Evidence2008.2ndset

 Paraffin Test • People vs de Guzman 250 SCRA 118  Polygraph Test • People vs Adoviso 309 SCRA 1  Res Ipsa Loquitor • Batiquin vs CA 258 SCRA 334  Human Behavioral Response • People vs Plazo 350 SCRA 433 • People vs Lilo 396 SCRA 624 • People vs Bates 400 SCRA 95  Falsus in Uno, Falsus in Omnibus • People vs Ducay 225 SCRA 1

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 116730 November 16, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO DE GUZMAN, accused-appellant.

Dr. Cristito Garcia, Rural Health Physician of Sta. Barbara, Pangasinan, autopsied the victim's body. His examination revealed that some of the stab wounds penetrated the victim's vital organs, particularly the heart and the right lung. The gunshot wound and the stab wounds were considered fatal. 3 The Exhumation Report 4 prepared by Dr. Ronald Bandonill, Medico-Legal Officer of the National Bureau of Investigation (NBI) in Baguio City, showed a more detailed list of the injuries suffered by the victim, thus: 1. Hematoma, above the eyebrow; 2. Peri-orbital hematoma; 3. Hematoma, occipital area, right; 4. Contusion, shoulder, right;

PUNO, J.:

5. Gunshot wounds � Entrance:

Accused-appellant WILFREDO DE GUZMAN was convicted of the crime of MURDER by the Regional Trial Court of Dagupan City, Branch 43, 1 on the basis of circumstantial evidence. He pleads for his acquittal, the Solicitor General agrees and we find merit in the plea. We hold once more that the great goal of our criminal law and procedure is not to send people to the gaol but to do justice especially to the innocent.

0.7 cm. x 0.8 cm. behind the left external auditory meatus making an exit: 1.5 cms. behind the right external auditory meatus;

The information against accused-appellant reads:

2. 4.0 cms. irregular still on the chest

That on or about August 9, 1993 in the evening along the road of MalanayTuliao, municipality of Sta. Barbara, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a handgun, with intent to kill, treachery and evident premeditation, did, then and there wilfully, unlawfully and feloniously shoot DIOSDADO CAPURNO y SANTOS inflicting upon him gunshot wounds which caused his instant death, to the damage and prejudice of his heirs.

3. 4.0 cms. ovaloid, edges clean cut in the lumbar area.

CONTRARY to Article 248, Revised Penal Code.

11. Hemoperitoneum, Minimal;

When arraigned on February 8, 1994, accused-appellant pleaded not guilty. 2 He underwent trial.

12. Visceral organs are pale.

The facts show that in the evening of August 9, 1993, the lifeless body of DIOSDADO CAPURNO, a tricycle driver, was found lying along the road of Malanay-Tuliao in Sta. Barbara, Pangasinan. The victim sustained several stab wounds on his body and a single gunshot wound on the forehead.

6. Stab wounds 1. 2 in number, one on top of the other, area, of 6.0 cms. x 5.0 cms. on the chest;

7. Scalp hematoma; 8. Fracture, cranial fossa, right; 9. Intracranial Hemorrhage, massive, generalized; 10. Hemopericardium, Massive;

Dr. Garcia concluded that more than one (1) person attacked the victim. Dr. Bandonill shared the same opinion. 5 The prosecution presented JAYSON LOPEZ to prove its case against the appellant. He testified that, at about 9:00 p.m., of August 9, 1993, he was at the junction leading to Barangay Malanay when he spotted Diosdado Capurno's tricycle at the waiting shed. When the tricycle started towards

Malanay proper, he chased it and shouted at Diosdado to wait for him. The tricycle stopped 6 and he was about to aboard it when one of the passengers told him that they had already hired it. A passenger jeepney same from the opposite direction and its headlights illuminated the area. Lopez got a glimpse of Diosdado's three (3) passengers. They were Ismael Ico, Conrado de Vera, and another passenger whom Lopez did not know. 7 It was De Vera, the incumbent barangay captain of Malanay, who dissuaded him from riding the tricycle. Lopez was left without any option and he walked the road leading to Barangay Malanay. Soon, Diosdado's tricycle overtook Lopez but it stopped after negotiating a short distance. Thereafter, Lopez saw Diosdado run and shout for help. Two (2) men appeared from the right side of the road, blocked Diosdado's path, and mauled him. Lopez did not recognize the two (2) men due to darkness. For his own safety, Lopez hid himself from the assailants. Lopez then saw De Vera and Ico chase Diosdado. He heard two (2) gunshots but did not see the gun-wielder because of the commotion. Moments later, De Vera instructed his companions to check the surroundings. Ico looked at the back of the tricycle and found nobody. The five (5) assailants then headed towards Malanay proper, leaving the fallen Diosdado behind. Engulfed with fear, Lopez did not proceed to Malanay. Instead, he returned to the junction and boarded a bus bound for Dagupan City. 8 In the morning of August 29, 1993, Lopez claimed he happened to ride the tricycle of accused-appellant Wilfredo De Guzman. Along the way, an acquaintance of accused-appellant also boarded the tricycle. They struck a conversation. Lopez' co-passenger mentioned to accused-appellant the latter's rumored involvement in a case. Accused-appellant replied, "I do not know what to do." Lopez' co-passenger advised accused-appellant, "You can't do otherwise but tell the truth." A curtain of silence descended on accused-appellant. 9 The prosecutor also presented CHRISTOPHER CAPURNO, nephew of Diosdado. He recalled that on August 9, 1993, at around 7:00 p.m., his uncle's tricycle was hired by Arsenio Cabral. Arsenio, Christopher and his stepfather, Delfin Bolinas, were to attend the "Pamamahayag" at the Iglesia ni Kristo Chapel in Sta. Barbara. Diosdado was to wait for them at the junction of Barangay Malanay. When they returned to the said junction, Christopher saw accused-appellant with his tricycle parked beside Diosdado's tricycle. Accused-appellant was also waiting for passengers for his tricycle. 10

Christopher, Arsenio and Delfin boarded Diosdado's tricycle on their way home. When they were about to leave, barangay captain De Vera, who was then with Ico and an unidentified companion, told Diosdado to fetch them back. 11 Diosdado agreed and proceeded to bring his passengers to Malanay. That was the last time Christopher saw his uncle Diosdado alive. At around 9:00 p.m., while preparing to go to bed, Christopher heard two (2) gunshots. 12 The following day, at about 8:00 a.m., Christopher went to the residence of accused-appellant to look for his uncle Diosdado. Accused-appellant allegedly told him, "Your uncle was (sic) already in the morgue being swarmed with flies." 13 In his initial sworn statement, 14 dated August 11, 1993, Christopher tagged Barangay Captain De Vera as the last person who hired Diosdado's tricycle that fateful evening. The following day, he executed another statement and included the names of accused-appellant and Arsenio Cabral, among others, as probable culprits. 15 Christopher charged that Diosdado and accused-appellant were not in good terms. Allegedly, accused-appellant was grabbing ("sinusulot") Diosdado's passengers. He also revealed that accused-appellant has a .38 caliber gun which, at one time, he brandished to Diosdado, with the words: "I am confident to drive during night time because I have this (gun)." The prosecution also presented the nitrate report on accused-appellant. On August 11, 1993, barangay captain De Vera and accused-appellant were examined for the presence of nitrates. Chemistry Report No. C-93839, 16 dated August 31, 1993, revealed that accused-appellant's left hand was positive for nitrates. 17 De Vera's paraffin cast, on the other hand, yielded negative results. In a Decision, dated June 2, 1994, accused-appellant was found guilty of murder. He was sentenced to suffer the penalty of reclusion perpetua. He was further ordered to pay the victim's legal heir the following: P50,000.00 as indemnity, P30,000.00 as moral damages, P15,000.00 as actual damages, with costs. 18 Hence, the appeal. We required the Office of the Solicitor General to file the appellee's brief. In lieu thereof, it filed a Manifestation and Motion, recommending the acquittal of accused-appellant on reasonable doubt.

In the case at bar, the trial court cited several circumstances to justify the conviction of accused-appellant, thus: 1. A few hours before the killing, accused appellant was seen at the junction leading to Brgy. Malanay, Sta. Barbara, Pangasinan several meters away from the crime scene; 2. The day after the murder, accused-appellant sarcastically told Christopher Capurno: "Your uncle was (sic) already in the morgue being swarmed with flies."; 3. The victim and the accused-appellant were not in good terms because accused-appellant was taking some of the victim's passengers. Accusedappellant owns a .38 caliber gun, which he brandished to the victim boasting that he was confident to operate his tricycle at night because of his gun; 4. The August 29, 1993 conversation between accused-appellant and his acquaintance which was allegedly overheard by Lopez while Lopez was riding the tricycle of accused-appellant. 5. Several suspects, namely, Brgy. Captain Conrado De Vera, Ismael Ico, Roger Loresco, Teofilo Bernardino, Virgilio Santos, Arsenio Cabral, and Rupino Abon, were tested for the presence of nitrates. Only accusedappellant's paraffin cast yielded positive results for the presence nitrates. Patently, there is no direct evidence linking the accused-appellant to the killing of Diosdado Capurno. The present appeal thus hinges on the sufficiency of the circumstantial evidence presented against the accusedappellant. Circumstantial evidence is sufficient for conviction if:

where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty and is not sufficient to convict an accused. 20 Prescinding from these premises, we agree with the recommendation of the Solicitor General that the accused-appellant should be acquitted. The various circumstantial evidence relied upon by the trial court are too equivocal to justify his conviction. We hold that there was nothing unusual about the presence of accusedappellant at the junction leading to barangay Malanay a few hours before the murder of the victim. It was established that tricycle drivers who ply the Malanay-Tuliao route normally wait for their passengers in the said junction. The records do not show that accused-appellant displayed any kind of hostility while posted at said junction waiting for the customary passengers. His presence at the junction cannot lead to any inference that he killed the victim a couple of hours later. Similarly, we cannot convict accused-appellant on the basis of his August 29, 1993 conversation with an unidentified co-passenger of Lopez. The conversation allegedly went as follows: 21 (PROS. DUMLAO) Q: While you and that person beside you were riding in that tricycle being driven by Wilfredo de Guzman . . ., what happened next. . . .? (WITNESS)

(a) There is more than one circumstance;

A: The person who rode in the tricycle gave greeting to Wilfredo de Guzman, sir.

(b) The facts from which the inferences are derived are proven; and

Q: And what did Wilfredo de Guzman say, if he said anything?

(c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.

A: Wilfredo de Guzman said it's (sic) fine, sir.

No inflexible rule has been formulated as to the exact quantity of circumstantial evidence which will suffice for conviction. All that the case law requires is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilty. 19 In accord with the constitutional presumption of innocence, jurisprudence also holds that

Q: And then when Wilfredo de Guzman respondent (sic) "it is fine" . . . what happened next after that? A: Then the person told him, I heard news that you are also involved in a case, sir. xxx xxx xxx Q: And what was the response of Wilfredo de Guzman? A: He answered, I do not know what to do, sir.

xxx xxx xxx COURT: Q: After accused told, I do not know what to do, what happened next? A: The person told him, you can't do otherwise but to tell the truth, sir. xxx xxx xxx PROS. DUMLAO: Q: And what was the response of Wilfredo de Guzman? A: He was silent, sir. The alleged co-passenger of Lopez was not presented as a witness by the prosecution. By itself, the conversation is too loose to tie up accusedappellant to the killing of Capurno. Reference was made to a case where accused-appellant allegedly got involved. It is unclear whether it is a court case and whether it is civil or criminal in nature. The nature of his involvement was undefined. The tenor of the conversation does not establish a fact from which it can be rationally deduced that accusedappellant murdered Capurno. The prosecution tried to establish the motive of accused-appellant in killing Capurno but in vain. Allegedly, accused-appellant had been grabbing the tricycle passenger of Capurno. If this were so, it should be Capurno who should entertain a grudge against accused-appellant. Christopher Capurno's logic is topsy-turvy and nobody corroborated the alleged enmity between the accused-appellant and Diosdado Capurno. The records show that Christopher Capurno named other suspects who allegedly had an axe to grind against the victim. At least two (2) of them, Ico and De Vera, were positively identified by Lopez as having chased the victim that fateful night. And yet, they were not immediately included in the murder charge. 22 Likewise we cannot infer the guilt of the accused-appellant from the uncorroborated testimony of Christopher that accused-appellant has a .38 caliber gun which he brandished to the victim on one occasion. From this fact, however, we cannot jump to the conclusion that the alleged .38 caliber gun of accused-appellant is the murder weapon or that it was accused-appellant who fired it to kill Capurno. The evidence does not show the specific type of gun used in the killing of Capurno. Nor the bullets. All that the NBI Medico-Legal Officer, Dr. Bandonill, stated was that the

gunshot wound of the victim could have been caused by a .32 or a .38 caliber bullet. 23 Finally, we come to the result of the paraffin test of accused-appellant which revealed the presence of nitrates on his left hand. In a recent case, 24 we reiterated the rule that paraffin test is in conclusive. We held: "Scientific experts concur in the view that the paraffin test has '. . . proved extremely unreliable in use.' The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalta. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder. 25 In the case at bar, we note, too, that accusedappellant's left hand alone is positive of nitrates. His right hand has no trace of nitrate. Did he use his left hand in shooting the victim? Is he left handed? The evidence of the prosecution does not provide the answer. Accused-appellant's defense of alibi may be weak as all defenses rooted on alibi are weak. However, the prosecution evidence is weaker. It failed to pass the test of moral certainty. It cannot convict. IN VIEW WHEREOF, the impugned decision of the Regional Trial Court of Dagupan City (Branch 43), in Criminal Case No. 12248, is REVERSED and SET ASIDE, and accused-appellant WILFREDO DE GUZMAN is hereby ACQUITTED of the crime charged due to reasonable doubt. His immediate release from confinement is hereby ordered, unless there is any other lawful cause for his continued detention. Costs de oficio. SO ORDERED. The Lawphil Project - Arellano Law Foundation

SYLLABI/SYPNOSIS FIRST DIVISION [G.R. Nos. 116196-97. June 23, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant. DECISION KAPUNAN, J.: Pablo Adoviso appeals from the Joint Judgment of the Regional Trial Court of Camarines Sur declaring him guilty beyond reasonable doubt for two counts of Murder. Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged with four unidentified persons who have, however, remained at large. The information charging appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges: That on or about the 18th day of February 1990 at about 8:00 o’clock [sic] in the evening at Sitio Tan-agan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with assorted long firearms, conspiring, confederating and mutually helping one another, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one Rufino Agunos several times with said firearms hitting the latter on the different parts of his body which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Rufino Agunos. That the crime complained of against the accused is not service connected. ACTS CONTRARY TO LAW. Except for the name of the victim, the information in Criminal Case No. P2080 with respect to the killing of Emeterio Vasquez, contains the same allegations. Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P-2080, the prosecution presented their version of the events that transpired on the evening of February18, 1990, as follows:

The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses preferred to live there because it was cooler. The living area of the camalig had walls of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the Vasquez’ grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever he tended the irrigation pump. The spouses’ son Bonifacio occupied the other house eight (8) meters from the camalig with his own son Elmer. At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, “Why should you not be hit when in fact there are guns in front of you.” Anastacia saw the “protruding edge of the gun” on the wall near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her husband. The Vasquez’ son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that Rufino had fallen asleep, the latter’s back against the bamboo wall. Bonifacio left Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone up when Bonifacio heard the gunshots. He and his 16-year-old son Elmer immediately went down the front yard to investigate. Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through the bamboo slats of the camalig wall, Bonifacio recognized one of the assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufino’s assailants, only appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its

muzzle protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout “Pino,” (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach. For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of them were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl under the papag. Elmer’s grandfather was also hit on the stomach but he managed to go up the camalig. When appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at the ditch, escaped to the banana plantation. Elmer, on the other hand, fled towards the coconut plantation.

the paraumbilical area, the hypogastrium, the right forearm and the left arm. Appellant Adoviso interposed alibi and denial as his defense. Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m. Honoria Tragante and Francisco Bislombre corroborated appellant’s alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan.

Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmer’s hand and put it on his back. Elmer then moved Rufino “sidewise.” Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with diapers.

To support his denial, appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification prepared by Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated “by unidentified armed men.” Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were then still conscious. The victims told him that they did not know who shot them or why they were shot.

In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the next morning.

SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) “vividly saw the incident and recognized” appellant as one of the perpetrators of the crime and that the killings had some something to do with land dispute between Bonifacio’s parents and the Galicia family.

The certification dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had contusion collars – at

The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No. 900175, Lucena opined that appellant’s “polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevant” to the investigation of the crimes. In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant as one of the culprits because he was afraid of appellant who was a member of the CAFGU.

Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he told them that he did not recognize appellant’s four (4) companions. He did not mention to Lopez and Canabe appellant’s identity because he was “confused” about what had happened in their house. On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080 as follows: WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered: In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4) children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency; In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both instances. SO ORDERED. Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an “incredible” story because it is “highly improbable” that they could have “distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes." According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's

grandfather was “a small can about two (2) inches tall and the wick is smaller than a cigarette” and the lamp inside the camalig “was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise.” Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. In this case, not one (1) but two (2) gas lamps illuminated the place – the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellant’s contention therefore that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and appellant’s counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer testified: ATTY. CORTES: Q Is it not that the lamp you said placed along the door, which is already marked as lamp, is that not this lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not cause it to fall? A It was placed just on the floor not inside the can.” (Underlining supplied.) For her part, Anastacia testified as follows: ATTY. CORTES: xxx. Q Because you were already about to retire, the doors and windows were already closed, is that correct? A

Yes, sir.

Q

That you also shut down or closed the light, is that correct?

A

No, sir, we even placed the kerosene lamp inside a can.

Q You said, you placed the lamp inside a can so that the light is going up, is that correct?

appellant’s face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity.

A

Appellant’s allegation that it was “improbable” for him to have committed the crimes without a mask, unlike the other participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime before the very eyes of people who are familiar to them. Indeed, some may even take pride in their identification as the perpetrator of a criminal act.

Yes, sir.

Q So, the light was not illuminating sidewise because it was inside a can? A

When we left, I got the kerosene lamp and brought it with me.

ATTY. CORTES: I think, the witness did not get the question right, Your Honor. COURT: Repeat the question. ATTY. CORTES: Q

My question Madam Witness is, when you were about to retire?

A The lamp was placed on the floor where my husband was drinking coffee. COURT: Q Who are the persons you are referring to as having left when you placed the light inside the can? A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino to the hospital. (underlining supplied). Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident when Anastacia left with her son and the police to bring the victims to the hospital. The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in which the crime is committed. A relative will naturally be interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s). It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years while Elmer had been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks. Familiarity with

Appellant also considers as a “positive sign,” Bonifacio’s failure to immediately identify him as the perpetrator of the crime to the police. The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness. The general or common rule is that witnesses react to a crime in different ways. There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react. There is no merit in appellant’s contention that Bonifacio had a motive in implicating him. According to appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as to credible witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino Agunos. Appellant’s alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes. For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission.26 Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours even without

any means of transportation. On the other hand, his alleged companion in Sitio Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by “trimobile” or private vehicle. Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his companions at the time the crimes were committed. We quote the observation of the trial court on this point: On the premise that the trial court rendered the judgment of conviction on the basis of “mere conjectures and speculations,” appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee’s conscious attempt to deceive the questioner. The theory behind a polygraph or lie detector test is that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. The rule is no different in this jurisdiction. Thus, in People v. Daniel, stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killings to murder. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning. The victims in this case were totally unaware of an impending assault – Rufino was sleeping and Emeterio was going down the stairs when they were shot.

WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED. SO ORDERED.

THIRD DIVISION [G.R. No. 118231. July 5, 1996] DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents. DECISION DAVIDE, JR., J.: Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." Subsequently, Hippocrates wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous . . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. The petitioners appeal from the decision of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492. The facts, as found by the trial court, are as follows: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989.

Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple cesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on the same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee" . . . . Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines . . . which she had been taking up to December, 1988. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988 . . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental. The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and despite the medications administered by Dr. Batiquin. When the pains become unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989. The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest,

abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The result of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitishyellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like” . . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was not presented in court, and although Dr. Ma. Salud Kho testified that she sent it to a pathologist in Cebu City for examination, it was not mentioned in the pathologist's Surgical Pathology Report. Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, a Progress Record, an Anesthesia Record, a Nurse's Record, and a Physician's Discharge Summary. The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated . . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto . . . ." The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, as could be gleaned from her statement, thus: A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." This statement,

the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude: There are now two different versions on the whereabouts of that offending "rubber" — (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. All told, the trial court held in favor of the petitioners herein. The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas' uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding: 4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the cesarean operation made by appellee doctor . . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellants testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the same . . . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area. The appellate court then ruled: Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life. For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee cause infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear, worry and anxiety . . . . WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the cost of litigation. SO ORDERED. From the above judgment, the petitioners appealed to this Court claiming that the appellate court; (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities. The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony: Q

What is the purpose of the examination?

A Just in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but

unluckily I don't know where the rubber was. It was not in the Lab, it was not in Cebu. (Italics supplied) The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony, especially the following: Q

So you did actually conduct the operation on her?

A

Yes, I did.

Q

And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out . . . to have pus. And then, cleaning up the uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece of] rubber on the right side. We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas' abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court: Q

But you are sure you have seen [the piece of rubber]?

A

Oh yes. I was not the only one who saw it.

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible but it carries no probative value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas' uterus. And

even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas' abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. It is here worth nothing that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness: This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private

respondent Villegas' abdomen] prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx

xxx

xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The

doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, and State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill." Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in the general, and members of the medical profession, in particular. WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED.

SECOND DIVISION [G.R. No. 120547. January 29, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON PLAZO, accused-appellant. DECISION QUISUMBING, J.: On appeal is the decision dated January 16, 1995 of the Regional Trial Court of San Jose, Camarines Sur, Branch 30, convicting appellant of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and to pay the heirs of the victim P50,000.00 as indemnity, P15,712.00 as actual damages, P10,000.00 as moral damages, and to pay the costs. The facts, based on the records, are as follows: On August 8, 1989, at around 4:00 in the afternoon, Leonor Fabula went out of her house in May-anao, Tigaon, Camarines Sur to buy sugar at a nearby store. When she reached the store, she saw appellant boxing her son Romeo Fabula and banging his head on the post of the store, while asking him why he told the police about his brother and the location of appellant’s house. When Leonor sought to intervene, appellant got angry at her. She became afraid and asked for help but nobody went near them. Romeo freed himself from the hold of appellant and ran away. Appellant chased Romeo with a small bolo known locally as “gatab.” Leonor shouted at appellant to stop but the latter did not heed her pleas. Appellant caught up with Romeo and stabbed him at the back causing Romeo to fall on the ground. Appellant continued to stab Romeo in the upper and lower chest area. Leonor continued shouting for help and eventually someone came to help. However, when she saw her son no longer moving, she told the people not to touch or move him because she was going to the Poblacion of Tigaon to get a policeman. When Patrolmen Virgilio Azucena and Jose Madera arrived at the scene of the crime, they saw the fallen body of Romeo with a small bolo imbedded on his chest and the detached handle of the bolo on the ground near his body. The policemen brought the body to the Municipal Building where the Municipal Health Officer, Dr. Constancio Tam, conducted an autopsy.

On June 10, 1991, appellant was charged with the crime of murder under the following Information: “That on or about the 8th day of August, 1989 at Barangay May-Anao, Municipality of Tigaon, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloneously (sic) attack, assault and stab one Romeo Fabula directing the blow on the vital parts of his body which was the direct and immediate cause of his death, to the damage and prejudice of his heirs in such amount as maybe awarded by the Court. Acts Contrary To Law.” On arraignment appellant, assisted by counsel de oficio, pleaded not guilty. During trial, the prosecution presented the following witnesses: (1) Leonor Fabula, the mother of the victim; (2) SPO1 Jose Madera and SPO4 Virgilio Azucena, both members of the Philippine National Police (PNP) of Tigaon, Camarines Sur, and (4) Dr. Constancio A. Tam, Municipal Health Officer of Tigaon, Camarines Sur. Leonor Fabula testified that she witnessed the stabbing incident and identified appellant as the assailant of her son. She said that the police were looking for appellant’s brother who had a pending case for robbery in Manila. The police asked her son where the house of appellant’s brother was. Her son, who knew nothing of the case, pointed out the house to the police leading to the arrest of appellant’s brother. This angered appellant who sought out and killed her son. She also testified on damages sustained as a result of her son’s death. SPO1 Jose Madera testified that he was present during the autopsy and that Dr. Tam turned over to him the bolo which was imbedded in the body of the victim. He identified the same bolo in court. SPO4 Virgilio Azucena testified that upon the report of Leonor Fabula of the stabbing incident, he and four others immediately went to the place of the incident in May-anao, Tigaon. They found the body of the victim in the ricefield some 50 meters away from the road. The bolo was embedded in the victim’s chest and the handle lying beside him.

Dr. Constancio A. Tam testified that the victim sustained four stab wounds in the left upper abdomen, right eliac part of the abdomen, upper part of the left chest, and upper part of the left back. The weapon was still embedded in the upper left abdomen when he examined the body. Dr. Tam testified that this wound was fatal since it pierced the heart. He said that the stab wounds could have been caused by a sharp-bladed, sharp-pointed instrument, locally known as “gatab”. The defense presented as its witnesses the appellant himself and his cousin, Alfredo Siso. Appellant’s version is as follows: In the afternoon of August 8, 1989, appellant was at a billiard hall in Mayanao, Tigaon, serving as a spotter in a game between Celso Plazo and Alfredo Siso. The victim suddenly arrived drunk, placed a ball on top of the table, and said that he wanted to put a bet against Alfredo Siso. Insulted, Alfredo told appellant to pacify the victim. However, the victim became angry and struck appellant with a billiard stick. Alfredo and Celso helped pacify the victim who became even angrier, and then drew a bladed weapon saying he would use it on appellant. Appellant ran away followed by the victim. Appellant slipped and injured his foot and the victim caught up with him. The two grappled with the small bolo and suddenly, the bolo was already imbedded in the chest of the victim. Appellant fled and eventually went to Manila because of the threats of relatives of the victim. Appellant’s cousin, Alfredo, merely testified that after the two protagonists ran away, he already went home. After trial, the trial court rendered its decision finding appellant guilty of the crime of murder, disposing thus – “WHEREFORE, the accused Edison Plazo is hereby sentenced to suffer the penalty of reclusion perpetua with the inherent accessories provided by law, to indemnify the heirs of the late Romeo Fabula for the latter’s death the sum of Fifty Thousand Pesos (P50,000.00); the sum of Fifteen Thousand Seven Hundred Twelve Pesos (P15,712.00) as actual damages; and the sum of Ten Thousand Pesos (P10,000.00) as moral damages, all of Philippine Currency and for the said accused to pay the costs. The accused Edison Plazo shall be entitled to full credit of his preventive imprisonment if he agreed to abide with the rules imposed upon convicted persons, otherwise, he shall only be entitled to four-fifth (4/5) credit thereof. SO ORDERED.”

Appellant assigns the sole error that THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. In his brief, appellant assails the credibility of the testimony of Leonor Fabula, the victim’s mother, considering that (1) contrary to her testimony, the medical findings did not indicate that the victim was boxed nor his head banged on the store post; (2) her testimony that her son was stabbed dead on a ditch did not jibe with the testimony of SPO4 Azucena that the body of the victim was recovered from the ricefield; and (3) her actions after seeing her son dead and getting a policeman instead of comforting him was contrary to normal human conduct. Further, appellant claims that his testimony that he acted in self-defense was corroborated by the testimony of his cousin, Alfredo Siso. Lastly, appellant claims there was no treachery because there was no proof as to how the attack began. For the State, the Office of the Solicitor General (OSG) contends that appellant failed to establish the elements of self-defense considering the number and location of the wounds of the deceased. Further, the testimony of defense witness Alfredo Siso should not be given credence because he did not actually witness the stabbing incident. The OSG asserts that treachery attended the killing because appellant unleashed two separate attacks on the victim, the first consisted only of fist blows, and the second consisted of the stabbing. The issues for our consideration pertain to (1) the assessment of credibility of witnesses, (2) the existence of valid self-defense, and (3) the sufficiency of the evidence to convict appellant of the crime of murder. Well-entrenched is the rule that findings of the trial court as to the credibility of witnesses are accorded great weight, even finality, on appeal, unless the trial court has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case. Having had the opportunity to personally observe the witnessess’ demeanor and manner of testifying, the trial judge is in a better position to pass judgment on their credibility. As observed by the trial court, “Leonor Fabula testified in a straightforward, spontaneous and frank manner.” A review of the records and transcript of stenographic notes leads us to agree with that conclusion. As to the alleged inconsistencies in Fabula’s testimony, the fact that the medical findings did not indicate that the victim was boxed nor his head

banged does not negate the possibility of such acts. The defense failed to question the medico-legal officer on the stand and it cannot now raise such factual matter before this court. As to the location of the body of the victim, while Leonor Fabula testified that her son was stabbed “just by the ditch of the road of May-anao,” SPO4 Azucena testified that they found the body “in the ricefield.” The records show, however, that on crossexamination, SPO4 Azucena clarified that they found the body on the “embankment of the rice-field (bas-og).” Hence, there is no inconsistency between their testimonies on the matter. The testimony of witnesses to a crime could not be expected to be errorfree throughout. Different persons have different impressions and recollections of the same incident. Likewise, we find nothing extraordinary or unusual about a mother seeking help from the authorities first before rushing to help her son. As repeatedly stressed, there is no standard form of human behavioral response when one is confronted with a strange, startling, or frightful experience. Witnessing a crime is an unusual experience that elicits different reactions from the witnesses, and for which no clear-cut standard form of behavior can be drawn. Further, while it was only the mother of the victim who testified on the events leading to the stabbing incident, we have held that the testimony of a single eyewitness is sufficient to support conviction so long as it is clear, straightforward, and found worthy of credence by the trial court. The mere fact that she is the mother of the victim does not impair her credibility. Blood relationship between a witness and victim does not, by itself, impair the credibility of the witness. On the contrary, relationship strengthens credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence and blame one who is innocent of the crime. More importantly, Leonor Fabula’s version of the stabbing incident, that appellant repeatedly stabbed her son in the “upper and lower chest area,” is duly supported by the findings of the medico-legal officer that the victim sustained four stab wounds in the chest and abdomen area. As to appellant’s claim of self-defense, there is no evidence to support such assertion. Self-defense as a justifying circumstance must satisfy the following requirements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to repel the aggression; and (3) lack of sufficient provocation on the part of the accused. The

burden of proving by clear and convincing evidence that the killing was justified is on the accused. In doing so, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution. Appellant herein failed to prove any of the elements of self-defense. As correctly pointed out by the trial court, the number of wounds on the body of the victim negates self-defense. If indeed, the victim was stabbed while the two protagonists were grappling with the small bolo, then why did the victim sustain four stab wounds? The nature, location and number of wounds inflicted on the victim negate the claim of self-defenseand, instead, indicate a determined effort to kill the victim. Further, the flight of the appellant after the incident betrays the existence of his guilty conscience. According to his testimony, he went to Manila because his relatives and residents of their barangay advised him to take care of himself because the relatives of the victim were running after him. Appellant himself admitted that he hid “for several years.” This conduct is inconsistent with his protestations of self-defense. While the information alleged the attendance of the qualifying circumstances of treachery and evident premeditation, these were not proven by the prosecution’s evidence. Circumstances which qualify criminal responsibility must in no case rest upon mere presumptions, no matter how reasonable or probable, but must be based on facts of unquestioned existence. It is settled that circumstances which qualify killing to murder must be proved as indubitably as the crime itself. There was no treachery because there was no proof in this case as to how the attack started. For treachery to be present, two conditions must be shown: (1) the employment of means of execution that give the person attacked no opportunity to defend or retaliate and (2) the deliberate or conscious adoption of the means of execution. Treachery cannot be presumed; it must be proven as fully and as convincingly as the crime itself. The sole eyewitness testified that when she arrived at the scene, appellant was already boxing her son. Hence, she could not have possibly witnessed the inception of the attack. Any doubt as to the existence of treachery must be resolved in favor of the accused. Where no particulars are known regarding the manner in which the aggression was made or how the act which resulted in the death of the victim began and developed, it cannot be established from mere supposition that an accused perpetrated the killing with treachery.

Likewise, the prosecution failed to prove the following requisites of evident premeditation: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. Hence, in the absence of any circumstance which would qualify the crime to murder, we find that appellant should be found liable only for the crime of homicide. Under Article 249 of the Revised Penal Code, the penalty for the crime of homicide is reclusion temporal. There being no mitigating nor aggravating circumstance, the penalty of reclusion temporal should be imposed in its medium period. Applying the indeterminate sentence law, the minimum of the indeterminate sentence should be taken from the penalty next lower in degree, which is prision mayor. The trial court correctly awarded the amount of P50,000.00 as indemnity. However, the award of actual damages in the amount of P15,712.00 was based solely on the bare assertions of the mother of the victim. The Court can only grant such amount for expenses if they are supported by receipts. In the absence thereof, no actual damages can be awarded. However, in lieu of actual damages, temperate damages under Art. 2224 of the Civil Code may be recovered where it has been shown that the victim’s family suffered some pecuniary loss but the amount thereof cannot be proved with certainty. We find the award of P15,000.00 as temperate damages reasonable. Moral damages cannot be awarded in the absence of any evidence to support its award. WHEREFORE, the decision of the Regional Trial Court of San Jose, Camarines Sur, Branch 30, in Criminal Case No. T-1009, is hereby MODIFIED. Appellant Edison Plazo is found guilty of the crime of homicide, and sentenced to a minimum of eight (8) years, eight (8) months, and one (1) day of prision mayor medium as minimum, to fifteen (15) years, six (6) months, and twenty (20) days of reclusion temporal medium as maximum, and to pay the heirs of the victim the amount of P50,000.00 as indemnity and P15,000.00 as temperate damages, and the costs. SO ORDERED.

CRIMINAL CASE NO. 49825

DECISION

That on or about July 24, 1998, in the Municipality of Calinog, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with deliberate intent, by means of force and intimidation and with abuse of confidence and trust, did then and there willfully, unlawfully and feloniously have carnal knowledge of his daughter CAROL LILO, against her will and/or consent.

PER CURIAM:

CRIMINAL CASE NO. 49826

For automatic review is the decision rendered by Branch 25 of the Regional Trial Court (RTC) of Iloilo City finding accused-appellant Carlos Lilo guilty of incestuous rape on four counts and sentencing him to suffer the penalty of death on one count and reclusion perpetua on three.

That on or about May 19, 1998, in the Municipality of Calinog, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with deliberate intent, by means of force and intimidation and with abuse of confidence and trust, did then and there willfully, unlawfully and feloniously have carnal knowledge of his daughter CAROL LILO, against her will and/or consent.

EN BANC [G. R. Nos. 140736-39. February 4, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS LILO, accusedappellant.

By the account of private complainant, Carol Lilo, the only child of accused-appellant, she was raped numerous times by him but could recall only four occasions, those subject of the criminal complaint docketed as Criminal Case No. 49823 and three separate informations docketed as Criminal Case Nos. 49824, 49825 and 49826 filed on September 3, 1998 at the RTC of Iloilo City, for acts allegedly committed in October 1995, May 24, 1998, July 24, 1998, and May 19, 1998, respectively, as follows: CRIMINAL CASE NO. 49823 That in October 1995, in the Municipality of Calinog, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a bolo, with deliberate intent, by means of force and intimidation and with abuse of confidence and trust, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant CAROL LILO, his daughter, who was then seventeen (17) years old, against her will and/or consent. CRIMINAL CASE NO. 49824 That on or about May 24, 1998, in the Municipality of Calinog, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with deliberate intent, by means of force and intimidation and with abuse of confidence and trust, did then and there willfully, unlawfully and feloniously have carnal knowledge of his daughter CAROL LILO, against her will and/or consent.

Recalling the rape which occurred on a day in October 1995 subject of Criminal Case No. 49823, Carol declared as follows: After accused-appellant left for his farm in Barangay Impalidan, Calinog, Iloilo, a kilometer away from his house, she followed him, bringing him food. After accused-appellant had eaten at around 10:30 a.m., he summoned her. As she obliged, he held her, pointed a bolo at her and told her not to make any noise. She was thus prompted to ask him what he intended to do, he being her father, to which he replied: “You are my daughter and I was the one who caused you to be born. I was the one feeding you, clothing you. Afterwards others will make use of you? I will do it first.” Accused-appellant thereupon dragged her toward the sugarcane field some thirty meters from the farm and upon reaching it, he hugged her thighs and laid her on the ground. She resisted and fought back, but he punched her, and she proved no match for him. Accused-appellant then removed her panty, raised her shirt, felt her whole body and kissed her lips and breasts. Thereafter, he undressed himself, laid flat on her, and forced his penis into her vagina where it stayed for one (1) minute, he “mov[ing] his buttocks up and down,” drawing her to cry. When he was through, accused-appellant cautioned her not to tell

anybody what happened, otherwise he would kill her, her mother, and her grandmother. A certification from the Office of the Local Civil Registrar of Calinog, Iloilo shows that Carol was only 17 years and 4 months old at the time of the incident. With respect to the May 19, 1998 incident subject of Criminal Case No. 49826, Carol related that while she was at home sleeping, accusedappellant woke her up, pointed a bolo at her and threatened her not to make any noise. While holding the bolo in one hand, accused-appellant undressed her, touched her body, kissed her on the lips and breasts, and “did to [her what] he did to [her] in the past. The sexual act was repeated in the same manner, so Carol claimed, on May 24, 1998 when at around midnight while she was at home, accusedappellant did to her the, “same thing he had done to [her] before. Finally, on the July 24, 1998 incident, Carol declared that as she lay asleep at 10:30 p.m., after a long night at a school function, accusedappellant woke her up, pointed a bolo at her and threatened her not to make any noise. He then “undressed [her] and d[id] what he [had] done to [her] again.” When asked why she never reported the incidents to her mother, Carol responded that her mother seldom went home on account of her work in “town” and that she was under constant threat from accused-appellant not to disclose the incidents to anyone. In August 1998, following her attendance in a symposium on abuses committed against children and women held at the Calinog Agricultural and Industrial College where she was enrolled, Carol, then already 20, revealed to her friend Joy Lyn Casalan about accused-appellant’s molestations on her. Accompanied by Joy, she, on August 12, 1998, reported to the local police station the multiple rapes committed against her, and on the instruction of the police, she on even date submitted herself to medical examination which showed that she had 3 healed lacerations in the hymen located at 4, 6 and 8 o’clock positions. Accused-appellant denied the accusations against him.

The trial court, however, discredited accused-appellant’s denial and found him guilty of four counts of rape in the decision on review, the dispositive portion of which reads: WHEREFORE, premises considered, the court, finding the accused, Carlos Lilo, guilty of four (4) counts of rape beyond reasonable doubt, imposes upon him the following penalties: In each of the cases docketed as Crim. Cases Nos. 49824, 49825 and 49826, the penalty of reclusion perpetua with the accessory penalties as provided in Article 42 of the Revised Penal Code; In Crim. Case No. 49823 the penalty of death with such accessory penalties as provided in Article 40 of the Revised Penal Code; and To pay private complainant P50,000.00 as moral damages as well as pay the cost. Before this Court, accused-appellant disputes the finding that he is guilty beyond reasonable doubt, and assails the reliance by the trial court on the testimony of Carol who was merely motivated, so he claims, by resentment in filing the complaint due to the fact that he often maltreated her. Accused-appellant’s submission does not persuade. This Court finds his claim to be a mere afterthought for, during the trial, when asked if he knew of any motive why Carol filed the cases against him, he replied in the negative. Further, this Court has consistently echoed its ruling that parental punishment would not suffice to egg one to falsely charge one’s father with rape. Accused-appellant goes on to harp on Carol’s inability to recall the exact date when the incident in October 1995 was allegedly committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit the credibility of the victim as a witness. Accused-appellant goes further to posit that rape could not have been committed in October 1995 in broad daylight, particularly in a farm where there were other people who were supposed to be at work. Judicial notice, however, is taken of the fact, and it can be considered of public knowledge, that the scene of rape is not always or necessarily isolated or secluded, as it can be committed even in places where people congregate,

in parks along the roadside, in school premises, in a house where there are other occupants, in the same room where other members of the family are also sleeping, and even in places which to many would appear unlikely and high-risk venues for its commission.

A-

Finally, accused-appellant focuses on Carol’s behavior after the alleged rape incidents as running counter to human nature. He cites Carol’s casually leaving the place where she claims to have been molested in October 1995 and continuing to work in the farm with him as if nothing happened. The behavior or reaction of every person to a certain event cannot, however, be predicted with accuracy, and may be dealt with in any way by the victim whose testimony may be given full credence so long as her credibility is not tainted by any modicum of doubt.

Q- Were you still sleeping when your father raped you?

The undoubted credibility of the witness in Carol and of her testimony notwithstanding, this Court finds that the prosecution has proven only one (1) count of rape, that committed in October 1995. The following testimony of Carol instructs so:

A-

Q- And for how long did your father have sexual intercourse with you? A-

For almost three (3) minutes.

Because I know him your honor.

Q- But you said you were asleep already? AA-

Yes, your honor. He would wake me up.

Q- Were you already raped or your father was in the act of raping you when he awaken you? A-

Before, your honor.

Q- So, before he raped you he awaken you? Yes, your honor.

xxx Q- And what happened when you woke up? A- He was pointing his bolo at me and after he had awakened me he would threaten me not to make any noice and all what he did to me he did it to me like in the past.

Q- And after that what happened?

xxx

AAfter putting my clothes again he was frightening me not to tell anybody.

Q- What actually did your father do?

Q- Was your father able to put his sex organ into yours?

APointing a bolo at me, he would undress me, removed my panty and then my blouse and touch my whole body, kiss my lips and then my breast, your honor.

A-

xxx

COURT: Yes, your honor. (Emphasis supplied).

With respect to the alleged incident of May 19, 1998, the following tale of Carol, quoted verbatim, does not establish the commission of rape.

Q- On May 19, 1998, how long did your father consummate the act of raping you?

PROS. GEDUSPAN

A-

Q- Now, you said your father sexually mollested you again after October 1995. When was that?

The bare allegation of Carol that she was raped in the same manner as in previous incidents without giving any detail on how the act was committed is inadequate to establish to a degree of moral certainty the guilt thereof of accused-appellant. It bears emphasis that every charge of rape is a distinct and separate crime and each must be proved beyond reasonable doubt.

A-

On May 19, 1998.

COURT: xxx Q- And what made you say that it was your father who raped you?

About three (3) minutes your honor. (Emphasis supplied).

With respect then to the incident of May 19, 1998, in the absence of any evidence showing that, aside from accused-appellant’s undressing and

touching the delicate parts of Carol’s body, he had carnal knowledge with her, the crime committed is merely acts of lasciviousness under Article 336 of the Revised Penal Code which reads: ART. 336. Acts of lasciviousness - Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. As in the May 19, 1998 incident, Carol’s following testimony regarding the July 24, 1998 incident, quoted verbatim, does not establish the commission of rape: Q- After May 19, 1998, were you raped again? A-

Yes, your honor.

As reflected in the above-quoted portion of Carol’s testimony, aside from undressing private complainant, there is no showing that accusedappellant had sexual intercourse with her. Nor is there any showing of lewd designs for the acts to be considered as lascivious. The testimony, however, shows that accused-appellant, by means of threats, successfully undressed Carol against her will, facts that constitute the elements of grave coercion as defined in Article 286 of the Revised Penal Code. The elements of grave coercion were not, however, sufficiently alleged in the information under Criminal Case No. 49825 and, in view of the right of an accused to be informed of the nature and cause of the accusation against him, accused-appellant may not be convicted of grave coercion. Lastly, with respect to the rape allegedly committed on May 24, 1998 subject of Criminal Case No. 49824, Carol had this to say:

Q- What date was that?

PROS. GEDUSPAN

A-

Q- So aside from May 19, 1998 you were also raped on May 24, 1998?

July 1998.

Q- What date in July 1998?

A-

A-

Q- When was that committed?

July 24, 1998, your honor.

Yes, your honor.

Q- Where did it happen?

A-

A-

Q- What time?

At home.

At home, your honor.

xxx

A-

Q- So, you were there in your house when you were raped by your father on July 24, 1998?

Q- And what did he do to you?

A-

Yes, your honor.

xxx Q- And what actually happened? A- At about 10:30 while I was asleep I was awakened and when I woke up he was pointing a knife at me and he told me do not make any noise and something bad will happen to you. And he again undresses me and do what he done to me again. Q- And what happened after that? AAfter he had raped me I went back to sleep again. (Emphasis supplied)

In the midnight, your honor.

AThe same thing he had done to me before, your honor. (Emphasis supplied) As earlier mentioned, every charge of rape is a distinct and separate crime and each must be proved beyond reasonable doubt. Since the prosecution has failed to prove that any crime was committed on May 24, 1998, accused-appellant’s acquittal in Criminal Case No. 49824 is in order. Having found that accused-appellant committed rape in Criminal Case No. 49823, and acts of lasciviousness in Criminal Case No. 49826, a determination of the penalties therefor is in order. With respect to Criminal Case No. 49823, the May 27, 1997 Certification of the Calinog, Iloilo Civil Registrar which therein quotes entries on the “facts of birth appear[ing] in our Registry of Birth” shows that Carol was born on June 1, 1978 to Carlos Lilo (accused-appellant) and Rosa Paloma.

Unquestionably then, Carol is the daughter of accused-appellant, and was under eighteen years of age at the time of the commission of the rape in October 1995. Since the crime was committed in October 1995, Article 335 of the Revised Penal Code, as amended by Republic Act 7659 (effective December 31, 1993), thus applies. It provides: Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following, attendant circumstances:

P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. In Criminal Case No. 49826, accused-appellant is found GUILTY beyond reasonable doubt of ACTS OF LASCIVIOUSNESS and is hereby sentenced to suffer the indeterminate penalty of Six (6) Months of Arresto Mayor as minimum, to Six (6) Years of Prision Correccional as maximum, and to pay private complainant the amount of P30,000.00 as moral damages, plus costs of suit. Accused-appellant is ACQUITTED of the charges in Criminal Case Nos. 49824 and 49825. Costs de officio.

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. 7659, upon finality of this Decision, let the records of these cases be forwarded to the Office of the President for possible exercise of executive clemency.

x x x (Emphasis supplied.)

SO ORDERED.

Hence, accused-appellant must be penalized with death. Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. With respect to Criminal Case No. 49826, relationship aggravated the commission of the acts of lasciviousness. As held in People v. Caiñgat, under Article 15 of the Revised Penal Code, relationship is one of the alternative circumstances and in the crimes of rape under Article 335 and acts of lasciviousness under Article 336 of the same Code, relationship is aggravating, hence, accused-appellant must be penalized with prision correccional in its maximum period. WHEREFORE, the judgment on review is hereby AFFIRMED with MODIFICATION. In Criminal Case No. 49823, accused-appellant, Carlos Lilo, is found GUILTY beyond reasonable doubt of the crime of RAPE and is hereby sentenced to death and to pay private complainant, Carol Lilo, the amount of

SECOND DIVISION [G.R. No. 139907. March 28, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO BATES, accused-appellant. MARCELO BATES, JR. (At-Large), accused. DECISION AUSTRIA-MARTINEZ, J.: Before us is an appeal taken by accused Marcelo Bates from the Judgment of the Regional Trial Court of Ormoc City (Branch 35) finding him guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer imprisonment of “forty years of reclusion perpetua”. The Information states: That on or about the 28th day of November 1995, at around 5:30 o’clock in the afternoon, in Brgy. Esperanza, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused MARCELO BATES and MARCELO BATES, JR., conspiring together and confederating with and mutually helping and aiding one another, with treachery, evident premeditation and intent to kill, being then armed with long bolos, did then and there willfully, unlawfully and feloniously stab and hack to death the person of the victim herein, JOSE BOHOLST without giving the latter sufficient time to defend himself, thereby inflicting upon him multiple wounds which caused his instantaneous death. Death Certificate and Autopsy Report are hereto attached. In violation of Article 248, Revised Penal Code. Upon arraignment, Marcelo Bates entered a plea of not guilty. The version of the prosecution: Around 2:00 in the afternoon of November 28, 1995, Edgar Fuentes, Simon Fuentes and Jose Boholst left Barangay Esperanza, Ormoc City to deliver copra to a certain Fely Rodado at Barangay Green Valley, Ormoc City. After delivering copra around 5:00 in the afternoon, the three men headed back to Barangay Esperanza. While they were along a trail leading to the house of Carlito Bates, the latter suddenly emerged from the thick banana plantation surrounding the trail, aiming his firearm at Jose Boholst who was

then walking ahead of his companions. Jose grabbed Carlito’s right hand and elbow and tried to wrest possession of the firearm. While the two were grappling for possession, the gun fired, hitting Carlito who immediately fell to the ground. At that instant, Marcelo Bates and his son Marcelo Bates, Jr., brother and nephew of Carlito, respectively, emerged from the banana plantation, each brandishing a bolo. They immediately attacked Jose hacking him several times. Jose fell to the ground and rolled but Marcelo and his son kept on hacking him. Marcelo, then, turned to Simon and Edgar and shouted “huwes de kutsilyo”. Upon hearing the same, Simon and Edgar ran. Around 5:30 of the same afternoon, Concepcion Boholst, wife of Jose, was at their home preparing dinner. Upon being informed by a certain Violeta Fuentes that Jose was waylaid, she immediately went to the place where the incident reportedly happened which is less than a hundred meters from their house. There, she saw Marcelo Bates and his son Marcelo, Jr. hacking Jose who was lying face up. She pleaded for them to stop but they did not listen. She did not see Carlito. She went home fearing for her life, thinking that Marcelo and his son might turn their ire on her. The version of the defense: Around 5:00 in the afternoon of November 28, 1995, Ponciano Sano went to the house of Marcelo Bates. Ponciano was sent by Barangay Captain Feliseo Sano to get a chicken from Marcelo. While they were trying to catch a chicken, they noticed Jose Boholst, Edgar Fuentes, and Simon Fuentes approach the house of Carlito Bates which is about twenty meters away from Marcelo’s house. Thereafter, they saw Jose drag Carlito out of the latter’s house while both were arguing and grappling. Marcelo immediately ran towards Jose and Carlito but when Marcelo was about to approach them, Jose shot Carlito with a gun. Edgar and Simon ran away. Upon seeing Carlito fall to the ground, Marcelo attacked Jose but the latter also fired a shot at him. However, Marcelo was able to duck and avoid being shot. Jose was about to shoot Marcelo a second time but the latter retaliated by hacking Jose with a bolo hitting him on his neck and causing him to fall to the ground. Marcelo then went to the aid of his brother Carlito but upon seeing that he was already dead, he went back to where Jose was lying and again hacked him. Thereafter, Ponciano picked up the gun used by Jose and surrendered it to Barangay Captain Sano. Marcelo also surrendered himself to the said barangay captain. During the whole incident Marcelo Bates, Jr. was not present.

Upholding the prosecution evidence, the trial court rendered its Judgment, dated June 4, 1999, the dispositive portion of which reads as follows: Wherefore, all the foregoing considered, the Court finds the accused Marcelo Bates GUILTY beyond reasonable doubt of the crime of murder as charged and hereby sentences him to suffer imprisonment of forty (40) years reclusion perpetua after appreciating the mitigating circumstance of voluntary surrender, and to pay the offended party the sum of P50,000.00 as indemnity and another sum of P50,000.00 as moral damages. If the accused is a detainee, the period of his imprisonment shall be credited to him in full provided he abides in writing by the terms and conditions for convicted prisoners, otherwise, for only four-fifths (4/5) thereof. SO ORDERED. Aggrieved, Marcelo Bates brought the present appeal. following:

He raises the

ASSIGNMENT OF ERRORS I THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE DEFENSE INTERPOSED BY ACCUSED APPELLANT. II THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES. III THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE ITS ATTENDANCE IN THE COMMISSION OF THE CRIME CHARGED ON THE ASSUMPTION THAT ACCUSED-APPELLANT DID NOT ACT IN SELFDEFENSE. IV THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING PASSION AND OBFUSCATION AS A MITIGATING CIRCUMSTANCE IN FAVOR OF ACCUSEDAPPELLANT ON ASSUMPTION THAT THE LATTER DID NOT ACT IN SELFDEFENSE.

Appellant claims self-defense. Under Article 11 of the Revised Penal Code, anyone who acts in defense of his person or rights do not incur any criminal liability provided that the following circumstances concur: First, unlawful aggression on the part of the victim; second, reasonable necessity of the means employed to prevent or repel it; and third, lack of sufficient provocation on the part of the person defending himself. It is a settled rule that when an accused admits killing the victim but invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he acted in self-defense; and as the burden of the evidence is thus shifted to him, he must rely on the strength of his own evidence and not on the weakness of the prosecution. After scrutiny of the evidence presented, we agree with the trial court that self-defense was not established by appellant. He testified that he initially inflicted only a single hack wound on the neck of Jose causing the latter to fall to the ground. He then went to the aid of his brother Carlito but upon finding that he was already dead, he went back to where Jose fell. Appellant admitted that at that time, Jose was in a lying position still alive but hardly moving. Under such a situation, Jose could have hardly put up any defense, much less, make an aggressive move against appellant. Despite Jose’s condition, appellant repeatedly hacked Jose. Granting that Jose was the one who first committed unlawful aggression, appellant was no longer justified in further inflicting wounds upon Jose because at that time, the latter was already lying helpless on the ground. At that moment, unlawful aggression on the part of Jose had ceased. It is a settled rule that when unlawful aggression ceases, the defender has no longer any right to kill or wound the former aggressor, otherwise, retaliation and not selfdefense is committed. Hence, the fact that unlawful aggression on the part of Jose already ceased when Marcelo repeatedly hacked him rules out the possibility of self-defense, whether complete or incomplete. Thus, the first assigned error is without merit. In his second assigned error, appellant questions the credibility of the prosecution witnesses. We have time and again, held that the issue of credibility is a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying which opportunity is denied to the appellate courts; and absent any substantial reason which would justify the reversal of the trial court’s assessments and conclusions, the reviewing court is generally bound by the former’s findings, particularly when no significant facts and

circumstances were shown to have been overlooked or disregarded which when considered would have affected the outcome of the case. In the present case, the trial court found the testimonies of the prosecution witnesses to be more credible than those of the defense witnesses. We find no cogent reason to depart from the findings of the trial court. Prosecution witness Edgar Fuentes testified that Jose and Carlito grappled for possession of the gun. Appellant insists that this is belied by the absence of gunpowder burns on the wound of Carlito. Appellant cites the medical findings and the testimony of Dr. Rogelio Mercado who conducted the autopsy on the bodies of Jose and Carlito, to the effect that the absence of gunpowder burns on the wound of Carlito would indicate that he and Jose did not fight for the possession of the gun. We are not convinced. The finding of the physician is not certain and conclusive as it is contradicted by no less than appellant himself when he testified, as follows: Q. After you noticed Jose Boholst with two companions went to your house of your elder brother, what did you notice if there was any? A.

This Jose Boholst dragged my elder brother from the door to the yard.

Q. And how far were you at that time when you noticed that Jose Boholst drag your brother? A.

At the same distance of about 20 meters from our house.

Q. While you said that Jose Boholst dragged your brother Carlito Bates, were they arguing with each other? A.

Yes, sir and they were grabbling(sic).

Q. Do you know what they were arguing about? A.

I’ve heard that they were arguing about the palm of the coconut tree.

Q. What else did you know if you notice that Carlito Bates was arguing as a matter of fact they were grabbling(sic) each other, what did you do? A.

Jose Boholst shot my elder brother.

Q. My question is, after you noticed that Jose Boholst and Carlito Bates were arguing, what if any did you do? A.

I approached them.

Q. Why? A. I was about to settle them down, but when I arrived and my brother already fell down. Q. What happened to your brother, why did he fell down? A.

Because he was shot by Jose Boholst.

Further, appellant claims that the testimony of Concepcion Boholst should not be given credence. He argues that if Concepcion really witnessed the killing of her husband, she should have seen the body of Carlito Bates who was then lying dead on the ground at the place where her husband was allegedly being hacked and stabbed. We are not persuaded. We agree with the Office of the Solicitor General that it was natural for Concepcion to fail to notice the body of Carlito when she was faced with the shocking scene of her husband being hacked and stabbed to death by appellant and his son. The Supreme Court has long recognized that different people react differently to a given type of situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience. In the present case, it is perfectly normal for Concepcion to be oblivious of the persons who were present at the crime scene at that time because of the frightening sight that confronted her. Appellant points out inconsistencies in the testimonies of prosecution witnesses Edgar and Concepcion. However, it is more apparent than real. Edgar and Concepcion witnessed the crime at different stages of its execution. The failure of Edgar and Concepcion to see each other at the crime scene can be gathered from their testimonies that at the time Concepcion arrived at the scene of the crime, Edgar, together with his brother Simon, already left. Granting that there was indeed an inconsistency in the testimonies of Edgar and Concepcion such is only a minor flaw that does not affect their credibility. Both did not detract from the main fact at issue and were consistent in positively identifying appellant and his son as the ones who killed Jose. Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility. As to the failure of the prosecution to present other witnesses, the rule is settled that the prosecution is imbued with the discretion to choose whom to present as witnesses. The prosecution need not present each and every

witness but only 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 cause. Hence, the non-presentation of Violeta Fuentes, Simon Fuentes and Junior Comesyon as witnesses for the prosecution is not fatal to its cause nor may it be considered suppression of evidence, as their testimonies would merely corroborate the earlier testimonies of Edgar and Concepcion.

they were carrying. This, alone, does not prove treachery. In People vs. Albao, we held that:

However, we agree with the contention of the appellant that the trial court erred in appreciating the qualifying circumstance of treachery.

In People vs. Magaro, we held that:

The pertinent provision of Article 14 of the Revised Penal Code reads: Art. 14. Aggravating circumstances. – The following are aggravating circumstances: … 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. Under established jurisprudence, two conditions must concur to establish treachery: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (2) the means of execution was deliberately or consciously adopted. We have held in a line of cases that: [c]ircumstances which qualify criminal responsibility, such as treachery, cannot rest on mere conjecture, no matter how reasonable or probable such conjecture may be. They must be based on facts of unquestionable existence. Such circumstances must be proved as indubitably as the crime itself. Treachery as a qualifying circumstance should be established by proof beyond reasonable doubt. In the present case, the only evidence presented by the prosecution to prove that there was treachery was the testimony of Edgar Fuentes that while Jose and Carlito were grappling, he saw appellant and his son emerge from the thick banana plantation and attack Jose with the bolos

As a rule a sudden attack by the assailant, whether frontally or from behind, is treachery, if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply, however, where the sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim, or where their meeting was purely accidental. The circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise homicide to murder, where it did not appear that the aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. Treachery cannot be appreciated if the accused did not make any preparation to kill the deceased in such manner as to insure the commission of the killing or to make it impossible or difficult for the person attacked to retaliate or defend himself. There is nothing to indicate from the testimony of Edgar that appellant and his son employed means and methods to insure that they will be able to attack Jose without risk to themselves arising from any defense that Jose might make. There is no evidence to show that they purposely remained hidden in the thick banana plantation awaiting for the opportune time to attack Jose with impunity. Hence, for failure of the prosecution to prove treachery or any other circumstance which would qualify the killing of Jose to murder, appellant should only be held liable for the crime of homicide punishable under Article 249 of the Revised Penal Code. Appellant was able to prove the mitigating circumstance of voluntary surrender, as shown by the testimony of Barangay Captain Feliseo Sano. Passion and obfuscation may not be properly appreciated in favor of appellant. To be considered as a mitigating circumstance, passion or obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment. In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose. However, a distinction must be made between the first time that

Marcelo hacked Jose and the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if appellant refrained from doing anything else after that, he could have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then was already prostrate on the ground and hardly moving, hacking Jose again was a clear case of someone acting out of anger in the spirit of revenge. Concepcion Boholst testified that the death of her husband, Jose, caused her deep anguish and sleepless nights. The award of moral damages in the amount of P50,000.00 is therefore justified. And pursuant to existing jurisprudence, the heirs of the deceased are entitled to civil indemnity in the amount of P50,000.00 as correctly awarded by the trial court plus P25,000.00 for temperate damages, representing the expenses they incurred for the wake and burial of the deceased. Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance, the maximum period of the penalty to be imposed shall be taken from the minimum of reclusion temporal which is 12 years and 1 day to 14 years and 8 months; while the minimum period shall be taken from the penalty next lower in degree which is prision mayor or 6 years and 1 day to 12 years. For the guidance of both the bench and bar, it must be mentioned that the trial court committed an error in imposing the penalty of “forty (40) years of reclusion perpetua”. We reiterate our earlier pronouncements in a number of cases that while Section 21 of RA No. 7659 amended Article 27 of the Revised Penal Code by fixing the duration of reclusion perpetua from 20 years and 1 day to 40 years, reclusion perpetua remains to be an indivisible penalty in the absence of a clear legislative intent to alter its original classification as an indivisible penalty. Hence, in applicable cases such as the present case, “reclusion perpetua” should simply be imposed without specifying its duration. WHEREFORE, the decision of the Regional Trial Court of Ormoc City, Branch 35, is MODIFIED. Appellant Marcelo Bates is hereby found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as the minimum to twelve (12) years and one (1) day of reclusion

temporal as the maximum; and is ordered to pay the Heirs of Jose Boholst the amounts of P50,000.00 as civil indemnity for the latter’s death, P50,000.00 for moral damages and P25,000.00 as temperate damages. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 86939 August 2, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANTOS DUCAY and EDGARDO DUCAY, accused. SANTOS DUCAY, accused-appellant. The Solicitor General for plaintiff-appellee. Valmonte Law Office for accused-appellant. DAVIDE, JR., J.: Santos Ducay and Edgardo Ducay, father and son, were charged with the complex crime of double murder and multiple frustrated murder in an Information 1 filed on 16 October 1986 with the Regional Trial Court (RTC) of Valenzuela, Metro Manila, allegedly committed as follows: that on or about the 12th day of October, 1986, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill Pacita Labos, Manuel Labos, Lina Labos-Mojica, Edwin Labos and Ma. Cristina Labos, conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously, with evident premeditation, abuse of superior strength and treachery, attack, assault and shoot with a .45 caliber [pistol] and shotgun they were then provided the said Pacita Labos, Manuel Labos; Lina Labos-Mojica, Edwin Labos and Maria Cristina Labos, hitting them on their body, thereby causing them serious physical injuries which directly caused the death of Pacita Labos and Manuel Labos; thereby, also, with respect to Lina LabosMojica, Edwin Labos and Maria Cristina Labos, performing all the acts of execution which ordinarily would have produced the crime of murder but

which nevertheless did not produce it by reason of a cause independent of their will, that is, the timely and able medical attendance rendered to said Lina Labos-Mojica, Edwin Labos and Maria Cristina Labos which prevented their death. The case was docketed as Criminal Case No. 7792-V-6 before Branch 172 of the said court. Upon arraignment, both accused entered a plea not guilty. 2 In due course, the trial on the merits proceeded. The witnesses presented by the prosecution were Edwin Labos, Lina Labos, Sgt. Ponciano Casile, Dr. Rodolfo Lizondra, Dr. Tahil Mindalano and Dr. Leo Arthur Camagay. 3 On the other hand, the witnesses presented by the defense were accused Santos Ducay and Edgardo Ducay, Ruben Ampuan, Mario Abad and Cristino Mariano. Prosecution witness Lina Labos testified that at about 5:00 o'clock in the morning of 12 October 1986, she was sleeping in the sala at the second floor of the house together with her husband, Manuel Labos, and their sixmonth old daughter, Ma. Cristina Labos, when she was awakened by the pounding of the door on the first floor leading to the sala. Moments later, Santos Ducay and his son, Edgardo Ducay, appeared in the sala. Santos was carrying a long firearm while Edgardo held a caliber .45 pistol. The two started firing at Manuel, who was already standing albeit half asleep. Then they shot her mother-in-law, Pacita Labos. Both Manuel and Pacita were killed. The accused also shot her, Ma. Cristina, and Edwin Labos, her brother-in-law, who was then coming out of the bedroom. She was hit in the stomach and gall bladder while Ma. Cristina was hit in the right leg, left thigh and abdomen. The accused then turned their backs and one of them uttered "Ubos ang lahi." She was able to identify the two accused, who are her former neighbors, because of the fluorescent light in the sala. After the accused had left, the police came and brought the wounded to the Jose Reyes Memorial Medical Center. 4 Edwin Labos testified that on 24 December 1985 his brother Manuel Labos and Santos Ducay quarreled and stabbed each other; however, Santos Ducay did not file any charges against Manuel who gave the former P200.00 for medical expenses. 5 He also corroborated the testimony of his sister-in-law. He heard the banging of the door and several gunshots, then he went out of his room and saw his brother Manuel already sprawled dead on the floor. He saw both accused shoot his sister-in-law and his niece. 6 Edgardo then fired at him, hitting him in the right thigh, while Santos shot his mother. 7 He was later treated at the Jose Reyes Memorial

Medical Center where he spent P13,299.53 (Exhibits "Q" to "Q-165"). They paid P13,200.00 to Popular Memorial Chapels and P9,060.00 to Holy Cross Memorial Chapel for the interment of his mother and brother. 8 Sgt. Ponciano Casile, a police investigator of the Valenzuela Police Station, testified that he was ordered to investigate the incident. In the course of his investigation, he learned that the assailants were Santos Ducay and a yet unidentified man who, upon Lina Ducay's sworn statement given two days later, was identified as Santos Ducay's son, Edgardo. 9 Dr. Rodolfo Lizondra, Supervising Medico-Legal Officer of the National Bureau of Investigation (NBI), testified on the post-mortem examinations he conducted on the cadavers of Pacita and Manuel Labos, the results of which are embodied in two autopsy reports (Exhibits "K" and "M"). 10 He determined the cause of death of Pacita as "hemorrhage, secondary to shotgun wounds of the chest, abdomen and left arm," and that of Manuel as "hemorrhage, secondary to gunshot wounds of the head and chest." Dr. Tahil Mindalano testified regarding the injuries sustained by Lina and Ma. Cristina Labos and the medical assistance rendered to them, 11 while Dr. Arthur Leo Macasiano Camagay testified about the injuries sustained by Edwin Labos. 12 Drs. Mindalano and Camagay declared that without the medical attendance given to Lina, Ma. Cristina and Edwin Labos, said persons would have died because of the nature of the injuries sustained by them. 13 Per the Medico-Legal Certificates issued, Lina Labos sustained three gunshot wounds on her "left umbilical," "left buttocks," and "lateral D/3rd left thigh." The point of exit of the last wound was at the "anterior middle 3rd left thigh," thereby "penetrating the liver by 1.5 cm. thru and thru, perforating the duodenum by 1 cm. thru and thru, perforating jejunom by 0.5 cm. lacerating the pancreas by 2 cm. transecting muscular branch aorta (abdominal)" (Exhibit "A"). Edwin Labos sustained a gunshot wound at the "middle 3rd anterior surface thigh, right" with no point of exit resulting in "Gustilo-Anderson type III open fracture comminuted M/3rd femur, right," (Exhibit "V") and Ma. Cristina Labos sustained three gunshot wounds located at "lateral aspect D/3rd thigh right," "antero-medial aspect M/3rd thigh, left" and "periumbilcal right" (Exhibit "B"). Both accused testified that they were in their house at Area 4, Valenzuela at the time of the incident in question. At about 6:00 o'clock in the morning, they were roused from their sleep by a friend, Martin Gabukan, who informed them that Santos was a suspect in the shooting of the Labos

family. 14 Gabukan told Santos not to worry because "many people heard that [the accused] were really not the one." 15 Santos was arrested on 14 October 1986 in Balagtas, Bulacan 16 while he was looking for a lawyer, while Edgardo was taken into custody by the police while he was attending to his father in the police headquarters. 17 Cristino Marinao, a neighbor of the Ducays, testified that at about 6:00 o'clock in the morning of 12 October 1986, Santos Ducay came and said that he (Santos) was a suspect in the shooting incident in question. 18 The following day, he brought Santos to the Barangay Captain, Pio Angeles, who entered in the barangay blotter (Exhibit "6") Santos' profession of innocence of the crime he was suspected of. On cross-examination, Cristino stated that the distance between Area 4, where he and the Ducays are residing, and the house of the Laboses at Area 6 (also referred to as Area 11) is about one kilometer. 19 Ruben Ampuan, a neighbor of the Laboses, testified that at the time of the incident and while he was still lying down, he heard gunshots. He stood up, opened the window and saw two men leaving the house of the Laboses. He stated that they were not the accused in this case. 20 Mario Abad Allegado testified that he was at the "tambakan" which is about thirty meters from the scene of the crime when he heard several gunshots. As he headed for home, he met two persons in front of the lamp post near the house of the Eugenios heading towards Maysan Road. One of them, a tall, thin fellow, with curly hair and mestizo features, was carrying a firearm, while the other, whose face he did not see, 21 was shorter. He believed that both persons were the assailants. 22 He declared that they were not the accused whom he knows very well being his former neighbors. 23 Upon reaching home, he heard a commotion from the house of the Laboses. He went inside the Laboses' house and saw the wounded family members. He asked Edwin and Lina Labos whether they recognized their assailants and both answered that they did not. 24 Capt. Carlos Tiquia, Chief Investigator of the Valenzuela Police Station, who was presented as the only defense witness during the hearing for the application for bail and whose testimony was adopted in the trial on the merits, declared that he proceeded to the crime scene after receiving a report on the incident from the investigator assigned to the case. When he and the investigator returned to the office, his investigator took down the statements of the witnesses, one of whom was Erwin Labos and whose statement was taken down at 4:00 o'clock in the morning of 14 October

1986. However, he believed that Erwin was not telling the truth so that he personally talked to him, and at 6:00 a.m., Erwin executed a supplemental statement (Exhibit "4") in the presence of several people including his brother Renato Labos. This time, Erwin described one of the alleged assailants as tall, with curly hair and mestizo features. On the basis of such a description, Tiquia made a request for a cartographic sketch to the PC Crime Laboratory. 25 On 29 April 1988, the trial court promulgated its judgment finding Santos Ducay guilty beyond reasonable doubt of the crime charged but acquitting Edgardo Ducay on ground of reasonable doubt. 26 The dispositive portion of the decision reads: In view of the foregoing, the Court finds guilty beyond reasonable doubt Santos Ducay of the complex crime of double murder and multiple frustrated murder as charged. The penalty of reclusion temporal in its maximum period to death is equivalent to 17 years, 4 months and 1 day to death, the minimum being 17 years, 4 months and 1 day to 20 years, the medium being reclusion perpetua and maximum, death. The Court, could have meted the death sentence on Santos Ducay but is prevented from doing so by the New Constitution. Santos Ducay is, therefore, hereby sentenced to suffer imprisonment for life, reclusion perpetua which is the medium period of the penalty provided by law, and all the accessory penalties provided by law, to indemnify the heirs of the victim Pacita Labos in the sum of P30,000.00 and the heirs of Manuel Labos P30,000.00; to indemnify the victims Edwin Labos in the sum of P13,299.53 as reimbursement of medical expenses, and the sum of P4,500.00 as lost earnings for the period from October 12, 1986 to July 1987; to indemnify Lina Labos and Ma. Cristina Labos in the total sum of P10,000.00 as reimbursement of medical expenses; and to pay the costs of suit. The Court finds Edgardo Ducay not guilty of the crime charged on ground of reasonable doubt and is hereby acquitted. The Jail Warden of Valenzuela, Metro Manila, is hereby ordered to release Edgardo Ducay from detention unless held for any other lawful cause. 27 In convicting Santos Ducay, the trial court said: The Court never doubts the participation of Santos Ducay not only on the basis of the positive identification made by surviving victims, Lina and

Edwin Labos, the motive Santos Ducay had to avenge the assault done on him by Manuel Labos, but also because his positive identification sweeps aside altogether his defense � that of alibi � a very weak defense in the light of the overwhelming evidence against him. xxx xxx xxx From the evidence thus adduced the Court is convinced beyond reasonable doubt that it was Santos Ducay who was one of the persons who conspired with another in killing the victims, Manuel Labos, Pacita Labos, and in trying to kill Lina Labos, Maria Cristina Labos and Edwin Labos, but was frustrated, The evidence of evident premeditation, abuse of superior strength and treachery, were clearly shown by the prosecution when it proved convincingly to the Court that considering the time of the attack, 5:00 at dawn, evident premeditation is clear especially if the testimony of Edwin Labos will be considered that months previous to this attack, Santos Ducay had a quarrel with one of the victims shot to death. There was abuse of superior strength and treachery because the victims were asleep at the time of the attack and were therefore unprepared and unarmed for the attack. They had no chance whatsoever to fight back, the six months baby Ma. Cristina Labos especially. 28 The trial court expressed the view that two murders and three frustrated murders were committed, or that there are as many crimes as there are victims in this case because "the trigger of the gun used in committing the acts complained of was pressed in several instances and not in one single act. However, it did not impose the corresponding penalties therefor "because the information to which the accused pleaded is only one crime of double murder and multiple frustrated murder." 29 On 13 May 1988, Santos Ducay filed a Partial Motion For Reconsideration And/Or New Trial. 30 He sought the admission of the alleged result of a paraffin test conducted on him on 13 October 1986, or a day after the incident, which shows that he was found negative for powder burns. For lack of merit, the trial court denied the motion in its Order of 24 May 1988. 31

Santos Ducay, hereinafter referred to as the Appellant, then filed on 7 June 1988 a Notice of Appeal. 32 In his "Brief for the Defense" filed on 24 September 1992, raises the following assignment of errors:

33

the appellant

1. THE TRIAL COURT ERRED IN HOLDING AS "POSITIVE" PROSECUTION WITNESSES EDWIN LABOS AND LINA LABOS' IDENTIFICATION OF ACCUSED; HENCE, IT ERRED WHEN IT REJECTED ACCUSED'S DEFENSE OF ALIBI. 2. THE TRIAL COURT ERRED IN DENYING ACCUSED'S PARTIAL MOTION FOR RECONSIDERATION AND/OR NEW TRIAL FOR THE ADMISSION OF THE PARAFFIN EXAMINATION ON ACCUSED A DAY AFTER THE INCIDENT FINDING HIM NEGATIVE OF POWER (sic) BURNS. 3. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED. In the first assigned error, the appellant attacks the credibility of prosecution witnesses Lina and Edwin Labos and alleges that their identification of the appellant is vague and highly dubious. To buttress this claim, he refers this Court to his testimony that a neighbor by the name of Martin Gabukan told him that while the victims were the hospital, he (Martin) overheard Edwin Labos say that he did not really see the appellant and Edgardo Ducay; that Edwin only happened to mention the name of the appellant when he has asked by the police about their enemies in their place. The appellant then concludes that the crime was imputed upon him not because he was seen at the scene of the crime but because of the motive alleged, namely, that he and Manuel Labos had an altercation on 24 December 1985. As to Lina Labos, the appellant maintains that she gave her statement only on 14 October 1986 or two days after the occurrence of the incident; she thus had sufficient time to concoct a story and implicate the appellant and Edgardo after she had talked with her brother-in-law, Edwin, and her father-in-law, Jesus Labos. The appellant further claims that since the trial court did not believe Lina and Edwin's testimonies that they positively identified Edgardo Ducay, then following the maxim "falsus et (sic) uno, falsus et (sic) omnibus," 34 it should not have also believed their testimony as regards the appellant. He also faults the trial court for rejecting the supplementary statement (Exhibit "4") of Erwin Labos, brother of Edwin Labos, and Erwin's "contemporaneous" statement to Edgar Ducay: "Kuya pasensiya ka na, naturo kita noon una, hindi naman ikaw," allegedly absolving the accused and pointing to a tall, mestizo and curly-haired man as one of the assailants, which statement was allegedly confirmed by Sgt. Casile and Capt. Tiquia and made as the basis of the cartographic sketch by the PC Crime Laboratory. According to the appellant, these declarations of Erwin are declarations against interest and are part of the res gestae. Finally, the appellant asserts that the evidence for the prosecution is weak because no

disinterested witness was presented despite the fact that the incident occurred in a thickly populated area. He also contends that the prosecution suppressed evidence by failing to present Erwin Labos as a witness. These claims are without merit. A careful evaluation of the records and the evidence adduced by the prosecution discloses that the appellant had been positively identified by Lina and Erwin Labos. In his sworn statement (Exhibit "H") executed barely four hours after the incident and while he was still in the emergency room of the hospital, Edwin explicitly declared that the appellant was one of the assailants. This sworn statement was spontaneously given at the time he was hovering between life and death. He had no opportunity then to contrive or fabricate a story. The appellant is the only one identified therein by Edwin. Thus: xxx xxx xxx TANONG Bakit ka narito ngayon sa loob ng Dr. Jose Reyes Hospital, Emergency Room, Manila? SAGOT Binaril po ako. T Sino and bumaril sa iyo? S Ang kasama ni Santos Ducay po nakatira sa Area-4, Family Compound, Karuhatan, Val. M.M. T Kilala mo ba ang bumaril sa iyo na kasama ni Santos? S Kong makikita ko muli. xxx xxx xxx T Paano mo nasabi na kasama ni Santos Ducay and bumaril sa iyo? S Nakita ko po si Santos Ducay na ang hawak niya shotgun at siya ang bumaril sa kuya ko, Manuel, nanay ko, Pacita, Ate ko, Lina at bata na si Maria Cristina. T Dati mo bang kilala si Santos Ducay? S Opo. T Paano mo siya nakilala? S Dati po siyang (Santos) kapitbahay namin at lumipat as Area-4 Family Compound, Karuhatan, Val., M.M. 35

In court, Edwin unhesitatingly pointed to the appellant as one of the assailants. 36 Lina Labos also identified the appellant as one of the malefactors both in her handwritten sworn statement, Exhibit "E," 37 executed on 14 October 1986 or two days after the incident, and in her court testimony. 38 That her statement was executed two days after the incident does not perforce affect her credibility. With the three gunshot wounds she sustained and the thought of the death of her husband and mother-in-law and the serious injuries of her daughter and brother-in-law, it would be too much to expect from her that physical and emotional fortitude to forthwith give her statement as what Edwin did. Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of a witness if such delay is satisfactorily explained. 39 In any case, the speculation that she could have contrived her testimony after having talked with her father-inlaw and brother-in-law is wholly unsupported by evidence. We agree with the appellee that the alleged statements made by Martin Gabukan to the appellant, which the latter related in court, is hearsay and has little, if any, probative value. Counsel for the appellant knew, or ought to have known, that this was so. Yet, the defense did not present Martin as witness. Nor can we subscribed to the proposition that since the trial court did not give credit to Edwin and Lina's testimonies that they positively identified Edgardo, it should, pursuant to the maxim "falsus in uno, falsus in omnibus," likewise disregard their testimonies as against the appellant and accordingly acquit him. In People vs. Dasig, 40 this Court stated that the maxim is not a mandatory rule of evidence, but rather a permissible inference that the court may or may not draw. In People vs. Pacada, 41 we stated that the testimony of a witness can be believed as to some facts and disbelieved as to others. And in People vs. Osias, 42 we ruled that: It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. And it has been aptly said that even when witnesses are found to have deliberately falsified in some material particulars, it is not required that the whole of their uncorroborated testimony be rejected but such portions thereof deemed worthy of belief may be credited. The primordial consideration is that the witness was present at the scene of the crime and that he positively identified [the accused] as one of the perpetrators of the crime charged . . . .

Professor Wigmore gives the following enlightening commentary: It may be said, once for all, that the maxim is in itself worthless�first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves. 43 The trial court did not err in rejecting the supplementary statement (Exhibit "4") of Erwin Labos, brother of Edwin Labos, and his alleged contemporaneous statement to Edgardo Ducay. Erwin Labos was not called by the defense as its witness�even as a hostile one. Whatever declaration he made to any party, either written or oral, is thus hearsay. The prosecution seasonably objected to the admission of Exhibit "4." 44 Besides, as noted by the prosecution, this document is not under oath while his first statement implicating the appellant is duly subscribed and sworn to. The defense should have presented Erwin as a witness if indeed it was convinced that Exhibit "4" expresses the truth. There is no showing that this could not have been done because Erwin was not available. His brother, Edwin, testified that Erwin was staying with his father in Escolta. 45 This information should have been utilized by the defense to have compulsory process issued to bring Erwin to court. Instead, the defense imputes suppression of evidence upon the prosecution in not presenting Erwin Labos as its witness. It is settled that suppression of evidence is inapplicable in a case where the evidence is at the disposal of both the prosecution and the defense. 46 Besides, the prosecution had no cogent reason for presenting Erwin since there is no showing that he was in the house when the incident occurred. On the other hand, the defense needed his testimony for if, indeed, he should affirm his supplemental statement, he may somehow enhance the theory of the defense. We do not likewise agree with the appellant that Erwin's alleged statement to Edgardo Ducay: "Kuya pasensiya ka na, naturo kita noon una, hindi naman ikaw," uttered immediately after he made his supplemental

statement, is a part of the res gestae and thus an exception to the hearsay rule. The rule on spontaneous statements as part of the res gestae is stated in Section 42, Rule 130 of the Rules of Court: "statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. . . . ." There are three requisites for the admission of spontaneous statements as evidence of the res gestae: 1) that the principal act, the res gestae, be a startling occurrence; 2) that the statements were made before the declarant had time to contrive or devise; and 3) that the statements must concern the occurrence in question and its immediately attending circumstances. 47 The rationale for the exception lies in the fact that a statement made under the stress of an exciting event or condition tends to ensure that the statement is spontaneous and, therefore, trustworthy; and the likely proximity in time between the event or condition and the statement minimizes the possibility of a memory problem. 48 Erwin's alleged statement to Edgardo Ducay does not refer to the incident in question but rather to his prior statement (not the supplemental statement) implicating Edgardo Ducay. Furthermore, the alleged "contemporaneous" statement was made two days after the shooting incident. In no way can it be said that Erwin was under the stress of an exciting event or condition. Nor do we find merit in the appellant's argument that the prosecution's evidence is weak because unlike the defense, it did not present any disinterested witness. He suggests that since the place where the incident happened is thickly populated, there were many people who saw the gunmen and who could have pointed to the accused if they were the ones who committed the crime considering that they were familiar to the residents of the area. In the first place, it was not shown that at the time the incident occurred, many people were already awake and were able to see the gunmen. In the second place, assuming that it was so shown, the determination of who should be utilized as witnesses by the prosecution is addressed to the sound discretion of the prosecutor handling the case. 49 That the prosecutor did not present any disinterested witness does not lessen the strength of the prosecution's case, which is anchored on the testimonies of Edwin and Lina Labos, who were themselves eyewitnesses and victims of the crime.

In the ultimate analysis, the first assigned error involves the credibility of witnesses. It is settled that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial unless it has plainly overlooked certain facts of substance that, if considered, might affect the result of the case. 50 We find no reason to depart from this rule in this case. In his second assigned error, the appellant faults the trial court for denying his motion for new trial on the ground of newly discovered evidence consisting of Chemistry Report No. O-1630-86 of the PC Crime Laboratory Service, the result of the paraffin test conducted on Santos Ducay on 13 October 1986 or the day after the incident on question, which allegedly shows that "both hands of the [appellant] gave NEGATIVE result to the test for gunpowder residue (nitrates)." 51 One of the grounds for a new trial mentioned in Section 2, Rules of Court is the discovery of new and material evidence. The requisites therefor which must concur are: (1) that the evidence was discovered after the trial; (2) that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (3) that such evidence is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, it will probably change the judgment. 52 In the present case, the appellant was subjected to a paraffin test the day after the crime was committed. Certainly, he knew that the findings of such test would be forthcoming. He should have asked for the result of the test to find out if it is exculpatory, in which case he could have presented it during the hearing of his application for bail or, at the latest, during the trial on the merits. In any event, the chemistry report cannot be considered as newly discovered evidence since it was already existing even before the trial commenced and could have been easily produced in court by compulsory process. The appellant either did not exercise reasonable diligence for its production or simply forgot about it. Forgotten evidence is, of course, not a ground for a new trial. 53 Moreover, the result of the paraffin test conducted on the appellant is not conclusive evidence that he did not fire a gun. 54 It is possible for a person to fire a gun and yet be negative for the presence of nitrates, as when he wore gloves or washed his hands afterwards. 55 The trial court, therefore, correctly denied the motion for new trial.

The testimonies of the witnesses and the nature of the wounds suffered by the victims show that there were two different firearms used by two assailants, one of whom is the appellant. The crimes committed were not caused by a single act nor were any of the crimes committed as a necessary means of committing the others. In this case, there are as many crimes committed as there are victims. The trial court correctly ruled that there was no complex crime "considering that the trigger of the gun used in committing the acts complained of was pressed in several instances and not in one single act." It is settled that when various victims expire from separate shots, such acts constitute separate and distinct crimes. 56 However, the trial court erred when it ruled that "(i)t cannot, however, impose the corresponding penalty of the crime committed against each victim because the information to which the accused pleaded is only one crime of double murder and multiple frustrated murder." The information in this case, although denominated as one for a complex crime, clearly charges the accused with five different criminal acts. It states: "the abovenamed accused, with intent to kill Pacita Labos, Manuel Labos, Lina LabosMojica, Edwin Labos, and Ma. Cristina Labos, . . . did then and there . . . attack, assault and shoot with a .45 caliber [pistol] and shotgun they were then provided the said Pacita Labos, Manuel Labos, Lina Labos-Mojica, Edwin Labos and Ma. Cristina Labos, . . . ." The appellant and his coaccused did not move to quash the information on the ground of multiplicity of charges. At no other time thereafter did they object thereto. They therefore waived such defect 57 and the trial court thus validly rendered judgment against them for as many crimes as were alleged and proven. 58 The crimes committed by the appellant and his companion, which were proven beyond reasonable doubt are: (1) two counts of murder with the qualifying circumstance of treachery since the attack on the victims was so sudden and at a time when the victims were barely awake, thus giving them no chance whatsoever to defend themselves; and (2) three counts of frustrated murder. Conspiracy 59 between the assailants was duly proven. Together they came to the house of the victims, simultaneously attacked them, and then, together again, they fled. Before fleeing, one of them even exclaimed "Ubos ang lahi." These acts sufficiently established a common plan or design to commit the crimes charged and a concerted action to effectively pursue it. Hence, the act of one is the act of all. 60 We do not, however, agree with the trial court that evident premeditation was sufficiently established. Although Manuel Labos stabbed the appellant

on 24 December 1985, there is paucity of evidence as to when the latter determined to kill the former and any member of his family and as to acts manifestly indicating that he has clung to his determination. 61 Nevertheless, the aggravating circumstance of dwelling which was proved without objection from the defense should be appreciated against the appellant since the victims were attacked and shot inside their own dwelling. The assailants displayed greater perversity in their deliberate invasion of the home of the Laboses. 62 Under Article 248 of the Revised Penal Code, the crime of murder is punishable by reclusion temporal maximum to death. The maximum of the penalty should be imposed in view of the presence of the aggravating circumstance of dwelling which is not offset by any mitigating circumstance. However, the imposition of the death penalty is prohibited by the Constitution; 63 hence, the proper imposable penalty would be reclusion perpetua. The penalty for the crime of frustrated murder is the penalty next lower in degree that the prescribed for murder, 64 that is, prision mayor medium as maximum to reclusion temporal medium. 65 The appellant is entitled to the benefits of the Indeterminate Sentence Law in the frustrated murder cases. Thus, he may be sentenced in each of the three frustrated murder cases to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium as maximum. ACCORDINGLY, the challenged judgment of Branch 172 of the Regional Trial court of Valenzuela, Metro Manila in Criminal Case No. 7792-V-6 is AFFIRMED subject to the modifications herein indicated. As modified, appellant Santos Ducay is convicted of (a) two crimes of murder for the death of Pacita Labos and Manuel Labos and is accordingly sentenced to reclusion perpetua for each death, with the indemnity in each crime increased from P30,000.00 to P50,000.00 in conformance with the current policy of this Court; and (b) three crimes of frustrated murder committed on Lina Labos, Ma. Cristina Labos and Edwin Labos, and is hereby sentenced in each crime to an indeterminate penalty of eight (8) years and one (1) day of prision mayor medium as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium as maximum. Costs against the appellant. SO ORDERED.