SECOND DIVISION

[G.R. Nos. 48535-36 : December 21, 1990.]

192 SCRA 533
KOH TIECK HENG, Petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS,
Respondents.

DECISION
REGALADO, J.:

This petition for review on Certiorari impugns the decision of the Court of Appeals in CA-G.R. No.
16246-47-CR 1 which affirmed the judgment of the former Court of First Instance of Manila in Criminal
Cases Nos. 15006 and 15007 convicting herein accused-petitioner of estafa and attempted estafa,
respectively.
The facts as found by the trial court and adopted by respondent court are as follows:
"From the evidence extant on the record, the following facts appear undisputed: That accused Koh
Tieck Heng, alias Tomas P. Flores opened Savings Account No. 26580, with the Security Bank and
Trust Company, Escolta St., Manila, hereinafter called SBTC in short, with an initial deposit of P500.00,
made on 21 Feb. 1973, for which he was given a pass book in his name of Tomas P. Flores (see Exh.
C). He made a second deposit of P400.00 then a withdrawal of P500.00 then a deposit of P775.00,
and then a withdrawal of P1,000.00 (Entries on Exh. C).
"On 13 March (sic, August) accused went to SBTC and filled up or accomplished and signed a deposit
slip (Exh. B) for a deposit of P18,060.00 in check. With the deposit slip, he submitted to Urbana Ramos
de Ferrer, Teller No. 2 of SBTC, his pass book (Exh. C) and a Philippine Bank of Communications
Check No. U-186378, dated August 9, 1973 (Exh. A) for P18,060.00, appearing to have been signed
and issued by `F. Dycaico', who was then maintaining with the Philippine Bank of Communications,
hereinafter referred also as PBC, a checking account No. 13360. This check was signed and indorsed
by the accused. Upon deposit of this check for P18,060.00, the said sum was posted in the pass book
(Exh. C), as shown in Exhibit C-1. (T.S.N., pp. 5-15, Oct. 10, 1973, hearing).:-cralaw
"On 16 August 1973, the accused withdrew from this Savings Account No. 26580, the sum of
P10,000.00 upon submission to Margarita Tiongson, Teller No. 3, of a withdrawal slip (Exh. E)
accomplished and signed by him. Such withdrawal was posted in the pass book (Exh. C), shown by
Exhibit C-2. Upon receipt of the amount withdrawn, the teller caused the accused to sign at the back
of the withdrawal slip and which signature is marked Exhibit E-1. On the next day, 17 August 1973,
the accused withdrew another amount of P5,500.00 upon defendant's submission to Teller No. 3 of a
withdrawal slip (Exh. F) and the pass book. The withdrawal was posted in the pass book as shown by
Exhibit C-3. Upon receipt of the sum withdrawn, the teller caused the accused to sign at the back of
the withdrawal slip and which signature is marked Exhibit F-1. (T.S.N., pp. 21-30; 32-39, id.).
"On 18 August 1973, the accused went again to the SBTC to deposit another Philippine Bank of
Communications Check No. U-186414 (Exh. H), dated 11 August 1973 for P18,060.00 which appears
to be signed by 'F. Dycaico' against Checking Account No. 13360. Accused, therefore, filled up and
accomplished a deposit slip (Exh. I) for P18,060.00. After accomplishing Exhibit I, accused submitted
the check (Exh. H), the pass book (Exh. C) and the deposit slip (Exh. I) to Candida Abella Villanueva,
Teller No. 5. The deposit of P18,060.00 was thus posted at the pass book (Exh. C), as shown by Exh.
C-4 (T.S.N., pp. 60-70, Id.).
"Sometime in that month of August 1973, Florencio Dycaico, who maintains the Checking Account No.
13360 with the Philippine Bank of Communications saw his Statement of Account and came upon an
amount of P18,060.00 debited against his account. He complained to the PBC that he never issued a
check for that much. With this information PBC informed SBTC that the check, Exh. A, was a spurious
check. So, SBTC officials instructed their bank tellers to watch for Tomas P. Flores. NBI agent
Mamerto Espartero was also assigned to crack down on check forgers or passers in company with an
informer, at the premises of SBTC, in coordination with SBTC officials (T.S.N., pp. 3-7, 12, 16-17, Nov.
12, 1973, hearing).
"Then, came the pay off. The accused appeared in the SBTC premises on 22 August 1973. He filled
up, accomplished and signed a withdrawal slip (Exh. K) for P15,500.00, and after that he submitted
his passbook (Exh. C) with the withdrawal slip to Maria Victoria Soriano, SBTC Teller No. 7.
Forewarned to watch for the accused Tomas P. Flores, she asked the accused to sign his name in
Exh. K, and he did sign it as requested. He signed his name of Koh Tieck Heng (See Exh. K-3). After
that, Teller No. 7 brought the slip and the pass book of Tomas P. Flores. Teller No. 7 returned to her
cage and then called up for Tomas P. Flores. The accused went to Teller No. 7. Teller No. 7 asked
the accused to sign his name at the back, and which signature is marked Exh. K-2. After he signed
Exh. K-2, the NBI agent Espartero swooped down on the accused and apprehended him. The accused
was brought inside the Cashier's Office. He was interviewed and then later brought to the NBI office
where he was investigated. In the course of his investigation, he executed a written statement now
marked Exh. M. (T.S.N., pp. 3-20, Oct. 22, 1973, hearing)." 2
Based on the facts narrated, appellant Koh Tieck Heng, alias Teddy Koh, alias Tomas P. Flores, was
charged in Criminal Case No. 15006 before the then Court of First Instance of Manila, Branch XII, with
the crime of estafa thru falsification of a commercial document in an information which reads:
"That on or about and during the period comprised between August 13, 1973 and August 17, 1973,
inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating with one
whose true name, identity and present whereabouts are still unknown and mutually helping each other,
did then and there wilfully, unlawfully and feloniously, with intent to defraud, commit acts of falsification
on a commercial document in the following manner, to wit: the said accused, after opening a savings
account with the Security Bank and Trust Company, under Savings Account No. 26580 in the name
of Tomas P. Flores, and having somehow illegally obtained possession of Philippine Bank of
Communications Check No. U-186378, dated July 14, 1973, pay to cash, in the amount of P225.00,
issued by F. DYCAICO, and therefore a commercial document, did then and there wilfully, unlawfully
and feloniously forge and falsify and/or cause to be forged and falsified the aforesaid check by then
and there erasing and altering and/or causing to be erased and altered the date and amount of said
check and superimposing or causing to be superimposed over the original date and amount of said
check the following: 'Aug. 9' after the printed word 'MANILA', the figures '73' after the figures '19', the
figures 'P18,060.00' after the sign 'P' and the words 'Eighteen Thousand Sixty Only' after the printed
word 'PESOS', thus causing it to appear as it did appear that said check was issued on August 9,
1973, for the amount of P18,060.00, when in truth and in fact as the said accused well knew, the
correct date of said check is July 14, 1973, and the real amount of the check so drawn and issued by
said F. DYCAICO is only for P225.00, thereby making or causing to be made alterations and changes
in a genuine document which altered or changed its meaning: that once the aforesaid check had been
forged and falsified, altered or otherwise changed in the manner above set forth, said accused affixed
the signature Tomas P. Flores at the back thereof and deposited said check in his account with the
Security Bank and Trust Company, Escolta Branch, this City, which check was cleared by the
Philippine Bank of Communications upon presentation thereof believing that said check is genuine;
and thereafter, said accused, with intent to defraud, withdrew from said account the amounts of
P10,000.00 and P5,500.00 on August 16, 1973 and August 17, 1973 respectively, or a total of
P15,500.00, which amount, once in his possession, said accused misappropriated, misapplied and
converted to his own personal use and benefit, to the damage and prejudice of the Security Bank and
Trust Company and/or the Philippine Bank of Communications in the aforesaid amount of P15,500.00,
Philippine currency." (Emphasis supplied.) 3
On the same date, appellant was also charged in Criminal Case No. 15007 with attempted estafa thru
falsification of a commercial document before the same court under the following information:
"That on or about and during the period comprised between August 18, 1973 and `August 22, 1973,
inclusive, in the City of Manila, Philippines, the said accused, being then a depositor of the Security
Bank and Trust Company, Escolta Branch, this City, under Savings Account No. 26580, conspiring
and confederating together with one whose true name, identity and present whereabouts are still
unknown and mutually helping each other, with intent to defraud, commenced the commission of the
crime of estafa thru falsification of commercial document directly by overt acts, to wit: the said accused
having somehow obtained possession of Philippine Bank of Communications Check No. U-186414,
dated August 11, 1973, pay to cash, in the amount of P2,030.00 issued by F. DYCAICO, and therefore
a commercial document, did then and there wilfully, unlawfully and feloniously forge and falsify and or
cause to be forged and falsified the aforesaid check by then and there erasing and altering and/or
causing to be erased and altered the amount of said check and superimposing or causing to be
superimposed over the original amount of said check the figures 'P18,060.00' after the sign 'P' and the
words 'Eighteen Thousand Sixty Only' after the printed word 'Pesos', thus causing it to appear, as in
fact it did appear, that said check was issued for the amount of P18,060.00, when in truth and in fact
as the accused well knew, the correct and real amount of the check so drawn and issued by said F.
DYCAICO is only for P2,030.00 thereby making or causing to be made alterations and changes in a
genuine document which altered or changed its meaning; that once the aforesaid check had been
forged and falsified, altered or otherwise changed in the manner above set forth, said accused affixed
the signature Tomas P. Flores at the back of said check and deposited the same in his account with
the Security Bank and Trust Company, the latter believing that said check is genuine, accepted the
same for deposit, and thereafter, the said accused with intent to defraud, accomplished a withdrawal
slip for the sum of P15,500.00 and presented the same to the teller of the Security Bank and Trust
Company for the purpose of withdrawing the said amount, but the said accused did not perform all the
acts of execution which should have produced the crime of estafa thru falsification of a commercial
document by reason of some cause other than his own spontaneous desistance, that is, by the timely
discovery made by the officials and/or employees of said bank of the forgery and falsification made on
the aforesaid check before payment could be made which led then and there to the apprehension of
said accused." (Emphasis ours.) 4
Appellant pleaded not guilty when arraigned in both cases, which were subsequently ordered
consolidated. In his defense at the trial, and later adopted for the same purpose in his brief, appellant
claims::
"That on August 9, 1973, he went to the Supersonic Auto Supply, situated at the corner of España and
P. Leoncio Sts., Sampaloc, Manila. He went there to buy auto spare parts as he is engaged in the
buying and selling of auto spare parts. When he was at this store, a person whom accused claimed to
know later as Jimmy Go, was also buying tires. The store did not have tires for sale, and so the tire
salesman pointed to the accused as one who is selling such stuff. So, this man went to the accused
and asked him if he had tires for sale. Accused asked the man who introduced himself to the accused
as Jimmy Go, how many tires he needed. This man told the accused he needed twenty-four (24)
pieces of tires. Accused told this `Jimmy Go' that he had the 24 tires but that he needed cash. Accused
told `Jimmy Go' that he does not accept checks for payment, especially he did not know him. Accused
claims that was the first time he had met this man 'Jimmy Go'. 'Jimmy Go', however, told the accused
that he can issue the check and he can deliver the tires only after having encashed the same. To this
proposition, the accused agreed. 'Jimmy Go', therefore, brought out a check, now Exh. A, and then
signed it in his presence. He signed the name 'F. Dycaico'. He then crossed the check at the upper
left hand corner of the check. Accused claims that except the signature and the lines used to cross
the check as aforementioned all the other handwritten portions of the check were already there when
'Jimmy Go' signed it.
"After signing Exh. A, 'Jimmy Go' handed it to the accused. Seeing the amount to be big, as the cost
price of the 24 pieces of tires was only about P3,000.00, more or less, the accused told, 'Jimmy Go'
that he has no cash to return for the difference. 'Jimmy Go' told him to just deliver the difference after
he has encashed it. So the accused got the check and they parted.
"He claimed he went to the SBTC on 13 August 1973 as he deposited the check (Exh. A) in his bank
account (passbook, Exh. C), filling up therefor a deposit slip (Exh. B.). The accused claimed that on
13 August 1973, he went to withdraw P10,000.00, accomplishing Exh. E. After withdrawing
P10,000.00, the accused went to España St. and delivered to 'Jimmy Go' the P10,000.00. He delivered
the tires in the afternoon. On that same day, 'Jimmy Go' told the accused that he needed the balance
of the money and so he said that he delivered the balance of P5,500.00 on 16 August 1973. On this
date, 16 Aug. 1973, as per his claim, 'Jimmy Go' again delivered to him another check (Exh. H) as
'Jimmy Go' was buying another fifty (50) pieces of tires. So, he took the check and deposited it with
SBTC on his account (passbook, Exh. C). He claims he could not get the proceeds of the checks
because at the time he was withdrawing from his deposit, two men approached him and immediately
handcuffed him" 5
On November 26, 1973 the trial court rendered judgment 6 finding appellant guilty beyond reasonable
doubt of the felonies charged in both cases, the decretal portion of its decision reading as follows:
"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court finding the guilt of the accused for
the crime charged in both cases (No. 15006 and 15007) to have been proved beyond reasonable
doubt, and there being neither mitigating nor aggravating circumstances to affect his penal liability,
hereby imposes upon the accused and sentences him to suffer:
(a) In Crim. Case. No. 15006
an indeterminate penalty of from FOUR (4) years and TWO (2) months of prision correccional, as
minimum, to EIGHT (8) years and ONE (1) day of prision mayor, as maximum, with all the accessory
penalties of the law, and to indemnify the Security Bank and Trust Company the sum of P18,060.00,
sans subsidiary imprisonment in case of insolvency, and to pay the costs; and
(b) In Crim. Case No. 15007
an indeterminate penalty of from TWO (2) years, FOUR (4) months of prision correccional, as minimum,
to six (6) years of prision correccional as maximum, with all the accessory penalties of the law, and to
pay a fine of P5,000.00 and to suffer a subsidiary imprisonment in case of insolvency at the rate of
P8.00 a day, but in no case shall it exceed one-third (1/3) of the term of the sentence nor shall it
continue for more than one year, and to pay the costs.
"The accused shall first serve the sentence imposed in Crim. Case No. 15006, to which shall be
credited four-fifths (4/5) of his preventive imprisonment in the service of his sentence.: rd
SO ORDERED." 7
Not satisfied therewith, petitioner interposed an appeal with respondent Court of Appeals, docketed
therein as CA-G.R. No. 16246-47-Cr. Respondent court, in a decision promulgated on September 26,
1977, affirmed the judgment of conviction but modified the penalties in both cases as follows:
"In Criminal Case No. 15006
to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to six (6) years, eight (8) months and twenty (20) days of prision mayor, as maximum, with
all the accessory penalties of the law; to indemnify the Security Bank and Trust Company in the sum
of P18,060.00, without subsidiary imprisonment in case of insolvency; and to pay the costs; and
In Criminal Case No. 15007
to suffer the penalty of four (4) months and twenty (20) days of arresto mayor, and to pay the costs.
"The Accused shall first serve the sentence imposed in Criminal Case No. 15006 and shall be credited
with the term of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code,
as amended by R.A. No. 6127.
SO ORDERED." 8
Culled from the submissions of both parties in the present appeal and the established facts of these
cases, the issues raised and submitted for determination by us may be synthesized into whether or
not respondent court erred —
(1) In supposedly changing the tenor and or nature of the accusation and convicting appellant on the
basis of this new accusation without having informed him of the nature and cause of the accusation;
(2) In holding that there is a crime of attempted estafa and convicting appellant of such crime in the
absence of the essential elements of deceit and damage; and
(3) In arriving at a conclusion of guilt of the crimes of attempted estafa and estafa, both thru falsification
of commercial documents, on the basis merely of a presumption of law, despite the absence of
evidence showing that appellant committed, or had knowledge of, the crimes charged, in violation of
the constitutional presumption of innocence and doctrinal jurisprudence on proof beyond reasonable
doubt in favor of appellant.
Parenthetically, this petition for review on Certiorari was formerly denied in a Resolution of this Court,
dated August 18, 1978, 9 but was later on given due course on a Motion for Reconsideration and/or
for New Trial, 10 based inter alia, on an alleged letter of one Jimmy Go dated August 14, 1978, which
appellant supposedly received on August 21, 1978 and which he claims he could not have discovered
and produced during the trial of the cases despite diligent efforts to produce the same. Mere zerox
copies of the supposed letter and the mailing envelope were appended to said motion.
We do not, however, deem it proper to include the aforesaid matter in the issues above enumerated
considering that the requirement in the 1964 Rules of Court 11 , which was then in force, to the effect
that a motion for new trial must be supported by affidavits of the witnesses by whom such evidence is
expected to be given, has not been complied with; and (b) the judgment of conviction will not in any
way be affected by such evidence the authenticity and credibility whereof have not been established,
aside from the obvious fact that the tenor thereof is inherently improbable and such a letter could easily
be concocted.: nad
Coming now to the first issue, appellant alleges that there is a variance between the allegations in the
information and the evidence adduced, thereby depriving him of the right to be informed of the nature
and cause of the accusation against him.
The rule that an accused cannot be convicted of an offense not charged or included in the information
is based upon the right to be informed of the true nature and cause of the accusation against him. 12
However, respondent court exhaustively discussed this issue and lucidly explained the facts upon
which its judgment of conviction was predicated, thus:
"It is a fact that under the two informations, the mode of falsification attributed to the Accused is that
of having erased and altered the dates and amounts of the checks in question, and superimposing or
causing to be superimposed over the original dates and amount of said checks other dates and
amounts, thereby making alterations and changes in genuine documents which changed their
meaning. Clearly, therefore, the offense charged is that penalized under Article 172 in relation to Article
171 (6) of the Revised Penal Code.
"It is to be noted, however, that presented in evidence by the prosecution for the First Case were two
checks, Exhs. 'A' and `O', which both bear the identical Check No. U-186378 but the former bears the
amount of P225.00, while the latter that of P18,060.00, both drawn and issued by 'F. Dycaico'. For the
Second Case, two checks were likewise presented, Exhs. 'H' and 'P' which bear the identical Check
No. U-186414, but the former bears the amount of P2,030.00 while the latter that of P18,060.00, both
drawn and issued by 'F. Dycaico'.
"Prosecution witness, Florencio Dycaico, admitted that he issued the checks, Exhs. 'O' and 'P', in the
amounts of P225.00 and P2,030.00 respectively, but denied having issued at all the checks, Exhibits
'A' and 'H', both in the respective amounts of P18,060.00.
"It has to be conceded, therefore, as alleged by the defense, and likewise admitted by the People, that
considering the evidence adduced, there were no erasures nor alterations nor superimpositions as
alleged in both Informations, but that Exhibits 'A' and 'H' were forgeries in toto. In other words, while
the Accused has been charged of Estafa and Attempted Estafa thru Falsification of a commercial
document under Article 172 in relation to Article 171, paragraph 6 the Revised Penal Code, reading
—
'Art. 171. . . . shall falsify a document by committing any of the following acts:
xxx
'6. Making any alterations or intercalation in a genuine document which changes its meaning,'
based on the evidence, the accusation would fall under either paragraph 1 or 2 of Article 171 of the
same Code which reads:
'1. Counterfeiting or imitating any handwriting, signature or rubric;
'2. Causing it to appear that persons have participated in any act or proceeding when they did not in
fact so participate.'
"Be that as it may, as pointed out by the State, the aforementioned variance affects solely the charge
of Falsification, of which the Accused should not have been convicted under the time-honored rule
that an Accused should be informed of the true nature and cause of the accusation against him.
However, with respect to the charges of Estafa and Attempted Estafa, respectively, (complexed under
the two Informations with Falsification of a Commercial Document) conviction would still be proper,
the two essential requisites of Estafa, namely fraud or deceit and damage to another, having been
charged and proven." 13
On the second issue, appellant contends that respondent court erred in convicting him of attempted
estafa in Criminal Case No. 15007 when it admitted in its decision that appellant was not able to
withdraw the value of the second check as he was apprehended in the act of withdrawing the same.
From this, he argues that having failed to withdraw the sum as part value of the second check, no
amount whatsoever was taken by him, hence no damage or prejudice was suffered by the bank.
Absent such damage, he concludes, he cannot be convicted of attempted estafa.: nad
This is specious argumentation.
Basically, the two essential requisites of fraud or deceit and damage or injury must be established by
sufficient and competent evidence in order that the crime of estafa may be established. 14 Deceit is
the false representation of a matter of fact (whether by words or conduct, by false or misleading
allegations, or by concealment of that which should have been disclosed) which deceives or is
intended to deceive another so that he shall act upon it to his legal injury. 15 The fact that appellant
was the possessor and utterer of the checks in question (Exhibits "A" and "H") and having benefited
from the subsequent withdrawals, as well as having attempted to gain by trying to withdraw an amount
thereon, the inevitable conclusion would be that he was the one who falsified said Exhibits "A" and
"H". Ineluctably, the use of the spurious checks is by itself fraud or deceit.
Although one of the essential elements of estafa is damage or prejudice to the offended party, 16 in
the absence of proof thereof the offender would at least be guilty of attempted estafa. Appellant
commenced the commission of the crime of estafa but he failed to perform all the acts of execution
which would produce the crime, not by reason of his own spontaneous desistance but because of his
apprehension by the authorities before he could obtain the amount. Since only the intent to cause
damage and not the damage itself has been shown, respondent court correctly convicted appellant of
attempted estafa.
Lastly, appellant insists that there is no evidence whatsoever pointing to him as the person who
falsified the two checks in question (Exhs. "A" and "H"), as the prosecution failed to refute his version
regarding the circumstances under which he allegedly took possession of the said checks. He further
posits the view that while the courts may apply the presumptions of law in some cases, the
presumption that the possessor of a falsified document is presumed to be the forger does not
constitute proof beyond reasonable doubt and cannot be applied in his case, allegedly because the
provisions not only of the Constitution but also of the Rules of Court must be the basis of the judgment.
We disagree.
While it may appear that the prosecution failed to directly contradict the claim of appellant as to how
he came into possession of the two checks, it is understandable that the prosecution would not always
have the means for obtaining such direct evidence to confute acts contrived clandestinely.
Undoubtedly, too, as a general rule, positive testimony as to a particular fact, uncontradicted by
anyone, should control the decision of the court. Where, however, there is such an inherent
improbability in the testimony or theory of the witness, the court may properly disregard such evidence,
even in the absence of any direct conflicting testimony. We agree with respondent court that the
People's version of the facts deserves more credence and it is more in consonance with human
experience.
As repeatedly expounded by this Court, evidence to be worthy of credit, must not only proceed from a
credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural,
reasonable and probable as to make it easy to believe. 17 No better test has yet been found to
determine the value of the testimony of a witness than its conformity to the knowledge and common
experience of mankind. 18 As bewailed by the court below, the theory espoused by appellant "is taxing
too much the credulity of this Court, an insult to the humble intelligence and the common sense of this
Court." 19
The checks in question (Exhibits "A" and "H") were undeniably spurious, or were forgeries in toto.
Prosecution witness Florencio Dycaico categorically testified that he did not issue said checks but only
those checks in the amount of P225.00 and P2,030.00 (Exhibits "O" and "P"). The disclaimer by
Dycaico of his alleged signatures on the aforesaid checks is prima facie evidence of falsification and
consequently shifts the burden of evidence to appellant to prove otherwise, but which burden appellant
has not discharged.:-cralaw
The court a quo, as well as respondent court, posed the question as to the identity of the forger, and
we are satisfied that both courts did not err in relying upon the presumption that the possessor of a
falsified document is presumed to be the author thereof. It is an established rule that when it is proved
that a person has in his possession a falsified document and makes use of the same, the presumption
or inference is justified that such person is the forger. 20 The petitioner has been shown to have been
the possessor and utterer of the two checks (Exhibits "A" and "H") when he made use of and benefited
therefrom by his withdrawals of and attempt to withdraw funds through said checks. The circumstance,
therefore, that appellant made use of and benefited from the falsified document is a strong evidence
that he either himself falsified it or caused the same to be falsified, 21 he being criminally responsible
in either case. 22 Since appellant is the only person who stood to be benefited by the falsification of
the document that was found in his possession, it is presumed that he is the material author of such
falsification. 23
It is thus apparent that the refusal of respondent Court of Appeals to give credence to the theory of
the defense is substantially supported by the ambient circumstances and the evidence on record.
Besides, this being a petition for review on Certiorari of a decision of respondent court rendered in the
exercise of its exclusive appellate jurisdiction over the decision of the trial court, said decision of
respondent court is "final", subject only to our power of review on questions of law. 24
WHEREFORE, the petition is DENIED and the appealed judgment of respondent Court of Appeals is
hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-
031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
 WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then recognized appellant
who was a frequent visitor of another boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant
up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and
panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only
a small part again of his penis was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant again
chased her. She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat.
 Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and guide his penis in order
to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired
as to the sincerity of the offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are plain and straightforward. To
the Court she was a picture of supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol
G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the manner
as narrated. The partitions of every room were of strong materials, securedly nailed, and
would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common experience will tell us that in
 occasion of conflagration especially occuring (sic) in high buildings, many have been saved
by jumping from some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough indication that something not
ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:

What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this
statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well

as those which are frustrated and attempted, are punishable.

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

There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to
the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and
the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical
certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape where there
is a positive testimony and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

 Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo,
G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua,
being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

G.R. No. 90035 September 13, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADEO HANGDAAN and ROMEL BALLOGAN, defendants. AMADEO
HANGDAAN, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorneys Office for defendant-appellant.

PADILLA, J.:p

In Criminal Case No. 653 of the Regional Trial Court of Lagawe, Ifugao, Branch 14, * the accused-
appellant Amadeo Hangdaan was convicted for the rape of Jocelyn Binoy, a 15 year old girl. His co-
accused Romel Ballogan was not arraigned and tried as he remains at large. Hangdaan was
sentenced to reclusion perpetua and to indemnify the victim in the amount of P30,000.00.1 He has
appealed the decision, contending that the trial court erred in finding and concluding that he is guilty
beyond reasonable doubt of the crime charged.

During the trial of the case, the prosecution established the following facts:2

That in the evening of November 12, 1986, one Jocelyn Binoy, a 15 years old student of the
ISCAF, Nayon, Ifugao, went to attend a program at the Convention Hall Building of said
Institution. After the program, said Jocelyn Binoy went to the girls' dormitory where she
boards. However, before entering the dorm, she went to the toilet for necessity. As she sat to
delicate, (sic) two boys, who were later Identified as Romel Ballogan and Amadeo
Hangdaan, entered the comfort room and both Romel Ballogan and Amadeo Hangdaan
grabbed Jocelyn and pushed her to the wall with Romel poking a knife at her side. That
Jocelyn shouted but her mouth was covered and was threatened with bodily harm if she
does not keep quiet. That as Jocelyn was pushed with her back to the wall of the toilet, her
panty was roughly removed and Romel Ballogan, whose zipper was already opened tried to
insert his penis inside the organ of Jocelyn who was crying with pain. That Romel's penis
was not able to penetrate Jocelyn's vagina as they were in standing position.

Evidence for the prosecution further show that when Romel could not penetrate despite
several attempts, the light went off inside the toilet. So the two boys dragged Jocelyn to a hut
across the river some 150 meters away from the toilet and there she was undressed and
pushed down on the floor. That Romel went on top of Jocelyn and succeeded in raping her.
That Jocelyn tried to resist but was weak and the knife was constantly poked at her side.
That after Romel Ballogan, the accused who is at large in this case, finished having sexual
intercourse with Jocelyn, Amadeo Hangdaan also went on top of Jocelyn and tried to insert
his penis but could not penetrate her as his penis was too big. So Amadeo mashed the
nipples and breast of Jocelyn. After that, Amadeo stood up and again Romel went on top of
Jocelyn for the second time and again succeeded in having sexual intercourse with Jocelyn.
After Romel was through with his second intercourse with Jocelyn, Amadeo again went on
top of Jocelyn and tried to penetrate her but could not put his penis inside so he contended
himself by mashing the breast of Jocelyn. After Amadeo stood up, Romel again went on top
Jocelyn and for the third time had intercourse with her. Then again after Romel, Amadeo
tried but simply could not put in his penis and just mashed the breast of Jocelyn.
 Finally, it is the evidence of the prosecution that after Romel Ballogan succeeded in raping
Jocelyn three times and also three unsuccessful penetrations on the part of Amadeo
Hangdaan, the two men allowed their victim to go home with the warning that if she tells
anyone they will do her harm. That Jocelyn Binoy went dizzily and with pains all over her
body to the dormitory and knocked and the door was opened by Rosa Albino and Jocelyn
while crying told her what happened to her and she was asked to go to sleep until the
following morning. The following morning, Rosa and the principal confronted Jocelyn who
related what happened to her and thereafter the matter was reported to the police authorities
of Lamut, Ifugao. The police went after the accused but only Amadeo Hangdaan was
arrested and Identified by the victim while Romel Ballogan, remained at large.

The defense, on the other hand, denied participation by the accused Hangdaan in the crime charged
and gave Hangdaan's own exculpatory version of the incident, as follows:3

That on November 12, 1986, accused was at their house at Bolog, Kiangan Ifugao. That
after 4:00 o'clock in the afternoon Amadeo Hangdaan, co-accused in this case, proceeded to
Nayon and dropped at the Robles store where he met Romel Ballogan, the other accused in
this case and one Eugenio Mangag who were drinking gin at the Calimlim's store. That the
two offered Amadeo a drink and he took a shot. Then after an hour, the three transferred to
another store where they took some more drinks. While drinking, Romel and Eugenio had a
scuffle with the security guard and thereafter, the three run (sic) away. Later, Amadeo
proceeded to the program at Nayon, Lamut where again he met Romel Ballogan. After an
hour, Amadeo thought of going home. Moments later, Amadeo met Ricardo Namingit and
borrowed his flashlight. Then Amadeo after borrowing the flashlight from Ricardo went back
to the program and there he met again Romel who insisted on borrowing the flashlight from
Amadeo to look for a Batangas knife that he dropped and so Amadeo gave the flashlight.
Moments later, Amadeo Hangdaan met Ricardo and he asked for his flashlight but Amadeo
told Ricardo that he will look for Romel Ballogan and get back the flashlight. Amadeo then
went to the school where the program was held but Romel was not there; then we went to
the dorm but failed to find Romel there. So Amadeo went to the small hut beyond the river
and there he saw Romel lying on top of a girl who was crying softly. The girl asked Amadeo
(sic) help but Amadeo did nothing. Then Amadeo got the flashlight as (sic) he borrowed and
told Romel that he is returning it to Ricardo. Thereafter, Amadeo left for home. The following
morning, he was apprehended by Lt. Brawner, the Station Commander of the INP of Lamut,
Ifugao.

The trial court however, gave credence to the prosecution's evidence and convicted the accused
Amadeo Hangdaan for the crime of rape.4 Whereupon, the accused interposed the present appeal,
with denial as his only defense.

After a careful review of the records and the evidence, we find no cogent reason to disturb the
judgment of the trial court which found the appellant's denial devoid of truth and the appellant guilty
beyond reasonable doubt.

As aptly observed by the People, the accused-appellant's defense leaves much to be desired. He
admits that he was at the scene of the crime and there saw his co-accused, Romel Ballogan, lying
on top of a girl who was crying softly. He also admits that the girl asked his help but he did nothing
except to get back a flashlight from Romel and then left for home after telling Romel that he was
returning the flashlight to Ricardo. Although appellant admitted his presence at the scene of the
incident with a hint that it was his co-accused Romel Ballogan who raped the victim, he, however,
vehemently denies having participated in the commission thereof.
He attempts to bolster such denial by pointing out that unlike his co-accused Romel Ballogan, who
fled and remains at large, he did not hide, thereby showing that he is innocent of the crime charged.5

Appellant's pretended innocence is clearly non-sequitur to his decision not to flee. Apart from the fact
that there is no case law holding that non-flight is conclusive proof of innocence, the argument does
not hold weight in the light of the positive identification of the appellant by the victim as one of two (2)
men who abused her.6 The material factor here is that there is positive Identification of the accused
as the author or, more accurately, co-author of the crime.7

The accused-appellant further advances the argument that since it is probable that the sperm found
in the victim's vagina came from one or more persons, it is also probable that only one person raped
the victim and that the offender or culprit was only Romel Ballogan. The appellant appears to be
stretching his argument too far. We agree with the People when it says that the fact that the sperm
found in the vagina of the victim may have come from one person is not conclusive that it was only
Romel Ballogan who raped the victim. Neither does such medical finding rule out the participation of
the appellant in the commission of the crime.8

It must be pointed out that in the crime of rape, the important consideration is penetration and not
emission. The absence of spermatozoa in the victim's vagina or thereabouts does not necessarily
negate the commission of rape.9 In fact, with or without the medical findings, a conviction would still
be proper in the case at bar given the positive identification of the accused-appellant by the victim,
while medical examination is not an indispensable element in rape cases.10

One other aspect of this case has to be dealt with. It appears from the evidence that accused-
appellant was unable to introduce his private part into the victim's vagina. Was there consummated
rape? There was. The unrebutted evidence for the prosecution positively implicates accused
Hangdaan as having made several efforts to penetrate the victim's vagina. The victim testified:11

xxx xxx xxx

Q And after the accused had forcible intercourse with you, what happened next?

A The other one took over.

Q Whom are you referring to?

A That man in blue. (Witness pointing to Amadeo Hangdaan)

Q And what did this Amadeo Hangdaan do to you?

A He also came over me and tried to insert his penis to my vagina but each time he
tried to do that, it could not go inside so he started mashing my breasts.

COURT: (to the witness)

Q Madam witness, do not cry. I will ask you this question. Although his penis was not
able to penetrate your vagina, you are sure that his penis touched your vagina?

A Yes, but it did not penetrate.

xxx xxx xxx

 Q After this first accused has carnal knowledge of you for the second time, what else
transpired?

A After that the other one took over again and went on top of me and at the same
time mashed my breasts.

Q Did he have sexual intercourse with you for the second time?

A He tried but again his penis could not go inside it was too big.

Q And after this accused Amadeo Hangdaan played with your breasts, what else
transpired?

A After that they permitted me to go home.

Q When this Amadeo Hangdaan was mashing your breasts for the first time, did you
feel his penis inside your vagina?

A It was on my vagina it could not go inside because it was too big and so he could
not do it but mashed my breasts.

COURT:

Q But did it touch your vagina?

A Yes, sir.

xxx xxx xxx

Such testimony of the victim, which was given credence by the trial court, suffices to support the
conclusion that the accused Hangdaan committed the crime of rape. The fact that the
accused repeatedly tried, but in vain, to introduce his big penis into the victim's vagina leaves no
doubt whatever as to the consummation of the crime. For it is settled rule that for rape to be
consummated, it is not essential that there be perfect, complete and full penetration of the vagina.
Mere entry of the labia or lips of the female organ without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction for consummated rape.12

It is enough that there be proof of entrance of the male organ lips the labia of the pudendum,
or lips of the female organ. The sligtest penetration is sufficient to consummate the rape.13

Finally, as this Court has repeatedly ruled, when the victim says that she has been raped, she says
in effect all that is necessary to show that rape has been committed, and if her testimony meets the
test of credibility, the accused may be convicted on the basis thereof.14

In sum, what the appellant's defense really boils down to is that he has greater credibility than the
victim. In this regard, this Court has ruled:

... on the question of the credence to which of the conflicting versions of the prosecution and
defense are entitled, the answer given by the trial court is generally viewed as correct and
entitled to the highest respect.15
 It is the policy of this Court to defer to the factual findings of the trial judge, who has the
advantage of directly observing the witnesses in the stand and to determine by their
demeanor whether they are telling or distoring the truth ... In rape cases especially, much
credence is accorded the testimony of the complaining witness, on the theory that she will
not choose to accuse her attacker at all and subject herself to the stigma and indignities her
accusation will entail unless she is telling the truth.16

WHEREFORE, the judgment appealed from is AFFIRMED in all respects. Costs against the
accused-appellant.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras and Regalado, JJ., concur.

Sarmiento, J., is on leave.
G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is
absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of
the victim since by it he attained his objective. All the elements of the offense were already present
and nothing more was left for the offender to do, having performed all the acts necessary to produce
the crime and accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient. The Court further
held that entry of the labia or lips of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely commenced the
commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or
lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora,
labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in
light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself.
The importance of the requirement of penetration, however slight, cannot be gainsaid because
where entry into the labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed
either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist
between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for the accused — a reclusive life that is not
even perpetua but only temporal on one hand, and the ultimate extermination of life on the other.
And, arguing on another level, if the case at bar cannot be deemed attempted but consummated
rape, what then would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be possible in
light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the
court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under
Art. 335 of the Revised Penal Code as amended by RA 7659. 6

As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down
from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr.,
brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside
her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were
already removed, while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle who were living within
their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of their compound until they
were advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and
its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood
and wanted to ride on his back when she suddenly pulled him down causing both of them to fall
down on the floor. It was in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help from her
brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw
Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow.
At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty
of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger
sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened
within the family compound where a call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the crime. Besides, the door of the room was
wide open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact when
from where she stood she could not have possibly seen the alleged touching of the sexual organs of
the accused and his victim. He asserts that the absence of any external signs of physical injuries or
of penetration of Crysthel's private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she
saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's
vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4)
years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be
understood here as inherently part of the entry of the penis into the labias of the female organ and
not mere touching alone of the mons pubis or the pudendum.

In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's
penis merely touched the external portions of the female genitalia were made in the context of the
presence or existence of an erect penis capable of full penetration. Where the accused failed to
achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the
victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's
testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or
that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied
to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in
this case. There must be sufficient and convincing proof that the penis indeed touched the labias or
slid into the female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis,
are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion
that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the
labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ," 17 but has also progressed into being described as "the introduction of the male organ
into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion.

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of
proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position
to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly
in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
the victim, while his right hand is holding his penis and his left hand is spreading the legs of
the victim).

It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the
victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and
arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the
burden of the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is
and persist in satisfying his lust even when he knows fully well that his dastardly acts have already
been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or
reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question
of the court —

Q: Did the penis of Primo touch your organ?

A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —

Q: But did his penis penetrate your organ?

A: No, sir. 20

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously
induced by a question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language
is bereft of worldly sophistication, an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his
penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the
child's own assertion that she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo
did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
penetration was not fully established, the Court had anchored its conclusion that rape nevertheless
was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's
testimony must be received with due consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story appears to be true, acutely aware of
the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of
the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be
sentenced to death.1âwphi1

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the accused
and the victim. 27

In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from consummated rape
will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape
— are present in the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and
(1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one
(1) day to twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y
BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de
oficio.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Pnganiban, J., in the result.
G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao.3 A more cursory treatment of the
question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition
now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to
commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were hailed by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard
Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at
which point he was apprehended by Lago and brought to the security office. Petitioner claimed he
was detained at the security office until around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the prosecutor’s office where he
was charged with theft.14 During petitioner’s cross-examination, he admitted that he had been
employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the
Court of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a
position to freely dispose of the articles stolen.20 However, in its Decision dated 19 June 2003,21 the
Court of Appeals rejected this contention and affirmed petitioner’s conviction.22 Hence the present
Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified to only of
Frustrated Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
 invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case
of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting.35 Accepted in this
jurisdiction as material in crimes mala in se,36 mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner,"43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another."44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain.46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking48 or an intent to permanently
deprive the owner of the stolen property;49 or that there was no need for permanency in the taking or
in its intent, as the mere temporary possession by the offender or disturbance of the proprietary
rights of the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the
Court adopted the latter thought that there was no need of an intent to permanently deprive the
owner of his property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once."66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted,"67 though no further qualification was offered what the
effect would have been had that alternative circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense."76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony."77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence."81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was
apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect.85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things.90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effected animo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for
the accused which does not reflect any legislated intent,95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

 [G.R. NO. 168852 : September 30, 2008]

SHARICA MARI L. GO-TAN, Petitioner, v. SPOUSES PERFECTO C. TAN and JUANITA L.

TAN, Respondents.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing
the Resolution1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in
Civil Case No. Q-05-54536 and the RTC Resolution2 dated July 11, 2005 which denied petitioner's
Verified Motion for Reconsideration.

The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were
married.3 Out of this union, two female children were born, Kyra Danielle4 and Kristen Denise.5 On
January 12, 2005, barely six years into the marriage, petitioner filed a Petition with Prayer for the
Issuance of a Temporary Protective Order (TPO)6 against Steven and her parents-in-law, Spouses
Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She alleged that Steven, in
conspiracy with respondents, were causing verbal, psychological and economic abuses upon her in
violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i)7 of Republic Act (R.A.) No.
9262,8 otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004."

On January 25, 2005, the RTC issued an Order/Notice9 granting petitioner's prayer for a TPO.

On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of
Permanent Protection Order Ad Cautelam and Comment on the Petition,10 contending that the RTC
lacked jurisdiction over their persons since, as parents-in-law of the petitioner, they were not covered
by R.A. No. 9262.

On February 28, 2005, petitioner filed a Comment on Opposition11 to respondents' Motion to Dismiss
arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed
at promoting the protection and safety of victims of violence.

On March 7, 2005, the RTC issued a Resolution12 dismissing the case as to respondents on the
ground that, being the parents-in-law of the petitioner, they were not included/covered as
respondents under R.A. No. 9262 under the well-known rule of law "expressio unius est exclusio
alterius."13

On March 16, 2005, petitioner filed her Verified Motion for Reconsideration14 contending that the
doctrine of necessary implication should be applied in the broader interests of substantial justice and
due process.

On April 8, 2005, respondents filed their Comment on the Verified Motion for
Reconsideration15 arguing that petitioner's liberal construction unduly broadened the provisions of
R.A. No. 9262 since the relationship between the offender and the alleged victim was an essential
condition for the application of R.A. No. 9262.

On July 11, 2005, the RTC issued a Resolution16 denying petitioner's

Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the
coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the law.

Hence, the present petition on a pure question of law, to wit:

WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF

SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE
ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE
"ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17

Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section
47 of R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal
Code (RPC) and, accordingly, the provision on "conspiracy" under Article 8 of the RPC can be
suppletorily applied to R.A. No. 9262; that Steven and respondents had community of design and
purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to
be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and
physically; that respondents should be included as indispensable or necessary parties for complete
resolution of the case.

On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3
thereof explicitly provides that the offender should be related to the victim only by marriage, a former
marriage, or a dating or sexual relationship; that allegations on the conspiracy of respondents
require a factual determination which cannot be done by this Court in a Petition for Review; that
respondents cannot be characterized as indispensable or necessary parties, since their presence in
the case is not only unnecessary but altogether illegal, considering the non-inclusion of in-laws as
offenders under Section 3 of R.A. No. 9262.

The Court rules in favor of the petitioner.

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as "any act or a
series of acts committed by any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty."

While the said provision provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the
principle of conspiracy under the RPC.

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC,
thus:

SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other
applicable laws, shall have suppletory application. (Emphasis supplied)

Parenthetically, Article 10 of the RPC provides:

ART. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future
may be punishable under special laws are not subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the latter should specially provide the contrary.

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity
to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a
particular matter.

Thus, in People v. Moreno,18 the Court applied suppletorily the provision on subsidiary penalty under
Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the "Revised Motor
Vehicle Law," noting that the special law did not contain any provision that the defendant could be
sentenced with subsidiary imprisonment in case of insolvency.

In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of sentences
provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations
of R.A. No. 6425, otherwise known as the "Dangerous Drugs Act of 1972," considering the lack of
similar rules under the special law.

In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define
the words "principal," "accomplices" and "accessories" under R.A. No. 8042, otherwise known as the
"Migrant Workers and Overseas Filipinos Act of 1995," because said words were not defined therein,
although the special law referred to the same terms in enumerating the persons liable for the crime
of illegal recruitment.

In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment under
Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks
Law," noting the absence of an express provision on subsidiary imprisonment in said special law.

Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of conspiracy
under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein.

With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied
suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC, which by their nature, are
necessarily applicable, may be applied suppletorily.

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and
the precise extent or modality of participation of each of them becomes secondary, since all the
conspirators are principals.

It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of
violence against women and their children may be committed by an offender through another, thus:

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women
and their children is committed through any of the following acts:

xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
that alarms or causes substantial emotional or psychological distress to the woman or her child. This
shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his
will;

(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the
woman or her child;

(5) Engaging in any form of harassment or violence; x x x.

In addition, the protection order that may be issued for the purpose of preventing further acts of
violence against the woman or her child may include

individuals other than the offending husband, thus:

SEC. 8. Protection Orders. - x x x The protection orders that may be issued under this Act shall
include any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing, personally or through
another, any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of
victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law24 and that this intent must be effectuated by
the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the
legislature for liberal construction as will best ensure the attainment of the object of the law
according to its true intent, meaning and spirit - the protection and safety of victims of violence
against women and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius" finds
no application here. It must be remembered that this maxim is only an "ancillary rule of statutory
construction." It is not of universal application. Neither is it conclusive. It should be applied only as a
means of discovering legislative intent which is not otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the legislature.25

The Court notes that petitioner unnecessarily argues at great length on the attendance of
circumstances evidencing the conspiracy or connivance of Steven and respondents to cause verbal,
psychological and economic abuses upon her. However, conspiracy is an evidentiary matter which
should be threshed out in a full-blown trial on the merits and cannot be determined in the present
petition since this Court is not a trier of facts.26 It is thus premature for petitioner to argue evidentiary
matters since this controversy is centered only on the determination of whether respondents may be
included in a petition under R.A. No. 9262. The presence or absence of conspiracy can be best
passed upon after a trial on the merits.

Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A. No.
9262, the Court will no longer delve on whether respondents may be considered indispensable or
necessary parties. To do so would be an exercise in superfluity.

WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7, 2005 and
July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are
hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the petition against
respondents is concerned.

SO ORDERED.
G.R. No. 102140 April 22, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO MANLULU AND DANTE SAMSON, accused-appellants.

The Solicitor General for plaintiff-appellee.

Celso P. De Las Alas for accused-appellants.

BELLOSILLO, J.:

GERARDO ALFARO, a NARCOM agent, was stabbed and shot with his service pistol in a drinking
spree. He died in the hospital the following day. His drinking partners, Rolando Manlulu and Dante
Samson, were haled to court for his violent death.

The prosecution charges that Manlulu and Samson conspired in the murder of Agent Alfaro. The
accused on the other hand invoke self-defense. They also insist that the non-issuance of a search
warrant and warrant of arrest should nullify their arrest and consequently exclude from judicial
consideration the evidence thus obtained.

But the trial court was not convinced. It found accused Dante Samson and Rolando Manlulu "guilty
beyond reasonable doubt as principals in the crime of Murder defined and penalized under Article
248 of The Revised Penal Code with the mitigating circumstance of voluntary surrender on the part
of Dante Samson and no mitigating circumstance modifying the commission of the offense on the
part of Rolando Manlulu." 1 As a result, accused Dante Samson was sentenced to a prison term of
ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal, as maximum, while accused Rolando Manlulu, to
twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as minimum, to
eighteen (18) years, eight (8) months and one (1) day of reclusion perpetua as maximum. They were
also sentenced jointly to indemnify the offended party P30,000.00 as compensatory damages and
P10,410.00 for hospitalization and funeral expenses, and to pay the costs.

Upon review, the appellate court raised their penalties to reclusion perpetua and certified the case to
this Court pursuant to Sec. 13, Rule 124, of the 1985 Rules on Criminal Procedure. 2

Testifying for the prosecution, Wally Manlapaz, a.k.a. Crisanto Meneses, narrated that at around ten
o'clock in the evening of 29 May 1986, he and accused Dante Samson and Rolando Manlulu were
having a drinking spree in an alley along Quirino Avenue, Paco, Manila. They were later joined by
Agent Gerardo Alfaro who had a .45 cal. pistol tucked to his waist. When Alfaro arrived he blurted
out, "Dito may kumakatalo sa aking tao." 3 At twelve o'clock midnight, the group transferred in front
of the house of Manlapaz and continued to drink. There Samson suddenly stabbed Alfaro in the
chest with a 6-inch double-bladed knife while boasting, "Dapat sa iyo manahimik na." 4 Alfaro at this
time was "somewhat bent because he was already drunk." 5 Manlulu then followed suit and stabbed
Alfaro in the abdomen several times with an ice pick they used to chip ice. Samson grabbed the .45
cal. service pistol of Alfaro and shot him in the neck. When Alfaro slumped on the pavement, both
accused fled, with Samson holding Alfaro's handgun. After a few seconds, both accused returned
and got Alfaro's wristwatch and wallet. 6
Noel Pagco, another witness for the prosecution, recounted that at the time of the shooting he was
outside the alley where the accused and the deceased were drinking. After hearing a gunshot
coming from the direction of the alley, he saw Dante Samson and Rolando Manlulu coming out the
alley, the former tucking a gun in his waist and sporting a watch on his right wrist, and the latter
holding an ice pick. 7

As already adverted to, both accused invoke self- defense. According to Samson, while they were
drinking, and after taking ekis pinoy, 8 Alfaro said he had a "prospect" and invited them to go with
him. Thinking that "prospect" meant they were going to rob somebody, Samson excused himself by
saying that he had just been released from prison and had yet to fetch his wife. Alfaro, apparently
resenting Samson's unwillingness to join them, drew his gun and pointed it to Samson who parried it
saying: "Pare, wala tayong biruan ng ganyan. Baka pumutok iyan." But Alfaro repeatedly pointed the
gun to him. Every time he did, Samson would push the gun aside. Fearful that it might go off, he held
the gun and tried to ward it off, resulting in a struggle for its possession. He got hold of the ice pick
on top of the drum and stabbed Alfaro instinctively. Manlapaz tried to separate them; as a
consequence, Samson dropped the ice pick. As Samson and Alfaro continued to wrestle for the
possession of the gun, they fell on the ground and the gun accidentally went off hitting Alfaro in the
neck. Rattled, Samson immediately fled. He then fetched his wife from Malate, proceeded to Pasay
City, and sent word to his father who later accompanied him to surrender to Capt. Pring of the
Homicide Division of the Western Police District. When he fled, he left behind Alfaro's gun. 9

Rolando Manlulu corroborated the testimony of his co-accused. He added that he picked up the ice
pick when it fell and fearing that he might be the next victim should Alfaro succeed in shooting
Samson, he (Manlulu) stabbed Alfaro several times with the ice pick, then dropped it, and ran away.
He looked back and saw Samson and Alfaro fall on the pavement. Almost simultaneously, the gun
went off. 10

Patrolman Reynaldo Perez recounted that at around seven o'clock in the evening of 30 May 1986
he, together with some other officers, arrested Manlulu on the information given by Manlapaz. He
said that he seized from Manlulu the .45 cal. pistol and Casio wristwatch said to belong to
Alfaro, 11 and that Manlulu verbally confessed to the commission of the crime. Patrolman Perez
however admitted on cross- examination that when he arrested Manlulu and seized from him the
handgun as well as the wristwatch, he (Perez) was not with any warrant nor did he inform the
accused of the latter's right to counsel. Perez added that at that time Manlulu was under the
influence of liquor. 12

Dr. Marcial Ceñido, Medico-Legal Officer of the Western Police District, confirmed that Alfaro
sustained nine (9) wounds, four (4) of them fatal, i.e., a gunshot wound in the neck; a penetrating
stab wound probably caused by a bladed weapon, and two (2) stab wounds probably caused by an
ice pick. 13

In this appeal, accused Manlulu and Samson would want us to believe, first, in their version of the
incident, and next, that they acted in self-defense.

The account of the appellants does not inspire belief. A review of the testimony of Manlapaz, who
admittedly had drunk a little too much, reveals that his story tallies not only with some accounts of
accused Samson and Manlulu but also with the findings of Dr. Ceñido. Hence, except for the actual
attack on the victim, the testimonies of Samson and Manlulu square with that of Manlapaz, including
the conversation that took place. Thus we give credence to the testimony of Manlapaz that Samson
used a bladed weapon and not an ice pick in stabbing Alfaro, contrary to what Samson would want
us to believe. This version of Manlapaz is consistent with the necropsy report of Dr. Ceñido which
states that the deceased had a penetrating stab wound which could have been caused by a bladed
weapon. That Manlulu according to Manlapaz used an ice pick in repeatedly stabbing Alfaro was not
only admitted by Manlulu on the witness stand but is confirmed likewise by the medical findings of
Dr. Ceñido.

If Manlapaz was indeed too drunk to recall the events that transpired before the actual killing, then in
all probability he could not have remembered the weapons used by the accused. Certainly,
eyewitness Manlapaz could not have been so drunk as to muddle those incidents which impute guilt
to the accused and recall only those which are consistent with their innocence.

Similarly, we cannot disregard those portions of the testimonies of the two accused which tend to
confirm the narration of Manlapaz. Expectedly, the accused will refute the statements tending to
establish their culpability. Hence, they have to differ in some respects from the narration of
Manlapaz. Since it appears from the testimony of Manlapaz that he had not yet reached that degree
of intoxication where he would have otherwise lost control of his mental faculties, we find his version
to be credible as it conforms with the autopsy report and admissions of both accused. 14 Thus, we
sustain the factual findings of the trial court and reject the version of the defense. But, even if we
consider the theory of the accused thus far if only to satisfy them, still they cannot elude the
consequences of their felonious acts. By invoking self-defense, the accused admit killing Alfaro. The
burden of proof is thus shifted to them. Their duty now is to establish by clear and convincing
evidence the lawful justification for the killing. 15 In this regard, they have miserably failed.

The three (3) requisites for self-defense are: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel it; and, (3) lack of sufficient
provocation on the part of the person defending himself. 16 For self- defense to prosper, it must be
positively shown that there was a previous unlawful and unprovoked attack that placed the life of the
accused in danger which forced him to inflict more or less severe wounds upon his assailant,
employing therefore reasonable means to resist said attack. 17

Here, at the outset, the two accused have already failed to show that there was unlawful aggression
on the part of Alfaro. A gun aimed at the accused, without more, is insufficient to prove unlawful
aggression. For unlawful aggression to be appreciated in self-defense, there must be an actual,
sudden and unexpected attack or imminent danger thereof, and not merely a threatening or
intimidating attitude. 18

Even the means employed to repel or prevent the supposed attack was not reasonable. For, even if
we disregard the gunshot wound which Samson claims to have resulted from an accidental firing,
the victim also suffered seven other stab wounds, three of which were fatal, one of which was
admittedly inflicted by Samson, while the other two, by accused Manlulu. Definitely, it was not
necessary to stab, more so repeatedly, the victim. Considering their relative positions as they drank -
each within the other's reach — all that was necessary was for the two accused to band together
and overpower the lone victim with their bare hands, assuming the deceased was indeed pointing
his gun at one of them. A stab wound may not necessarily be fatal and thus enable the victim to fire
his gun. But a firm grasp by the two accused of the victim's arm holding the gun, or of the gun itself,
could prevent the victim from shooting them. At any rate, the number of wounds suffered by Alfaro
indicates a determined effort of both accused to kill the victim, which negates self- defense. 19

Furthermore, their flight from the scene of the crime is a strong indication of their guilt. 20 Indeed, a
righteous individual will not cower in fear and unabashedly admit the killing at the earliest opportunity
if he were morally justified in so doing. A belated plea suggests that it is false and only an
afterthought made as a last ditch effort to avoid the consequences of the crime. If the accused
honestly believed that their acts constituted self-defense against the unlawful aggression of the
victim, they should have reported the incident to the police, instead of escaping and avoiding the
authorities until they were either arrested or prevailed upon to surrender. 22

The reliance of the accused on the Constitution however is warranted. Certainly, the police
authorities should have first obtained a warrant for the arrest of accused Rolando Manlulu, and for
the search and seizure of his personal effects. The killing took place at one o'clock in the morning.
The arrest and the consequent search and seizure came at around seven o'clock that evening, some
nineteen hours later. This instance cannot come within the purview of a valid warrantless arrest.
Paragraph (b), Sec. 5, Rule 113 of the 1985 Rules on Criminal Procedure provides that the arresting
officer must have "personal knowledge" of an offense which "has in fact just been committed." In the
instant case, neither did Pat. Perez have "personal knowledge," nor was the offense "in fact just
been committed." While Pat. Perez may have personally gathered the information which led to the
arrest of Manlulu, that is not enough. The law requires "personal knowledge." Obviously, "personal
gathering of information" is different from "personal knowledge." The rule requires that the arrest
immediately follows the commission of the offense, not some nineteen hours later. This is not any
different from People v. Cendana 23 where the accused was arrested one day after the killing of the
victim, and only on the basis of information obtained by the police officers. There we said that the
"circumstances clearly belie a lawful warrantless arrest."

However, the flaw, fatal as it may be, becomes moot in view of the eyewitness account of Manlapaz
which we find to be credible. Hence, in spite of the nullification of the arrest of accused Manlulu, and
the exclusion of real evidence, i.e., the .45 cal. service pistol of Agent Alfaro and his Casio
wristwatch, as well as his extra-judicial confession which was taken in violation of the provisions of
the Constitution, still the prosecution was able to prove the guilt of the accused beyond reasonable
doubt. After all, the illegality of the warrantless arrest cannot deprive the state of its right to
prosecute the guilty when all other facts on record point to their culpability. 24

While we confirm the factual findings of the trial court, which were affirmed by the appellate court, we
nevertheless differ from the conclusions drawn that treachery and conspiracy attended the killing of
Alfaro. Indeed, there is serious doubt as to whether treachery could be appreciated against the two
accused. There is nothing on record to show that both accused deliberately employed means
tending to ensure the killing of Alfaro without risk to themselves arising from the defense which the
latter might make. It must be noted that Alfaro set the mood of the evening with a threatening tone
that someone in the group was provoking him. Clearly, the attack on Alfaro who was then armed
with a .45 cal. revolver by Samson who on the other hand was merely armed with a knife could not
have been so sudden as to catch the former off-guard. In fact, Manlapaz testified that after Samson's
initial attack on Alfaro the latter was even able to push Samson back. 25 Even Manlulu, who
impulsively stabbed the victim, only picked up the ice pick they were using to chip ice. Taking into
account the attendant circumstances, our minds cannot rest easy in appreciating the aggravating
circumstance of treachery. Hence, the two accused may only be convicted of simple homicide.

There was no conspiracy likewise in the killing of Alfaro. Settled is the rule that neither joint nor
simultaneous action per se is a sufficient indicium of conspiracy.26 The evidence shows that it was
the victim who chanced upon Manlapaz and the two accused drinking, and decided to join them.
Accused Manlulu was not even armed when he went to the drinking spree. We have often said that
conspiracy must be established beyond reasonable doubt. Here, the prosecution failed to show that
Manlulu and Samson conspired to kill Alfaro. There being no conspiracy, each is liable for his own
acts.

The penalty for homicide is reclusion temporal 27 the range of which is twelve (12) years and one (1)
day to twenty (20) years. Applying the Indeterminate Sentence Law to accused Rolando Manlulu,
there being no mitigating nor aggravating circumstance, the maximum of his penalty shall be taken
from the medium period of reclusion temporal, which is fourteen (14) years, eight (8) months and
one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is six (6) years and one (1)
day to twelve (12) years, in any of its periods.

As regards accused Dante Samson, although he is entitled to the mitigating circumstance of

voluntary surrender, the same is offset by reiteracion or habituality he having previously been
convicted once of robbery and thrice of theft28 within ten (10) years prior to this incident, each time
serving sentence therefor, which further bars him from availing of the provisions of the Indeterminate
Sentence Law.29 Consequently, he should be sentenced to reclusion temporal medium the range of
which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4)
months. Furthermore, being a habitual delinquent as defined in the last paragraph of Art. 62 of The
Revised Penal Code,30 he should serve an additional penalty within the range of prision
mayor maximum to reclusion temporal minimum.31 And, as correctly determined by the appellate
court, the civil liability of both accused is increased from P30,000.00 to P50,000.00. In addition, both
accused are liable to indemnify the heirs of their victim in the amount of P10,410.00 for
hospitalization and funeral expenses.

WHEREFORE, the judgment appealed from is modified as follows:

(a) ROLANDO MANLULU is found guilty of HOMICIDE and is sentenced to an indeterminate prison
term of eight (8) years, two (2) months 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;

(b) DANTE SAMSON is found guilty of HOMICIDE and is sentenced to a straight prison term of
fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal medium and, for
being a habitual delinquent, is ordered to serve an additional penalty of ten (10) years and one (1)
day of prision mayor maximum; and

(c) ROLANDO MANLULU and DANTE SAMSON are directed jointly and severally to pay the heirs of
Gerardo Alfaro the amount of P50,000.00 as civil indemnity and P10,410.00 as death and funeral
expenses, with costs.

SO ORDERED.

Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

G.R. No. 104664 August 28, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELYBOY SO Y ORBES, accused-appellant.

KAPUNAN, J.:

Before us is an appeal from the Decision of the Regional Trial Court of Manila, Branch XLIX in
Criminal Case No. 91-95478, convicting the appellant Elyboy So of the crime of murder and
imposing on him the penalty of reclusion perpetua.

On 10 June 1991, Elyboy So was charged with murder before the Regional Trial Court of Manila for
the death of Mario Tuquero. The information reads:

That on or about June 3, 1991, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and feloniously, with intent to kill and with
treachery and evident premeditation, attack, assault and use personal violence upon
the person of one Mario Tuquero y Alas by then and there stabbing him several
times with a fan knife on different parts of his body, thereby inflicting upon said Mario
Tuquero Y Alas mortal wounds which were the direct and immediate cause of his
death thereafter.

Contrary to law.1

On 19 July 1991, appellant, assisted by counsel de officio, pleaded "NOT GUILTY."2

After trial on the merits, the Regional Trial Court handed down its decision on 17 January 1995, the
dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding the
Accused guilty beyond reasonable doubt of the crime of "Murder" qualified by
treachery, as defined in and penalized by Article 248 of the Revised Penal Code and
hereby condemns the said Accused to suffer the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law. The Accused is hereby
ordered to indemnify the heirs of Mario Tuquero in the amount of P50,000.00. The
period during which the Accused was detained in the City Jail shall be credited to him
in full provided that he agreed in writing to abide by and comply strictly with the rules
and regulations of the City Jail of Manila. With costs against the Accused.

SO ORDERED.

The facts established by prosecution's evidence are summarized in the People's brief as follows:

On June 2, 1991, at around 9:00 p.m., Elyboy So met his lady friend, Teresita
Domingo, in a jeep in Quiapo bound for Pasig. Since Elyboy's house which is located
in 2969-D Ramon Magsaysay Boulevard, Sta. Mesa, Manila, is walking distance to
Teresita's house located in 2050 Abad Santos Street, Sta. Mesa, Manila, Teresita
requested Elyboy to bring her home (tsn, Oct. 23, 1991, pp. 6-7; Nov. 12, 1991, p. 7).
While walking along Araullo Street on their way to Teresita's house, they passed by
the house of Elyboy's first cousin, Esteban, Edgar, and Emy, all surnamed So (tsn,
Oct. 23, 1991, pp. 8-9).

When they passed by his cousins' house, he saw his cousin Edgar with Ronnie Tan
and three (3) others and noticed that a drinking spree was taking place in front of the
house (tsn, Oct. 23, 1991, pp. 9-10).

Upon seeing Elyboy, Edgar greeted him by saying: "Bingbong Crisologo is coming
(tsn, Oct. 23, 1991, p. 10). He then invited Elyboy to have a drink and requested that
his lady companion be introduced to them (tsn, Oct. 23, 1991, p. 11). Elyboy
answered: "I cannot introduce her to you because she is mine." (tsn, Oct. 23, 1991,
p. 12).

Elyboy then proceeded to bring Teresita directly to her house (tsn, Oct. 23, 1991, p.
12).

Immediately after bringing Teresita to her house, Elyboy passed by his cousins'
house to honor their invitation (tsn, Oct. 23, 1991, p. 12).

After an exchange of pleasantries, Edgar offered Elyboy a bottle of beer which the
latter declined because it was already past 10:00 p.m. and he was on his way home
already. Edgar convinced him to drink just a little and to stay awhile so he could also
meet his future brother-in-law, Mario Tuquero, who will arrive later with his sister
Emy. Elyboy was prevailed upon to stay on as he was also interested in meeting
Mario (tsn, Oct. 23, 1991, p. 14).

Before Emy and Mario arrived, Edgar invited Elyboy and Ronnie to watch the dance
in the playground which was part of the fiesta celebration. At the playground,
Esteban met Edgar, Elyboy and Ronnie and informed them that Emy and Mario had
arrived and instructed them to buy beer
(tsn, October 23, 1991, pp. 15-18).

Edgar, Elyboy and Ronnie proceeded to buy beer while Esteban went home ahead
of them (tsn, October 23, 1991, p. 19).

After buying beer, they proceeded to the house. Upon arriving in the house, Emy
introduced Elyboy to her boyfriend Mario (tsn, Oct. 23, 1991, pp. 14-20).

Mario Tuquero worked as a manager of a restaurant in Paris, France, and arrived in

the Philippines on March 7, 1991. Emy So, who is a registered nurse, met Mario
sometime in March, 1991 and they started living in as husband and wife in her
parents' house at 1920, Araullo Street, Sta. Mesa, Manila, also in the same month
until June, 1991. However, Mario was legally married to a certain Evelyn Tuquero
and this fact was not known to Emy (tsn, Sept. 4, 1991, pp. 37-39, 42-43, 54-55).

The group, consisting of Esteban, Edgar, Elyboy, Ronnie, Mario and Emy resumed
their drinking spree. However, after the group consumed four (4) cases of beer and
before 3:00 a.m., Emy felt sleepy and went inside (tsn, Sept. 4, 1991, p. 52; Oct. 23,
1991, p. 21).
While Emy was sleeping inside the house, she was awakened by the noise coming
from the group outside their house (tsn, Sept. 4, 1991, p. 59).

It turned out that Elyboy had a misunderstanding and altercation with somebody and
he was shouting loudly, disturbing the neighbors in the process (tsn, Sept. 4, 1991,
pp. 59, 63).

After pacifying the protagonists, Mario advised Elyboy to go home because his loud
voice was disturbing the neighbors (tsn, Sept. 4, 1991,
pp. 62-63).

After he was pacified and advised to go home, Elyboy ran towards home (tsn, Sept.
4, 1991, pp. 62-63).

At around 4:00 a.m. of June 3, 1991 Mario and Emy decided to leave for Fairview
Subdivision, Quezon City, in order to get papers of a vehicle owned by Mario that
they will bring out of the Bureau of Customs (tsn, Sept. 4, 1991, pp. 30-31, 60).

While Mario and Emy were waiting for a taxi at the corner of Magsaysay Avenue and
Pureza Street, Elyboy suddenly appeared from behind and stabbed Mario at the
back several times with an eleven inch fan knife with a white handle (tsn, Sept. 4,
1991, pp. 30, 32, 67; Sept. 9, 1991, p. 25).

Emy shouted for help (tsn, Sept. 4, 1991, p. 33).

When Mario was about to run, he slid and fell to the ground lying on his back. Elyboy
took advantage of this circumstance and repeatedly stabbed Mario on the front part
of his body (tsn, Sept. 4, 1991, p. 33).

Emy pleaded to Elyboy to stop stabbing Mario but Elyboy ignored her and continued
delivering stabbing blows at Mario (tsn, Sept. 4, 1991,
p. 34).

Elyboy fled from the scene of the crime and ran to a dark alley (tsn., Sept. 4, 1991, p.
34; Oct. 23, 1991, p. 40).

Emy called for a taxi that passed by and brought Mario Tuquero to the University of
the East-Ramon Magsaysay Memorial Hospital (tsn., Sept. 1991, p. 34).

Elyboy stayed in the alley for about thirty (30) minutes until the policemen arrived at
the scene of the crime and shouted at him to surrender. After a while, Elyboy went
out of hiding and shouted at the policemen not to fire because he is surrendering.
When Elyboy surrendered, he was blushing and uneasy and naked from the waist up
because he removed his shirt to wipe the blood on his face (tsn, Sept. 9, 1991, pp. 6,
13; Nov. 12, 1991,
p. 3).

Elyboy was then brought by the policemen to Precinct No. 8 of the Western Police
District and the fan knife used was surrendered by Barangay Chairman Aida de los
Santos to the police authorities (tsn., Sept. 9, 1991, pp. 7, 25).
 As a result of the stabbing incident, Mario suffered several stab wounds numbering
eighteen (18) on the different parts of his body with at least four (4) fatal wounds
causing his death (tsn., Sept. 4, 1991, pp. 8-23).4

Appellant vehemently opposed the version of the prosecution. According to him, while they were
drinking and talking about France, Esteban So suddenly stood up and said that the reason he was
not able to work in France is because his surname was "So". Appellant felt aggrieved as he recalled
the time when he lived with Esteban So and his family and was driven out by them. He was told that
his only link to them is the surname "So". Then when Esteban So pulled a knife and Edgar So broke
bottles of beer and Mario Tuquero pulled out "something" from his socks, appellant, fearing for his
life, fled. Appellant claims that Esteban So and Mario Tuquero chased him but were not able to catch
him.5

Appellant further narrated that when he tried to go back to his cousin's house and talk to them, he
met Mario Tuquero and Emy So at the corner of Pureza and Magsaysay Streets. Suddenly Mario
Tuquero attacked him with a knife but because Tuquero's thrust was slow, he was able to evade it.
He grabbed the knife and proceeded to stab Tuquero repeatedly. He ignored the pleas of Emy So
but finally stopped when four (4) persons in a jeep passed by and shouted at him. He ran into a dark
alley until the police came and brought him to the police precinct.6

Appellant claimed self-defense and in the instant appeal assigned the following errors:

THE LOWER COURT ERRED WHEN IT OVERRULED SELF-DEFENSE IN THE

INSTANT CASE.

II

THE LOWER COURT ERRED WHEN IT HELD THAT THE TESTIMONY OF

ACCUSED-APPELLANT ELYBOY SO IS UNDESERVING OF CREDIT,
IMPROBABLE AND IMPLAUSIBLE.

III

THE LOWER COURT ERRED WHEN IT FOUND THAT THERE WAS TREACHERY
IN THE INSTANT CASE.

IV

THE LOWER COURT ERRED WHEN IT DISREGARDED THE EXEMPTING

CIRCUMSTANCE OF INSANITY ON THE PART OF ACCUSED-APPELLANT
ELYBOY SO.

THE LOWER COURT ERRED WHEN IT CONVICTED ACCUSED-APPELLANT OF

THE CRIME OF MURDER.7

We deny the appeal.

Appellant's second assigned error, in essence, raises the issue of credibility of witnesses. Whose
testimony is more believable and reliable, prosecution witness Emy So's narration or appellant's
version? Appellant would like us to believe that Emy So's testimony was biased in favor of her
brothers and the victim who was her common-law-husband8 and aggravated by an alleged grudge
harbored by her family against appellant's family.

We give no credence to appellant's argument. Long settled in criminal jurisprudence is the rule 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 and value that, if
considered, might affect the result of the case.9 In the instant case, although Emy So readily
admitted that her relationship with appellant was "not close", she explained that it was appellant who
had ill-feelings against her family and bore a grudge. The defense has not shown such degree of
partiality on the part of prosecution witness Emy So as would cast doubt on her credibility and
impeach her testimony, especially when said testimony is "not inherently improbable in itself".10 Emy
So testified thus:

xxx xxx xxx

COURT: You mentioned of a grudge between your family and that of the Accused and this referred
to the surname, So. What was the trouble all about?

WITNESS: Actually, there was no grudge with respect to the family name So. They really have a
grudge in our family, Your Honor.

COURT: What was that grudge all about?

WITNESS: Their family is a broken family and ours is intact, Your Honor. And they live only from
hand-outs from relatives and also from us, Your Honor.

COURT: So, what was the grudge about? You even help them. You even helped the Accused. What
was the grudge all about?

WITNESS: I just do not know really why they have such ill feelings towards us. I think it's jealousy
"inggit", Your Honor.

xxx xxx xxx

ATTY. DELOS SANTOS: You are not concerned with Elyboy he being not a resident in your
community?

WITNESS: No, ma'am.

ATTY. DELOS SANTOS: That is because you have grudge over this person. Referring to the
Accused, is that correct?

WITNESS: No, ma'am, we are not so close that's why.

xxx xxx xxx

COURT: Another question. Is it your habit not to be concerned with the welfare of your relatives?

WITNESS: I have concern to my other relatives, Your Honor.

COURT: How about the Accused, you are not concerned with him?

WITNESS: No, Your Honor.

COURT: Why, because of the fact between your family and their family?

WITNESS: It could be said that way, Your Honor, because since then, he is a problem child that's
why my feelings towards him is not so intimate anymore.11

The fact alone that the victim was Emy So's live-in partner does not impair her testimony. The Court
has time and again ruled that mere relationship of the witness to the victim does not automatically
impair his credibility and render the testimony less worthy of faith and credit.12 In People
v. Estrellanes, Jr. and Manolo,13 we put it thus:

. . . It is settled that the relationship of the key witness to the victim does not
necessarily disqualify him for being biased and interested. A son or a wife is not
incompetent to testify simply because of his or her relationship to the victim. In other
words, the relationship of the witnesses to the victim does not per se affect their
credibility. Their testimony must be evaluated and assessed according to its own
merit and if not otherwise offset by more credible evidence on record or any other
revealed intrinsic defect should be given credit.

Appellant's strategy to discredit Emy So on ground of bias and interest to exculpate himself from
criminal liability cannot succeed.

Appellant maintains that he stabbed the victim in legitimate self-defense and invokes in his favor the
constitutional presumption of innocence claiming that, despite his plea of self-defense, the
prosecution retains the burden of proving his guilt beyond reasonable doubt.14 This argument
deserves no credit in light of the established and time-honored rule that when self-defense is
invoked, the burden of evidence shifts to the appellant to show that the killing was justified and that
he incurred no criminal liability therefor. He must rely on the strength of his own evidence and not on
the weakness of the prosecution's evidence, for, even if the latter were weak, it could not be
disbelieved after his open admission of responsibility for the killing. He must prove the essential
requisites of self-defense, to wit: (a) unlawful aggression on the part of the victim, (b) reasonable
necessity of the means employed to repel the aggression, and (c) lack of sufficient provocation on
the part of the accused.15

In People v. Jotoy,16 we stated:

It is oft-repeated that in criminal cases, the burden rests on the prosecution to

establish the guilt of the accused by proof beyond reasonable doubt. However, when
the accused invokes self-defense, the onus probandi is shifted and he is duty bound
to prove the elements of the plea by clear and convincing evidence otherwise,
conviction is inescapable.

We shall now proceed to determine whether or not appellant has completely and satisfactorily
proven the elements of self-defense. The initial and crucial point of inquiry is whether there was
unlawful aggression on the part of the victim for absent this essential element, no claim of self-
defense can be successfully interposed. If there is no unlawful aggression, there is nothing to
prevent or to repel and the second requisite of self-defense would have no basis.17

Appellant's claim that the victim, Mario Tuquero, attacked him with a knife fails to convince us. The
record reveals glaring and serious inconsistencies in appellant's testimony that makes it totally
unworthy of credence.

Appellant testified that he was able to wrest the knife from Tuquero because the latter's thrust was
slow. However, this contradicts his statement during the same cross-examination, that the incident
happened so fast and that Tuquero's attack was sudden.

xxx xxx xxx

FISCAL PERALTA: And the first time that you saw Mario near the corner of Magsaysay and Pureza,
how far were you in relation to him the first time that you saw him?

WITNESS: I think about 1 and 1/2 arms length, sir, because I was on the other side and Mario was
also on the other side and we exactly met at the corner, sir.

FISCAL PERALTA: And the first time that you saw him bringing out something from his waistline,
what did you do?

WITNESS: The incident happened so fast, sir. After pulling out something from his waistline,
immediately thereafter, he made a thrust on me but I was able to grab the knife from him sir.
(Emphasis ours.)18

Further, we share the incredulity of the trial court that the victim stabbed appellant in slow motion:

Even the testimony of the Accused denigrated his claim that he acted in self-defense.
For, when he testified before the Court, the Accused claimed that Mario Tuquero
stabbed him but that Mario Tuquero failed to hit the accused because Mario Tuquero
stabbed the accused slowly and the Accused was able to evade the thrust and that
the latter, thereupon, wrested the knife from Mario Tuquero. It is sheer lunacy for the
Accused to asseverate that Mario Tuquero stabbed the Accused in slow motion . . .19

Even if we allow appellant's contention that Tuquero was the initial unlawful aggressor, we still
cannot sustain his plea of self-defense. After appellant successfully wrested the knife from Tuquero,
the unlawful aggression had ceased. After the unlawful aggression has ceased, the one making the
defense has no more right to kill or even wound the former aggressor.20

As correctly pointed out by the trial court:

. . . More, there is no evidence in the record that, after the Accused wrested the knife
from Mario Tuquero, the latter still did any overt act to indicate that he still tried to
grab or wrest back the knife from the Accused or, in any manner, persist in inflicting
any harm on the Accused. On the contrary, after the Accused wrested the knife from
Mario Tuquero, the Accused repeatedly stabbed Mario Tuquero in the front portions
of his body even after Mario Tuquero embraced the Accused to hang on for dear life.
At the time the Accused stabbed Mario Tuquero, the latter's initial unlawful
 aggression had already ceased and that there was, therefore, no more need for the
Accused to still stab Mario Tuquero and stab him with impunity. . .21

We reiterated the same rule in People v. Gomez:22

But even if We assume that it was the deceased who attacked the accused with a
knife, as the latter would make Us believe, We still hold that there was no self-
defense because at that point when accused was able to catch and twist the hand of
the deceased, in effect immobilizing him, the unlawful aggression had already ended.
Thus, the danger having ceased, there was no more need for the accused to start
stabbing the deceased, not just once but five (5) times.

and in People v. Gomez:23

There was no self-defense where the accused was able to obtain possession of the
weapon from the deceased and there was no necessity to stab the latter for
aggression had already ceased.

Appellant's claim of self-defense is, likewise, contradicted and negated by the physical evidence on
record. The victim sustained eighteen (18) stab wounds on different parts of his body. Of the
eighteen (18), four (4) were fatal stab wounds.24 The presence of a large number of wounds on the
part of the victim, their nature and location disprove self-defense and instead indicate a determined
effort to kill the victim.25

We quote with favor the observations of the trial court in this regard:

In this case, the evidence in the record buttresses the testimony of Emy So, on the
one hand, and belied and deprecated the testimony of the Accused on the other. As
can be gleaned from the Necropsy Report of Dr. Florante Baltazar,
(Exhibits "B" and "C"), the deceased sustained no less than eighteen (18) stab
wounds. Four (4) of the stab wounds sustained by the deceased were on the
posterior aspects of his body, namely, stab wounds No. 4 (Exhibit "C-4"), stab wound
No. 13 (Exhibit "B-13"), stab wound No. 15 (Exhibit "C-15") and stab wound No. 18
(Exhibit "C-18") and the rest of the stab wounds sustained by the victim were on the
anterior portions of his body. These jibe with the testimony of Emy So that the
Accused suddenly darted from behind Mario Tuquero and stabbed him on the
posterior aspects of his body and, when Mario Tuquero slipped because his shoe
slid, and fell on the ground, face up, the Accused then stabbed Mario Tuquero anew
successively on the anterior aspects of his body.

On the other hand, if the Accused acted merely on self-defense, it is

incomprehensible that he would stab Mario Tuquero no less than eighteen (18) times
(Exhibits "B" and "C"), not only on the anterior but also on the posterior aspects of his
body.26

Considering the number and nature of the wounds inflicted by appellant on the victim, the testimony
of the prosecution witness Emy So that appellant unexpectedly and suddenly attacked the victim
from behind and the fact that appellant suffered not a single injury, we agree with the trial court that
the killing was attended by treachery. This clearly illustrates that appellant, in the commission of the
crime, employed means, methods and form in its execution which tended directly, and especially to
ensure its execution without risk to himself arising from the defense which the victim might make.27
Not content with a self-defense plea the defense likewise seeks to exempt appellant from criminal
liability by claiming that appellant was insane at the time he stabbed the victim.

The claim is unmeritorious.

The law presumes every man to be sane. A person accused of a crime who pleads the exempting
circumstance of insanity has the burden of proving it.28

In order that insanity may be taken as an exempting circumstance, there must be complete
depreciation of intelligence in the commission of the act or that the accused acted without the least
discernment. Mere abnormality of his mental faculties does not exclude imputability.29

The testimony of Dr. Omer Galvez, Chief of the Child & Adolescent Service of the National Center
For Mental Health (NCMH) and attending physician of appellant when he was confined at the
National Center for Mental Health from June 8, 1985 to December 2, 1985, only established the
previous confinement of appellant at the NCMH and that appellant showed signs of psychosis or
insanity at the time. The rest of his testimony consisted merely of assumptions, possibilities and
generalities:

xxx xxx xxx

ATTY. DELOS SANTOS: Why did you attend to this Elyboy So?

WITNESS: He was admitted June 8, 1985 to the service of the Child and Adolescents Service,
ma'am.

ATTY. DELOS SANTOS: Why?

WITNESS: He showed signs of psychosis or insanity, ma'am.

xxx xxx xxx

ATTY. DELOS SANTOS: What are the characteristics of this kind of illness Mr. Witness?

WITNESS: Even this illness it is assumed that this patient will have episodes of insanity for the rest
of his life especially if he will not take the medicines that will prevent the episodes of insanity.
(Emphasis ours.)

ATTY. DELOS SANTOS: And you said that this patient per your record was discharged on
December 3, 1985. Do we understand that from the time of his discharge, he was already healed or
recovered from that kind of insanity?

WITNESS: I can only say that at the time of the last check up he was doing well three (3) months
after that, he was discharged because he failed to come back for his check-up, ma'am. (Emphasis
ours.)

ATTY. DELOS SANTOS: You mentioned that this will be for the rest of his life.

WITNESS: For many patients, it is like that. It is very exceptional that they will be able to recover or
completely cured from it, ma'am. (Emphasis ours.)
ATTY. DELOS SANTOS: When you say for the rest of his life, do we understand that this will be
recurrent?

WITNESS: Yes, ma'am.

ATTY. DELOS SANTOS: What are the causes that will trigger the recurrency of this kind of illness?

WITNESS: Generally, the main characteristic of this patients who are suffering from this illness is,
they are very sensitive to any kind of social censures and criticisms.

ATTY. DELOS SANTOS: Could you enlighten what do you mean by social censures?

WITNESS: If they were told about a behavior that they are showing that is unacceptable, they will
react to that in a disproportionate way, ma'am.

ATTY. DELOS SANTOS: What do you mean by disproportionate way?

WITNESS: It will not be proportionate that the amount of stimulus meaning, to say that they will
overreact.

ATTY. DELOS SANTOS: Is violence a kind of over reaction to a given stimulus?

WITNESS: Patients who are suffering from this condition has more proclivity to violence than the
general population.

xxx xxx xxx

COURT: Doctor, you told that he was discharged. Was he told to come back for further treatment?

WITNESS: Yes, Your Honor, that is standard that we tell to everybody. (Emphasis ours.)

COURT: And how often is he supposed to come back for treatment in the case of the Accused
Elyboy So?

WITNESS: After six (6) months he failed to come. He was supposed to come every month after his
passe which was given on August 1, 1985, Your Honor.30

xxx xxx xxx

Further and more importantly, the testimony of Dr. Galvez is bereft of any evidence that appellant
was completely deprived of intelligence or discernment at the time or at the very instant when he
stabbed the victim.

Well-settled is the rule that an inquiry into the mental state of appellant should relate to the period
immediately before or at the very moment the act was committed.31 In the present case, the
testimony of Dr. Galvez refers to appellant's treatment six (6) years before the incident happened.

Moreover, Dr. Galvez admitted that after appellant's last check-up sometime in 1985, or six (6) years
before the crime was committed, he was doing well and relieved from psychosis:
 xxx xxx xxx

COURT: When he came back, after his discharge, was he given medication?

WITNESS: Yes, Your Honor.

COURT: How did you find his behavior when he came back for medication?

WITNESS: As per record, he was doing well, Your Honor. (Emphasis ours.)

COURT: When you say doing well, what exactly do you mean by that?

WITNESS: He was relieved from psychosis at that time, Your Honor. (Emphasis ours.)

xxx xxx xxx

FISCAL PERALTA: If the Patient was discharged in 1985 and finished his college degree in four (4)
years, do you think that by that time he was already cured of his sickness?

WITNESS: It will look like that, sir. (Emphasis ours.)

FISCAL PERALTA: What do you mean it will look like that?

WITNESS: It will look that while there are various types of clinical courses, meaning, the
development of an illness in a patient and if the patient was able to finish college, then the outcome
of the treatment that was given to him in 1985 was quite good.

FISCAL PERALTA: And do you think doctor that could have been the reason why he already failed
to report on a monthly basis considering that he was already in college and actually finished his
college degree?

ATTY. DELOS SANTOS: That might be misleading, Your Honor, considering that the testimony of
the doctor, he said that he should report six (6) months after the discharge but he took his college
degree for several years thereafter.

COURT: The only point of the fiscal is that, is that an indication of having been cured. If he was able
to take and finish even college. Go ahead.

WITNESS: It would look that during that period, he would have been cured and there are some also
who although that they may not be entirely cured would be able to get a degree, make the standards
of education and there are some who could also get the standard of employment despite their
craziness. "Medyo naitatago or nakakaya." Psychosis is something in many patients it is very
obvious. You could see that they are really grossly disorganized "talagang sira." But there are some
who has some ability to keep it just there and maintain a proper social behavior and be able to
achieve socially acceptable functioning in society.

COURT: In other words, that illness is dormant.

WITNESS: Yes, Your Honor.

COURT: And it emerges in some point of time?

WITNESS: Yes, Your Honor.

COURT: So, it is possible doctor that the decease is there but at the same time, the patient is able to
study?

WITNESS: Yes, Your Honor. The possibilities are these he was cured entirely cured during the
period or the decease is just there and it is not affecting his behavior. So there are two (2)
possibilities.32 (Emphasis ours)

A perusal of appellant's testimony further negates his plea of insanity. His recall of the events that
transpired before, during and after the stabbing incident, as well as the nature and contents of his
testimony, does not betray an aberrant mind. His memory conveniently blanks out only as to the
number of wounds he inflicted on the victim. This, appellant attributes to insanity but we are far from
convinced. A man may act crazy but it does not necessarily and conclusively prove that he is legally
so.33

xxx xxx xxx

FISCAL PERALTA: Afterwards, when you got hold of the knife, you repeatedly stabbed him?

WITNESS: Yes, sir, because after I got hold of the knife, I was able to wrest it from him. And with the
use of my right hand, I repeatedly stabbed him. At the time his left arm was embracing me and I
repeatedly stabbed him with my right hand from the left swinging it to the right in front, hitting him on
the front of his body, sir.

FISCAL PERALTA: How many times did you stab him on the front portion?

WITNESS: I don't know, sir, because I was out of myself.

FISCAL PERALTA: After repeatedly stabbing the front portion of his body, you said that you also
stabbed him at the back?

WITNESS: When he was already embracing me, sir, my right hand was freed and that was the time
when I stabbed him at the back.

FISCAL PERALTA: And how did you stab him at the back?

WITNESS: Like this, sir. He was embracing me, my right hand was freed.

INTERPRETER: Witness demonstrated by stretching his right hand, swinging it from the right side to
the front towards his body.

FISCAL PERALTA: And how many times also did you stab the back portion of the body of the
victim?

WITNESS: I could not recall also, sir.

FISCAL PERALTA: And when you stopped stabbing the victim when you said four (4) men boarded
a jeep and shouted "itigil na, itigil na"?

WITNESS: It was during the time when both of us fell down. I was on top of him and I stabbed him
on his chest, sir. That was when four (4) persons arrived and shouted "itigil na, itigil na," and I
stopped, sir.

xxx xxx xxx

ATTY. DELOS SANTOS: And what did you do when you were not hit?

WITNESS: By the time I evaded his thrust I was able to get hold of his palm, ma'am.

ATTY. DELOS SANTOS: And when you were able to get hold of his palm, what happened?

WITNESS: Because I was so made of what he did, when I was able to grab and get hold of the
knife, I hit him, ma'am.

INTERPRETER: Witness demonstrating by raising his right hand upward on the level of his breast
swinging his right hand towards the right.35

xxx xxx xxx

In People v. Renegado,36 we held thus:

By his testimony appellant wants to convey that for one brief moment he was
unaware or unconscious of what he was doing, that he "regained his senses" when
he heard the voice of Mrs. Tan telling him: "Loreto, don't do that," and only then did
he realize that he had wounded Lira. That, to Us, is incredible. For it is most unusual
for appellant's mind which was in a perfect normal state on Monday morning, August
29, to suddenly turn blank at that particular moment when he stabbed Lira. Appellant
himself testified that he was acting very sanely that Monday morning, as shown by
the fact that he went to the canteen in a jovial mood "singing, whistling, and tossing a
coin in his hand"; he saw the persons inside the canteen namely, Venecia Icayan,
Lolita Francisco, Benita Tan, Felipe Tingzon and a guest of the latter (all of whom,
except the last one, testified for the prosecution); he noticed the arrival of Lira who
banged his folders on the table, elbowed him, and said in a loud voice: "ano ka", he
saw Lira put his right hand inside his pocket and with the other hand push a chair
towards him; he became "confused" because he remembered that Lira threatened to
kill him if he would see him again; at this point he "lost his senses" and regained it
when he heard the voice of Mrs. Tan saying: "Loreto, don't do that", and he then
found out that he had wounded Lira. If appellant was able to recall all those incidents,
We cannot understand why his memory stood still at that very crucial moment when
he stabbed Lira to return at the snap of a finger as it were after he accomplished the
act of stabbing his victim . . . (Emphasis ours.)

and in the later case of People v. Aquino,37 we ruled:

The clinical case report also shows that appellant, when interviewed upon his
admission to the mental institution, recalled having taken 120 cubic centimeters of
cough syrup and consumed about 3 sticks of marijuana before the commission of the
 crime. This admission substantially affirms his prior extrajudicial confession that he
was under the influence of marijuana when he sexually abused the victim and, on the
occasion there of killed her. It is, therefore, beyond cavil that assuming appellant had
some form of mental illness, it did not totally deprive him of intelligence. The
presence of his reasoning faculties, which enabled him to exercise sound judgment
and satisfactorily articulate the aforesaid matters, sufficiently discounts any intimation
of insanity of appellant when he committed the dastardly felonies. The annals of
crime are replete with documented records, and we are not without our share in this
jurisdiction, where mental illness has been feigned and invoked to provide a defense
for the accused in a criminal prosecution. (Emphasis ours.)

In the present case, the defense has failed to adduce sufficient evidence to overthrow the
presumption of sanity. The State, thus, continues, its guard against sane murderers who seek to
escape punishment through a general plea of insanity.38

WHEREFORE, the appeal is DISMISSED and the assailed decision is AFFIRMED in toto, with costs
against appellant.
G.R. No. 115233 February 22, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILSON GUTUAL Y REMOLLENA and JOAQUIN NADERA Y APOSTOL, accused.

DECISION

DAVIDE, JR., J.:

On 26 June 1991, an information1 was filed with the Regional Trial Court (RTC) of Tagum, Davao del
Norte, Branch 1, charging Wilson Gutual and Joaquin Nadera with the crime of murder (Criminal
Case No. 7851). The accusatory portion thereof read:

That on or about December 29, 1990, in the Municipality of San Vicente, Province of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with one another, with treachery and evident
premeditation, with intent to kill, armed with [a] garand rifle and [an] M14 rifle, did then and
there wilfully, unlawfully and feloniously attack, assault and shoot one Celestino Maglinte,
thereby inflicting upon him wounds which caused his death, and further causing actual, moral
and compensatory damages to the heirs of the victim.

Contrary to law.

The accused, members of the Civilian Armed Forces Geographic Unit (CAFGU) in the Municipality
of San Vicente, Davao,2 pleaded not guilty on arraignment.3 Thereafter, trial on the merits ensued.

Judge Marcial Fernandez received the testimonies of all the witnesses except that of the surrebuttal
witness, which was received by his successor, Judge Bernardo V. Saludares.4

At trial, the prosecution presented six witnesses, five of whom were related to the victim by affinity.
The defense, in turn, presented nine witnesses, including the two accused and two barangay council
officers. As might be expected, the prosecution and defense had conflicting versions of the event.

According to the prosecution, on 29 December 1990, at around 1:30 p.m., the victim Celestino
Maglinte was walking along the barangay road of Belmonte in San Vicente, Davao, carrying his four-
year old child. The victim had just come from his farm and had a bolo with him, which was placed in
its scabbard. Maglinte was then surprised by the sound of an exploding firecracker; thus, he left his
child by the road and ran towards the store of Barangay Captain Wayne Gutual, calling to the latter,
who did not, however, cone out of the store. Maglinte headed for the nearby basketball court,
apparently still searching for the Barangay Captain. All the while the bolo remained in its scabbard.
Suddenly, accused Wilson Gutual and Joaquin Nadera appeared, armed with a Garand rifle and an
M-14 rifle, respectively. Gutual fired around three warning shots into the air and Maglinte dropped to
the ground. Gutual then went near Maglinte and shouted "surrender," thus Maglinte raised his right
arm as a sign of submission. At that time, Gutual fired some five shots at Maglinte. Although already
injured, Maglinte managed to stand. Thus, Gutual and Nadera fired again, and the victim toppled
over, mortally wounded. Gutual and Nadera left the scene at once. Immediately the following
morning, the victim was buried upon the Barangay Captain's order.5

The defense claims that the killing was committed in self-defense or defense of a relative or
stranger. It tried to prove that on the aforementioned date and time, the victim was running amuck or
berserk,6 chasing Barangay Captain Wayne Gutual in front of the latter's house. Drawn by shouts for
help from onlookers, accused Gutual and Nadera rushed to the scene, with Gutual firing warning
shots into the air. Maglinte stopped pursuing the barangay captain, turned towards the accused,
then started approaching them. Although Gutual continued to fire warning shots, Maglinte kept
walking towards him, while Gutual kept retreating to put some distance between him and the victim.
The two moved some ten meters, crossed the road in front of the barangay captain's house, and
ended up near the barangay hall. Finally, Gutual was, pinned against the staircase of the barangay
hall. Maglinte was now about one to three meters from Gutual and pressing on, unceasingly hacking
away at Gutual, who, however, managed to evade the blows. Nadera fired warning shots into the air,
but Maglinte continued his attack. Gutual then fired at the victim's hand to disarm him, but
unfortunately the bullet pierced Maglinte's bolo-wielding arm, went through his chest, and came out
his back.

Gutual and Nadera were arrested on 29 January 1991.7 Nearly two months after the killing, some
200 residents of Barangay Belmonte held a rally in front of the police station to demand the release
of the two accused.8 The rallyists brought with them a "manifesto"9 signed by barangay council
officials and members which stated, among other matters, that they knew Celestino Maglinte to be a
dangerous person and that the accused fired at the victim only after knowing that he would be killed
by the latter.

On 2 January 1994, the trial court, per Judge Saludares, promulgated its decision 10 acquitting
Nadera but convicting Gutual. The dispositive portion of the decision read:

WHEREFORE, premises considered, this Court finds the accused Wilson Gutual y
Remollena, 43 years of age, married, and a resident of Belmonte, San Vicente, Davao,
farmer by occupation, guilty beyond reasonable doubt of the crime of Murder as penalized
under Article 248 of the Revised Penal Code, as charged in the information, and is therefore
hereby sentenced to suffer the penalty of reclusion perpetua, with all the accessory penalties
provided by law, and jointly and severally with his co-accused Joaquin Nadera y Apostol, 42
years of age, married and a resident of Belmonte, San Vicente, Davao, and a farmer by
occupation, who is hereby acquitted of the criminal charge on the ground of reasonable
doubt, is/are hereby ordered to indemnify the widow, Virginia Ayendo Vda. de Maglinte, and
heirs of the victim, Celestino Maglinte, in the amount of Fifty Thousand (P50,000.00) Pesos
by way of compensatory damages for such death, Twenty Thousand (P20,000.00) Pesos by
way of moral damages, Ten Thousand (P10,000.00) Pesos by way of exemplary damages,
and Five Thousand (P5,000.00) Pesos as funeral and burial expenses. 11

Gutual (hereinafter, accused-appellant) seasonably appealed from the decision and alleges that the
lower court committed the following errors:

. . . IN FINDING BEYOND REASONABLE DOUBT ACCUSED WILSON GUTUAL GUILTY

FOR MURDER AND IN IMPOSING CIVIL LIABILITY ON ACCUSED JOAQUIN NADERA.

II

. . . IN NOT ACQUITTING ACCUSED WILSON GUTUAL ON GROUNDS OF EITHER SELF-

DEFENSE OR DEFENSE OF A RELATIVE, OR IN NOT CONSIDERING IN FAVOR OF
ACCUSED WILSON GUTUAL [THE] INCOMPLETE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE OR DEFENSE OF [A] STRANGER.
 III

. . . IN IMPOSING CIVIL LIABILITY ON ACCUSED JOAQUIN NADERA INSPITE OF HIS

ACQUITTAL.

IV

. . . IN NOT HOLDING THAT SELF-DEFENSE OR DEFENSE OF [A] RELATIVE HAS BEEN

PROVEN BY EVIDENCE SUFFICIENTLY ENOUGH TO MEET THE REQUIREMENTS OF
MORAL CERTAINTY. 12

These assigned errors may be reduced to two issues:

I. Whether or not Joaquin Nadera should be held civilly liable despite his acquittal; and

II. Whether or not Wilson Gutual has sufficiently proved self-defense or defense of a relative
or of a stranger, or, at the very least, the incomplete justifying circumstance of self-defense
or defense of a stranger.

In the alternative, the accused-appellant contends that should he be convicted of any crime, it should
be of homicide only, as the prosecution failed to prove the qualifying circumstances of treachery and
evident premeditation. 13 Moreover, the mitigating circumstance of incomplete self-defense or
defense of a relative should be considered in the imposition of the penalty. 14

As to the first issue, the Office of the Solicitor General correctly points out that the "[a]ppellant lacks
the standing to question the court's decision as it is Nadera who is affected thereby,"' and Nadera
did not appeal from the said decision. 15 Section 11(a), Rule 122 of the Rules of Court provides that
an appeal taken by one or more of several accused shall not affect those who did not join in the
appeal.

The second issue involves a question of fact.

Since the judge who penned the questioned decision, Judge Saludares, heard only one of the
witnesses and only at the surrebuttal stage, the respect ordinarily accorded the trial court's findings
of fact does not apply in this instance. 16 We are thus compelled to sift through the transcripts of the
stenographic notes of the testimonies of the witnesses.

After a painstaking evaluation of the evidence, we find the version of the prosecution unworthy of
credence. First, it is scarcely believable for the victim who was already thirty-two years of age to be
"afraid of" the mere sound of an exploding firecracker, as the prosecution witness intimated. 17 New
Year's Day was then only two days away, such that people, even those in the provinces, were
already accustomed to hearing such sound.

Second, it likewise seems unusual for the victim to leave his four-year old daughter by the road; 18 if
he was really afraid of the sound of a firecracker, he would have probably thought that his child
likewise was, and should have therefore put her in a safe place before searching for the barangay
captain.

Third, if the deceased's bolo was indeed in its scabbard, there was no reason then for the two
accused to fire three warning shots into the air. Having allegedly laid flat on the ground with his right
arm raised, 19 the victim posed no threat to the accused as would prompt the latter to fire at him.
Besides, it was only around half past one o'clock in the afternoon, and a lot of people were in the
vicinity. 20

Fourth, if it were true that what transpired was a cold-blooded murder, the family or relatives of the
victim would have insisted that the victim's corpse be autopsied. Instead, they buried him
immediately the following morning. 21

Finally, the Death Certificate dated 17 January 1991 22 belies the testimonies of the prosecution
witnesses that the accused was shot several times. 23 Although the doctor who signed the death
certificate did not actually examine the victim's corpse, the entry regarding the cause of the victim's
death, i.e., "Hypovolemia secondary to gunshot wond, anterior chest, R forearm per informant's
report," may be deemed conclusive, since it was admittedly supplied by a relative of the deceased.
Esmeraldo Miñoza, a first cousin of the victim's wife, whose name and signature appears in the said
certificate as the informant, was presented by the defense as a hostile witness. He admitted to
having signed the certificate on behalf of Mrs. Virginia Maglinte, the victim's wife. 24 He, howver,
stated that the ones who gave the information regarding the injuries sustained by the victim were the
witnesses themselves, namely, "Eutiquio Iyana and Jose de Leon, the one who cleaned up the
wounds of victim Celestino Meglinte and some BHW (Barangay Health Workers] of Barangay
Belmonte." 25

At the rebuttal stage, Eutiquio Iyana, the husband of a first cousin of Mrs. Maglinte, admitted to
having given the doctor the information anent the wounds suffered by the victim and seen the doctor
write down the said information. 26 In fact, the victim's wife was concededly present when the doctor
filled up and signed the death certificate, and she was even the one who secured that
document . 27 If the entry made by the doctor was different from what the informant reported, then it
should have been questioned right then and there by either Mr. Iyana or Mrs. Maglinte.

At any rate, since the accused-appellant owned up to killing the victim, the burden of evidence
shifted to him. He must then show by clear and convincing evidence that he indeed acted in self-
defense or in defense of a relative or a stranger. For that purpose, he must rely on the strength of his
own evidence and not on the weakness of the prosecution's evidence. 28

As correctly posited by the Appellee, the defense of a relative or a stranger is unavailing in this case.
The accused-appellant shot the victim while the latter, after having stopped chasing the barangay
captain, was approaching the former. At that instance then, the barangay captain's life was no longer
in danger as the accused-appellant admitted. Thus, on questions proposed by the court, the
accused-appellant responded:

Q When Maglinte was chasing the barangay captain, you said that you were
concentrating on him alone. Is that correct?

A I was looking at Maglinte and I ordered him to stop, Your Honor.

Q What were the exact words you used?

A I told him "pare, stop. Do not bring a bolo with you because the people are afraid of
you."

Q Did Maglinte obey you?

A No, Your Honor. He did not speak and he did not put down the bolo.
 Q What did he do after you cautioned him or warned him?

A After he stopped, he faced me and he slowly went towards me.

Q So, he discontinued chasing the barangay captain?

A Yes. He discontinued chasing the barangay captain and he slowly went towards me,
Your Honor.

Q At that time, the barangay captain's life was no longer in danger?

A Yes, because he already ceased chasing him.

Q And you insisted he approached you. Did Maglinte approach you?

A Yes, while he was going towards me, I was also stepping backward.

Q Did you warn him while he was chasing you?

A When he was slowly going towards me, I fired a warning shot, Your
Honor. 29 (emphasis supplied)

Clearly then, what might have been unlawful aggression on the part of the victim against the
barangay captain had ceased, and there was nothing more to prevent or repel. Hence, the second
requisite of the defense of a relative or a stranger under Article 11 of the Revised Penal Code, viz.,
reasonable necessity of the means employed to prevent or repel the unlawful aggression, cannot be
present.

Consequently, the accused-appellant has to rely solely on the justifying circumstance of self-
defense.

The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself. 30

It was sufficiently established that the unlawful aggression came from the victim. Indeed, since he
was running amuck, he did not care anymore whom to attack or whether the person to be attacked
was unarmed or armed with a high-powered rifle. Significantly, the entry in the Death Certificate
corroborates the theory of the defense that the victim was in the act of hacking the accused-
appellant when the latter "shot deceased's right hand for the purpose only of throwing the bolo out of
his hand, but the bullet pierced through and hit the deceased's breast. 31

There can be, as well, no doubt in the mind of the Court that there was lack of sufficient provocation
on the part of the accused-appellant.

Whether the means employed by the accused-appellant were reasonable depends on the
circumstances of this case.

The trial court observed that a bolo-wielder did not stand a chance against a CAFGU member
"trained in the art of self-defense and close-in fighting [and] armed with a Garand rifle." 32 As
observed by the trial court, the accused-appellant.
 [C]ould just have easily parried the alleged bolo-hacking of Celestino Maglinte, if ever such
version was true, with the use of his Garand Rifle, and could have applied close fighting
techniques which he was trained to do as a CAFGU member, and disarm Maglinte of his
bolo instead of shooting the victim. 33

It has, however, been duly established that the victim had a predilection for violence. 34 Barangay
Captain Wayne Gutual testified that on at least three previous occasions, he had disarmed the
victim:

Q Now, Mr. witness, may we know from you if you know the reason why the deceased
Celestino Maglinte would take your life?

A Regarding Celestino Maglinte, we have no grudge with each other. But because I am
the barangay captain, there were times that his wife Virginia will not yield to carnal relation,
that is why he would be violent and threaten her with bolo. That is why I disarmed him three
times already.

xxx xxx xxx

Q What did you disarm from Celestino?

A First, I was able to disarm him with hunting knife; second with bolo; and third with a
piece of hard wood. 35

The accused-appellant became the target of the victim's violent nature when, after the victim
stopped chasing the barangay captain, he turned to and vented his ire against the accused-
appellant. The victim menacingly walked towards the latter who, in turn, kept walking backwards until
he was pinned against the staircase of the barangay hall. At that point, the victim unceasingly
hacked away at the accused-appellant and continued to move closer to him. When the victim was
then only one meter away, he raised the bolo, ready to strike the accused-appellant.

Plainly, the accused-appellant could no longer retreat from the continuing assault by the victim who,
as inexorably shown by his relentless advance towards the accused-appellant, was poised to kill the
latter. The danger to the accused-appellant's life was clearly imminent. It would not then be proper
nor reasonable to claim that he should have fled or selected a less deadly weapon, because in the
emergency in which, without any reason whatever, he was placed, there was nothing more natural
than to use the weapon he had to defend himself. In the natural order of things, following the instinct
of self-preservation, he was compelled to resort to a proper defense. 36 It is settled that reasonable
necessity of the means employed does not imply material commensurability between the means of
attack and defense. What the law requires is rational equivalence, in the consideration of which will
enter the principal factors the emergency, the imminent danger to which the person attacked is
exposed, and the instinct, more than the reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the imminent
danger of such injury. 37

The accused-appellant has convincingly and sufficiently shown that he killed the victim in the
legitimate exercise of self-defense, a justifying circumstance. Pursuant to paragraph 1, Article 11 of
the Revised Penal Code, the accused-appellant incurred no criminal liability.

WHEREFORE, the instant appeal is GRANTED. That portion of the challenged decision of Branch 1
of the Regional Trial Court of Tagum, Davao in Criminal Case No. 7851 finding accused-appellant
WILSON GUTUAL Y REMOLLENA guilty beyond reasonable doubt of the crime of murder and
sentencing him to suffer the penalty of reclusion perpetua and to pay the civil liabilities therein
mentioned is REVERSED and SET ASIDE and another is hereby entered ACQUITTING him of the
charge. He should forthwith be released from detention, unless his further detention is warranted for
any other legal or valid ground.

Costs de oficio.
G.R. No. L-51206 August 25, 1989

NORBERTO MASIPEQUINA and JOVENCIO ALAMPAYAN, petitioners,

vs.
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Paulino G. Clarin for petitioners.

CORTES, J.:

The extent to which responding peace officers may defend themselves in the face of an attack by
the person sought to be apprehended is the subject of this petition for review.

Petitioners Patrolmen Norberto Mesipequina and Jovencio Alampayan, who were members of the
Integrated National Police (INP) of San Isidro, Bohol, were charged with the crime of homicide for
the death of Leopoldo Potane. They were convicted by the trial court and sentenced to suffer
imprisonment of from seven (7) years and one (1) day of prison mayor as minimum to fourteen (14)
years, four (4) months and one (1) day of reclusion temporal as maximum, and to jointly and
severally indemnify the heirs of the deceased Leopoldo Potane in the amount of twelve thousand
pesos (P12,000.00).

On appeal, the Solicitor General joined the petitioners in their prayer for acquittal on the theory that
petitioners are exempt from liability because they had acted in self-defense when they shot and
killed Leopoldo Potane. But, just the same, the Court of Appeals affirmed the judgment of the trial
court, but modified the penalty of imprisonment to eight (8) years and one (1) day of prison mayor as
minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum.

Before this Court both the petitioners and the Solicitor General reassert that petitioners should be
acquitted because they acted in lawful self-defense.

There is no dispute about the following facts, which were quoted by the Court of Appeals from the
Solicitor General's presentation.

xxx

In the afternoon of December 21, 1976, Barangay Capt. Nicolas Potane of Barrio
Abehilan San Isidro, Bohol and his father, Pedro Potane requested assistance from
the Police Sub-station Commander of San Isidro in apprehending Leopoldo Potane,
son of Pedro Potane and elder brother of Nicolas, who has begun to show signs of
recurring insanity. Since his arrival from Mindanao in 1974, Leopoldo had been
acting queerly and at times violent. On December 18, 1975, Leopoldo chased the
wife of Nicolas with a bolo and almost hacked her. He always carried a bolo, and had
threatened his own wife, daughter, brothers, and even his parents with death.
Fearing for their safety, they transferred temporarily to the Home Economics building
of the barrio school and left Leopoldo alone in the house of his father. Nicolas Potane
and his immediate relatives wanted Leopoldo to be examined and treated by the
Provincial Health Officer for his mental ailment (pp. 19-22, 26-32. t.s.n., Nov. 15,
1976; Exhs. C, C-1 to C-5-A, Folder of Exhibits).lâwphî1.ñèt
 Patrolmen Norberto Masipequina and Jovencio Alampayan, the former armed with a
38 cal. revolver and the latter with the Thompson submachine gun, were ordered by
the sub-station commander to arrest Leopoldo. Before proceeding to the house
where Leopoldo was, the policemen passed the store of a certain Ismael Balumia
where they had a conference with Barrio Captain Nicolas Potane; his father, Pedro
Potane; his mother, Marganta Potane and others. In said store a joint affidavit (Exhs.
D, D-1 and D-2, Folder of Exhibits), was prepared and signed by Nicolas Potane,
Pedro Potane, Margarita Potane, Clara Potane, Francisca Potane, and Emilia
Potane, wife of Leopoldo, authorizing the 'peace officer of the San Isidro Police Dept.
'to apprehend Leopoldo Potane who was about to run amok.' The document further
stated that if Leopoldo would resist as he is armed with a weapon, the policemen
'have the right to shoot him but not to kill him ... but if such does not permit, if he
resist(s) arrest they have the right to resort to any manner to prevent the fearful
outcome from his running amok' and 'if he would be killed by the police officers on
account of his resistance, we, the parents, brother and sisters, and wife would take
no action if something untoward would occur. (pp. 4-8, t.s.n., Dec. 7, 1976).

Thereafter, the two policemen, accompanied by several persons, among whom was
Nicolas Potane, went to the house of Pedro Potane where Leopoldo was. Upon
arrival thereat, Pat. Masipequina, a childhood friend of Leopoldo, called Leopoldo
and urged him to come out. He also asked Leopoldo for a drink, but Leopoldo
refused to go down the house. Pat. Masipequina then informed Leopoldo that his
father and brother had reported that he (Leopoldo) had chased his sister-in-law with
a bolo and their officer-in-charge sent him to investigate the report. He told Leopoldo
to come down so that they could talk. Leopoldo instead told him to come up (pp. 10-
11, t.s.n., Ibid).lâwphî1.ñèt

Pat. Masipequina went up the house followed by Nicolas Potane with a petromax
lamp. Patrolman Jovencio Alampayan and the rest stayed in the yard Although in the
yard, Patrolman Alampayan could see what was going on inside the house because
it was a single storey house and had an elevation of only 4 feet (p. 56, t.s.n., Dec. 6,
1976). Nicolas stayed on the door landing while Masipequina entered the sala and
was about to sit down on a rocking chair when Leopoldo suddenly emerged from an
adjacent room and rushed at him swinging a bolo. Masipequina pushed the rocking
chair towards Leopoldo. Leopoldo hit Masipequina on the bridge of the nose (p. 23,
t.s.n., Ibid). As the latter retracted, he lost his balance and was hit on the right side of
his face. At this juncture, Masipequina drew his revolver and fired three shots. One
shot misfired but the other two hit Leopoldo on the chest. Leopoldo continued to
advance towards him. He pushed the rocking chair at Leopoldo and ran out of the
house shouting for help. Leopoldo ran after him. Pat. Masipequina jumped from the
house and landed on the ground. In the process he hit his shin on a piece of stone.
Leopoldo also jumped to the ground and continued to pursue Masipequina. As
Leopoldo poised to hack Pat. Masipequina, Pat. Alampayan fired his gun hitting
Leopoldo once at the thigh (pp. 25-26, Id., pp. 40, 71, t.s.n., Dec. 6, 1976).

xxx

[CA Decision, pp. 2-4; Rollo, pp. 9-11].

Leopoldo Potane died some thirty (30) minutes later while being brought to the health center for
treatment.
The issue is readily apparent: whether or not, given the undisputed facts, petitioner Masipequina had
acted in lawful self-defense. (Petitioner Alampayan's conviction for the crime charged hinges on that
of Masipequina as the trial court had found that the two conspired to kill Leopoldo Potane, as alleged
in the information.).

The trial court, however, rejected the defense raised by petitioner. The following reasons, which
were cited by the trial court, were adopted and quoted with approval by the Court of Appeals:

. . . (1) the fact that the accused persisted in their attempts to arrest and/or pick up
the victim for almost two (2) hours, culminating in the tragedy at around nine o'clock
that evening; (2) the fact that the victim suffered three gunshot wounds, two of which
were over the heart and admittedly fatal, and the third on the left thigh which was not
fatal but sufficient to cripple him; (3) the fact that all three gunshot wounds bore
evidence of gunpowder signs, which is indicative and conclusive of having been
inflicted at close range; (4) the fact that the victim had a 2-inch lacerated wound on
his forehead and another lacerated wound on his right leg which have not been
sufficiently explained but are also indicative of having been inflicted by blunt
instruments, like a flashlight or the butts of a revolver or a submachine gun; and (5)
the fact that the alleged injuries of accused Masipequina could not, by any stretch of
imagination, be inflicted by a bolo allegedly wielded by the victim, since they are
quite superficial in degree, located in the most improbable places and may even
have been self-inflicted to justify a subsequent claim of self-defense.

xxx

[Rollo, p. 20.]

"The law on self-defense embodied in any penal system in the civilized world finds justification in
man's natural instinct to protect, repel, and save his person and rights from impending danger and
peril; it is based on that impulse of self-preservation born to man and part of his nature as a human
being." [People v. Boholst-Caballero, G.R. No. L-23249 November 25,1974,61 SCRA 180, 1 85.] In
our jurisdiction it is found in Article 11 of the Revised Penal Code which provides:

ART. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided the following
circumstances concur:

First. Unlawful aggression;

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

Third. Lack of sufficient provocation on the part of the person defending himself.

xxx

It is settled jurisprudence that he who invokes the exempting circumstance of self-defense must
prove it during the trial [U.S. v. Coronel, 30 Phil. 112 (1915)]. He must prove the elements
enumerated in Article 11 by clear and convincing evidence, the reason being that since he had
admitted having killed or wounded another, which is an act punishable by law, he shall be liable
thereof unless he establishes a lawful defense [People v. Boholst-Caballero, supra]. Thus, the
determination of whether or not all the three elements are present in the case.

1. That there was unlawful aggression on the part of the deceased Leopoldo Potane
is evident from the established facts. Leopoldo Potane, who had showed signs of
mental illness and had threatened his immediate relatives with a bolo, suddenly and
without provocation attacked with a bolo Masipequina, whom he (Leopoldo Potane)
has asked to go inside the house.

2. That there was reasonable necessity of the means employed by Masipequina to

prevent or repel Leopoldo Potane's attack is also supported by the evidence.

In the leading case of U.S. v. Mojica, 42 Phil. 784 (1922), where a policeman trying to quell a
disturbance shot with his revolver and fatally wounded a man who attacked him with a knife, the
Court laid down the following rule:

A police officer, in the performance of his duty, must stand his ground and cannot,
like a private individual, take refuge in flight; his duty requires him to overcome his
opponent. The force which he may exert therefore differs somewhat from that which
may ordinarily be offered in self-defense. Bearing this in mind, we do not think that
the appellant in using his revolver against the deceased can be said to have
employed unnecessary force. The deceased attacked him with a deadly weapon; he
might, perhaps, have saved himself by running away, but this his duty forbade. Was
he to allow himself to be stabbed before using his arms? It may, perhaps, be argued
that the appellant might have used his club, but a policeman's club is not a very
effective weapon as against a drawn knife and a police officer is not required to
afford a person attacking him the opportunity for a fair and equal struggle. (State vs.
Phillips, 119 Iowa, 652; 67 L.R.A. 292; North Carolina vs. Gosnell, 74 Fed., 734;
Boykin vs. People, 22 Colo., 496; 45 Pac., 419; Adams vs. State, 72 Ga., 85.) And if
it was necessary for the appellant to use his revolver, he could hardly, under the
circumstances, be expected to take deliberate and careful aim so as to strike a point
less vulnerable than the body of his adversary. (U.S. vs. Mack 8 Phil., 701; U.S. v.
Domen 37 Phil., 57.) [Id., p. 787].

Tested by this standard, the means employed by Masipequina in repelling the attack were, under the
circumstances, both reasonable and necessary. He initially tried to defend himself by pushing the
rocking chair toward Leopoldo Potane but when that proved futile and he (Masipequina) was caught
in a very precarious position, i.e., his back was on the floor and Leopoldo Potane kept flailing at him
with the bolo, he had no other choice but to use his revolver to defend himself against the attack.
Under the circumstances, there was no opportunity for Masipequina to carefully take aim. He just
discharged his weapon at the deceased in the hope that such would save him from any further injury
or death.

It must also be borne in mind that the rule is that the reasonable necessity of the means employed to
repel or prevent the attack depends upon the imminent danger of injury, not on the harm actually
done to the accused [U.S. v. Paras, 9 Phil. 367 (1907)]. Thus, that Masipequina escaped serious
injuries does not necessarily imply that the means he used to repel the attack were unreasonable
and excessive. The fact remains that the act of Leopoldo Potane of attacking Masipequina with a
bolo was a very real danger to his life that the latter had to repel the best way he can. That the
gunshot wounds he inflicted on Leopoldo Potane proved to be fatal does not make the means he
employed any less reasonable under the circumstances.
3. Then, the lack of sufficient provocation on the part of Masipequina is too plain to even doubt. He,
together with Patrolman Alampayan had been tasked by his superior to apprehend Leopoldo Potane
upon complaint of his own father and brother. Thus, petitioners herein, when they went to apprehend
the deceased, were in the performance of their official duties as peace officers. And when they
reached the house where Leopoldo Potane was hiding, Masipequina tried to coax Leopoldo Potane
into coming out of the house, but the latter would not. It was only when Leopoldo Potane asked
Masipequina, who was his childhood friend, to enter the house that he did, followed by Nicolas
Potane. Masipequina was about to take a seat, definitely a non-provocative act, when he was
suddenly attacked by Leopoldo Potane with a bolo.

As consistently argued by the Solicitor General before the Court of Appeals and this Court, all the
elements of self defense are present in the instant case:

... (a) [T]here was unlawful aggression on the part of the victim which was a real and
imminent threat to the life of Pat. Masipequina. The victim was brandishing a bolo
which he did use in fact to hit the latter; (b) The use of his revolver to repel the
aggression was a reasonable necessity. His life already exposed to danger in the
face of a continuous assault, it is likely that had he not shot the victim, he would have
been killed, considering the deranged mind of the aggressor. Moreover, after he shot
the victim, he ran away to avoid being hit farther (sic), an act obviously inconsistent
with a deliberate intent to kill; (c) Pat. Masipequina did not provoke the victim into
attacking him. In fact, before he went inside the house, he asked Leopoldo to come
out to talk things over. He even asked for a drink. It was only when the victim himself
asked Pat. Masipequina to go up the house that the latter entered the sala.

xxx

[Manifestation and Motion In Lieu of Respondent People's Brief, p. 12; Rollo, p. 115].

We also hasten to add that, as in the case of People v. Boholst-Caballero, supra, we accord special
significance to the wounds inflicted on the deceased in finding that the elements of self-defense had
been established.

According to Dr. Julieta Melicor, who conducted the postmortem examination on the body of the
deceased, the trajectory of the two chest wounds indicate that the person who fired the shots was in
a lying and lower position while the deceased was then standing [TSN, September 2, 1976, pp. 5-6,
10]. This corroborates petitioner Masipequina's testimony that he had his back to the floor when he
fired at the victim who was attacking him with a bolo. The fact that the wounds bore traces of
gunpowder, indicating the proximity between the person who fired the shot and the deceased, also
support Masipequina's testimony.

After the elements of self-defense had been established to exculpate petitioners from the charge of
homicide, the next question that arises, albeit only incidentally, is whether or not Alampayan could
be separately convicted of the lesser offense of less serious or slight physical injuries for the gunshot
wound he inflicted on Leopoldo Potane's thigh.

Again, we refer to Article 11 of the Revised Penal Code, which provides:

ART. 11. Justifying circumstances. — The following do not incur any criminal liability:

xxx
 3. Anyone who acts in defense of the person or rights of a stranger, provided that the
first and second requisites mentioned in the first circumstance of this article are
present and that the person defending be not induced by revenge, resentment, or
other evil motive.

xxx

Thus, the elements of defense of stranger are: (1) unlawful aggression; (2) reasonable necessity of
the means employed to prevent or repel it; and (3) the person defending be not induced by revenge,
resentment, or other evil motive.

1. In the instant case, that there was unlawful aggression on the part of Leopoldo
Potane had been adequately established, as discussed earlier with regard to the
circumstance of self-defense.

2. Then, that the means employed by Alampayan in trying to prevent Leopoldo

Potane from further attacking Masipequina with a bolo were reasonable is clearly
evident, as Alampayan only shot at Leopoldo Potane's thigh to prevent him from
further pursuing Masipequina who was trying to escape Leopoldo Potane's attack.

3. Finally, that Alampayan was not motivated by any evil motive is shown by the fact
that he, together with Masipequina, only proceeded to the place where the incident
happened to look for Leopoldo Potane because they had been ordered by their
substation commander to apprehend Leopoldo Potane who had shown signs of
mental derangement and had threatened his relatives with a bolo. In short, the two
policemen were in the performance of their official and lawful duties.

This, the performance of duties, brings to fore another circumstance that would justify Alampayan's
wounding of Leopoldo Potane, for the same Article 11 of the Revised Penal Code exempts from
liability [a]ny person who acts in the fulfillment of a duty or in the lawful exercise of a right or office"
[Art. 11, par. 5]. Thus, in one case, the Court acquitted the accused police officers even if their acts
constituted the crimes of discharge of firearm and lesiones graves and menos graves, inflicted upon
persons facing criminal charges who were trying to resist arrest, because the accused officers were
in the performance of their official duties [U.S. v. Resaba, 1 Phil. 311 (1902)].

Finally, the small lacerated wounds on Leopoldo Potane's forehead and right leg, which the trial
court and the Court of Appeals found suspicious, can be explained by the fact that Leopoldo Potane
dropped to the ground after he was shot on the thigh by Alampayan. There is nothing on the record
to support the conclusion that the wounds were inflicted by a flashlight or gun butt.

In fine, this Court, on the basis of the same facts found by the Court of Appeals, has arrived at a
different conclusion. Principally, the Court of Appeals affirmed the trial court's decision after
concluding that one of the elements of self-defense, i.e., reasonable necessity of the means
employed to prevent or repel the attack, was lacking. However, after a careful consideration of the
undisputed facts and the rule on self-defense by police officers enunciated in Mojica, this Court is
convinced that said element had been established and that the Court of Appeals committed a
reversible error when it rejected petitioners' defense and affirmed the trial court's judgment of
conviction.

WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals is hereby
REVERSED. Petitioners Patrolmen Norberto Masipequina and Jovencio Alampayan are
ACQUITTED of the crime charged.
G.R. No. 181626 May 30, 2011

SANTIAGO PAERA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO, J.:

The Case

This resolves the petition for review1 of the ruling2 of the Regional Trial Court of Dumaguete
City3 (RTC) finding petitioner Santiago Paera guilty of three counts of Grave Threats, in violation of
Article 282 of the Revised Penal Code (RPC).

The Facts

As punong barangay of Mampas, Bacong, Negros Oriental, petitioner Santiago Paera (petitioner)
allocated his constituents’ use of communal water coming from a communal tank by limiting
distribution to the residents of Mampas, Bacong. The tank sits on a land located in the neighboring
barangay of Mampas, Valencia and owned by complainant Vicente Darong (Vicente), father of
complainant Indalecio Darong (Indalecio). Despite petitioner’s scheme, Indalecio continued drawing
water from the tank. On 7 April 1999, petitioner reminded Indalecio of the water distribution scheme
and cut Indalecio’s access.

The following day, petitioner inspected the tank after constituents complained of water supply
interruption. Petitioner discovered a tap from the main line which he promptly disconnected. To stem
the flow of water from the ensuing leak, petitioner, using a borrowed bolo, fashioned a wooden plug.
It was at this point when Indalecio arrived. What happened next is contested by the parties.

According to the prosecution, petitioner, without any warning, picked-up his bolo and charged
towards Indalecio, shouting "Patyon tikaw!" (I will kill you!). Indalecio ran for safety, passing along
the way his wife, Diosetea Darong (Diosetea) who had followed him to the water tank. Upon seeing
petitioner, Diosetea inquired what was the matter. Instead of replying, petitioner shouted "Wala koy
gipili, bisag babaye ka, patyon tikaw!" ("I don’t spare anyone, even if you are a woman, I will kill
you!"). Diosetea similarly scampered and sought refuge in the nearby house of a relative. Unable to
pursue Diosetea, petitioner turned his attention back to Indalecio. As petitioner chased Indalecio, he
passed Vicente, and, recognizing the latter, repeatedly thrust his bolo towards him, shouting "Bisag
gulang ka, buk-on nako imo ulo!" ("Even if you are old, I will crack open your skull!").

According to petitioner, however, it was Indalecio who threatened him with a bolo, angrily inquiring
why petitioner had severed his water connection. This left petitioner with no choice but to take a
defensive stance using the borrowed bolo, prompting Indalecio to scamper.

Except for Vicente, who was seriously ill, the Darongs testified during trial. Petitioner was the
defense’s lone witness.

The Ruling of the Municipal Circuit Trial Court

The 7th Municipal Circuit Trial Court of Valencia-Bacong, Negros Oriental (MCTC) found petitioner
guilty as charged, ordering petitioner to serve time and pay fine for each of the three counts.4 The
MCTC found the prosecution evidence sufficient to prove the elements of Grave Threats under
Article 282, noting that the Darongs’ persistent water tapping contrary to petitioner’s directive "must
have angered" petitioner, triggering his criminal behavior.5 The MCTC rejected petitioner’s defense
of denial as "self-serving and uncorroborated."6

Petitioner appealed to the RTC, reiterating his defense of denial.

Ruling of the Regional Trial Court

The RTC affirmed the MCTC, sustaining the latter’s finding on petitioner’s motive. The RTC similarly
found unconvincing petitioner’s denial in light of the "clear, direct, and consistent" testimonies of the
Darongs and other prosecution witnesses.7

Hence, this appeal.

Abandoning his theory below, petitioner now concedes his liability but only for a single count of the
"continued complex crime" of Grave Threats. Further, petitioner prays for the dismissal of the case
filed by Vicente as the latter’s failure to testify allegedly deprived him of his constitutional right to
confront witnesses. Alternatively, petitioner claims he is innocent of the charges for having acted in
defense of the property of strangers and in lawful performance of duty, justifying circumstances
under paragraphs 3 and 5, Article 11 of the RPC.8

In its Comment, the Office of the Solicitor General (OSG) finds merit in petitioner’s concession of
liability for the single count of the "continued complex crime" of Grave Threats. The OSG, however,
rejects petitioner’s prayer for the dismissal of Vicente’s complaint, arguing that petitioner’s guilt was
amply proven by the prosecution evidence, not to mention that petitioner failed to raise this issue
during trial. Further, the OSG finds the claim of defense of stranger unavailing for lack of unlawful
aggression on the part of the Darongs. Lastly, the OSG notes the absence of regularity in petitioner’s
performance of duty to justify his conduct.9

The Issue

The question is whether petitioner is guilty of three counts of Grave Threats.

The Ruling of the Court

We rule in the affirmative, deny the petition and affirm the RTC.

Due Process Mischief in Raising

New Issues on Appeal

Although uncommented, petitioner’s adoption of new theories for the first time before this Court has
not escaped our attention. Elementary principles of due process forbid this pernicious procedural
strategy - it not only catches off-guard the opposing party, it also denies judges the analytical benefit
uniform theorizing affords. Thus, courts generally refuse to pass upon freshly raised theories.10 We
would have applied this rule here were it not for the fact that petitioner’s liberty is at stake and the
OSG partially views his cause with favor.
 Petitioner Liable for Three Counts of Grave Threats

To limit his liability to one count of Grave Threats, petitioner tries to fit the facts of the case to the
concept of "continued crime" (delito continuado) which envisages a single crime committed through
a series of acts arising from one criminal intent or resolution.11 To fix the penalty for his supposed
single continued crime, petitioner invokes the rule for complex crime under Article 48 of the RPC
imposing the penalty for the most serious crime, applied in its maximum period.

The nature of the crime of Grave Threats and the proper application of the concepts of continued
and complex crimes preclude the adoption of petitioner’s theory.

Article 282 of the RPC holds liable for Grave Threats "any person who shall threaten another with
the infliction upon the person x x x of the latter or his family of any wrong amounting to a crime[.]"
This felony is consummated "as soon as the threats come to the knowledge of the person
threatened."12

Applying these parameters, it is clear that petitioner’s threat to kill Indalecio and Diosetea and crack
open Vicente’s skull are wrongs on the person amounting to (at the very least) homicide and serious
physical injuries as penalized under the RPC. These threats were consummated as soon as
Indalecio, Diosetea, and Vicente heard petitioner utter his threatening remarks. Having spoken the
threats at different points in time to these three individuals, albeit in rapid succession, petitioner
incurred three separate criminal liabilities.

Petitioner’s theory fusing his liability to one count of Grave Threats because he only had "a single
mental resolution, a single impulse, and single intent"13 to threaten the Darongs assumes a vital fact:
that he had foreknowledge of Indalecio, Diosetea, and Vicente’s presence near the water tank in the
morning of 8 April 1999. The records, however, belie this assumption. Thus, in the case of Indalecio,
petitioner was as much surprised to see Indalecio as the latter was in seeing petitioner when they
chanced upon each other near the water tank. Similarly, petitioner came across Diosetea as he was
chasing Indalecio who had scampered for safety. Lastly, petitioner crossed paths with Vicente while
running after Indalecio. Indeed, petitioner went to the water tank not to execute his "single intent" to
threaten Indalecio, Diosetea, and Vicente but to investigate a suspected water tap. Not having
known in advance of the Darongs’ presence near the water tank at the time in question, petitioner
could not have formed any intent to threaten any of them until shortly before he inadvertently came
across each of them.

The importance of foreknowledge of a vital fact to sustain a claim of "continued crime" undergirded
our ruling in Gamboa v. Court of Appeals.14 There, the accused, as here, conceded liability to a
lesser crime – one count of estafa, and not 124 as charged – theorizing that his conduct was
animated by a single fraudulent intent to divert deposits over a period of several months. We
rejected the claim –

15
x x x x (Emphasis supplied)

Similarly, petitioner’s intent to threaten Indalecio, Diosetea, and Vicente with bodily harm arose only
when he chanced upon each of his victims.

Indeed, petitioner’s theory holds water only if the facts are altered – that is, he threatened Indalecio,
Diosetea, and Vicente at the same place and at the same time. Had this been true, then petitioner’s
liability for one count of Grave Threats would have rested on the same basis grounding our rulings
that the taking of six roosters16 or 13 cows17 found at the same place and taken at the same time
results in the commission of only one count of theft because –
[t]here is no series of acts committed for the accomplishment of different purposes, but only of one
which was consummated, and which determines the existence of only one crime. The act of taking
the roosters [and heads of cattle] in the same place and on the same occasion cannot give rise to
two crimes having an independent existence of their own, because there are not two distinct
appropriations nor two intentions that characterize two separate crimes.18 (Emphasis in the original)

Having disposed of petitioner’s theory on the nature of his offense, we see no reason to extensively
pass upon his use of the notion of complex crime to avail of its liberal penalty scheme. It suffices to
state that under Article 48 of the RPC, complex crimes encompass either (1) an act which
constitutes two or more grave or less grave offenses; or (2) an offense which is a necessary means
for committing another19 and petitioner neither performed a single act resulting in less or less grave
crimes nor committed an offense as a means of consummating another.

The Prosecution Proved the Commission

of Grave Threats Against Vicente

We find no reversible error in the RTC’s affirmance of the MCTC’s ruling, holding petitioner liable for
Grave Threats against Vicente. The prosecution’s evidence, consisting of the testimonies of
Indalecio, Diosetea and two other corroborating witnesses,20 indisputably show petitioner threatening
Vicente with death.21 Vicente’s inability to take the stand, for documented medical reason,22 does not
detract from the veracity and strength of the prosecution evidence. Petitioner’s claim of denial of his
constitutional right to confront witnesses is untenable as he had every opportunity to cross-examine
the four prosecution witnesses. No law requires the presentation of the private complainant as
condition for finding guilt for Grave Threats, especially if, as here, there were other victims and
witnesses who attested to its commission against the non-testifying complainant. Significantly,
petitioner did not raise Vicente’s non-appearance as an issue during the trial, indicating that he saw
nothing significant in the latter’s absence.

No Justifying Circumstances Attended Petitioner’s

Commission of Grave Threats

There is likewise no merit in petitioner’s claim of having acted to "defend[] and protect[] the water
rights of his constituents" in the lawful exercise of his office as punong barangay.23 The defense of
stranger rule under paragraph 3, Article 11 of the RPC, which negates criminal liability of –

[a]nyone who acts in the defense of the person or rights of a stranger, provided that the first and
second requisites mentioned in the first circumstance of this article are present and that the person
defending be not induced by revenge, resentment or other evil motive.1avvphi1

requires proof of (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) absence of evil motives such as revenge and
resentment.24 None of these requisites obtain here. Not one of the Darongs committed acts of
aggression against third parties’ rights when petitioner successively threatened them with bodily
harm. Indeed, all of them were performing ordinary, peaceful acts – Indalecio was standing near the
water tank, Diosetea was walking towards Indalecio and Vicente was standing in the vegetable
garden a few meters away. With the element of unlawful aggression absent, inquiry on the
reasonableness of the means petitioner used to prevent or repel it is rendered irrelevant. As for the
third requisite, the records more than support the conclusion that petitioner acted with resentment,
borne out of the Darongs’ repeated refusal to follow his water distribution scheme, causing him to
lose perspective and angrily threaten the Darongs with bodily harm.
Lastly, the justifying circumstance of fulfillment of duty or exercise of office under the 5th paragraph
of Article 11 of the RPC lies upon proof that the offense committed was the necessary consequence
of the due performance of duty or the lawful exercise of office.25 Arguably, petitioner acted in the
performance of his duty to "ensure delivery of basic services"26 when he barred the Darongs’ access
to the communal water tank. Nevertheless, petitioner exceeded the bounds of his office when he
successively chased the Darongs with a bladed weapon, threatening harm on their persons, for
violating his order. A number of options constituting lawful and due discharge of his office lay before
petitioner27 and his resort to any of them would have spared him from criminal liability. His failure to
do so places his actions outside of the ambit of criminally immune official conduct. Petitioner ought
to know that no amount of concern for the delivery of services justifies use by local elective officials
of violence or threats of violence.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 28 November 2007 of the
Regional Trial Court of Dumaguete City, Branch 39.
G.R. No. 199892 December 10, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARTURO PUNZALAN, JR., Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision 1 dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision2 dated March
21, 2007 of the Regional Trial Court (RTC) of fba, Zambales and affirming his conviction for the
complex crime of double murder with multiple attempted murder, with certain modifications on the
civil liability imposed on appellant.3

In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio Duclayna, SN1 Evelio
Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1 Erlinger Bundang were among the
members of the Philippine Navy sent for schooling at the Naval Education and Training Command
(NETC) at San Miguel, San Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the
afternoon, they went to the "All-in-One" Canteen to have some drink. Later, at around 10:00 in the
evening, they transferred to a nearby videoke bar, "Aquarius," where they continued their drinking
session. Shortly thereafter, a heated argument between SN1 Bacosa and appellant ensued
regarding a flickering light bulb inside "Aquarius."4 When SN1 Bacosa suggested that the light be
turned off ("Patayin ang ilaw"), appellant who must have misunderstood and misinterpreted SN1
Bacosa’s statement belligerently reacted asking, "Sinong papatayin?," thinking that SN1 Bacosa’s
statement was directed at him.5 SN1 Cuya tried to pacify SN1 Bacosa and appellant, while SN1
Bundang apologized to appellant in behalf of SN1 Bacosa. However, appellant was still visibly angry,
mumbling unintelligible words and pounding his fist on the table.6

To avoid further trouble, the navy personnel decided to leave "Aquarius" and return to the NETC
camp. They walked in two’s, namely, SN1 Bundang and SN1 Domingo in the first group, followed by
the group of SN1 Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with
each group at one arm’s length distance from the other.7 Along the way, they passed by the NETC
sentry gate which was being manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that
time.8 SN1 Andal and SN1 Duclayna even stopped by to give the sentries some barbecue before
proceeding to follow their companions.9

Soon after the navy personnel passed by the sentry gate, SN1 De Guzman and F1EN Dimaala
flagged down a rushing and zigzagging maroon Nissan van with plate number DRW 706. The
sentries approached the van and recognized appellant, who was reeking of liquor, as the driver.
Appellant angrily uttered, "kasi chief, gago ang mga ‘yan!," while pointing toward the direction of the
navy personnel’s group. Even before he was given the go signal to proceed, appellant shifted gears
and sped away while uttering, "papatayin ko ang mga ‘yan!"10 While F1EN Dimaala was writing the
van’s plate number and details in the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De
Guzman saw how the van sped away towards the camp and suddenly swerved to the right hitting
the group of the walking navy personnel prompting him to exclaim to F1EN Dimaala, "chief,
binangga ang tropa!" SN1 De Guzman then asked permission to go to the scene of the incident and
check on the navy personnel.11

When they were hit by the vehicle from behind, SN1 Cuya and SN1 Bacosa were thrown away
towards a grassy spot on the roadside. They momentarily lost consciousness.12 When they came to,
they saw SN1 Duclayna lying motionless on the ground.13 SN1 Cuya tried to resuscitate SN1
Duclayna, while SN1 Bacosa tried to chase the van.14

SN1 Domingo was not hit by the van as he was in the first group and was pushed away from the
path of the speeding van. He was able to see the vehicle’s plate number. He also tried to chase the
van with SN1 Bacosa but they turned around when the vehicle made a U-turn as they thought that it
would come back for them. The vehicle, however, sped away again when other people started to
arrive at the scene of the incident.15

SN1 De Guzman found SN1 Cuya administering cardiopulmonary resuscitation (CPR) on SN1
Duclayna. He also saw the misshapen body of SN1 Andal lying some 50 meters away, apparently
dragged there when the speeding van hit SN1 Andal. SN1 Cuya instructed SN1 De Guzman to get
an ambulance but the car of the officer on duty at that time arrived and they boarded SN1
Duclayna’s body to the vehicle to be brought to the hospital.16 The other injured navy personnel,
namely, SN1 Cuya, SN1 Bacosa, and SN1 Bundang, were brought to the infirmary for treatment.17

Members of the local police soon arrived at the scene of the crime. Senior Police Officer (SPO) 1
Roberto Llorico, the police investigator, found the bloodied lifeless body of SN1 Andal lying on the
side of the road. SPO1 Llorico was informed that appellant was the suspect. Fortunately, one of the
responding officers was appellant’s neighbor and led SPO1 Llorico to appellant’s place where they
found appellant standing near his gate. Appellant appeared drunk and was reeking of alcohol. They
also saw the van parked inside the premises of appellant’s place. Its front bumper was damaged.
When they asked appellant why he ran over the navy personnel, he simply answered that he was
drunk. The police officers then invited appellant to the police station and brought the van with them.18

A post mortem examination was conducted on the bodies of SN1 Andal and SN1 Duclayna by Dr.
Jericho Cordero of Camp Crame Medical Division. Dr. Cordero’s findings were that the injuries
sustained by SN1 Andal were fatal and caused by a hard blunt object that hit his body. The force of
the impact was such that the internal organs like the kidneys, mesentery and spleen were also fatally
injured. SN1 Andal died of cardiorespiratory arrest as a result of massive blunt traumatic injuries to
the head, thorax and abdomen. On the other hand, SN1 Duclayna sustained fatal injuries to the
head and liver. The head and neck injuries were such that a lot of blood vessels were ruptured and
the fractures were embedded in the brain. The laceration on the liver, also a mortal injury, was a
blunt traumatic injury.19

As regards the other navy personnel, SN1 Cuya suffered lacerated wounds on the head and
different parts of the body for which he was confined at the infirmary for about eighteen (18)
days;20 SN1 Bacosa sustained injuries on his knee and left hand and stayed in the infirmary for a
day;21 and SN1 Bundang suffered injuries to his right foot.22

Appellant was thereafter charged under an Information23 which reads as follows:

That on or about the 10th day of August 2002, at about 11:00 o’clock in the evening, in Brgy. West
Dirita, Municipality of San Antonio, Province of Zambales, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with intent to kill, while driving and in control of a Nissan Van
with plate no. DRW 706, did there and then wil[l]fully, unlawfully and feloniously, bump, overrun,
smash and hit from behind with the use of the said van, the following persons: Antonio Duclayna,
Arnulfo Andal, Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, all members of
the Philippine [N]avy then assigned at the Naval Education and Training Command in San Antonio,
Zambales, thereby inflicting upon them the following physical injuries, to wit:

DANILO CUYA:
"Head Injury, grade 1 (Lacerated wound 5.0 cm, accipitoparietal area, (L) and lacerated wound,
Lower lip) 2 to VA"

EVELIO BACOSA:

"Multiple abrasion, wrist, volar surface (L), 2nd digit, abrasion, dorsun, (L) foot"

ERLINGER BUNDANG:

"Abrasion, medial maleolus, (R)"

ARNULFO ANDAL:

"Head Injury, Grade IV; (Depressed Fracture, Frontal: Lacerated wounds, 8.0 cm 3.0 cm. forehead,
and 5.0 cm parietal, (R);

Avulsion, medial aspect, upper arm to elbow, hip and enguinal area, (L);

Multiple abrasion, anterior and posterior chest, knees and (R) footsecondary to VA"

ANTONIO DUCLAYNA:

"Head Injury, Grade IV (Lacerated wound, Contusion, Hematoma (R) Parietal) secondary to VA"

which act of said accused directly caused the death of Arnulfo Andal and Antonio Duclayna, and in
so far as Danilo Cuya, Evelio Bacosa and Erlinger Bundang were concerned, said accused
performed all the acts of execution which would produce the crime of Murder as a consequence, but
nevertheless, did not produce said crime by reason of cause/s independent of his will, that is, by the
timely and able medical assistance rendered to said Danilo Cuya, Evelio Bacosa and Erlinger
Bundang, which prevented their death, and finally as to Cesar Domingo, said accused commenced
the commission of the acts constituting Murder directly by overt acts, but was not able to perform all
the acts of execution by reason of some cause other than accused’s own desistance, that is due to
the timely avoidance of the van driven by accused, and that the commission of the crimes was
attended with treachery, evident premeditation, cruelty and use of a motor vehicle, and by
deliberately and inhuman[ely] augmenting the suffering of the victim Arnulfo Andal, to the damage
and prejudice of Danilo Cuya, Evelio Bacosa, Erlinger Bundang and Cesar Domingo and the family
and heirs of the deceased Arnulfo Andang and Antonio Duclayna.

When arraigned, appellant maintained his innocence.24

After pre-trial, trial ensued and the prosecution presented evidence to establish the facts stated
above.

In his defense, appellant testified that in the evening of August 10, 2002, he was drinking with Marvin
Acebeda and Romeo Eusantos at the "Aquarius" videoke bar. When he sang, the navy personnel
who were also inside the bar laughed at him as he was out of tune. He then stood up, paid his bills
and went out. After a while, Acebeda followed him and informed him that the navy personnel would
like to make peace with him. He went back inside the bar with Acebedo and approached the navy
personnel. When SN1 Bacosa appeared to reach out for appellant’s hand, appellant offered his hand
but SN1 Bacosa suddenly punched appellant’s right ear. To avoid further altercation, appellant left
the bar with Acebeda in tow. Appellant went home driving his van, with the spouses Romeo and
Alicia Eusantos who hitched a ride as passengers. When they passed by the sentry, somebody
threw stones at the van. When he alighted and inspected the vehicle, he saw that one of the
headlights was broken. Thereafter, he saw SN1 Bacosa and another man approaching him so he
went back inside the van but the duo boxed him repeatedly on his shoulder through the van’s open
window. When he saw the four other navy personnel coming towards him, he accelerated the van.
During the whole incident, Romeo was asleep as he was very drunk while Alicia was seated at the
back of the van. Upon reaching appellant’s home, the spouses alighted from the van and proceeded
to their place. After 20 minutes, police officers arrived at appellant’s house and told him that he
bumped some people. Appellant went with the police officers to the police station where he was
investigated and detained.25

Appellant’s only other witness was Alicia Eusantos. She testified that she and her husband hitched a
ride with appellant in the evening of August 10, 2002. She did not notice any unusual incident from
the time they rode the vehicle until they alighted from it. She learned about the incident on the
following day only when her statement was taken by the police.26

After the parties have rested their respective cases, the RTC of Iba, Zambales found appellant guilty
and rendered a Decision dated March 21, 2007 with the following dispositive portion:

IN VIEW THEREOF, accused ARTURO PUNZALAN, JR. is found GUILTY beyond reasonable
doubt of the complex crime of Double Murder qualified by treachery with Attempted Murder attended
by the aggravating circumstance of use of motor vehicle and is hereby sentenced to suffer the
penalty of Reclusion Perpetua.

For the death of SN1 Antonio Duclayna and SN1 Arnulfo Andal, civil indemnity of ₱50,000.00 each
is awarded to their heirs. This is in addition to the amount of moral damages at ₱50,000.00 each for
the emotional and mental sufferings, plus ₱12,095.00 to the heirs of Duclayna representing actual
damages.

Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and
SN1 Erlinger Bundang ₱30,000.00 each or an aggregate amount of ₱120,000.00 as indemnity for
their attempted murder.27

Appellant filed an appeal with the Court of Appeals. In his brief,28 appellant claimed that the trial court
erred in not finding that he may not be held criminally liable as he merely acted in avoidance of
greater evil or injury, a justifying circumstance under paragraph 4, Article 11 of the Revised Penal
Code. His act of increasing his vehicle’s speed was reasonable and justified as he was being
attacked by two men whose four companions were also approaching. He asserted that the attack
against him by the two navy personnel constituted actual and imminent danger to his life and limb.
The sight of the four approaching companions of his attackers "created in his mind a fear of greater
evil," prompting him to speed up his vehicle to avoid a greater evil or injury to himself. According to
appellant, if he accidentally hit the approaching navy men in the process, he could not be held
criminally liable therefor. The instinct of self-preservation would make one feel that his own safety is
of greater importance than that of another.29

Appellant further faulted the trial court in appreciating the qualifying circumstance of treachery. He
asserted that nothing in the records would show that he consciously or deliberately adopted the
means of execution. More importantly, treachery was not properly alleged in the Information.30

The Office of the Solicitor General (OSG), on behalf of the People of the Philippines, refuted the
arguments of appellant and defended the correctness of the RTC Decision. In its brief,31 the OSG
claimed that the trial court rightly rejected appellant’s defense of avoidance of greater evil or injury.
Appellant’s version of the events did not conform to the physical evidence and it was not consistent
with the testimony of his own witness.

The OSG also argued that treachery was appropriately appreciated by the trial court. The
Information was written in a way that sufficiently described treachery where "the unsuspecting
victims were walking towards their barracks and totally unprepared for the unexpected attack from
behind."32

After considering the respective arguments of the parties, the Court of Appeals rendered the
assailed Decision dated April 29, 2011 with the following decretal portion:

WHEREFORE, the instant Appeal is Denied. The assailed Decision, dated March 21, 2007, of the
Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-3492-I,
is AFFIRMED with MODIFICATION, in that Accused-Appellant is hereby ordered to pay the heirs of
SN1 Antonio Duclayna and SN1 Arnulfo Andal civil indemnity of Php75,000, moral damages of
Php75,000, temperate damages of Php25,000 and exemplary damages of Php30,000. In addition to
the foregoing damages, Accused-Appellant is as well held liable to pay the heirs of SN1 Andal the
amount of Php2,172,270.21 to represent the amount of loss of earning capacity of SN1 Andal.

Accused-Appellant is likewise ordered to pay the surviving victims, SN1 Evelio Bacosa, SN1 Cesar
Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang, moral and exemplary damages in the
amount of Php40,000 and Php30,000, respectively. Award of temperate damages in the amount of
Php25,000 is proper in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the unsubstantiated
amount of pecuniary losses they suffered on account of the injuries they sustained. SN1 Cesar
Domingo, however, is not entitled to temperate damages.33

Hence, this appeal.

Both appellant and the OSG adopted the respective briefs they filed in the Court of Appeals.34

Is appellant guilty of the complex crime of murder with frustrated murder?

After a thorough review of the records of this case and the arguments of the parties, this Court
affirms appellant’s conviction.

Both the RTC and the Court of Appeals found the evidence presented and offered by the
prosecution credible and that the "prosecution witnesses had overwhelmingly proved beyond
reasonable doubt the culpability of the Accused-Appellant."35 The Court of Appeals correctly
observed that prosecution witnesses F1EN Dimaala and SN1 De Guzman "positively identified
accused-appellant as the one who hit and ran over the victims."36 The Court of Appeals further
found:

The testimonies of the prosecution witnesses, taken together, inevitably showed the criminal intent
of the Accused-Appellant to inflict harm on the victims. They testified on the incident in a clear,
concise, corroborative, and straightforward manner. Thus, their testimonies must prevail over the
testimony given by the Accused-Appellant which, on the other hand, was neither substantiated nor
supported by any evidence.

The prosecution witnesses testified that they actually saw how Accused-Appellant ran over the
victims who were walking inside the NETC camp on the night of August 10, 2002. Accused-
Appellant, who was driving his van from behind, suddenly bumped and ran over the victims. The
victims were thrown away, resulting in the instantaneous death of SN1 Duclayna and SN1 Andal and
causing injuries to the other victims.

xxxx

Accused-Appellant’s version of the crime, upon which the justifying circumstance of avoidance of
greater evil or injury is invoked, is baseless. This is because his assertions anent the existence of
the evil which he sought to be avoided [did] not actually exist as [they] neither conformed to the
evidence at hand nor [were] [they] consistent with the testimony of his own witness, Alicia Eusantos
x x x.

xxxx

Accused-Appellant’s own witness, Alicia Eusantos, not only failed to corroborate his claim but also
belied Accused-Appellant’s claim that he was attacked by the Philippine Navy personnel. Alicia
Eusantos categorically stated that she did not witness any unusual incident in the evening of August
10, 2002 while on board the Nissan Urvan Van driven by Accused-Appellant while they were cruising
the access road going to the NETC compound. Accused-Appellant’s claim, therefore, is more
imaginary than real. The justifying circumstance of Avoidance of Greater Evil or Injury cannot be
invoked by the Accused-Appellant as the alleged evil sought to be avoided does not actually exist.37

Moreover, whether or not petitioner acted in avoidance of greater evil or injury is a question of fact. It
is an issue which concerns doubt or difference arising as to the truth or the falsehood of alleged
facts.38 In this connection, this Court declared in Martinez v. Court of Appeals39 :

[T]he well-entrenched rule is that findings of fact of the trial court in the ascertainment of the
credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by
the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any
justifiable reason to deviate from the said findings.

This Court has combed through the records of this case and found no reason to deviate from the
findings of the trial and appellate courts. There is nothing that would indicate that the RTC and the
Court of Appeals "ignored, misconstrued, misunderstood or misinterpreted cogent facts and
circumstances of substance, which, if considered, will alter the outcome of the case."40

Under paragraph 4, Article 11 of the Revised Penal Code, to successfully invoke avoidance of
greater evil as a justifying circumstance, 41 the following requisites should be complied with:

(1) the evil sought to be avoided actually exists;

(2) the injury feared be greater than that done to avoid it; and

(3) there be no other practical and less harmful means of preventing it.

The RTC and the Court of Appeals rejected appellant’s self-serving and uncorroborated claim of
avoidance of greater evil. The trial and appellate courts noted that even appellant’s own witness who
was in the van with appellant at the time of the incident contradicted appellant’s claim. Thus, the
RTC and the Court of Appeals concluded that the evil appellant claimed to avoid did not actually
exist. This Court agrees.
Moreover, appellant failed to satisfy the third requisite that there be no other practical and less
harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction
of damage or injury to another so that a greater evil or injury may not befall one’s self may be
justified only if it is taken as a last resort and with the least possible prejudice to another. If there is
another way to avoid the injury without causing damage or injury to another or, if there is no such
other way but the damage to another may be minimized while avoiding an evil or injury to one’s self,
then such course should be taken.

In this case, the road where the incident happened was wide, some 6 to 7 meters in width,42 and the
place was well-lighted.43 Both sides of the road were unobstructed by trees, plants or
structures.44 Appellant was a driver by occupation.45 However, appellant himself testified that when
he shifted to the second gear and immediately stepped on the accelerator upon seeing the four navy
personnel approaching from in front of him,46 he did not make any attempt to avoid hitting the
approaching navy personnel even though he had enough space to do so. He simply sped away
straight ahead, meeting the approaching navy personnel head on, totally unmindful if he might run
them over.47 He therefore miserably failed to resort to other practical and less harmful available
means of preventing the evil or injury he claimed to be avoiding.

The appreciation of treachery as a circumstance that qualified the killing of SN1 Duclayna and SN1
Andal and the attempted killing of the others is also correct. This Court agrees with the following
disquisition of the Court of Appeals:

We find that the RTC correctly appreciated the existence of treachery in the commission of the
offense. Treachery qualifies the killing to murder. There is treachery when the offender commits any
of the crimes against persons, employing means, methods or forms in the execution thereof which
tend directly and especially to ensure its execution, without risk to himself arising from any defense
which the offended party might make. The elements of treachery are: (1) the employment of means
of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2)
the means of execution was deliberate or consciously adopted.

Accused-Appellant’s act of running over the victims with his van from behind while the victims were
walking inside the NETC camp was a clear act of treachery. The victims were not given any warning
at all regarding the assault of the Accused-Appellant. The victims were surprised and were not able
to prepare and repel the treacherous assault of Accused-Appellant. The prosecution witnesses
testified that after they had flagged down Accused-Appellant’s van, the latter accelerated and upon
reaching the middle of the road, it suddenly swerved to the right hitting the victims who were startled
by the attack.

xxxx

A close review of the information would disclose that the qualifying circumstance of treachery was
stated in ordinary and concise language and the said act was described in terms sufficient to enable
a layman to know what offense is intended to be charged, and enables the court to pronounce
proper judgment.

We quote pertinent portion of the information, which reads:

"x x x the said accused, with intent to kill, while driving and in control of a Nissan Van with plate No.
DRW 706, did then and there willfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, x x x."
Applying the Supreme Court’s discussion in People vs. Batin, citing the case of Balitaan v. Court of
First Instance of Batangas, to wit:

"The main purpose of requiring the various elements of a crime to be set forth in an Information is to
enable the accused to suitably prepare his defense. He is presumed to have no independent
knowledge of the facts that constitute the offense. x x x.

It is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be
stated in order to render the information sufficiently certain to identify the offense. As a general rule,
matters of evidence, as distinguished from facts essential to the description of the offense, need not
be averred. For instance, it is not necessary to show on the face of an information for forgery in what
manner a person is to be defrauded, as that is a matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is

replete with cases wherein we found the allegation of treachery sufficient without any further
explanation as to the circumstances surrounding it."

Clearly, We find that the information is sufficient as it not merely indicated the term treachery therein
but also described the act itself constituting treachery. Such statement, without a doubt, provided the
supporting facts that constituted the offense, sufficiently alleging the qualifying circumstance of
treachery when it pointed out the statement, "smash and hit from behind."48 (Emphases supplied;
citations omitted.)

The essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting
victims, depriving the latter of any real chance to defend themselves, thereby ensuring its
commission without risk to the aggressor, and without the slightest provocation on the part of the
victims.49 The six navy personnel were walking by the roadside, on their way back to their camp.
They felt secure as they have just passed a sentry and were nearing their barracks. They were
totally unaware of the threat to their life as their backs were turned against the direction where
appellant’s speeding van came. They were therefore defenseless and posed no threat to appellant
when appellant mowed them down with his van, killing two of them, injuring three others and one
narrowly escaping injury or death. Beyond reasonable doubt, there was treachery in appellant’s act.
This was sufficiently alleged in the Information which not only expressly mentioned treachery as one
of the circumstances attending the crime but also described it in understandable language:

[T]he said accused, with intent to kill, while driving and in control of a Nissan Van with plate no. DRW
706, did then and there willfully, unlawfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, the following persons: Antonio Duclayna, Arnulfo Andal, Evelio
Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, x x x.50 (Emphasis supplied.)

Use of motor vehicle was also properly considered as an aggravating circumstance. Appellant
deliberately used the van he was driving to pursue the victims. Upon catching up with them,
appellant ran over them and mowed them down with the van, resulting to the death of SN1 Andal
and SN1 Duclayna and injuries to the others.51 Thereafter, he continued to speed away from the
scene of the incident. Without doubt, appellant used the van both as a means to commit a crime and
to flee the scene of the crime after he committed the felonious act.

The felony committed by appellant as correctly found by the RTC and the Court of Appeals, double
murder with multiple attempted murder, is a complex crime contemplated under Article 48 of the
Revised Penal Code:
Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum period.

Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act
of stepping on the accelerator, swerving to the right side of the road ramming through the navy
personnel, causing the death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an
attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo.52 The crimes of murder
and attempted murder are both grave felonies53 as the law attaches an afflictive penalty to capital
punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision
mayor,54 an afflictive penalty.55

Under Article 248 of the Revised Penal Code, as amended, murder is punishable by reclusion
perpetua to death. Article 6356 of the same Code provides that if the penalty prescribed is composed
of two indivisible penalties, as in the instant case, and there is an aggravating circumstance the
higher penalty should be imposed. Since use of vehicle can be considered as an ordinary
aggravating circumstance, treachery, by itself, being sufficient to qualify the killing, the proper
imposable penalty – the higher sanction – is death. However, in view of the enactment of Republic
Act No. 9346,57 prohibiting the imposition of the death penalty, the penalty for the killing of each of
the two victims is reduced to reclusion perpetua without eligibility for parole.58 The penalty
of reclusion perpetua thus imposed by the Court of Appeals on appellant for the complex crime that
he committed is correct.

The awards of ₱75,000.00 civil indemnity and ₱75,000.00 moral damages to the respective heirs of
SN1 Andal and SN1 Duclayna are also proper. These awards, civil indemnity and moral damages,
are mandatory without need of allegation and proof other than the death of the victim, owing to the
fact of the commission of murder.59

Moreover, in view of the presence of aggravating circumstances, namely the qualifying circumstance
of treachery and the generic aggravating circumstance of use of motor vehicle, the award of
₱30,000.00 exemplary damages to the respective heirs of the deceased victims is also correct.60 In
addition, it cannot be denied that the heirs of the deceased victims suffered pecuniary loss although
the exact amount was not proved with certainty.1âwphi1 Thus, the award of ₱25,000.00 temperate
damages to the heirs of each deceased victim is appropriate.61

As it was proven that, at the time of his death, SN1 Andal had a monthly income of ₱13,245.55,62 the
grant of ₱2,172,270.21 for loss of earning capacity is in order.63

As to the surviving victims, SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo, the Court of
Appeals correctly granted each of them ₱40,000 moral damages for the physical suffering, fright,
serious anxiety, moral shock, and similar injuries caused to them by the incident.64 And as the crime
was attended by aggravating circumstances, each of them was properly given ₱30,000 exemplary
damages.65

Finally, those who suffered injuries, namely, SN1 Cuya, SN1 Bacosa and SN1 Bundang, were
correctly awarded ₱25,000 temperate damages each for the pecuniary loss they suffered for
hospitalization and/or medication, although no receipts were shown to support said loss.66

WHEREFORE, the appeal is hereby DENIED. The Decision dated April 29, 2011 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 02816 affirming the conviction of appellant Arturo Punzalan, Jr. for
the complex crime of double murder with multiple attempted murder, imposing upon him the penalty
of reclusion perpetua and ordering him to pay the following:
 (a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio Duclayna:

(i) ₱75,000.00 civil indemnity;

(ii) ₱75,000.00 moral damages;

(iii) ₱30,000.00 exemplary damages; and

(iv) ₱25,000.00 temperate damages;

(b) To the heirs of SN1 Andal, ₱2,172,270.21 for loss of earning capacity;

(c) To each of the surviving victims, SN1 Danilo Cuya, SN1 Evelio Bacosa, SN1 Erlinger
Bundang and SN1 Cesar Domingo:

(i) ₱40,000.00 moral damages; and

(ii) ₱30,000.00 exemplary damages; and

(d) To SN1 Cuya, SN1 Bacosa and SN1 Bundang, ₱25,000.00 temperate damages each
is AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
SPO2 RUPERTO CABANLIG, Petitioners, v. SANDIGANBAYAN and OFFICE OF THE SPECIAL
PROSECUTOR, Respondents.

DECISION

CARPIO, J.:

The Case

This Petition for Review 1 seeks to reverse the Decision2 of the Fifth Division of the Sandiganbayan
dated 11 May 1999 and Resolution3 dated 2 May 2001 affirming the conviction of SPO2 Ruperto
Cabanlig ("Cabanlig") in Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced
Cabanlig to suffer the indeterminate penalty of four months of arresto mayor as minimum to two
years and four months of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy
Valino ("Valino"). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another policeman
and tried to escape from the custody of the police. The Sandiganbayan acquitted Cabanlig's co-
accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis ("Abesamis"), SPO2 Lucio
Mercado ("Mercado") and SPO1 Rady Esteban ("Esteban").

The Charge

Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended
information that reads as follows:

That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SPO[2]
Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado
and SPO1 Rady S. Esteban, all public officers being members of the Philippine National Police,
conspiring and confederating and mutually helping one another, with intent to kill, with treachery and
evident premeditation, taking advantage of nighttime and uninhabited place to facilitate the execution
of the crime, with use of firearms and without justifiable cause, did then and there, wilfully, unlawfully
and feloniously attack, assault and shoot one Jimmy Valino, hitting him several times at the vital
parts of his body, thereby inflicting upon the latter, serious and mortal wounds which were the direct
and immediate cause of his death, which crime was committed by the accused in relation to their
office as members of the Philippine National Police of Penaranda, Nueva Ecija, the deceased, who
was then detained for robbery and under the custody of the accused, having been killed while being
taken to the place where he allegedly concealed the effects of the crime, to the damage and
prejudice of the heirs of said victim, in such amount as may be awarded under the provisions of the
New Civil Code.

CONTRARY TO LAW.

Arraignment and Plea

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and
Esteban pleaded not guilty.

Version of the Prosecution

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four days
later or on 28 September 1992, the investigating authorities apprehended three suspects: Jordan
Magat ("Magat"), Randy Reyes ("Reyes") and Valino. The police recovered most of the stolen items.
However, a flower vase and a small radio were still missing. Cabanlig asked the three suspects
where these two items were. Reyes replied that the items were at his house.

Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in
retrieving the flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell,
intending to bring the two during the retrieval operation. It was at this point that Valino informed
Cabanlig that he had moved the vase and radio to another location without the knowledge of his two
cohorts. Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes.

Around 6:30 p.m., five fully armed policemen in uniform - Cabanlig, Padilla, Mercado, Abesamis and
Esteban - escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the missing flower vase
and radio. The policemen and Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep
was built like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal covering
separated the driver's compartment and main body of the jeep. There was no opening or door
between the two compartments of the jeep. Inside the main body of the jeep, were two long
benches, each of which was located at the left and right side of the jeep.

Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban
was right behind Abesamis at the left bench. Valino, who was not handcuffed, was between
Cabanlig and Mercado at the right bench. Valino was seated at Cabanlig's left and at Mercado's
right. Mercado was seated nearest to the opening of the rear of the jeep.

Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was slowly
negotiating a bumpy and potholed road, Valino suddenly grabbed Mercado's M16 Armalite and
jumped out of the jeep. Valino was able to grab Mercado's M16 Armalite when Mercado scratched
his head and tried to reach his back because some flying insects were pestering Mercado. Mercado
shouted "hoy!" when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear
of the vehicle, saw Valino's act of taking away the M16 Armalite. Cabanlig acted immediately.
Without issuing any warning of any sort, and with still one foot on the running board, Cabanlig fired
one shot at Valino, and after two to three seconds, Cabanlig fired four more successive shots. Valino
did not fire any shot.

The shooting happened around 7:00 p.m., at dusk or "nag-aagaw ang dilim at liwanag." Cabanlig
approached Valino's body to check its pulse. Finding none, Cabanlig declared Valino dead. Valino
sustained three mortal wounds - one at the back of the head, one at the left side of the chest, and
one at the left lower back. Padilla and Esteban remained with the body. The other three policemen,
including Cabanlig, went to a funeral parlor.

The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao ("Lacanilao") of
the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao
met Mercado who gave him instructions on how to settle the case that he was handling. During their
conversation, Mercado related that he and his fellow policemen "salvaged" (summarily executed) a
person the night before. Lacanilao asked who was "salvaged." Mercado answered that it was
"Jimmy Valino." Mercado then asked Lacanilao why he was interested in the identity of the person
who was "salvaged." Lacanilao then answered that "Jimmy Valino" was his cousin. Mercado
immediately turned around and left.

Version of the Defense

Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-
defense and performance of duty. Mercado denied that he told Lacanilao that he and his co-accused
"salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to
kill Valino.

The Sandiganbayan's Ruling

The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no
evidence that the policemen conspired to kill or summarily execute Valino. Since Cabanlig admitted
shooting Valino, the burden is on Cabanlig to establish the presence of any circumstance that would
relieve him of responsibility or mitigate the offense committed.

The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger. The
only defense that Cabanlig could properly invoke in this case is fulfillment of duty. Cabanlig,
however, failed to show that the shooting of Valino was the necessary consequence of the due
performance of duty. The Sandiganbayan pointed out that while it was the duty of the policemen to
stop the escaping detainee, Cabanlig exceeded the proper bounds of performing this duty when he
shot Valino without warning.

The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the
Sandiganbayan convicted Cabanlig only of homicide. The dispositive portion of the decision reads:

WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ

ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are hereby
ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION CABANLIG is found
GUILTY beyond reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the
indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS
and FOUR (4) MONTHS of prision correccional, as maximum. He is further ordered to pay the heirs
of Jimmy Valino the amount of FIFTY THOUSAND (P50,000.00) PESOS, and the costs.

SO ORDERED.5

On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate Justice Badoy")
dissented from the decision. Associate Justice Badoy pointed out that there was imminent danger on
the lives of the policemen when Valino grabbed the "infallible Armalite"6 from Mercado and jumped
out from the rear of the jeep. At a distance of only three feet from Cabanlig, Valino could have
sprayed the policemen with bullets. The firing of a warning shot from Cabanlig was no longer
necessary. Associate Justice Badoy thus argued for Cabanlig's acquittal.

In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive portion of the
Resolution reads:

WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.8

The Issues

Cabanlig raises the following issues in his Memorandum:

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT

OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE
SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER
IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF P 50,000 TO THE HEIRS
OF VALINO9

The Court's Ruling

The petition has merit. We rule for Cabanlig's acquittal.

Applicable Defense is Fulfillment of Duty

We first pass upon the issue of whether Cabanlig can invoke two or more justifying circumstances.
While there is nothing in the law that prevents an accused from invoking the justifying circumstances
or defenses in his favor, it is still up to the court to determine which justifying circumstance is
applicable to the circumstances of a particular case.

Self-defense and fulfillment of duty operate on different principles.10 Self-defense is based on the
principle of self-preservation from mortal harm, while fulfillment of duty is premised on the due
performance of duty. The difference between the two justifying circumstances is clear, as the
requisites of self-defense and fulfillment of duty are different.

The elements of self-defense are as follows:

a) Unlawful Aggression;

b) Reasonable necessity of the means employed to prevent or repel it;

c) Lack of sufficient provocation on the part of the person defending himself.11

On the other hand, the requisites of fulfillment of duty are:

1. The accused acted in the performance of a duty or in the lawful exercise of a right or office;

2. The injury caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office.12

A policeman in the performance of duty is justified in using such force as is reasonably necessary to
secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm.13 In case injury or death results from the policeman's
exercise of such force, the policeman could be justified in inflicting the injury or causing the death of
the offender if the policeman had used necessary force. Since a policeman's duty requires him to
overcome the offender, the force exerted by the policeman may therefore differ from that which
ordinarily may be offered in self-defense.14 However, a policeman is never justified in using
unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous
means when the arrest could be affected otherwise.15

Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful

aggression from the victim is not a requisite. In People v. Delima,16 a policeman was looking for a
fugitive who had several days earlier escaped from prison. When the policeman found the fugitive,
the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The policeman
demanded the surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance.
The policeman dodged the lance and fired his revolver at the fugitive. The policeman missed. The
fugitive ran away still holding the bamboo lance. The policeman pursued the fugitive and again fired
his revolver, hitting and killing the fugitive. The Court acquitted the policeman on the ground that the
killing was done in the fulfillment of duty.

The fugitive's unlawful aggression in People v. Delima had already ceased when the policeman
killed him. The fugitive was running away from the policeman when he was shot. If the policeman
were a private person, not in the performance of duty, there would be no self-defense because there
would be no unlawful aggression on the part of the deceased.17 It may even appear that the public
officer acting in the fulfillment of duty is the aggressor, but his aggression is not unlawful, it being
necessary to fulfill his duty.18

While self-defense and performance of duty are two distinct justifying circumstances, self-defense or
defense of a stranger may still be relevant even if the proper justifying circumstance in a given case
is fulfillment of duty. For example, a policeman's use of what appears to be excessive force could be
justified if there was imminent danger to the policeman's life or to that of a stranger. If the policeman
used force to protect his life or that of a stranger, then the defense of fulfillment of duty would be
complete, the second requisite being present.

In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was attempting to
escape. The Court convicted the jail guard of homicide because the facts showed that the prisoner
was not at all trying to escape. The Court declared that the jail guard could only fire at the prisoner
in self-defense or if absolutely necessary to avoid the prisoner's escape.

In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as
policemen when they escorted Valino, an arrested robber, to retrieve some stolen items. We uphold
the finding of the Sandiganbayan that there is no evidence that the policemen conspired to kill or
summarily execute Valino. In fact, it was not Valino who was supposed to go with the policemen in
the retrieval operations but his two other cohorts, Magat and Reyes. Had the policemen staged the
escape to justify the killing of Valino, the M16 Armalite taken by Valino would not have been loaded
with bullets.20 Moreover, the alleged summary execution of Valino must be based on evidence and
not on hearsay.

Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot
Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable to this case. To
determine if this defense is complete, we have to examine if Cabanlig used necessary force to
prevent Valino from escaping and in protecting himself and his co-accused policemen from imminent
danger.

Fulfillment of Duty was Complete, Killing was Justified

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be
incomplete. The Sandiganbayan believed that Cabanlig "exceeded the fulfillment of his duty when he
immediately shot Valino without issuing a warning so that the latter would stop."21

We disagree with the Sandiganbayan.

Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that
the fugitive had run away with in People v. Delima. The policeman in People v. Delima was held to
have been justified in shooting to death the escaping fugitive because the policeman was merely
performing his duty.
In this case, Valino was committing an offense in the presence of the policemen when Valino
grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The policemen would
have been justified in shooting Valino if the use of force was absolutely necessary to prevent his
escape.22 But Valino was not only an escaping detainee. Valino had also stolen the M16 Armalite of
a policeman. The policemen had the duty not only to recapture Valino but also to recover the loose
firearm. By grabbing Mercado's M16 Armalite, which is a formidable firearm, Valino had placed the
lives of the policemen in grave danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All of
the policemen were still inside the jeep when Valino suddenly grabbed the M16 Armalite. Cabanlig,
Mercado and Esteban were hemmed in inside the main body of the jeep, in the direct line of fire had
Valino used the M16 Armalite. There would have been no way for Cabanlig, Mercado and Esteban
to secure their safety, as there were no doors on the sides of the jeep. The only way out of the jeep
was from its rear from which Valino had jumped. Abesamis and Padilla who were in the driver's
compartment were not aware that Valino had grabbed Mercado's M16 Armalite. Abesamis and
Padilla would have been unprepared for Valino's attack.

By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did not
intend merely to escape and run away as far and fast as possible from the policemen. Valino did not
have to grab the M16 Armalite if his sole intention was only to flee from the policemen. If he had no
intention to engage the policemen in a firefight, Valino could simply have jumped from the jeep
without grabbing the M16 Armalite. Valino's chances of escaping unhurt would have been far better
had he not grabbed the M16 Armalite which only provoked the policemen to recapture him and
recover the M16 Armalite with greater vigor. Valino's act of grabbing the M16 Armalite clearly
showed a hostile intention and even constituted unlawful aggression.

Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have
been foolhardy for the policemen to assume that Valino grabbed the M16 Armalite merely as a
souvenir of a successful escape. As we have pointed out in Pomoy v. People23 :

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

The Sandiganbayan, however, ruled that despite Valino's possession of a deadly firearm, Cabanlig
had no right to shoot Valino without giving Valino the opportunity to surrender. The Sandiganbayan
pointed out that under the General Rules of Engagement, the use of force should be applied only as
a last resort when all other peaceful and non-violent means have been exhausted. The
Sandiganbayan held that only such necessary and reasonable force should be applied as would be
sufficient to conduct self-defense of a stranger, to subdue the clear and imminent danger posed, or
to overcome resistance put up by an offender.

The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer
must first issue a warning before he could use force against an offender. A law enforcer's
overzealous performance of his duty could violate the rights of a citizen and worse cost the citizen's
life. We have always maintained that the judgment and discretion of public officers, in the
performance of their duties, must be exercised neither capriciously nor oppressively, but within the
limits of the law.24 The issuance of a warning before a law enforcer could use force would prevent
unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ force only as a last
resort and only after issuing a warning.
However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to the
detriment of the life of law enforcers. The directive to issue a warning contemplates a situation where
several options are still available to the law enforcers. In exceptional circumstances such as this
case, where the threat to the life of a law enforcer is already imminent, and there is no other option
but to use force to subdue the offender, the law enforcer's failure to issue a warning is excusable.

In this case, the embattled policemen did not have the luxury of time. Neither did they have much
choice. Cabanlig's shooting of Valino was an immediate and spontaneous reaction to imminent
danger. The weapon grabbed by Valino was not just any firearm. It was an M16 Armalite.

The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a standard weapon
in 1967 during the Vietnam War.25 The M16 Armalite is still a general-issue rifle with the US Armed
Forces and US law enforcement agencies.26 The M16 Armalite has both semiautomatic and
automatic capabilities.27 It is 39 inches long, has a 30-round magazine and fires high-velocity .223-
inch (5.56-mm) bullets.28 The M16 Armalite is most effective at a range of 200 meters29 but its
maximum effective range could extend as far as 400 meters.30 As a high velocity firearm, the M16
Armalite could be fired at close range rapidly or with much volume of fire.31 These features make the
M16 Armalite and its variants well suited for urban and jungle warfare.32

The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-
powered firearm was in the hands of an escaping detainee, who had sprung a surprise on his police
escorts bottled inside the jeep. A warning from the policemen would have been pointless and would
have cost them their lives.

For what is the purpose of a warning? A warning is issued when policemen have to identify
themselves as such and to give opportunity to an offender to surrender. A warning in this case was
dispensable. Valino knew that he was in the custody of policemen. Valino was also very well aware
that even the mere act of escaping could injure or kill him. The policemen were fully armed and they
could use force to recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed
the consequences of his brazen and determined act. Surrendering was clearly far from Valino's
mind.

At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed the M16
Armalite. Although Cabanlig admitted that he did not hear Mercado shout "hoy", Mercado's shout
should have served as a warning to Valino. The verbal warning need not come from Cabanlig
himself.

The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four
more shots. Cabanlig had to shoot Valino because Valino at one point was facing the police officers.
The exigency of the situation warranted a quick response from the policemen.

According to the Sandiganbayan, Valino was not turning around to shoot because two of the three
gunshot wounds were on Valino's back. Indeed, two of the three gunshot wounds were on Valino's
back: one at the back of the head and the other at the left lower back. The Sandiganbayan, however,
overlooked the location of the third gunshot wound. It was three inches below the left clavicle or on
the left top most part of the chest area based on the Medico Legal Sketch showing the entrances
and exits of the three gunshot wounds.33

The Autopsy Report34 confirms the location of the gunshot wounds, as follows:

GUNSHOT WOUNDS - modified by embalming.

1. ENTRANCE - ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x 3.0 cms.;
located at the right postauricular region, 5.5 cms. behind and 1.5 cms. above the right external
auditory meatus, directed forward downward fracturing the occipital bone, lacerating the right
occipital portion of the brain and fracturing the right cheek bone and making an EXIT wound, 1.5 x
2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in front of right external auditory
meatus.

2. ENTRANCE - ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior
median line, 136.5 cms. from the left heel directed backward, downward and to the right, involving
soft tissues, fracturing the 3rd rib, left, lacerating the left upper lobe and the right lower lobe and
finally making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior
median line and 132.0 cms. from the right heel and grazing the medial aspect of the right arm.

3. ENTRANCE - ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median
line; 119.5 cms. from the left heel; directed forward, downward involving the soft tissues, lacerating
the liver; and bullet was recovered on the right anterior chest wall, 9.0 cms. form the anterior median
line, 112.0 cms. from the right heel.

The Necropsy Report35 also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the
head. The left parietal bone is fractured. The left temporal bone is also fractured. A wound of exit
measuring 2 cms X 3 cms in size is located at the left temporal aspect of the head.

2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about three
inches below the left clavicle. The wound is directed medially and made an exit wound at the right
axilla measuring 2 X 2 cms in size.

3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar.
The left lung is collapsed and the liver is lacerated. Particles of lead [were] recovered in the liver
tissues. No wound of exit.

Cause of Death: Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they could not
determine which of the three gunshot wounds was first inflicted. However, we cannot disregard the
significance of the gunshot wound on Valino's chest. Valino could not have been hit on the chest if
he were not at one point facing the policemen.

If the first shot were on the back of Valino's head, Valino would have immediately fallen to the
ground as the bullet from Cabanlig's M16 Armalite almost shattered Valino's skull. It would have
been impossible for Valino to still turn and face the policemen in such a way that Cabanlig could still
shoot Valino on the chest if the first shot was on the back of Valino's head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was
shot, hence, the entry wound on Valino's chest. On being hit, Valino could have turned to his left
almost falling, when two more bullets felled Valino. The two bullets then hit Valino on his lower left
back and on the left side of the back of his head, in what sequence, we could not speculate on. At
the very least, the gunshot wound on Valino's chest should have raised doubt in Cabanlig's favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban
are guilty only of gross negligence. The policemen transported Valino, an arrested robber, to a
retrieval operation without handcuffing Valino. That no handcuffs were available in the police
precinct is a very flimsy excuse. The policemen should have tightly bound Valino's hands with rope
or some other sturdy material. Valino's cooperative demeanor should not have lulled the policemen
to complacency. As it turned out, Valino was merely keeping up the appearance of good behavior as
a prelude to a planned escape. We therefore recommend the filing of an administrative case against
Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436
convicting accused RUPERTO CONCEPCIONCABANLIGof the crime of homicide.
We ACQUIT RUPERTO CONCEPCIONCABANLIGof the crime of homicide and ORDER his
immediate release from prison, unless there are other lawful grounds to hold him. We DIRECT the
Director of Prisons to report to this Court compliance within five (5) days from receipt of this
Decision. No costs.
G.R. Nos. 120744-46 June 25, 2012

SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,

vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.

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

G.R. No. 122677

MARIO D. REYES, ANDRES S. REYES and VIRGILIO A. MANGUERRA, Petitioners,

vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.

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

G.R. No. 122776

GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, Petitioners,

vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

PERALTA, J.:

Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is never
justified when their duty could be performed otherwise. A "shoot first, think later" disposition occupies
no decent place in a civilized society. Never has homicide or murder been a function of law
enforcement. The public peace is never predicated on the cost of human life.

These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June
30, 1995 Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614 – cases
for murder, frustrated murder and multiple counts of attempted murder, respectively. The cases are
predicated on a shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando,
Pampanga which caused the death of Leodevince Licup (Licup) and injured Noel Villanueva
(Villanueva). Accused were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr.
(Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National Police
(INP)2 stationed at the Sindalan Substation in San Fernando, Pampanga; Jose Pamintuan
(Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan and Del Carmen,
respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David,
Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David
(David), who were either members of the Civil Home Defense Force (CHDF) or civilian volunteer
officers in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory
portions of which read:

Criminal Case No. 16612:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public
officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with deliberate intent to
take the life of Leodevince S. Licup, attack the latter with automatic weapons by firing directly at the
green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot wounds
which are necessarily mortal on the different parts of the body, thereby causing the direct and
immediate death of the latter.

CONTRARY TO LAW.3

Criminal Case No. 16613:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public
officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack
Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with automatic
weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S. Flores,
Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced the commission
of murder directly by overt acts of execution which should produce the murder by reason of some
cause or accident other than their own spontaneous desistance.

CONTRARY TO LAW.4

Criminal Case No. 16614:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public
officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there, with
treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent of taking the
life of Noel C. Villanueva, attack the latter with automatic weapons by firing directly at the green
Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot wounds
which are necessarily mortal and having performed all the acts which would have produced the
crime of murder, but which did not, by reason of causes independent of the defendants’ will, namely,
the able and timely medical assistance given to said Noel C. Villanueva, which prevented his death.

CONTRARY TO LAW.5

Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,6 the accused
– except Pabalan who died earlier on June 12, 1990,7 and Yapyuco who was then allegedly
indisposed8 – entered individual pleas of not guilty.9 A month later, Yapyuco voluntarily surrendered
to the authorities, and at his arraignment likewise entered a negative plea.10 In the meantime, Mario
Reyes, Andres Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative
to Criminal Case No. 16612.11 Said motion was heard on the premise, as previously agreed upon by
both the prosecution and the defense, that these cases would be jointly tried and that the evidence
adduced at said hearing would automatically constitute evidence at the trial on the merits.12 On May
10, 1991, the Sandiganbayan granted bail in Criminal Case No. 16612.13 Yapyuco likewise applied
for bail on May 15, 1991 and the same was also granted on May 21, 1991.14 Pamintuan died on
November 21, 1992,15 and accordingly, the charges against him were dismissed.

At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the presentation of
evidence left off at the hearing on the bail applications.

The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De Vera,
Panlican and Licup were at the residence of Salangsang as guests at the barrio fiesta celebrations
between 5:00 and 7:30 p.m.. The company decided to leave at around 7:30 p.m., shortly after the
religious procession had passed. As they were all inebriated, Salangsang reminded Villanueva, who
was on the wheel, to drive carefully and watch out for potholes and open canals on the road. With
Licup in the passenger seat and the rest of his companions at the back of his Tamaraw jeepney,
Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were
approaching a curve on the road, they met a burst of gunfire and instantly, Villanueva and Licup
were both wounded and bleeding profusely.17

Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any one
on the road flag them down.18 In open court, Flores executed a sketch19 depicting the relative
location of the Tamaraw jeepney on the road, the residence of Salangsang where they had come
from and the house situated on the right side of the road right after the curve where the jeepney had
taken a left turn; he identified said house to be that of a certain Lenlen Naron where the gunmen
allegedly took post and opened fire at him and his companions. He could not tell how many firearms
were used. He recounted that after the shooting, he, unaware that Licup and Villanueva were
wounded, jumped out of the jeepney when he saw from behind them Pamintuan emerging from the
yard of Naron’s house. Frantic and shaken, he instantaneously introduced himself and his
companions to be employees of San Miguel Corporation but instead, Pamintuan reproved them for
not stopping when flagged. At this point, he was distracted when Villanueva cried out and told him to
summon Salangsang for help as he (Villanueva) and Licup were wounded. He dashed back to
Salangsang’s house as instructed and, returning to the scene, he observed that petitioner Yu was
also there, and Villanueva and Licup were being loaded into a Sarao jeepney to be taken to the
hospital.20 This was corroborated by Villanueva who stated that as soon as the firing had ceased,
two armed men, together with Pamintuan, approached them and transferred him and Licup to
another jeepney and taken to the nearby St. Francis Hospital.21

Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded each
other, and that they were given no warning shot at all contrary to what the defense would say.22 He
professed that he, together with his co-passengers, were also aboard the Sarao jeepney on its way
to the hospital and inside it he observed two men, each holding long firearms, seated beside the
driver. He continued that as soon as he and his companions had been dropped off at the hospital,
the driver of the Sarao jeepney immediately drove off together with his two armed companions.23 He
further narrated that the day after the shooting, he brought Licup to the Makati Medical Center where
the latter expired on April 7, 1988.24 He claimed that all the accused in the case had not been known
to him prior to the incident, except for Pamintuan whom he identified to be his wife’s uncle and with
whom he denied having had any rift nor with the other accused for that matter, which would have
otherwise inspired ill motives. 25 He claimed the bullet holes on the Tamaraw jeepney were on the
passenger side and that there were no other bullet holes at the back or in any other portion of the
vehicle.26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his
companions at his residence on the subject date and time, and corroborated Villanueva’s and Flores’
narration of the events immediately preceding the shooting. He recounted that after seeing off his
guests shortly after the procession had passed his house and reminding them to proceed carefully
on the pothole-studded roads, he was alarmed when moments later, he heard a volley of gunfire
from a distance which was shortly followed by Flores’ frantic call for help. He immediately proceeded
to the scene on his bicycle and saw Pamintuan by the lamppost just outside the gate of Naron’s
house where, inside, he noticed a congregation of more or less six people whom he could not
recognize. 27 At this point, he witnessed Licup and Villanueva being loaded into another jeepney
occupied by three men who appeared to be in uniform. He then retrieved the keys of the Tamaraw
jeepney from Villanueva and decided to deliver it to his mother’s house, but before driving off, he
allegedly caught a glance of Mario Reyes on the wheel of an owner-type jeepney idling in front of the
ill-fated Tamaraw; it was the same jeepney which he remembered to be that frequently used by
Yapyuco in patrolling the barangay. He claimed he spent the night at his mother’s house and in the
morning, a policeman came looking for him with whom, however, he was not able to talk.28

Salangsang observed that the scene of the incident was dark because the electric post in front of
Naron’s house was strangely not lit when he arrived, and that none of the neighboring houses was
illuminated. He admitted his uncertainty as to whether it was Yapyuco’s group or the group of
Pamintuan that brought his injured companions to the hospital, but he could tell with certainty that it
was the Sarao jeepney previously identified by Villanueva and Flores that brought his injured
companions to the hospital.29

Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas,
affirmed that she had previously examined the firearms suspected to have been used by petitioners
in the shooting and found them positive for gunpowder residue. She could not, however, determine
exactly when the firearms were discharged; neither could she tell how many firearms were
discharged that night nor the relative positions of the gunmen. She admitted having declined to
administer paraffin test on petitioners and on the other accused because the opportunity therefor
came only 72 hours after the incident. She affirmed having also examined the Tamaraw jeepney and
found eleven (11) bullet holes on it, most of which had punctured the door at the passenger side of
the vehicle at oblique and perpendicular directions. She explained, rather inconclusively, that the
bullets that hit at an angle might have been fired while the jeepney was either at a standstill or
moving forward in a straight line, or gradually making a turn at the curve on the road.30 Additionally,
Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial Command
tasked with the issuance of firearms and ammunitions to members of the local police force and
CHDF and CVO members, identified in court the memorandum receipts for the firearms he had
issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco.31

Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries of
Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel from the occipital region
of Villanueva’s head as well as from the posterior aspect of his chest; he noted nothing serious in
these wounds in that the incapacity would last between 10 and 30 days only. He also located a bullet
wound on the front lateral portion of the right thigh, and he theorized that this wound would be
caused by a firearm discharged in front of the victim, assuming the assailant and the victim were
both standing upright on the ground and the firearm was fired from the level of the assailant’s waist;
but if the victim was seated, the position of his thigh must be horizontal so that with the shot coming
from his front, the trajectory of the bullet would be upward. He hypothesized that if the shot would
come behind Villanueva, the bullet would enter the thigh of the seated victim and exit at a lower
level.32

With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he noted
a lacerated wound at the right temporal region of the head – one consistent with being hit by a hard
and blunt object and not a bullet. He noted three (3) gunshot wounds the locations of which
suggested that Licup was upright when fired upon from the front: one is a through-and-through
wound in the middle lateral aspect of the middle portion of the right leg; another, through-and-
through wound at the middle portion of the right forearm; and third one, a wound in the abdomen
which critically and fatally involved the stomach and the intestines. He hypothesized that if Licup was
seated in the passenger seat as claimed, his right leg must have been exposed and the assailant
must have been in front of him holding the gun slightly higher than the level of the bullet entry in the
leg. He found that the wound in the abdomen had entered from the left side and crossed over to and
exited at the right, which suggested that the gunman must have been positioned at Licup’s left side.
He explained that if this wound had been inflicted ahead of that in the forearm, then the former must
have been fired after Licup had changed his position as a reaction to the first bullet that hit him. He
said that the wound on the leg must have been caused by a bullet fired at the victim’s back and hit
the jeepney at a downward angle without hitting any hard surface prior.33

Dr. Solis believed that the wound on Licup’s right forearm must have been caused by a bullet fired
from the front but slightly obliquely to the right of the victim. Hypothesizing, he held the improbability
of Licup being hit on the abdomen, considering that he might have changed position following the
infliction of the other wounds, unless there was more than one assailant who fired multiple shots
from either side of the Tamaraw jeepney; however, he proceeded to rule out the possibility of Licup
having changed position especially if the gunfire was delivered very rapidly. He could not tell which
of Licup’s three wounds was first inflicted, yet it could be that the bullet to the abdomen was
delivered ahead of the others because it would have caused Licup to lean forward and stoop down
with his head lying low and steady.34

Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM)
affirmed that the accused police officers Yapyuco, Cunanan and Puno had been administratively
charged with and tried for gross misconduct as a consequence of the subject shooting incident and
that he had in fact conducted investigations thereon sometime in 1989 and 1990 which culminated in
their dismissal from service.35 Dolly Porqueriño, stenographer at the NAPOLCOM, testified that at
the hearing of the administrative case, Yapyuco authenticated the report on the shooting incident
dated April 5, 1988 which he had previously prepared at his office. This, according to her, together
with the sketch showing the relative position of the responding law enforcers and the Tamaraw
jeepney at the scene of the incident, had been forwarded to the NAPOLCOM Central Office for
consideration.36 The Sandiganbayan, in fact, subpoenaed these documents together with the joint
counter-affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno.

Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the
commander of the Sindalan Police Substation in San Fernando, Pampanga and the superior officer
of petitioners Cunanan and Puno and of the accused Yu whose jurisdiction included Barangays
Quebiawan and Telebastagan. He narrated that in the afternoon of April 5, 1988, he and his men
were investigating a physical injuries case when Yu suddenly received a summon for police
assistance from David, who supposedly was instructed by Pamintuan, concerning a reported
presence of armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in
San Fernando for reinforcement but at the time no additional men could be dispatched. Hence, he
decided to respond and instructed his men to put on their uniforms and bring their M-16 rifles with
them.37

Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told him
that he had earlier spotted four (4) men carrying long firearms. As if sizing up their collective
strength, Pamintuan allegedly intimated that he and barangay captain Mario Reyes of nearby Del
Carmen had also brought in a number of armed men and that there were likewise Cafgu members
convened at the residence of Naron. Moments later, Pamintuan announced the approach of his
suspects, hence Yapyuco, Cunanan and Puno took post in the middle of the road at the curve where
the Tamaraw jeepney conveying the victims would make an inevitable turn. As the jeepney came
much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan and Puno
behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping,
the jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow police
officers Cunanan and Puno,38 to fire warning shots but the jeepney continued pacing forward, hence
they were impelled to fire at the tires thereof and instantaneously, gunshots allegedly came bursting
from the direction of Naron’s house directly at the subject jeepney.39

Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at
Pamintuan that they were San Miguel Corporation employees. Holding their fire, Yapyuco and his
men then immediately searched the vehicle but found no firearms but instead, two injured
passengers whom they loaded into his jeepney and delivered to nearby St. Francis Hospital. From
there he and his men returned to the scene supposedly to investigate and look for the people who
fired directly at the jeepney. They found no one; the Tamaraw jeepney was likewise gone.40

Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in
bad shape, as in fact there were several law enforcement officers in the area who had been
ambushed supposedly by rebel elements,41 and that he frequently patrolled the barangay on account
of reported sightings of unidentified armed men therein.42 That night, he said, his group which
responded to the scene were twelve (12) in all, comprised of Cunanan and Puno from the Sindalan
Police Substation, 43 the team composed of Pamintuan and his men, as well as the team headed by
Captain Mario Reyes. He admitted that all of them, including himself, were armed.44 He denied that
they had committed an ambuscade because otherwise, all the occupants of the Tamaraw jeepney
would have been killed. 45 He said that the shots which directly hit the passenger door of the jeepney
did not come from him or from his fellow police officers but rather from Cafgu members assembled in
the residence of Naron, inasmuch as said shots were fired only when the jeepney had gone past the
spot on the road where they were assembled.46

Furthermore, Yapyuco professed that he had not communicated with any one of the accused after
the incident because he was at the time very confused; yet he did know that his co-accused had
already been investigated by the main police station in San Fernando, but the inquiries did not
include himself, Cunanan and Puno.47 He admitted an administrative case against him, Cunanan and
Puno at the close of which they had been ordered dismissed from service; yet on appeal, the
decision was reversed and they were exonerated. He likewise alluded to an investigation
independently conducted by their station commander, S/Supt. Rolando Cinco. 48

S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga
acknowledged the volatility of the peace and order situation in his jurisdiction, where members of the
police force had fallen victims of ambuscade by lawless elements. He said that he himself has
actually conducted investigations on the Pamintuan report that rebel elements had been trying to
infiltrate the employment force of San Miguel Corporation plant, and that he has accordingly
conducted "clearing operations" in sugarcane plantations in the barangay. He intimated that days
prior to the incident, Yapyuco’s team had already been alerted of the presence of NPA members in
the area. Corroborating Yapyuco’s declaration, he confessed having investigated the shooting
incident and making a report on it in which, curiously, was supposedly attached Pamintuan’s
statement referring to Flores as being "married to a resident of Barangay Quebiawan" and found
after surveillance to be "frequently visited by NPA members." He affirmed having found that guns
were indeed fired that night and that the chief investigator was able to gather bullet shells from the
scene.
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well as
the latter’s documentary evidence.50 Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and Manguera,
waived their right to present evidence and submitted their memorandum as told.51

The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and
lawful performance of their duties in the maintenance of peace and order either as barangay officials
and as members of the police and the CHDF, and hence, could take shelter in the justifying
circumstance provided in Article 11 (5) of the Revised Penal Code; or whether they had deliberately
ambushed the victims with the intent of killing them.52 With the evidence in hand, it found Yapyuco,
Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as co-principals in the separate
offense of homicide for the eventual death of Licup (instead of murder as charged in Criminal Case
No. 16612) and of attempted homicide for the injury sustained by Villanueva (instead of frustrated
murder as charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted
all of them of attempted murder charged in Criminal Case No. 16613 in respect of Flores, Panlican,
De Vera and Calma. The dispositive portion of the June 30, 1995 Joint Decision reads:

WHEREFORE, judgment is hereby rendered as follows:

I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr.
y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and
Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-
principals in the offense of Homicide, as defined and penalized under Article 249 of the
Revised Penal Code, and crediting all of them with the mitigating circumstance of voluntary
surrender, without any aggravating circumstance present or proven, each of said accused is
hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE
(1) DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1) DAY
of reclusion temporal, as the maximum; to indemnify, jointly and severally, the heirs of the
deceased victim Leodevince Licup in the amounts of ₱77,000.00 as actual damages and
₱600,000.00 as moral/exemplary damages, and to pay their proportionate shares of the
costs of said action.

II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the
information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco,
Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Bañez, Ruben Lugtu y Lacson,
Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y Salangsang and Virgilio
Manguerra y Adona are hereby acquitted of the offense of Multiple Attempted Murder
charged therein, with costs de oficio.

III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr.
y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and
Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-
principals in the offense Attempted Homicide, as defined and penalized under Article 249, in
relation to Article 6, paragraph 3, both of the Revised Penal Code, and crediting them with
the mitigating circumstance of voluntary surrender, without any aggravating circumstance
present or proven, each of said accused is hereby sentenced to suffer an indeterminate
penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as the
minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to
indemnify, jointly and severally, the offended party Noel Villanueva in the amount of
₱51,700.00 as actual and compensatory damages, plus ₱120,000.00 as moral/exemplary
damages, and to pay their proportionate share of the costs of said action.
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which
brought the eventual death of Licup has been committed by petitioners herein willfully under the
guise of maintaining peace and order;54 that the acts performed by them preparatory to the shooting,
which ensured the execution of their evil plan without risk to themselves, demonstrate a clear intent
to kill the occupants of the subject vehicle; that the fact they had by collective action deliberately and
consciously intended to inflict harm and injury and had voluntarily performed those acts negates their
defense of lawful performance of official duty;55 that the theory of mistaken belief could not likewise
benefit petitioners because there was supposedly no showing that they had sufficient basis or
probable cause to rely fully on Pamintuan’s report that the victims were armed NPA members, and
they have not been able by evidence to preclude ulterior motives or gross inexcusable negligence
when they acted as they did;56 that there was insufficient or total absence of factual basis to assume
that the occupants of the jeepney were members of the NPA or criminals for that matter; and that the
shooting incident could not have been the product of a well-planned and well-coordinated police
operation but was the result of either a hidden agenda concocted by Barangay Captains Mario
Reyes and Pamintuan, or a hasty and amateurish attempt to gain commendation.57

These findings obtain context principally from the open court statements of prosecution witnesses
Villanueva, Flores and Salangsang, particularly on the circumstances prior to the subject incident.
The Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if it had truly
been flagged down as claimed by Yapyuco especially since – as it turned out after the search of the
vehicle – they had no firearms with them, and hence, they had nothing to be scared of.58 It observed
that while Salangsang and Flores had been bona fide residents of Barangay Quebiawan, then it
would be impossible for Pamintuan, barangay captain no less, not to have known them and the
location of their houses which were not far from the scene of the incident; so much so that the
presence of the victims and of the Tamaraw jeepney in Salangsang’s house that evening could not
have possibly escaped his notice. In this regard, it noted that Pamintuan’s Sworn Statement dated
April 11, 1988 did not sufficiently explain his suspicions as to the identities of the victims as well as
his apparent certainty on the identity and whereabouts of the subject Tamaraw jeepney. 59 It
surmised how the defense, especially Yapyuco in his testimony, could have failed to explain why a
large group of armed men – which allegedly included Cafgu members from neighboring barangays –
were assembled at the house of Naron that night, and how petitioners were able to identify the
Tamaraw jeepney to be the target vehicle. From this, it inferred that petitioners had already known
that their suspect vehicle would be coming from the direction of Salangsang’s house – such
knowledge is supposedly evident first, in the manner by which they advantageously positioned
themselves at the scene to afford a direct line of fire at the target vehicle, and second, in the fact that
the house of Naron, the neighboring houses and the electric post referred to by prosecution
witnesses were deliberately not lit that night.60

The Sandiganbayan also drew information from Flores’ sketch depicting the position of the Tamaraw
jeepney and the assailants on the road, and concluded that judging by the bullet holes on the right
side of the jeepney and by the declarations of Dr. Solis respecting the trajectory of the bullets that hit
Villanueva and Licup, the assailants were inside the yard of Naron’s residence and the shots were
fired at the jeepney while it was slowly moving past them. It also gave weight to the testimony and
the report of Dabor telling that the service firearms of petitioners had been tested and found to be
positive of gunpowder residue, therefore indicating that they had indeed been discharged.61

The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence pointing

to the culpability of petitioners: the nature and location of the bullet holes on the jeepney and the
gunshot wounds on the victims, as well as the trajectory of the bullets that caused such damage and
injuries; particularly, the number, location and trajectory of the bullets that hit the front passenger
side of the jeepney; the strategic placement of the accused on the right side of the street and inside
the front yard of Naron’s house; the deliberate shutting off of the lights in the nearby houses and the
lamp post; and the positive ballistic findings on the firearms of petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only fortified petitioners’ admission
that they did discharge their firearms, but also provided a predicate to its conclusion that petitioners
conspired with one another to achieve a common purpose, design and objective to harm the
unarmed and innocent victims. Thus, since there was no conclusive proof of who among the several
accused had actually fired the gunshots that injured Villanueva and fatally wounded Licup, the
Sandiganbayan imposed collective responsibility on all those who were shown to have discharged
their firearms that night – petitioners herein.63 Interestingly, it was speculated that the manner by
which the accused collectively and individually acted prior or subsequent to or contemporaneously
with the shooting indicated that they were either drunk or that some, if not all of them, had a grudge
against the employees of San Miguel Corporation;64 and that on the basis of the self-serving
evidence adduced by the defense, there could possibly have been a massive cover-up of the
incident by Philippine Constabulary and INP authorities in Pampanga as well as by the
NAPOLCOM.65 It likewise found very consequential the fact that the other accused had chosen not
to take the witness stand; this, supposedly because it was incumbent upon them to individually
explain their participation in the shooting in view of the weight of the prosecution evidence, their
invocation of the justifying circumstance of lawful performance of official duty and the declaration of
some of them in their affidavits to the effect that they had been deployed that evening in the front
yard of Naron’s residence from which the volley of gunfire was discharged as admitted by Yapyuco
himself.66

As to the nature of the offenses committed, the Sandiganbayan found that the qualifying
circumstance of treachery has not been proved because first, it was supposedly not shown how the
aggression commenced and how the acts causing injury to Villanueva and fatally injuring Licup
began and developed, and second, this circumstance must be supported by proof of a deliberate
and conscious adoption of the mode of attack and cannot be drawn from mere suppositions or from
circumstances immediately preceding the aggression. The same finding holds true for evident
premeditation because between the time Yapyuco received the summons for assistance from
Pamintuan through David and the time he and his men responded at the scene, there was found to
be no sufficient time to allow for the materialization of all the elements of that circumstance.67

Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days
which were all charged against his accumulated leave credits;68 that he was earning ₱8,350.00
monthly;69 and that he had spent ₱35,000.00 for the repair of his Tamaraw jeepney.70 Also, Teodoro
Licup had stated that his family had spent ₱18,000.00 for the funeral of his son, ₱28,000.00 during
the wake, ₱11,000.00 for the funeral plot and ₱20,000.00 in attorney’s fees for the prosecution of
these cases.71 He also submitted a certification from San Miguel Corporation reflecting the income of
his deceased son.72 On these bases, the Sandiganbayan ordered petitioners, jointly and severally, to
indemnify (a) Villanueva ₱51,700.00 as actual and compensatory damages and ₱120,000.00 as
moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of deceased
Licup in the amount of ₱77,000.00 as actual damages and ₱600,000.00 as moral/exemplary
damages, plus the proportionate costs of the action.

Petitioners’ motion for reconsideration was denied; hence, the present recourse.

In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of conspiracy and labels the
same to be conjectural. He points out that the court a quo has not clearly established that he had by
positive acts intended to participate in any criminal object in common with the other accused, and
that his participation in a supposed common criminal object has not been proved beyond reasonable
doubt. He believes the finding is belied by Flores and Villanueva, who saw him at the scene only
after the shooting incident when the wounded passengers were taken to the hospital on his
jeepney.73 He also points out the uncertainty in the Sandiganbayan’s declaration that the incident
could not have been the product of a well-planned police operation, but rather was the result of
either a hidden agenda concocted against the victims by the barangay officials involved or an
amateurish attempt on their part to earn commendation. He theorizes that, if it were the latter
alternative, then he could hardly be found guilty of homicide or frustrated homicide but rather of
reckless imprudence resulting in homicide and frustrated homicide. 74 He laments that, assuming
arguendo that the injuries sustained by the victims were caused by his warning shots, he must
nevertheless be exonerated because he responded to the scene of the incident as a bona fide
member of the police force and, hence, his presence at the scene of the incident was in line with the
fulfillment of his duty as he was in fact in the lawful performance thereof – a fact which has been
affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint for gross
misconduct against him, Cunanan and Puno.75 He also invokes the concept of mistake of fact and
attributes to Pamintuan the responsibility why he, as well as the other accused in these cases, had
entertained the belief that the suspects were armed rebel elements.76

In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the
Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed decision was
based on acts the evidence for which has been adduced at a separate trial but erroneously
attributed to them. They explain that there were two sets of accused, in the case: one, the police
officers comprised of Yapyuco, Cunanan and Puno and, two, the barangay officials and CHDFs
comprised of David, Lugtu, Lacson, Yu and themselves who had waived the presentation of
evidence. They question their conviction of the charges vis-a-vis the acquittal of David, Lugtu,
Lacson and Yu who, like them, were barangay officials and had waived their right to present
evidence in their behalf. They emphasize in this regard that all accused barangay officials and
CHDFs did not participate in the presentation of the evidence by the accused police officers and,
hence, the finding that they too had fired upon the Tamaraw jeepney is hardly based on an
established fact.77 Also, they believe that the findings of fact by the Sandiganbayan were based on
inadmissible evidence, specifically on evidence rejected by the court itself and those presented in a
separate trial. They label the assailed decision to be speculative, conjectural and suspicious and,
hence, antithetical to the quantum of evidence required in a criminal prosecution.78 Finally, they
lament that the finding of conspiracy has no basis in evidence and that the prosecution has not even
shown that they were with the other accused at the scene of the incident or that they were among
those who fired at the victims, and neither were they identified as among the perpetrators of the
crime.79

In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that
judging by the uncertainty in the conclusion of the Sandiganbayan as to whether the incident was the
result of a legitimate police operation or a careless plot designed by the accused to obtain
commendation, conspiracy has not been proved beyond reasonable doubt. This, because they
believe the prosecution has not, as far as both of them are concerned, shown that they had ever
been part of such malicious design to commit an ambuscade as that alluded to in the assailed
decision. They advance that as police officers, they merely followed orders from their commander,
Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan, moments
before the shooting. They posit they could hardly be assumed to have had community of criminal
design with the rest of the accused.80 They affirm Yapyuco’s statement that they fired warning shots
at the subject jeepney,81 but only after it had passed the place where they were posted and only after
it failed to stop when flagged down as it then became apparent that it was going to speed away – as
supposedly shown by bullet holes on the chassis and not on the rear portion of the jeepney. They
also harp on the absence of proof of ill motives that would have otherwise urged them to commit the
crimes charged, especially since none of the victims had been personally or even remotely known to
either of them. That they were not intending to commit a crime is, they believe, shown by the fact
that they did not directly aim their rifles at the passengers of the jeepney and that in fact, they
immediately held their fire when Flores identified themselves as employees of San Miguel
Corporation. They conceded that if killing was their intent, then they could have easily fired at the
victims directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of
conspiracy as established by the fact that all accused, some of them armed, had assembled
themselves and awaited the suspect vehicle as though having previously known that it would be
coming from Salangsang’s residence. It posits that the manner by which the jeepney was fired upon
demonstrates a community of purpose and design to commit the crimes charged.83 It believes that
criminal intent is discernible from the posts the accused had chosen to take on the road that would
give them a direct line of fire at the target – as shown by the trajectories of the bullets that hit the
Tamaraw jeepney.84 This intent was supposedly realized when after the volley of gunfire, both Flores
and Licup were wounded and the latter died as a supervening consequence.85 It refutes the
invocation of lawful performance of duty, mainly because there was no factual basis to support the
belief of the accused that the occupants were members of the NPA, as indeed they have not shown
that they had previously verified the whereabouts of the suspect vehicle. But while it recognizes that
the accused had merely responded to the call of duty when summoned by Pamintuan through David,
it is convinced that they had exceeded the performance thereof when they fired upon the Tamaraw
jeepney occupied, as it turned out, by innocent individuals instead.86

As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced
before the Sandiganbayan as well the findings based thereon should not be binding on them, the
OSP explains that said petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had
previously withdrawn their motion for separate trial and as directed later on submitted the case for
decision as to them with the filing of their memorandum. It asserts there was no denial of due
process to said petitioners in view of their agreement for the reproduction of the evidence on the
motion for bail at the trial proper as well as by their manifestation to forego with the presentation of
their own evidence. The right to present witnesses is waivable. Also, where an accused is jointly
tried and testifies in court, the testimony binds the other accused, especially where the latter has
failed to register his objection thereto.87

The decision on review apparently is laden with conclusions and inferences that seem to rest on
loose predicates. Yet we have pored over the records of the case and found that evidence
nonetheless exists to support the penultimate finding of guilt beyond reasonable doubt.

I.

It is as much undisputed as it is borne by the records that petitioners were at the situs of the incident
on the date and time alleged in the Informations. Yapyuco, in his testimony – which was adopted by
Cunanan and Puno – as well as Manguerra, Mario Reyes and Andres Reyes in their affidavits which
had been offered in evidence by the prosecution,88 explained that their presence at the scene was in
response to the information relayed by Pamintuan through David that armed rebel elements on
board a vehicle described to be that occupied by the victims were reportedly spotted in Barangay
Quebiawan. It is on the basis of this suspicion that petitioners now appeal to justification under
Article 11 (5) of the Revised Penal Code and under the concept of mistake of fact. Petitioners admit
that it was not by accident or mistake but by deliberation that the shooting transpired when it became
apparent that the suspect vehicle was attempting to flee, yet contention arises as to whether or not
there was intention to harm or even kill the passengers aboard, and who among them had
discharged the bullets that caused the eventual death of Licup and injured Villanueva.

The first duty of the prosecution is not to present the crime but to identify the criminal.89 To this end,
the prosecution in these cases offered in evidence the joint counter-affidavit90 of Andres Reyes and
Manguerra; the counter-affidavit91 of Mario Reyes; the joint counter-affidavit92 of Cunanan and Puno;
the counter-affidavit93 of Yapyuco; and the joint counter-affidavit94 of Yapyuco, Cunanan and Puno
executed immediately after the incident in question. In brief, Cunanan and Puno stated therein that
"[their] team was forced to fire at the said vehicle" when it accelerated after warning shots were fired
in air and when it ignored Yapyuco’s signal for it to stop;95 in their earlier affidavit they, together with
Yapyuco, declared that they were "constrained x x x to fire directly to (sic) the said fleeing
vehicle."96 Yapyuco’s open court declaration, which was adopted by Cunanan and Puno, is that he
twice discharged his firearm: first, to give warning to the subject jeepney after it allegedly failed to
stop when flagged down and second, at the tires thereof when it came clear that it was trying to
escape.97 He suggested – substantiating the implication in his affidavit that it was "the whole team
[which fired] at the fleeing vehicle" 98 – that the bullets which hit the passenger side of the ill-fated
jeepney could have come only from the CHDFs posted inside the yard of Naron where Manguerra,
Mario Reyes and Andres Reyes admitted having taken post while awaiting the arrival of the suspect
vehicle.99

Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra from
their group who discharged a firearm but only into the air to give warning shots,100 and that it was the
"policemen [who] directly fired upon" the jeepney.101 Manguerra himself shared this statement.102 Yet
these accounts do not sit well with the physical evidence found in the bullet holes on the passenger
door of the jeepney which Dabor, in both her report and testimony, described to have come from
bullets sprayed from perpendicular and oblique directions. This evidence in fact supports Yapyuco’s
claim that he, Cunanan and Puno did fire directly at the jeepney after it had made a right turn and
had already moved past them such that the line of fire to the passengers thereof would be at an
oblique angle from behind. It also bolsters his claim that, almost simultaneously, gunshots came
bursting after the jeepney has passed the spot where he, Cunanan and Puno had taken post, and
when the vehicle was already right in front of the yard of Naron’s house sitting on the right side of the
road after the curve and where Manguerra, Mario Reyes and Andres Reyes were positioned, such
that the line of fire would be direct and perpendicular to it.103

While Dabor’s ballistics findings are open to challenge for being inconclusive as to who among the
accused actually discharged their firearms that night, her report pertaining to the examination of the
ill-fated Tamaraw jeepney affirms the irreducible fact that the CHDFs posted within the yard of
Naron’s house had indeed sprayed bullets at the said vehicle. Manguerra, Mario Reyes and Andres
Reyes seek to insulate themselves by arguing that such finding cannot be applied to them as it is
evidence adduced in a separate trial. But as the OSP noted, they may not evade the effect of their
having withdrawn their motion for separate trial, their agreement to a joint trial of the cases, and the
binding effect on them of the testimony of their co-accused, Yapyuco.104

Indeed, the extrajudicial confession or admission of one accused is admissible only against said
accused, but is inadmissible against the other accused. But if the declarant or admitter repeats in
court his extrajudicial admission, as Yapyuco did in this case, during the trial and the other accused
is accorded the opportunity to cross-examine the admitter, the admission is admissible against both
accused because then, it is transposed into a judicial admission.105 It is thus perplexing why, despite
the extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latter’s testimony
implicating them in the incident, they still had chosen to waive their right to present evidence when,
in fact, they could have shown detailed proof of their participation or non-participation in the offenses
charged. We, therefore, reject their claim that they had been denied due process in this regard, as
they opted not to testify and be cross-examined by the prosecution as to the truthfulness in their
affidavits and, accordingly, disprove the inculpatory admissions of their co-accused.

II.

The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or
office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the
performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the
offense committed is the necessary consequence of the due performance of such duty or the lawful
exercise of such right or office.106 The justification is based on the complete absence of intent and
negligence on the part of the accused, inasmuch as guilt of a felony connotes that it was committed
with criminal intent or with fault or negligence.107 Where invoked, this ground for non-liability amounts
to an acknowledgment that the accused has caused the injury or has committed the offense charged
for which, however, he may not be penalized because the resulting injury or offense is a necessary
consequence of the due performance of his duty or the lawful exercise of his right or office. Thus, it
must be shown that the acts of the accused relative to the crime charged were indeed lawfully or
duly performed; the burden necessarily shifts on him to prove such hypothesis.

We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not
obtain in this case.

The undisputed presence of all the accused at the situs of the incident is a legitimate law
enforcement operation. No objection is strong enough to defeat the claim that all of them – who were
either police and barangay officers or CHDF members tasked with the maintenance of peace and
order – were bound to, as they did, respond to information of a suspected rebel infiltration in the
locality. Theirs, therefore, is the specific duty to identify the occupants of their suspect vehicle and
search for firearms inside it to validate the information they had received; they may even effect a
bloodless arrest should they find cause to believe that their suspects had just committed, were
committing or were bound to commit a crime. While, it may certainly be argued that rebellion is a
continuing offense, it is interesting that nothing in the evidence suggests that the accused were
acting under an official order to open fire at or kill the suspects under any and all circumstances.
Even more telling is the absence of reference to the victims having launched such aggression as
would threaten the safety of any one of the accused, or having exhibited such defiance of authority
that would have instigated the accused, particularly those armed, to embark on a violent attack with
their firearms in self-defense. In fact, no material evidence was presented at the trial to show that the
accused were placed in real mortal danger in the presence of the victims, except maybe their bare
suspicion that the suspects were armed and were probably prepared to conduct hostilities.

But whether or not the passengers of the subject jeepney were NPA members and whether or not
they were at the time armed, are immaterial in the present inquiry inasmuch as they do not stand as
accused in the prosecution at hand. Besides, even assuming that they were as the accused believed
them to be, the actuations of these responding law enforcers must inevitably be ranged against
reasonable expectations that arise in the legitimate course of performance of policing duties. The
rules of engagement, of which every law enforcer must be thoroughly knowledgeable and for which
he must always exercise the highest caution, do not require that he should immediately draw or fire
his weapon if the person to be accosted does not heed his call. Pursuit without danger should be his
next move, and not vengeance for personal feelings or a damaged pride. Police work requires
nothing more than the lawful apprehension of suspects, since the completion of the process pertains
to other government officers or agencies.108

A law enforcer in the performance of duty is justified in using such force as is reasonably necessary
to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm.109 United States v. Campo110 has laid down the rule
that in the performance of his duty, an agent of the authorities is not authorized to use force, except
in an extreme case when he is attacked or is the subject of resistance, and finds no other means to
comply with his duty or cause himself to be respected and obeyed by the offender. In case injury or
death results from the exercise of such force, the same could be justified in inflicting the injury or
causing the death of the offender if the officer had used necessary force.111 He is, however, never
justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to
dangerous means when the arrest could be effected otherwise.112 People v. Ulep113 teaches that –
The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law
does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true
that police officers sometimes find themselves in a dilemma when pressured by a situation where an
immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment
and discretion of police officers in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a sound discretion, and
within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement
officers who indiscriminately employ force and violence upon the persons they are apprehending.
They must always bear in mind that although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings with human rights.114

Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four members of a
family in their home because of suspicions that they were NPA members, and the accused sought
exoneration by invoking among others the justifying circumstance in Article 11 (5) of the Revised
Penal Code, the Court in dismissing the claim and holding them liable for murder said, thus:

In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised
Penal Code, for the massacre of the Magdasals can by no means be considered as done in the
fulfillment of a duty or in the lawful exercise of an office or in obedience to an order issued by a
superior for some lawful purpose. Other than "suspicion," there is no evidence that Welbino
Magdasal, Sr., his wife Wendelyn, and their children were members of the NPA. And even if they
were members of the NPA, they were entitled to due process of law. On that fateful night, they were
peacefully resting in their humble home expecting for the dawn of another uncertain day. Clearly,
therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the Magdasals. The
massacre was nothing but a merciless vigilante-style execution.116

Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it failed to
heed the first round of warning shots as well as the signal for it to stop and instead tried to flee.
While it is possible that the jeepney had been flagged down but because it was pacing the dark road
with its headlights dimmed missed petitioners’ signal to stop, and compound to it the admitted fact
that the passengers thereof were drunk from the party they had just been to,117 still, we find
incomprehensible petitioners’ quick resolve to use their firearms when in fact there was at least one
other vehicle at the scene – the Sarao jeepney owned by Yapyuco – which they could actually have
used to pursue their suspects whom they supposedly perceived to be in flight.

Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of
force, and it is incumbent on herein petitioners to prove such necessity. We find, however, that
petitioners failed in that respect. Although the employment of powerful firearms does not necessarily
connote unnecessary force, petitioners in this case do not seem to have been confronted with the
rational necessity to open fire at the moving jeepney occupied by the victims. No explanation is
offered why they, in that instant, were inclined for a violent attack at their suspects except perhaps
their over-anxiety or impatience or simply their careless disposition to take no chances. Clearly, they
exceeded the fulfillment of police duties the moment they actualized such resolve, thereby inflicting
Licup with a mortal bullet wound, causing injury to Villanueva and exposing the rest of the
passengers of the jeepney to grave danger to life and limb – all of which could not have been the
necessary consequence of the fulfillment of their duties.

III.
At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure. In
the context of criminal law, a "mistake of fact" is a misapprehension of a fact which, if true, would
have justified the act or omission which is the subject of the prosecution.118 Generally, a reasonable
mistake of fact is a defense to a charge of crime where it negates the intent component of the
crime.119 It may be a defense even if the offense charged requires proof of only general intent.120 The
inquiry is into the mistaken belief of the defendant,121 and it does not look at all to the belief or state
of mind of any other person.122 A proper invocation of this defense requires (a) that the mistake be
honest and reasonable;123 (b) that it be a matter of fact;124 and (c) that it negate the culpability
required to commit the crime125 or the existence of the mental state which the statute prescribes with
respect to an element of the offense.126

The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah
Chong,127 but in that setting, the principle was treated as a function of self-defense where the
physical circumstances of the case had mentally manifested to the accused an aggression which it
was his instinct to repel. There, the accused, fearful of bad elements, was woken by the sound of his
bedroom door being broken open and, receiving no response from the intruder after having
demanded identification, believed that a robber had broken in. He threatened to kill the intruder but
at that moment he was struck by a chair which he had placed against the door and, perceiving that
he was under attack, seized a knife and fatally stabbed the intruder who turned out to be his
roommate. Charged with homicide, he was acquitted because of his honest mistake of fact. Finding
that the accused had no evil intent to commit the charge, the Court explained:

x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases
of supposed offense, a sufficient excuse").

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability, provided always there is no fault or negligence on his part and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." x x x

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of
facts which will justify a killing — or, in terms more nicely in accord with the principles on which the
rule is founded, if without fault or carelessness he does not believe them — he is legally guiltless of
homicide; though he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and the not quite
harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is
justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus supposes the facts to be,
the law will not punish him though they are in truth otherwise, and he has really no occasion for the
extreme measure. x x x 128

Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an act, which is
otherwise criminal on the basis of a mistake of fact, must preclude negligence or bad faith on the
part of the accused.131 Thus, Ah Chong further explained that –

The question then squarely presents itself, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake of fact was not due to negligence or bad faith.132

IV.

This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been
established beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound
by the invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The
prosecution must rely on the strength of its own evidence and not on the evidence of the accused.
The weakness of the defense of the accused does not relieve the prosecution of its responsibility of
proving guilt beyond reasonable doubt.133 By reasonable doubt is meant that doubt engendered by
an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy
upon the certainty of guilt.134 The overriding consideration is not whether the court doubts the
innocence of the accused, but whether it entertains reasonable doubt as to his guilt.135

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct
evidence or by circumstantial or presumptive evidence.136 Corpus delicti consists of two things: first,
the criminal act and second, defendant's agency in the commission of the act.137 In homicide (by
dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party alleged to be
dead; (b) that the death was produced by the criminal act of some other than the deceased and was
not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act
or was in some way criminally responsible for the act which produced the death. In other words,
proof of homicide or murder requires incontrovertible evidence, direct or circumstantial, that the
victim was deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in
the use of weapons by the malefactors, the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the time or immediately after the killing of
the victim. If the victim dies because of a deliberate act of the malefactors, intent to kill is
conclusively presumed.138 In such case, even if there is no intent to kill, the crime is homicide
because with respect to crimes of personal violence, the penal law looks particularly to the material
results following the unlawful act and holds the aggressor responsible for all the consequences
thereof. 139 Evidence of intent to kill is crucial only to a finding of frustrated and attempted homicide,
as the same is an essential element of these offenses, and thus must be proved with the same
degree of certainty as that required of the other elements of said offenses.140

The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting that, in
negating the allegation that they had by their acts intended to kill the occupants of the jeepney,
petitioners turn to their co-accused Pamintuan, whose picture depicted in the defense evidence is
certainly an ugly one: petitioners’ affidavits as well as Yapyuco’s testimony are replete with
suggestions that it was Pamintuan alone who harbored the motive to ambush the suspects as it was
he who their (petitioners’) minds that which they later on conceded to be a mistaken belief as to the
identity of the suspects. Cinco, for one, stated in court that Pamintuan had once reported to him that
Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that the San
Miguel Corporation plant where the victims were employed was being penetrated by NPA members.
He also affirmed Yapyuco’s claim that there had been a number of ambuscades launched against
members of law enforcement in Quebiawan and in the neighboring areas supposedly by NPA
members at around the time of the incident. But as the Sandiganbayan pointed out, it is unfortunate
that Pamintuan had died during the pendency of these cases even before his opportunity to testify in
court emerged.141

Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality. Motive
is generally held to be immaterial inasmuch as it is not an element of a crime. It gains significance
when the commission of a crime is established by evidence purely circumstantial or otherwise
inconclusive.142 The question of motive is important in cases where there is doubt as to whether the
defendant is or is not the person who committed the act, but when there is no doubt that the
defendant was the one who caused the death of the deceased, it is not so important to know the
reason for the deed.143

In the instant case, petitioners, without abandoning their claim that they did not intend to kill anyone
of the victims, admit having willfully discharged their service firearms; and the manner by which the
bullets concentrated on the passenger side of the jeepney permits no other conclusion than that the
shots were intended for the persons lying along the line of fire. We do not doubt that instances
abound where the discharge of a firearm at another is not in itself sufficient to sustain a finding of
intention to kill, and that there are instances where the attendant circumstances conclusively
establish that the discharge was not in fact animated by intent to kill. Yet the rule is that in
ascertaining the intention with which a specific act is committed, it is always proper and necessary to
look not merely to the act itself but to all the attendant circumstances so far as they develop in the
evidence.144

The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber
carbine.145 While the use of these weapons does not always amount to unnecessary force, they are
nevertheless inherently lethal in nature. At the level the bullets were fired and hit the jeepney, it is
not difficult to imagine the possibility of the passengers thereof being hit and even killed. It must be
stressed that the subject jeepney was fired upon while it was pacing the road and at that moment, it
is not as much too difficult to aim and target the tires thereof as it is to imagine the peril to which its
passengers would be exposed even assuming that the gunfire was aimed at the tires – especially
considering that petitioners do not appear to be mere rookie law enforcers or unskilled neophytes in
encounters with lawless elements in the streets.

Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed,
the likelihood of the passenger next to the driver – and in fact even the driver himself – of being hit
and injured or even killed is great to say the least, certain to be precise. This, we find to be
consistent with the uniform claim of petitioners that the impulse to fire directly at the jeepney came
when it occurred to them that it was proceeding to evade their authority. And in instances like this,
their natural and logical impulse was to debilitate the vehicle by firing upon the tires thereof, or to
debilitate the driver and hence put the vehicle to a halt. The evidence we found on the jeepney
suggests that petitioners’ actuations leaned towards the latter.

This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on the
passenger side and to Villanueva who was occupying the wheel, together with all the consequences
arising from their deed. The circumstances of the shooting breed no other inference than that the
firing was deliberate and not attributable to sheer accident or mere lack of skill. Thus, Cupps v.
State146 tells that:

This rule that every person is presumed to contemplate the ordinary and natural consequences of
his own acts, is applied even in capital cases. Because men generally act deliberately and by the
determination of their own will, and not from the impulse of blind passion, the law presumes that
every man always thus acts, until the contrary appears. Therefore, when one man is found to have
killed another, if the circumstances of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of the deceased was designed by the
slayer; and the burden of proof is on him to show that it was otherwise.

V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of
killing Licup and Villanueva, hence we dismiss Yapyuco’s alternative claim in G.R. No. 120744 that
he and his co-petitioners must be found guilty merely of reckless imprudence resulting in homicide
and frustrated homicide. Here is why:

First, the crimes committed in these cases are not merely criminal negligence, the killing being
intentional and not accidental. In criminal negligence, the injury caused to another should be
unintentional, it being the incident of another act performed without malice.147 People v.
Guillen148 and People v. Nanquil 149 declare that a deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless imprudence. And in People v. Castillo,150 we held
that that there can be no frustrated homicide through reckless negligence inasmuch as reckless
negligence implies lack of intent to kill, and without intent to kill the crime of frustrated homicide
cannot exist.

Second, that petitioners by their acts exhibited conspiracy, as correctly found by the Sandiganbayan,
likewise militates against their claim of reckless imprudence.

Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons
agree to commit a felony and decide to commit it. Conspiracy need not be proven by direct
evidence. It may be inferred from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common purpose and design.
Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their combined acts, though
apparently independent of each other were, in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment. Conspiracy once found,
continues until the object of it has been accomplished and unless abandoned or broken up. To hold
an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed
an overt act in pursuance or furtherance of the complicity. There must be intentional participation in
the transaction with a view to the furtherance of the common design and purpose.151

Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the commission of
the offense, the accused had the same purpose and were united in its execution.152 The instant case
requires no proof of any previous agreement among petitioners that they were really bent on a
violent attack upon their suspects. While it is far-fetched to conclude that conspiracy arose from the
moment petitioners, or all of the accused for that matter, had converged and strategically posted
themselves at the place appointed by Pamintuan, we nevertheless find that petitioners had been
ignited by the common impulse not to let their suspect jeepney flee and evade their authority when it
suddenly occurred to them that the vehicle was attempting to escape as it supposedly accelerated
despite the signal for it to stop and submit to them. As aforesaid, at that point, petitioners were
confronted with the convenient yet irrational option to take no chances by preventing the jeepney’s
supposed escape even if it meant killing the driver thereof. It appears that such was their common
purpose. And by their concerted action of almost simultaneously opening fire at the jeepney from the
posts they had deliberately taken around the immediate environment of the suspects, conveniently
affording an opportunity to target the driver, they did achieve their object as shown by the
concentration of bullet entries on the passenger side of the jeepney at angular and perpendicular
trajectories. Indeed, there is no definitive proof that tells which of all the accused had discharged
their weapons that night and which directly caused the injuries sustained by Villanueva and fatally
wounded Licup, yet we adopt the Sandiganbayan’s conclusion that since only herein petitioners
were shown to have been in possession of their service firearms that night and had fired the same,
they should be held collectively responsible for the consequences of the subject law enforcement
operation which had gone terribly wrong.153
 VI.

The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of
homicide and attempted homicide only, respectively for the death of Licup and for the non-fatal
injuries sustained by Villanueva, and that they deserve an acquittal together with the other accused,
of the charge of attempted murder with respect to the unharmed victims.154 The allegation of evident
premeditation has not been proved beyond reasonable doubt because the evidence is consistent
with the fact that the urge to kill had materialized in the minds of petitioners as instantaneously as
they perceived their suspects to be attempting flight and evading arrest. The same is true with
treachery, inasmuch as there is no clear and indubitable proof that the mode of attack was
consciously and deliberately adopted by petitioners.

Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas
an attempt thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two
degrees than that prescribed for principals in a consummated homicide. Petitioners in these cases
are entitled to the ordinary mitigating circumstance of voluntary surrender, and there being no
aggravating circumstance proved and applying the Indeterminate Sentence Law, the Sandiganbayan
has properly fixed in Criminal Case No. 16612 the range of the penalty from six (6) years and one
(1) day, but should have denominated the same as prision mayor, not prision correccional, to twelve
(12) years and one (1) day of reclusion temporal.

However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted
homicide, a modification of the penalty is in order. The penalty of attempted homicide is two (2)
degrees lower to that of a consummated homicide, which is prision correccional. Taking into account
the mitigating circumstance of voluntary surrender, the maximum of the indeterminate sentence to
be meted out on petitioners is within the minimum period of prision correccional, which is six (6)
months and one (1) day to two (2) years and four (4) months of prision correccional, whereas the
minimum of the sentence, which under the Indeterminate Sentence Law must be within the range of
the penalty next lower to that prescribed for the offense, which is one (1) month and one (1) day to
six (6) months of arresto mayor.

We likewise modify the award of damages in these cases, in accordance with prevailing
jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages and ₱50,000.00 in moral
damages. With respect to Noel Villanueva, petitioners are likewise bound to pay, jointly and
severally, the amount of ₱51,700.00 as actual and compensatory damages and ₱20,000.00 as
moral damages. The award of exemplary damages should be deleted, there being no aggravating
circumstance that attended the commission of the crimes.

WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in
Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with the
following MODIFICATIONS:

(a) In Criminal Case No. 16612, petitioners are 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; in Criminal Case No. 16614, the indeterminate sentence
is hereby modified to Two (2) years and four (4) months of prision correccional, as the maximum,
and Six (6) months of arresto mayor, as the minimum.

(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince
Licup in the amount of ₱77,000.00 as actual damages, ₱50,000.00 in moral damages, as well as
Noel Villanueva, in the amount of ₱51,700.00 as actual and compensatory damages, and
₱20,000.00 as moral damages.
G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
 and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:

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

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3,
1997.6 In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time,
Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely: John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom
was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible
for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and
his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded
 that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her
to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the
spouses grappling with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work as he was to go
fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx xxx xxx

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

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

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

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did
not bother anyone in Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

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

"Dra. Cerillo was not cross-examined by defense counsel.

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

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

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

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

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

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

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

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

xxx xxx xxx

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

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

Ruling of the Trial Court

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

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

Supervening Circumstances

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

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.
 "7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case.14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation.15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this
Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
 deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic.17 The defense raised no objection
to these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon
the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made.19 Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence.21 Well-settled is the rule
that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense.22
The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman."25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident.29

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

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

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

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

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

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

A Yes, sir.

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

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

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

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

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What
do you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

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

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

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

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

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

What is this all about?

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

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.
 Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he was not home yet'. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if
any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.
Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

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

A Outside.

Q In what part of the house?

 A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

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

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

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one who
was practically the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse. She also had the experience
a lot of taunting from the husband for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was carrying was not his own. So she
was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?
 A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering, all
the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.
Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common
myths and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape."46 In her years of research, Dr. Walker found that "the abuse
often escalates at the point of separation and battered women are in greater danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing
the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past,
she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense60 -- she must have
actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not
merely imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of
self-defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

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

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden
and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'"65 Still, impending danger
(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger.66 Considering such circumstances and the existence of BWS, self-defense
may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

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

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

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

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

"Q What causes the trauma, Mr. Witness?

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

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder
is injury to the head, banging of the head like that. It is usually the very very severe stimulus
 that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1) there
is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus.79 His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence.82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself.83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

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

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx xxx xxx

ATTY. TABUCANON:

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

A Yes, because I smashed him.

Q What happened?

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

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:
 (Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked.86 There is no
showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in its
medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense.90 Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.
G.R. No. 182835 April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

DECISION

ABAD, J.:

This case concerns a claim of commission of the crime of violence against women when a former
boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it.

The Indictment

The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial
Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children
Act or Republic Act (R.A.) 9262 in an information that reads:

That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines
and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and
feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS)
using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend,
whereby the face of the latter was attached to a completely naked body of another woman making it
to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture
thereby causing substantial emotional anguish, psychological distress and humiliation to the said
Irish Sagud.1

The Facts and the Case

The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan
were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became
"on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with
him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and
told Rustan to take on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and sent her text messages.
Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-
8084768. Irish replied to his text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a
picture of a naked woman with spread legs and with Irish’s face superimposed on the figure (Exhibit
A).2 The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers
that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they
were in Baguio in 2003 (Exhibit B).3

After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it
would be easy for him to create similarly scandalous pictures of her. And he threatened to spread
the picture he sent through the internet. One of the messages he sent to Irish, written in text
messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa
lahat ng chatter."4

Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police
supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture
and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada,
Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the
waiting police officers intercepted and arrested him. They searched him and seized his Sony
Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police
station, he shouted at Irish: "Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in
information technology and computer graphics. He said that it was very much possible for one to lift
the face of a woman from a picture and superimpose it on the body of another woman in another
picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and
the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was
not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake
and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained
how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson
P900 seized from Rustan.

For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003
and their relation lasted until December of that year. He claimed that after their relation ended, Irish
wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that
time (later his wife) was already pregnant, Irish walked out on him.

Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort
as she needed his help in selling her cellphone. When he arrived at the place, two police officers
approached him, seized his cellphone and the contents of his pockets, and brought him to the police
station.

Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a
prankster who was sending her malicious text messages. Rustan got the sender’s number and,
pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages
from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the
obscene messages appeared to have originated from his cellphone number. Rustan claims that it
was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a
woman whom he identified as Irish (Exhibits 2 to 7).5

Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent the six pictures. Michelle
claims that she received the pictures and hid the memory card (Exhibit 8) that contained them
because she was jealous and angry. She did not want to see anything of Irish. But, while the woman
in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the
face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman
in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed.

After trial, the RTC found Irish’s testimony completely credible, given in an honest and spontaneous
manner. The RTC observed that she wept while recounting her experience, prompting the court to
comment: "Her tears were tangible expression of pain and anguish for the acts of violence she
suffered in the hands of her former sweetheart. The crying of the victim during her testimony is
evidence of the credibility of her charges with the verity borne out of human nature and
experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the
violation of Section 5(h) of R.A. 9262.

On Rustan’s appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31,
2008,8 affirming the RTC decision. The CA denied Rustan’s motion for reconsideration in a
resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari.

The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message
the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological
distress, and humiliation on her in violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is
defined in R.A. 9262;

2. Whether or not a single act of harassment, like the sending of the nude picture in this
case, already constitutes a violation of Section 5(h) of R.A. 9262;

3. Whether or not the evidence used to convict Rustan was obtained from him in violation of
his constitutional rights; and

4. Whether or not the RTC properly admitted in evidence the obscene picture presented in
the case.

The Court’s Rulings

Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person
against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. – As used in this Act,

(a) "Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.

xxxx

Section 5 identifies the act or acts that constitute violence against women and these include
any form of harassment that causes substantial emotional or psychological distress to a
woman. Thus:

SEC. 5. Acts of Violence Against Women and Their Children. – The crime of violence against
women and their children is committed through any of the following acts:
 xxxx

h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that

alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:

xxxx

5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the elements of the crime of violence against
women through harassment are:

1. The offender has or had a sexual or dating relationship with the offended woman;

2. The offender, by himself or through another, commits an act or series of acts of

harassment against the woman; and

3. The harassment alarms or causes substantial emotional or psychological distress to her.

One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a
"dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation
where the parties are romantically involved over time and on a continuing basis during the course of
the relationship. Thus:

(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the
benefit of marriage or are romantically involved over time and on a continuing basis during the
course of the relationship. A casual acquaintance or ordinary socialization between two individuals in
a business or social context is not a dating relationship. (Underscoring supplied.)

Here, Rustan claims that, being "romantically involved," implies that the offender and the offended
woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites
Webster’s Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal
meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He
romanced her."

But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies
a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it
used the noun "romance" to describe a couple’s relationship, i.e., "a love affair."9

R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of
acts committed by any person against a woman x x x with whom the person has or had a
sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating
relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines
"sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing
of a common child." The dating relationship that the law contemplates can, therefore, exist even
without a sexual intercourse taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety
(away-bati), their romance cannot be regarded as having developed "over time and on a continuing
basis." But the two of them were romantically involved, as Rustan himself admits, from October to
December of 2003. That would be time enough for nurturing a relationship of mutual trust and love.

An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking
place does not mean that the romantic relation between the two should be deemed broken up during
periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when
she could not reply to Rustan’s messages, he would get angry at her. That was all. Indeed, she
characterized their three-month romantic relation as continuous.10

Two. Rustan argues that the one act of sending an offensive picture should not be considered a form
of harassment. He claims that such would unduly ruin him personally and set a very dangerous
precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes
violence against women. This means that a single act of harassment, which translates into violence,
would be enough. The object of the law is to protect women and children. Punishing only violence
that is repeatedly committed would license isolated ones.

Rustan alleges that today’s women, like Irish, are so used to obscene communications that her
getting one could not possibly have produced alarm in her or caused her substantial emotional or
psychological distress. He claims having previously exchanged obscene pictures with Irish such that
she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not
impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It
is doubtful if the woman in the picture was Irish since her face did not clearly show on them.

Michelle, Rustan’s wife, claimed that she deleted several other pictures that Irish sent, except
Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2
to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not
have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory
card, then she had no reason at all to keep and hide such memory card. There would have been
nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for
her to keep it for several years, given that as she said she was too jealous to want to see anything
connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.1avvphi1

Secondly, the Court cannot measure the trauma that Irish experienced based on Rustan’s low
regard for the alleged moral sensibilities of today’s youth. What is obscene and injurious to an
offended woman can of course only be determined based on the circumstances of each case. Here,
the naked woman on the picture, her legs spread open and bearing Irish’s head and face, was
clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish,
who is not in the pornography trade, would be scandalized and pained if she sees herself in such a
picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat
to post it in the internet for all to see. That must have given her a nightmare.

Three. Rustan argues that, since he was arrested and certain items were seized from him without
any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that
the prosecution did not present in evidence either the cellphone or the SIM cards that the police
officers seized from him at the time of his arrest. The prosecution did not need such items to prove
its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900
cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference.

Actually, though, the bulk of the evidence against him consisted in Irish’s testimony that she received
the obscene picture and malicious text messages that the sender’s cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to
Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the
confiscated cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to Irish.13 His defense was that
he himself received those messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone
number of the unidentified person who sent the messages to him to authenticate the same. The RTC
did not give credence to such version and neither will this Court. Besides, it was most unlikely for
Irish to pin the things on Rustan if he had merely tried to help her identify the sender.

Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an electronic signature, as
provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for
the first time before this Court. The objection is too late since he should have objected to the
admission of the picture on such ground at the time it was offered in evidence. He should be
deemed to have already waived such ground for objection.14

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.15

In conclusion, this Court finds that the prosecution has proved each and every element of the crime
charged beyond reasonable doubt.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in
CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008.

SO ORDERED.
G.R. No. 193960 January 7, 2013

KARLO ANGELO DABALOS y SAN DIEGO, Petitioner,

vs.
REGIONAL TRIAL COURT,BRANCH 59, ANGELES CITY (PAMPANGA), REPRESENTED BY
ITS PRESIDING JUDGE MA. ANGELICA T. PARAS-QUIAMBAO; THE OFFICE OF THE CITY
PROSECUTOR, ANGELES CITY (PAMPANGA); AND ABC,1 Respondents.

DECISION

PERLAS-BERNABE, J.:

The Court will not read into Republic Act (RA) No. 9262 a provision that would render it toothless in
the pursuit of the declared policy of the State to protect women and children from violence and
threats to their personal safety and security.

Before the Court is a petition for certiorari and prohibition assailing the Orders dated September 13,
20102 and October 5, 20103 of the Regional Trial Court (RTC) of Angeles City, Branch 59 in Criminal
Case No. 09-5210 which denied petitioner’s Motion for Judicial Determination of Probable Cause
with Motion to Quash the Information.

The Facts

Petitioner was charged with violation of Section 5(a) of RA 9262 before the RTC of Angeles City,
Branch 59, in an Information which states:

That on or about the 13th day of July, 2009, in the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then the boyfriend of the
complainant, x x x did then and there willfully, unlawfully and feloniously use personal violence on
the complainant, by pulling her hair, punching complainant’s back, shoulder and left eye, thereby
demeaning and degrading the complainant’s intrinsic worth and dignity as a human being, in
violation of Section 5(a) of the Republic Act 9262.4

After examining the supporting evidence, the RTC found probable cause and consequently, issued a
warrant of arrest against petitioner on November 19, 2009. The latter posted a cash bond for his
provisional liberty and on August 12, 2010, filed a Motion for Judicial Determination of Probable
Cause with Motion to Quash the Information. Petitioner averred that at the time of the alleged
incident on July 13, 2009, he was no longer in a dating relationship with private respondent; hence,
RA 9262 was inapplicable.

In her affidavit, private respondent admitted that her relationship with petitioner had ended prior to
the subject incident. She narrated that on July 13, 2009, she sought payment of the money she had
lent to petitioner but the latter could not pay. She then inquired from petitioner if he was responsible
for spreading rumors about her which he admitted. Thereupon, private respondent slapped petitioner
causing the latter to inflict on her the physical injuries alleged in the Information.

The RTC Ruling

The RTC denied petitioner’s motion. It did not consider material the fact that the parties’ dating
relationship had ceased prior to the incident, ratiocinating that since the parties had admitted a prior
dating relationship, the infliction of slight physical injuries constituted an act of violence against
women and their children as defined in Sec. 3(a) of RA 9262.

Issues

Hence, the instant petition raising the following issues: 1) whether the RTC has jurisdiction over the
offense; 2) whether RA 9262 should be construed in a manner that will favor the accused; and 3)
whether the Information alleging a fact contrary to what has been admitted should be quashed.

The Court’s Ruling

The petition has no merit.

Petitioner insists that the act which resulted in physical injuries to private respondent is not covered
by RA 9262 because its proximate cause was not their dating relationship. Instead, he claims that
the offense committed was only slight physical injuries under the Revised Penal Code which falls
under the jurisdiction of the Municipal Trial Court.

The Court is not persuaded.

Sec. 3(a) of RA 9262 reads:

SEC. 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children"
refers to any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in physical, sexual, psychological harm
or suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. x x x.

The law is broad in scope but specifies two limiting qualifications for any act or series of acts to be
considered as a crime of violence against women through physical harm, namely: 1) it is committed
against a woman or her child and the woman is the offender’s wife, former wife, or with whom he has
or had sexual or dating relationship or with whom he has a common child; and 2) it results in or is
likely to result in physical harm or suffering.

In Ang v. Court of Appeals,5 the Court enumerated the elements of the crime of violence against
women through harassment, to wit:

1. The offender has or had a sexual or dating relationship with the offended woman;

2. The offender, by himself or through another, commits an act or series of acts of

harassment against the woman; and

3. The harassment alarms or causes substantial emotional or psychological distress to her.6

Notably, while it is required that the offender has or had a sexual or dating relationship with the
offended woman, for RA 9262 to be applicable, it is not indispensable that the act of violence be a
consequence of such relationship. Nowhere in the law can such limitation be inferred. Hence,
applying the rule on statutory construction that when the law does not distinguish, neither should the
courts, then, clearly, the punishable acts refer to all acts of violence against women with whom the
offender has or had a sexual or dating relationship. As correctly ruled by the RTC, it is immaterial
whether the relationship had ceased for as long as there is sufficient evidence showing the past or
present existence of such relationship between the offender and the victim when the physical harm
was committed. Consequently, the Court cannot depart from the parallelism in Ang and give
credence to petitioner's assertion that the act of violence should be due to the sexual or dating
relationship.

Neither can the Court construe the statute in favor of petitioner using the rule of lenity7 because
there is no ambiguity in RA 9262 that would necessitate any construction. While the degree of
physical harm under RA 9262 and Article 2668 of the Revised Penal Code are the same, there is
sufficient justification for prescribing a higher penalty for the former. Clearly, the legislative intent is
to purposely impose a more severe sanction on the offenders whose violent act/s physically harm
women with whom they have or had a sexual or dating relationship, and/or their children with the
end in view of promoting the protection of women and children.

Accordingly, the Information having sufficiently alleged the necessary elements of the crime, such
as: a dating relationship between the petitioner and the private respondent; the act of violence
committed by the petitioner; and the resulting physical harm to private respondent, the offense is
covered by RA 9262 which falls under the jurisdiction of the RTC in accordance with Sec. 7 of the
said law which reads:

SEC. 7. Venue – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant.

Finally, the Court finds the Order9 of the RTC, giving the prosecutor a period of two (2) days to
amend the Information to reflect the cessation of the dating relationship between the petitioner and
the offended party, to be in accord with Sec. 4 of Rule 117 of the Rules of Court, to wit:

SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order that
an amendment be made.1âwphi1

Furthermore, Sec. 14 of Rule 110 of the Rules of Court provides that an information may be
amended, in form or in substance, without leave of court, at any time before the accused enters his
plea. In the present case, the accused petitioner has not yet been arraigned, hence, the RTC was
correct in directing the amendment of the Information and in denying the motion to quash the same.

WHEREFORE, the petition is DISMISSED. The Orders dated September 13, 2010 and October 5,
2010 of the Regional Trial Court ( RTC) of Angeles City, Branch 59 in Criminal Case No. 09-5210
are AF.FI RM ED. The Temporary Restraining Order issued by the Court is LIFTED and the RTC is
directed to continue with the proceedings in Criminal Case No. 09-5210.

SO ORDERED.
G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of
the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled
People of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No.
CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son
named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen
(16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less).7 However, since the arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat.9 Respondent and his new wife established a business known
as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date,
all the parties, including their son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latter’s unjust refusal to support his minor child with petitioner.13 Respondent submitted
his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit.14 Thereafter, the
Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the Municipality of
Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim. CONTRARY TO
LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.16 Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner
also filed a Motion/Application of Permanent Protection Order to which respondent filed his
Opposition.18 Pending the resolution thereof, respondent was arraigned.19 Subsequently, without the
RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the
crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant
criminal case against respondent on the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense
with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation
to support their child under Article 19523 of the Family Code, thus, failure to do so makes him liable
under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to
support their minor children regardless of the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for
Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused
is a foreign national he is not subject to our national law (The Family Code) in regard to a parent’s
duty and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262
applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered opinion of the
court that no prima faciecase exists against the accused herein, hence, the case should be
dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.
Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the
fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic
v. Sunvar Realty Development Corporation,28 which lays down the instances when a ruling of the
trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this
Court, in case only questions of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition to raise only questions of law. In
Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered
in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for
review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions
of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or
mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of
the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the matter. The resolution of the issue
must rest solely on what the law provides on the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto
concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not
a foreign national has an obligation to support his minor child under Philippine law; and whether or
not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law
concerning the liability of a foreign national who allegedly commits acts and omissions punishable
under special criminal laws, specifically in relation to family rights and duties. The inimitability of the
factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus,
in the present case, considerations of efficiency and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do
not fully agree with petitioner’s contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that
the legal obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support
his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in
relation to Article 26 of the Family Code,31 respondent is not excused from complying with his
obligation to support his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support.32 Respondent also
added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial
support.33

On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil
Code in demanding support from respondent, who is a foreign citizen, since Article 1535 of the New
Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same only applies to
Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject
to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of
the Philippines, for that Code cleaves to the principle that family rights and duties are governed by
their personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign
country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law.40 In the present case, respondent hastily concludes that being a
national of the Netherlands, he is governed by such laws on the matter of provision of and capacity
to support.41 While respondent pleaded the laws of the Netherlands in advancing his position that he
is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the
issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved.43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine
of processual presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same as our local or
domestic or internal law.44 Thus, since the law of the Netherlands as regards the obligation to
support has not been properly pleaded and proved in the instant case, it is presumed to be the same
with Philippine law, which enforces the obligation of parents to support their children and penalizing
the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land
as well as its legal effects may be recognized in the Philippines in view of the nationality principle on
the matter of status of persons, the Divorce Covenant presented by respondent does not completely
show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is
placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated,46 which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable
in the Philippines because it would be of great injustice to the child to be denied of financial support
when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section
5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom
of movement or conduct by force or threat of force, physical or other harm or threat of physical or
other harm, or intimidation directed against the woman or child. This shall include, butnot limited to,
the following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her
or her family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in
petitioner’s claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that: "[p]enal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his child with petitioner is committed
here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime52 under Section 24 of R.A. No. 9262, which
provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET
ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the
merits of the case.
G.R. No. 182239 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.

DECISION

PEREZ, J.:

Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim’s positive identification of the accused as the perpetrator of the crime.1 For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2

Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."

Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the
reversal of the judgment of his conviction.4

The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal
Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as
follows:

That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at
barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court,
[Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.

CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only
five years old.7

On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense admitted the
existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3
December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.

Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.

Evidence for the Prosecution

The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:

FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That
of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF’s house, the frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He bore no grudge against
appellant prior to the incident.13

AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing
at the basketball court near her house, fetching water, and passing by her house on his way to the
road. She and appellant used to be friends until the incident.14

At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her aunt
Rita Lingcay [Rita].15

Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum.16 At the
store, he saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short
pants.18 All of them left the store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the direction of the "lower area
or place."20

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held
her hand while on the road near the store.22 They walked towards the rice field near the house of
spouses Alejandro and Gloria Perocho [the Perochos].23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.24 Already half-naked from waist down,25 he
mounted her, and, while her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27 Afterwards, appellant left and proceeded to the
Perochos.28 She, in turn, went straight home crying.29

FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found
her face greasy.32 There was mud on her head and blood was oozing from the back of her
head.33 He checked for any injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud on her vagina.35 AAA told
him that appellant brought her from the store36 to the grassy area at the back of the house of the
Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39

True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he
did to AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA followed
him.42 FFF went home to check on his daughter,43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45

Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced
her, and asked what happened to her, to which she replied that appellant raped her.49 Julito left and
found appellant at the Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the
daughter of [MMM]?" but the latter ignored his question.51 Appellant’s aunt, Gloria, told appellant that
the policemen were coming to which the appellant responded, "Wait a minute because I will wash
the dirt of my elbow (sic) and my knees."52 Julito did found the elbows and knees of appellant with
dirt.53

On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center.55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate56 dated 29 January
2003. It reads:

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

5. Abrasion over the posterior trunk, paravertebral area

6. Genital and peri-anal area soiled with debris and whitish mucoid-like material

7. Introitus is erythematous with minimal bleeding

8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

Impression

MULTIPLE SOFT TISSUE INJURIES

HYMENAL LACERATIONS

Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:

P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic)59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was
at the Perochos at the time of the commission of the crime.60 Luzvilla even went further to state that
she actually saw Julito, not appellant, pick up AAA on the road.61 In addition, Antonia Perocho
[Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified on the behavior of Julito after the rape
incident was revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of
FFF’s house.64 He denied that there was a need to pass by the house of FFF in order to access the
road or to fetch water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever
he was asked to buy something from the store, AAA always approached him.67

At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro
Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle sent him to the
store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he was able to
return after three (3) minutes. He was certain of the time because he had a watch .68

Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also
observed that appellant’s white shorts and white sleeveless shirt were clean.69

At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side
of the tree beside the road next to the house of the Perochos.72 From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry AAA.73 AAA’s face was covered
and she was wiggling.74 This did not alarm her because she thought it was just a
game.75 Meanwhile, appellant was still in the kitchen when she returned.76 Around three (3) minutes
later, Luzvilla saw Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA was
slowly following behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and
asked what the appellant did to her.81 The child did not answer.82

Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF.83

On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did
not answer. Upon Antonia’s advice, Julito released her and went out of the house.84

Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter.85

On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of which
reads:

WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA]
P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs87

The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended
in order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon
the accused, therefore[,] is reduced to reclusion perpetua. xxx

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of
the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate
review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.90

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1)
day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages and to pay the costs.91

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective supplemental
briefs.93 Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the innocence of the accused and
the other with his guilt, then the evidence does not pass the test of moral certainty and will not
suffice to support a conviction."96

Our Ruling

We sustain the judgment of conviction.

In the determination of the innocence or guilt of a person accused of rape, we consider the three
well-entrenched principles:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which
only two persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense.97

Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict
the accused.98 More so, when the testimony is supported by the medico-legal findings of the
examining physician.99
Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator
of the crime,100 except when it is established that it was physically impossible for the accused to
have been at the locus criminis at the time of the commission of the crime.101

A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in
the absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when
the offended party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority.102

That the crime of rape has been committed is certain. The vivid narration of the acts culminating in
the insertion of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the
physicians sufficiently proved such fact.

AAA testified:

PROS. OMANDAM:

xxxx

Q You said Hermie laid you on the ground, removed your panty and boxed you, what else
did he do to you?

A He mounted me.

Q When Hermie mounted you, was he facing you?

A Yes.

Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

Q When he made a push and pull movement, how were your legs positioned?

A They were apart.

Q Who pushed them apart?

A Hermie.

Q Did Hermie push anything at you?

A Yes.

Q What was that?

A His penis.
 Q Where did he push his penis?

A To my vagina.

Q Was it painful?

A Yes.

Q What was painful?

A My vagina.

Q Did you cry?

A Yes.103

The straightforward and consistent answers to the questions, which were phrased and re-phrased in
order to test that AAA well understood the information elicited from her, said it all – she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.104 Significantly, youth and immaturity are normally badges of truth and
honesty.105

Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.107

The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively
established the essential requisite of carnal knowledge.108

II

The real identity of the assailant and the whereabouts of the appellant at the time of the commission
of the crime are now in dispute.

The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
elsewhere when the crime was committed.109

We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good look at
him during the commission of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs criminus111 that it would be
impossible for the child not to recognize the man who held her hand and led her all the way to the
rice field.

We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.

The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called "kuya" and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else – one Julito Apiki, but the child, on rebuttal,
was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
who is older, who molested her.112

In a long line of cases, this Court has consistently ruled that the determination by the trial court of the
credibility of the witnesses deserves full weight and respect considering that it has "the opportunity to
observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or
full realization of their oath,"113 unless it is shown that material facts and circumstances have been
"ignored, overlooked, misconstrued, or misinterpreted."114

Further, as correctly observed by the trial court:

xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone
else is xxx a vain exercise in view of the private complainant’s positive identification of accused and
other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki, the
supposed real culprit, asked him "What is this incident, Pare?", thus corroborating the latter’s
testimony that he confronted accused after hearing of the incident from the child."115

On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.

This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.116 He arrived from work only after FFF came to their house
for the second time and boxed appellant.117 It was actually the fish vendor, not her husband, who
asked appellant to buy Tanduay.118 Further, the drinking session started only after the appellant’s
errand to the store.119

Neither was the testimony of Luzvilla credible enough to deserve consideration.

Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria’s statement that her husband was at work.

Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a
white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to by
AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that appellant
wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-shirt (colored black and
later changed to white), and, thus, a short-sleeved shirt.

Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court’s appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home, crying, to tell her father that
Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers
who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen
at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been
brought there by her mother Brenda so that Lita Lingkay could take a look at her ˗ just as Julito Apiki
said.120

Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been
offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot
qualify as such, "they being related or were one way or another linked to each other."121

Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.

We reiterate, time and again, that the court must be convinced that it would be physically impossible
for the accused to have been at the locus criminis at the time of the commission of the crime.122

Physical impossibility refers to distance and the facility of access between the situs criminis and the
location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate vicinity
when the crime was committed.123

In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the
crime was considered not physically impossible to reach in less than an hour even by
foot.125 Inasmuch as it would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the accused was fast asleep
when she left to gather bamboo trees and returned several hours after. She could have merely
presumed that the accused slept all throughout.126

In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:

Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law
and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time
Rachel was raped. It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the appellant never
left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for
Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too,
was very much occupied with her task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her
inside his house and ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next
to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle’s house.129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130

Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the
time and place of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.

III

In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three
(3) years before it was enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131

[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is still under
review.133 (Emphasis supplied.)

Criminal Liability; Imposable Penalty

Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in which
case, "the appropriate proceedings" in accordance with the Act shall be observed.134

We determine discernment in this wise:

Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.135 Such capacity may be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case.136

xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s
cunning and shrewdness.138

In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her
defense" are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139

Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she
was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the
death penalty when rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346;142 and (2) the privileged
mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code.143

Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code.145 Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, in its medium period, as maximum.146

We differ.

In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified:

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.148 (Emphasis supplied.)

Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability

We have consistently ruled that:

The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua.149

Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family.150 The respective
awards of civil indemnity and moral damages in the amount of ₱75,000.00 each are, therefore,
proper.151

Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from ₱25,000.00 to ₱30,000.00.

Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period
of Suspension of Sentence

Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is
pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)

xxxx

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as amended,154 the
aforestated provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155

Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the
ruling in Gubaton. Thus:

The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict
with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.157

The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court
to cover heinous crimes in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation reads:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests,
and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child’s restoration, rehabilitation and reintegration. xxx (Italics
supplied in Sarcia.)159

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict
with the Law, which reflected the same position.160

These developments notwithstanding, we find that the benefits of a suspended sentence can no
longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of
the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of
a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the Act
in order that he/she is given the chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender committed the offense when
he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.164

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect
appellant’s confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is
reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.
 SECOND DIVISION

G.R. No. 127818. November 11, 1998

PEOPLE OF THE PHILIPPINES. Plaintiff-Appellee, vs. GUILLERMO NEPOMUCENO,

JR, Accused-Appellant.

DECISION

MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to the
decision dated November 20, 1996 of the Regional Trial Court of the National Capital Judicial
Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the accused guilty beyond reasonable doubt
of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code as
amended by Republic Act No. 7659 for the death of Grace Nepomuceno and hereby sentences him
to suffer imprisonment of Forty (40) years of reclusion perpetua and to pay the heirs of the deceased
the sum of P50,000.00 with costs against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused ineligible to
inherit from his wife. The entire estate should go to his son, Giordan Benitez Nepomuceno.

(pp. 20-21, Rollo)

The Information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation,
attack, assault and use personal violence upon the person of one GRACE NEPOMUCENO Y
BENITEZ, his wife, with whom he was married in lawful wedlock, by then and there shooting her with
a gun of unknown caliber hitting her on the left hip, thereby inflicting upon the said GRACE
NEPOMUCENO Y BENITEZ gunshot wound which was necessarily fatal and which was the direct
and immediate cause of her death thereafter.

(p. 5, Rollo)

Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due course.
Thereafter, the trial court rendered the judgment of conviction now on appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival, Forensic
Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De Leon, Ballistic
Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo
Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around
11 o'clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived and went to
their bedroom where Eden and her ward Giordan the one-year old son of the couple, were sleeping.
She was awakened by the loud voices of the spouses who were arguing. She saw accused-
appellant get a gun from a drawer, so she went out of the room because of fear. After a few
moments and while she was outside the room, she heard Grace Nepomuceno say: "Sige patayin mo
ako, patayin mo na kami ng anak ko." Then Eden heard a gunshot. She was so scared that she went
out of the house, reaching the door of the house of Barangay Chairman Congen Leonardo which is 5
meters away. After ten minutes, she saw accused-appellant coming out of the room. He told her to
get a taxi so he could bring the wounded Grace to the hospital. She was left behind in their room to
take care of baby Giordan. She tried to call up Monserrat de Leon, the sister of Grace in Pasig to
inform her of the incident, but she could not get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).

Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division, declared
that she conducted paraffin examination on both hands of the victim and those of accused-appellant.
She found the victim's hands negative of nitrates, but found accused-appellant's right hand positive
thereof. She gave the opinion that in view of the absence of nitrates on the hands of the victim, it is
probable that she did not fire a gun and that accused-appellant, being positive of nitrates, did really
fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn, July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico~Legal Officer of the NBI who conducted a second-post mortem
examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that the victim died
due to a gunshot wound, with the slug hitting the left internal iliac artery and the small intestines and
thereafter resting between the uterus and the sacrum of the victim. He testified that taking into
consideration the location of the wound, if the victim were in a sitting or lying position, the trajectory
of the slug was upward coming from right to left; and if the victim were in a standing position, the
muzzle of the gun should have pointed up. The witness declared that the muzzle of the gun could
not have been less that one foot from the victim. He opined that grappling for possession of the gun
was impossible because the trajectory of the bullet was going upwards and there were no smudges
or signs of close firing. He believed that the victim could have survived if the surgeons had operated
immediately (tsn, July 23, 1996, pp. 15-30).

Monserrat de Leon, sister of the victim, declared that Grace would confide to her that accused-
appellant was jobless and that Grace had problems with the low income of the store she owned at
Zurbaran Mart as compared to her expenses. Accused-appellant would force sex on Grace
especially when he was drunk. Her sister had two miscarriages after their first child and it was during
one of these miscarriages that she saw accused-appellant carrying a gun in the Mary Chiles Hospital
where her sister was confined (tsn, August 12, 1996, pp. 3-28).

Upon the other hand, the defense presented accused~appellant himself as its lone witness. His story
was quoted by the trial court thus:

Two days before the incident on May 2, 1994, Grace, the deceased was very much worried about
the check (sic) she issued which was post dated May 2, 1994. She would have no funds for the
checks. She had been nagging him, displaying her tantrums (nagdadabog) pestering him to do
something to be able to fund the checks.

In the noon time of May 2, 1994, he left her spouse in their store and went to his mother's house in
San Andres Bukid, Manila. This day was the day after the accused-appellant and his wife, and in-
laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and pestering of his wife about his inability to
produce money to be able to fund the postdated checks (sic).
At about 11:00 P.M. after dropping at a friend's house, he decided to go home, thinking his wife has
already cooled off.

When his wife opened the door, she greeted the husband: 'You left in the store and you room (roam)
around, where you able to find money.' He replied, 'where would I get money, do you expect me to
hold up people?' (tsn, October 5, 1994,p. 18)

They had some arguments and Eden Ontog went out of their bedroom, and the arguments
continued. There was a point in the argument when the wife told the accused thus: 'Wala akong silbi,
bakit pa ako nag-asawa sa kanya.'

Because of these continued pestering and nagging of his wife he thought of separation. Perhaps it
would be better if he should end his life. He then took a gun from their child's drawer. He sat on the
bed holding that gun, engrossed in his thinking what to do. The gunwas pointed towards the floor of
their room.

In that situation, his wife continued with his nagging and pestering. He just remained silent.

And then Guillermo asked her wife: 'How come you do not treat me as a husband, why do you treat
me like this.'

It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps just to scare his
wife to stop all the pestering and tantrums. Surely not only a few husbands would thought (sic) as
what that Guillermo was thinking then, he felt desperate. He wanted to finish his life. (p. 24,TSN,
October 5, 1994)

It was during that time that their son, Jordan woke up, walked to the space between them (husband
and wife) and Nepomuceno block his son's way with his right knee. In the process, he wanted to
totally force Grace from taking possession and control of the gun. He raised his arm holding the gun
passing over the left leg of Grace.

The gun went off.

(pp. 16-17, Rollo)

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL, AND THAT THE
DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.

II

ASSUMING THE ACCUSED ISCRIMINALLY LIABLE, THE TRIAL COURT ERRED IN NOT
FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.

III

THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED WAS PROVEN
BEYOND REASONABLE DOUBT.
(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the least
intention of killing his wife. He urges the Court to consider the circumstances attendant to the killing,
which, according to him negate all inferences and deductions, that he would kill his wife. First, the
deceased was hit in the upper leg, not in any vital organ. If he had the intention of killing the
deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual human
behavior, if her husband really intended to kill her. The deceased just uttered, "Masakit Papa", she
did not curse nor mouth evil and harsh language against accused-appellant to show hatred and
anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring her to the
hospital for immediate medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident was not
accidental?

Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of the
Revised Penal Code because, according to him, the incident occurred when he tried to prevent his
wife from killing herself, and he and his wife grappled for possession of the gun.

After a painstaking review of the evidence and record of this case, the Court finds itself unable to
reach conclusions identical to those put forward by accused-appellant.

First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12 of the
Revised Penal Code in order to be exempted from criminal liability arising from the death of his wife,
Grace Nepomuceno. Said provision pertinently states:

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

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

At all events, accident to be exempting, presupposes that the act done is lawful. Here, however, the
act of accused-appellant of drawing a weapon in the course of a quarrel, the same not being in self-
defense, is unlawful -- it at least constitutes light threats (Article 285, par. 1, Revised Penal Code).
There is thus no room for the invocation of accident as a ground for exemption (People vs. Reyta,
Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from his child's drawer was not even licensed or registered in
his name as shown by the Certification of the Firearms and Explosives Office of the Philippine
National Police, hence, he could have been charged with illegal possession of a firearm.

Secondly, accused~appellant's claim that the shooting happened when he tried to prevent his wife
from killing herself and he and his wife grappled for the possession of the gun is belied by the expert
testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post mortem examination
on the cadaver of Grace Nepomuceno. He declared:
Q. Now, is it possible Doctor, considering the location of the wound, the entrance wound and the
trajectory of the bullet upwards, would you say Doctor, that both parties, I mean the victim and the
assailant were grappling for the possession of said gun and it went off accidentally, is that possible,
Mr. Witness?

A. Well, Ihave to be convinced as to the grappling between the victim and the assailant, because if
we were to be re-construct of the scenario that the gun have been fired, the muzzle of the gun could
not have been closer than twelve (12) inches and considering that the gun was held by a hand, it
farther places the assailant farther from the victim and farther the victim is, from the assailant, then
the more impossible for the grappling for the gun. (tsn, July 23, 1996, pp. 19~20).

Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when the gun
discharged, stated:

Q. Please tell the court your relative position and the victim when the gun actually went off?

A. When I was in the act of trying to dispossess Grace with that gun and I was trying to let my right
hand pass through my right side but because Grace was struggling, the butt of the gun hit a part of
her upper leg and it exploded.

Q. So when the gun actually fired, you were holding that gun, what part of your arm being held by
Grace?

A. Witness pointing the upper forearm and the lower portion of her upper arm."

(tsn, Oct. 5, 1994, p. 28.)

If Grace were holding the upper forearm and lower portion of the upper arm of accused-appellant
when the gun fired, then at least the hand of Grace that held the upper forearm of appellant would
have traces of nitrate considering its nearness to the exploding gun. However, in the paraffin test
conducted by the Forensic Chemistry Division of the National Bureau of Investigation on Grace
Nepomuceno's both hands, no traces of nitrates were found- while accused-appellant's right hand
was positive of nitrates. The absence of nitrates on the victim's hands is convincing proof that she
did not grapple with accused-appellant for the possession of the gun. It also proves that she was
shot at a distance.

The fact that the victim was not shot in the head, or in any vital part of her body does not negate
intent to kill. The Post Mortem findings on the cadaver of Grace Nepomuceno by Dr. Arizala shows
that the bullet entered "the left thigh, lateral aspect, upper third . . . directed slight forwards, slightly
upwards and from left to right initially involving the skin and subcutaneous tissue, then taking an
intramascular route into the pelvic cavity thru the left obturator foramen, partially transecting the left
internal iliacartery and the small intestines with the slug lodging just underneath the uterus in front of
the sacrum where it was recovered." The extent of the physical injury inflicted on Grace, as above
proved, manifests intention to extinguish life (People vs. Dawandawan, 184 SCRA 264 [1994]).
Moreover, Dr. Arizala likewise declared that the bullet injured a vital organ of the victim (tsn, July 23,
1996, p. 9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh language
against accused-appellant does not, in any way, negate intent to kill. The utterance of a victim made
immediately after sustaining serious injuries may be considered as pure emanations of the incident
or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus, by
the word "Papa", Grace was in effect, saying that it was accused-appellant who shot her.
We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to call a
taxi in which he brought the wounded Grace to the hospital is "merely an indication or act of
repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him fromcriminal

liability. The law does not findunusual the voluntary surrender of criminal offenders; it merely
considers such act as a mitigating circumstance. Non-flight isnot proof of innocence (People vs.
Quijada, 259 SCRA 191 [1996]).

Under the second assigned error, accused-appellant claims that even assuming that the killing was
not totally accidental, his acts would constitute only simple negligence. He asserts that he had
established that the gun went off while he was grappling with his wife for its possession. He was
preventing his wife from taking her own life. He might not have exercised the necessary due care in
wrestling for the gun that resulted in the injury of his wife, but he could be charged only with parricide
through simple negligence. So he says.

It has been held that a deliberate intentto do an unlawful act is essentially inconsistent with the idea
of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943); People vs. Nanquil, 43 Phil 232
[1922]). What qualifies an act of reckless or simplenegligence or imprudence is the lack of malice or
criminal intent in the execution thereof (United States vs. Maleza, 14 Phil 468, 471[1909]). Otherwise
stated, in criminal negligence, the injury caused to another should be unintentional, it being simply
the incident of another act donewithout malice but with lack of foresight, or with carelessness or
negligence, and which has harmed society or an individual (People vs. Castillo, Jr., (275 SCRA 752
[1997]).

The argument of accused-appellant finds no support in the physical evidence. As already discussed,
if the version of grappling for the gun were to be believed, there should have been nitrates on both
hands of Grace. And if it was when accused-appellant placed the barrel of the gun at the base of his
head that Grace grabbed his hand holding the gun and in the struggle for its possession his hand
holding the gun was pushed down so that its butt hit the upper leg of Grace causing it to fire, then
the trajectory of the slug should be downwards, through the upper thigh of Grace where it entered.
Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered the left thigh of Grace directed
slightly upwards and from left to right, taking an intramascular route into the pelvic cavity, instead of
a downward direction if accused-appellant's version were to be believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lack of
powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered her left
thigh being slightly upwards and from left to right instead of downwards, repudiate accused-
appellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestation of
truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA 769
[1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument that his
guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These
elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3) that the
deceased was a legitimate ascendant or descendant, or the legitimate spouse of the accused
(Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 (1933)].

The first and third elements were stipulated during the pre~trial stage of the case, thus:
1. that the victim and the accused are legally married. Said civil marriage took place on July 5, 1990;

xxx

5. that immediately after the shooting, the accused voluntarily and bodily carried the victim into a
taxicab and proceeded to UERM Hospital where she died on the operating table." (Pre-Trial Order of
July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his legally
wedded wife.

In convicting accused-appellant, the trial court relied heavily on the testimony of the prosecution
witnesses. This Court finds no reason to do otherwise. It is a fundamental and settled rule that the
trial court's assessment in regard to the credibility of witnesses is entitled to the highest degree of
respect and will not be disturbed on appeal, as the trial court was in a better position to examine real
evidence as well as to observe the demeanor of the witnesses (People vs. Dominguez, 217 SCRA
170[1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena (244 SCRA 685 [1995]).

The Court agrees with the conclusions of the trial court as they are founded on the dictum that
evidence to be believed must not only proceed from the mouth of a credible witness, but must be
credible in itself - such as the common experience of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous
and is outside of judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]).

Further, accused-appellant having admitted that he shot his wife, he has the burden of proof of
establishing the presence of any circumstance which may relieve him of responsibility, and to prove
justification he must rely on the strength of his own evidence and not on the weakness of that of the
prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the
killing (People vs. Bautista, 254 SCRA 621 [1996). Unfortunately for accused-appellant, he has
miserably failed to discharge this task.

The trial court correctly appreciated the voluntary surrender of accused-appellant as a mitigating
circumstance, this fact having been stipulated by the parties at the pre-trial stage of this case
(Pre~Trial Order, Stipulation No. 10 Record, p. 17)

Thepenalty for the crime of parricide is reclusion perpetua to death; however, there being one
mitigating circumstance but no aggravating circumstance, the lower of the two indivisible penalties
should be imposed. The penalty cannot be further reduced by one degree as the Indeterminate
Sentence Law does not find application, the penalties involved being indivisible.

WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO NEPOMUCENO,

JR. of the crime of Parricide is hereby AFFIRMED with the slight modification that his sentence shall
be simply reclusion perpetua not "imprisonment of Forty (40) Years of reclusion perpetua" as stated
by the trial court.
G.R. No. 186128 June 23, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
SUSAN LATOSA y CHICO, Accused-Appellant.

DECISION

VILLARAMA, JR., J.:

This is an appeal from the Decision1 dated April 23, 2008 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 02192 which affirmed the April 12, 2006 Decision2 of the Regional Trial Court (RTC) of
Pasig City, Branch 159, convicting appellant Susan Latosa y Chico of parricide.

Appellant was charged with parricide in an information3 which reads,

That, on or about the 5th of February 2002, in the Municipality of Taguig, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being then the
legitimate wife of one Felixberto Latosa y Jaudalso, armed with and using an unlicensed gun, with
intent to kill, did then and there willfully, unlawfully and feloniously shoot her husband, Felixberto
Latosa y Jaudalso, hitting him on the head, thereby causing the latter to sustain gunshot wound
which directly caused his death.

CONTRARY TO LAW.

Upon arraignment on June 25, 2002, appellant, with the assistance of counsel, pleaded not guilty.
Trial thereafter ensued.

The prosecution’s evidence established the following version:

On February 5, 2002, at around 2:00 in the afternoon, appellant and her husband Major Felixberto
Latosa, Sr. (Felixberto) together with two (2) of their children, Sassymae Latosa (Sassymae) and
Michael Latosa (Michael), were at their house in Fort Bonifacio. Felixberto, Sr. was then
asleep4 when Sassymae saw appellant take Felixberto Sr.’s gun from the cabinet and leave. She
asked her mother where she was going and if she could come along, but appellant refused.5

Moments later, appellant returned and told Sassymae to buy ice cream at the commissary. Appellant
gave her money and asked her to leave.6 After Sassymae left, appellant instructed Michael to follow
his sister, but he refused as he was hungry. Appellant insisted and further told Michael not to make
any noise as his father was sleeping. Nevertheless, appellant went back inside the house and turned
up the volume of the television and the radio to full.7 Shortly after that, she came out again and gave
Michael some money to buy food at the grocery.

Instead of buying food, Michael bought ice candy and returned to the barracks located at the back of
their house. Michael thereupon saw his friend Mac-Mac Nisperos who told him that he saw appellant
running away from their house. Michael did not pay any attention to his friend’s comment, and simply
continued eating his ice candy. Moments later, a certain Sgt. Ramos arrived and asked if something
had happened in their house. Michael replied in the negative then entered their house. At that point,
he saw his father lying on the bed with a hole in the left portion of his head and a gun at his left
hand.
Michael immediately went outside and informed Sgt. Ramos about what happened. Sgt. Ramos told
him that appellant had reported the shooting incident to the Provost Marshall office.8 Then,
Sassymae arrived and saw her father with a bullet wound on his head and a gun near his left hand.9

Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the victim, also testified that
sometime in December 2001, their father told him and his siblings over dinner about a threat to their
lives by a certain Efren Sta. Inez.10

Appellant, testifying on her own behalf, on the other hand claimed that when Felixberto, Sr. woke up,
he asked her to get his service pistol from the cabinet adjacent to their bed. As she was handing the
pistol to him it suddenly fired, hitting Felixberto, Sr. who was still lying down. Shocked, she ran
quickly to Felixberto, Sr.’s office and asked for help.11 She also claimed that when Felixberto, Sr.
asked her for his gun, she was on her way out of the house to follow her children who left for the
market on an errand she had earlier given Sassymae. She claimed that she wanted to drive for them
because it was hot. She ran after them but after a few minutes, when she realized that she did not
have with her the keys to their jeep, she went back to their house. Felixberto, Sr. then asked again
for his gun, and it was then that it fired as she was handing it to him.12

Appellant further described herself as a good mother and a good provider for their six (6) children
whom she raised by herself while Felixberto, Sr. was in Mindanao. She claimed that they testified
against her because they were manipulated by her brother-in-law, Francisco Latosa.13 She denied
that Sassymae saw her holding a gun when she asked her to buy ice cream, alleging that Michael
and Sassymae saw her holding the gun only when she placed it inside the cabinet before they
proceeded to the hospital.14

Appellant also denied her children’s testimony15 that she was having an affair with a certain Col.
Efren Sta. Inez (Sta. Inez), a policeman. She claimed that she first met Sta. Inez when her youngest
brother was killed on June 6, 2001 by unidentified men. Sta. Inez was the one (1) who assisted her.
She was alone at that time since her husband informed her that he could not leave his post in
Mindanao for he had to rush some papers. She allegedly only saw Sta. Inez twice but admitted that
Sta. Inez went to the precinct when he learned of the shooting incident.16 She also denied that she
was terminated from her job at the Philippine Public Safety College due to immorality for having said
affair. She claimed that she was terminated because she had incurred numerous absences from her
work as she grieved the death of her youngest brother and had lost interest in her work after his
death.17

The RTC found appellant guilty beyond reasonable doubt for killing her husband Felixberto, Sr. The
dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, this Court finds the accused SUSAN LATOSA Y CHICO
"GUILTY" beyond reasonable doubt of the crime of parricide under Art. 246 of the Revised Penal
Code as amended by RA 7659 in rel. to Sec. 1[,] 3rd par. PD 1866 as amended by RA 8294 and
Sec. 5, RA 8294 and hereby sentences the said accused to suffer the penalty of reclusion perpetua
and to further indemnify the victim the amount of P50,000 as civil indemnity[,] P50,000 as moral
damages and P25,000 as exemplary damages.

SO ORDERED.18

The RTC held that the claim of accidental shooting was inconsistent with the evidence considering
the location of the gunshot wound, which was at the left temple of Felixberto, Sr., and the fact that
the gun was found near Felixberto, Sr.’s left hand despite his being right-handed. The trial court
found that appellant planned the killing by asking her two (2) children to leave the house and, after
the shooting, placing the gun near the victim’s left hand to suggest that the death was suicide. But
appellant overlooked the fact that Felixberto, Sr. was right-handed. The trial court noted that despite
the grueling cross-examination of the defense counsel, the Latosa children never wavered in their
testimonies about what they knew regarding the circumstances surrounding the shooting incident.
Their testimonies bore the hallmarks of truth as they were consistent on material points. The RTC
found it inconceivable that the children would testify against their own mother or concoct a story of
parricide unless they were impelled by their passion to condemn an injustice done to their father.19

The RTC, in finding appellant guilty, considered the following circumstantial evidence established by
the prosecution: (1) shortly before the shooting, appellant asked her two (2) children to do errands
for her which were not usually asked of them; (2) at the time of the shooting, only the appellant and
Felixberto, Sr. were in the house; (3) appellant was seen running away from the house immediately
after the shooting; (4) when Michael went inside their house, he found his father with a hole in the
head and a gun in his left hand; (5) the medico-legal report showed that the cause of death was
intracranial hemorrhage due to the gunshot wound on the head with the point of entry at the left
temporal region; (6) the Firearms Identification Report concluded that appellant fired two (2) shots;
(7) Felixberto, Sr. was right-handed and the gun was found near his left hand; (8) Sassymae testified
that she heard Sta. Inez tell appellant "bakit mo inamin. Sana pinahawak mo kay Major iyong baril
saka mo pinutok"; (9) appellant’s children testified that they were informed by Felixberto, Sr.
regarding the threat of appellant’s paramour, Sta. Inez, to the whole family; and (10) Francisco
Latosa presented a memorandum showing that appellant was terminated from her teaching job by
reason of immorality.20

On appeal, the CA upheld the decision of the RTC. The CA held that since appellant admitted
having killed her husband albeit allegedly by accident, she has the burden of proving the presence of
the exempting circumstance of accident to relieve herself of criminal responsibility. She must rely on
the strength of her own evidence and not on the weakness of the prosecution, for even if this be
weak, it cannot be disbelieved after the appellant has admitted the killing.21

The CA, however, found appellant’s version of accidental shooting not credible. Citing the case of
People v. Reyes,22 the CA held that appellant’s claim of accidental shooting was negated by the
following facts: (1) a revolver is not prone to accidental firing as pressure on the trigger is necessary
to make the gun fire, cocked or uncocked; and (2) when handing a gun to a person, the barrel or
muzzle is never pointed to that person. In this case, appellant held the gun in one (1) hand and
extended it towards her husband who was still lying in bed. Assuming that appellant was not aware
of the basic firearm safety rule that the firearm’s muzzle is never pointed to a person, she failed to
explain why the gun would accidentally fire, when it should not have fired unless there was pressure
on the trigger. The location of Felixberto, Sr.’s wound also showed that the shooting was not
accidental. Appellant did not dispute that Felixberto, Sr. was lying down during the shooting and that
after the incident, the gun was found near his left hand. The CA found that it was contrary to human
nature that a newly awakened military man would suddenly ask his wife, who was busy doing other
things, to bring his firearm, and patiently wait for her to come back to their house, when the gun was
just inside an adjacent cabinet only two (2) meters away from his bed.23

The dispositive portion of the CA decision reads as follows:

WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Pasig City,
Branch 159, in Criminal Case No. 122621-H finding SUSAN LATOSA y CHICO guilty beyond
reasonable doubt of the crime of parricide under Article 246 of the Revised Penal Code and
sentencing her to suffer the penalty of reclusion perpetua and ordering her to pay the heirs of
Felixberto Latosa the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and
P25,000.00 as exemplary damages is AFFIRMED.
SO ORDERED.24

Undaunted, appellant filed a Notice of Appeal on May 12, 2008.25

Appellant argues that the circumstantial evidence presented by the prosecution was insufficient to
prove that she intentionally killed her husband. She insists that the gun fired accidentally while she
was giving it to Felixberto, Sr. Since she had no experience in handling firearms, she was not able to
foresee that it would fire accidentally and hit her husband. After her husband was hit, she
immediately rushed to his office and asked for assistance.26

The only issue the Court has to resolve in this case is whether the exempting circumstance of
accident was established by appellant.

The basis of appellant’s defense of accidental shooting is Article 12, paragraph 4 of the Revised
Penal Code, as amended, which provides:

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

xxxx

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

Thus, it was incumbent upon appellant to prove with clear and convincing evidence, the following
essential requisites for the exempting circumstance of accident, to wit:

1. She was performing a lawful act;

2. With due care;

3. She caused the injury to her husband by mere accident;

4. Without fault or intention of causing it.27

To prove the circumstance she must rely on the strength of her own evidence and not on the
weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the
accused has admitted the killing.28

However, by no stretch of imagination could the pointing of the gun towards her husband’s head and
pulling the trigger be considered as performing a lawful act with due care. As correctly found by the
CA, which we quote in full:

Appellant’s version that she "accidentally shot" her husband is not credible. Appellant’s manner of
carrying the caliber .45 pistol negates her claim of "due care" in the performance of an act. The
location of the wound sustained by the victim shows that the shooting was not merely accidental.
The victim was lying down and the fact that the gun was found near his left hand was not directly
disputed by her. We find it contrary to human nature that a newly awakened military man would
suddenly ask his wife for his firearm, and even patiently wait for her return to the house, when the
said firearm was just inside the cabinet which, according to appellant, was just about two meters
away from his bed.
xxxx

In the case at bench, appellant held the gun in one hand and extended it towards her husband who
was still lying in bed. Assuming arguendo that appellant has never learned how to fire a gun and was
merely handing the firearm over to the deceased, the muzzle is never pointed to a person, a basic
firearms safety rule which appellant is deemed to have already known since she admitted, during
trial, that she sometimes handed over the gun to her husband. Assuming further that she was not
aware of this basic rule, it needed explaining why the gun would accidentally fire, when it should not,
unless there was pressure on the trigger.29

There is no merit in appellant’s contention that the prosecution failed to prove by circumstantial
evidence her motive in killing her husband. Intent to kill and not motive is the essential element of
the offense on which her conviction rests. Evidence to prove intent to kill in crimes against persons
may consist, inter alia, in the means used by the malefactors, the nature, location and number of
wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately
after the killing of the victim, the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to
kill is presumed.30

In the instant case, the following circumstantial evidence considered by the RTC and affirmed by the
CA satisfactorily established appellant’s intent to kill her husband and sustained her conviction for
the crime, to wit:

The prosecution established the following circumstantial evidence:

(1) Susan Latosa, the accused, asked her twins to do errands for her. She first asked
Sassymae to go to Commissary to buy ice cream, thereafter, she asked Michael to follow his
sister at the Commissary which according to the prosecution witnesses was not the usual
thing the accused would do;

(2) Thereafter, it was only the accused and the victim who were left alone in the house;

(3) After the witness Michael, son of the accused and the victim left and proceeded at the
barracks located at the back of their house, Susan Latosa was seen running away from the
house by Michael’s friend named Macmac;

(4) Immediately thereafter, Michael Latosa went inside the room of their barracks and saw
his father with sort of a hole in the head, blood on the nose and had a gun in his left hand
(TSN, May 5, 2003, pp. 7-8, 12-13);

(5) The cause of death of the victim Felixberto Latosa was intracranial hemorrhage due to
gunshot wound of the head (per Medico-legal Report No. M-052-2002, Exh. P);

(6) Susan Latosa’s paraffin test yielded positive result for the presence of gunpowder nitrate
in her right hand;

xxx

(8) The point of entry of the gunshot wound found on the victim was located at the left
temporal region as evidenced by Medico Legal Report No. M-052-2002 (Exhibit P);
 (9) The victim was a right-handed and the gun was found on the latter’s left hand;

(10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell] her mother, …"bakit mo
inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok." (TSN, May 19, 2002, p.
13); and

(11) The children testified that they were informed by the victim regarding the threat of Sta.
Inez to the whole family who alleged[ly] has an amorous relationship with their mother.
Francisco Latosa presented a memorandum that accused was terminated from her teaching
job by reason of immorality.311avvphi1

Moreover, the Court finds no cogent reason to review much less depart now from the findings of the
RTC as affirmed by the CA that appellant’s version is undeserving of credence. It is doctrinally
settled that the assessments of the credibility of witnesses and their testimonies is a matter best
undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand
and to note their demeanor, conduct and attitude under grilling examination. These are the most
significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in
the face of conflicting testimonies. Through its observations during the entire proceedings, the trial
court can be expected to determine, with reasonable discretion, whose testimony to accept and
which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on
appeal unless some facts or circumstances of weight have been overlooked, misapprehended or
misinterpreted so as to materially affect the disposition of the case.32 We find none in this case.

One last note. On the matter of damages, the CA awarded exemplary damages in the amount of
₱25,000.00. We increase the award to ₱30,000.00 in light of prevailing jurisprudence33 fixing the
award of exemplary damages to said amount.

WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The April 23, 2008 Decision of
the Court of Appeals in CA-G.R. CR-H.C. No. 02192 is hereby AFFIRMED with MODIFICATION.
The amount of exemplary damages is increased to ₱30,000.00.

With costs against the accused-appellant.

G.R. No. L-6082 March 18, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
ISIDRO VICENTILLO, defendant-appellant.

C.W. Ney for appellant.

Attorney-General Villamor for appellee.

CARSON, J.:

The defendant in this case was found guilty in the court below of the crime of "illegal and arbitrary
detention" of the complaining witness for a period of three days, and sentenced to pay a fine of 625
pesetas, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.

We are of opinion that under all the circumstances of this case there can be no doubt of the lawful
authority of the defendant, in the exercise of his functions as municipal president, to make arrest of
the complaining witness which resulted in his alleged unlawful detention. As we understand the
evidence, the alleged offense with which the complaining witness in this case was charged was
committed by him in the presence of the municipal president, who must be held to have had all the
usual powers of a police officer for the making of arrest without warrant, under the doctrine laid down
in the case of U.S. vs. Fortaleza (12 Phil. Rep., 472).

The judgment of conviction of the court below must therefore be reversed, unless the evidence
discloses that having made the arrest, the defendant arbitrarily and without legal authority, as it is
alleged, cause the complaining witness to be detained for a period of three days without having him
brought before the proper judicial authority for the investigation and trial of the charge on which he
was arrested. But so far as we can gather from the extremely meagre record in this case the
arrested man was in fact brought before a justice of the peace as soon as "practicable" after his
arrest. True, three days were expended in doing, so, but it was conclusively proven at the trial that at
the time of the arrest neither the local justice of the peace nor his auxiliary were in the municipality,
and to reach the justice of the peace of either of the two adjoining municipalities, it was necessary to
take a long journey by boat. The evidence discloses, moreover, that with all practicable dispatch, the
prisoner was forwarded first to one and then to the other of the adjoining municipalities for trial, the
failure to secure trial on the first occasion being due to the fact that the written complaint, which was
intrusted to the policeman in charge of the prisoner, was either lost or stolen. It does not appear why
the prisoner was not sent to the same municipality on both occasions, but in the absence of proof we
must assume that in this respect the officers in charge were controlled by local conditions, changes
in the weather, or the like, which, as appears from the uncontradicted evidence of record, made the
journey by boats safer and more commodious sometimes to one and sometimes to the other of the
two adjoining municipalities.

It may be that the defendant was not friendly to the arrested man, and that he was not sorry to see
him exposed to considerable inconvenience and delay in the proceedings incident to his trial, but
there is nothing in this record upon which to base a finding that his defendant caused the arrest and
the subsequent detention of the prisoner otherwise than in the due performance of his official duties;
and there can be no doubt of his lawfully authority in the premises. The trial judge lays great stress
upon the trivial nature of the offense for which the arrest was made, but keeping in mind the fact that
there was no judicial officer in the remote community where the incident occurred at the time of the
arrest, and no certainty of the early return of the absent justice of the peace, or his auxiliary, we are
not prepared to hold, in the absence of all the evidence on this point that in a particular case of a
defiance of local authority by the willful violation of a local ordinance, it was not necessary, or at least
expedient, to make an arrest and send the offender forthwith to the justice of the peace of a
neighboring municipality, if only to convince all would-be offenders that the forces of law and order
were supreme, even in the absence of the local municipal judicial officers.

The judgment of the lower court convicting and sentencing the defendant must be reversed and he
is hereby acquitted of the offense with which he is charged, with the costs in both instances de
oficio. So ordered.

Arellano, C.J., Mapa , Moreland, and Trent, JJ., concur.