respondent Eduardo M. Cojuangco, Jr. and petitioner Republic of the Philippines are hereby DENIED. The Court’s Decision dated September 23, 2002 is MODIFIED to the effect that the charges against deceased respondent Maria Clara L. Lobregat in OMB-0-90-2811, pending preliminary investigation before the Office of the Ombudsman, is ordered dismissed and any criminal as well as civil liability ex delicto that might arise from said case is declared extinguished by reason of her death. SO ORDERED.

G.R. No. 172608

February 6, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. BERNARD MAPALO, Accused-Appellant. DECISION CHICO-NAZARIO, J.: In its Decision1 dated 27 October 2004, the Regional Trial Court (RTC), Branch 32 of Agoo, La Union, in Criminal Case No. A-2871, found appellant Bernard Mapalo guilty beyond reasonable doubt of the crime of Murder, and imposed upon him the penalty of reclusion perpetua. On appeal, the Court of Appeals rendered a Decision2 dated 21 November 2005, modifying the Decision of the RTC, and finding Bernard Mapalo guilty beyond reasonable doubt of the crime of Frustrated Murder. The Indictments Appellant, together with Peter Doe, John Doe and Peter Doe, Jr., was charged before the RTC of Agoo, La Union with the crime of Murder, said to have been committed as follows: That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and being then armed with lead pipes and bladed weapons and conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing him with the said pipes and stabbing him several times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his death, to the damage and prejudice of his heirs. Contrary to law.3 The RTC ordered the issuance of a warrant of arrest for the apprehension of the appellant. No bail was recommended.4 When the case was called, appellant filed a Motion for Reinvestigation and Bail, which was granted. On 27 March 1995, 3rd Assistant Provincial Prosecutor Manuel S. Oliva filed a Motion to Admit Amended Information and for the Issuance of Warrant of Arrest for the Apprehension of the Other Accused,5 alleging that a reinvestigation was conducted and a prima facie case was found against the other accused. It was prayed that an amended information be admitted and a warrant of arrest be issued for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Finding the Motion to be well-taken, the RTC issued an Order,6 dated 27 April 1995, admitting the Amended Information, viz: The undersigned Assistant Provincial Prosecutor accuses BERNARD MAPALO, ALEJANDRO FAJARDO, JR., JIMMY FRIGILLANA and ROLANDO MAPALO alias Lando of the crime of MURDER, committed as follows: That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and being then armed with lead pipe and bladed weapons and conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing him with the said pipe and stabbing him several times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his death, to the damage and prejudice of his heirs.7 Consequently, a warrant of arrest was issued for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Only Alejandro Fajardo, Jr. was apprehended; the other two remain at large. On arraignment, appellant pleaded not guilty.8 Thereafter, trial on the merits commenced. After the prosecution had rested its case, Alejandro Fajardo, Jr. filed a Demurrer to Evidence which was granted by the RTC, in its Order9 dated 5 November 1998, on the ground that the prosecution did not present any evidence against him. Thus, only accused Bernard Mapalo proceeded to present his evidence. He was eventually found guilty. The Case for the Prosecution The prosecution presented Calixto Garcia (Garcia) as its lone eyewitness.

Garcia testified that on 12 February 1994, a pre-Valentine dance was held in Sitio Baracbac, Brgy. Sta. Cecilia in Aringay, La Union. He watched the dance, along with the appellant and Jimmy Frigillana.10 In the early morning of 13 February 1994, at around 3:00 a.m., a fight erupted between Manuel Piamonte (Piamonte) and the group of Lando Mapalo,11 Jimmy Frigillana, and the appellant.12 Garcia further testified that he witnessed the fight from a distance of more or less five (5) meters. He claimed that he could see the incident very clearly because of the light at the dancing hall.13 He saw the appellant club Piamonte with a lead pipe from behind, hitting him on the right side of the head.14 The pipe was one and a half (1 and ½) feet in length, and one and a half (1 and ½) inches in diameter.15 At that time when the appellant struck Piamonte with a lead pipe, he saw Jimmy Frigillana and Lando Mapalo standing in front of Piamonte. Later, he saw the dead body of Piamonte, which had suffered multiple stab wounds.16 He saw stab wounds on the left and right parts of the abdomen, and below the left breast, as well as small wounds on the front part of his left hip.17 Garcia disclosed that he neither witnessed how Piamonte was stabbed, nor did he see the act of stabbing Piamonte.18 He does not know who stabbed the latter.19 It was only when Piamonte’s shirt was removed when he saw stab wounds on the former’s dead body.20 The Case for the Defense Appellant testified that in the evening of 13 February 1994,21 at around 9:00 p.m., he, along with his wife, Caridad Mapalo, entertained several guests at their residence, namely, Crispin Calderon, Noel Cordero, Ruel Mercado, and Rolando Mapalo.22 They drank wine.23 Appellant knew that there was a Valentine’s Day dance celebration at the dance hall, located northeast of his house at a distance of about 20-30 meters.24 At 12:30 a.m., after his guests had left the house, he went to sleep.25 At 3:00 a.m., his wife woke him up and was informed that somebody had been stabbed. He said he came to know that Piamonte was the person who was stabbed.26 He added that he planned to go out of the house, but his wife prevented him from doing so.27 He, thereafter, returned to his room, and went back to sleep.28 Corroborating the appellant’s defense of denial and alibi, his wife, Caridad Mapalo, narrated that on 13 February 199429 at 8:00 p.m., she served brandy to her husband and their guests at their residence. The celebration finished at around 12:00 midnight.30 Thereafter, she and her husband went to sleep, while their guests proceeded to the dance hall. At 3:00 a.m., she awoke because of a commotion from the dance hall.31 She described that the dance hall is around 60 to 70 meters, southwest of their residence.32 She went outside of their house, and along with her sister-in-law, Marissa Dapit, proceeded to the edge of the dancing hall.33 She claimed that her husband did not go out and just stayed at their house.34 She explained that she and Marissa Dapit went out to see or to know the name of the person who died at the commotion.35 At the dancing hall, she saw the body of Piamonte, lying face down.36 The Ruling of the RTC After trial, the RTC rendered a Decision, dated 27 October 2004, finding appellant guilty beyond reasonable doubt of the crime of Murder. It ruled that appellant’s defense of alibi cannot prevail over the positive identification of the lone eyewitness. As emphasized by the RTC, per admission of appellant, the distance between his house and the dancing hall is only 20 to 30 meters, more or less. There was no physical impossibility for the appellant to be present at the scene of the crime. Moreover, it found Garcia’s testimony to be consistent and uncontradicted. On the other hand, the RTC considered the testimony of Caridad Mapalo as defying the natural course of human reaction and experience. The RTC found it strange that it was only Caridad Mapalo who was awakened by the commotion, while the appellant remained asleep. Learning of the same, Caridad Mapalo exposed herself to danger by proceeding to the dance hall to see what the commotion was all about without even informing her husband. The RTC conjectured that Caridad Mapalo proceeded to the dance hall not to see what the commotion was all about, but because she was informed that her husband was involved in a fight.37 Further, the RTC ruled that conspiracy was established by the prosecution. According to the RTC, the appellant was clearly identified by Garcia as the one who struck Piamonte on the head with a lead pipe, which alone is "sufficient manifestation of a concerted, common and united design with the other accused to commit an unlawful and felonious act." The fact that the medical certificate shows the cause of death as stab wounds was deemed by the RTC as immaterial, in view of the presence of conspiracy. The RTC also appreciated the attendance of abuse of superior strength as a qualifying circumstance, on the rationalization that the perpetrators were armed with bladed weapons and a lead pipe that were out of proportion to the unarmed Piamonte. The decretal portion of the RTC Decision states: WHEREFORE, the accused BERNARD MAPALO is hereby found Guilty beyond reasonable doubt of the crime of MURDER and is sentenced to suffer the penalty of RECLUSION PERPETUA. Further, the accused is ordered to pay the heirs of Manuel Piamonte the amount of Twelve Thousand Seven Hundred Pesos (₱12,700.00) as actual damages. Fifty Thousand Pesos (₱50,000.00) as civil indemnity for the death of Piamonte and Fifty Thousand Pesos (₱50,000.00) as moral damages.38 The Ruling of the Court of Appeals Before the appellate court, appellant challenged the credibility of the prosecution’s lone eyewitness. Appellant similarly assailed the ruling of the RTC on the ground that it erred in convicting him despite the failure of the prosecution to prove his guilt beyond reasonable doubt.39 The Court of Appeals found no adequate reason to disturb the findings of the RTC in weighing the testimony of Garcia. It did not find significant the alleged inconsistencies in Garcia’s affidavits as executed before the investigating police and the prosecutor.40 The appellate court did not accept the appellant’s defense of alibi. The positive identification of the prosecution witness which was consistent and categorical, and shown to be without ill-motive, has discredited appellant’s defense. The Court of Appeals, however, found reason to modify the findings of the RTC. It convicted the appellant of frustrated murder only. It was not convinced that the evidence on record established conspiracy among the appellant and his co-accused. The appellate court rationalized that while the evidence shows that Piamonte sustained stab wounds which caused his death,41 the appellant was never identified as the one who inflicted the stab wounds on the deceased. According to the appellate court, the prosecution’s evidence only established that the appellant clubbed Piamonte with a lead pipe. However, the prosecution’s witness did not see the stabbing. He was not able to describe the particular acts which caused Piamonte’s death. Hence, it cannot be inferred from the account of the witness that the

appellant and his co-accused came to an agreement to commit a felony, or that they decided to commit the same, by concerted acts.42 The Court of Appeals made the following observations: In the first place, the killing was the result of a fight that erupted suddenly during the Valentine dance, which discourages the conclusion that the killing was planned. Also, the witness did not see any stabbing. He did not see anyone else perform any act of stabbing or hitting, other than the appellant delivering blows with a lead pipe on the victim. There is no proof, therefore, of any concerted action or common design to kill the victim that could be the basis for a finding of conspiracy among several malefactors. Because of this, it could not be said that conspiracy was proven attendant beyond reasonable doubt.43 In the absence of a conspiracy, the Court of Appeals said that the appellant could only be held liable for the consequences of his own criminal act. It ruled that when the appellant hit Piamonte in the head with the lead pipe, he performed all the acts that would have brought about the death of the victim.44 Piamonte’s death however was due to some other supervening cause, independent of the appellant’s will.45 The fallo of the Court of Appeals’ Decision reads, viz: WHEREFORE, premises considered, the lower court’s Decision is hereby MODIFIED, in that the accused-appellant Bernard Mapalo is hereby found guilty beyond reasonable doubt of the crime of Frustrated Murder. Accused-appellant is hereby sentenced to 8 years and 1 day of prision mayor, as minimum to 14 years, 8 months and 1 day of reclusion temporal, as maximum. Further, the accused is ordered to pay the heirs of Manuel Piamonte[,] the amount of Twenty Five Thousand Pesos (₱25,000.00) as temperate damages, Thirty Thousand Pesos (₱30,000.00) as civil indemnity and Thirty Thousand Pesos (₱30,000.00) as moral damages pursuant to prevailing jurisprudence. (People v. Pacana, 345 SCRA 72 [2000]; People v. Givera, 349 SCRA 513 [2001]).46 The Issues Appellant contends that: I THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO IDENTIFY THE ACCUSEDAPPELLANT IN OPEN COURT; and II ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING HIM OF FRUSTRATED MURDER INSTEAD OF FRUSTRATED HOMICIDE.47 The Ruling of the Court In support of the first assignment of error, appellant raises, for the first time, the defense that the witness for the prosecution failed to positively identify him during the trial proceedings. Citing People v. Galera48 and People v. Hatton,49 appellant submits that the prosecution failed to discharge its first duty, which is the identification of the accused as the author of the crime charged.50 Witness Garcia did not identify the appellant in open court. Appellant further posits that Garcia did not deny drinking gin at around 9:00 p.m. on 13 February 1994 until 3:00 a.m. of the following day. Garcia was then intoxicated if he had been drinking hard liquor continuously for six hours. At such point, he can no longer positively determine a person’s identity. It is argued that the foregoing circumstances create doubts as to the identity of the appellant as one of the perpetrators of the crime. We first tackle the issue on the lack of in-court identification. True that on the matter of identification, the Court in Hatton said: More importantly, the accused-appellant was not positively identified in court. True, his name was referred to by both Basierto and Ongue in their respective direct testimonies. However, he was not identified in Court. The failure of the prosecution witness to positively identify the assailant in court is fatal to the prosecution’s cause. Pre-trial identification is not sufficient.51 Verily, the records are bereft of proof that there was in-court identification by the witness Garcia of the appellant. Indeed, Garcia did not point to the appellant in the courtroom. Such fact can be gleaned from the pertinent portion of the transcript of stenographic notes of the trial, reproduced hereunder, as follows: Direct-examination by Prosecutor Rudio of the witness Calixto Garcia Q Do you know the accused Bernard Mapalo? A I know, sir. Q If that accused is inside the courtroom now will you please stand up and point to him if he is inside the courtroom?

A No, he is not around. COURT: Q Was he notified for (sic) today’s hearing? INTERPRETER: Yes, he signed, sir. COURT: O R D E R: It appears that the accused Bernard Mapalo was being notified for (sic) today’s hearing and his wife came to Court and informed the Honorable Court that her husband could not come to Court because he is sick.52 The same testimony, however, conspicuously reveals that there was no identification in open court of the appellant because said appellant was not present at the time, despite notice, as according to his wife, he was sick. In a later case, this Court clarified that a physical courtroom identification is essential only when there is a question or doubt on whether the one alleged to have committed the crime is the same person who is charged in the information and subject of the trial. In People v. Quezada,53 this Court expounded, thus: We do not see the absolute need for complainant to point to appellant in open court as her attacker. While positive identification by a witness is required by the law to convict an accused, it need not always be by means of a physical courtroom identification. As the court held in People v. Paglinawan: "x x x. Although it is routine procedure for witnesses to point out the accused in open court by way of identification, the fact that the witness x x x did not do so in this case was because the public prosecutor failed to ask her to point out appellant, hence such omission does not in any way affect or diminish the truth or weight of her testimony." In-court identification of the offender is essential only when there is a question or doubt on whether the one alleged to have committed the crime is the same person who is charged in the information and subject of the trial. This is especially true in cases wherein the identity of the accused, who is a stranger to the prosecution witnesses, is dubitable. In the present case, however, there is no doubt at all that the rapist is the same individual mentioned in the Informations and described by the victim during the trial. (Emphasis supplied.)54 We do not find herein a case where there is a question or doubt as to whether the one alleged to have committed the crime is the same person charged in the information and subject of the trial. In fact, appellant never denied that he is the person indicted in the Information, and subject of the proceedings. His denial is that he did not participate in the commission of the crime. Hence, in-court identification is not indispensable in the case at bar. We are convinced that the identity of the appellant was sufficiently established by the evidence on record. The appellant is not a stranger to the witness Garcia. The identity of the appellant to Garcia does not appear to be controvertible. In fact, appellant himself admits that he and Garcia are friends. Thus: Cross-examination by Prosecutor Lachica of [appellant] Bernard Mapalo Q Mr. Witness you said that you were informed by your counsel a while ago that a certain Calixto Garcia testified against you in this case did I get you right? A Yes, sir. Q And this Calixto Garica is a resident of the same Barangay as you are? A Yes, sir. Q In fact this Calixto Garcia is an acquaintance of yours? A Yes, sir. Q He is considered a friend? A Yes, sir I consider him as such. Q Prior to the incident which happened sometime on February 13, 1994, you have never quarreled with this Calixto Garcia?

A No, sir. Q Even after that incident that happened on February 13, 1994 you never quarreled with Calixto Garcia? A No, sir. Q You know that this Calixto Garcia is not a relative of Piamonte the victim in this case? A I do not know whether he is a relative of the victim or not. Q You know for a fact that Calixto Garcia executed a statement before the police pointing to you or pointing to you as the assailant of Paimonte did you come to know that? A No, sir. Q You said that you know Calixto Garcia your friend according to you, did you confront him when he testified against you in court? A No, sir. Q You did not tell your friend that he was mistaken in identifying you as the assailant of Piamonte, correct? A No, sir. 55 The proper identification of the appellant is further bolstered by the fact that appellant’s wife, Caridad Mapalo corroborated the testimony that the witness Garcia is a family friend of the spouses. Thus: Cross examination of Caridad Mapalo by Prosecutor Lachica Q Do you know a certain Calixto Garcia? A Yes, sir. Q He is your Barangay mate? A Yes, sir. Q His house is closed to your house, correct? A Far, sir. Q But he is staying within your barangay which is Sta. Cecilia? A Yes, sir. Q This Calixto Garcia whom you know is a friend of your family, correct? A Yes, sir. Q In fact, your family have (sic) never quarreled with Calixto Garcia? A None, sir. Q Prior to the filing of this case, you know that Calixto Garcia being a friend will not falsify his testimony regarding your husband? A Yes, sir. ATTY. RIMANDO: Objection, your honor. COURT:

Objection overruled. PROSECUTOR LACHICA: Q Until now, this Calixto Garcia is your friend? A Yes, sir. PROSECUTOR LACHICA: That would be all for the witness. RE-DIRECT EXAMINATION BY ATTY. RIMANDO: Q This Calixto Garcia was your guest in that evening in your residence? A No, sir. Q Is your family close with (sic) this Calixto Garcia? A Yes, sir.56 Moreover, we do not find herein the presence of factors57 that could cause the witness Garcia to misidentify the appellant. In People v. Limpangog,58 this Court enumerated several other known causes of misidentification, viz: x x x Known causes of misidentification have been identified as follows: "Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences."59 There is no question that the witness Garcia was at a close range of merely five meters more or less from the scene of the incident.60 Neither can it be said that the illumination was poor. The dancing hall was lighted.61 No improper motive was attributed to the witness Garcia for testifying against the appellant. Moreover, witness Garcia is familiar not only to appellant. Garcia was also familiar with the deceased, Piamonte. Witness Garcia, in his testimony, referred to Piamonte as his third cousin.62 On appellant’s submission that it is doubtful if witness Garcia can still have positively identified him as one of the perpetrators of the crime considering that the former admitted to drinking hard liquor from 9:00 p.m. on 13 February 1994 until 3:00 a.m. of the following day, we are not convinced that the same can overthrow the trial court’s evaluation of Garcia’s testimony. Beyond appellant’s bare allegations, no evidence whatsoever was produced to show that Garcia suffered from such a level of intoxication as to impair his facility and disable him to identify appellant. In the case of People v. Dee,63 the credibility of the surviving victim therein as witness was disputed because he was under the influence of liquor at the time of the incident. In Dee, the witness was even found positive for alcoholic breath, but the Court ruled that such fact does not necessarily prevent him from making a positive identification of his attackers, especially since his level of intoxication was not shown to impair his faculties. The credibility of the witness therein was not made to suffer on that score alone.64 The foregoing material considerations, taken together with the fact that witness Garcia and the appellant are not strangers to each other, satisfy us that the danger of Garcia misidentifying the appellant does not exist. Where the prosecution eyewitness was familiar with both victim and accused, and where the locus criminis afforded good visibility, and where no improper motive can be attributed to the witness for testifying against the accused, his version of the story deserves much weight.65 Hence, we do not find any reason to depart from the general rule that the conclusions of the trial court on the credibility of witnesses deserve great respect, viz: The assessment of the credibility of witness and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand; and to note their demeanor, conduct and attitude under examination. Its findings on such matters are binding and conclusive on appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.66 Appellant’s defense of alibi and denial cannot stand in the face of the positive identification of the accused. We have unfailingly held that alibi and denial being inherently weak cannot prevail over the positive identification of the accused as the perpetrator of the crime.67 It is facile to fabricate and difficult to disprove, and is generally rejected.68 For the defense of alibi to prosper, it must be shown with clear and convincing evidence that at the time of the commission of the crime charged, the accused is in a place other than the situs of the crime such that it was physically impossible for him to have been at the situs criminis when the crime was committed.69 In the case at bar, appellant was not successful in invoking the defense of alibi. Appellant insists that he was sleeping at his residence at the time when the incident occurred. The RTC and the Court of Appeals consistently found that the distance between appellant’s residence and the dance hall, or the situs criminis, is 20 to 30

meters, more or less.70 Such a distance is negligible. In fact, appellant’s wife testified that from their residence, she could see the people dancing at the hall.71 It was not highly impossible for the appellant to be physically present at the dancing hall at the time of the occurrence of the incident. We, therefore, reject appellant’s defense of alibi. We shall now determine the criminal liability of the appellant. To reiterate, the RTC, in convicting the appellant guilty beyond reasonable doubt of the crime of murder, proceeded from a rationalization that there was conspiracy among appellant and his co-accused. It also appreciated the attendance of abuse of superior strength to qualify the crime to Murder. The Court of Appeals was unable to agree with the RTC. It found that the conspiracy was not proven beyond reasonable doubt. It ruled that the witness Garcia admitted to not being able to see the stabbing. He could only attest to the clubbing of the victim by appellant with a lead pipe. No proof was shown as to the concerted action of the malefactors of their common design to kill. It, thus, modified the RTC’s conviction, and, instead, found appellant guilty of frustrated murder. The Amended Information charged the appellant and his co-accused with conspiracy in killing Piamonte. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.72 Conspiracy as a basis for conviction must rest on nothing less than a moral certainty.73Considering the far-reaching consequences of criminal conspiracy, the same degree of proof necessary in establishing the crime is required to support the attendance thereof, i.e., it must be shown to exist as clearly and convincingly as the commission of the offense itself.74 Thus, it has been held that neither joint nor simultaneous actions is per se sufficient proof of conspiracy.75 We are, further, guided by the following pronouncement of the Court: For conspiracy to exist, the participants must agree to the commission of the felony and decide to commit it, which agreement may be deduced from the mode and manner of the commission of the offense or inferred from the acts that point to joint purpose and design, concerted action and community of intent. x x x.76 While conspiracy need not be established by direct evidence, it is, nonetheless, required that it be proved by clear and convincing evidence by showing a series of acts done by each of the accused in concert and in pursuance of the common unlawful purpose.77 There is a want of evidence to show the concerted acts of the appellant and his co-accused in pursuing a common design - to kill the deceased, Piamonte. The sole eyewitness for the prosecution, Garcia, was categorical and precise in declaring that he did not see the act of stabbing Piamonte, nor the manner in which Piamonte was stabbed. He later learned that Piamonte died from stab wounds when he saw the latter’s dead body covered with stab wounds. The cause of death of Piamonte, as found by the RTC and the Court of Appeals,78 and as borne by the records, is multiple stab wounds.79 It was, thus, incumbent on the part of the prosecution to prove beyond reasonable doubt that the appellant and his co-accused acted in concert with a unity of purpose to kill Piamonte. They must show to the satisfaction of this Court the appellant’s overt act in pursuance or furtherance of the complicity.80 They must show that appellant’s act of striking Piamonte with a pipe was an intentional participation in the transaction with a view to the furtherance of the common design and purpose.81 The prosecution was unable to show, either by direct or indirect evidence, proof of the agreement among the appellant and his co-accused to warrant conspiracy as a basis for appellant’s conviction. No evidence was even adduced to show implied conspiracy. Nothing has been shown that the appellant and his co-accused were "aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment."82 This complete absence of evidence on the part of the prosecution to show the conduct of the appellant and his co-accused, disclosing a common understanding among them relative to the commission of the offense,83 is fatal to the prosecution. The prosecution’s witness could not testify on the manner by which the deceased Piamonte was stabbed, precisely because by his own admission, he did not see the stabbing. No account of the stabbing which caused the death of the deceased Piamonte was ever given nor shown. Unfortunately, no account of how Piamonte died was ever given, except for the established fact that he died due to stabbing. The appellant’s act of holding a lead pipe and hitting the deceased in the head was not shown to be in furtherance of the common design of killing the deceased. What transpired during the stabbing of the victim, which is material to proving the fact of conspiracy, is, regrettably, left merely to speculation. This Court must neither conjecture nor surmise that a conspiracy existed. The rule is clear that the guilt of the accused must be proved with moral certainty.84 All doubts should be resolved in favor of the accused. Thus, the time honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty.85 Liability of the Accused Bernard Mapalo There being no conspiracy, the liability of the appellant will revolve around his individual participation in the event.86 In the case of Li v. People,87 a street fight ensued resulting in the death of the victim therein. No conspiracy was proven beyond reasonable doubt. The liability of the accused Li who was shown to have struck the victim’s right arm with a baseball bat, resulting in a contusion was, thus, determined by the Court in the following manner: The only injury attributable to Li is the contusion on the victim’s right arm that resulted from Li striking [the victim] Arugay with a baseball bat. In view of the victim’s supervening death from injuries which cannot be attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the realm of speculation. When there is no evidence of actual incapacity of the offended party for labor or of the required medical attendance, the offense is only slight physical injuries, penalized as follows: xxxx

The duration of the penalty of arresto menor is from one day to thirty days. The felony of slight physical injuries is necessarily included in the homicide charges. Since the Information against Li states that among the means employed to commit the felonious act was the use of the baseball bat, conviction on the lesser offense or slight physical injuries is proper. There being no aggravating or mitigating circumstances established, the imposition of the penalty in its medium period is warranted. Li was convicted by the RTC on January 5, 1994. Having long served more than the imposable penalty, Li is entitled to immediate release unless, of course, he is being lawfully detained for another cause.88 In the case at bar, no injury was shown to be attributable to the appellant. The only medical evidence that appears on records is the deceased Piamonte’s death certificate,89 which indicates that the cause of death is massive hypovolemia90 secondary to multiple stab wounds. The factual findings of the RTC and the Court of Appeals coincide to show that the cause of death of Piamonte is multiple stab wounds. Nothing has been shown otherwise. Other than the presence of multiple stab wounds, no other type of injury on the deceased was established. No contusions or injury on the head of the victim or anywhere else in his body caused by a lead pipe was shown. The witness Garcia, in his testimony, merely pointed to stab wounds on the different parts of the body of the deceased.91No proof on the injury that was sustained by the deceased that can be attributable to appellant’s act was demonstrated. No other physical evidence was proffered.92 We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and essential element of attempted or frustrated homicide or murder is the assailant’s intent to take the life of the person attacked.93 Such intent must be proved clearly and convincingly, so as to exclude reasonable doubt thereof.94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.95 In the case at bar, no motive on the part of appellant to kill Piamonte was shown either prior or subsequent to the incident. Nor can such intent to kill be inferred from his acts. It bears reiterating that no injury on the body of the deceased was attributed to the appellant’s act of hitting the victim with a lead pipe. On the nature of the weapon used, the lead pipe was described by Garcia as one and a half feet in length, and one and a half inches in diameter. The relevant testimony of Garcia on the incident follows: Q Now you said that Bernard Mapalo clubbed this Manuel Piamonte. He clubbed him from behind? A Yes, sir. Q And what did he use in clubbing the victim, is it lead pipe? A Yes, sir. Q How long is that lead pipe? A Around this length. (Witness demonstrated 1 1/2 feet). Q And how wide is the diameter? A 1 ½ inches. Q What part of his body was hit? A Right side of the head, sir. (Witness showing the right side of his head.)96 Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably calculated to produce the death of the victim by adequate means.97 We cannot infer intent to kill from the appellant’s act of hitting Piamonte in the head with a lead pipe. In the first place, wounds were not shown to have been inflicted because of the act. Secondly, absent proof of circumstances to show the intent to kill beyond reasonable doubt, this Court cannot declare that the same was attendant. When the offender shall ill-treat another by deed without causing any injury, and without causing dishonor, the offense is Maltreatment under Article 266,98 par. 3 of the Revised Penal Code. It was beyond reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any injury. As we have earlier stated, no proof of injury was offered. Maltreatment is necessarily included in Murder, which is the offense charged in the Information. Thus: ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical injuries shall be punished: xxxx 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury. The duration of the penalty of arresto menor in its minimum period is 1 day to 10 days. WHEREFORE, the Decision of the Court of Appeals, dated 21 November 2005, in CA-G.R. CR HC No. 00408 is MODIFIED. Appellant Bernard Mapalo is ACQUITTED of the charge of MURDER for lack of evidence beyond reasonable doubt. He is found GUILTY of the crime of MALTREATMENT, as defined and punished by Article 266, par. 3 of the Revised Penal Code. He is accordingly sentenced to suffer the penalty of imprisonment of arresto menor of 10 days. Considering that appellant has been incarcerated since 2004, which is well-beyond the period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause appellant’s

IMMEDIATE RELEASE, unless appellant is being lawfully held for another cause, and to inform this Court, within five (5) days from receipt of this Decision, of the compliance therewith. SO ORDERED.

G.R. No. 173106

September 30, 2008

COSME NACARIO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CARPIO MORALES, J.: Petitioner, Cosme Nacario, was charged of Frustrated Murder in an August 27, 1997 Information filed before the Regional Trial Court (RTC) of Iriga City, the accusatory portion of which reads: That on or about the 29th day of March, 1997 at about 3:05 o’clock in the afternoon at Sto. Domingo, Iriga City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law and with evident premeditation, did, then and there willfully, unlawfully and feloniously attack and stab with the said [sic] weapon, one Medardo M. de Villa, hitting the latter at the left side portion of his stomach, accused thereby have [sic] performed all the acts of execution which would have produced the crime of murder, but which nevertheless was not produced by reason of causes independent of the will of the accused, and that is by the timely medical assistance rendered to the aforesaid victim which prevented his death, to his damage and prejudice in such amount as may be proven in court. ACTS CONTRARY TO LAW. In the afternoon of March 29, 1997, Medardo de Villa (the victim), while on board a bicycle along a road at Iriga City, met petitioner who was also on board a bicycle coming from the opposite direction.1 After both alighted from their respective bicycles, petitioner stabbed the victim with a balisong (fan knife)2 at the upper left portion of the abdomen.3 The clinical data sheet4 of the victim, who was operated on at the Bicol Medical Center, showed the following: xxxx FINAL DIAGNOSIS: Stab wound, 3 cm., subcostal Area, Anterior Axillary Line, left penetrating the diaphragm, incising the spleen type I x x x x (Emphasis and underscoring supplied) Not long after the incident, petitioner surrendered to the police. Petitioner admitted having stabbed the victim. He interposed self-defense, however, and gave the following version: As he and the victim met on the road, the victim whom he had earlier seen "drinking with others" in front of his (the victim’s) house blocked his path and, without warning, swung a fan knife toward him but missed him. The victim thereafter again thrice attempted to hit him with the knife but also missed him as he always "sw[ung] his body backward," but on the last attempt, he (petitioner) was able to wrest the knife from the victim. Sensing danger to his person when the victim turned his back to pick up stones and "was poised to strike," he stabbed him once with the knife.5 Q: You also testified that Midardo [sic] de Villa attempted . . . to stab [you] by a knife, but it was only on the 4th time that you were able to wrest the [B]atangas knife from him. Now, will you please stand up and demonstrate to the Honorable Court how were you able to evade these three times Midardo de Villa’s attempt[ed] to stab you with [a] [B]atangas knife? A: The first time he stabbed [sic] me (witness swinging his right arm from right to left with him evading the blow while swinging his body backward)[.] I did not react instantly because I could hear the people in the waiting shed pacifying him not to continue and the second time was in like manner [sic] swinging his right hand towards me from left to right with me evading with blow [sic] by the backward [sic] and the third time that he attempted to stab me I decided to wrest the [B]atangas knife. So from him [sic] I could sense he really intends to harm me. The 4th time he attempted I really sense [sic] that he really determine [sic] to stab me. So I pary [sic] blow with my left hand and the [B]atanags [sic] knife with my right hand. After which he picked up stones and it [sic] was in the act of throwing the stones to me that I have [sic] chance to stab him. After I stabbed him, he fell down and so I left.6 (Emphasis and underscoring supplied) Petitioner added that prior to the incident, there had been several attempts of the victim to stab him, and even the victim’s brothers harassed and threatened him.7 By Decision of July 5, 2002,8 the Regional Trial Court convicted petitioner of Frustrated Homicide, disposing as follows: WHEREFORE, finding accused, COSME NACARIO guilty beyond reasonable doubt for the crime of frustrated homicide, he is sentenced to imprisonment of twelve (12) years, ten (10) months and twenty-one (21) days to thirteen (13) years; nine (9) months and ten (10) days, the medium of reclusion temporal, minimum period which is minimum of, to [sic] fifteen (15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days, the medium of reclusion temporal in

its medium period which is the maximum period of the indeterminate sentence; to pay an indemnity of P25,000.00; actual damages including attorney [sic] and doctor’s fees of P35,000.00 and to pay the cost. SO ORDERED. In ruling out self-defense, the trial court held: Accused could not claim self-defense because, after having wrestled away the knife from complainant, if at all complainant was originally in possession of the knife and tried to stab him [sic], there was already an interval of time when complainant turned his back from him and picked up a stone. Assuming without admitting that complainant picked up a stone to throw at him, he could always run away from the fight. After all he was patient enough to ward off complainant’s attempts to stab him. This version of the accused is not credible. The court believes that it was accused who was in possession of the knife all the time when they met and he stabbed him.9 (Emphasis and underscoring supplied) By Decision of May 18, 2006,10 the Court of Appeals affirmed the findings of the trial court but modified the penalty after considering the mitigating circumstance of voluntary surrender of petitioner. Thus the appellate court disposed: WHEREFORE, premises considered, the assailed July 5, 2002 Decision of the RTC of Iriga City, Branch 35, in Criminal Case No. IR-4445, which convicted accusedappellant Cosme Nacario of the crime of Frustrated Homicide, is hereby AFFIRMED with MODIFICATION that the penalty should be from two (2) years and four months of prision correccional in its minimum period, as minimum, to six (6) years and one (1) day of prision mayor in its minimum period, as maximum. Moreover, accusedappellant Cosme Nacario is ORDERED to pay the victim, Medardo M. de Villa, in addition to indemnity of P25,000.00, the amounts of P2,261.55 as actual damages and P30,000.00 as moral damages. SO ORDERED. (Underscoring supplied) Hence, the present petition for review. Having interposed self-defense, petitioner had the onus of proving its elements, viz: (1) unlawful aggression on the part of the victim; (2) employment of reasonable necessity to prevent or repel the aggression; and (3) lack of sufficient provocation on the part of the person defending himself.11 Petitioner maintained that the victim provoked the incident by waylaying him, and that after he wrested the knife from the victim, the latter instantaneously picked up stones, thus making him (petitioner) believe that "an attack was still forthcoming and [he] was still threatened by some evil or injury,"12 hence, his stabbing of the victim.1awphi1.net Assuming arguendo that unlawful aggression initially came from the victim, the aggression ceased when the victim was divested of his balisong. At that instant, there was no longer any imminent risk to petitioner’s life or personal safety. Apropos is this Court’s pronouncement in People v. Ebmerga:13 It is clear even from [the accused] Romeo Ebmerga’s testimony alone that when he threw a stone at Rafaelito Nolasco,causing the latter to drop the knife he was holding, there was no longer any imminent risk or danger to his life. Thus, when Romeo Ebmerga went on to lunge for the victim’s knife on the ground and thrust it for an untold number of times into the victim’s body, he was not acting to repel an attack or to protect himself from the aggression of the victim. It strains credulity to accept the version of the defense that despite dropping the knife, the victim still faced Romeo Ebmerga in a menacing manner and "with the intention of killing him." (Underscoring supplied) Again assuming arguendo that the vicitm thereafter turned his back and picked up stones, there was, as the trial court found, before that "an interval of time" which afforded petitioner time to "run away" as, after all, he had warded off the four prior attempts to stab him. As for petitioner’s varying claim that the victim was "in the act of throwing the stones [at him]" on account of which he was afforded a chance to stab him, the Court finds the same incredible, given the oddity of the victim possibly throwing stones, whose sizes were not even described, from a distance near enough for petitioner to reach and stab the victim. As for petitioner’s still another varying claim, clearly an afterthought, that the victim was able to strike him with a stone before he (petitioner) stabbed the victim,14 that no claim that petitioner was injured dents credibility thereof. It is a statutory and doctrinal requirement that the presence of unlawful aggression is a condition sine qua non for self-defense to be a justifying circumstance. Such element not being present on the victim’s part, discussion of the rest of the elements of self-defense is rendered unnecessary. As did the lower courts, the Court thus brushes aside petitioner’s plea of self-defense. Petitioner’s conviction of Frustrated Murder is thus upheld. On the modification by the appellate court of the penalty imposed by the trial court, this Court finds the same well-taken, petitioner’s voluntary surrender being a mitigating circumstance. As for the reduction by the appellate court of the award of actual damages, it is well-taken too as the documentary evidence for the purpose15 (Exhibit "C"-"C-13" representing expenses for medicine) totals only the amount of P2,261.55. And so is the appellate court’s award of moral damages in the amount of P30,000, it being in consonance with law16 and prevailing jurisprudence.17

As for the award of P25,000 as indemnity, there being no legal basis, it must be deleted. WHEREFORE, the May 18, 2006 Decision of the Court of Appeals finding petitioner, Cosme Nacario, guilty beyond reasonable doubt of Frustrated Homicide is AFFIRMED with MODIFICATION. The award of P25,000 as indemnity is DELETED; in its stead, the award of P30,000 as temperate damages is ORDERED. In all other respects, the appellate court’s Decision is affirmed. Costs de oficio. SO ORDERED.

G.R. No. 125909

June 23, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES FLORA AND EDWIN FLORA, accused-appellants. QUISUMBING, J. Accused-appellants seek the reversal of the decision 1 dated November 7, 1995, of the Regional Trial Court, Branch 26, Santa Cruz, Laguna, in Criminal Case Nos. SC4810, 4811 and 4812, finding them guilty beyond reasonable doubt of the crimes of double murder and attempted murder, and sentencing them to reclusion perpetua, payment of P50,000.00 for indemnity, P14,000.00 for burial expenses and P619,800.00 for loss of earning capacity in Crim. Case SC-4810 for the death of Emerita Roma; reclusion perpetua, payment of P50,000.00 as indemnity, P14,000.00 for burial expenses and P470,232.00 for loss of earning capacity for the death of Ireneo Gallarte in Crim. Case SC-4811; and imprisonment from 2 years, 4 months and 1 day of prision correccional as minimum to 10 years of prision mayor and payment of P15,000.00 to Flor Espinas for injuries sustained in Crim. Case SC-4812. On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three separate informations charging appellants as follows: Criminal Case No. 4810 That on or about January 10, 1993, at around 1:30 o'clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Edwin Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said firearm one EMERITA ROMA y DELOS REYES, thereby inflicting upon the latter gunshot wounds on her chest which caused her immediate death, to the damage and prejudice of her surviving heirs. That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present. 2 Criminal Case No. 4811. That on or about January 10, 1993, at around 1:30 o'clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused HERMOGENES FLORA @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearm one IRENEO GALLARTE y VALERA, thereby inflicting upon the latter gunshot wounds on his chest which caused his immediate death, to the damage and prejudice of his surviving heirs.1âwphi1.nêt That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present. 3 Criminal Case No. 4812 That on or about January 10, 1993, at around 1:30 o'clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearm one FLOR ESPINAS y ROMA, hitting the latter on her shoulder, and inflicting upon her injuries which, ordinarily, would have caused her death, thus, accused performed all the acts of execution which could have produced the crime of Murder as a consequence but which, nevertheless did not produce it by reason of a cause independent of their will, that is, by the timely and able medical attendance given the said Flor Espinas y Roma, which prevented her death, to her damage and prejudice. 4 During arraignment, both appellants pleaded not guilty. Trial thereafter ensued. Resolving jointly Criminal Cases Nos. SC-4810, SC-4811 and SC-4812, the trial court convicted both appellants for the murder of Emerita Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, this Court finds as follows: In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder qualified by treachery and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P619,800 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay the costs.

In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder, qualified by treachery and with the aggravating circumstance of evident premeditation and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P470,232.00 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay the costs. In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Attempted Murder and sentences each of them to suffer an indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries and to pay the costs. SO ORDERED. 5 The facts of the case, borne out by the records, are as follows: Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a violent altercation with a certain Oscar Villanueva. Oscar's uncle, Ireneo Gallarte, pacified the two. On the evening of January 9, 1993, a dance party was held to celebrate the birthday of Jeng-jeng Malubago in Sitio Silab, Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes Flora, allegedly a suitor of Jeng-jeng Malubago, attended the party with his brother and co-appellant Edwin Flora, alias "Boboy". Also in attendance were Rosalie Roma, then a high school student; her mother, Emerita Roma, and her aunt, Flor Espinas. Ireneo Gallarte, a neighbor of the Romas, was there too. The dancing went on past midnight but at about 1:30, violence erupted. On signal by Edwin Flora, Hermogenes Flora fired his .38 caliber revolver twice. The first shot grazed the right shoulder of Flor Espinas, then hit Emerita Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped onto the floor. Rosalie, was shocked and could only utter, "si Bodoy, si Bodoy", referring to Hermogenes Flora. Edwin Flora approached her and, poking a knife at her neck, threatened to kill her before he and his brother, Hermogenes, fled the scene. The victims of the gunfire were transported to the Rural Health Unit in Longos, Kalayaan, Laguna, where Emerita and Ireneo died. 6 Early that same morning of January 10, 1993, the police arrested Edwin Flora at his rented house in Barangay Bagumbayan, Paete, Laguna. Hermogenes Flora, after learning of the arrest of his brother, proceeded first to the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day, he fled to his hometown in Pipian, San Fernando, Camarines Sur. The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot, Jr., revealed the following fatal wounds sustained by the deceased: EMERITA ROMA a) Gunshot of entrance at the posterior chest wall near the angle of the axillary region measuring 1 cm. in diameter with clean cut inverted edges involving deep muscles, and subcutaneous tissues and travel through both lobes of the lungs, including the great blood vessels. About 400 cc of clotted blood was extracted from the cadaver. The bullet caliver 38 was extracted from the lungs. The cause of her death was attributed to "Hypovolemic" shock secondary to massive blood loss secondary to gunshot wound of the posterior chest wall.7 IRENEO GALLARTE Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter with clean cut inverted edges involving the deep muscles, subcutaneous tissues traveling through the anterior chest wall hitting both lobes of the lungs and each great blood vessels obtaining the bullet fragments. About 500 cc. of clotted blood was obtained from the cadaver. His cause of death was attributed to "Hypovelemic" shock secondary to massive blood loss secondary to gunshot wound of the left arm. 8 Flor Espinas submitted herself to a medical examination by Dr. Dennis Coronado. Her medical certificate 9 disclosed that she sustained a gunshot wound, point of entry, 2 x 1 cm. right supra scapular area mid scapular line (+) contusion collar; and another gunshot wound with point of exit 1 x 1 cm. right deltoid area. Three criminal charges were filed against the Flora brothers, Hermogenes and Edwin, before Branch 26 of the Regional Trial Court of Sta. Cruz, Laguna. During the trial, the prosecution presented two eyewitnesses, namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma, and (2) Flor Espinas, the injured victim. Rosalie narrated the treacherous and injurious attack by Hermogenes Flora against the victims. Flor detailed how she was shot by him. Felipe Roma, the husband of Emerita, testified that his wife was forty-nine (49) years old at the time of her death and was a paper mache maker, earning an average of one thousand (P1,000.00) pesos a week. He claimed that his family incurred fourteen thousand (P14,000.00) pesos as expenses for her wake and burial.

Ireneo Gallarte's widow, Matiniana, testified that her husband was fifty-two (52) years old, a carpenter and a substitute farmer earning one hundred (P100.00) to two hundred (P200.00) pesos a day. Her family spent fourteen thousand (P14,000.00) pesos for his wake and burial. The defense presented appellants Hermogenes and Edwin Flora, and Imelda Madera, the common-law wife of Edwin. Appellants interposed alibi as their defense, summarized as follows: Version of Edwin Flora: Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his brother. On January 10, 1993, around 1:30 in the morning, he was at Barangay Bagumbayan, Paete, Laguna in the house of Johnny Balticanto, sleeping with his wife. Policemen came at said house looking for his brother Hermogenes. Replying to them that his brother was not living there, policemen took him instead to the Municipal building of Paete and thereafter transferred and detained him to (sic) the Municipal building of Kalayaan. He recalled that on January 9, 1993, after coming from the cockpit at about 3:00 p.m. he and his accused brother passed by the house of Julito Malubago. His brother Hermogenes was courting the daughter of Julito Malubago. At about 6:00 p.m. he went home but his brother stayed behind since there would be a dance party that night. 10 Version of Hermogenes Flora: Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte and Emerita Roma and shot Flor Espina on January 10, 1993 at about 1:30 in the morning of Silab, Longos Kalayaan Laguna. On said date, he was very much aslept (sic) in the house of his sister Shirley at Sitio Bagumbayan, Longos, Kalayaan. From the time he slept at about 8:00 in the evening to the time he woke up at 6:00 in the morning, he had not gone out of her sister's house. He knew the victims even before the incident and he had no severe relation with them. xxx

xxx

xxx

He also testified that in the morning of January 10, 1993, Imelda Madera came to their house and told him that his brother Edwin was picked-up by the policemen the night before. Taken aback, his sister told him to stay in the house while she would go to the municipal hall to see their brother Edwin. Thereafter, his aunt and sister agreed that he should go to Bicol to inform their parents of what happened to Edwin. 11 Madera corroborated the testimony of her husband. 12 As earlier stated, the trial court convicted accused-appellants of the crime of double murder and attempted murder. Appellants now raise this sole assigned error: THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-APPELLANTS DESPITE THE FAILURE OF THE PROSECUTION TO MORALLY ASCERTAIN THEIR IDENTITIES AND GUILT FOR THE CRIMES CHARGED. At the outset, it may be noted that the trial court found both appellants have been positively identified. However, they challenge the court's finding that they failed to prove their alibi because they did not establish that it was physically impossible for them to be present at the crime scene. According to the trial court, by Hermogenes' own admission, the house of his sister Shirley, where appellants were allegedly sleeping, was only one (1) kilometer away from Sitio Silab, where the offenses allegedly took place. The sole issue here, in our view, concerns only the plausibility of the appellants' alibi and the credibility of the witnesses who identified them as the perpetrators of the crimes charged. For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not at the locus delicti at the time the offense was committed, and (2) it was physically impossible for him to be at the scene at the time of its commission. 13 The defense of alibi and the usual corroboration thereof are disfavored in law since both could be very easily contrived. 14 In the present case, appellants' alibi is patently self-serving. Although Edwin's testimony was corroborated by his common-law wife, it is ineffectual against the positive testimonies of eyewitnesses and surviving victims who contradicted his alibi. Moreover, an alibi becomes less plausible as a defense when it is invoked and sought to be crafted mainly by the accused himself and his immediate relative or relatives. 15 Appellants' defense of alibi should have been corroborated by a disinterested but credible witness. 16Said uncorroborated alibi crumbles in the face of positive identification made by eyewitnesses. 17 In their bid for acquittal, appellants contend that they were not categorically and clearly identified by the witnesses of the prosecution. They claim that the testimonies of the said witnesses were not entitled to credence. They assail the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas, because of the alleged inconsistencies in their testimonies. For instance, according to appellants, Rosalie Roma testified she was in the dance hall when the gunshots were heard, and that she was dancing in the middle of the dance hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and Flor Espinas, Q Where were you when Hermogenes Roma shot these Ireneo Gallarte, Emerita Roma and Flor Espinas? A I was dancing, sir. (Emphasis ours.) Q And how far were you from Hermogenes Flora when he shot these persons while you were dancing? A Two armslength from me only, sir. 18

However, to a similar question, later in her testimony, she replied, Q And where were these Emerita Roma, Your mother, Ireneo Gallarte and Flor Espinas when Hermogenes Flora shot at them? A They were beside each other. Q And how far were you from these 3 persons? A Because they were standing beside the fence and I was only seated near them, sir. 19 (Emphasis ours.) On this issue, we do not find any inconsistency that impairs her credibility or renders her entire testimony worthless. Nothing here erodes the effectiveness of the prosecution evidence. What counts is the witnesses' admitted proximity to the appellants. Was she close enough to see clearly what the assailant was doing? If so, is there room for doubt concerning the accuracy of her identification of appellant as one of the malefactors? Appellants argue that since the attention of witness Flor Espinas was focused on the dance floor, it was improbable for her to have seen the assailant commit the crimes. On cross-examination, said witness testified that while it was true she was watching the people on the dance floor, nonetheless, she also looked around (gumagala) and occasionally looked behind her and she saw both appellants who were known to her. 20 Contrary to appellants' contention that Flor did not have a sufficient view to identify the assailants, the trial court concluded that Flor was in a position to say who were in the party and to observe what was going on. On this point, we concur with the trial court. Well-settled is the rule that findings of the trial court on the credibility of witnesses deserve respect, for it had the opportunity to observe first-hand the deportment of witnesses during trial. 21 Furthermore, minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility. 22Inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. 23 Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities.1avvphi1 Appellants assert that Flor Espinas and Rosalie Roma were biased because they are relatives of the victim Emerita Roma. However, unless there is a showing of improper motive on the part of the witnesses for testifying against the accused, the fact that they are related to the victim does not render their clear and positive testimony less worthy of credit. On the contrary, their natural interest in securing the conviction of the guilty would deter them from implicating other persons other than the culprits, for otherwise, the latter would thereby gain immunity. 24 Here, appellants did not present any proof of improper motive on the part of the eyewitnesses in pointing to the Flora brothers as the perpetrators of the crime. There is no history of animosity between them. Emerita Roma and Flor Espinas were merely innocent bystanders when hit by gunfire. Where eyewitnesses had no grudge against the accused, their testimony is credible. 25 In the absence of ulterior motive, mere relationship of witnesses to the victim does not discredit their testimony. 26 Coming now to the criminal responsibility of appellants. In the present case, when Hermogenes Flora first fired his gun at Ireneo, but missed, and hit Emerita Roma and Flor Espinas instead, he became liable for Emerita's death and Flor's injuries. Hermogenes cannot escape culpability on the basis of aberratio ictus principle. Criminal liability is incurred by any person committing a felony, although the wrongful act be different from that which he intended. 27 We find that the death of Emerita and of Ireneo were attended by treachery. In order for treachery to exist, two conditions must concur namely: (1) the employment of means, methods or manner of execution which would ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and (2) such means, method or manner of execution was deliberately or consciously chosen by the offender. 28 When Hermogenes Flora suddenly shot Emerita and Ireneo, both were helpless to defend themselves. Their deaths were murders, not simply homicides since the acts were qualified by treachery. Thus, we are compelled to conclude that appellant Hermogenes Flora is guilty beyond reasonable doubt of double murder for the deaths of Emerita Roma and Ireneo Gallarte, and guilty of attempted murder of Flor Espinas.1âwphi1.nêt Is the other appellant, Edwin Flora, equally guilty as his brother, Hermogenes? For the murder of Ireneo Gallarte, was there conspiracy between appellants? For conspiracy to exist, it is not required that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused and co-accused had the same purpose and were united in execution. 29 Even if an accused did not fire a single shot but his conduct indicated cooperation with his co-accused, as when his armed presence unquestionably gave encouragement and a sense of security to the latter, his liability is that of a coconspirator. 30 To hold an accused guilty as a co-conspirator by reason of conspiracy, it must be shown that he had performed an overt act in pursuance or furtherance of the conspiracy. 31 Edwin's participation as the co-conspirator of Hermogenes was correctly appreciated by the trial court, viz.: Edwin Flora demonstrated not mere passive presence at the scene of the crime. He stayed beside his brother Hermogenes, right behind the victims while the dance party drifted late into the night till the early hours of the morning the following day. All the while, he and his brother gazed ominously at Ireneo Gallarte, like hawks waiting for their prey. And then Edwin's flick of that lighted cigarette to the ground signaled Hermogenes to commence shooting at the hapless victims. If ever Edwin appeared acquiescent during the carnage, it was because no similar weapon was available for him. And he fled from the crime scene together with his brother but not after violently neutralizing any obstacle on their way. While getting away, Edwin grabbed Rosalie Roma and poked a knife at her neck when the latter hysterically shouted "si Bodoy, Si Bodoy," in allusion to Hermogenes Flora, whom she saw as the gunwielder. All told, Edwin, by his conduct, demonstrated unity of purpose and design with his brother Hermogenes in committing the crimes charged. He is thus liable as coconspirator. 32 However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:

. . . And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot. To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor for the injuries of Flor Espinas caused by his co-accused Hermogenes Flora. WHEREFORE, the decision of the trial court is hereby MODIFIED as follows: (1) Appellants Hermogenes Flora and Edwin Flora are found GUILTY beyond reasonable doubt of the MURDER of Ireneo Gallarte and sentenced to each suffer the penalty of reclusion perpetua and to pay jointly and severally the heirs of Ireneo Gallarte in the sum of P50,000.00 as death indemnity; P14,000.00 compensatory damages for the wake and burial; and P470,232.00 representing loss of income without any subsidiary imprisonment in case of insolvency. (2) Hermogenes Flora is found GUILTY beyond reasonable doubt of the MURDER of Emerita Roma and the ATTEMPTED MURDER of Flor Espinas. For the MURDER of EMERITA ROMA, Hermogenes Flora is sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of Emerita Roma in the sum of P50,000.00 as death indemnity, P14,000.00 as expenses for wake and burial, and P619,800.00 for loss of earning capacity, without any subsidiary imprisonment in case of insolvency. For the ATTEMPTED MURDER of Flor Espinas, Hermogenes Flora is sentenced to suffer the penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional as minimum to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries. (3) Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma and the attempted murder of Flor Espinas. Costs against appellants. SO ORDERED.

G.R. No. 153287

June 30, 2008

NOEL GUILLERMO y BASILIANO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION BRION, J.: For our review is the petition1 filed by the petitioner Noel Guillermo y Basiliano (petitioner) against the decision2dated November 15, 2001 and the resolution3 dated April 5, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 24181. The challenged decision4 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 petitioner’s 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 o’clock 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 on the different parts of his body, which injuries caused his death shortly thereafter. 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 damages pursuant to the provisions of the Civil Code of the Philippines. ACTS CONTRARY TO LAW.6 The petitioner and his co-accused were arraigned and pleaded not guilty to the offense charged 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. Betita), Baby Lou Felipe (Baby Lou), and the three accused – the petitioner, Arnaldo Socias, and Joemar Palma – took the witness stand for the defense. The material points in the testimony of Vicente were summarized by the trial court in its decision7 as follows: Vicente Alon averred that at 5:40 in the afternoon of July 21, 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 eat.8Noel Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking beer. Noel Guillermo and Arnel Socias are known to him since childhood since they come from the same barangay.9 Joemar Palma is known to him only recently in that incident.10 While sitting at the table inside the restaurant, an altercation between Arnel Socias and Winnie Alon regarding the cutting of wood by a 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 went to the kitchen and got a knife. Arnel Socias hit him with a bottle of beer by [sic] the head. He fell down and lost consciousness.12 [Footnotes referring to the pertinent parts of the record supplied] Significantly, Vicente admitted on cross-examination that he and Winnie were already drunk even before they went to the restaurant where the stabbing took place.13 Eddie corroborated the testimony of Vicente on material points, particularly on the state of their intoxication even before going to the scene of the stabbing. His testimony on what transpired at the restaurant was summarized in the RTC decision14 as follows: Eddie Roque alleged that at around 5:40 o’clock in the afternoon 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 Market to leave their tools of the chain saw [sic] and to eat and drink.15 Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of them to [sic] the restaurant and were drinking beer. They invited them and they joined them.16 Before each of them could fully consume a bottle served upon each of them, Winnie Alon and Arnel Socias argued about the cutting of wood by means of a chain saw [sic]. The argument was so heated 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

Noel Guillermo hugged or embraced Winnie Alon and stabbed him three times (3) on [sic] the neck with a Batangueño knife. Arnel Socias went around, then behind, and stabbed Winnie Alon once, on the left side 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 Winnie Alon once, hitting him at the right side of his body.18 Winnie Alon resisted trying to struggle [sic], but could not move because he was ganged up by the three.19[Footnotes referring to the pertinent parts of the record supplied] 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 Winnie20 and made the following findings: POSTMORTEM EXAMINATION The postmortem examination is done on the remains of Winnie Alon, 31 years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining the following injuries: 1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of 5th rib mid clavicular area. 2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the sternum. 3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area. The most probable cause of death was massive [H]emorrhage secondary to multiple stab wounds.21 According to Dr. Betita, the cause of death was massive hemorrhage due to multiple stab wounds.22 He added that the three (3) stab wounds were probably caused by a sharp-bladed instrument like a knife.23 The petitioner gave a different version of the events, summarized in the RTC decision as follows: Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he was in Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes Heyres, together with Arnel Socias and Joemar Palma drinking beer, consuming only about half a bottle, when Winnie Alon, Eddie Roque, Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou Felipe. Winnie Alon came to him and requested to join them in their table which he affirmatively answered. Winnie Alon then had an altercation with Arnel Socias regarding "labtik" (string used in marking wood to be cut).24 Winnie Alon challenged Arnel Socias to a contest on clean or 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 that he has long been in [the] chain saw [sic] business but "you’re stupid" ("gago ka!"). Arnel responded: "If the wood is crooked and you would deviate from line, you’re stupid."25 Winnie Alon suddenly stood up and said to Arnel: "Don’t ever call me stupid," pointing his finger to Arnel. He told them to settle the matter peacefully as they are friend [sic], but Winnie Alon was so furious and grabbed Arnel Socias by the collar. Arnel tried to release the hold of Winnie 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 him with a beer bottle. He was hit at the right top of his head thrice. He stood up and boxed Winnie who again picked up a bottle break [sic] it 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 part of his body was hit by his successive stabs.26 x x x [Footnotes referring to the pertinent parts of the record supplied] Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar, arrived at the restaurant and ordered beer.27 A few minutes later, Vicente, Eddie, Winnie, and Wilfredo Cabison arrived and also ordered beer. She then saw the group of Winnie transfer to the table occupied by the petitioner and his companions. Thereafter, the group had a heated argument among themselves regarding "labtik."28 In the course of the exchange, she saw Winnie strike the 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 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 Dr. Betita, this time testifying as defense witness, stated, among others, that the contusion 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 Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and Joemar, was drinking beer at the restaurant of Melecio Heyres32 when Winnie stood up and asked if they (Winnie’s group) could join them at their table. Arnaldo and his companions agreed. Winnie’s group then transferred to the table of Arnaldo’s group.33 The discussion took a bad turn when the matter of cutting by chainsaw was raised. Winnie 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 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 can." At that point, Winnie stood up and grabbed him by the collar. The petitioner intervened and 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, because while the petitioner and Winnie were grappling, he was busy fighting with Vicente.35

Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner, Arnaldo, and he were drinking beer at the restaurant of Mr. Heyres when four persons, who appeared to be drunk (later identified as Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and 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 of Arnaldo in the course of the heated exchange.37 The petitioner advised them to calm down, but Winnie struck him (petitioner) on the head with a beer bottle three times. Vicente also tried to strike Arnaldo, but the latter managed to duck and so he (Joemar) took the hit instead. Thereafter, he and Arnaldo engaged Vicente.38 The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime of homicide, but acquitted Arnaldo and Joemar. The dispositive portion of the decision reads: WHEREFORE, the evidence on record having established the guilt of Noel Guillermo as principal in the crime of homicide for stabbing three (3) times Winnie Alon which caused the latter’s death, attended by a special or privileged mitigating circumstance of incomplete justification, and without any aggravating or mitigating circumstances attendant, he is imposed an indeterminate sentence of six (6) years of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, with the corresponding accessory penalties, and to pay death indemnity of P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he shall be credited the period that he undergone [sic] preventive imprisonment, conformably with Art. 29 of the Code. Costs against the accused. For insufficiency of evidence, the accused Arnaldo Socias and Joemar Palma are acquitted of the crime charged. The bail bond for their provisional liberty is CANCELLED AND DISCHARGED. SO ORDERED.39 [Emphasis in the original] The petitioner appealed to the CA whose decision is now assailed in the present petition. The petitioner essentially claims that the RTC and the CA erred in failing to recognize the existence of all the elements of self-defense. THE COURT’S RULING We resolve to deny the petition for lack of merit. Plea of Self-Defense We note at the outset that the petitioner does not deny that he killed Winnie. He expressly made this admission in his testimony of July 15, 1999: ATTY. VILLAREAL: Q: And what did you do when he struck you with the bottle? NOEL GUILLERMO: A: I was able to move backward and I realized that I have a knife on [sic] the back of my waist. Q: And what did you do with your knife? A: I then stabbed him. Q: How many times? A: About three times as far as I can remember.40 [Emphasis supplied] The petitioner justifies the stabbing as an act of self-defense. As the lower courts did, we do not recognize that the petitioner fully acted in 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 justification, pleads self-defense, the burden of evidence shifts; he must then show by clear and convincing evidence that he indeed acted in self-defense. For that purpose, he must rely on the strength of his own evidence and not on the weakness of the prosecution’s evidence.41 The elements that the accused must establish by clear and convincing evidence to successfully plead self-defense are enumerated under Article 11(1) of the Revised Penal Code: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. As a justifying circumstance, self-defense may be complete or incomplete. It is complete when all the three essential requisites are present; it is incomplete when the mandatory element of unlawful aggression by the victim is present, plus any one of the two essential requisites.42 In the present case, we find it beyond dispute that the victim Winnie started the fight that ended 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 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. 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 – 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. The third element – the reasonableness of the means to repel the aggression – is the critical element that the lower courts found lacking in the petitioner’s case. Generally, reasonableness is a function of the nature or severity of the attack or aggression confronting the accused, the means 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 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 invoking self-defense must be reasonably commensurate to the nature and the extent of the 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. In the present case, the attack on the petitioner came as he intervened in a quarrel between the victim and another party. As we concluded above, we deem it established that the victim was the unlawful aggressor who attacked the petitioner. Physical evidence shows that indeed the petitioner suffered the following injuries: 1. Contusion Hematoma 2 x 3 left parital area just above the left ear. 2. Linear abrasion 3 – 4 cm left hand medial side. 3. Linear abrasion 2 – 3 cm left head ulnar side.46 The weapons that caused these injuries were a beer bottle and, quite possibly, fingernails as the 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 that admittedly belonged to the petitioner. Thus, the physical evidence in the case stands. The petitioner claims self-defense on the position that Winnie, after hitting him on the head 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 Winnie’s fatal wounds. Clearly, the petitioner wants to impress upon us that his response to Winnie’s attack was reasonable; he used a knife to repel an attacker armed with a broken beer bottle. Several reasons militate against our acceptance of the petitioner’s version and interpretation of events. First, there is intrinsic disproportion between a Batangas knife and a broken beer bottle. Although this disproportion is not conclusive and may yield a contrary conclusion depending on the circumstances, we mention this disproportionality because we do not believe that the circumstances of the case dictate a contrary conclusion. Second, physical evidence shows that the petitioner suffered only one contusion hematoma at the parietal area above the left ear. Unless the three (3) beer bottle blows that the petitioner alleged all landed on the same site – a situation that could have incapacitated the petitioner – the more plausible conclusion from the physical evidence is that the petitioner received only one blow, not three as he claimed. Contrary to what the petitioner wishes to imply, he could not have been a defender reeling from successive head blows inflicted by the victim. Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the restaurant before the fatal fight. This state of intoxication, while not critically material to the stabbing that transpired, is still material for purposes of defining its surrounding circumstances, particularly the fact that a broken beer bottle might not have been a potent weapon in the hands of a drunk wielder. 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 beer bottle thrusts and used his knife as a means commensurate to the thrusts he avoided. To be 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 victim’s heart; another was at the neck, 5 cms. deep, just above the breastbone; and a last one was in the abdominal area, 3-5 cms. deep. The depth of these wounds shows the force exerted in the petitioner’s thrusts while the locations are indicative that the thrusts were all meant to kill, not merely to disable the victim and thereby avoid his drunken thrusts. Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to disbelieve the petitioner’s allegation of complete self-defense, as reflected in the CA’s further cogent observations that:

(b) If, indeed the deceased picked up another bottle of beer, hit the same against the wall, resulting in the breakage of the bottle, and with it, hit the Appellant anew, it behooved the Appellant to have rushed posthaste to the police station and report the stabbing, with the request that a policeman be 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 companions, Arnaldo and Joemar, fled from the scene, via the back door, and escaped on board a motorcycle. (c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the Appellant that, after the Appellant boxed Winnie, who lost his hold of the bottle of beer, he picked up another bottle and struck the bottle of beer against the wall and hit the Appellant with the bottle. The appellant relied solely on is own testimony to buttress his defense. (d) The Municipal Trial Court conducted a preliminary investigation of the "Criminal Complaint" filed against the Appellant, Arnaldo, and Joemar. However, the Appellant did not submit any "Counter-Affidavit" claiming that he was impelled to stab Winnie three (3) successive times on mortal parts of his body and killing [sic] him because Winnie picked up a bottle, hit the same against a wall and hit the Appellant anew with the broken bottle.48 [Underscoring in the original] We see no reason to disturb these findings as they are based on existing evidence, and the conclusions drawn therefrom are patently reasonable. We have time and again held that the findings of facts of the trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies, and the conclusions based on the these factual findings are to be given the highest respect; the trial court enjoys the unique advantage of being able to observe, at close range, the conduct and deportment of witnesses as they testify. These factual findings, when adopted and confirmed by the CA, are final and conclusive and need not be reviewed on the appeal to us. We are not a trier of facts; as a rule, we do not weigh anew the evidence already passed on by the trial court and affirmed by the CA.49 Only after a showing that the courts below ignored, overlooked, misinterpreted, or misconstrued cogent facts and circumstances of 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. In sum, we rule that there was no rational equivalence between the means of the attack and the means of defense sufficient to characterize the latter as reasonable. The Proper Penalty The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal in its full range.50 Article 69 of the Code however provides that: ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower by one or two degrees than that prescribed by 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 from criminal liability in the several cases mentioned in Articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. Since the petitioner’s plea of self-defense lacks only the element of "reasonable means," the petitioner is, therefore, entitled to the privileged mitigating circumstance of incomplete self-defense. Consequently, the penalty for homicide may be lowered by one or two degrees, at the discretion of the court. The penalty which the RTC imposed and which the CA affirmed lowered the penalty of reclusion temporal by one degree, which yields the penalty of prision mayor. From this penalty, the maximum of the indeterminate penalty is determined by taking into account the 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 shall be prision mayor in its medium period whose range is from 8 years and 1 day to 10 years. 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 correccionalwhose 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 Winnie’s 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. 131839

January 30, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARANDE COLINA ADLAWAN @ RANDIE, accused-appellant. YNARES-SANTIAGO, J.: This is an appeal from the June 23, 1997 Decision1 of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting accused-appellant of the crime of Murder and sentencing him to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and one (1) day of reclusion temporal, as maximum; and to pay the heirs of the deceased the sum of P50,000.00 as death indemnity, P18,850.00 as actual damages and the costs. The Information against accused-appellant reads: That on or about the 15th day of November, 1992, in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, with deliberate intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, and shot Nequito Ortizano with a revolver, thereby inflicting upon the latter mortal wound at his vital portion which caused his death soon thereafter. CONTRARY TO LAW.2 Upon arraignment on March 31, 1997, accused-appellant pleaded not guilty.3 Thereafter, trial ensued. The prosecution’s account of the antecedent facts are as follows: At dawn of November 15, 1992, the deceased, together with prosecution witnesses Benjamin Basubas and Quirino Cinco, and a certain Oliver Bonayan, were inside a fenced disco area in Sitio Oril, Mandaue City. At 2:00 a.m., Benjamin Basubas and Quirino Cinco were alerted by a commotion outside. When they rushed out, they saw the deceased raising his hands in front of accused-appellant, who was then in the company of Barangay Tanod Jerry Diaz and Jet Bonita. Likewise present was accused-appellant's father, Barangay Tanod Crispulo Adlawan, who was lying on the ground unconscious. Prosecution witnesses Benjamin Basubas and Quirino Cinco stood approximately one meter away from the deceased. All of a sudden, accused-appellant drew a gun from his waist, pointed it at the deceased, saying, "this is the one."4 He immediately fired the gun, hitting the deceased on the chest. The latter staggered toward the direction of Benjamin Basubas. He was able to hold on to a deaf-mute bystander, but fell on a shallow canal and landed on his belly with his head resting on the bank of the canal. Accused-appellant followed the deceased, turned the latter’s head and delivered a fatal shot hitting him above the right ear. Thereafter, accusedappellant surrendered the gun to a group of Barangay Tanod.5 The Necropsy Report shows the postmortem findings and the cause of death of the victim, thus: II. Pertinent Findings: 1. Gunshot Wound, Entrance, 0.5 cm. x 0.5 cm., located at the left parietal region 4 cm. above the right ear. The entrance wound has an inverted periphery. The bullet slug went thru the brain tissues and pierced thru the right parietal bone, where the slug was embedded and extracted at the scalp of the right parietal region. 2. Gunshot Wound, Entrance, 0.5 cm., located at the left supraclavicular at the medial part, with inverted periphery and contusion, collar. The bullet slug went downward and backwards hitting the upper lobes of the left and right lungs and exited thru the inferior border of the right scapula. The exit wound measures 1 cm. x 1 cm. with irregular everted edges. Gunshot Wounds Number 1 and 2 resulted to a massive hemorrhage of the brain, the left and right lungs. III. Cause of Death: SHOCK, IRREVERSIBLE. Secondary to Massive Hemorrhage due to Multiple Gun Shot Wounds.6 On the other hand, the defense averred that at around 2:00 in the morning of November 15, 1992, while accused-appellant was inside a fenced disco area in Sitio Oril, Mandaue City, he heard somebody shouting and when he turned to the source of the disturbance, he saw his father, lying on the ground unconscious and with a bloodied face. Accused-appellant dashed to his father whom he thought was already dead. As he tried to lift him, he saw the deceased about 2 1/2 arm’s length away, holding a gun and told him, "Do you want to follow your father?"7Thereafter, accused-appellant lunged at the deceased, twisted his hand, forcing the muzzle of the gun to be pointed at the deceased’s chest. Suddenly, the gun went off, causing the deceased to fall in a canal. Accused-appellant was able to get hold of the gun and again fired at the deceased. Thereafter, he fled and hid in Manila8 until January 23, 1997, when he finally decided to surrender to Mayor Alfredo M. Ouano and P/Supt. Rolando Borres.9

After trial, the court a quo rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, finding the herein accused ARANDE COLINA ADLAWAN @ RANDIE guilty beyond reasonable doubt for the crime of Murder, the said accused is hereby sentenced to undergo the indeterminate penalty by imprisonment of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS and ONE (1) DAY of reclusion temporal as maximum, with the accessories of the law, to indemnify the legal heirs of Nequito Ortizano the amount of Fifty Thousand (P50,000.00) Pesos by reason of his death, P18,850.00 as actual damages, and to pay the costs. The accused, being a detention prisoner, shall be credited in the service of his sentence full time during which he has undergone preventive imprisonment. SO ORDERED.10 Hence, the instant appeal. Accused-appellant contends that: I. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER CONSIDERING THAT THE PROSECUTION FAILED TO ESTABLISH BEYOND REASONABLE DOUBT THE ATTENDANCE OF TREACHERY AND EVIDENT PREMEDITATION, AND THE RECORDS WILL SHOW THAT THE ACCUSED-APPELLANT ONLY OFFERED TO PLEAD GUILTY TO THE LESSER OFFENSE OF HOMICIDE. II. ANENT HERETO, THE COURT A QUO ERRED TO APPRECIATE (sic) THE ACCUSED-APPELLANT'S WILLINGNESS TO ENTER A PLEA OF GUILTY TO THE LESSER OFFENSE OF HOMICIDE AS A MITIGATING CIRCUMSTANCE. III. FURTHER TO THIS, ASSUMING THAT THE ACCUSED-APPELLANT IS INDEED GUILTY, THE COURT A QUO FAILED TO LIKEWISE APPRECIATE THE PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE/DEFENSE OF RELATIVE WHICH WAS SUFFICIENTLY ESTABLISHED. IV. IN APPRECIATING THE EVIDENCE ON RECORD, THE COURT A QUO ERRED IN ACCORDING GREATER WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE THE FACT THAT THE SAME LACK CREDIBILITY AND CANNOT SUSTAIN A CONVICTION OF THE ACCUSED-APPELLANT. V. THE COURT A QUO ERRED IN AWARDING ACTUAL DAMAGES OF P18,850.00 TO THE HEIRS OF THE VICTIM NOTWITHSTANDING THAT THE SAME WERE NEVER DULY PROVEN.11 The appeal has no merit. The task of assessing the conflicting versions of the defense and the prosecution is a matter best determined by the trial court who had the untrammeled opportunity to observe the witnesses’ demeanor and deportment on the witness stand, and therefore could better discern if such witnesses were telling the truth or not. Hence, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility of witnesses must be respected.12 After a careful and thorough review of the testimony of prosecution witnesses Benjamin Basubas and Quirino Cinco, we are convinced that the trial court did not err in giving credence to their declarations which were given in a direct, positive and straightforward manner. Moreover, the defense failed to show that the prosecution witnesses had improper motive to give a false narration of the circumstances surrounding the death of the deceased. Likewise, the trial court correctly appreciated the qualifying circumstance of treachery. The essence of treachery is the sudden and unexpected attack, depriving the victim of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor.13 At the time accused-appellant fired the first shot, the deceased was unarmed and had his hands raised. The deceased was therefore in no position to put up any defense such as would present a risk to accused-appellant. Moreover, the second shot fired by accused-appellant clearly foreclosed any doubt as to the attendance of treachery. When he turned the head of the deceased before he fired the second shot, accused-appellant was manifestly determined to have a better shot at the head of the deceased who was already lying helpless on the ground. The privileged mitigating circumstance of incomplete self-defense cannot be appreciated in favor of accused-appellant. Unlawful aggression is a condition sine qua non for self-defense, whether complete or incomplete.14 From the version of the prosecution, which the Court finds credible, the deceased did not commit any unlawful aggression towards accused-appellant. On the contrary, it was accused-appellant who was the aggressor when he shot the deceased who was unarmed and raising his hands. In the same vein, the circumstance of incomplete defense of a relative is unavailing. It is settled that a person making a defense has no more right to attack an aggressor when the unlawful aggression has ceased.15 In the instant case, accused-appellant was not justified in attacking the deceased as the latter had his hands raised and was no longer poised to attack accused-appellant's father at the time he was shot.

Furthermore, the acts of the deceased immediately prior to the shooting did not constitute unlawful aggression. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude. It must be such as to put in real peril the life of the person defending himself and not a mere imagined threat.16 In his direct testimony, accused-appellant did not categorically declare that the deceased was aiming the gun at him, or about to shoot him. Right after he allegedly heard the deceased’s remark, "Do you want to follow your father," he immediately lunged at him, twisted the gun toward his chest and fired. Clearly, therefore, there was no real peril to the life of accused-appellant. In People v. Escoto,17 we held that the mere apprehension that the supposed aggressor would shoot the person invoking self-defense is not justified. Failing to discharge the burden of proving unlawful aggression, accused-appellant's claim of incomplete self-defense cannot prosper. The trial court, however, erred in appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellant. To be considered a mitigating circumstance, voluntary surrender must be spontaneous. The conduct of the accused, and not his intention alone, after the commission of the offense, determines the spontaneity of the surrender. In People v. Mabuyo,18 we held that the surrender is not spontaneous where it took the accused almost nine months from the issuance of the warrant of arrest against him before he presented himself to the police authorities. With more reason then that we should not appreciate the mitigating circumstance of voluntary surrender in the case at bar since it took accused-appellant more than three years from the issuance of the warrant of arrest on September 23, 1993 before he finally decided to surrender on January 23, 1997. Nevertheless, the mitigating circumstance of passion or obfuscation should be appreciated to mitigate accused-appellant's criminal liability. The requisites of this mitigating circumstance are: (1) that there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.19 In the case at bar, accused-appellant thought his father whose face was bloodied and lying unconscious on the ground was dead. Surely, such a scenario is sufficient to trigger an uncontrollable burst of legitimate passion. His act, therefore, of shooting the deceased, right after learning that the latter was the one who harmed his father, satisfies the requisite of the mitigating circumstance of passion or obfuscation under Paragraph 6, Article 13 of the Revised Penal Code. The penalty for Murder at the time of the commission of the offense is Reclusion Temporal in its maximum period to Death. There being one mitigating circumstance of passion or obfuscation, and no aggravating circumstance to offset it, the penalty shall be imposed in its minimum period, i.e., Reclusion Temporal maximum. Applying the Indeterminate Sentence Law, the maximum sentence shall be reclusion temporal in its maximum period and the minimum shall be taken from the next lower penalty, which is prision mayor maximum to reclusion temporal medium. Hence, accused-appellant should be meted the penalty of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal as maximum. As to accused-appellant's civil liability, we agree with the accused-appellant that the award of P18,850.00 as actual damages to the heirs of the deceased lacks basis. In lieu of actual damages, the heirs of the deceased are entitled to temperate damages in the amount of P10,000.00. Temperate damages are awarded where pecuniary loss is proved but not the amount thereof.20 Moral Damages in the amount of P50,000.00 should likewise be awarded for the emotional suffering of the deceased's heirs.21 The wife of the deceased testified that her husband, a 29-year old driver and spray man at the time of his death, was earning P100.00 daily.22 Using the American Expectancy Table of Mortality,23 the loss of his earning capacity should be computed as follows: Net Earning Capacity

=

Life expectancy [2/3 (80-age at death)]

=

2/3 [(80-29)] x [(P100.00 x 261)] – 50%

=

2/3 (51)

=

34 (P13,050.00

=

P443,700.00

x P26,100.00

x

Gross Annual Income (GAI) (daily wage) x 261 (No. of working days in a yr.)]

-

Living expenses (50% of GAI)

– 13,050.00

Hence accused-appellant should be ordered to pay the amount of P443,700.00 for the loss of earning capacity of the deceased. WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting accusedappellant of the crime of Murder, is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to pay in addition to the P50,000.00 death indemnity and the costs, the amount of P50,000.00 as moral damages; P10,000.00 as temperate damages and the amount of P443,700.00 for the loss of earning capacity of the deceased. SO ORDERED.

G.R. No. 129875 September 30, 2005 JOVITO CABUSLAY, Petitioners, vs. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division), Respondent. DECISION Tinga, J.: Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil Procedure is the Decision2 dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586 finding Jovito Cabuslay, petitioner herein, guilty beyond reasonable doubt of the crime of homicide and sentencing him as follows: WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY beyond reasonable doubt of the crime of homicide and is sentenced to an indeterminate penalty of imprisonment of Ten (10) years and One (1) Day of prision mayoras minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as maximum, with all the accessory penalties provided for by law, and to indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand Pesos (₱50,000.00) for actual damages and Fifty Thousand Pesos (₱50,000.00) for moral damages, and to pay the costs. SO ORDERED.3 In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior Inspector Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry Orillaneda Cane were charged with murder, committed as follows: That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the jurisdiction of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4 ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE, all public officers, being then members of the Philippine National Police assigned at the PNP Provincial Headquarters of Lanao del Norte, acting in the capacities aforesaid and conspiring, confederating and helping one another, while manning a mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing the offense in relation to office, and with intent to kill, did then and there wilfully, unlawfully, feloniously and treacherously shoot PAQUITO UMAS-AS, with their firearms, thereby inflicting mortal wounds upon the latter which caused his instantaneous death.5 On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial ensued with the prosecution presenting as witnesses Dr. Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot Zaragosa and Generoso Caayao Umas-as. The prosecution presented evidence proving the following as facts: Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua, Cagayan de Oro City. Still single, Paquito earned a living as a collector of payments for assorted articles such as jackets, mats, thermos and plates that he sold on credit. Paquito collected as much as ₱70,000.00 for a period of four months and the net profit of such collections was divided equally between him and his employer. 6 In collecting payments, Paquito used a motorcycle he bought on credit from his employer.7 His collection brought him to such places as Manticao, Iligan and Kolambogan.8 He rented a house in Iligan City but every fifteenth (15th)day of the month, Paquito would go home to his family to give them a sack of rice.9 At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a refrigeration technician helper and resident of Roosevelt Street, Iligan City, was conversing with Felix Lauriana10 near the school building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a Hammer (Hummer) truck parked in front of them.11 Four policemen alighted, followed by a driver. The police thereafter halted the collector who was riding a motorcycle from Lapayan. The collector was wearing a blue denim jacket with folded sleeves and blue denim pants.12 The police asked the collector to show his identification card (ID). The collector took the ID out of his left pocket and when it reached the "front man," one of the policemen, who Zaragosa later verified as the petitioner, opened fire at the collector whose right hand was then raised. The four other policemen meanwhile had their firearms pointed at the collector. 13 Petitioner, who was four meters away from the collector, consumed the entire magazine of his M-16 armalite in firing at him. The collector fell to the ground and was still moving when the police placed him on board a vehicle and brought him to Kolambugan.14 One of the policemen rode on the collector’s motorcycle and likewise headed for Kolambugan.15 Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro City,16 NBI forensic chemist Bernabe P. Arenga examined the victim’s body, later identified as Paquito Umas-as, on 10 August 1992 to determine the presence of gunpowder nitrates on his hands. Arenga’s report revealed that the victim was negative for gunpowder nitrates.17 Arenga opined that on the average, nitrates would be lost within a seventy-two (72)-hour period; that there had been instances when the substance would remain on a living person up to nine days; that nitrates could not penetrate rubber gloves; that no amount of washing can remove the nitrates; and that even the application of formalin does not affect the presence of nitrates in the hands of a person.18

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro City, conducted a post-mortem examination on the body of Paquito Umas-as. At the time of examination, the victim’s body had already been cleaned and embalmed. Dr. Uy’s examination disclosed that the cause of death was severe hemorrhage secondary to multiple gunshot wounds. There were eight (8) gunshot wounds and each wound was considered fatal.19 To prove damages, Generoso Umas-as testified that he lost consciousness upon learning of the death of his son Paquito. Paquito’s family spent ₱8,000.00 for the wake and ₱10,000.00 for his burial. Paquito had left his father ₱12,000.00 to pay for some appliances the former had bought; but the latter, to underwrite funeral expenses, still had to sell his land for ₱100,000.00 only ₱25,000.00 of which had been paid in advance by the buyer. However, Generoso could not remember where he placed the receipts for the wake and burial expenses.20 The defense presented a different version of the commission of the crime. Petitioner presented as witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito Luna Cabuslay. Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National Police (PNP), Lanao del Norte Command stated that he had received a reliable intelligence report of a plot to assassinate the Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor Abalos and his family. In response to the intelligence report, he dispatched a team of PNP personnel to conduct mobile checkpoints along the national highways in several municipalities and to check on people who would possibly carry out the plot. Jubail claims that the intelligence report was proven accurate after a few months because the Vice-Mayor of Kauswagan was killed in Samborong, Linamon and in December of the same year, Governor Abalos was assassinated in Iligan City.21 The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of responsibility consisted of the twenty-two (22) municipalities of Lanao del Norte. In full military outfit, save for Canoy as he was assigned to the Intelligence Operatives Command, the men established a mobile checkpoint on 5 August 1992 at the national highway, Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of intercepting armed men who intend to carry out the assassination plot.22 At about 8:30 in the morning, a man riding on a red Honda motorcycle23 going to the direction of Pagadian City approached the mobile checkpoint. The motorcycle rider was allegedly wearing a black bonnet, sunglasses, sweatshirt and gloves that covered the half portion of his fingers.24 Regencia testified that he signaled the motorcycle rider to stop at the right side of the road. He asked for the identification card of the motorcycle rider who pretended to reach for his wallet, but instead pulled out a gun. He heard a shot and his thigh went numb. As he rolled to the ground, he heard a volley of gunshots after which petitioner approached him. Regencia then approached the motorcyclist and removed his bonnet to be able to identify him. Regencia later found out that the motorcyle rider was shot by petitioner. 25 Regencia ordered his men to load the motorcycle rider to the truck. The victim later identified as Paquito Umas-as was still alive when he was loaded on the hummer vehicle to be brought to a hospital, but was pronounced dead on arrival by Dr. Caga, the attending physician. Regencia then asked that he be given first-aid treatment for the wounds he sustained. He thereafter turned over the rider’s motorcycle, sunglasses and revolver to the police station at Kauswagan. And after bringing the victim’s body to a funeral home in Kolambugan, he proceeded to Baroy General Hospital where his wounds were treated by a certain Dr. Fabin.26 To prove that he was wounded during the incident, Regencia showed to the court a quo the scars caused by the gunshot wounds. There were three scars, one of which was the entry of the bullet and the other two were splinter wounds. He said that the bullet used was the kind that splinters upon hitting an object. He presented a medical certificate under the signature of Dr. Demterio U. Opamen, Jr.27 For his defense, petitioner confirmed Regencia’s testimony that the latter had directed an approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask the motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw Paquito Umas-as shoot Celso Regencia. This and his belief that he was the next target prompted him to shoot the motorcycle rider with his M-16.28 Police Superintendent Jubail was immediately informed of the incident and on the basis of Regencia’s account, he sent out a "Spot Report"29 to inform Recon 9 and 13. The report is couched as follows: "SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE SPOT PD RESPONDING PNP ELEMETS RECOVERED FROM THE VICTIM’S BODY ALFA CAL. 38 REVOLVER SMITH AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x " The incident found its way to the police blotter of the police station of Kauswagan, Lanao del Norte.30 It is embodied in a Certification31 signed by Inspector Fulgencio dela Pena Raguine, Chief of Police, issued at the request of Atty. Arthur Abundiente for trial purposes and formulated in this wise: Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188= 050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements from Lanao del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded to Libertad, Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN. 050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed that suspects were intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and shot INSPECTOR CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade) hitting on his right thigh prompting SPO3 Cabustay (sic), fired back to the suspect hitting at the chest causing the instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade) with 5 live ammos and one empty shell at the chamber, one rayban (sunglass) and one motorcycle (Honda-Camel backtype) color red with out plate Nr. Police Blotter Page Nr. 497- Entry Nr.9191=

081240H Aug 1992 – Romeo Umas-as, 42 years old x x x. Police Blotter Page Nr. 501-Entry Nr.9228= 251315H Aug 1992 – Impounded Honda Motorcycle x x x. Police Blotter Page Nr. 508-Entry Nr. 9100= 021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/ (4) four live ammo and one empty shell past 30th day of Sep 92 for NBI examination at Cagayan de Oro City. Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the next person to be shot at by the victim; and having acted in defense of his person and that of his superior officer, he asserted before the court a quo that he has no criminal liability because of the attendance of the following circumstances: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel the unlawful aggression of the victim; (c) lack of sufficient provocation on his part, and in the case of defense of his superior officer, he was not induced by revenge, resentment, or other evil motives. All of these requisites being present, petitioner claimed there was legal justification for shooting Paquito Umas-as.32 The Sandiganbayan however grave credence to the version of the prosecution and rejected the version of petitioner. So, it found him guilty beyond reasonable doubt of the crime of homicide. It accorded full faith and credence to the testimony of Zaragosa as it was "categorical, straightforward, spontaneous and consistent." Moreover, it observed that no proof was adduced to show that Zaragosa was moved by some evil motive to falsely testify against the accused Cabuslay.33 The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as follows: (1) The physical existence of the handgun allegedly used by the victim Paquito was not established as the same was not presented before the court during the trial;34 (2) The affidavit executed by Gualberto Dayot Pasco-presented by the defense to impeach the credibility of Zaragosa-was taken under intimidating and dubious circumstances, which fact creates doubt as to the affidavit’s voluntariness and credibility;35 (3) The medical certificate purportedly evidencing that Regencia had been shot has no probative value as the doctor who executed the same did not testify during trial. Notably, the medical certificate was executed by a doctor different from the one who treated Regencia’s wound;36(4) The number of gunshot wounds inflicted upon the victim betrays petitioner’s claim of reasonable necessity of the means used to repel the unlawful aggression allegedly displayed by the victim.37 Hence, petitioner filed the instant petition before the Court, insisting that the Sandiganbayan erred in not crediting him the justifying circumstance of self-defense or defense of a stranger or the lawful exercise of a right or office.38 Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office of the Solicitor General (OSG) submitted before the Court a Manifestation and Motion In Lieu Of Comment40 to aid the resolution of the instant petition. In said manifestation, the OSG stated that it is the Office of the Ombudsman which should represent the People in cases elevated to the Court from the Sandiganbayan except in cases filed under Executive Orders Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the conviction of petitioner should be reversed because the evidence of the prosecution when pitted against that of the defense "may not stand close scrutiny." It also asserted that the ponente of the appealed decision was not yet a member of the Third Division when the witnesses testified and when the parties presented their evidence; hence, the applicability of the Court’s ruling in People v. Gutual,41 that no respect can be accorded to the trial court’s findings of fact where the judge who penned the questioned decision heard only one of the witnesses and only at the sur-rebuttal stage.42 In its Comment,43 the Office of the Ombudsman through the Office of the Special Prosecutor seeks the denial of the instant petition on the ground that the defense failed to impeach the credibility of Zaragosa. It agrees with respondent court that petitioner’s story was contrary to human experience and hence, it correctly debunked self-defense and defense of a stranger as grounds for petitioner’s acquittal.44 The petition is without merit. While the rule that the factual findings of the court a quo are generally not disturbed on appeal because the trial judge had the best opportunity to observe them and the manner by which they testify is concededly not applicable to the instant case considering that the ponente of the assailed Decision was not the one who heard all the witnesses, nevertheless, after a careful review of the records of the case, the Court finds no reason to disturb the conclusions reached by respondent court. As held in Hugo v. Court of Appeals,45 "the efficacy of a decision is not necessarily impaired by the fact that the ponente only took over from a colleague who had earlier presided over the trial. For it does not follow that a judge who was not present during the trial cannot render a valid and just decision." Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of three Justices each, is a collegial body which arrives at its decisions only after deliberation, the exchange of view and ideas, and the concurrence of the required majority vote.46 Simply put, the ponente of the assailed Decision is not the Third Division of the Sandiganbayan. He alone does not speak for and on behalf of his Division. Each Division of the Sandiganbayan is a three-man body whose members each have one vote to cast in every deliberation concerning a case or any incident therein that is within its jurisdiction. We have minutely scrutinized the assailed Decision and find it amply supported by the evidence on record. Petitioner claims that he acted in self-defense and in defense of Regencia. One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof shifts to the accused who must then prove the justifying circumstance. He must show by clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger. With clear and convincing

evidence, all the following elements of self-defense must be established: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense.47 Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence, "for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself had admitted the killing."48 Thus, petitioner must establish with clear and convincing evidence that the killing was justified, and that he incurred no criminal liability therefor. In order that defense of a stranger may be appreciated, the following requisites must concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and (3) the person defending be not induced by revenge, resentment or other evil motive.49 Unlawful aggression is the first and primordial element of self-defense. Of the three requisites, it is the most important. Without it, the justifying circumstance cannot be invoked. If there is no unlawful aggression, there is nothing to prevent or repel.50 Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an actual, sudden and unexpected attack or an imminent danger thereof, which imperils one’s life or limb. Thus, when there is no peril, there is no unlawful aggression.51 It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this question in the negative. Aggression to be unlawful, must be actual and imminent, such that there is a real threat of bodily harm to the person resorting to self-defense or to others whom that person is seeking to defend. Petitioner asserts that he was the victim’s next target, thus the need to shoot the victim in self-defense. His claim should be disbelieved. As he himself had explicitly testified before respondent court, the hummer jeep was behind him and was parked about three to four meters from the national highway.52 He also stated that Paquito could not have seen the hummer jeep because it was obscured by Muslim houses.53 It only follows that if from Paquito’s perspective, he cannot see the hummer jeep which is a fairly large vehicle, then he could not have seen petitioner as well. If Paquito cannot see petitioner from where he was positioned, then Paquito could not have possibly aimed to shoot at petitioner. Petitioner’s contention therefore that there was an imminent threat of bodily harm coming from Paquito upon his person is at best illusory. There was no peril, ergo, there was no unlawful aggression. It should also be recalled that at the time, Cane was on top of the hummer jeep manning the machine gun.54 If Regencia had indeed been shot as the defense insists, then Cane was better situated to defend Regencia. It is implausible how an officer like him, in such a strategic position and trained in the operation of the said weapon could have omitted firing a shot in Regencia’s defense. More to the point, it is beyond credulity that the outbursts of gunfire hardly elicited any reaction from the other police officers who were only a few meters away from the crime scene and who continued conducting their search on the bus which was then about to pass the checkpoint.55 Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing that Paquito was still alive56and in all probability was still holding a handgun,57 petitioner chose to assist Regencia instead of making sure that Paquito had been immobilized and disarmed, basic to a policeman’s training. In addition, the claim of the defense that Paquito shot Regencia on his right thigh is untenable. Petitioner would have the Court believe that Paquito dared challenge five policemen, four of them in full battlegear, at a checkpoint and armed with only a handgun. This is contrary to ordinary human experience, as well as the human instinct which is to flee for dear life and seek safety. If indeed Paquito was armed and had criminal designs in his mind, the natural tendency upon seeing a checkpoint ahead would be to abort one’s plans and leave the premises immediately. Petitioner’s story not only was contrary to the ordinary course of nature and the ordinary habits of life, in all appearances it was also contrived.58 Respondent court was correct in rejecting it. We also confirm that the medical certificate presented by Regencia to prove that he had been shot by the victim has no probative value. The physician who signed the same was never presented as witness for the defense. We also note that the physician who signed said medical certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the doctor who according to Regencia had treated his wounds.59 It is also worthy of note that the defense never presented in evidence the gun Paquito allegedly use to shoot Regencia. The gun was also not clearly identified. Unlawful aggression on the part of the victim must be positively proved and said gun would have been a vital evidence to establish this requisite. Petitioner, however, insists that he would have presented the gun had not respondent court pressured him to rest his case and submit it for decision. Such contention hardly inspires belief. Records reveal that petitioner never made it known to respondent court that the defense would be presenting the gun allegedly used by Paquito. What the defense did manifest was their intention to present one Major Bartolino to testify that he had received the gun allegedly used by Paquito and that he had brought it to the NBI on 30 September 1992 for examination. It should be underscored that the defense was not even sure that there was an NBI report on said examination. The counsel for the defense manifested before respondent court, as follows: ATTY. ABUNDIENTE: xxx I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who received the gun and he will testify on this particular testimony that he was the Station Commander of the municipality of Kauswagan, Lanao del Norte at the time of the incident and then he received this gun from the team of Capt. Regencia on August 5, 19 (sic) and that he took the gun for NBI Examination sometime in the month of October, 1992, no, on the 30th day of September, 1992. CHAIRMAN:

This was covered by police blotter? ATTY. ABUNDIENTE: Yes, Your Honor. CHAIRMAN: You don’t need the testimony of Bartolini, but do you have the report of the NBI? ATTY. ABUNDIENTE: That is why, Your Honor, because we have not received any communication from Bartolini . . . CHAIRMAN: How did you come to know that Bartolini sent this firearm to the NBI for examination? . . . ATTY. ABUNDIENTE: Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI examination in Cagayan de Oro City, Entry No. 91000, page 108 . . . CHAIRMAN: Does it matter – whether you can prove the examination report of the NBI or not? ATTY. ABUNDIENTE: I don’t know if there was a report of the NBI examination . . . CHAIRMAN: Precisely . . ."60 The defense was well aware of the relevance of the NBI report to prove their allegations that the victim was carrying a gun and used the same on Regencia, especially since the victim was reported to be negative of nitrates on his hands. No cogent reason could be thought of for the failure to secure a copy of the report or even know of its existence. It should be noted that the examination was made as early as September 1992. A party’s failure to produce evidence, which if favorable would naturally have been produced, is open to the inference that the facts were unfavorable to his case.61 This Court can only conclude that said gun never existed, and this explains the failure of the defense to present it before respondent court. Thus, it is immaterial to delve on the issue raised by the petitioner on the discrepancy of the make of the gun as noted by respondent court in its Decision. Parenthetically, petitioner stresses that the victim had tested negative for gunpowder nitrates as the latter had been wearing gloves at the time of the incident. This claim runs counter to his62 and Regencia’s63 testimony that the only things recovered from Paquito and which were turned over to the Provincial Police Command were the victim’s motorcycle, sunglasses and the alleged gun. The police blotter reporting the incident confirms their testimonies. Interestingly, said police blotter also makes no mention that gloves were recovered from the victim.64 Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony the version of the prosecution is anchored, we find that petitioner failed to impeach his credibility. No evidence was shown that Zaragoza was actuated by an improper motive. As such, there is no cogent reason why the Court should deny Zaragoza’s testimony the full faith and credit it deserves. On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to state that a witness is not expected to remember an occurrence with perfect recollection of the minute details. Thus, even the most truthful of witnesses may err and often give confusing statements. What is important is that Zaragosa unwaveringly, forthrightly and unequivocally declared that petitioner shot at the victim. Neither did he falter in identifying the gunman.65 All in all, petitioner has failed to prove unlawful aggression on the part of the victim. Without this essential element, petitioner cannot successfully invoke self-defense. Even assuming that he tried to defend a stranger, his defense would not prosper. In defense of a stranger, unlawful aggression on the part of the victim is also indispensable. In both self-defense and defense of a stranger, unlawful aggression is a primordial element. Granting arguendo that there was unlawful aggression, we find that petitioner’s contention that he employed reasonable means to repel the aggression must fail. It is settled that reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is rational equivalence.66

Also, the nature and number of wounds suffered by Paquito negate any claim of self-defense or defense of a stranger. The Court notes that the victim sustained eight gunshot wounds which were all fatal as they affected vital organs.67 Petitioner testified that he pulled the trigger of his armalite twice.68 He aimed at "the front of his body, at the chest, up to the stomach."69 Had petitioner merely defended himself from the victim’s unlawful aggression, one shot to immobilize him would have been enough. There was no reason for petitioner to shoot him seven more times, even aiming at his vital organs. It bears repeating that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea for self-defense or defense of stranger because they demonstrate a determined effort to kill the victim and not just defend oneself.70 In the instant case, Paquito’s wounds serve to tell us that petitioner was induced by revenge, resentment or other evil motive and that he was set on killing the victim. Petitioner’s avowal that his first shot was single but went automatic on the second shot is likewise unbelievable.71Petitioner’s armalite has a selector that switches it from single shot to automatic. Since it was petitioner who was in possession of the firearm and he admitted that he fired the shots, we reasonably conclude that it was he who switched the firearm to automatic firing. All told, petitioner failed to satisfy the requirements of self-defense and defense of a stranger to justify the shooting of Paquito. Next, petitioner contends that the killing of Paquito resulted from the lawful performance of his duty as police officer. However, such justifying circumstance may be invoked only after the defense successfully proves that the accused acted in the performance of a duty, and the injury or offense committed is the necessary consequence of the due performance or lawful exercise of such duty.72 These two requisites are wanting in this case. The victim was not committing any offense at the time. Petitioner has not sufficiently proven that the victim had indeed fired at Regencia. Killing the victim under the circumstances of this case cannot in any wise be considered a valid performance of a lawful duty by a man who had sworn to maintain peace and order and to protect the lives of the people. As aptly held in People v. de la Cruz,73 "Performance of duties does not include murder…. Murder is never justified, regardless of the victim." A final word on the civil liability. An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the Court to correct any error in the appealed judgment, whether it is made the subject of an assignment of error or not. Therefore, we delete the award of ₱50,000.00 as actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence obtainable. Since the prosecution did not present receipts to prove the actual losses suffered, such actual damages cannot be awarded.74 On the other hand, consistent with prevailing jurisprudence, we award ₱50,000.00 by way of indemnity ex delicto to the heirs of Paquito. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for death without need of any evidence or proof of damages.75 We also affirm the award of moral damages in view of the finding that Generoso Umas-as lost consciousness and suffered anguish and sorrow because of the incident. WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586 finding petitioner GUILTY of homicide is partially AFFIRMED with the following MODIFICATIONS: (a) the award of Fifty Thousand Pesos (₱50,000.00) as actual damages is deleted; and (b) petitioner is ordered to pay fifty thousand pesos (₱50,000.00) as indemnity ex delicto. No costs. SO ORDERED.

G.R. No. 149275

September 27, 2004

VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION TINGA, J.: Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule 45, seeking to set aside the Decision1 of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decisionaffirmed with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 222 (B.P. 22), otherwise known as the Bouncing Checks Law. This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No. 93-130465 reads as follows: That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Manila Doctors’ Hospital to apply on account or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount of ₱30,000.00, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date hereof, was subsequently dishonored by the drawee bank for "Account Closed" and despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. Contrary to law.3 The other Informations are similarly worded except for the number of the checks and dates of issue. The data are hereunder itemized as follows:

Criminal Case No.

Check No.

Postdated

Amount

93-130459

487710

30 March 1993

₱30,000.00

93-130460

487711

30 April 1993

₱30,000.00

93-130461

487709

01 March 1993

₱30,000.00

93-130462

487707

30 December 1992

₱30,000.00

93-130463

487706

30 November 1992

₱30,000.00

93-130464

487708

30 January 1993

₱30,000.00

93-130465

487712

30 May 1993

₱30,000.004

The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.5 The evidence for the prosecution shows that Ty’s mother Chua Lao So Un was confined at the Manila Doctors’ Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the patient’s daughter, Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission dated 30 October 1990.6 As of 4 June 1992, the Statement of Account7 shows the total liability of the mother in the amount of ₱657,182.40. Ty’s sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount of ₱418,410.55.8 The total hospital bills of the two patients amounted to ₱1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she assumed payment of the obligation in installments.9 To assure payment of the obligation, she drew several postdated checks against Metrobank payable to the hospital. The seven (7) checks, each covering the amount of ₱30,000.00, were all deposited on their due dates. But they were all dishonored by the drawee bank and returned unpaid to the hospital due to insufficiency of funds, with the "Account Closed" advice. Soon thereafter, the complainant hospital sent demand letters to Ty by registered mail. As the demand letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.10 For her defense, Ty claimed that she issued the checks because of "an uncontrollable fear of a greater injury." She averred that she was forced to issue the checks to obtain release for her mother whom the hospital inhumanely and harshly treated and would not discharge unless the hospital bills are paid. She alleged that her mother was deprived of room facilities, such as the air-condition unit, refrigerator and television set, and subject to inconveniences such as the cutting off of the

telephone line, late delivery of her mother’s food and refusal to change the latter’s gown and bedsheets. She also bewailed the hospital’s suspending medical treatment of her mother. The "debasing treatment," she pointed out, so affected her mother’s mental, psychological and physical health that the latter contemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother, and to comply with the demands of the hospital, Ty was compelled to sign a promissory note, open an account with Metrobank and issue the checks to effect her mother’s immediate discharge.11 Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty issued the checks subject of the case in payment of the hospital bills of her mother and rejected the theory of the defense.12Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads: CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid obligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or a total of forty-two (42) months. SO ORDERED.13 Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her defense that she issued the checks "under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury." She also argued that the trial court erred in finding her guilty when evidence showed there was absence of valuable consideration for the issuance of the checks and the payee had knowledge of the insufficiency of funds in the account. She protested that the trial court should not have applied the law mechanically, without due regard to the principles of justice and equity.14 In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with modification. It set aside the penalty of imprisonment and instead sentenced Ty "to pay a fine of sixty thousand pesos (₱60,000.00) equivalent to double the amount of the check, in each case."15 In its assailed Decision, the Court of Appeals rejected Ty’s defenses of involuntariness in the issuance of the checks and the hospital’s knowledge of her checking account’s lack of funds. It held that B.P. 22 makes the mere act of issuing a worthless check punishable as a special offense, it being a malum prohibitum. What the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating to its issuance.16 Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of the checks as they were issued in payment of the hospital bills of Ty’s mother.17 In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court of Appeals18 wherein this Court declared that in determining the penalty imposed for violation of B.P. 22, the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to the protection of the social order.19 Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals. More specifically, she ascribed errors to the appellate court based on the following grounds: A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS. B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY. C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN THE ISSUANCE OF THE SUBJECT CHECKS. D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT. E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY. In its Memorandum,20 the Office of the Solicitor General (OSG), citing jurisprudence, contends that a check issued as an evidence of debt, though not intended to be presented for payment, has the same effect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented for payment, the drawee bank will generally accept the same, regardless of whether it was issued in payment of an obligation or merely to guarantee said obligation. What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.21 We find the petition to be without merit and accordingly sustain Ty’s conviction. Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the case.22Jurisdiction of this Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.23 In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the trial court and affirmed by the Court of Appeals.

Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She would also have the Court believe that there was no valuable consideration in the issuance of the checks. However, except for the defense’s claim of uncontrollable fear of a greater injury or avoidance of a greater evil or injury, all the grounds raised involve factual issues which are best determined by the trial court. And, as previously intimated, the trial court had in fact discarded the theory of the defense and rendered judgment accordingly. Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial court and the Court of Appeals. They likewise put to issue factual questions already passed upon twice below, rather than questions of law appropriate for review under a Rule 45 petition. The only question of law raised--whether the defense of uncontrollable fear is tenable to warrant her exemption from criminal liability--has to be resolved in the negative. For this exempting circumstance to be invoked successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to that committed.24 It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary man would have succumbed to it.25 It should be based on a real, imminent or reasonable fear for one’s life or limb.26 A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote.27 A person invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a mere instrument acting not only without will but against his will as well.28 It must be of such character as to leave no opportunity to the accused for escape.29 In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was compelled to issue the checks--a condition the hospital allegedly demanded of her before her mother could be discharged--for fear that her mother’s health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear contemplated by law. To begin with, there was no showing that the mother’s illness was so life-threatening such that her continued stay in the hospital suffering all its alleged unethical treatment would induce a well-grounded apprehension of her death. Secondly, it is not the law’s intent to say that any fear exempts one from criminal liability much less petitioner’s flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospital’s threats or demands. Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take advantage of the many opportunities available to her to avoid committing one. By her very own words, she admitted that the collateral or security the hospital required prior to the discharge of her mother may be in the form of postdated checks or jewelry.30 And if indeed she was coerced to open an account with the bank and issue the checks, she had all the opportunity to leave the scene to avoid involvement. Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of B.P. 22. She even testified that her counsel advised her not to open a current account nor issue postdated checks "because the moment I will not have funds it will be a big problem."31 Besides, apart from petitioner’s bare assertion, the record is bereft of any evidence to corroborate and bolster her claim that she was compelled or coerced to cooperate with and give in to the hospital’s demands. Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case. We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it.32 In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.33 Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor.34 In this case, the issuance of the bounced checks was brought about by Ty’s own failure to pay her mother’s hospital bills. The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty been able to prove that the issuance of the bounced checks was done without her full volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance of the bounced checks. Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case35 for damages filed by Ty’s mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings therein may establish a claim for damages which, we may add, need only be supported by a preponderance of evidence, it does not necessarily engender reasonable doubt as to free Ty from liability. As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the contrary, that the same was issued for valuable consideration.36 Section 2437 of the Negotiable Instruments Law creates a presumption that every party to an instrument acquired the same for a consideration38 or for value.39 In alleging otherwise, Ty has the onus to prove that the checks were issued without consideration. She must present convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. "Valuable consideration may in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined, valuable consideration means an obligation to give, to do, or not to do in favor of the party who makes the contract, such as the maker or indorser."40 In this case, Ty’s mother and sister availed of the services and the facilities of the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her signature on her mother’s Contract of Admission acknowledging responsibility for payment, and on the promissory note she executed in favor of the hospital. Anent Ty’s claim that the obligation to pay the hospital bills was not her personal obligation because she was not the patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann, et al.41 tells us that "it is no defense to an action on a promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promissor. It is enough if the obligee foregoes some right or privilege or suffers some detriment and the release and extinguishment of the original obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligation for the note executed by the appellants. This, of itself, is sufficient consideration for the new notes." At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance.42 B.P. 22 does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or to merely guarantee the obligation.43 The thrust of the law is to prohibit the making of worthless checks and putting them into circulation.44 As this Court held in Lim v. People of the Philippines,45 "what is primordial is that such issued checks were worthless and the fact of its worthlessness is known to the appellant at the time of their issuance, a required element under B.P. Blg. 22." The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. 22 provides: Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.46 If not rebutted, it suffices to sustain a conviction.47 Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with the drawee bank and such knowledge necessarily exonerates her liability. The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof is inconsequential.48 In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this Court inquired into the true nature of transaction between the drawer and the payee and finally acquitted the accused, to persuade the Court that the circumstances surrounding her case deserve special attention and do not warrant a strict and mechanical application of the law. Petitioner’s reliance on the case is misplaced. The material operative facts therein obtaining are different from those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a "warranty deposit" in a lease contract, where the lessor-supplier was also the financier of the deposit. It was a modus operandiwhereby the supplier was able to sell or lease the goods while privately financing those in desperate need so they may be accommodated. The maker of the check thus became an unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to cover the receipt of an actual account or credit for value. In the case at bar, the checks were issued to cover the receipt of an actual "account or for value." Substantial evidence, as found by the trial court and Court of Appeals, has established that the checks were issued in payment of the hospital bills of Ty’s mother. Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that petitioner was not a first-time offender nor that she acted in bad faith. Administrative Circular 12-2000,50 adopting the rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to modify the penalty in view of Administrative Circular 13-200153 which clarified Administrative 12-2000. It is stated therein: The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the

offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.54 WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors’ Hospital, the amount of Two Hundred Ten Thousand Pesos (₱210,000.00) representing the total amount of the dishonored checks. Costs against the petitioner. SO ORDERED.

G.R. No. 149152

February 2, 2007

RUFINO S. MAMANGUN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION GARCIA, J.: In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y Silverio seeks the reversal of the Decision1 dated January 19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime of Homicide. The factual backdrop: On September 12, 1994, herein petitioner, then a police officer, was charged before the Sandiganbayan with the crime of Murder, allegedly committed, per the indicting Information,2 docketed as Criminal Case No. 21131, as follows: That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rufino S. Mamangun, a public officer, being then a Police Officer (PO2), duly appointed as such and acting in relation to his office, armed with a gun, with intent to kill, did then and there willfully, unlawfully and feloniously, with treachery, evident premeditation and abuse of superior strength, attack, assault and shoot one Gener M. Contreras with the said gun, hitting the latter on his body, thereby inflicting (sic) him serious physical injuries which directly cause (sic) his death. CONTRARY TO LAW. On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a plea of "Not Guilty." In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated Medico-Legal Officer of Bulacan who performed an autopsy on the cadaver of the victim. For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino Mamangun, his co-policemen at the Philippine National Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez, all assigned at the Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law, respectively, of Antonio Abacan, owner of the house on which rooftop the shooting of the victim took place. It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting, "Magnanakaw…Magnanakaw." Several residents responded and thereupon chased the suspect who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacan’s house. At about 9:00 o’clock that same evening, the desk officer of the Meycauayan PNP Police Station, upon receiving a telephone call that a robbery-holdup was in progress in Brgy. Calvario, immediately contacted and dispatched to the scene the crew of Patrol Car No. 601 composed of Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect was allegedly taking refuge. The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun, searched the rooftop. There, they saw a man whom they thought was the robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of the group, fired his handgun once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the robbery suspect. Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero yielded the following findings: The cause of death was "Shock due to massive external and internal hemorrhage due to multiple gunshot wounds in the left arm side of the thorax, penetrating the left lung and vertebral column." There were several wounds caused by one (1) bullet. As shown on the sketch of human body attached to the Certificate of Death, and as testified on by Dr. Caballero, the bullet entered through the "lower third of the left arm, left side of the thorax and it penetrated the left lung and vertebral column and that is where the slug was found." From a layman’s appreciation of the sketch, the bullet entered the outer, upper left arm of the victim, exited through the inner side of the said upper left arm, a little lower than the left armpit and the slug lodging on the victim’s back where it was recovered at the vertebral column.3 From the foregoing admitted or undisputed facts, the prosecution and the defense presented conflicting versions as to how the fatal shooting of Contreras by petitioner Mamangun actually happened.

According to Ayson, the lone eyewitness for the prosecution, he accompanied the three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacan’s house. He was following petitioner Mamangun who was ahead of the group. They passed through the second-floor door of the house to the rooftop. The roof was lighted by an incandescent bulb from an adjacent house. He was beside Mamangun when they saw, some four to five arms-length away, a man whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi ako?" Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who turned out to be Contreras. He (witness) approached the victim who was then lying on his left side unconscious. He brought down the victim and they rushed him to the hospital where he died at about 10:00 o’clock that same evening. The defense has its own account of what purportedly actually transpired.1awphi1.net PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the rooftop during the shooting incident. Corroborating one another, the three testified that they were the only ones at the scene of the shooting, and that it was dark. They claimed that each of them, with Mamangun on the lead, went on separate directions around a water tank. As they met each other at the other side of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof of the garage. Thinking that the person was the suspect they were looking for, Mamangun chased said person. They announced that they were police officers but the person continued to run in a crouching position until Mamangun caught up with him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped, turned around, faced Mamangun, and raised a stainless steel pipe towards the latter’s head but Mamangun was able to evade the attack. This prompted Mamangun to shoot the person on the left arm. All three claimed that it was only at this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go to the rooftop? You know there are policemen here." Contreras was thereafter brought to the hospital where he died. After the shooting incident, Mamangun reported the same to the desk officer, POI Filomeno de Luna, who advised him to remain in the police station. De Luna directed Police Investigator Hernando Banez to investigate the incident. That same evening, Investigator Banez went to the place where the shooting happened. Banez allegedly found a steel pipe about three (3) feet long on the depressed portion of the roof. On January 19, 2001, after due proceedings, the Sandiganbayan came out with its decision4 finding the petitioner guilty beyond reasonable doubt of only the crime of Homicide. In so finding, the Sandiganbayan did not appreciate the presence of the aggravating circumstances of treachery, evident premeditation and abuse of superior strength to qualify the killing to Murder. But even as the said court rejected the petitioner’s claim that the shooting was justified by self-defense, it nonetheless ruled that the crime of Homicide was attended by an incomplete justifying circumstance of the petitioner having acted in the performance of his duty as a policeman, and also appreciated in his favor the generic mitigating circumstance of voluntary surrender. Dispositively, the decision reads: WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond reasonable doubt of the crime of Homicide, defined and penalized under Article 249, Revised Penal Code, and taking into account the attendance of one (1) privileged mitigation (sic) circumstance, one generic circumstance and no aggravating circumstance, he is hereby sentenced under the Indeterminate Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months of prision correctional as minimum, to Seven (7) years of prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras in the total amount of P352,025.00, and to past the costs. SO ORDERED. Unable to accept the judgment of conviction, petitioner is now with this Court via the present recourse alleging that the Sandiganbayan committed reversible error in failing to apply paragraph 5, Article 11, of the Revised Penal Code, which would have absolved him from criminal liability on the basis of his submission that the shooting in question was done in the performance of a duty or in the lawful exercise of a right or office. First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras, was justified because he was repelling Contreras’ unlawful attack on his person, as Contreras was then about to strike him on the head with a steel pipe. We are not persuaded. Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the Court except where: (1) the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts and the findings of fact are premised on the absence of evidence and are contradicted by the evidence on record.5None of these exceptions obtains in this case. Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is charged with the burden of adducing convincing evidence to show that the killing was done in the fulfillment of his duty as a policeman. The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised Penal Code may be invoked only after the defense successfully proves that: (1) the accused acted in the performance of a duty; and (2) the injury inflicted or offense committed is the necessary consequence of the due performance or lawful exercise of such duty.7 Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding to a robbery-holdup incident. His presence at the situs of the crime was in accordance with the performance of his duty. However, proof that the shooting and ultimate death of Contreras was a necessary consequence of the due performance of his duty as a policeman is essential to exempt him from criminal liability. As we see it, petitioner’s posturing that he shot Contreras because the latter tried to strike him with a steel pipe was a mere afterthought to exempt him from criminal liability. We see no plausible basis to depart from the Sandiganbayan’s findings that there was no reason for the petitioner to shoot Contreras. The latter was unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shot him on the left arm. Prosecution witness Ayson, who was then behind the petitioner when the latter shot Contreras, testified that to the victim’s utterances, the petitioner even responded, "Anong hindi ako," and immediately shot Contreras.8 As correctly observed by the Sandiganbayan:

Besides being self-serving (with respect to the accused) and biased (with respect to his co-policemen-witnesses), We find (1) the claim of the accused and his copolicemen-witnesses that the victim (Contreras) attacked the said accused and (2) their seemingly "positive" identification of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for the following reasons: (1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the three policemen appropriately identified themselves as police officers as they started chasing the man they saw "crouching," and, as claimed by accused PO2 Rufino Mamangun, that, as he was about to catch up with said man, he shouted, "Pulis! Tigil!" With all these introductions and forewarnings, it is utterly incredible and contrary to human experience that, that man, later identified to be Gener Contreras and admittedly not the person they were looking for, purportedly armed only with a stainless steel "lead" pipe (more of a rod) would suddenly stop, turn around and attack one of the three policemen who were chasing him, one after the other, with drawn guns. (2) When the victim (Gener Contreras) fell down after being shot by accused PO2 Mamangun, and as the latter went near the fallen victim, said accused asked, "Why did you go to the rooftop. You know there are policemen here." He admits that he did not ask the victim, "Why did you try to hit me, if you are not the one?" This admission clearly belies the claim of the police-witnesses that Gener Contreras attacked the accused policeman with an iron pipe when he was shot, for the accused should have asked the latter question. (3) The location of the entry of the bullet fired by accused Mamangun which is at the outer left arm at about the bicep of the victim and its trajectory as it penetrated his body hitting his vital organs along the way belies the claim of the accused that the victim was facing him and had just missed his head with an iron pipe, as instead the victim must have instinctively shielded his body with his left arm. Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is intriguing. As it is, petitioner did not report the same to Police Investigator Banez when he reported back to the police station after the shooting incident. It was only when a lead pipe was recovered from the scene and brought to the police station that petitioner conveniently remembered Contreras trying to hit him with a pipe. Such a vital information could not have escaped the petitioner’s mind. We are thus inclined to believe that the alleged actuation of Contreras, which could have justified petitioner’s shooting him, was nothing but a concocted story to evade criminal liability. Indeed, knowing that he shot Contreras, the least that the petitioner should have done was to bring with him to the police station the very pipe with which Contreras tried to attack him. As borne by the evidence, however, it was only after a police investigator referred to the scene that the lead pipe surfaced. Petitioner would likewise argue that the testimony of prosecution witness Ayson was incredible and riddled with inconsistencies. The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he died, and as to whether Ayson left his house after the shooting incident, are but minor details which do not affect Ayson’s credibility. We have held time and again that few discrepancies and inconsistencies in the testimony of a witness referring to minor details and not in actuality touching upon the central fact of the crime, do not impair his credibility. Quite the contrary, such minor inconsistencies even tend to strengthen credibility because they discount the possibility that the testimony was rehearsed.9 For sure, the record reveals that Ayson’s answers to the questions propounded by the defense counsel are clear and categorical. As to where the victim died, Ayson clarified that the victim was already at the rooftop even before the arrival of the police officers. As to why he was not able to warn Mamangun that the victim was his relative, Ayson explained that he was not able to utter any word because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at the latter.10 As to the claim that Ayson was also on the roof, record shows that the robbery-holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson and Contreras were already pursuing the robber.11 Ayson also testified that when the victim was shot by the petitioner, the former fell on his left side unconscious; that he did not leave his house after the incident because he was afraid that the policemen would detain him.12 Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying circumstance in this case. For, from the above admitted, uncontroverted or established facts, the most important element of unlawful aggression on the part of the victim to justify a claim of self defense was absent. Lacking this essential and primary element of unlawful aggression, petitioner’s plea of self-defense, complete or incomplete, must have to fail. To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s firing the fatal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the necessary consequence of the due performance of such duty, there can only be incomplete justification, a privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal Code. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber. All told, we find no reversible error committed by the Sandiganbayan in convicting the petitioner of the crime of Homicide attended by the privileged mitigating circumstance of incomplete justifying circumstance of having acted in the performance of his duty as a policeman and the generic mitigating circumstance of voluntary surrender. IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the Sandiganbayan is AFFIRMED in all respects. No pronouncement as to costs. SO ORDERED.

G.R. Nos. 54344-45 January 10, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused. WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants. 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 Danilo Oro, the youngest of the Oros, likewise testified. He said that at around five o'clock in the afternoon of 24 May 1977, while walking along Divinagracia Street on their way to the plaza for ride home with his three brothers and two others, they were waylaid by Celso, Willie and Gildo, their cousin Danny, all surnamed Amaguin, and several others. Celso placed an arm on the shoulder of Pacifico and stabbed him with a knife.3 Then there was a clash between the two groups. In a split second, he (Danilo) was hit on the left chest by a dart from the slingshot of Gildo whom he saw aiming at him. He (Danilo) pulled the dart from his chest and ran away but was hit on the lips by a bullet. Then he was pushed by Hernando to seek cover.4 Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His version was that while he, his brothers-in-law and one Sergio Argonzola were walking along Divinagracia Street that afternoon, two men approached them. Without any provocation, one suddenly stabbed him. After being hit on the left arm, he immediately fled to the plaza where he flagged down a passing cab to take him to the hospital. He did not see what happened next to his companions.5 The defense however maintains that it was the Oro brothers who started the fight. Accused Gildo Amaguin recounted that on 24 May 1977, at about five o'clock in the afternoon, Pacifico with five others went to their house in Divinagracia Street, La Paz, Iloilo City, and approached his brother Celso, who was waiting for his wife at the foot of the stairs. While Pacifico was talking to Celso, a companion of Pacifico came forward, held Celso by the shoulder and said : "This is the bravest man in Divinagracia Street, the Amaguin." Meanwhile, another companion of Pacifico gave Celso a flying kick that sent him reeling. Gildo then went down the house shouting : "Don't fight." However, the attackers drew their knives and slingshots. In return, Celso pulled out his knife. Since one of the companions of Pacifico lunged at him, Gildo retreated to the other side of the road and threw stones at his attackers. Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot. But later Danny himself was stabbed from behind by one of Pacifico's companions. Then Ernie Ortigas, a guest of Celso, emerged from the Amaguin residence holding a revolver. Ernie initially fired three warning shots, after which he successively shot Pacifico and a person who tried to stab the former as well as an identified companion of Pacifico. Later, both Ernie Ortigas and Celso Amaguin escaped towards the railway tracks.6 The following day, he was brought by his uncle to the PC authorities in Fort San Pedro for "safe-keeping" and turned over to the local police after a week. The story of Gildo was confirmed by Vicente Belicano7 and Nilda Tagnong,8 long-time residents of Divinagracia Street, and Nenita Amaguin, mother of the accused brothers, who even affirmed that her son Celso was indeed troublesome,9 but added that Willie "never had any brush with the law." 10 On his part, Willie related that he was in the house of his uncle along Divinagracia Street that afternoon drinking with some friends. He left the group after hearing some explosions coming from the direction of his mother's house and then seeing his cousin Danny, with a stab wound at the back, being taken by two policemen, and his wounded brother Gildo running towards the plaza. Thus, he went to his mother's residence to find out what happened. But when he got there, the incident had

already ended. As a consequence, he was told by his mother to look for his two brothers who were wounded in the fight and to take them to the hospital.11 He turned himself in after five days, upon learning that law enforcers were looking for him. Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused Willie only left their gathering after the explosions were heard, and only after seeing his wounded brother Gildo and his cousin Danny, who was in the company of two policemen, pass by. Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that after hearing six explosions, she saw an unidentified man with a revolver running away from the scene of the crime, followed by accused Celso who was holding a knife. She was certain that the unidentified man was not accused Willie as the latter was very well known to her, she being a former neighbor of the Amaguins. 12 Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District Command, INP, conducted an autopsy on Pacifico and Diosdado. He declared that out of the 15 stab wounds and one gunshot wound Pacifico sustained, five of the stab wounds were fatal. With regard to Diosdado, four (4) stab wounds, out of the ten (10), and the lone bullet he had sustained were considered fatal. 13 After a joint trial, and finding the version of the prosecution to be more credible, the then Court of First Instance of Iloilo, Br. II, 14 found the accused Gildo Amaguin, also known as "Tigib," guilty beyond reasonable doubt of the crime of Murder, and . . . sentenced (him) to Reclusion Perpetua, both in Criminal Cases Nos. 8041 and 8042, together with all the accessory penalties, and to pay the costs." As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as accomplice in both Criminal Cases 8041 and 8042, and . . . sentenced (him) to an indeterminate penalty of Seventeen (17) Years, Four (4) Months, and One (1) Day to Twenty (20) Years each in said cases together with all the accessory penalties, and to pay the costs." Both accused were "further sentenced to indemnify the heirs of the late Pacifico Oro and Diosdado Oro, jointly and severally in the total sum of P24,000.00 as death compensation; P20,000.00 (as) moral damages; P10,000.00 (as) exemplary damages; and P5,000.00 for burial expenses, in both Criminal cases nos. 8041 and 8042." In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a quo erred: (a) in categorizing the offense/s as murder; (b) in finding Willie Amaguin to be the person involved in the incident; (c) in holding that there was conspiracy between the brothers Gildo and Celso Amaguin (the latter is at large); (d) in finding Gildo Amaguin to be armed with a knife and an Indian target when he was only armed with stones; and, (e) even assuming the accused to be guilty, in not holding them responsible for their individual acts, and in not appreciating the mitigating circumstance of voluntary surrender. 15 Before disposing of the other issues raised by appellants, we resolve the second and fourth assigned errors first to determine which of the two conflicting versions of the incident deserves credence. Their resolution rests upon the credibility of the witnesses who have come forward, a matter addressed to the sound judgment of the trial court which is in a better position to decide them, it having heard the witnesses and observed their deportment and manner of testifying during the trial. Consequently, the assessment of the trial judge is usually received with respect, if not conclusiveness, on appeal unless there is a showing of arbitrariness. Always, this has been the familiar rule. 16 In the instant case, the trial court has accepted as credible the testimonies of Hernando and Danilo Oro who positively identified accused Celso and Gildo Amaguin as having started the assault on the Oro brothers with the use of a knife and an "Indian pana," and accused Willie Amaguin as the gunwielder who shot the brothers Pacifico, Diosdado and Danilo during the fray. We see no reason to disregard the assessment. We simply cannot set aside the factual findings of the trial court absent any showing of capriciousness on its part. The defense belittles the testimony of Hernando Oro pointing to accused Willie Amaguin as the gunman as it stands "singly and alone," in contrast to the declaration of the defense witnesses exonerating Willie and Gildo. While the defense may have presented a number of 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 Amaguin)," 17 still the trial judge had the opportunity, as well as the right and responsibility, to assess their credibility — just like all other witnesses. After all, there is no law which requires that the testimony of a single witness needs corroboration except when the law so expressly requires. As it is often said, witnesses are to be weighed, not numbered. If credible and positive, the testimony of a single witness is sufficient to convict. 18 Indeed the determination of the credibility of witnesses is the trial court's domain, hence, we respect its factual findings. For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi that he did not participate in the fray and that he was in the nearby house of his uncle drinking with his friends, and accused Gildo Amaguin's denial that he was unarmed but later forced to hurl stones to defend himself, are without sound basis. Alibi is one of the weakest defenses that can be resorted to especially where there is direct testimony of an eyewitness, not only because it is inherently weak and unreliable but also because of the ease of its fabrication and the difficulty of checking and rebutting it.19 Besides, alibi to be believed must be supported by the physical impossibility of the accused to have been at the scene of the crime. 20 And as in an alibi, a denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters.21 Thus, as between a mere denial of the accused and the positive identification and detailed declarations of the prosecution witnesses, the trial court committed no error in according heavier weight to the latter. 22 Hence, this version of the prosecution prevails: Celso and Gildo, together with others, attacked the Oros. During the fray, Gildo was armed with a knife and an "Indian target." And just as they were about to finish off the Oro brothers, Willie, the eldest of the Amaguins, appeared with a revolver and delivered the coup de grace. The factual setting having been settled, we now go to the first assigned error , i.e., thwt the lower court erred in categorizing the offense as murder there being no treachery since "the combatants were face to face" and "[c]onfronting each other frontally . . . that each will know each other's next move." 23 Except for appellants' premise, the argument has merit. The killing of Pacifico and Diosdado cannot be qualified by treachery.

While we have already ruled that even a frontal attack can be treacherous, as when it is sudden and unexpected and the victim is unarmed, 24 here, it appears that the aggressors did not employ means tending directly and specially to ensure the execution of the crime without risk to themselves arising from the defense which the offended parties might take. It must be noted that the assailants attacked a group of six (6) individuals who could have been armed. It is highly probable that at least one of those attacked could offer resistance and could put the lives of the aggressors in danger, as what indeed happened when accused-appellant Gildo Amaguin and his cousin Danny suffered injuries as a result of the fight which, from all indications, ended in a free-for-all. That Pacifico sustained 15 stab wounds and a gunshot wound, and Diosdado, ten stab wounds and a bullet wound, does not necessarily mean that treachery attended the killings. As already adverted to, for treachery to be appreciated, the offender must employ means, methods, or forms in the commission of the crime which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might take.25 Here, there is serious doubt. On the third assigned error, i.e., that there was conspiracy between Gildo and Celso, who remains at large, the evidence shows how Celso and Gildo simultanously assaulted the Oro brothers. While Celso lunged at Pacifico, Gildo aimed his slingshot at Danilo who was hit by its dart, and immediately attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo and Celso acted in unison and cooperated with each other toward the accomplishment of a common felonious objective. Certainly, there was conspiracy between the brothers Gildo and Celso, and it was not necessary to prove a previous agreement to commit the crime since from their overt acts, it was clear that they acted in concert in the pursuit of their unlawful design. However, it was error to rule that accused Willie was an accomplice to his brothers. There being no sufficient evidence to link him to the conspiracy, he should be liable for the natural and logical consequence of his own felonious acts. Hence, we take exception to the conclusion of the trial court that Pacifico and Diosdado did not die due to the gunshot wounds inflicted by Willie. Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico and Diosdado, testified that while the gunshot wound sustained by Pacifico was not fatal, that suffered by Diosdado was fatal.26 Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he should be liable for homicide. And, since Diosdado was already on bended knees and pleading for his life when fatally shot, the aggravating circumstance of the abuse of superior strength, although not alleged in the information but proven during the trial, may be considered as a generic aggravating circumstance. 27 In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already with numerous fatal stab wounds, Willie should be liable for frustrated homicide it appearing that the gunshot wound was not fatal although his intent to kill was evident. Likewise, the aggravating circumstance of abuse of superior strength may be appreciated as a generic aggravating circumstance. Finally, we agree with accused-appellants' view that voluntary surrender should be appreciated in their favor. While it may have taken both Willie and Gildo a week before turning themselves in, the fact is, they voluntarily surrendered to the police authorities before arrest could be effected. For voluntary surrender to be appreciated as a mitigating circumstance, the following elements must be present: (a) the offender has not been actually arrested; (b) the offender surrendered himself to a person in authority; and (c) the surrender must be voluntary. 28 All these requisites appear to have attended their surrender. Now, we turn to the penalties. In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate crimes of homicide for the death of Diosdado and Pacifico, respectively. The penalty prescribed by law for homicide is reclusion temporal. 29 Applying the Indeterminate Sentence Law, and appreciating the mitigating circumstance of voluntary surrender with no aggravating circumstance, the maximum penalty to be imposed on accused Gildo Amaguin for each of the homicide he has committed, which he must serve successively, should be taken from the minimum of the imposable penalty, which is reclusion temporal the range of the minimum period of which is twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum should be taken from the penalty next lower in degree, which is prision mayor the full range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods. In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of superior strength but offset by the mitigating circumstance of voluntary surrender, and in Crim. Case No. 8042, he is guilty of frustrated homicide likewise aggravated by abuse of superior strength but offset by voluntary surrender. For the homicide, applying the Indeterminate Sentence Law and taking into account the mitigating circumstance of voluntary surrender which, as earlier mentioned, offsets the aggravating circumstance of abuse of superior strength, the maximum penalty should be taken from the medium of the imposable penalty, which is reclusion temporal the range of the medium period of which is fourteen (14) years eight (8) months and 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.

G.R. No. 132547

September 20, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ERNESTO ULEP, accused-appellant. DECISION BELLOSILLO, J.: In the aftermath of an incident where a certain Buenaventura Wapili1 went berserk at Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December 1995, Police Officer Ernesto Ulep was found guilty of murder and sentenced to death by the trial court for killing Wapili. Ulep was also ordered to indemnify the heirs of the victim in the amount of ₱50,000.00 and to pay the costs.2 The evidence shows that at around two o' clock in the morning of 22 December 1995 Buenaventura Wapili was having a high fever and was heard talking insensibly to himself in his room. His brother-in-law, Dario Leydan, convinced him to come out of his room and talk to him, but Wapili told Leydan that he could not really understand himself. After a while, Wapili went back to his room and turned off the lights. Moments later, the lights went on again and Leydan heard a disturbance inside the room, as if Wapili was smashing the furniture.3 Unable to pacify Wapili, Leydan called Pastor Bonid of the Alliance Church of Kidapawan to help him "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 0.5 cm. in diameter (point of entry) with multiple powder burns around the wound and on the 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 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 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 of the victim,8 and that the wound in the head, which caused the victim's instantaneous death, was inflicted while "the victim was in a lying position."9 The Office of the Ombudsman for the Military filed an Information for murder against SPO1 Ulep.1âwphi1 The accused pleaded not guilty to the charge on arraignment, and insisted during the trial that he acted in self-defense. However, on 28 October 1997, the trial court rendered judgment convicting the accused of murder and sentencing him to death The means employed by the accused to prevent or repel the alleged aggression is not reasonable because the victim, Buenaventura Wapili, was already on the ground, therefore, there was no necessity for the accused to pump another shot on the back portion of the victim's head. Clearly the gravity of the wounds sustained by the victim belies the pretension of the accused that he acted in self-defense. It indicates his determined effort to kill the victim. It is established that accused (sic) was already in the ground that would no longer imperil the accused's life. The most logical option open to the accused was to inflict on the victim such injury that would prevent the victim from further harming him. The court is not persuaded by the accused's version because if it is true that the victim attacked him and his life was 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 police officers x x x x WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the accused is hereby sentenced to suffer the extreme penalty of Death, to indemnify the heirs of Buenaventura Wapili the amount of ₱50,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. Death penalty having been imposed by the trial court, the case is now before us on automatic review. Accused-appellant prays for his acquittal mainly on the basis of his claim that the killing of the victim was in the course of the performance of his official duty as a police officer, and in self-defense.

Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the burden of proving legal justification therefor. He must establish clearly and convincingly how he acted in fulfillment of his official duty and/or in complete self-defense, as claimed by him; otherwise, he must suffer all the consequences of his malefaction. He has to rely on the quantitative and qualitative strength of his own evidence, not on the weakness of the prosecution; for even if it were weak it could not be disbelieved after he had admitted the killing.10 Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The Revised Penal Code may be successfully invoked, the accused must prove the presence of two (2) requisites, namely, that he acted in the performance of a duty or in the lawful exercise of a right or an office, and that the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. The second requisite is lacking in the instant case. Accused-appellant and the other police officers involved originally set out to perform a legal duty: to render police assistance, and restore peace and order at Mundog Subdivision where the victim was then running amuck. There were two (2) stages of the incident at Mundog Subdivision. During the first stage, the victim threatened the safety of the police officers by menacingly advancing towards them, notwithstanding accused-appellant's previous warning shot and verbal admonition to the victim to lay down his weapon or he would be shot. As a police officer, it is to be expected that accused-appellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the victim's further advance was justified under the circumstances. After all, a police officer is not required to afford the victim the opportunity to fight back. Neither is he expected - when hard pressed and in the heat of such an encounter at close quarters - to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. However, while accused-appellant is to be commended for promptly responding to the call of duty when he stopped the victim from his potentially violent conduct and aggressive behavior, he cannot be exonerated from overdoing his duty during the second stage of the incident - when he fatally shot the victim in the head, perhaps in his desire to take no chances, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and restraint dictated that accused-appellant, a veteran policeman,11 should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat and was already incapable of mounting an aggression against the police officers. Shooting him in the head was obviously unnecessary. As succinctly observed by the trial court Once he saw the victim he fired a warning shot then shot the victim hitting him on the different parts of the body causing him to fall to the ground and in that position the accused shot the victim again hitting the back portion of the victim's head causing the brain to scatter on the ground x x x x the victim, Buenaventura Wapili, was already on the ground. Therefore, there was no necessity for the accused to pump another shot on the back portion of the victim's head. It cannot therefore be said that the fatal wound in the head of the victim was a necessary consequence of accused-appellant's due performance of a duty or the lawful exercise of a right or office. Likewise, the evidence at hand does not favor his claim of self-defense. The elements in order for self-defense to be appreciated are: (a) unlawful aggression on the part of the person injured or killed by the accused; (b) reasonable necessity of the means employed to prevent or repel it; and, (c) lack of sufficient provocation on the part of the person defending himself.12 The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself.13 In the present case, the records show that the victim was lying in a prone position on the ground - bleeding from the bullet wounds he sustained, and possibly unconscious - when accused-appellant shot him in the head. The aggression that was initially begun by the victim already ceased when accused-appellant attacked him. From that moment, there was no longer any danger to his life. This Court disagrees with the conclusion of the court a quo that the killing of Wapili by accused-appellant was attended by treachery, thus qualifying the offense to murder. We discern nothing from the evidence that the assault was so sudden and unexpected and that accused-appellant deliberately adopted a mode of attack intended to insure the killing of Wapili, without the victim having the opportunity to defend himself. On the contrary, the victim could not have been taken by surprise as he was given more than sufficient warning by accused-appellant before he was shot, i.e., accusedappellant fired a warning shot in the air, and specifically ordered him to lower his weapons or he would be shot. The killing of Wapili was not sought on purpose. Accused-appellant went to the scene in pursuance of his official duty as a police officer after having been summoned for assistance. The situation that the victim, at the time accused-appellant shot him in the head, was prostrate on the ground is of no moment when considering the presence of treachery. The decision to kill was made in an instant and the victim's helpless position was merely incidental to his having been previously shot by accused-appellant in the performance of his official duty. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.14 Considering the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime itself, any doubt as to its existence must be resolved in favor of accused-appellant. Accordingly, for failure of the prosecution to prove treachery to qualify the killing to murder, accused-appellant may only be convicted of homicide. Indeed, to hold him criminally liable for murder and sentence him to death under the circumstances would certainly have the effect of demoralizing other police officers who may be called upon to discharge official functions under similar or identical conditions. We would then have a dispirited police force who may be halfhearted, if not totally unwilling, to perform their assigned duties for fear that they would suffer the same fate as that of accused-appellant. This brings us to the imposition of the proper penalty. We find in favor of accused-appellant the incomplete justifying circumstance of fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised Penal Code, "a penalty lower by one or two degrees than that prescribed by 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 from criminal liability in the several cases mentioned in Arts. 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking."

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 degrees than that prescribed by law.15Undoubtedly, 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 from the penalty next lower in degree which is prision correccional, in any of its periods, the range of which is six (6) months and one (1) day to six (6) years. The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill.18 It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law.19 We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights. WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1 ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced to an indeterminate prison term of four (4) years, two (2) months and ten (10) days of prision correccional medium as minimum, to six (6) years, four (4) months and twenty (20) days of prision mayor minimum as maximum. He is further ordered to indemnify the heirs of Buenaventura Wapili in the amount of ₱50,000.00, and to pay the costs. SO ORDERED.

G.R. No. 17748

March 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GRACIANO L. CABRERA, ET AL., defendants-appellants. Vicente Sotto for appellants. Acting Attorney-General Tuason for appellee MALCOLM, J.: As one outcome of the tumultous uprising of certain members of the Philippine Constabulary to inflict revenge upon the police of the city of Manila, charges of sedition were filed in the Court of First Instance of the city of Manila against the participants in the public disturbance. Convicted in the trial court of a violation of Act No. 292 of the Philippine Commission, and sentenced either to the maximum penalty or a near approach to the maximum penalty provided by the punitive provisions of that law, all of the defendants have perfected an appeal to this court. A statement of the case and of the facts, an opinion on the pertinent issues, and a judgement, if no reversible error be found, regarding the appropriate penalty, will be taken up in the order named. STATEMENT OF THE CASE AND OF THE FACTS On December 13, 1920, policemen of the city of Manila arrested a woman who was a member of the household of a Constabulary soldier stationed at the Santa Lucia Barracks in this city. The arrest of the woman was considered by some of the Constabulary soldiers as an outrage committed by the policemen, and it instantly gave rise to friction between members of Manila police department and member of the Philippine Constabulary. The next day, December 14, at about sunset, a policemen named Artemio Mojica, posted on Calle Real, in the District of Intramuros, city of Manila, had an encounter with various Constabulary soldiers which resulted in the shooting of private Macasinag of the Constabulary. Private Macasinag was seriously, and as afterwards appeared, mortally wounded. The encounter between policemen Mojica and other companions of the Manila force and private Macasinag and other companions of the Constabulary, with its grave consequences for a Constabulary soldier endangered a deep feeling of resentment on the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a desire for revenge against the police force of the city of Manila. The officers of the Constabulary appear to have been aware of the state of excitement among the soldiers the shooting of private Macasinag, Captain Page, the commanding officer of the Barracks, increased the number of guards, and confined all the soldiers in the Barracks. During the afternoon of the next day, December 15, 1920, a rumor spread among the soldiers in Santa Lucia Barracks to the effect that policeman Mojica was allowed to continue on duty on the streets of Intramuros and that private Macasinag had died as a consequence of the shot he received the night before. This rumor contributed in no small degree in precipitating a movement for reprisal by the Constabulary soldiers against the policemen. At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles of the Fourth Company approached private Nicolas Torio who was then the man in charge of quarters, and asked him to let the soldiers out through the window of the quarters of the Fourth Company. Private Torio was easily persuaded to permit private Francisco Garcia of the Second Company to saw out the window bars of the quarters, in his charge, and to allow soldiers to escape through the window with rifles and ammunition under the command of their sergeants and corporals. When outside of the quarters, these soldiers divided into groups for attack upon the city police force. One platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle Real, Intramuros, fired in the direction of the intersection of Calles Real and Cabildo where an American policeman named Driskill was stationed, and was taking with a friend named Jacumin, a field clerk in the United States Army. These two men were shot and died soon afterwards. To the credit of policeman Driskill be it said, that although in a dying condition and in the face of overwhelming odds, her valiantly returned the fire with his revolver. Jacumin was killed notwithstanding that in response to the command of Constabulary, "Hands up!," he elevated both arms. A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without considering that the passengers in the car were innocent passersby, the Constabulary squad fired a volley into the car, killing instantly the passenger named Victor de Torres and gravely wounding three other civilian passengers, Gregorio Cailes, Vicente Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved himself a hero on this occasion for, against the command of the Constabulary, he persisted in persuading them to cease firing and advanced in order that he might administer spiritual aid to those who had been wounded. The firing on Calle Real did not end at that time. Some minutes later, Captain William E. Wichman, assistant chief of police of the city of Manila, riding in a motorcycle driven by policeman Saplala, arrived at the corner of Calles Real and Magallanes in Intramuros, and a volley of shorts by Constabulary soldiers resulted in the instantaneous death of Captain Wichman and the death shortly afterwards of patrolman Saplala. About the same time, a police patrol came from the Meisic police station. When it was on Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers who had stationed themselves in the courtyard of the San Agustin Church. This attack resulted in the death of patrolmen Trogue and Sison. Another platoon of the Constabulary, between thirty and forty in number, had in the meantime, arranged themselves in a firing line on the Sunken Gradens on the east side of Calle General Luna opposite the Aquarium. From this advantageous position the Constabulary fired upon the motorcycle occupied by Sergeant Armada and driven by policeman Policarpio who with companions were passing along Calle General Luna in front of the Aquarium going in the direction, of Calle Real, Intramuros. As a result of the shooting, the driver of the motorcycle, policeman Policarpio, was mortally wounded. This same platoon of Constabulary soldiers fired several volleys

indiscriminately into the Luneta police station, and the office of the secret service of the city of Manila across Calles General Luna and Padre Burgos, but fortunately no one was injured. General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer of the Santa Lucia Barracks, and other soldiers in the streets of Manila, and other soldiers one after another returned to the Barracks where they were disarmed. No list of the names of these soldiers was, however, made. In the morning of the next day, December 16, 1920, Colonel, Lucien R. Sweet of the Constabulary officers, and later by the fiscals of the city of Manila, commenced an investigation of the events of the night before. He first ordered that all the soldiers in Santa Lucia Barracks at that time, numbering some one hundred and eighty, be assembled on the parade ground and when this was done, the soldiers were separated into their respective companies. Then Colonel Sweet, speaking in English with the assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made to all of the soldiers two statements. What occurred on the occasion above described can best be told in the exact language of Colonel Sweet: "I assembled all four companies in Santa Lucia Barracks and asked them to tell me which ones had been out the night before and which ones had participated in the shooting, which they did, and to tell me the names of those who were with them and who were not then present, which they did. I think there were seventy-two (seventy-three) present and they named five (four) others." Again the witness said: "At first I asked all those who went out on the previous night for any purpose whatever to signify the fact by stepping forward and gave them five minutes to think it over before doing so. To those who stepped forward that had gone out for any purpose whatever I asked those who took part in the shooting the night before that in justice to themselves and to the other men who had not taken part in it, and for the good of all concerned, that they step forward and they did." The names of the four who took part (not five as stated by Colonel Sweet), but ho were taken to present, were noted by Captain Gallardo. The statements of the seventy-seven soldiers were taken in writing during the afternoon of the same day, December 16. The questionnaire prepared by the fiscal of the city of Manila was in English or Spanish. The questions and answers were, however, when requested by the soldiers, translated not their dialects. Each statement was signed by the soldier making it in the presence of either two or three witnesses. Although the answers to the questions contained these statements vary in phraseology, in substance they are the same. One of them, the first in numerical order, that of Sergeant Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be selected into Tagalog, may be selected as typical of the rest, and is here literally transcribed: 1. Give your name, age, status, occupation, and residence. — Graciano I. Cabrera, 254 years of age, single, sergeant of the first company of the General Service of the Constabulary, residing in Santa Lucia Barracks. 2. To what company of the Philippine Constabulary do you belong? — First Company, General Service of the Constabulary.] 3. Where were you garrisoned yesterday afternoon December 15, 1920? — In the Santa Lucia Barracks. 4. Did you leave the barracks at about 7 o'clock yesterday evening? — Yes, sir. 5. For what reason, and where did you go? — We went in search of the policemen and secret service men of Manila. It has been sometime now since we have been having standing grudge against now since we have been having a standing grudge against the police of Manila. The wife of one of our comrades was first arrested by the policemen and then abused by the same; and not content with having abused her, they gave this woman to an American; after this incident, they arrested two soldiers of the Constabulary, falsely accusing them of keeping women of bad reputation; after this incident, came the shooting of Macasinag, a shooting not justified, because we have come to know that Macasinag did nothing and the policemen could have arrested him if they desired. Moreover, the rumor spread among us that the police department of Manila had given orders to the policemen to fire upon any Constabulary soldier they found in the streets, and we believe that the rumor was not without foundation since we noticed that after the Macasinag affair, the policemen of Manila, Contrary to the usual practice, were armed with carbines or shotguns. For this reason we believe that if we did not put an end to these abuses of the policemen and secret service men, they would continue abusing the constabulary. And as an act of vengeance we did what we had done last night. 6. How did you come to join your companions who rioted last night? — I saw that almost all the soldiers were jumping through the window and I was to be left alone in the barracks and so I followed. 7. Who asked you to join it? — Nobody. 8. Do you know private Crispin Macasinag, the one who was shot by the Manila police the night before last on Calle Real? — Yes, Sir, I know him because he was our comrade. 9. Were you offended at the aggression made on the person of said soldier? — Indeed, yes, not only was I offended, but my companions also were. 10. State how many shots you fired, if nay, during the riot last night. — I cannot tell precisely the number of shots I fired because I was somewhat obfuscated; all I can assure you is that I fired more than once. 11. Do you know if you hit any policeman or any other person?-If so state whether the victim was a policeman or a civilian. — I cannot tell whether I hit any policeman or any civilian. 12. State the streets of the city where you fired shots. — I cannot given an exact account of the streets where I fired my gun. I had full possession of my faculties until I reached Calle Victoria; afterwards, I became aware that I was bathed with perspiration only upon reaching the barracks.

13. What arms were you carrying and how much ammunition or how many cartidge did you use? — I Carried a carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges belonging to me and I must have lost. 14. How did you manage to leave the barracks? — By the window of the quarter of the Fourth Company, through the grating which I found cut off. 15. Are the above statements made by you, voluntarily, freely, and spontaneously given? — Yes, sir. 16. Do you swear to said statements although no promise of immunity is made to you? — Yes, sir; I confirm them, being true. (Sgd.) G. L. CABRERA. Witnesses: S. GALLARDO. LAURO C. MARQUEZ. The defendants were charged in one information filed in the Court of First Instance of the City of Manila with the crime of sedition, and in another information filed in the same, court, with the crimes of murder and serious physical injuries. The two cases were tried separately before different judges of first instance. All of the accused, with the exception of eight, namely, Francisco Ingles, Juan Noromor, P. E. Vallado., Dionisio Verdadero, and Paciano Caña, first pleased guilty to the charge of sedition, but later, after the first witness for the prosecution had testified, the accused who had pleaded guilty were permitted, with the consent of the court, to substitute therefor the plea of not guilty. the prosecution, in making out it case, presented the seventy-seven confession of the defendants, introduced in evidence as Exhibits C to C-76, conclusive, and with the exception of those made by Daniel Coralde, Nemesio Gamus, and Venancio Mira, all were identified by the respective Constabulary officers, interpreters, and typists who intervened in taking them. The prosecution further relied on oral testimony, including eyewitness to the uprising. The attorneys for the accused presented two defenses. The first defense was in favor of all the defendants and was based on the contention that the written statements Exhibits C to C-76 were not freely and voluntarily made by them. The second defense was in favor of the defendants Vicente Casimiro, Salvador Gregorio, Roberto Palabay, Cipriano Lizardo, Ildefonso de la Cruz, Roque Ebol, Francisco Garcia, Benigno Tagavilla, Paciano Caña, Juan Abarques, Genaro Elayda, Hilario Hibabar, P. E. Vallado, Patricio Bello, Felix Liron, Bonifacio Eugenio, Nemesio Deceña, Venancio Mira, Baldomero Rodriguez, Juan Noromor, Maximo Perlas, and Victor Atuel, and was to the effect these men did not take part in the riot. The court overruled the special defenses and found that the guilt of the accused had been proved beyond a reasonable doubt. All of the defendants were sentenced to serve the maximum imprisonment of ten years provided by section 6 of Act No. 292. The court, however, distinguished fines from that of a defendants Francisco Garcia, a private and the eight corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarques, Pedro V. Matero, Juan Regalado, Hilario Hibalar and Genaro Elayda, upon each of whom a fine of P5,000 was imposed, and of the three sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, upon each of whom a fine of P10,000 was imposed. The costs were divided proportionately among the defendants. For the statement of the cases and the facts which has just been made, we are indebted in large measure to the conspicuously fair and thoughtful decisions of the Honorable George R. Harvey who presided in the sedition case and of the Honorable Carlos Imperial who presided in the murder case. As stipulated by the AttorneyGeneral and counsel for the defendants, the proof is substantially the same in both cases. In all material respects we agree with the findings of fact as made by the trial court in this case. The rule is again applied that the Supreme Court will not interfere with the judgement of the trial court in passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstances of weight and influence which has been overlooked or the significance of which has been misinterpreted. (U. S. vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. vs. Remegio [1918], 37 Phil., 599.) In the record of the case at bar, no such fact or circumstance appears. OPINION An assignment of five errors is made by counsel for the defendants and appellants. Two the assignment of error merit little or no consideration. Assignment of error No. 2 (finding its counterpart in assignments of error 5 and 6 in the murder case), in which it is attempted to establish that Vicente Casimiro, Salvador Gregorio, Paciano Caña, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Juan Noromor, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Francisco Garcia, Genaro Elayda, Hilario Hibalar, P. M. Vallado, Maximo Perlas, and Benigno Tagavilla, did not leave the Santa Lucia Barracks in the night of the tragedy, is predicated on the special defense raised in the lower court for these defendants and three other and which was found untenable by the trial court. Any further discussion of this question falls more appropriately under consideration of assignment of error No. 4, relating to the conspiracy between the accused. Assignment of error No. 3, relating to the finding of the trial court that it had not been shown that the policemen were not aware of the armed attack of the Constabulary, However, we find that the evidence supports this conclusion of the trial court. The three pertinent issues in this case relate to: (1) the Admission of Exhibits C to C-76 of the prosecution (assignment of error No. 2, murder case); (2) the conspiracy between the accused (assignment of error No. 4, sedition case; assignment of error No. 3, murder case); and (3) the conviction of the accused of a violation of the Treason and Sedition Law (assignment of error No. 5, sedition case). 1. The admission of exhibits C to C-76

Appellants claim that fraud and deceit marked the preparation of the seventy seven confessions. It is alleged that some of the defendants signed the confessions under the impression that those who had taken part in the affray would be transferred to Mindanao, and that although they did not in fact so participate, affirmed that they because of a desire to leave Manila; that other stepped forward "for the good of the service" in response to appeals from Colonel Sweet and other officers; while still others simply didn't understand what they were doing, for the remarks of Colonel Sweet were made in English and only translated into Tagalog, and their declarations were sometime taken in al language which was unintelligible to them. Counsel for the accused entered timely objection to the admission in evidence of Exhibits C to C76, and the Attorney-General is worn in stating otherwise. Section 4 of Act No. 619, entitle "An Act to promote good order and discipline in the Philippines Constabulary," and reading: "No confession of any person charged with crime shall be received as evidence against him by any court of justice unless be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace or of promises or offers of reward or leniency," was repealed by the first Administrative Code. But the same rule of jurisprudence continues without the law. As he been repeatedly announced by this and other courts, "the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort". If the confession is freely and voluntarily made, it constitutes one of the most effectual proofs in the law against the party making it. (Wilson vs. U. S.[1896], 162 U. S. 613.)The burden of proof that he confession was not voluntarily made or was obtained by undue pressure is on the accused. (U. S. vs Zara [1912, 42 Phil., 308.) What actually occurred when the confessions were prepared is clearly explained in the records. The source of the rumor that the defendant would be transferred to Mindanao if they signed the confession is not established. One the contrary it is established that before the declaration were taken, Lieutenant Gatuslao in response to a query had shown the improbability of such a transfer. With military orders given in English and living in the city of Manila where the dialect is tagalog, all of the defendants must have understood the substantial part of Colonel Sweet's remarks. What is more important, there could be no misunderstanding as to the contents of the confessions as written down. In open court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the investigation were of the same service as the defendants in their own men. It must also be remembered that each and everyone of the defendants was a member of the Insular Police force. Because of the very nature of their duties and because of their practical experience, these Constabulary soldiers must have been aware of the penalties meted out for criminal offenses. Every man on such a momentous occasion would be more careful of his actions than ordinarily and whatever of credulity there is in him, would for the moment be laid aside. Over and above all desire for a more exciting life, over and above the so called esprit de corps, is the instinct of self preservation which could not but be fully aroused by such stirring incidents too recent to be forgotten as had occurred in this case, and which would counsel prudence rather than rashness; secretiveness rather than garrulity. These confessions contain the statements that they were made freely and voluntarily without any promise of immunity. That such was the case was corroborated by the attesting witnesses whose credibility has not been successfully impeached. We rule that the trial court did not err in admitting Exhibits C to C-76 of the prosecution. 2. The conspiracy between the accused The contention of the appellants is that evidence is lacking of any supposed connivance between the accused. Counsel emphasizes that in answer to the question in the confession, "who asked you to join the riot," each of the accused answered, "Nobody." The argument is then advanced that the appellants cannot be held criminally responsible because of the so called psychology of crowds theory. In other words, it is claimed that at the time of the commission of the crime the accused were mere automatons obeying the insistent call of their companions and of their uniform. From both the negative failure of evidence and the positive evidence, counsel could deduce the absence of conspiracy between the accused. The attorney-General answers the argument of counsel by saying that conspiracy under section 5 of Act No. 292 is not an essential element of the crime of sedition. In this law officer for the people may be on solid ground. However, this may be, there is a broader conception of the case which reaches the same result. It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of the other done in furtherance of the common design; and " the result is the same if the act is divided into parts and each person proceed with his part unaided." (U. S. vs Maza [1905], 5 Phils., 346; U. S. vs. Remegio [1918] 37 Phil., 599; decision of supreme court of Spain of September 29, 1883; People vs. Mather [1830], 4 Wendell, 229.) Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. It be proved that the defendants pursued by their acts the same object, one performing one part and another part of the same, so as to complete it, with a view to the attainment of that same object, one will be justified in the conclusion that they were engaged in a conspiracy to effect that object. (5 R. C. L., 1088.) Applied to the facts before us, it is incontestable that all of the defendants were imbued with the same purpose, which was to avenge themselves on the police force of the city of Manila. A common feeling of resentment animated all. A common plan evolved from their military training was followed. The effort to lead the court into the realm of psychology and metaphysics is unavailing in the face of actualities. The existence of a joint assent may be reasonably inferred from the facts proved. Not along are the men who fired the fatal shots responsible, not along are the men who admit firing their carbines responsible, but all, having united to further a common design of hate and vengeance, are responsible for the legal consequences therefor. We rule that the trail court did not err in declaring that there a c conspiracy between the accused. 3. The conviction of the accused of a violation of the Treason and Sediton Law Sedition, in its more general sense, is the raising of commotions or disturbances in the State. The Philippine law on the subject (Act No. 292) makes all persons guilty of sedition who rise publicly and tumultuously in order to obtain by force or outside of legal methods any one of vie objects, including that of inflicting any act of hate or revenge upon the person or property of any official or agent of the Insular Government or of Provincial or Municipal Government. The trial court found that the crime of sedition, as defined and punished by the law, had been committed, and we believe that such finding is correct.

Counsel's contention that in order for there to be a violation of subdivision 3 of section 5 of Act No. 292 it is and necessary that the offender should be a private citizen and the offended party a public functionary, and that what really happened in this instance was a fight between two armed bodies of the Philippine Government, is absolutely without foundation. Subdivison 3 of section 5 of the Treason and Sedition Law makes no distinction between the persons to which it applies. In one scene there was a fights between two armed bodies of the Philippine Government, but it was an unequal fight brought on by the actions of the accused. We rule that the trial court did not err in convicting the accused of the violation of section 5, paragraph 3, of Act No. 292 of the Philippine Commission. JUDGEMENT The Treason and Sedition Law provides as a penalty for any person guilty of sedition as defined in section 5 of the law, punishment by fine of not exceeding P10,000 or by imprisonment not exceeding ten years, or both. In this connection, it will be recalled that the court sentenced each of the private soldiers Salvador Gregorio, Juan Noromor, Patricio Bello, Nemesio Deceña, Baldomero Rodriguez, P. E. Vallado, Pedro Layola, Felix Liron (Cenon), Dionisio Verdadero, Lorenzo Tumboc, Casiano Guinto, Victor Atuel, Venancio Mira, Benigno Tagavilla, Masaway, Quintin Desierto, Teofilo Llana, Timoteo Opermaria, Maximo Perlas, Cornelio Elizaga, Roberto Palabay, Roque Ebol, Benito Garcia, Honorio Bautista, Crisanto Salgo, Francisco Lusano, Marcelino Silos, Nicanor Perlas, Patricio Rubio, Mariano Aragon, Silvino Ayngco, Guillermo Inis, Julian Andaya, Crispin Mesalucha, Prudencio Tasis, Silvino Bacani, Petronilo Antonio, Domingo Peroche, Florentino Jacob, Paciano Caña, Domingo Canapi, Arcadio San Pedro, Daniel Coralde, Nemesio Camas, Luis Borja, Severino Elefane, Vicente Tabien, Marcos Marquez, Victorino Merto, Bernabe Sison, Eusebio Cerrudo, Julian Acantilado, Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia, Rafael Nafrada, Zacarias Bayle, Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Graciano Zapata, Felisardo Favinal, Gaspar Andrade, Felix Lamsing, and Vicente Casimiro, to suffer imprisonment for ten years, and to pay one seventy-seventh part of the costs; the private Francisco Garcia, who sawed the bars of the window through which the defendants passed from Santa Lucia Barracks and each of the corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado, Hilario Hibalar and Genaro Elayda, to suffer imprisonment for ten years and to pay a fine of P5,000 and one seventy-seventy of the costs; and each of the sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, to suffer imprisonment for ten years and to pay a fine of P10,000 and one seventy-seventy of the costs. The trial judge appears to have made a reasonable exercise of the discretion which the law reposes in him. We cannot bring to a close this disagreeable duty without making our own the pertinent observations found in the decision of the trial court in this case. Therein, along toward the closed of his learned opinion, Judge Harvey said: Rarely in the history of criminality in this country has there been registered a crime so villainous as that committed by these defendants. The court is only concerned in this case with crime of sedition. The maximum penalty prescribed by Act No. 292, imprisonment for ten year and a fine P10,000, is not really commensurate with the enormity of the offense. Impelled by hatred, employing their knowledge of military sciences which is worthy of a better cause, and in disregard of the consequences to themselves and their innocent loved ones, and using the means furnished to them by the Government for the protection of life and property, they sought by force and violence and outside of legal methods to avenge a fancied wrong by an armed and tumultuous attack upon officials and agents of the government of the city of Manila. Although in view of the sentence which is being handed down in the murder case, affecting these same defendants and appellants, it would seem to be a useless formality to impose penalties in this case, yet it is obviously our duty to render judgement appealed from, with one seventy-seventh of the costs of this instance against each appellant. So ordered.