G.R. No. L-3002
May 23, 1951
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANICETO MARTIN, defendant-appellant.
E. L. Peralta for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon L. Avanceña for appellee.
JUGO, J.:
Aniceto Martin was accused of the complex crime of parricide with abortion before the Court of First
Instance of Ilocos Norte. After trial he was acquitted of abortion, but found guilty of parricide and was
sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the penalty of
deceased in the sum of P2,000, with the accessory penalties of the law, and to pay the costs. He
appealed.
We shall not consider the charged of abortion as he was acquitted of it, confining our review to that
of parricide.
The defendant, twenty-eight years old, a farmer, was living in the barrio No. 12 of the municipality of
Laoag, Ilocos Norte. He courted the girl Laura Liz of the same barrio for several months and was
accepted. They had sexual intercourse before marriage and she became pregnant. In an advanced
stage of pregnancy, she came to live with the family of the family of the defendant and demanded
marriage, which was duly solemnized on June 7, 1948, and they continued to live as husband and
wife.
Between four and five o' clock in the morning of August 1, 1948, the corpse of Laura was found
inside the family toilet, which was at a certain distance from their home, with a maguey rope, six
meters long and one centimeter in diameter, around her neck, leaving a circular mark around it with
the exception of the nape which was unmarked undoubtedly due to her long and thick hair covering
it. The corpse was first seen by Anselma Martin, sister of the accused, who was living in the same
house, and Saturnino Tumaneng, brother-in-law of Laura, who happened to be passing by. The
defendant was absent from home.
The barrio lieutenant immediately reported the matter to the chief of police who, accompanied by a
policeman, came to the barrio that same morning to make an investigation. When the chief of police
arrived, the defendant had not yet returned home. A relative looked for him, finding in a farm which
was at considerable distance from the defendants house, and brought him to the latter. Upon being
interrogated by the police officer, the defendant at first denied any knowledge of the event, but later
promised to make a statement in the municipal building.
The police took possession of the rope and put the defendant in a jeep bound for the municipal
building. There the defendant made a confession in the Ilocano language, which he signed and
swore to at about noon before the provincial fiscal at the latter's house. Said confession, as
translated into English, reads as follows:
I, Aniceto Martin, married, 27 years old, resident of Bo. No. 12, Laoag, Ilocos Norte, after
having been sworn to in accordance with law, do hereby declare the following:
Policeman: — Why are you here in the office of the Chief of Police of Laoag, Ilocos Norte,
this 1st day of August, 1948?
Aniceto: — I am here, sir, in the office of the Chief of Police of Laoag as I came to report
what I did to my wife, Laura Luiz, because I killed her and the killing was perpetrated as
follows:
That at dawn, today August 1, 1948, at about 4 o' clock, I awoke and my wife also awoke
and she said to, "Why is it that you seem to have no interest in me?, and I answered her I do
not have interest in you and I did not love you with intent to marry you because I am not the
author of your pregnancy; again she said to me, "Why is it that you consented to be wedded
with me if you did not love me? and in answer, I again told her that I merely consented to be
married to you, because otherwise, you would file an action against me, I then went down to
our closet west of our house at barrio No. 12, Laoag Ilocos Norte, for major personal
necessity, and my wife, Laura Luiz, came after me to the toilet with a rope in her hands and,
as she approached me while I was in the very act of ejecting waste matters inside the toilet
she placed around my neck the rope which she had in her hands, and immediately, I gripped
the rope and took it off and I said, "Why did you do this? my wife also said, "Yes because
you do not love me." I snatched the rope from my wife and in turn I placed same around her
neck, and in that position I tightened the rope with my two hands and when my wife, Laura
Luiz, died I laid her then and there at the foot of the door of our closet with head towards the
east. Soon after my wife expired I left her already and I proceeded to the country where we
use to go, barrio Barit, No. 55, Laoag, west of the barrio school threat.
Q. How did you place the rope around the neck of your wife Laura Luiz, for which reason she
died? — A. I wound the rope one turn around the neck of my wife, Laura Luiz, and my two
hands tightened the rope and when she expired I laid her at the foot of the door of the toilet
and then I went away.
Q. The rope which you used in throttling your wife, where is it?. — A. It was just laid down at
he place where she was, sir.
Q. Who knows about and who saw what had you done to your wife which caused her death?
— A. Nobody knows about it and saw it, sir, I, alone.
Q. Is it not true that the reason why you killed your wife was that you made a preconcerted
plan with your sister, Anselma Martin and your mother, Ciriaca Tomas to commit the crime ?
— A. No, sir, I have no companion, I am alone.
Q. Why did you treat your wife in that way? — A. I became obfuscated, is, when she placed
the rope around my neck, and in turn, I tried the same in her person but, in so trying she
died.
Q. Are you, therefore, very positive that the death of your wife, Laura Luiz, was caused by
you in having tightened the rope that was wound around her neck? — A. Yes, sir, that was
the cause of her death, I have no doubt that I was the one who killed my wife, Laura Luiz,
today August 1, 1948. I killed her in our toilet at barrio No. 12 Laoag.
Q. Have you some more to say ?- A. I say, no more, sir.
Q. Were you, in any manner compelled, threatened, maltreated or remunerated by
somebody in having made this declaration of yours? — A. Absolutely, there was none, sir
that compelled me, but I spontaneously made my declaration above, it being the whole truth
that I committed against my wife, Laura Luiz.
Q. Are you willing to sign your name at the bottom and at the margin of your declaration ? —
A. Willingly, sir, because said declaration is what in truth and in fact I did, and in testimony
hereof, I sign my name in the presence of attending witnesses this 1st day of August, 1948,
at Laoag, Ilocos Norte.
Dr. Roman de la Cuesta, resident physician of the Ilocos Norte Provincial Hospital, performed an
autopsy on the corpse of Laura and issued a certificate which reads as follows:
TO WHOM IT MAY CONCERN:
This is to certify that the undersigned performed an autopsy on the person one Laura Luiz
Martin, on August 1, 1948, at 9 o'clock a.m. at the request of the Chief of Police of Laoag,
Ilocos Norte, with the following findings:
(a) Acute dilatation, heart.
(b) Spleen, enlarged, malarial.
(c) Pregnancy, 8 month, female fetus.
(d) Almost circular contusion around the neck, but absent in the occipital region.
(e) No evidence of strangulation in the lungs.
In the opinion of the undersigned the cause of death was acute dilatation of the heart. (Heart
failure.)
Dr. de la Cuesta testified that Laura must have died five or six hours before he examined her corpse
at about nine o'clock in the morning of August 1; that the cause of death was heart failure due to
fright or shock; that the deceased was eight months pregnant at the time of her death; that there was
no expulsion of the fetus; and that the foetus must have alive at the time of the death of Laura.
At the trial the defendant testified that while he was moving his bowels in the toilet with his back
toward the door of the same, he left that a rope was being put around his neck from behind. He
forthwith snatched the rope and wound it around the neck of the person who had attempted to
strange him upon knowing who that person was. The person fell and upon looking at the same he
found that it was his wife.
This version cannot be believed, for although it was dark, his wife must have shouted or given some
sign of who she was when she felt the rope tightening around her neck. Furthermore, this version is
against that freely given by him in his spontaneous confession made before the chief of police and
sworn to before the provincial fiscal. There is no reason for supposing that either the chief of police
or the provincial fiscal had any motive for wringing from him a forced false confession.
As to the motive of the defendant, it may be found in the fact that the defendant married Laura
unwillingly due to fear being sued, because he was suspected that he was not responsible for her
pregnancy.
The appellant contends that the death of Laura was not due to the strangling, but to her heart
disease. It should be noted, however that the heart failure was due to the fright or shock caused by
the strangling, and consequently, the defendant was responsible for the death, notwithstanding the
fact that the victim was already sick. Had not the defendant strangled the deceased, the latter,
notwithstanding her illness, would not have died. In other words, the defendant directly caused her
death.
In the case of People vs. Reyes (61 Phil. 341, 343,) the Court held:
. . . A person is responsible for the consequences of his criminal act and even if the
deceased had been shown to be suffering from a diseased heart (which was not shown),
appellants assault being the proximate cause of the death, he would be responsible.
(U.S. vs. Luciano, 2 Phil., 96; U.S. vs. Lugo & Lugo, 8 Phil., 80; U.S. vs. Brobst, 14 Phil. 310;
U.S. vs. Rodriguez, 23 Phil 22.)
In the case of U.S. vs. Brobst (14 Phil. 310), the following doctrine was established:
Where death results as the direct consequences of the use of illegal violence, the mere fact
that the diseased or weakened condition of the injured person contributed to his death, does
not relieve the illegal aggressor of criminal responsibility. (Syllabus)
The trial court considered two mitigating circumstances in favor of the defendant: (1) that of unlawful
aggression on the part of the deceased without any sufficient provocation on the part of the
defendant — which in this case is equivalent to incomplete self-defense on the part of the defendant,
he should not have wound it around her neck and tightened it — and (2) the lack of instruction,
without any aggravating circumstances to offset them, the penalty next lower in the degree should
be imposed, which is that of reclusion temporal.
In view of the foregoing, the judgment appealed from is modified by imposing upon the appellant the
penalty of from twelve (12) years of prision mayor to twenty (20) years of reclusion temporal, with the
accessory penalties of the law, to indemnify the heirs of the deceased in the sum of P6,000, without
subsidiary imprisonment in case on insolvency, and to pay the costs. It is so ordered.
Paras, C.J., Feria, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.
G.R. No. 94490 August 6, 1992
JOSE DE LUNA, petitioner,
vs.
THE COURT OF APPEALS, HON. SANTIAGO G. MALIWANAG, RTC EXECUTIVE JUDGE,
BRANCH 71, IBA, ZAMBALES; JUAN DIMAANO, JR. and GERINO DOBLE, respondents.
Mario O. Leyco for private respondents.
NOCON, J.:
Petition for review on certiorari by petitioner Jose de Luna from the decision of the Court of Appeals
in CA-G.R. SP No. 12922 1 which affirmed the reversal made by the Regional Trial Court of Iba,
Zambales, Branch LXXI, of the decision of the Municipal Circuit Trial Court of Botolan, Zambales in a
forcible entry case filed by petitioner against several persons, including private respondents Juan
Dimaano, Jr. and Gerino Doble.
In his complaint filed on February 7, 1972 before the Municipal Trial Court, petitioner alleged that he
is the owner of an unregistered parcel of land with an area of 30,856 square meters, located in
Babon San Juan, Botolan, Zambales, since 1938; that on December 18 and 19, 1971, defendants
Octavio Daclison, Oscar Crispin, and private respondents Juan Dimaano, Jr. and Gerino Doble
entered the land and began plowing it; and that said defendants fenced the land with barbed wire on
January 15 and 16, 1972 and began planting sugar cane on February 5 and 6, 1972, despite his
objections. Petitioners prayed that the defendants be ordered to vacate the land and pay him the
amount of P45.00 monthly per hectare until possession thereof would be transferred to him, with
litigation expenses and costs.
In their answer, the defendants denied the material allegations of the complaint. Declison, Crispin
and Doble alleged as a special and affirmative defense that they have not entered nor occupied the
disputed property.
For his part, defendant Dimaano, Jr. raised as his special and affirmative defense that petitioner was
not the owner of the property, alleging instead that the owner thereof was Agustin Dequiña, Jr.,
Dimaano, Jr. contended that the property was originally owned by Agustin Dequiña, Sr., who had
declared the property in his name for taxation purposes in 1906. Upon the death of Agustin Dequiña,
Sr. in 1945, he was succeeded by his son Agustin Dequiña, Jr., who possessed the property from
1945 up to February 1972, when the same was leased to defendant Dimaano, Jr., Agustin Dequiña,
Sr. happens to be the uncle of petitioner, the former being the elder brother of the latter's mother,
Apolonia Dequiña.
After trial on the merits, judgment was rendered in favor of petitioner, with the trial court ordering the
defendants or persons acting for and in their behalf to restore to petitioner possession of the
property. In addition, respondent Dimaano, Jr. was ordered to pay petitioner the amounts of
P12,312.00 representing actual damages and P5,000.00 as costs of the suit.
The defendants appealed to the Regional Trial Court of Iba, Zambales, which reversed the decision
of the inferior court and dismissed the complaint. Petitioner brought the case on a petition for review
to the Court of Appeals, which affirmed the judgment of the Regional Trial Court.
Aggrieved, petitioner, elevated the case to Us, alleging that the Court of Appeals and the Regional
Trial Court erred in determining the ownership of the disputed property in an action for ejectment,
and in concluding that Agustin Dequiña, Jr. is the owner of the property.
We find the petition impressed with merit.
Well-established is the rule in ejectment cases that the only issue to be resolved therein is who is
entitled to the physical or material possession of the premises, or possession de facto, independent
of any claim of ownership that either party may set forth in their pleadings. 2 If petitioner can prove
prior possession in himself, he may recover such possession from even the owner himself .
Whatever may be the character of his prior possession, if he has in is favor priority of time, he has
the security that entitles him to stay on the property until he is lawfully ejected by a person having a
better right by either accion publiciana or accion reindivicatoria. 3
However, where the question of possession can not be resolved without deciding the question of
ownership, an inferior court has the power to resolve the question of ownership but only insofar as to
determine the issue of possession. 4
In the case at bar, the inferior court acted correctly in receiving evidence regarding the ownership of
the disputed property, inasmuch as respondent Dimaano, Jr. claimed to possess the property by
virtue of a lease agreement with the alleged owner thereof, Agustin Dequiña, Jr.
Be that as it may, the respondent Court erred in upholding the Regional Trial Court regarding the
conclusion that the subject property is owned by Agustin Dequiña, Jr. and therefore respondent
Dimaano, Jr. is entitled to possess the same.
First of all, petitioner has shown that he had prior possession of the property. The prior possession
of petitioner was established by the testimony of his witnesses, notably of his tenant Epigenio Dilag
and Victor dela Cruz. While petitioner admitted that he declared the property for taxation purposes
only in 1957, he had possessed the property beginning 1953 at the very latest, when he leased the
same to Epigenio Dilag, who in turn possessed the same until respondent Dimaano, Jr. entered
upon the property in 1972. The possession of the property by Dilag since 1953 redounds to the
benefit of petitioner, since possession may be exercised in one's own name or in that of another. 5
Moreover, there is evidence to the effect that petitioner possessed the property even earlier than
1953. Petitioner's witness, Victor dela Cruz, who lived about 400 meters from the land in
controversy, testified that he had witnessed the delivery of the of property to the petitioner and his
mother Apolonia Dequiña by Agustin Dequiña, Sr. in 1938, when they and their brothers and sisters
petitioned among themselves the properties of their deceased parents. He further testified that he
saw petitioner and his mother cultivate the land from 1938 to 1941, and that he leased the land from
them from 1944 to 1952. 6
On the other hand, respondent Dimaano, Jr. had failed to prove that Agustin Dequiña, Jr. possessed
the property prior to his possession, much less the ownership of the latter over said property. While
Agustin Dequiña, Jr. testified that he is a co-owner of the disputed property, there is nothing to
support this self-serving claim; neither does his testimony support the defense's theory that he had
prior possession of the property. The mere fact that Agustin Dequiña, Sr. had declared the subject
for taxation purposes from 1908 up to 1945 did not constitute possession thereof, 7 nor is it proof of
ownership 8 in the absence of Dequiña, Jr.'s actual possession of said property.
Therefore, the Court of Appeals erred in ruling that Agustin Dequiña, Jr. was the owner of the
disputed property since there is no evidence whatsoever to support such a conclusion.
However, it goes without saying that this case does not bar petitioner and Agustin Dequiña, Jr. from
resolving the issue of ownership over the disputed property in an appropriate proceeding.
WHEREFORE, the decision appealed from hereby REVERSED and SET ASIDE. The decision of
the Municipal Trial Court of Botolan, Zambales is hereby REINSTATED and AFFIRMED. Costs
against private respondents.
SO ORDERED.
G.R. No. L-16443
March 21, 1921
THE UNITED STATES, plaintiff-appellee,
vs.
MARTINA RIVERA, defendant-appellant.
Andres Asprer for appellant.
Acting Attorney-General Feria for appellee.
MALCOLM, J.:
When Leona Laciste endeavored to set fire to the house of Martina Rivera in which the two small
children of the latter were sleeping, the two women grappled and Leona Laciste was boloed to death
by Martina Rivera. As a result, a criminal prosecution for murder was instituted in the Court of First
Instance of La Union against Martina Rivera and after due trial she was found guilty of the lesser
crime of homicide and was sentenced to eight years and one day of prison mayor, with the
accessory penalties provided by article 61 of the Penal Code, to indemnify the heirs of the deceased
in the sum of P500, and to pay the costs.
Two questions are raised by the appeal. The one more fundamental in nature revolves about the
point of whether or not the defendant should be exempted from all responsibility because of having
acted in defense of her person, her rights, and her descendants. The second question is incidental in
nature and relates to the finding of the court that the qualifying circumstance of cruelty, because of
having deliberately and inhumanly increase the sufferings of the offended party, was present.
Article 8 of the Penal Code exempts any one from criminal liability who acts in defense of his person
or rights, provided that the following circumstances concur: (1) Unlawful aggression; (2) reasonable
necessity for the means employed to prevent or repel it; (3) lack of sufficient provocation on the part
of the person defending himself. Anyone who acts in defense of the person of his descendant is
similarly exempted. In our view of the case, the first and last requisites above-mentioned concur, but
the second is lacking.
A man's house is his castle. When a person is attacked in his own house, he as a right to protect it,
and those within it, from the intrusion or attack. He may repel force by force in defense of person,
habitation, or property, against one who manifestly intends or endeavors by violence or surprise to
commit a felony, such as arson, upon either. In such case one is not obliged to retreat, but may
pursue his adversary until he has secured himself from danger. (People vs. Lewis [1897], 117 Cal.,
186, citing East's Please of the Crown, p. 271, and Foster's Crown Cases, chapter 3, p. 273, where
the rule is well stated.)
In this instance, the accused acted in defense of her person, her home, and her children. The crime
of arson was about to be committed, and there was present the element of danger to the occupants
of the habitation. But there was not present any reasonable necessity for killing the assailant. The
accused proceeded beyond the limits of immunity when, after the assailant was out of the house,
and prostrate on the ground, she persisted in wounding her no less than fourteen times. The case is,
consequently, covered by article 86 of the Penal Code.
The lower court committed an error in taking into consideration the qualifying circumstance of
cruelty. The number of wounds on the body of a deceased are not conclusive evidence of the
presence of this circumstance. (U.S. vs. Palermo [1915], 31 Phil., 425; decision of the Supreme
court of Spain of December 9, 1989.) On the contrary, the evidence discloses more nearly the
mitigating circumstance of passion and obfuscation.
It is our unmistakable duty to find the defendant guilty of homicide. It is, however, just as certainly
our duty to view with leniency the action of the defendant in view of the provocative nature of the
aggression. The provisions of article 86 of the Penal Code permit of the exercise of considerable
discretion by the courts.
Judgment is affirmed, with the modification that in place of eight years and one day of prison mayor,
the defendant and appellant shall be sentenced to three years of prison correccional, and shall, in
addition, pay the costs of this instance. So ordered.
Mapa, C.J., Araullo, Street and Villamor, JJ., concur.
G.R. No. L-58506 November 19, 1982
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NILO DE JESUS and WILFREDO YALONG, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Jacinto D. Jimenez & Emilio G. Pineda for defendants-appellants.
DE CASTRO, J.:
In an information filed with the Court of First Instance of Quezon City, Nilo de Jesus and Wilfredo
Yalong were charged with Murder. One Peter Doe alias Pepito, alias Pitong was also charged in the
same information, but has so far not been brought to trial. Only Nilo de Jesus and Wilfredo Yalong
were tried, and thereafter, convicted and sentenced to reclusion perpetual, and to indemnify the
heirs of the deceased in the sum of P15,560.00, with the accessory penalties, and to pay
proportionate costs.
Both de Jesus and Yalong appealed, firing separate briefs, but the Solicitor General filed only one
consolidated brief for the appellee.
Only one eye-witness, Fernando de los Santos, testified for the prosecution, and together with the
examining physician, Dr. Nieto Salvador of the NBI, established the following facts, as quoted from
the People's brief:
In the afternoon of May 21, 1978, Fernando de los Santos was taking a nap in their
house at Aspere Avenue, Tatalon Estate, Quezon City. At about 2:00 o'clock that
afternoon, he was awakened by the shout of a small boy who informed him that his
father, Feliciano de los Santos, was engaged in a quarrel. Forthwith, he proceeded to
the scene of the quarrel at nearby Araneta Avenue. Upon arriving thereat he saw
Yalong in the act of aiming a gun at his father. Instinctively, Fernando shouted at his
father to run, but the latter was fired at by Yalong before he could do so. Then, while
Fernando's father was still on his feet, appellant de Jesus suddenly grabbed the gun
from Yalong and himself fired at the victim once, causing the latter to fall as he was
about to run away (pp. 5-9, 13-16, tsn, Dec. 28, 1978; pp. 5-12, April 30, 1979).
Thereafter, both appellants ran away; while Fernando immediately went home to look
for his brother, Pat. Narciso de los Santos. When the two brothers returned to the
crime scene, Fernando could no longer feel the pulse of his father. Forthwith, Narciso
left to hunt for the killers; while Fernando reported the incident to the police
authorities, to whom he gave the names of the suspects and a verbal account of the
incident (pp. 9-11, 21-23, tsn, Dec. 28, 1978; pp. 18" 23-25, 42-45, tsn, April 30,
1979).
Meanwhile, a cousin of the two brothers, Baltazar de los Santos, brought the victim
to the hospital, but the latter was pronounced dead upon arrival. The cadaver was
then autopsied. Dr. Nieto Salvador, NBI medico-legal officer, conducted the post
mortem examination and issued a necropsy report (Exhibit "B"). His findings as to the
house of death of the victim was "hemorrhage, acute, severe, secondary to gunshot
wound, chest." According to the doctor, the victim suffered two bullet wounds, one on
the left side of the chest perforating the atrium of the heart, and the other on the right
hand. The bullet (Exhibit "D") which pierced the chest, was found by the doctor
imbedded at the back right side of the body (pp. 12-13, 17, tsn, April 30, 1979; pp.
20-29, tsn, May 18, 1979). This was the fatal bullet.
Although the assailants have been Identified, prosecution of the case could not
proceed because the suspects went into hiding to escape arrest. In the case of
appellant de Jesus, he stayed for one week in the house of a friend in the Tatalon
Estate, then proceeded to the province of Isabela. He was arrested by the P.C. only
on October 14, 1978 while in Pangasinan buying smoked fish (pp. 22-26, tsn, Jan. 4,
1980). When de Jesus was brought to Camp Crame in Quezon City, he was
confronted by Fernando who readily Identified him as one of the killers of his father,
and then gave a written statement before Det. Fluto Casayuran (Exhibit "A") wherein
he narrated his account of the incident of May 21, 1978 (pp. 24-29, tsn, Aug. 3,
1979). For his part, appellant Yalong proceeded to hide at his uncle's house in
Lardizabal St., Sampaloc, Manila for about three weeks. From there, he proceeded
to Quezon Province, then to Iloilo and Zamboanga before returning to Lardizabal
Street, where he was arrested on February 22, 1979. After being apprised of his
constitutional right, appellant Yalong voluntarily gave an extrajudicial statement
(Exhibit "H") wherein he implicated his co- accused Nilo de Jesus for the death of the
victim on May 21, 1978 (pp. 8- 11, 15-17, tsn, May 20, 1980). 1
The decision was rendered by Judge Jaime Lantin, after the case was heard wholly by Judge Sergio
Apostol who was later appointed City Fiscal. For a fair and just judgment to De arrived at, the
defense version should likewise be set forth herein, and as stated in the decision appealed from, is,
for appellant de Jesus, as follows:
Accused Nilo de Jesus denied the imputation. His defense is to the effect that on the
afternoon in question he went to the house of Feliciano de los Santos looking for one
Joe (Pitong) Napucao who had invited him (Nilo) to join Joe in his work; that he did
not find Napucao in the house; that he was invited by Feliciano de los Santos to join
other persons having drinks; that thereafter he saw Feliciano de los Santos sleeping
on a table drunk; that when he bade goodbye as he wanted to go home, he was
asked by one Lito to stay and drink with them until Feliciano de los Santos would
wake up; that when he insisted that he should leave, Lito got mad and tried to box
him; that when Feliciano de los Santos woke up, he punched him, but he was able to
evade the blow; that they were pacified, after which he went home; that after taking
his lunch, he went to a nearby store to buy cigarettes; that after a while Napucao
arrived and asked him what happened between him and Feliciano de los Santos; that
Wilfredo Yalong arrived; that after a few minutes, Feliciano de los Santos drunk, also
arrived, holding a dagger and began to attack him (Nilo de Jesus); that Napucao held
Feliciano de los Santos; that the latter extricating himself from the hold, proceeded to
attack him, but since he was protected by a palo china wood, Feliciano de los Santos
instead stabbed Yalong with the dagger; that he heard two shots from the gun held
by Wilfedo Yalong, that Feliciano de los Santos ran away only to fall down on his
tracks; that since Wilfredo Yalong and Napucao already left, he was told by people
who had gathered at the scene that he should also leave for he might be suspected
of having shot the victim; that he stayed in a friend's house at Tatalon, and after a
week he left for Isabela and stayed there for four months; that in Pangasinan, he was
arrested by PC soldiers and brought to Camp Crame; and that Fernando de los
Santos was not there to witness the shooting incident. 2
For appellant Yalong, We also quote from the appealed decision the following.
On the other hand, accused Wilfredo Yalong interposed self-defense. His defense is
that in the afternoon in question, after coming from a baptismal party, he dropped by
the store of Remy to buy cigarettes and pop-cola; that Feliciano de los Santos (Mang
Siano) arrived armed with a bayonet, shouting, "putang ina mo Nilo (referring to
accused Nilo de Jesus), bakit mo ako pinalo ng bote;" that Nilo de Jesus answered,
"putang ina mo Siano, bakit mo naman ako sinuntok;" that Feliciano de los Santos
lunged at Nilo de Jesus with the bayonet; that one Pitong intervened and tried to
pacify Feliciano de los Santos, saying "pare that is enough. Nilo has done nothing
wrong to you;" that Feliciano de los Santos again tried to attack, but Pitong blocked
his way and hold him; that extricating himself from Pitong, Feliciano de los Santos
ran towards him (accused), and tried to stab him; that he pulled out his gun from his
waist and fired two shots at Feliciano de los Santos; that Feliciano de los Santos ran
and fell to the ground; that he went home, then to the house of his uncle at
Lardizabal St., Sampaloc, Manila, and after staying there for three weeks he went to
Quezon Province, to Iloilo and to Zamboanga; that he hid because the son of the
deceased, Pat. Narciso de los Santos of the Quezon City Police, was looking for him;
that thereafter, he was arrested at Lardizabal St., Sampaloc, by Pat. Gurat; that he
was brought to a bodega and then taken to the office of the CID at Sikatuna, Quezon
City; that he was investigated and gave his written statement; that his statement
given to the authorities was not true, as he only impleaded accused Nilo de Jesus
out of spite because the latter was pinning him down; that two days after the incident,
his friend Rodolfo Pornales, now deceased, got back the gun from him. 3
What would instantly strike attention is the variance in the testimony of the lone state eye-witness,
on one hand, and the two appellants on the other, as to who fired the fatal shot. According to the
state witness Fernando de los Santos, it was appellant de Jesus who fired the fatal shot, when he
grabbed the gun from appellant Yalong after the latter had shot the deceased but hitting him only on
the right hand. Both appellants are one in stating that only Yalong fired the two shots that hit the
deceased on two different parts of the body.
The Court finds more convincing the testimony of the appellants that only Yalong fired the two shots
that hit the deceased, one fatally on the breast. Yalong admitted this to be the fact. De Jesus'
testimony serves to corroborate Yalong's admission which, from its damaging effect on the declarant
Yalong, makes it very reliable and therefore convincing.
The foregoing observation places the whole testimony of state witness de los Santos in grave doubt.
The motive for his committing the falsehood is manifest. It was de Jesus who had a quarrel with his
deceased father and struck the latter with a bottle on the head moments before the shooting. De
Jesus had to be made a co-author in fact, the main culprit, of the killing. Hence, the testimony of de
lo Santos clearly fabricated that de Jesus grabbed the gun from Yalong after the latter had fired the
first shot, and then he (de Jesus) fired the second shot that was fatal.
The fabricated nature of the testimony of state witness de los Santos becomes more evident in the
light of the testimony of Dr. Salvador, that the muzzle of the gun could have been only five inches to
the body of the deceased. A better marksman that the trial court found de Jesus to be — without any
evidence, to be sure — was, therefore, not needed at all, again contrary to the trial court's
speculation on this regard.
The facts already adverted to make it very doubtful whether the lone eye- witness for the prosecution
saw what he professed to have seen of the shooting incident. Appellant de Jesus positively stated
he was not at the scene. We are inclined to agree with him. If de los Santos saw the incident the way
he so testified in court, this witness, son of the deceased, should have rushed to the latter's rescue,
and should have himself brought the stricken man to the hospital. With the serious condition of his
father, he should not have left him, not for a single moment, from the time he saw his father fall until
he was being brought to the hospital. Strangely, however, it was a cousin who brought the gravely
wounded man to the hospital. Of course, this fact could not be altered so as to make it appear that it
was the son Fernando, who brought the deceased to the hospital, The records of the hospital would
reveal the lie. This fact again clearly demonstrates that the state witness F. de los Santos, son of the
deceased, was not at the scene.
What is also strange is that no police blotter was presented in court to show that the state witness
saw who the culprits were. His pretense that he saw them, and knew who they were, was precisely
disputed seriously by the fact that it took him after five months to give his statement. His claim that
soon after the incident he told the police who the culprits were could not, therefore, be believed if this
fact does not appear in the police blotter as it should have been entered therein.
If what has been shown thus far is not sufficient to discredit F. de los Santos as a supposed eyewitness, We find not without merit Yalong's claim, through counsel, that the testimony of the
aforenamed witness is "riddled with inherent incredibilities and unexplainable contradictions", listing
the following circumstances to prove the claim:
l. In court, he testified that the child whose shout awakened him said that his father
was being ganged upon. (T.s.n., p. 6, Hearing of December 6, 1978.) This is
contradicted by the statement he gave to the police, in which he said the child
shouted that his father was quarreling with someone. (Exhibit 1-G.)
2. Fernando de los Santos claims he saw how his father was killed. Yet, despite the
fact that his own brother Narciso was a member of the Quezon City police force, it
was only on October 19, 1978, or five (5) months later that he gave a statement to
the police. (Exhibit 1.) The only explanation for this undue delay is that Fernando de
los Santos decided to lie that he saw the shooting of his father, because there was
no other witness.
3. He repeatedly swore falsely that he gave a written statement to the police the very
afternoon of May 21, 1978. (t.s.n., p. 59, Hearing of April 30, 1979; t.s.n., p. 9,
Hearing of August 3, 1979.) He even Identified the statement dated October 19, 1978
(Exhibit 1) as the very statement he gave. (T.s.n., pp. 5 and 10, Hearing of August 3,
1979). When finally confronted with his written statement, he admitted that he gave a
written statement only after five (5) months later. (T.s.n., pp. 9-10, Hearing of August
3,1979.)
4. Fernando de los Santos claimed that he waited until after the arrest of both
defendants-appellants before giving his written statement. (T.s.n., pp. 25-26, Hearing
of August 3, 1979.) While his written statement was taken on October 19, 1978,
defendant-appellant Yalong was not arrested until - February, 22, 1980, or More than
a year later. (T.s.n., p. 36. Hearing of October 17, 1979.) This unmasks another
falsehood in his testimony.
5. Earlier, he testified that, when he left the scene of shooting, there were no people
,here. (T.s.n.. p. 27. Hearing on December 28, 1978.) Later, he contradicted himself
by saying there were many people there. (T.s.n p. 41, Hearing of August 3, 1979.)
6. In his written statement, he was fifteen (15) meters away from where his father
was shot. (Exhibits A-4 and I-F.) In court, he contradicted himself by saying he was
ten (10) meters away. (T.s.n., p. 16, hearing of December 28, 1978; t.s.n., p. 10,
Hearing of April 30, 1979).
7. First, he testified that when his father pitched forward, he did not approach his
father to see if his father was dead. He went home first. It was only upon his return
that he felt the pulse of his father to check if his father was still alive. (T.s.n., pp. 2223, Hearing of December 28, 1978.) Later, he contradicted himself by saying he
approached his father and felt the pulse of his father before he went home. (T.s.n., p.
45, Hearing of August 3, 1979.)
8. He claims that it took a full fifteen (15) minutes from the time his father was shot in
the chest before his father slumped down. (T.s.n., p. 21, Hearing of December 28,
1979.) During all that time, he did not even lift a finger 't ) rush his father to a, nearby
hospital like the UERM Memorial Medical Center. This is the first step which any son
who is present would have done under the circumstances. Yet, if we are to believe
Fernando de los Santos, he went home first. Upon his return that was the only time
he checked if his father was still alive.
9. Defendant-appellant de Jesus categorically testified that Fernando de los Santos
was not present when the shooting happened. (T.s.n., pp. 26-27, Hearing of January
4, 1980.) 4
Carefully evaluating the foregoing circumstances, as affecting the credibility of the testimony given
by the only supposed eye-witness for the prosecution, We come to the conclusion that said witness
did not see how the actual shooting took place, much less the incidents immediately preceding. He
was not at the scene when, as testified by Yalong, with the corroboration of an unbiased witness,
Mrs. Anita Bernales, and appellant de Jesus himself, the deceased directed his attack with a dagger
to appellant Yalong who, thereupon, drew a gun from his waist and fired twice at the deceased. The
testimony of de los Santos that it was appellant de Jesus that fired the second fatal shot after
grabbing the gun from Yalong was evidently fabricated in an attempt to purvey a more credible story,
as the prosecution would like to have the court believe in. Thus, as it was with de Jesus that the
deceased had a previous quarrel, the former is the one with motive to harm the latter. It is also de
Jesus not Yalong, the family of the deceased wanted punished for the killing. As the evidence
shows, Yalong had not even seen the deceased on that fatal day except on the very time of the
shooting, and at the place where the two met only, by coincidence.
What is plain from the credible evidence on record is that de Jesus had no participation in the
shooting. Yalong admitted to be the only one who fired his gun at the deceased twice. From Yalong's
testimony, credibly corroborated by an impartial witness, he acted to defend himself because the
decease tried to stab him. No evidence was presented by the prosecution to rebut this testimonial
evidence. The direct testimony of its only supposed eye-witness which is of doubtful veracity as
explained above, cannot serve to discredit the version of the defense. At this point, the trial court did
not give credit to the claim that the deceased was armed with a dagger or bayonet. We find sufficient
credible evidence as to the attack with a dagger against Yalong, such as the testimony of the two
appellants and a disinterested witness mentioned above. If the weapon was not presented, it is
because it had gone into the possession of the police who, for obvious reasons, would not present it
during the trial, through the prosecuting officer.
With the deceased shown to the aggressor as against Yalong, the reasonableness of the means
used by Yalong to repel the aggression may however, not be assessed in his favor. The deceased
was in a state of drunkenness, so he was not as dangerous as he would if he had been sober. His
aim proved faulty and easily evaded as shown by the fact that Yalong was not hit by the stab
attempts-blows directed against him. At best, We can grant incomplete self-defense in his favor, the
necessity of the means he used to repel the aggression not appearing to Us clearly, reasonable.
With respect to de Jesus. as already intimated above, he fired no shot at the deceased. His coaccused owned sole authorship of the shooting. His liability, therefore, would have to be based on a
finding of conspiracy, between him and appellant Yalong.
In finding conspiracy against both appellants, the trial court said:
The authors of the crime are the accused Nilo de Jesus and Wilfredo Yalong.
Accused Yalong and de Jesus conspired together in killing the deceased. They were
motivated by the same criminal purpose and design. They were present at the scene,
confronting the deceased. After accused Yalong fired the first shot, which wounded
the deceased on the right hand, accused Nilo de Jesus continued the aggression; he
got the gun from accused Yalong and fired the fatal shot at the victim. Accused
Yalong was a poor marksman. When he gave the gun to accused de Jesus, he knew
that the latter could do the task better. On the other hand, accused de Jesus,
confident of his ability, went to execute the decisive finishing stroke. After their job
was accomplished, with the victim prostrate on the ground, the two accused together
escaped from the scene and went into hiding. In conspiracy, the act of one
conspirator is the act of the other, each being responsible for the other's act in
furtherance of their common objective. 5
With Our assessment of the testimony of the only supposed eye-witness of the prosecution, as already
indicated above, the trial court's finding of the existence of conspiracy would be left without its main basis
the participation of de Jesus in the shooting. It is also undisputed that the presence of both appellants at
the store where the shooting took place was not prearranged but purely coincidental. 6 Neither was there
any evidence to show that they knew the deceased would go to the store and there shoot him. If there
was previous agreement to kill or harm the deceased, appellants would not have chosen the store where
the people come and go to perpetrate the heinous offense.
The fact that both appellants left together would not necessarily prove conspiracy since they live in
the same vicinity. 7 Only Yalong was armed. If de Jesus was in conspiracy with him, de Jesus should
have also armed himself with some weapon. Yalong had absolutely no motive to join de Jesus in a
common desire to harm, much less kill the deceased.
The trial court also cited the fact that they went later into hiding to prove conspiracy and guilt as well.
The explanation given by appellants for having gone into hiding is to Us sufficiently satisfactory. The
deceased had a son who is a member of the police force of Quezon City. He was heard by the
mother of appellant Yalong to have said that if he (Policeman Narciso de los Santos) would see said
appellant, he would shoot him. 8 It was his mother who then advised him to go to stay with his inlaws. 9 For similar reason de Jesus also went to Isabela. He learned from his wife that Policeman de los
Santos had gone to their house looking for him saying that if he could not see him, Pat. de los Santos will
kill even his children. It was his wife who advised him to leave Tatalon in the meantime.
The liability of de Jesus on ground of conspiracy has therefore not been established beyond doubt,
as it should be as the guilt itself. His innocence was also shown by his uncontradicted testimony that
even after Yalong had left the scene, he stayed intending to lend a helping hand to the fallen man
whom he called "Tiyo Siano" to be brought to the hospital. But people around advised him to go
away as he may be suspected as a co-author of the shooting. He went away to the house of a friend
in Tatalon. On ground of reasonable doubt, We find the guilt of de Jesus, therefore, not to have been
duly established to make him liable for the crime charged.
We do not agree with the finding of the trial court that the shooting of the deceased was attended
with the qualifying circumstance of treachery. To constitute treachery, the method, form or means
adopted in killing the victim must be consciously and deliberately chosen to insure its execution
without any risk to the offender arising from the defense which the victim might make. 10 There is
nothing in the records to indicate that Yalong reflected on the means or method to insure the killing of the
deceased or remove or diminish any risk to himself that might arise from the defense that the deceased
might make. Yalong's decision to shoot the deceased appeared to be sudden, brought about by the
latter's unlawful aggression to stab the former by a dagger. The killing of the deceased was on the spur of
the moment; no time was left for the accused to deliberate on his mode of attack or to prepare for the
manner by which he could kill the deceased with the full assurance that it would be impossible or hard for
the latter to defend himself or retaliate. Had Yalong wanted to attack the deceased treacherously, he
could have shot the deceased at a farther and safer distance and not at a close range (at least 5 inches
from the muzzle of the gun to the surface of the skin), as testified by Dr. Nieto Salvador, 11 to insure
himself against the risk from any possible defense the deceased might make.
In the absence of treachery as a qualifying circumstance, the crime committed is only homicide and
not murder as charged. We have stated earlier that Yalong is entitled to the benefit of the special
mitigating circumstance of incomplete self-defense 12 inasmuch as there was unlawful aggression on
the part of the deceased without any provocation coming from Yalong, but it was not proven that the
means employed by the latter was reasonably necessary. Considering this foregoing circumstance, and
in applying the provision of Article 69 of the Revised Penal Code, the penalty one degree lower than that
of reclusion temporal prescribed for the crime of homicide must be imposed, which is prision mayor. On
those grounds, there should be imposed upon Yalong the penalty of prision mayor in its minimum
period. 13
WHEREFORE, the judgment of conviction as to appellant Nilo de Jesus is reversed and the latter is
hereby acquitted. His immediate release is ordered unless otherwise, detained for another offense.
With respect to appellant Wilfredo Yalong, the judgment is modified. He is hereby, found guilty of
homicide and sentenced to suffer the penalty of four years of prision correccional to eight years
of prision mayor, to indemnify the heirs of deceased Feliciano de los Santos in the sum of
P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. Appellant
Yalong should be credited with the full time of his preventive imprisonment upon a showing that he
agreed to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he
shall be credited with four-fifths (4/5) of the time of such preventive imprisonment. 14
SO ORDERED.
G.R. No. L-56358 October 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Fil C. Veloso counsel de oficio for Luis B. Toring.
Joel P. Alino for Berdon and Berdin.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal Court in Cebu City in Criminal Case No.
CCC-XIV-2170, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable
doubt of the crime of MURDER by direct participation as principal; Diosdado Berdon
as accomplice thereto; and Carmelo Berdin as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of
voluntary surrender, the said circumstance having been offset by the aggravating
circumstance of nighttime, the accused Luis Toring should be, as he is, hereby
sentenced to the penalty of RECLUSION PERPETUA, with the accessory penalties
of law.
There being neither mitigating nor aggravating circumstances on the part of the
accused Diosdado Berdon, the said accused should as he is hereby sentenced to
the indeterminate penalty of from SIX (6) YEARS of Prision Correccional, as
minimum, to TWELVE (12) and ONE (1) DAY of Reclusion Temporal, as maximum,
with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating
circumstance of minority, the said accused being only 17 years of age, the accused
Carmelo Berdin should be, as he is, sentenced to the penalty of SIX (6) MONTHS
and ONE (1) DAY of Prision Correccional, with the accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the deceased
Samuel Augusto for actual and compensatory damages in the sum of P15,000.00
and for moral damages in the sum of P50,000.00, without subsidiary imprisonment in
case of insolvency.
The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of the
government.
Proportionate costs.
SO ORDERED.
1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu City for
the last canvassing of votes for the candidates for princesses who would reign at the sitio fiesta. As
one of the candidates was the daughter of Samuel Augusto, he and the members of his family
attended the affair.
Also present were members of the kwaknit gang, a group which was noted for their bird-like way of
dancing and their propensity for drunkenness and provoking trouble. Its president, called the "alas"
king, was Luis Toring. The group was then outside the dancing area which was ringed by benches.
At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest. Beer and
softdrinks having been served the parents of the candidates by the officers of the Naga Chapel
Association which took charge of the affair, Samuel was tipsy when, after his daughter's
proclamation, he stepped out of the dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado
Berdon proceed to a dark area while whispering to each other. Diosdado Berdon handed a knife to
Luis Toring, 2 who then approached Samuel from behind, held Samuel's left hand with his left hand,
and with his right hand, stabbed with the knife the right side of Samuel's abdomen. 3 Upon seeing
Felix running towards them, Luis Toring pulled out the knife and, together with Carmelo Berdin and
Diosdado Berdon, ran towards the dark. Felix tried to chase the three but he was not able to catch
them. He returned to where Samuel had slumped and helped others in taking Samuel to the
hospital.
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis when the
assault occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist blows on Samuel
just before Luis Toring stabbed him. Diosdado gave the knife to Luis Toring. 4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three assailants
ran towards the direction of the fields. Jacinto Lobas and Mario Andog responded to her shouts and
brought Samuel to the Opon Emergency Hospital where he died on arrival. According to the
necropsy report, 5 Samuel, who was thirty years old, died due to massive hemorrhage secondary to
the stab wound on the abdomen. Said wound is described in the report as follows:
Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long, running
vertically downward, edges clean-cut, superior extremity rounded, inferior extremity
sharp, located at the abdominal region, right anterior aspect, 7.5 cms. to the right of
anterior median line and 107.0 cms. above right heel, directed backward, upward
and medially, involving skin and the underlying soft tissues, penetrating right
peritoneal cavity, incising inferior vena cava, attaining an approximate depth of 15.0
cms.
The death weapon, a kitchen knife made of stainless steel and with a red-colored handle, was
recovered from the house of Luis Toring. According to Patrolman Pantaleon P. Amodia, the police
found out during the investigation that Luis Toring had left the weapon with "Camilo" Berdin. When
the police confronted Berdin, the latter led them to the house of Toring which Berdin entered. When
he emerged from the house, Berdin handed the weapon to the police. 6
An information for murder was filed against Toring. Subsequently, however, the information was
amended to include Diosdado Berdon and Carmelo Berdin as defendants. The three were charged
therein with conspiracy in killing Samuel Augusto in a treacherous manner. Berdon, it was alleged,
"conveniently supplied the death weapon" which Toring used in stabbing Samuel while Berdin
allegedly concealed the weapon to prevent its discovery by the police. 7 The crime was purportedly
committed with the attendance of the generic aggravating circumstances of evident premeditation
and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias "Lowe,"
testified that he was not the president of the kwaknit gang. He went to the benefit dance in the
company of Venir Ybañez, Joel Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and
Alex Augusta. Toring and his group were standing outside the dancing area when, at around eleven
o'clock in the evening, Samuel, a known tough guy ("maldito"), approached them and held Venir
Ybanez by his collar. Then Samuel thrust the butt of his shotgun on the chin of Joel
Escobia, 8 proceeded to another group who were also gangmates of Toring, and again, with the
barrel of his shotgun, hit Eli Amion's chest several times. 9
Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist, approached
Samuel from the latter's right side and stabbed him once as he did not intend to kill Samuel. Toring
then ran towards the dark portion of the area and went home. There, he left the knife and proceeded
to the hut by the fishpond of one Roman. 10
Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o'clock in the
morning of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them. Arsenio was
hit on the left leg and he stayed two months in the hospital for the treatment of his wound. 11
At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine Constabulary
soldiers.12 They brought him to the police of Lapu-lapu City on May 28, 1980.13 When the police
asked him about the knife he used in stabbing Samuel, Toring told them to go to Carmelo Berdin
because he was the only person who knew where Toring hid it. 14 Asserting that he was the one who
returned the knife to his own house, Toring testified that Carmelo Berdin used to see him hide his
weapons upstairs because Berdin was a frequent visitor of his. 15
For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as "lilliputian,"
admitted that he witnessed the stabbing incident but he ran away with his group immediately after
because he was afraid he might be shot by Samuel. He was with Toring when the latter hid the still
bloodied knife under a trunk in Toring's house. He was familiar with the hiding place of the knife
because Toring showed it to him and there were times when he would get the knife there upon
Toring's request. Carmelo corroborated Toring's testimony that on that fateful night, Toring carried
the knife tucked at the back of his waistline. 16
In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his sworn
statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he took the knife from
Diosdado to stab Samuel. Confronted with said statement, Diosdado said that when he asked Toring
why he implicated him, Toring allegedly replied that he "included" Diosdado because of the case the
barangay brigade had filed against Toring. 18
According to Diosdado, he did not attend the May 25 dance because of the trouble which erupted
during the dance the night before. He did not have anything to do with the stabbing of Samuel. He
admitted, however, that a week after the incident, his family went to barrio Andaliw Ronda, Cebu, for
their yearly visit to his father-in-law. He stayed there for fifteen days and would have stayed longer
had not his mother informed him of the subpoena addressed to him. 19
On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a decision
discrediting Toring's claim that the killing of Samuel was justified because it was done in defense of
a stranger pursuant to Article 11 (3) of the Revised Penal Code. The lower court found that Toring
was the "aggressor acting in retaliation or revenge by reason of a running feud or long-standing
grudge" between the kwaknit gang and the group of Samuel, who, being the son of the barangay
captain, was a "power to be reckoned with." It mentioned the fact that a year before the incident in
question, Toring was shot by Edgar Augusto (Samuel's brother) and hence, in his desire to avenge
himself, Toring, "needed but a little excuse to do away with the object of his hatred. 21
The lower court could not believe that Samuel brought along his shotgun to the dance because he
was "not reputed to be a public official or functionary entitled to possess a firearm." Otherwise, the
police and the barangay tanod would have arrested him. The court surmised that if Samuel really
carried a shotgun, he certainly must have had a permit or license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon
(Amion), prosecution witness Joel Escobia claimed that he was at the receiving end of Samuel's
thrusts with the butt of his shotgun. To the court, such discrepancy is fatal to the defense because in
appreciating the justifying circumstance of defense of a stranger, the court must know "with
definiteness the identity of the stranger defended by the accused." 22
The lower court, however, ruled out the existence of conspiracy among the three accused on the
ground that there was no proof on what they were whispering about when Felix saw them.
Accordingly, it held that the accused have individual or separate liabilities for the killing of Samuel:
Toring, as a principal, Diosdado Berdon as an accomplice by his act of giving Toring the knife, and
Carmelo Berdin as an accessory for concealing the weapon. It considered treachery as the
qualifying circumstance to the killing, found no proof as to allegation of evident premeditation but
appreciated nighttime as an aggravating circumstance. It meted the accused the penalties
mentioned above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on Samuel was justified because he
acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides
that no criminal liability is incurred by anyone "who acts in defense of ... his relatives ... by
consanguinity within the fourth civil degree, provided that the first and second requisites prescribed
in the next preceding circumstance are present, and the further requisite, in case the provocation
was given by the person attacked, that the one making defense had no part therein." The first and
second requisites referred to are enumerated in paragraph (b) in the same article on selfdefense as:
(a) unlawful aggression, and (b) lack of sufficient provocation on the part of the person defending
himself.
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of Toring their
fathers being brothers, 23 although no explanation appears on record why they have different
surnames. At any rate, this allegation on relationship was not rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a relative, however, hinges in this case
on the presence of unlawful aggression on the part of the victim. Corollarily, the claim of Toring that
Samuel was, at the time of the assault, carrying a shotgun to intimidate Toring's group must be
proven.
Understandably, no prosecution witness attested that they saw Samuel with a firearm. The
prosecution even recalled to the witness stand Samuel's widow who asserted that her husband did
not own any firearm. 24 Going along with the prosecution's evidence, the lower court arrived at the
rather gratuitous conjecture that Samuel could not have had a shotgun with him because no one
without a permit would carry a firearm without risking arrest by the police or the barangay tanod. At
the same time, however, the lower court described Samuel as the son of the barangay captain who
"had the run of the place and had his compelling presence felt by all and " sundry." 25
While matters dealing with the credibility of witnesses and appreciation of evidence are primarily the
lower court's province, this Court has the power to determine whether in the performance of its
functions, the lower court overlooked certain matters which may have a substantial effect in the
resolution of a case. 26 Defense witness Joel Escobia was, besides Toring, the only witness whose
sworn statement was taken by the police on May 26, 1980, the day after the fatal assault on Samuel.
In his sworn statement, 27 Escobia attested that as he was about to dance with a girl, Samuel
stopped him, pointed his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia
and asked him, "Do you like this, Dong?" to which Escobia replied, "No, Noy I do not like that."
Samuel then placed the bullet in the shotgun and was thus pointing it at Escobia when Toring came
from behind Samuel and stabbed the latter. Even on cross-examination at the trial, Escobia did not
depart from his statement. In fact he added that Samuel pointed the shotgun at his chin and told him
to eat the bullet. 28
There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression inasmuch as
his sworn statement 29 and testimony in court had not been successfully discredited by the
prosecution which also failed to prove that Joel had reason to prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of proof of provocation on
the part of Toring notwithstanding, full credence cannot be given, to Toring's claim of defense of a
relative. Toring himself admitted in court 30 as well as in his sworn statement 31 that in 1979, he was
shot with a .22 caliber revolver by Edgar Augusto, Samuel's brother. It cannot be said, therefore, that
in attacking Samuel, Toring was impelled by pure compassion or beneficence or the lawful desire to
avenge the immediate wrong inflicted on his cousin. Rather, he was motivated by revenge,
resentment or evil motive 32 because of a "running feud" between the Augusto and the Toring
brothers. As the defense itself claims, after the incident subject of the instant case occurred, Toring's
brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven
both camps to commit unlawful acts against each other. Hence, under the circumstances, to justify
Toring's act of assaulting Samuel Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view of the presence of the qualifying
circumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use his
shotgun. We also agree with the lower court that conspiracy and evident premeditation were not
proven beyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating
circumstance. There is no proof that it was purposely sought to insure the commission of the crime
or prevent its discovery. 33 However, Toring should be credited with the privileged mitigating
circumstance of incomplete defense of relative and the generic mitigating circumstance of voluntary
surrender.
The penalty for murder under Article 248 of the Revised Penal Code being reclusion
temporal maximum to death, the imposable penalty is prision mayor maximum to reclusion temporal
medium in view of the presence of the mitigating circumstances of incomplete defense of relative
and voluntary surrender (Art. 64 [5]). Applying the Indeterminate Sentence Law, the proper penalty
to be meted on Toring is prision correctional maximum as minimum to prision mayor maximum as
maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be sustained
in the absence of proof that it was physically impossible for him to be at the scene of the crime when
it was committed. 34 His house was only a kilometer away from the place where he supplied the knife
to Toring. 35 That distance does not preclude the possibility that Diosdado aided Toring in the
perpetration of the crime as it could be negotiated in just a few minutes by merely
walking. 36 Moreover, his alibi was uncorroborated as it was founded only on his own testimony and
what appears as a self-exonerating affidavit. 37
But what pins culpability on Diosdado were the testimonies of at least two prosecution witnesses
who positively identified him as the one who gave Toring the knife. Motive, therefore, has become
immaterial in the face of such positive identification 38 and hence, even if it were true that he was not
a member of the kwaknit gang, his participation in the killing has been proven beyond reasonable
doubt. Added to this is the fact that Toring himself in his sworn statement before the police pointed to
him as the source of the knife. 39 Verily, Toting could not have implicated him because of the
incomprehensible reason that a case had been filed against Toring before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of supplying
Toring the death weapon, Diosdado Berdon should be meted the penalty of prision mayor maximum
to reclusion temporal medium which is the penalty next lower in degree to reclusion
temporal maximum to death, the penalty prescribed for murder by Article 248 (Article 6 [3]). There
being no mitigating or aggravating circumstances, the penalty should be in its medium period
or reclusion temporal minimum (Article 64 [1]). Applying the Indeterminate Sentence Law, the
minimum penalty should be taken from prision mayor minimum while the maximum penalty should
be within the period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been proven
beyond reasonable doubt. The fact that he knew where Toring hid the knife does not imply that he
concealed it to prevent its discovery (Article 19 [2]). There simply is no proof to that effect. On the
contrary, Luis Toring in his sworn statement and testimony during the trial testified that after stabbing
the victim, he ran away and went to his house to hide the murder weapon. Being a close friend of
Toring and a frequent visitor to the latter's house, it is not impossible for Carmelo Berdin to know
where Toring hid his knives. Significantly, Carmelo readily acceded to the request of police officers
to lead them to the place where Toring kept the knife. He willingly retrieved it and surrendered it to
the police, a behavior we find inconsistent with guilt.
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis Toring as
principal in the murder of Samuel Augusto and Diosdado Berdon as an accomplice thereto.
The lower court's decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision
correccional maximum as minimum to twelve (12) years of prision mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day of prision
mayor minimum as minimum to twelve (12) years and one (1) day of reclusion temporal minimum as
maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel Augusto an
indemnity of thirty thousand pesos (P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSE BERNAL,
HERMENEGILDO SALVORO and VICENTE ROLEDA, Defendants-Appellants.
Manuel Enage and Conrado C. Abiera for appellant Jose Bernal.
Evangelista, Zosa & Zosa for appellants Vicente Roleda and Hermenegildo
Salvoro.
Solicitor General Felix Bautista Angelo and Solicitor Esmeraldo Umali
for Appellee.
SYLLABUS
1. CRIMINAL LAW; CONSPIRACY. — J, a member of the military police, had a fight with
P, in which J sustained some wounds. Advised by sergeant G, J reported the matter to
the camp commander. The letter ordered a military police patrol only to find and
question or investigate P regarding the fight. The patrol, led by sergeant B, was
composed of R, S, L and J. J accompanied the patrol only as a guide, and was not even
armed. They found P, whom they summoned to the camp for questioning. On the way
to the camp and when already very near it, sergeant B, suspecting or possibly even
believing that P was not exactly a law-abiding citizen, that he not only kept a firearm
without license but was responsible for the killing or liquidation of a barrio lieutenant
and a member of the military police, decided to liquidate the prisoner and gave the
order to shoot. R obeyed and shot P killing him. Held: There was no conspiracy. The
fact that all the members of the patrol except R did not fire at the deceased when they
heard the sergeant’s order to shoot is proof that they had no previous agreement or
understanding about harming the deceased. They were merely present during the
shooting without taking part in it. In order to establish conspiracy, it is not enough that
the persons supposedly engaged or connected with the same be present when the
crime was committed, or might have been interested in its commission. The prosecution
must establish a logical relation between the commission of the crime and the supposed
conspirators and a closer and more intimate connection between and among the latter,
such as by their conduct or overt acts committed in pursuance of a common criminal
design.
2. ID.; MITIGATING CIRCUMSTANCE OF HAVING ACTED IN OBEDIENCE TO AN ORDER
ISSUED BY A SUPERIOR. — R, having fired at the victim following his sergeant’s order,
which was obviously illegal and unwarranted, is liable for the killing, although he is
entitled to the mitigating circumstance of having acted "in obedience to an order issued
by a superior."
DECISION
MONTEMAYOR, J.:
For the killing of Alfonso Pilones, Ricardo Benting, Vicente Roleda, Jose Bernal, and
Hermenegildo Salvoro, were accused of murder in the Court of First Instance of Leyte.
When the case was called for trial, only the last three appeared and pleaded not guilty
to the charge. Benting was not cited to appear because it was said that he was then
busy in the campaigns being waged against the Hukbalahaps. So, only Bernal, Salvoro
and Roleda went to trial, after which, they were all found guilty of the charge, and
finding in their favor the mitigating circumstance of obfuscation, the trial court
sentenced each of them to an indeterminate penalty of from ten (10) years and one (1)
day of prision mayor to seventeen (17) years of reclusion temporal, with the accessory
penalties prescribed by law, to indemnify jointly and severally the heirs of the deceased
in the sum of P2,000, and to pay three-fourths of the costs.
All three accused appealed to the Court of Appeals from that decision; but said
appellate court by resolution certified the case to us on the ground that in its opinion
"the mitigating circumstance of obfuscation did not exist", and that there being neither
generic aggravating and mitigating circumstance, the penalty should be imposed in its
medium degree, which is reclusion perpetua.
The following facts are not disputed. On September 20, 1947, appellant Jose Bernal, a
member of the military police stationed at Barugo, Leyte, under a pass for three days,
went to his hometown Albuera in connection with a civil case to be heard in court. On
his way and in the barrio of Binolho, Albuera, Leyte, while witnessing a game of
"hantak", he had an altercation with the now deceased Alfonso Pilones, in the course of
which, Bernal punched him. In the evening the two men again met and the dispute was
apparently renewed, culminating in the infliction of superficial bolo wounds in the left
forearm and on the left hand of Bernal by his adversary. Acting upon the advise of Sgt.
Geneston of the military police stationed at Camp Downes, Canadieng, Ormoc City,
Bernal reported the incident to Capt. Trinidad of said camp, who later called Sgt.
Ricardo Benting (one of the accused) and instructed him to organize a patrol to find and
investigate Alfonso Pilones in connection with the incident reported by Bernal. Benting
called Pvts. Roleda Salvoro and Lomod to accompany him and with Bernal acting as
their guide, the patrol proceeded to the house of Pilones in barrio Binalho. Benting
carried a pistol while each of the enlisted men except Bernal who was unarmed, carried
a garand rifle. Upon being informed by Pilones’ wife that he had gone to the house of
his brother-in-law, Jose Rosal, in Ormoc, the patrol went to the house of the latter and
there found Pilones whom Sgt. Benting forthwith informed that he was wanted at
headquarters. Jose Rosal at first objected to their taking his brother-in-law, because the
patrol had no warrant of arrest and he asked that he be allowed to accompany Pilones
to the camp and his request was granted. On the way to the camp and when already
very near it, Pilones was shot and killed by appellant Roleda supposedly by order of
Sgt. Benting. From here on the story told by the witnesses for the Government and for
the defense, widely differ, specially as to how and why Pilones was shot and killed.
According to the defense, Pilones grabbed the garand rifle of appellant Salvoro and
while he (Pilones) was trying to take possession thereof, Salvoro cried for help; that
Benting ordered Roleda to fire shots in the air to scare Pilones, and Roleda fired four
shots in the air, but Pilones paid no attention and continued in his struggle with
Salvoro, until he finally succeeded in getting possession of the garand rifle after which,
he ran down a slope toward a banana tree with the intention of hiding behind it and
then shooting at the soldiers; and that to forestall the criminal design of Pilones, Roleda
by order of Sgt. Benting fired at him, hitting him in the back and causing his death.
The story given by the prosecution through its witness Jose Rosal, however, is radically
different. According to Rosal, Pilones was shot in cold blood by order of Sgt. Benting.
He said that on the way to the camp, Sgt. Benting had been questioning Pilones about
his possessing an unlicensed firearm and his having killed a military police soldier and a
barrio lieutenant, and that as they neared camp and were approaching a guard post,
Sgt. Benting referring to Pilones said to his soldiers, "he is a bandit so we will maltreat
him." Thereafter, he (Benting) gave the order to fire and immediately Vicente Roleda
shot the deceased in the back killing him instantly.
Under the circumstances preceding the shooting, we can not accept the version of the
defense. Both parties agree that the shooting occurred not far from the camp of the
soldiers and very near a guard post. Even if Pilones had the intention to escape from
the patrol, it was not likely that he would select such place to do so. Considering the
proximity of the camp and the guard post, his chances of escape were practically nil.
Furthermore, according to the very witnesses for the defense, at the time that Pilones
was said to have grabbed the rifle of Salvoro, he was practically surrounded by the
soldiers, Benting and Roleda leading the way, Pilones, a few meters behind walking side
by side with Salvoro, Pvt. Bernal a few meters behind, Rosal following him and Pvt.
Lomod bringing up the rear. An attempt to escape under the circumstances, specially
when before doing so he tried to wrest a rifle from a soldier, would have been
extremely foolhardy. And during the struggle between Salvoro and Pilones, when the
former cried for help, what were Benting and Roleda doing? Why did not they rush to
Salvoro’s aid and over-power Pilones? According to the defense, when Bernal heard
Salvoro’s shouts for help and saw him struggling with Pilones, instead of going to the
Succor of his comrade in arms, he just sat down. The story of the defense is simply
improbable and incredible. Besides, if Pilones really not only tried to escape but tried
and succeeded in wresting the garand rifle of Salvoro, all against probabilities, why was
not Pvt. Lomod presented as a witness to corroborate the testimony of Roleda and
Bernal, and more important still, why was not Benting summoned or cited to testify on
this crucial point inasmuch as he was the one who gave the order to fire? In this
connection, the court cannot understand why Benting who appears to be the most
guilty, he being in charge of the patrol and having given the order to shoot Pilones, was
not cited and ordered to stand trial, and even assuming that at the time he was really
engaged in campaigns against the dissidents, why until now he has not stood trial?.
We are more inclined to accept the version given by the prosecution, namely, that
because Benting suspected or possibly even believed that Pilones was not exactly a
law-abiding citizen, that he not only kept a firearm without license, but that he was
responsible for the killing or liquidation of a lieutenant of a barrio and a member of the
military police, he (Benting) decided to liquidate the prisoner and gave the order to
shoot. Benting’s criminal responsibility is clear. What about his companions? It is true
that Roleda fired at the prisoner following the order of his sergeant, but the order was
obviously illegal and unwarranted, and for following an illegal order, he must answer for
the consequences.
Bernal and Salvoro were convicted by the trial court on the theory that there was
conspiracy between all of them, and so are liable for the acts of their co-conspirators
(Benting and Roleda). After a careful review of the evidence, we agree with the Solicitor
General who believes that Bernal and Salvoro are innocent and recommends their
acquittal. We find no proof of conspiracy. The patrol was ordered by Capt. Trinidad only
to find and question or investigate Pilones regarding this trouble or fight with Bernal,
and the latter accompanied the patrol only as a guide. He was not even armed. He
evidently was satisfied to leave the case with the authorities. In fact, he reported the
matter to the camp commander only because he was advised to do so by a sergeant.
And as to Salvoro, he joined the patrol by order and not thru desire. He was merely
present during the shooting without taking part in it. The fact that he did not fire at
Pilones when he heard Benting’s order to shoot is proof that he had no previous
agreement or understanding with his companions about harming the deceased. In order
to establish conspiracy, it is not enough that the persons supposedly engaged or
connected with the same be present when the crime was committed, or might have
been interested in its commission. The prosecution must establish a logical relation
between the commission of the crime and the supposed conspirators and a closer and
more intimate connection between and among the latter, such as by their conduct or
overt acts committed in pursuance of their common criminal design. These things are
wanting in the present case as regards Bernal and Salvoro.
The trial court gave Roleda the benefit of the mitigating circumstance of passion or
obfuscation. The Solicitor General disagrees and believes that Roleda was not
influenced by any such passion or obfuscation, but merely obeyed the order of his
sergeant. Considering that Benting by his questions directed at Pilones while on their
way to the camp and by his assertions and declarations led his companions to believe
that Pilones had killed not only a barrio lieutenant but also a member of the military
police, — a comrade in arms, this may have aroused in Roleda a feeling of resentment
that may have impelled him to readily and without questioning follow the order of Sgt.
Benting. To this may be added the fact of his being a subordinate of Sgt. Benting who
gave the order, and while out on patrol when the soldiers were supposed to be under
the immediate command and control of the patrol leader, in this case, Sgt. Benting. 1
In view of the foregoing, appellants Jose Bernal and Hermenegildo Salvoro are hereby
acquitted with costs de oficio. With this modification, the decision appealed from is
hereby affirmed, with costs.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason and Labrador, JJ., concur.
G.R. No. L-19133
November 27, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIX MAGPANTAY, and EUGENIO ALCARAZ, accused-appellants.
Pascual G. Mier as counsel de officio for accused-appellants.
Office of the Solicitor General for plaintiff-appellee.
REYES, J.B.L., J.:
Review of the decision of the Court of First Instance of Oriental Mindoro, in its Criminal Case No. R1788, for multiple murder, sentencing the accused, Arnulfo Estabaya, to the penalty of reclusion
perpetua, and imposing on the other accused, Felix Magpantay and Eugenio Alcaraz, the death
penalty, ordering them to pay, jointly and severally, the heirs of each of the ten deceased persons
named in the information the sum of P6,000.00, and to pay the proportionate costs. The dispositive
portion of the decision states, in addition to the foregoing, that "the penalties herein imposed are
subject to the provision of Article 70 of the Revised Penal Code in case of commutation of penalties",
and that the accused shall be credited with one-half of their respective preventive, imprisonment.
The indictment, under date of 19 January 1960, to which these three, accused pleaded guilty,
charges them as follows:
That on or about the 2nd day of June, 1959, at 7:30 o'clock in the evening, more or less, in
the barrio of Villapagasa, municipality of Bongabon, province of Oriental Mindoro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
Felix Magpantay, Arnulfo Estabaya, Eugenio Alcaraz and Catalino Fajardo, all provided with
unlicensed carbine rifles, caliber .30 conspiring and confederating together, mutually helping
one another and acting in common accord, with treachery and evident premeditation and the
decided purpose to kill, taking advantage of the darkness of the night and their superior
strength, wilfully, unlawfully and feloniously waylaid, ambushed, attacked, assaulted and shot
Lope Cadacio, Emilio Claveria, Doroteo Malabanan, Albino Sarian, Rosendo Raes, Ignacio
Francisco, Hermogena Atilano, Catalino Gervacio, Filomeno Macalalad and Alejandro
Fernandez with their said carbine rifles, while the victims were riding in a passenger jeep
bearing Plate No. TPU-14016, and inflicting upon them several gunshot wounds in the
different parts of their bodies which caused their instantaneous death.
That in the commission of the crime, the qualifying circumstance of treachery and the generic
aggravating circumstances of evident premeditation, and taking advantage of their superior
strength, are present.
Contrary to law.
The fourth accused Catalino Fajardo having pleaded not guilty, the decision under review was
rendered with respect only to those named heretofore. The judgment considered two aggravating
circumstances, those of evident premeditation and superior strength, as present in the commission
of the crime; Arnulfo Estabaya was, however, credited with two mitigating circumstances, those of
plea of guilty and voluntary surrender, while Magpantay and Alcaraz were credited with one
mitigating circumstance, that of having pleaded guilty.
In addition to their plea of guilty, each of the three accused, Magpantay, Alcaraz and Estabaya,
insists on the mitigating circumstance of voluntary surrender. Magpantay claims, in addition thereto,
lack of instruction. Estabaya adduced no evidence when the fiscal admitted that his surrender was
voluntary.
In support of their claim for additional mitigation, Magpantay and Alcaraz declared that, after
committing the crime, at about 7:30 in the evening of 2 June 1959 they went, for the purpose of
surrendering, to a certain Labo, a former barrio lieutenant of Villapagasa. They met him at about ten
o'clock that same night. Labo refused to accept their surrender because he was no longer the
incumbent official of the barrio; whereupon, Magpantay requested him to send word to the municipal
mayor, Angel Rodriguez.
The accused then proceeded to barrio Rosacara, but the barrio lieutenant there also refused to
accept their surrender on the ground that the crime was committed outside his territory. Magpantay
requested him to fetch the mayor. The trio then proceeded to barrio Sapang Dagat, and from there
Catalino Fajardo (this co-accused had been with Magpantay and Alcaraz) prepared a letter to PC
Sgt. Araman.
From Villapagasa to the poblacion of Bongabon is a distance of about 13 kilometers; Rosacara is
farther by some kilometers. The route taken by the accused from the scene of the crime was away
from the poblacion and towards the mountains. On the second day of the incident, the accused had
been informed that PC soldiers had been issued orders to kill at sight.
Mayor Rodriguez of Bongabon was informed of Magpantay's desire to surrender to him at about
seven o'clock in the morning of 10 June 1959. He reported the matter to the PC detachment in
Sumagui and to Colonel Ver. That same morning Magpantay, in tears and without a firearm,
surrendered to the mayor in a sitio of Villapagasa, about two kilometers inland from Liberty Sawmill.
Therefore, the mayor delivered custody of Magpantay to Colonel Ver at the sawmill where he had
waited, as pre-arranged with the mayor.
Sgt. Araman, P.C., received Fajardo's note of surrender on the 11th of June, referred it to the
provincial commander, contacted Fajardo and Alcaraz on the 12th, slept with them that same night,
and on the following morning, on their way to the poblacion, the sergeant delivered the accused to
his superiors. The accused then handed over their carbines.
Testifying in rebuttal for the prosecution, Sgt. Exequiel Martinez asserted that civilians had informed
the PC of the whereabouts of the accused and that the area was cordoned with 160 soldiers. Said
witness opined that this contingent provided no means of escape to the accused. When and how the
area was cordoned was not touched upon, nor did he explain how escape had become impossible.
Nor was it established that the accused knew of their alleged encirclement and that it prompted them
to surrender in earnest.
We agree with herein appellants Alcaraz and Magpantay that the court below should have
appreciated in their favor the mitigating circumstance of voluntary surrender. Not only was there
failure to prove that they felt that they had no other alternative course; but the fact that the PC
authorities had waited at a designated place for the mayor to bring Magpantay down shows that they
conformed to his offer of voluntary surrender — PC Colonel Ver waited at the sawmill to receive the
surrenderee and not to capture him. The same thing can be said of appellant Alcaraz, because the
PC had prior knowledge of his offer to surrender when, on receipt of Fajardo's letter, Sgt. Araman
referred it to the provincial commander; nor can it be contended that the PC officers and men
affected a capture when they met Sgt. Araman and accused Alcaraz and Fajardo, already peacefully
on their way to the poblacion.
The flight of the accused from the scene of their crime to the mountains cannot be taken as belying
their bona fide intention to surrender, because the evidence is unrebutted that they did earlier take
steps to surrender. After committing the crime, they defied no law or agent of authority, and when
they did surrender, they did so with meekness and repentance. Appellant Alcaraz, undisarmed, slept
with Sgt. Araman in an isolated place; had he been wanting in sincerity, Alcaraz, together with
Fajardo, could easily have overpowered the sergeant, but did not do so. On the following morning,
when the trio met the constabulary men on the way to the poblacion, Alcaraz surrendered himself
and his rifle without any trouble.
We find no particular reason, however, to disturb the trial court's rejection of Magpantay's alleged
lack of instruction as a mitigating circumstance. His answers to the questions propounded to him
show that he understood the significance of his acts, notwithstanding his illiteracy (People vs. Ripas,
et al., L-6246, May 26, 1954; Peo. vs. Sari, L-7169, May 30, 1956).
The narration of the commission of the crime in the information avers five (5) circumstances which
may qualify or aggravate the crime, namely, treachery, evident premeditation, superior strength,
nocturnity, and band. However, in the succeeding paragraph, it specifies only the qualifying
circumstance of treachery and the generic aggravating circumstances of evident premeditation and
superior strength, without alleging anew the other circumstances. In view thereof, the Solicitor
General believes that only evident premeditation and abuse of superior strength should be taken into
account in determining the penalty to be imposed, "since the view more favorable to the accused is
that they had in mind" these two aggravating circumstances, which were reiterated by the fiscal in
the paragraph following the narration of the commission of the crime "presumably for emphasis or
clarification". To this view we agree. This separate specification certainly could her misled the
accused and diverted their attention from the other aggravating circumstances included in the
detailing of the crime. Under the circumstances, appellants in all probability pleaded guilty upon the
estimation that the two aggravating circumstances stressed in the last portion of the information
could be, and were, neutralized by their voluntary surrender and plea of guilty. The doubt should be
resolved in favor of the accused, considering that they were in no way to blame for the ambiguous
terms in which the information is couched.
WHEREFORE, the appealed judgment is affirmed, in so far as it finds the accused guilty often (10)
separate murders, and modified by declaring that the aggravating circumstances of premeditation
and superior Strength were balanced by the mitigating circumstances of voluntary surrender and
plea of guilty. Consequently the penalty should be that of life imprisonment (reclusion perpetua) for
each offense, to be successively served up to the maximum limit of forty (40) years' imprisonment
provided by Article 70 of the Revised Penal Code.
The solidary civil indemnity of P6,000.00 for each one of the ten persons slaughtered, payable to the
respective heirs, is also affirmed. Each appellant shall pay one fourth of the costs.
G.R. Nos. 177105-06
August 12, 2010
JOSE REYES y VACIO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The petitioner appeals by petition for review on certiorari the decision dated January 15, 2007
rendered by the Sandiganbayan, finding him guilty in Criminal Case No. 24655 of a violation of
Section 3 (e) of Republic Act No. 3019,1 and in Criminal Case No. 24656 of usurpation of judicial
functions as defined and penalized under Article 241, Revised Penal Code. 2
Antecedents
Belen Lopez Vda. de Guia (Belen) was the registered absolute owner of two parcels of agricultural
land with an area of 197,594 square meters located in Santa Barbara, Baliwag, Bulacan and
covered by Transfer Certificate of Title (TCT) No. 209298 of the Register of Deeds of Bulacan. On
March 19, 1975, Belen’s son, Carlos de Guia (Carlos), forged a deed of sale, in which he made it
appear that his mother had sold the land to him. Consequently, the Register of Deeds of Bulacan
cancelled TCT No. 209298 by virtue of the forged deed of sale and issued TCT No. 210108 in
Carlos’ name.
On March 20, 1975, Carlos sold the land to Ricardo San Juan (Ricardo). On the same date, Ricardo
registered the deed of sale in the Registry of Deeds of Bulacan, which cancelled TCT No. 210108
and issued TCT No. 210338 in Ricardo’s name. Subsequently, Ricardo mortgaged the land to
Simeon Yangco (Simeon).
Upon learning of the transfers of her land, Belen filed on December 20, 1975 an adverse claim in the
Register of Deeds of Bulacan. Her adverse claim was annotated on TCT No. 210338. She also filed
in the then Court of First Instance (CFI) of Baliwag, Bulacan a civil action for cancellation of sale,
reconveyance, and damages against Carlos, Ricardo and Simeon, docketed as Civil Case No. 655B.
On January 20, 1981, the CFI decided Civil Case No. 655-B, dismissing Belen’s complaint and
affirming the validity of the deeds of sale between Belen and Carlos and between Carlos and
Ricardo. Belen filed a motion for reconsideration but her motion was denied.
Belen appealed to the Intermediate Appellate Court (IAC), docketed as AC-G.R. CV No. 5524-UDK.
On April 19, 1983, the IAC dismissed Belen’s appeal due to non-payment of docket fees. The
dismissal became final on May 17, 1983, and entry of judgment was issued on June 21, 1983. The
records were remanded to the CFI on July 6, 1983.3
Thereafter, the tenants of the land, namely, Paulino Sacdalan, Leonardo Sacdalan, Santiago
Sacdalan, Numeriano Bautista and Romeo Garcia (tenants), invoked their right to redeem pursuant
to Section 12 of Republic Act No. 3844, as amended.4 Acting thereon, Ricardo executed a deed of
reconveyance in favor of the tenants on October 24, 1983.5
Upon registration of the deed of reconveyance, TCT No. 210338 was cancelled, and TCT No.
301375 was issued in the names of the tenants. The land was subdivided into several lots, and
individual TCTs were issued in the names of the tenants.
In the meanwhile, Belen discovered for the first time through a letter-inquiry to the IAC Clerk of Court
that her appeal in AC-G.R. CIV No. 5524-UDK had been dismissed for non-payment of docket fees.
She thus filed in the IAC a motion to reinstate her appeal. The IAC granted her motion.6 The
reinstated appeal was re-docketed as AC-G.R. CV No. 02883.
On February 20, 1986, the IAC promulgated its decision in AC-G.R. CV No. 02883, granting Belen’s
appeal,7 thus:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE and another one
entered:
(1) declaring as null and void and without any effect whatsoever the deed of sale executed
by and between appellant Belen Lopez vda. De Guia and defendant Carlos de Guia, Exhibit
"A;"
(2) declaring defendant-appellant Ricardo San Juan as a purchaser in bad faith and ordering
him to reconvey to appellant the two (2) parcels of land described in the complaint;
(3) ordering the Register of Deeds of Bulacan to cancel and/or annul TCT No. 210338 in the
name of defendant-appellee Ricardo San Juan as well as TCT No. 210108 in the name of
defendant-appellee Carlos de Guia for being null and void and to reinstate TCT No. 209298
in the name of appellant as the true and valid title over the lands described therein; and
(4) ordering the defendants-appellees to pay the costs.
SO ORDERED.
The IAC decision became final on March 15, 1986, and entry of judgment was made on November
7, 1986.8 The records were remanded to the Regional Trial Court (RTC) of Baliwag, Bulacan (RTC).
On December 18, 1986, Belen filed in the RTC a motion for execution vis-à-vis the decision in ACG.R. CV No. 02883. The RTC granted her motion. However, when the writ of execution was about to
be executed, Belen learned that Ricardo had sold the land to the tenants through a deed of
reconveyance. Thus, Belen filed in the RTC a motion to declare Ricardo and the tenants in contempt
of court for circumventing the final and executory judgment in AC-G.R. CV No. 02883.
On October 12, 1987, the RTC held Ricardo and the tenants in contempt of court and ordered each
of them to pay a fine of ₱200.00. It directed Ricardo and the tenants to reconvey the land to Belen
and to deliver to her the share in the harvest.
Ricardo and the tenants appealed the RTC order to the Court of Appeals (CA), docketed as CA-G.R.
SP No. 14783 entitled Mariano Bautista, et al vs. Hon. Felipe N. Villajuan, Jr. as Judge RTC of
Malolos, Bulacan, Branch XIV and Belen Lopez Vda. De Guia.
On November 8, 1988, Belen, through her daughter and attorney-in-fact, Melba G. Valenzuela
(Melba), filed in the Department of Agrarian Reform Adjudication Board (DARAB) a complaint for
ejectment and collection of rents against the tenants, entitled Belen Lopez Vda. De Guia thru her
Attorney-in-Fact, Melba G. Valenzuela vs. Paulino Sacdalan, Romeo Garcia, Numeriano Bautista,
Leonardo Sacdalan and Santiago Sacdalan and docketed as DARAB Case No. 034-BUL’88.9
On July 6, 1989, the CA rendered its decision in CA-G.R. SP No. 14783,10 affirming the RTC order
dated October 12, 1987 with modification. It ruled that the RTC correctly ordered Ricardo and the
tenants to reconvey the land to Belen, but held that the RTC erred in finding Ricardo and the tenants
in contempt of court. This decision became final and executory on July 31, 1989.
On March 16, 1993, the petitioner, as Provincial Adjudicator, rendered a decision in DARAB Case
No. 034-BUL’88 entitled Belen Lopez vda. De Guia thru her Attorney-in-Fact, Melba G. Valenzuela
v. Paulino Sacdalan, Romeo Garcia, Numeriano Bautista, Leonardo Sacdalan and Santiago
Sacdalan,11 dismissing Belen’s complaint for ejectment and collection of rents and affirming the
respective TCTs of the tenants, viz:
WHEREFORE, premises considered, the Board finds the instant case wanting of merit, the same is
hereby dismissed. Consequently, the Transfer Certificate of titles Nos. T-307845, T-307846, T307856, T-307857, T-307869, T-307870, T-307871, T-307873 and T-307874 issued in the name of
Numeriano Bautista, Romeo Garcia, Leonardo Sacdalan, Paulino Sacdalan and Santiago Sacdalan
respectively are hereby AFFIRMED. The plaintiff and all other persons acting in their behalf are
hereby ordered to permanently cease and desist from committing any acts tending to oust or eject
the defendants or their heirs or assigns from the landholding in question.
SO ORDERED.12
Belen filed a notice of appeal in the DARAB on March 26, 1993.
On March 31, 1993, the petitioner granted the tenants’ motion for execution in DARAB Case No.
034-BUL’88.13
Aggrieved, Belen, through Melba, filed an urgent motion to set aside the writ of execution in DARAB
Case No. 034-BUL’88,14 but her motion was denied.
On October 24, 1994, the DARAB Central Office affirmed the petitioner’s ruling. 15
After her motion for reconsideration was denied, Belen lodged an appeal to the CA (CA-G.R. SP No.
39315).
In due course, the CA reversed and set aside the decision of the DARAB Central Office, 16 and
ordered the tenants: (a) to vacate the land; (b) to deliver its possession to Belen; and (c) to pay to
Belen the rents on the land corresponding to the period from 1981 until they would have vacated.
The tenants filed a motion for reconsideration, but the CA denied their motion.
Thus, the tenants appealed to this Court (G.R. No. 128967), which affirmed the CA’s decision in CAG.R. SP No. 39315.17
On May 13, 1998, the Office of the Ombudsman filed two informations in the Sandiganbayan, one
charging the petitioner with a violation of Section 3 (e) of RA 3019, and the other with usurpation of
judicial functions under Article 241 of the Revised Penal Code,18 as follows:
Criminal Case No. 24655
(for violation of section 3 (e) of RA 3019)
That on or about 16 March 1993, or sometime prior or subsequent thereto, in Malolos, Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Jose V.
Reyes, a public officer being then employed as Provincial Adjudicator of the Department of Agrarian
Reform Adjudication Board (DARAB) in Malolos, Bulacan, while in the performance of his official
function as such and acting with evident bad faith and manifest partiality, did then and there willfully,
unlawfully and criminally render his decision in DARAB Case No. 034-Bul-88 favorable to the
tenants who were respondents in said agrarian case, thereby ignoring and disregarding the final and
executory decision of the Court of Appeals in AC-GR CV-02883 which declared complainant Belen
de Guia as the true owner of the lands subject of the litigation in both cases, thus causing undue
injury and damage to the said Belen de Guia and to the public interest. 19
Criminal Case No. 24656
(for usurpation of judicial functions under
Article 241 of the Revised Penal Code)
That on or about 16 March 1993, or immediately prior or subsequent thereto, in Malolos, Bulacan,
Philippines, above-named accused Jose V. Reyes, a public officer being then employed as
Provincial Adjudicator of the Department of Agrarian Reform Adjudication Board (DARAB) in
Malolos, Bulacan, while in the performance of his official function as such and taking advantage
thereof, with full knowledge of a Decision in AC-GR CV-02883 of the Court of Appeals, which
declared Belen de Guia as the true owner of the lands litigated in said case, did then and there
willfully, unlawfully and feloniously disregard, obstruct and ignore the said final and executory
decision of the Court of Appeals, by rendering a decision in DARAB Case No. 034-Bul-88 thereby
favoring and emboldening the tenants-respondents in said DARAB case to unlawfully continue
occupying the lands of Belen de Guia, the complainant, to her damage and prejudice, as well as to
the public interest.20
Arraigned on August 8, 2000, the petitioner, assisted by counsel de parte, pleaded not guilty to each
information.21
After trial, on January 15, 2007, the Sandiganbayan rendered its assailed decision, 22 finding the
petitioner guilty of both charges; and sentencing him to suffer: (a) in Criminal Case No. 24655 (for
violation of Section 3 (e) of RA 3019), an indeterminate sentence of imprisonment from six years and
one month, as minimum, to 10 years as maximum, with perpetual disqualification from holding public
office; and (b) in Criminal Case No. 24656 (for usurpation of judicial functions under Article 241 of
the Revised Penal Code), imprisonment of four months of arresto mayor.
The Sandiganbayan denied the petitioner’s motion for reconsideration on March 15, 2007. 23
Hence, this appeal by petition for review on certiorari.
Issues
The issues raised herein are:
a) Whether the petitioner was guilty of violating Section 3 (e) of RA 3019 in rendering his
decision in DARAB CASE NO. 034 BUL’88; and
b) Whether the petitioner was guilty of usurpation of judicial functions under Article 241 of the
Revised Penal Code.24
Anent the first issue, the petitioner maintains that there was no evident bad faith, manifest partiality,
and gross inexcusable negligence on his part when he decided DARAB Case No. 034-BUL’88; that
his decision therein had been solely based on what he had perceived to be in keeping with the letter
and spirit of the pertinent laws; and that his decision had been rendered upon a thorough
appreciation of the facts and the law.25
As to the second issue, the petitioner insists that his rendition of the decision did not amount to the
felony of usurpation of judicial functions.
Ruling
The petitioner was correctly held guilty of and liable for violating Section 3 (e) of RA 3019 in
rendering his decision in DARAB Case No. 034 BUL’88, but his conviction for usurpation of judicial
functions under Article 241 of the Revised Penal Code is reversed and set aside.
A.
Elements of Section 3 (e) of RA 3019, established herein
RA 3019 was enacted to repress certain acts of public officers and private persons alike that
constitute graft or corrupt practices or may lead thereto. 26 The law enumerates the punishable acts
or omissions and provides their corresponding penalties.
Section 3 (e) of RA 3019, under which petitioner was charged and found guilty, relevantly provides:
Section. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the government, or giving any private party
unwarranted benefits, advantage or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
xxx
The essential elements of the offense under Section 3 (e) are the following:
1. The accused must be a public officer discharging administrative, judicial, or official
functions;
2. He must have acted with manifest partiality, evident bad faith, or gross inexcusable
negligence; and
3. His action caused any undue injury to any party, including the Government, or gave any
private party unwarranted benefits, advantage, or preference in the discharge of his
functions.27
The first element was established. The petitioner was a public officer when he rendered his decision
in DARAB Case No. 034 BUL’88, being then a Provincial Adjudicator of the DARAB discharging the
duty of adjudicating the conflicting claims of parties.
The second element includes the different and distinct modes by which the offense is committed,
that is, through manifest partiality, evident bad faith, or gross inexcusable negligence. Proof of the
existence of any of the modes suffices to warrant conviction under Section 3 (e).28
Manifest partiality exists when the accused has a clear, notorious, or plain inclination or predilection
to favor one side or one person rather than another.29 It is synonymous with bias, which excites a
disposition to see and report matters as they are wished for rather than as they are. 30
Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or to
cause damage.31 It contemplates a breach of sworn duty through some perverse motive or ill will. 32
Gross inexcusable negligence refers to negligence characterized by the want of even the slightest
care, acting or omitting to act in a situation where there is duty to act, not inadvertently but willfully
and intentionally, with conscious indifference to consequences insofar as other persons may be
affected.33
The decision rendered on February 20, 1986 in AC-G.R. CV No. 02883 – nullifying the forged deed
of sale between Belen and Carlos; declaring Ricardo a purchaser in bad faith; ordering Ricardo to
reconvey the land to Belen; directing the Register of Deeds of Bulacan to cancel the respective
TCTs of Ricardo and Carlos; and reinstating Belen’s TCT – became final on March 15, 1986. After
the entry of judgment was made on November 7, 1986, the records were remanded to the RTC in
Baliwag, Bulacan, which eventually granted Belen’s motion for execution.
Due to its finality, the decision in AC-G.R. CV No. 02883 became immutable, and could no longer be
modified in any respect, whether the modification was to correct erroneous conclusions of fact or
law, whether made by the court that rendered it or by the highest court of the land.34 The reason for
such immutability is that a litigation must end sometime, and an effective and efficient administration
of justice requires that the winning party be not deprived of the fruits of the verdict once a judgment
becomes final.35
The petitioner was fully aware of the finality of the decision in AC-G.R. CV No. 02883 prior to his
promulgation of the decision in DARAB Case No. 034 BUL’88. Indeed, he actually admitted having
read and examined the following documents (adduced by the Prosecution) prior to his rendition of
the decision,36 namely:
(1) Belen’s position paper dated August 7, 1992 submitted to him in DARAB Case No. 034
BUL’88, in which Belen stated that the decision in AC-G.R. CV No. 02883 had become final
and executory;37
(2) The entry of judgment issued in AC-G.R. CV No. 02883;38
(3) Belen’s TCT No. 209298, reflecting the entry of judgment issued in AC-G.R. CV No.
02883 and the cancellation of the TCTs of the tenants-lessees by virtue of the decision in
AC-G.R. CV No. 02883;39 and
(4) Addendum to Belen’s position paper, mentioning the decree in the decision in AC-G.R.
CV No. 02883.40
Yet, the petitioner still rendered his decision in DARAB Case No. 034 BUL’88 that completely
contradicted and disregarded the decision in AC-G.R. CV No. 02883 by invalidating Belen’s title on
the land and upholding the TCTs of the tenants. He thereby exhibited manifest partiality, for such
decision of his was a total and willful disregard of the final decision in AC-G.R. CV No. 02883. His
granting the tenants’ motion for execution made his partiality towards the tenants and bias against
Belen that much more apparent.
Similarly, the petitioner’s evident bad faith displayed itself by his arrogant refusal to recognize and
obey the decision in AC-G.R. CV No. 02883, despite his unqualified obligation as Provincial
Adjudicator to abide by the CA’s ruling that was binding on him as Provincial Adjudicator and on all
the parties in DARAB Case No. 034-BUL’88.
Worthy of note is that the CA, in CA-G.R. SP No. 39315, and this Court, in G.R. No. 128967, had
characterized the petitioner’s aforementioned conduct as "an utter disrespect to the judiciary," as
vested with a "dishonest purpose," and as constituting "a contumacious attitude which should not be
tolerated."41 These acute characterizations fortify the holding that he harbored a deliberate intent to
do wrong to Belen.
Correctly did the Sandiganbayan find that the petitioner had displayed manifest partiality and evident
bad faith in rendering his decision in DARAB Case No. 034-BUL’88.
The third element of the offense – when the act of the accused caused undue injury to any party,
including the Government, or, gave any private party unwarranted benefit, advantage or preference
in the discharge of the functions of the accused – was also established. In this regard, proof of the
extent or quantum of damage was not essential, it being sufficient that the injury suffered or the
benefit received could be perceived to be substantial enough and was not merely negligible. 42
1 avvphi1
Belen was constrained to engage the services of a lawyer and to incur other expenses in order to
protect and prosecute her interest in DARAB Case No. 034 BUL’88. In all, her expenses were in the
substantial sum of ₱990,000.00.43 Moreover, the petitioner’s stubborn refusal to recognize and obey
the decision in AC-G.R. CV No. 02883 forced a further but needless prejudicial delay in the prompt
termination of the cases. The delay proved very costly to Belen, for, in that length of time (that is,
from March 16, 1993 up to the present), Belen has been unduly deprived of her exclusive ownership
and undisturbed possession of the land, and the fruits thereof. The injury and prejudice surely
equated to undue injury for Belen.
Likewise, the petitioner’s ruling in DARAB Case No. 034 BUL’88 gave unwarranted benefit,
advantage, or preference to the tenants by allowing them to remain in possession of the land and to
enjoy the fruits.
Given the foregoing considerations, the Sandiganbayan correctly convicted the petitioner in Criminal
Case No. 24655 for violating Section 3 (e) of RA 3019.
B.
Usurpation of judicial functions
Article 241 of the Revised Penal Code states:
xxx The penalty of arresto mayor in its medium period to prision correcional in its minimum period
shall be imposed upon any officer of the executive branch of the government who shall assume
judicial powers or shall obstruct the execution of any order or decision rendered by any judge within
his jurisdiction.
In usurpation of judicial function, the accused, who is not a judge, attempts to perform an act the
authority for which the law has vested only in a judge.44 However, the petitioner’s task as Provincial
Adjudicator when he rendered judgment in DARAB Case No. 034 BUL’88 was to adjudicate the
claims of the opposing parties. As such, he performed a quasi-judicial function, closely akin to the
function of a judge of a court of law. He could not be held liable under Article 241 of the Revised
Penal Code, therefore, considering that the acts constitutive of usurpation of judicial function were
lacking herein.
C.
Penalties
The Sandiganbayan appreciated the mitigating circumstance of old age in favor of the petitioner by
virtue of his being already over 70 years old.
The Sandiganbayan thereby erred. The mitigating circumstance of old age under Article 13 (2) of the
Revised Penal Code applied only when the offender was over 70 years at the time of the
commission of the offense.45 The petitioner, being only 63 years old when he committed the offenses
charged,46 was not entitled to such mitigating circumstance.
Under Section 9 of RA 3019, the penalty for violation of Section 3 (e) of RA 3019 is imprisonment for
not less than six years and one month nor more than 15 years, and perpetual disqualification from
public office. Pursuant to Section 1 of the Indeterminate Sentence Law, if the offense is punished by
a special law, the accused is punished with an indeterminate sentence the maximum of which does
not exceed the maximum fixed by the law violated, and the minimum is not less than the minimum
term prescribed by the law violated.
Accordingly, in Criminal Case No. 24655, the Sandiganbayan correctly imposed on the petitioner the
indeterminate penalty of imprisonment ranging from six years and one month, as minimum, to 10
years as maximum. The penalty of perpetual disqualification from public office was also correctly
imposed.
WHEREFORE, the Court affirms the conviction of the petitioner in Criminal Case No. 24655 (for
violation of section 3 (e) of RA 3019), but reverses and sets aside his conviction in Criminal Case
No. 24656 (for usurpation of judicial functions as defined and penalized under Article 241 of the
Revised Penal Code).
No pronouncement on costs of suit.
SO ORDERED.
G.R. No. 12635
September 25, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE REYES, defendant-appellant.
Modesto Reyes and Eliseo Ymzon for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
A soldier of the United States Army by the name of Guiseppe Goggiano was killed by Vicente
Reyes, the defendant and appellant, during a quarrel over a game of cards. The implement used by
Reyes was a baston (stick). The means taken by Reyes was hitting the soldier on the head with
the baston. The trial court in view of these prominent facts and because of a finding that the
defendant did not act in self-defense, and considering neither aggravating nor mitigating
circumstances to exist, found the defendant guilty of homicide and sentenced him to fourteen years
eight months and one day of reclusion temporal, with the accessory penalties provided by law, to
indemnity the heirs of the deceased Guiseppe Goggiano in the amount of P500, and to pay the
costs. As the case turns entirely on the credibility of witnesses, we are not disposed to interfere with
the findings of fact by the trial judge or the sentence imposed by him which is in conformity with law.
The appellant makes only one assignment of error which requires consideration. This is to the effect
that the trial court incurred error in not finding in favor of the accused mitigating circumstance No. 3
of article 9 of the Penal Code, namely, that the offender has no intention to cause so great a wrong
as that committed. Remembering that the implement was a baston, the use of which with force on
the head of a person would ordinarily fracture the cranium and cause death, the following decisions
of the supreme court of Spain collated by the Attorney-General in his excellent brief are of particular
interest and are decisive of the point:
The intention of the agent, as an internal act and of his own conscience, cannot be revealed
in any other manner than by the external and overt acts which may accompany that
intention, the only acts that can be appreciated by the judicial mind; consequently, if the
accused cause the homicide by giving the deceased two blows on the side and neck with the
yoke of a plow, neither from the kind of implement used to execute the act, nor from the
intenseness and force which was employed in inflicting the injuries, neither from the principal
parts of the body to which the blows were directed, could it be inferred nor deduced that he
did not have the intention to cause all the evil produced. (Decision of December 12, 1876.)
When the means employed by the accused are adequate and proportionate to the result of
the crime, circumstance No. 3 of article 9 cannot be considered in his favor. (Decision of
March 25, 1892)
The intention of the culprit must be deduced, as a rule, from the nature and extent of the
tangible evil produced, as this is almost always the palpable manifestation of his will, except
when the proof and other circumstances or antecedent events may be a sufficient ground to
cause the belief that the material act has transcended the bounds of his intention. (Decision
of June 10, 1892.)
Mitigating circumstance No. 3 cannot be considered in the injury caused by striking with a
foot stool, because the means employed by the accused were adequate to produce not only
the evil which resulted but also another of greater import. (Decision of June 5, 1895.)
This mitigating circumstance requires in order that it may legally be applied that the evil
produced should not be disproportionate neither to the intensity of the means employed to
execute it, nor to the efficacy of the implement used to commit it. (Decision of August 10,
1900.)
The lack of intention to cause so serious an evil as that produced, can only be considered in
default of facts which may clearly show it when there is such a disproportion between the
resultant evil and the means employed to cause it, so that the evil could not reasonably be
presumed. (Decision of March 22, 1901.)
Circumstance No. 3 of article 9 can only be considered when the facts proven show that
there exists notable and evident disproportion between the means employed to execute the
criminal act and its consequence. (Decision of January 29, 1902.)
Mitigating circumstance No. 3 of article 9 can only be legally applied when there is a
notorious disproportion between the evil produced and the means employed to execute it;
and in the present case, the injury caused being in correspondence with the efficacy of the
implement used by the accused (a blow on the forehead with a pitcher causing less serious
injury), inasmuch as it is liable, the blow directed as it was on the head, to cause the injuries
suffered by the offended party, it cannot reasonably be presumed, nor considered, that there
existed in the mind of the offender an intention to limit the consequences of his voluntary act
to a less degree of gravity than that actually caused. (Decision of July 2, 1902.)
The intention of the offender is judged, when there are no other elements for consideration,
by the greater or less proportion of the means employed by him to the evil produced by his
act, and it being a work implement sufficiently powerful to produce the wound suffered by the
offended party, and even another of more serious character, it must perforce be admitted
that the extent of the evil is in proportion to the purposes of the agent. (Decision of January
4, 1905.)
Judgment is affirmed with costs of this instance against the appellant. So ordered.
Arellano, C.J., Carson, Araullo and Street, JJ., concur.
G.R. No. L-46530
April 10, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CATALINO RABAO, defendant-appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for appellee.
IMPERIAL, J.:
This is an appeal from a judgment of the Court of First Instance of Camarines Sur convicting the
appellant of the crime of parricide and sentencing him to an indeterminate penalty of from eight
years and one day of prision mayor to twenty years of reclusion temporal, to indemnify the heirs of
the deceased in the sum of P1,000 and to pay the costs.
The information filed by the acting provincial fiscal of said province charged the defendant with
parricide for having killed his wife Salvacion Agawa on December 15, 1937, in the municipality of
Naga, Province of Camarines Sur, which crime was committed with evident premeditation and abuse
of superior strength.
The defendant and the deceased Salvacion Agawa were married before the justice of the peace of
Naga on January 15, 1936 and had since been born to the marriage. Since their marriage they had
made their home in the house of Urbano Rellora, who lived maritally with the mother of the accused.
On the morning of December 15, 1937, when the defendant was hardly awake after staying up late
the previous night on account of the elections held in the municipality of Naga, he noticed that his
wife was preparing water with which to give the child a bath. He told his wife not to bathe the child
because it had a cold, but the wife insisted and a quarrel arose in the heat of which the accused
punched his wife on the abdomen. She fell seated on a sack of rice nearby and immediately suffered
an attack of which she died in spite of the aid rendered her by the accused himself and other
persons who had arrived. The following morning Dr. Vicente Roxas performed an autopsy and found
that the spleen of the deceased had been hypertrophied due to an acute and chronic malaria from
which she had been suffering, and that death was caused by the hemorrhage of the spleen when it
was ruptured as a consequence of an external blow on the abdomen which might have been that
delivered by the accused.
The defense alleges that the lower court erred in declaring that the accused hit the deceased on the
abdomen, which caused her death, instead of finding him, at most, guilty of parricide through
reckless imprudence.
After an examination of the evidence, we are of the opinion that the lower court did not err in finding
that the accused hit the deceased on the abdomen which directly caused the rupture of her spleen
producing thereby an internal hemorrhage that caused her almost instant death. Urbano Rellora
who, as stated before, was the owner of the house where the defendant and the deceased lived and
who maintained marital relations with the mother of the accused, testified positively that he saw the
accused punched his wife on the abdomen, as a result of which she fell seated on a sack of rice and
that very moment she had an attack, became unconscious and expired. This testimony is
corroborated by Dr. Roxas who performed the autopsy, when he declared that the death was caused
by the hemorrhage produced by the rupture of the spleen which rupture was caused by an external
blow on the abdomen of the deceased. The defendant himself, in his sworn declaration (Exhibit C)
subscribed before the justice of the peace of Naga, voluntarily admitted having hit his wife on the
abdomen with his fist when she said things that offended and made him nervous. The aggression
was likewise corroborated by another eye-witness, Raymundo Hilano, who declared that he was at
that time passing in front of the defendant's house when he heard and saw him quarrelling with his
wife and that the defendant was delivering blows on his wife. The testimony of this witness however,
seems incredible and deserves no merit for he testified having seen the aggression through a
window which was three and a half meters high from the ground where he stood. Considering the
height of the window and the location of the witness, it is clear that he could not have seen what was
happening inside the house.
The defendant's act is not mere reckless imprudence, as the defense contends, since under article
365 of the Revised Penal Code the acts that go to make up reckless imprudence must be lawful in
themselves, and the attack consisting in the blow the defendant dealt his wife is certainly not lawful,
since it transgresses the Revised Penal Code itself, which expressly prohibits it under pain of
punishment.
The facts proven constitute the crime of parricide defined by article 246 of the Revised Penal Code,
and in its commission there were present the following mitigating circumstances considered by the
lower court in favor of the defendant: lack of intention to commit so grave a crime (article 13 [3],
Revised Penal Code); having acted upon an impulse so powerful as naturally to have produced
passion or obfuscation (article 13 [6]); having surrendered himself to the authorities immediately
after the commission of the crime (article 13 [7]); with no aggravating circumstance. As to the penalty
imposed, we find that it is not in accordance with that prescribed by the law. Under article 246 of the
Revised Penal Code the crime of parricide is punished with reclusion perpetua to death. These
penalties are indivisible and the Revised Penal Code provides, in article 63, rule 3, that whenever
there is present some mitigating circumstance with no aggravating one, the lesser penalty shall be
applied. In conformity with this legal provision, the penalty that should be imposed on the accused is
that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did not really have the intention of
committing so grave a crime as parricide. The quarrel that led to the aggression had its origin from
the natural and justifiable desire of the defendant, as a father, to prevent his child, which was then ill,
from being given a bath. If, under the circumstances, he transgressed the law by an unjust attack on
his wife, he is, nevertheless, deserving of the mitigating circumstances allowed in his favor. We
invoke, for this reason, article 5, paragraph 2, of the Revised Penal Code, and recommended to his
Excellency, the President of the Philippines, the commutation of the penalty imposed on the
defendant in this decision.
Modifying the appealed judgment, we declare the defendant Catalino Rabao guilty of the crime of
parricide and hereby sentenced him to reclusion perpetua, and to the accessory penalties provided
in article 41 of the Revised Penal Code, to indemnify the heirs of the deceased in the amount of
P1,000, and to pay the costs in both instances. So ordered.
THE UNITED STATES, Complainant-Appellee, v. JULIAN BERTUCIO ET
AL., Defendants-Appellants.
Chicote and Magsalin, for Appellants.
Solicitor-General Araneta, for Appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; MITIGATING CIRCUMSTANCES. — Where the death of
the victim of an assault is attributable to a lack of medical care and the assault consists
of a single blow on the arm with a bolo the penalty imposed should be one degree lower
than that prescribed for homicide in the absence of aggravating circumstances.
2. ID.; ASSAULT; AGGRAVATING CIRCUMSTANCES. — The fact that an assault has
been committed with a weapon the use of which is forbidden by law is an aggravating
circumstance to be considered in fixing the penalty.
3. ID. — Peace officers who inflict wounds in capturing a prisoner who resists arrest are
acting in discharge of their duties and are not criminally responsible.
DECISION
TORRES, J. :
It appears from the record that on the night of March 24, 1897, in the town of Lumban,
near Pila, a quarrel broke out between Geronimo Linac and Julian Bertucio. the cause of
the quarrel was the refusal of Linac to work for Bertucio in order to pay off a dollar
which he owed the latter, as he had been requested to do. In the course of the quarrel
Bertucio seriously wounded Linac on the right wrist with a bolo. Bernabe Gasapangra,
taking part in the affray in aid of Linac, attacked Bertucio in turn and inflicted three bolo
wounds upon the latter’s head. these wounds were healed with medical assistance in
ten days and left no ill results. Geronimo Linac died on the night of the day following
the occurrence as the result of a hemorrhage from the wound in his wrist.
When Bernabe Gasapangra was found by the police in a cane field, where he hid
himself after the occurrence, he attempted to escape and refused to surrender when
called upon to do so. In order to prevent his escape and owing to the fact that he was
armed with a bolo, some of the arresting party were forced to throw stones at him and
employ violence as a result of which he received several wounds of lesser gravity,
which healed in the course of some twelve days without causing any permanent injury.
The facts proved in the present case constitute two crimes — one of homicide
committed upon the person of Geronimo Linac, included in the terms of article 404 of
the Penal Code; the other, that of an assault of lesser gravity upon Julian Bertucio,
prohibited and penalized in article 418 of the said Code. In the crime of homicide there
appear none of the specific qualifying circumstances enumerated in articles 402 and
403 of said Penal Code to be considered.
The guilt of the defendant Bertucio of this crime of homicide has been conclusively
established by the evidence. His exculpative allegations can not be admitted on account
of the lack of proof and because of the self-contradictory character of his statements.
Furthermore, the fact is proven that he was the only person who had a disagreement
with the deceased. The accused himself stated that the deceased might have been the
one who inflicted the wounds which he had received upon the head. It is likewise a fact
shown at the trial that the other defendant, Bernabe Gasapangra, is responsible for
these wounds of the prisoner Bertucio, the former’s guilt being likewise established by
conclusive evidence. Notwithstanding his denial and the representations he made to
demonstrate his innocence, the case offers sufficient data and merits to fully convince
the court that Bernabe Gasapangra attacked Bertucio after seeing the latter inflict a
grave wound upon his relative, Geronimo Linac, and that he then hid himself in a
canebrake, where it was necessary for the authorities to use force and violence in order
to apprehend him.
With reference to the commission of the homicide there must be considered the
presence of the extenuating circumstance, No. 3 of article 9 of the Code, in that the
aggressor Bertucio confined himself to the giving of a single blow of his bolo upon the
right arm of the injured party and that he did not repeat this blow — thus showing that
he had no intention of occasioning an injury as grave and irreparable as the death of
Linac. Although the latter died on the night of the succeeding day, this was due to
neglect and the lack of medical treatment, his death having resulted from a
hemorrhage which they did not know how to stop or control in time. This circumstance,
as well as the established in article 11 of the Code, deemed very applicable in the
present case, determine that there should be imposed upon the culprit the penalty next
lower in grade to that designated for the crime in article 404, there being no
aggravating circumstance to consider which might neutralize the effect.
With reference to the crime of assault of lesser gravity (lesiones menos graves), the
presence of the mitigating circumstance established in article 11 must be considered, as
well as that of No. 24 of article 10 of the Code, since the defendant Gasapangra in
committing the offense made use of a weapon of a kind prohibited by the prevailing
laws.
As for the assault of lesser gravity committed upon Gasapangra by the authorities,
inasmuch as the latter acted in the performance of their duties and in the legitimate
exercise of their authority they are exempt from criminal responsibility and must be
acquitted.
For the reasons stated, Julian Bertucio should be condemned to eight years and one
day of prision mayor, together with the subsidiary penalties designated in article 61 of
the Code and to the payment of the one-third part of the costs in both instances,
without judgment of money indemnity by reason of the express waiver of the heirs of
the deceased; and Bernabe Gasapangra as the perpetrator of the assault should be
condemned to two months and one day of arresto mayor, together with the payment of
an indemnity of 50 pesetas to Julian Bertucio and in case of insolvency to the
corresponding subsidiary imprisonment and to the payment of another third part of the
costs, computing in the principal penalty and in the subsidiary imprisonment one-half of
the time spent in provisional imprisonment; and the charge of assault of lesser gravity
inflicted upon Gasapangra should be absolutely dismissed with the remaining third part
of the costs de oficio; the bolos used should be confiscated and the order declaring the
insolvency of the parties made in the incidental proceeding of attachment should be
approved.
In these terms the present cause should be decided, affirming the judgment appealed
from in so far as the same agrees with this decision and reversing it in so far as it
conflicts therewith. It is so ordered.
Arellano, C.J., Cooper, Willard, Mapa and Ladd, JJ., concur.
G.R. No. L-30801 March 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and
Solicitor Vicente P. Evangelista for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.
AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of First Instance of Zamboanga del
Sur, convicting him of murder, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of
twelve thousand pesos and to pay the costs (Criminal Case No. 3280).
The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old
former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then
set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his
father resided. On July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug
but night overtook him in the town. He decided to sleep in the Buug municipal building where there
would be more security.
Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary
occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was
boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed
on the floor. Ural, the tormentor, stepped on his prostrate body.
Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on
Napola's recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in
agony. He shouted for help. Nobody came to succor him.
Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before
his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberto did not
sleep anymore that night. From the municipal building, he went to the crossing, where the cargo
trucks passed. He hitchhiked in a truck hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom
she treated twice, sustained second-degree burns on the arms, neck, left side of the face and onehalf of the body including the back (Exh. A). She testified that his dermis and epidermis were burned.
If the burns were not properly treated, death would unsue from toxemia and tetanus infection.
"Without any medical intervention", the burns would cause death", she said. She explained that,
because there was water in the burnt area, secondary infection would set in, or there would be
complications.
Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating
"burn" as the cause of death (Exh. B).
The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by
Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the
prosecution's failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention
prisoners who saw the burning of Napola. They had executed a joint affidavit which was one of the
bases of the information for murder.1
It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness who
should have been presented as a witness to prove the victim's dying declaration or his statements
which were part of the res gestae.2
In this appeal appellant's three assignment of error may be condensed into the issue of credibility or
the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable doubt.
His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal jail on
guard duty. He heard a scream for help from Napola. He entered the cell and found Napola's shirt in
flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did
not summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural)
was alone in the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete liar",
testified that she heard Napola's scream for help. She saw that Napola's shirt was burning but she
did not know how it happened to be burned. She said that Ural and Siton removed the shirt of
Napola and put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the
evening of July 31st. Matugas denied that Alberio was in the municipal building at eight o'clock.
The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It
observed that Ural's alleged act of removing Napola's burning shirt was at most an indication that he
was "belatedly alarmed by the consequence of his evil act" but would not mean that he was not the
incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio,
pointed out that he was not listed as a prosecution witness and that he was convicted of murder.
Those circumstances would not preclude Alberio from being a credible witness. It should be noted
that the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this
case, there was no police investigation. The crime was investigated by a special counsel of the
fiscal's office. That might explain why it was not immediately discovered that Alberio was an
eyewitness of the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are
compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the factual issue
is: who should be given credence, Alberio or Ural? As already stated, the trial court which had the
advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio.
This Court, after a searching scrutiny of the whole record, does not find any justification for
disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which provides that "criminal liability
shall be incurred by any person committing a felony (delito) although the wrongful act done be
different from that which he intended". The presumption is "that a person intends the ordinary
consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es
causa del mal causado" (he who is the cause of the cause is the cause of the evil
caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones
preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido, la
constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la pulmonia, o
la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed.,
1968, p. 335-336).
The similar rule in American jurisprudence is that "if the act of the accused was the cause of the
cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck
the victim with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to
the rug, and, in the course of the scuffle, which ensued on the floor, the victim's clothes caught fire,
resulting in burns from which he died, there was a sufficient causal relation between the death and
the acts of the accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40
C.J.S. 854, note 90).
There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in
the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not
receive proper medical attendance does not affect the criminal responsibility" (U.S. vs. Escalona, 12
Phil. 54). In the Escalona case, the victim was wounded on the wrist. It would not have caused death
had it been properly treated. The victim died sixty days after the infliction of the wound. It was held
that lack of medical care could not be attributed to the wounded man. The person who inflicted the
wound was responsible for the result thereof.
The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248,
Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440). 3
The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14,
Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard
duty. Because of his position, he had access to the cell where Napola was confined. The prisoner
was under his custody. "The policeman, who taking advantage of his public position maltreats a
private citizen, merits no judicial leniency. The methods sanctioned by medieval practice are surely
not appropriate for an enlightened democratic civilization. While the law protects the police officer in
the proper discharge of his duties, it must at the same time just as effectively protect the individual
from the abuse of the police." U.S. vs. Pabalan, 37 Phil. 352).
But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention
to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest
from the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat
him may be because in his drunken condition he was making a nuisance of himself inside the
detention cell. When Ural realized the fearful consequences of his felonious act, he allowed Napola
to secure medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of
his official position. The trial court properly imposed the penalty of reclusion perpetua which is the
medium period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code).
Finding no error in the trial court's judgment, the same is affirmed with costs against the appellant.
So ordered.
THE UNITED STATES, Complainant-Appellee, v. ARTHUR
FITZGERALD, Defendant-Appellant.
Joseph N . Wolfson for Appellant.
Solicitor-General Araneta for Appellee.
SYLLABUS
1. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; INTOXICATION; PRESUMPTION. —
In the absence of proof to the contrary it will be presumed that intoxication is not
habitual, and the fact that the accused was drunk at the time of the commission of the
crime must then be considered as a mitigating circumstance.
2. ID.; ID.; DEGREE OF INTENT. — Where it appears that the accused fired a loaded
revolver at the deceased and killed him it must be presumed that he intended the
natural consequences of him act, and he is not entitled to the benefit of the mitigating
circumstance established by paragraph 3, article 9, of the Penal Code.
3. ID.; ID.; PROVOCATION. — Where it appears that the homicide was immediately
preceded by an affray between the deceased and the defendant, but there is no
evidence as to how the quarrel arose, the defendant is not entitled to the benefit of the
mitigating circumstance of provocation.
4. ID.; ID.; PASSION AND OBFUSCATION. — Where it appears that the homicide was
immediately preceded by an affray between the deceased and the defendant, the anger
inherent in such a contest can not be considered as constituting the mitigating
circumstance of passion and obfuscation.
DECISION
TORRES, J. :
Between 11 and 12 o’clock on the night of November 15, 1902, for some reason which
does not appear, hard words passed between the defendant, Arthur Fitzgerald, and the
deceased, Charles Marsh, followed by a heated dispute. This took place in the distillery
situated near the government building in the city of Iloilo. On this account another
American, Samuel Brown, ordered the two to leave the premises, stating that he would
not allow such conduct there. Marsh then stepped into the interior patio, but Fitzgerald
refused to go out. Brown then seized him and pushed him toward the door, and told
him to go to the ice plant near by. The accused, however, refused to go, and, remaining
in the distillery, continued to insult Marsh, who thereupon returned, and, approaching
the accused, struck him a blow which knocked him down. Fitzgerald, however,
immediately arose, and saying, "I will show you sons of b — s," ran toward the ice plant
in search of a revolver which he had, and immediately returned, shouting, "Who’s the
boss now?" Just at this time Marsh stepped out of the distillery. We had scarcely walked
15 feet when, hearing the accused utter these words, he turned to look at him. Just at
this moment the accused fired at him with the revolver. The bullet took effect in the left
side, just below the nipple. The wound received was necessarily of a mortal character,
and Marsh died in less than two hours. The bullet had pierced the diaphragm and
traversed the left kidney, and remained embedded in the left lumbar region next to the
vertebral column, according to the statement of the physician who held the postmortem examination.
After this attack the accused turned toward two other Americans who were in the
distillery, named Walter W. Dun and Emoy B. Withers, and fired another shot at them,
but without effect. Then shouting, "Where is the other son of a b — ," he commenced to
search for some one, apparently for Brown. He happened to run across the fireman and
aimed his revolver at him, but the fireman seized him by the arm, and another
workman there who came running up on hearing the noise succeeded in taking the
revolver from the accused, who then returned to his house, where he was later
arrested.
The facts stated, fully proven by the testimony of several eyewitnesses and of several
other witnesses who learned the facts and who saw the body of the deceased,
constitute the crime of homicide, defined and punished by article 404 of the Penal
Code, there not having occurred in the commission of the crime any qualifying
circumstance to elevate it to a higher category.
The defendant plead not guilty, and alleged that after he had been knocked down and
beaten by Marsh he got up and tried to escape, believing that he was followed by Marsh
and by other men in the distillery, and for that reason, upon stepping out of the ice
plant, he fired in the air with a revolver which he had found in a drawer there, until he
was seized by two Filipinos, who took the weapon from him and that just at this
moment the revolver went off again; that he did not aim at the deceased and had no
intention to do him any harm; that when he stepped out of the ice plant he saw
something under the porch of the government building, and then it was that he raised
his hand with the revolver to fire in the air, but does not know which way the bullet
went.
The judge below found the accused guilty and condemned him to sixteen years of
reclusion temporal in Bilibid prison, Manila, or in and other prison designated by law
with the corresponding accessories, and to the costs of the trial. Against this judgment
the accused appealed.
Notwithstanding the denial and exculpatory allegations of the accused, his guilt as
principal by direct participation of the violent death of Charles Marsh is unquestionable,
for this fact is proven in the record by the testimony of several witnesses who saw that
occurred, and even heard the threatening words uttered by the accused. The record
does not contain sufficient evidence to indicate that the accused was a habitual
drunkard. On the contrary, several witnesses affirmed that he was not in the habit of
getting drunk, and therefore, apart from the legal presumption in his favor, we are of
the opinion that we should consider in his behalf the mitigating circumstance No. 6 of
article 9 of the Code, there being no evidence that the vice of drunkenness was habitual
with the accused. We can not, however, consider the other mitigating circumstance of
lack of intention to cause so great an evil to the deceased, because one who attacks
another with so deadly a weapon as a revolver must know that the most probable result
of such an aggression is the death of the person attacked.
We can not consider, the presence of the other mitigating circumstance set up by the
defense — that is, that there was provocation or threats on the part of the deceased. It
has not been proven that this circumstance was present, for it has been impossible to
determine the origin of the affray; nor can we consider the circumstance of passion and
obfuscation, because, although it is true that the accused was knocked down, this was
the result of the quarrel and fight between the two. When men quarrel and come to
blows we can not say that one of them, with respect to the other, acted under the
impulse of passion and the loss of self-control, as this circumstance must be the result
of powerful motives which impel the defendant to commit the act.
Finally, we can not consider that in the commission of the crime there were present any
of the circumstances which exempt the defendant from criminal responsibility, in view
of the heated dispute and the insults which were bandied between the defendant and
the deceased. Furthermore, the law does not consider drunkenness as a complete
defense, but merely as a mitigating circumstance, because one under the influence of
liquor can not be regarded as entirely bereft of sense and reason.
For the reason stated, and considering the concurrence of one mitigating circumstance
only, without any aggravating circumstance to offset its effects, we are of the opinion
that the judgment appealed should be reversed, and that the defendant should he
condemned to twelve years and one day of reclusion temporal, with the accessories of
absolute, temporal disqualification during its full extent, and subjection to the vigilance
of the authorities during the period of the penalty and for an equal period thereafter, to
count from the time of the termination thereof, and to the payment of 1,000 pesos to
the heirs of the deceased and to the costs of both instances. So ordered.
G.R. No. L-29066 March 25, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARCELO AMIT, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiros for plaintiffappellee.
Emilia Vidanes-Balaoing as counsel de officio for defendant-appellant.
PER CURIAM:
Marcelo Amit was charged in the court below with the complex crime of rape with homicide
described and penalized in Article 335 of the Revised Penal Code, as amended. Arraigned with the
assistance of a counsel de officio, he pleaded guilty.
Due to the gravity of the offense charged, however, the Court required additional evidence from the
prosecution, which the latter presented in the form of (1) the extrajudicial confession of appellant in
Ilocano (exhibit A) and its translation into English (Exhibit A-1) wherein he narrated in detail how the
crime was committed; (2) the autopsy report (Exhibit B) describing the injuries suffered by the victim
as she resisted appellant's criminal advances against her honor; and (3) the medical certificate
(Exhibit C) describing the personal injuries suffered by the appellant himself during the struggle put
up against him by the victim.
On the basis of appellant's plea of guilty and the abovementioned evidence, the trial court rendered
judgment sentencing him "to suffer the supreme penalty of death, with the accessories prescribed by
law; to indemnify the heirs of the deceased Rufina Arellano in the amount of P6,000.00, without
subsidiary imprisonment in case of insolvency, and to pay the costs." Pursuant to the provisions of
Section 9, Rule 122 of the Revised Rules of Court, said judgment was elevated to us for review.
While appellant does not question the correctness of the decision under review in so far as it finds
him guilty of the crime charged, he claims, through his counsel de officio, that the penalty of death
imposed upon him should be reduced to reclusion perpetua in view of the presence of three
mitigating circumstances which the trial court should have considered in his favor, namely: (1) plea
of guilty; (2) voluntary surrender, and (3) lack of intention to commit so grave a wrong as the one
actually committed.
The Solicitor General admits that the mitigating circumstances of plea of guilty and voluntary
surrender have been proven, but denies that the mitigating circumstance of lack of intention to
commit so grave a wrong as the one actually committed was similarly established. We agree with
this latter contention.
Appellant's contention — because of its nature, must necessarily be judged in the light of the acts
committed by him and the circumstances under which they were committed. Should they show a
great disproportion between the means employed to accomplish the criminal act — on the one hand
— and its consequences — on the other — the mitigating circumstance under consideration must be
considered in favor of the accused (U.S. vs. Reyes, 36 Phil. 904, 906-907). Otherwise, it should not.
In the case at bar, the following excerpts taken from appellant's extrajudicial confession (Exhibit A-1,
translation) give us an idea of the acts committed by him in executing the crime:
Q: And what did Rufina Arellano do to you when you made her lay
down and you immediately place yourself on top of her?
A: She resisted a little, nevertheless I was able to do sexual
intercourse with her, sir.
Q: In her act of resisting you, what did Rufina Arellano do to you?
A: She bit me and scratched me, sir.
Q: What part of your body did Rufina Arellano bit and scratched?
A: She bit me on a place a little below my shoulder and scratched me
on my breast, sir.
Q: When Rufina Arellano put up a little resistance when you placed
yourself on top of her, what did you do also?
A: I held her on the neck and pressed it downward, sir.
xxx
xxx
xxx
Q: The left cheek of Rufina Arellano even swelled, do you know how
she sustained it that caused it to swell?
A: I boxed her when she resisted, sir.
Q: What hand of yours boxed the left cheek of Rufina Arellano?
A: My left hand, sir, for my right hand was holding her neck.
Q: So what was the position of Rufina Arellano when your right hand
was holding her neck as you boxed her on the cheek with your left
hand?
A: Rufina Arellano was lying down on her back and I was on top of
her, sir. (pp. 23-24, rec.)
At the time of the commission of the crime, appellant was 32 years of age, while his victim was 25
years his senior; his victim resisted his attempt to rape her by biting and scratching him; to subdue
her, appellant boxed her and then "held her on the neck and pressed it down" while she was lying on
her back and he was on top of her. These acts, We believe, were reasonably sufficient to produce
the result that they actually produced — the death of appellant's victim. Consequently, what we said
in People vs. Yu, G.R. L-13780, promulgated on January 28, 1961, would seem to apply:
The lack of intention to commit so grave a wrong as that committed cannot be
appreciated in favor of an accused who employed brute force — choking a 6-year old
girl to death, who tried to shout while he was raping her — intention being gathered
from and determined only by the conduct and external acts of the offender, and the
results of the acts themselves.
The penalty of Death prescribed in the last paragraph of Article 335 of the Revised Penal Code, as
amended by Republic Acts Nos. 2632 and 4111 being an indivisible penalty, it has to be imposed
regardless of the presence of mitigating circumstances, especially in a case like the present where,
according to the evidence of record, the crime was committed with the aggravating circumstances of
nighttime and abuse of superior strength (first paragraph, Article 63, Revised Penal Code).
Moreover, the civil indemnity awarded by the trial court must be increased to P12,000.00.
MODIFIED AS ABOVE INDICATED, the judgment appealed from is affirmed in all other respects.
With costs.
[G.R. No. 10735. August 5, 1915. ]
THE UNITED STATES, Plaintiff-Appellee, v. FRANCISCO MENDAC, DefendantAppellant.
Rovira and Amorsolo for Appellant.
Attorney-General Avanceña for Appellee.
SYLLABUS
1. HOMICIDE; SELF DEFENSE. — When two armed disputants mutually enter into the
fight for which they have prepared themselves, and for this purpose confront each
other in the middle of the street, the fact that one of them through the instinct of selfpreservation is beforehand in attacking the other, without waiting to be attacked, is a
mere accident of the struggle, so it would be improper to apply to the case the
exempting circumstance of self-defense, established in No. 4 of article 8 of the Penal
Code; nor can the affair be classified as a duel, even though both disputants exhibited a
decided willingness to quarrel and attack each other, for the conditions fixed by the law
for the crime of dueling, especially penalized by the Code, were not present.
2. ID.; EXTENUATING CIRCUMSTANCES; LACK OF INTENTION. — When the assailant
with a definite and perverse intention of doing injury inflicts upon his victim a serious
and fatal wound in the abdomen, he cannot be given the benefit of the third
circumstance of article 9 of the Code, for it is not to be believed that he had no
intention of killing his victim.
DECISION
TORRES, J. :
This case has been brought up on appeal filed by the defendant from the judgment of
March 18, 1916, whereby the Honorable W. E. McMahon, judge, sentenced him for the
crime of homicide to the penalty of fifteen years of reclusion temporal, to an indemnity
of P1,000 to the heirs of the victim, and to the costs.
Between 2 and 3 of the afternoon of March 8 of this year when, along with others, the
victim Anselmo Badan and the defendant Francisco Mendac had been gambling in the
house of Nicolasa Piñol, situated in Dumaguete, Oriental Negros, these two quarreled
and started to fight but were separated by the lieutenant of the barrio, Crispulo Patron,
and others present. The disputants then retired to their respective houses; but about
an hour later the defendant Mendac, who lived on the hill beside the place where the
gambling had occurred, left his house and went along the road at the side of the house
of the victim Badan, distant some 20 brazas from the house in which they had been on
the point of fighting, to a place opposite that in which the defendant lived with respect
to the house where the gambling occurred. At that moment when the victim Badan saw
the defendant coming he asked him if he was willing to fight, to which the defendant
replied affirmatively, whereupon the victim came down out of his house with a bolo for
the purpose of fighting with the defendant who was also armed with a bolo. Thereupon
the defendant immediately attacked the victim and inflicted upon him a serious and
fatal wound in the abdomen, from which his intestines protruded. He died an hour and
a half later, and the physician who examined his corpse certified that he had found a
slash in the abdomen near the navel from which protruded a large portion of the
intestines, and that the victim had died as a consequence of this serious wound.
The facts set forth, duly proven in the present case, constitute the crime of homicide,
provided for and penalized in article 404 of the Penal Code, for after the altercation the
defendant had with Anselmo Badan in Nicolasa Piñol’s house, when they were
prevented from coming to blows through the intervention of the lieutenant of the
barrio, Crispulo Patron, and others there present, the disputants returned to their
respective houses and at the end of an hour the defendant Mendac, who lived on the
hill near by, came back along the street beside the house of the victim Badan, who
upon seeing him asked him if he was willing to fight. The defendant replied affirmatively
and waited, bolo in hand, for the victim to come down out of the house, and when the
latter reached the ground the two confronted each other, whereupon Anselmo Badan
immediately received a slash in the abdomen near the navel which made a serious
wound that let out his intestines and caused his death an hour and a half afterwards.
It has not been proven that in the commission of the homicide there concurred any of
the qualifying circumstances set forth in article 403 of the Code to determine the
classification as murder. Nor does any unlawful aggression, with the other requisites
established in No. 4 of article 8 of the Penal Code, appear to have preceded the violent
death inflicted upon Anselmo Badan: there is therefore no ground for the allegation that
the court incurred the fourth error assigned in the brief of the defense. If the defendant
Francisco Mendac, an hour after he had been separated by the lieutenant of the barrio
from the deceased when they were at the point of fighting on account of a violent
dispute, had not left his home, which was located some distance away from that of the
deceased, and had not appeared in front of and close to this latter house in the street,
they would not have had the meeting that gave rise to the crime under prosecution,
because each had been on his guard against the other for some hours previous in the
house where the gambling occurred. When Anselmo Badan saw from his house the
approach of the defendant and immediately understood that the defendant was looking
for a fight, he asked the latter if he was willing to fight underneath his house, saying,
according to the witnesses Crispulo Patron and Damian Barba: "Now that we’re here,
we can do as we like; so let’s end it now." This demonstrates that one was as anxious
as the other to fight, the defendant when he left his house and approached that of the
deceased and the latter in leaving his house when he saw his opponent in the street in
front of it; and if it were true that the defendant passed in front of the house of the
deceased on his way to work he would have done so at the usual hour when the
laborers begin the work they are engaged in, and if he had not been looking for a
quarrel he would have turned aside and away from the scene of the occurrence when
he saw Anselmo Badan coming down out of his house to fight.
Both were armed with bolos, Anselmo Badan came down out of his house, the
defendant Francisco Mendac waited for him in the street ready to quarrel, so when the
struggle between the two had begun the fact that one of them was the first to attack.
as is natural, is a mere accident of the contest. It would be improper to apply to the
case the exempting circumstance of self-defense, established by No. 4 of article 8 of
the Penal Code, for when the disputants were face to face mutually ready to attack, as
occurred, it is improper to admit unlawful aggression on the part of either of them and
the need of self-defense, especially when both by mutual consent made preparation
and placed themselves ready to attack each other. Nor can the affair be classified as a
duel, although both disputants exhibited a decided willingness to quarrel and to attack
each other, because the conditions required by law to constitute the crime that of
dueling, as especially penalized by the Code, were not present.
We accept the ruling of the lower court and the classification it made in view of the
evidence adduced at the trial, because there is no ground or reason for making a
different finding from the facts that occurred; and as there did not concur in the
perpetration of the homicide any extenuating or aggravating circumstance, the penalty
the law fixes for the crime must be imposed in its medium degree.
As for the first error assigned by the defense, it cannot be denied that the ruling of the
lower court in denying the motion to dismiss filed during the trial by counsel for the
defendant is in accordance with law, especially when such ruling is within the sound
discretion of the court that tries the case and passes upon the merits which the
evidence developes; and the result of the trial has justified the correctness of said
ruling. Also the allegation is to be held groundless that the second error was incurred
by the court in finding that the defendant had appeared in the vicinity of the victim’s
house, not in order to go to work in the town of Dumaguete, but to continue the fight
that had been interrupted some time before through the intervention of the lieutenant
of the barrio, and to kill the victim.
The trial court made no error in not holding in the defendant’s favor any extenuating
circumstance, such as Nos. 3 and 4 of article 9 of-the Code, for even though the
defendant in attacking his adversary only inflicted upon him a single wound the fact is
that he slashed him in the abdomen with perverse intention and inflicted upon him a
serious and fatal wound; and therefore in doing so it is to be presumed that he
definitely intended to inflict upon him the greatest injury possible and even death. Nor
can it be held that there was provocation on the part of the victim, for if the defendant
had not appeared in the street in front of the victim’s house, perhaps the crime would
not have been committed. Therefore it must be held that the two were ready and
willing to fight, for one sought the other and both at once confronted each other armed,
although the defendant, impelled by the instinct of self-preservation, did not wait for
his adversary’s attack and was beforehand in striking him, thus inflicting a fatal wound.
For the foregoing reasons the judgment appealed from should be affirmed, as we do
affirm it, with the costs of this instance against the defendant, with the further
understanding that he be sentenced to the accessories of article 59 of the Code. So
ordered.
FIRST DIVISION
[G.R. No. 27093. August 11, 1927.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. JULIAN
FLORES, Defendant-Appellant.
Sison & Enage for Appellant.
Attorney-General Jaranilla for Appellee.
SYLLABUS
1. MURDER, LACK OF INTENTION TO COMMIT. — Held: Under the facts stated in the
opinion, considering the weapon which the appellant used, which was a heavy club, in
relation with his of mind at the time, and the fact that he followed the deceased some
distance and attacked him, without giving an opportunity to defend himself, that he had
an intention to do exactly what he did, which was to kill the offended person.
DECISION
JOHNSON, J.:
On the 8th day of May, 1926, a complaint was presented in the court of the justice of
the peace of the municipality of Balungao, Province of Pangasinan, charging the
defendant with the crime of assassination. Upon that complaint he was arrested. A
preliminary examination was held, after which the justice of the peace found that there
was probable cause for believing that the defendant was guilty of the crime charged in
the complaint and held him for trial in the Court of First Instance.
Later, and on the 28th day of June, 1926, the prosecuting attorney of the Province of
Pangasinan presented a complaint against the defendant, charging him with the crime
of homicide. The complaint alleged:
jg c:ch an rob les.com.p h
"Que en o hacia el 7 de mayo de 1926, en el Municipio de Balungao, Provincia de
Pangasinan, Islas Filipinas, el referido acusado, voluntaria, ilegal y criminalmente
acometio y agredio con un instrumento de madera para pilar arroz llamado
vulgarmente alo a Fernando Ballesteros, causandole al efecto la fractura de dos costillas
en el lado izquierdo, la cual es grave y mortal de necesidad que motivo la muerte de
diche Fernando Ballesteros momentos despues de la agresion.
"Hecho cometido con infraccion de la ley."
cralaw virt u a1 aw lib rary
Upon that complaint the defendant was arraigned and pleaded not guilty. The cause
was brought on for trial on the 24th day of November, 1926. At the close of the trial
and after a consideration of the evidence adduced, the Honorable Buenaventura Reyes,
judge, found that the evidence showed beyond a reasonable doubt that the defendant
was guilty of the crime of homicide, with the attenuating circumstances of unjust
provocation, arrebato and obcecacion, and sentenced him to be imprisoned for a period
of twelve years and one day of reclusion temporal, with the accessory penalties of the
law, to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.
From that sentence the defendant appealed and now contends that the lower court
committed an error (a) in not absolving the defendant upon the ground that what he
did was done in legitimate self-defense; (b) in not appreciating in favor of the appellant
the attenuating circumstance of drunkenness; and (c) in not appreciating in favor of the
appellant his lack of intention to cause so serious an injury to the offended person.
An examination of the record discloses the following facts: That on the 7th day of May,
1926, one Miguel Apigo, residing in the barrio of Alajal of the municipality of Balungao,
Province of Pangasinan, gave a luncheon in his house at which were present the
defendant, the said Fernando Ballesteros and others; that after the luncheon was over,
all of the persons present went down out of the house of Miguel Apigo and seated
themselves in the yard; that while they were thus seated a conversation arose among
them concerning the difficulties of life; that during the discussion the defendant Julian
Flores made the following statement to the said Fernando Ballesteros: "Que fuera a su
casa con su familia y el (el acusado) se encargaria de mantenerlos como cerdos." Upon
hearing that statement of the defendant, Fernando Ballesteros replied, saying: "Que no
necesitaba que un hijo bastardo mantuviese a el y a su familia;" that following the
interchange of said remarks, together with others of a like character, apparently the
quarrel became quite heated between them and was only stopped by the kindly
intervention of some of the other persons who were present on that occasion; that soon
thereafter Fernando Ballesteros left the house of Miguel Apigo in direction of his home,
carrying with him his rooster; that a little later the defendant taking up a piece of
timber, which was used by the natives for the purpose of hulling rice, called "alo,"
followed Fernando Ballesteros, soon overtaking him, and with said piece of timber
struck him, breaking two ribs of said Fernando Ballesteros on the left side of his body,
from the effects of which he died a few moments later.
On the same day the defendant was arrested, and in the presence of the justice of the
peace and the presidente of the said municipality practically admitted the foregoing
facts, but tried to make it appear that when he approached Fernando Ballesteros, the
latter turned around and was in the act of attacking him and that was the reason why
he struck him with the club which he was then and there carrying.
The lower court found that the evidence did not support that contention of the
appellant. The lower court found that he, suddenly and without notice and without
giving Fernando Ballesteros an opportunity to defend himself, at- tacked and caused
the death of said Fernando Ballesteros. Upon that question an examination of the
evidence, in our judgment, clearly supports the conclusion of the lower court. There
was an effort made in the lower court also to show that the appellant was drunk at the
time the acts complained of were committed. The lower court reached the conclusion
that that contention of take appellant was not supported by the evidence. An
examination of the record clearly supports that conclusion of the lower court.
With reference to the contention of the appellant that he had no intention of causing so
serious an injury at the time he struck Fernando Ballesteros, considering the weapon
which the appellant used, which was a heavy club, in relation with his attitude of mind
at that time, and the fact that he followed the deceased some distance and attacked
him without giving him an opportunity to defend himself, in our opinion clearly show
that he failed to take into consideration the consequences of his act and that he
intended to do exactly what he did and must be held responsible for the result.
While the Attorney-General hesitates to accept the conclusion of the lower court with
reference to the attenuating circumstances of unjust provocation, arrebato and
obcecacion, we are inclined to accept that theory. The record discloses that each used
very insulting language concerning the other and that they must have been very greatly
excited as a result of the quarrel, or otherwise the other people present would not have
intervened. The acts complained of were committed by the defendant soon after the
quarrel had taken place.
Considering all of the facts and circumstances from the beginning of the quarrel
between the deceased and the appellant up to the commission of the acts complained
of, we feel justified in sustaining the conclusion of the lower court upon that question.
We find nothing in the record which justifies a modification of the sentence appealed
from. Therefore the same is hereby affirmed, with costs. So ordered.
G.R. No. L-29210
October 31, 1969
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE BRAÑA, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Frine' Zaballero and
Solicitor Oscar C. Fernandez for plaintiff-appellee.
Samuel T. Bañez as counsel de officio for defendant-appellant.
REYES, J.B.L., J.:
Automatic review of the decision of the Court of First Instance of Iloilo (in Crim. Case No. 11663)
sentencing therein accused Freddie Braña to death for the slaying of Corazon Tabaño.
The records show that at about 7:30 in the morning of 6 January 1967, 19-year old Corazon Tabaño
was found by her mother in their house at 178 Magdalo St., La Paz, Iloilo City, bleeding from several
stab wounds. Rushed to the St. Paul's Hospital, she expired a few minutes after arrival. The autopsy
report (Exhibit "A") revealed that the deceased sustained five stab wounds: (a) one in the thorax,
penetrating in downward direction the right mid-clavicular line level of the first rib, perforating the
upper lobe of the lungs through and through, with the point of the bladed instrument used hitting the
6th rib; (b) one 3-1/2 cm. wound in the abdomen, 2-1/2 cm. above the umbilicus, penetrating
horizontally and perforating the jejunum and the aorta through and through, the point of the bladed
instrument used hitting the spinal column; (c) third stab wound, 3-1/2 cm. long, in the right middle
portion of, the abdomen, penetrating downward and at perforating the right kidney through and
through, exit at right posterior lumbar region, 1 cm. long; (d) one stab wound, 12-1/2 cm. long, on the
left forearm, lateral aspect, distal 3rd down to the wrist; and (e) a stab wound, 3-1/2 cm. long,
passing through and through, from left lateral elbow to postero-lateral aspect, medial portion, with
exit about 1 cm. long. The cause of death was certified to be shock due to hemorrhage from stab
wounds.
For the aforementioned death of Corazon Tabaño, Freddie Braña, a student, was formally charged
with murder qualified by evident premeditation and abuse of superior strength, and attended by the
aggravating circumstances of disregard to sex and dwelling.
The prosecution tried to establish its case through its witnesses:
CONCEPCION TABAÑO, mother of the deceased, testified that in the morning of 6 January 1967,
while she was in the kitchen of their house at 178-A Magdalo St., she heard a cry of her daughter
Corazon, "Help, help, Mother, help"; that she ran to the room from where the voice came, and there
she saw the accused Freddie Braña stabbing her daughter by blows in rapid succession with a knife;
that while Corazon was trying to parry the blows, she heard the accused say, "So, you don't want
me? I better kill you"; that Corazon was able to get away from her assailant and ran towards the
door, whereupon she pushed Corazon into another room and barred the door; that while they were
inside the room she heard the accused (who was outside) saying, "If I could only enter the room I will
kill all of you". This witness likewise declared having known the accused since 1962 because he
used to go to their then place of residence at the Normal School site, and that thereafter said
accused even became a boarder of her sister at No. 178- A Magdalo St., where she and her family
also took residence.
Prosecution witness RAFAELA FORTALEZA, a first cousin of Corazon Tabaño, declared in court
that, she came to know the accused Freddie Braña in 1962 when he boarded in their house at 178-A
Magdalo St.; that Corazon Tabaño started living in the same address in 1964; that she had heard
the accused and the deceased talk about love, but Corazon did not accept Freddie's proposal
because she wanted to finish her studies first; that on two occasions, the last being on 5 January
1967, Corazon informed her that Freddie Braña had threatened to kill her (Corazon) if she would
accept other suitors; that on Corazon's request she did not reveal to the latter's parents the alleged
threat of the accused upon the life of Corazon.
Patrolman FELIPE LORCA of the Iloilo City police force testified that on 6 January 1967 he met the
accused Freddie Braña at the Iloilo Mission Hospital when the latter was brought in there in a
stretcher; that upon inquiry the accused told him that he (the accused) had stabbed himself after
stabbing a woman on Magdalo Street; that having verified that a woman was indeed stabbed and, in
fact, was in serious condition at the St. Paul's Hospital he proceeded to 178 Magdalo St. to conduct
an investigation. There he found the knife smeared with blood (Exhibit "B"), which he turned over to
the corresponding police authorities.
ANDRES SUAREZ declared that on 6 January 1967, while on his way to school, he noticed a big
crowd gathered near the railroad track on Magdalo street; that when he got near he saw the accused
lying on his stomach pleading to a certain Leopoldo Hortinilla to bring him to the hospital; that as
Hortinilla was alone, he helped him carry the accused to the main road; that on the way he asked the
accused about his wounds at the stomach and the latter replied that he stabbed himself after
stabbing a woman.
Upon the other hand, the defense presented witnesses to disprove the prosecution's theory that the
accused was a rejected suitor of the deceased. .
MARIA LUZ LAURO, an aunt of Freddie Braña and also a boarder at No. 178-A Magdalo St.,
declared that Freddie and Corazon were sweethearts; that she had seen them going out together,
and in the house they took food from the same plate and using the same spoon; and that Freddie
had in his possession a picture of Corazon with dedication at the back thereof addressed to "Dearest
Freddie."
DELIA BRAÑA, sister of the accused, testified that she and her brother Freddie had stayed in the
house at No. 178-A Magdalo street not as boarders, because they cooked their own food; that she
knew Freddie and Corazon were sweethearts because they saw movies together, they used to eat
from one plate and using only one spoon; that when Freddie and Corazon were in the house they
always stayed in the receiving room whispering to each other; that she even saw Freddie keeping a
picture of Corazon with the dedication "Always love you" and signed "Neneng" (Corazon); that her
brother left the house at 178-A Magdalo street on 3 January 1967 because the parents of Corazon
were often scolding the latter for seeing movies frequently with Freddie; that when Freddie was still
in the hospital she brought to him his notebooks that were left in Magdalo, and from one of the
notebooks she saw Freddie get the picture of Corazon and tear it to pieces.
Accused FREDDIE BRAÑA took the witness stand and testified that he and the deceased, Corazon
Tabaño, were sweethearts from 1962 to 1967; that they often went to church, attended novenas,
and saw motion pictures together; that at one time, while coming out of the balcony section of the
Ever Theatre in Iloilo City, they were seen by a cousin of Corazon, Mamerto Donato, who upbraided
her for missing her classes and took her home; that during the Christmas vacation of 1966 he asked
Corazon to allow him to go to Janiuay, Iloilo; that she consented, although he was advised to behave
well; that when he returned to Iloilo City on 1 January 1967 Corazon told him to transfer to another
house because her parents had learned of their relationship and they were always quarreling; that
following her suggestion he moved to a house at the back of the Mission Hospital, although his sister
was left behind at the house on Magdalo street; that in the morning of 6 January 1967 he had taken
a bus for Iloilo City to see Atty. Quirico Defensor; that the bus passed Magdalo street and in front of
Corazon's house the vehicle stopped to allow a passenger to get off; that at that instance he saw
Corazon going up their house; that he alighted from the bus and followed her; he found there was
nobody in the house except the deceased; that he first went to the kitchen to light his cigarettes, but
as he could find none, he proceeded to the room of Corazon; there, he caught her and kissed her
without the latter offering any resistance; that while thus kissing they heard footsteps coming from
the main stairs, so Corazon pushed him away; that when the footsteps they heard did not go to the
place where they were he tried to kiss her again, but Corazon held his hair, pushed him back and
ran away; that she returned holding a knife, demonstrating, "I told you not to court anyone. You court
Inday Lala" (referring to Rafaela Fortaleza); that he retreated laughing and saying to her, "So, Ling,
you are going to stab me?"; that as he had reached the wall and could back no farther he jestingly
raised his shirt, whereupon Corazon stabbed him with the knife; that his vision became blurred, and
unknowingly wrestled away the knife from Corazon's hand and stabbed her. The accused also
declared that upon his discharge from the hospital he stayed for a few days in the house near the
Mission Hospital until he was brought to the house of Atty. Rico Defensor, who surrendered him to
the police authorities. The accused confirmed the testimonies of the defense witnesses that he and
Corazon used to take their meals sharing one plate and using the same spoon, and that he
destroyed to pieces Corazon's picture, the only evidence of their relationship, not knowing that it will
be needed.
RIZALINO VILLANUEVA of the Iloilo City Police Department testified for the defense and declared
that at about 2:45 in the afternoon of 31 March 1967 the accused Freddie Braña, was surrendered to
him by Atty. Quirico Defensor, which fact was duly entered in the police blotter.1
On 15 April 1968, the trial court rendered judgment, finding Freddie Braña guilty of murder for the
killing of Corazon Tabaño, aggravated by the circumstances of commission in the dwelling of the
victim and of insult or disregard of respect due the offended party on account of her sex, without any
mitigating circumstance to offset them. Accordingly, the accused was sentenced to death and to pay
the costs. Hence, this automatic review of the case.
The accused does not deny that in the morning of 6 January 1967 he inflicted multiple stab wounds
on Corazon Tabaño by means of the knife, Exhibit "B", from which wounds the latter succumbed on
the same day. It is his contention, however, that the trial court erred in considering the killing to have
been qualified by the circumstance of evident premeditation.
In holding that the slaying was deliberate and premeditated, the lower court relied on the sole
testimony of prosecution witness Rafaela Fortaleza that on two occasions, the last one being on 5
January 1967, or the day before the killing, she was informed by Corazon that the accused Freddie
Braña had threatened to kill her (Corazon) should she accept other suitors.
It must be remembered in this connection that to justify a finding of evident premeditation it is not
enough that there be a threat on the life of the victim; it must be proved that the accused not only
had decided to commit the crime but also that the decision was the result of meditation, calculation,
and reflection.2 And these elements: (1) the time when the offender determined to commit the crime;
(2) the act manifestly indicating persistence or determination to commit it; and (3) sufficient lapse of
time to enable meditation and reflection between the moment when the offender determined to
commit it and the actual execution of the crime, have to be established by evidence as clear as the
proof of the crime itself.3
In the case herein, aside from the fact that the testimony of witness Fortaleza on the alleged threat is
uncorroborated and its admissibility open to question, such declaration alone would not stand to
support a ruling of evident premeditation. Even assuming that the testimony that the accused had
threatened the deceased at noontime of 5 January 1967 were true, the record is devoid of any proof
that concrete steps have been taken by the said accused to carry out that threat and that he had
sufficient time to reflect and meditate on his planned action, between the moment when he decided
to execute it and the early morning of 6 January 1967, when the killing actually happened.
Nevertheless, we must affirm the lower court's decision that the crime committed is murder, in view
of the existence of the qualifying circumstance of abuse of superior strength. For it cannot be
disputed that when the accused attacked the unarmed 4 feet, 11-inch girl with the knife, Exhibit "B",
the former had abused that superiority which his sex and weapon employed afforded him, and from
which the deceased would be unable to defend herself.4
The court below appreciated two circumstances that allegedly aggravated the offense: dwelling of
the victim and insult or disrespect due to her sex, the killing having taken place in the house of the
deceased and said victim being a woman. While we sustain the consideration of the first, there being
no question that the incident happened in the house at 178-A Magdalo street where the victim and
her family resided, and that by then the accused had ceased living therein, the same thing cannot be
said of the second circumstance. The fact that the victim is a woman does not per se constitute
disregard of the respect due her sex that would aggravate a crime. For this circumstance to be
properly considered, it must be proved that in the commission of the crime the accused had
particularly intended to cast insult or commit disrespect to the sex of the victim. 5 No evidence to that
effect has been presented here.
On behalf of the accused, counsel de officio urges the consideration of three mitigating
circumstances — sufficient provocation by the victim, lack of intent to commit so grave a wrong, and
voluntary surrender.
The defense of previous provocation, said to consist in Corazon's act of assaulting the accused with
a knife and eventually wounding him, was overruled by the trial court, not only for being improbable
but also because it was contradicted by the testimonies of Patrolman Felipe Lorca and witness
Andres Suarez that the injuries found on the body of the accused were self-inflicted.
There is no reason for us to disagree with the foregoing judgment. To challenge the conclusion of
the lower court, that the deceased did not provoke the assault upon her person, is to raise the
question of credibility of the witnesses; and it is the rule in this jurisdiction, well-settled by its
consistent observance, that the ruling of the trial judge on the weight to be accorded to testimonies
of witnesses will not be disturbed by the appellate tribunal, unless the same is not supported by
evidence. There is nothing in the record to show that the melodramatic, implausible and unsupported
version of the accused is at all true, and its very improbability belies his story.
As regards the claim of lack of intent to commit so grave a wrong, we find it to be without merit.
Intention is a mental process, an internal act, a state of mind, that generally can be determined or
deduced from the acts of the offender and the effects resulting therefrom.6 In this case, the inflicting
by the accused of five (5) stab wounds caused in rapid succession, three of the blows finding their
mark in the victim's thorax and abdomen and damaging vital internal organs, brings forth in bold
relief the intention of the accused to snuff the life of the deceased, and definitely negates any
pretense of lack of intention to cause so serious an injury. 7
But we have to appreciate in favor of the accused the mitigating circumstance of voluntary
surrender. For while it is true that the warrant for his arrest was dated 7 March 1967 and the police
authorities were able to take custody of the accused only on 31 March 1967, there is nothing on
record to show that the warrant had actually been served on him, or that it had been returned
unserved for failure of the server to locate said accused. Upon the other hand, there is direct
evidence that the accused voluntarily presented himself to the police on 31 March 1967.8 And the
fact that it was effected sometime after the warrant of arrest had been issued does not in the least
detract from the voluntary character of the surrender, in the absence of proof to the contrary. Thus,
in one case,9 this Court considered voluntary surrender in favor of the accused, notwithstanding that
he showed up 16 days after the order for his arrest was issued, on the ground that the law does not
require that before the privilege may be availed of the surrender should take place prior to the
issuance of the arrest order.
The crime committed by herein accused is murder, punishable by reclusion temporal in its maximum
period to death. With the aggravating circumstance of dwelling offset by the mitigating circumstance
of voluntary surrender, the imposable penalty should be that in its medium period, life imprisonment.
WHEREFORE, the decision of the lower court is hereby modified; the accused is sentenced to life
imprisonment and to indemnify the heirs of the deceased in the sum of P12,000.00, and to pay the
costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando and Teehankee, JJ., concur.
Sanchez and Barredo, JJ., took no part.
G.R. No. L-13780
January 28, 1961
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO YU, alias SOSTENES YONGCO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Enrique M. Fernando for defendant-appellant.
PER CURIAM:
The amended information recites:
"The undersigned accuses Antonio Yu alias Sostenes Yongco of the crime of Rape with
Murder, under Art. 335 in relation to Art. 248 of the Revised Penal Code, committed as
follows:
That on or about November 14, 1957, in the City of Davao Philippines, and within the
jurisdiction of this Court, the above mentioned accused, by means of violence and
intimidation, did then and there wilfully and feloniously have carnal knowledge of one Delia
Abule, a girl of 6 years of age against her with that on the occasion of the said crime of rape
the accused in order to silence the said Delia who was then shouting, did then and there
wilfully, unlawfully and feloniously, with abuse of superior strength, and with intent to kill,
attack, assault and strangle the said Delia Abule, and as result thereof, the latter died.
The commission of the foregoing offense was attended by the following aggravating
circumstances: (1) that craft was employed and (2) that the acts were committed with evident
premeditation."
With the assistance of counsel de oficio, the accused pleaded guilty to the crime charged, reserving,
however, the right to prove the mitigating circumstance of "lack of intent to commit so grave a crime".
After hearing, the CFI of Davao rendered judgment, the dispositive portion of which reads:
"IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable
doubt of the complex crime of Rape with Murder, charged in the Amended Information,
attended by two aggravating circumstances, namely (1) evident premeditation; and (2)
employment of craft, which are set off and compensated by the two mitigating circumstances
appreciated in favor of the accused, namely (1) plea of guilty before reception of evidence,
and (2) lack of intent to commit so grave a wrong as that which resulted.
Under the express provisions of Art. 48 of the Revised Penal Code, the proper penalty to be
imposed in case of a complex crime is the penalty for the most serious crime, the same to be
applied in its maximum period. In the case at bar, Murder is the more serious crime, and the
penalty provided for in Art. 248 is Reclusion Temporal in its maximum period to Death. With
reluctance and a heavy heart therefore, inspired by the personal feeling and view of the
undersigned with respect to for any crime, the Court the wisdom of the penalty of death finds
itself with no other alternative but to impose the penalty provided for by express mandate of
the law. The accused is hereby sentenced to DEATH for the terrible crime he has committed,
to indemnify the heirs of the deceased Delia Abule in the sum of P6,000.00, and to pay the
costs."
The case is now before us for automatic review. Counsel de oficio assigned three (3) errors,
supposedly committed by the trial court, to wit: .
1. The lower court was without jurisdiction to try the offenses; .
2. The lower court erred in finding that the defendant-appellant committed the complex
crime;
3. The lower court erred in imposing the death sentence on the defendant-appellant.
In order to facilitate the resolution of the above questions, we deem it convenient to first dispose of
the second assigned error.
We are of the opinion that the appellant had committed the complex crime of rape with homicide
(homicide used in its generic meaning). The amended information alleged a complex crime. The
raping and the killing of the victim were simultaneously committed, making the crime a complex one.
The killing is murder, in view of the attendance of the qualifying circumstance of superior strength,
considering the tender age of the victim, who was just a 6 year old girl (People v. Jamoralin, G.R.
No. L-2257, February 19, 1951). As aptly stated by the learned trial court, to which we agree: "There
is unity of thought in the criminal purpose of the accused, and this unity of thought and action cannot
be altered by the circumstances that both the crime of rape and the crime of murder resulted. The
accused had to choke and strangle the girl at the same time that he was satisfying his lust on her. It
was necessary for him to silence her so that he could consummate the rape, .... It is noteworthy that
even when he testified, the accused did not claim that he killed the girl after he had already raped
her in order to prevent detection of what he did to her."
The above conclusions of the trial court was strengthened by the accused himself when he testified
that —
"My only intention was to abuse her, but when she tried to shout I covered her mouth and
choked her and later I found out that because of that she died."
which carried the implication that the accused was abusing her when she shouted and that he
strangled her to silence or stop her from resisting. The acts were simultaneous and constituted two
or more grave or less felonies (Article 48, Revised Penal Code, as amended by Act No. 4000). The
case of People v. Matela, 58 Phil., 718, where we found the accused guilty of two separate offenses
(rape and homicide) under an information charging the accused with the complex crime of rape with
homicide, finds no application in the case at bar, because in said case, there was nothing before the
court to show, after proofs were adduced on a plea of not guilty, that both crimes were so connected
as to constitute a complex crime under Article 48. In the present case, the amended information
alleges that, "on the occasion of the said crime of rape the accused in order to silence the said Delia
Abule who was then shouting, ... attacked, assaulted and strangled her," and the accused voluntarily
pleaded guilty thereto.
In connection with the first issue, we are of the opinion that the trial court had acquired jurisdiction to
try and decide the case, notwithstanding the fact that the complaint was not signed by the parents or
guardian of the victim, but by the prosecuting fiscal only. The crime committed being complex and
one being a public crime, the provincial fiscal alone could sign the complaint. In the case of Pueblo
v. Orcullo, G.R. No. L-1978, May 30, 1949, 46 O.G. Supp. No. 11, pp. 240, 244, where the accused,
charged with robbery in band with rape, claimed that the trial court did not acquire jurisdiction over
the case, because the complaint was not subscribed to by the offended parties, we declared that the
case of People v. Martinez, 43 O.G. 135, was not applicable to said case, holding:
Se trata hay de un robo con violacion, que es un delito complejo especialmente penado por
el articulo 294 par. 2 del Cogido Penal Revisado. Si fuese una causa de violacion simple, la
defensa tendria razon. La violacion es un delito que no se puede perseguir sino a instancia
de la parte ofendida, sus padres, abuelos 6 tutor (Art. 344 Codigo Penal Revisado). El delito
de robo con violacion es perseguible de oficio aun sin instancia de la parte ofendida. La
instancia de ofendida no es indispensable en el caso presente.
There is no reason why the ruling above enunciated should not be relied upon in the instant case. A
comment on this point states, with a great deal of persuasive effect, that —
In cases of complex crimes where one of the component offenses is a public crime, the
criminal prosecution may be instituted by the fiscal. The reason therefor is that since one of
the component offenses is a public crime, the latter should prevail, public interest being
always paramount to private interest. Thus, under the provisions of Republic Act No. 2632,
amending Article 335 of the Revised Penal Code, if on the occasion or by reason of the
commission of the crime of rape, whether consummated or attempted, homicide is
committed, the criminal action may be instituted at the initiative of the prosecuting fiscal."
(Kapunan, Criminal Procedure, 1960 Ed., p. 47 ).
The trial court, in finding the appellant guilty of the crime charged, considered the aggravating
circumstances of: (1) evident premeditation; and (2) employment of craft, alleged in the amended
information and compensated them with the mitigating circumstances of: (1) Plea of guilty; and (2)
lack of intention to commit so grave a wrong as that which resulted. Having pleaded guilty to the
information, these aggravating circumstances were deemed fully established, for the plea of guilty to
the information covers both the crime as well as its attendant circumstances (People v. Acosta, G. R.
No. L-7449, March 23, 1956; also People v. Yamson, et al., G.R. No. L-14189, Oct. 25, 1960; Moran
on the Rules of Court, 823). We cannot, however, consider in favor of the appellant, the mitigating
circumstance of lack of intention to commit so grave a wrong as that committed. To prove this
circumstance, the appellant testified that "my only intention was to abuse her, but when she tried to
shout, I covered her mouth and choked her and later I found out that because of that she died."
Since intention partakes of the nature of a mental process, an internal act, it can, as a general rule,
be gathered from and determined only by the conduct and external acts of the offender, and the
results of the acts themselves. It is easy enough for the accused to say that he had no intention to
do great harm. But he knew the girl was very tender in age (6 years old), weak in body, helpless and
defenseless. He did not only cover her mouth to silence her, but choked her. He knew or ought to
have known the natural and inevitable result of the act of strangulation, committed by men of
superior strength, specially on an occasion when she was resisting the onslaught upon her honor.
The brute force employed by the appellant, completely contradicts the claim that he had no intention
to kill the victim (People v. Orongon, 58 Phil., 421; People v. Flores, 50 Phil., 549; People v. Reyes,
61 Phil., 341).
It should be noted that the appellant pleaded guilty after he had prevailed upon the prosecution to
amend the original information, deleting the aggravating circumstance of abuse of confidence,
thereby leaving only the two appearing in the amended information. Appellant made only one
reservation before entering a plea of guilty and that was to testify in his behalf to prove the mitigating
circumstance of lack of intent to commit so grave a wrong as that which resulted. All of which go to
show that appellant pleaded guilty after a careful and matured reflection on the facts and
circumstances of the case and the consequences of such plea.
Finding as we do, that the crime committed by the appellant Antonio Yu alias Sostenes Yongco, is a
complex crime, the penalty for the more serious offense (murder) penalized with reclusion
temporal in its maximum period to death, should be imposed in its maximum degree, which is death.
The judgment appealed from is, therefore, affirmed with costs. (Articles 48 and 248 of the Revised
Penal Code.)
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador Concepcion, Reyes, J.B.L., Barrera,
Gutierrez David, Paredes and Dizon, JJ., concur.
G.R. No. L-15308
May 29, 1964
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO BOYLES and PIO MONTES, defendants-appellant.
Office of the Solicitor General for plaintiff-appellee.
A.R. de Joya for defendants-appellants.
PER CURIAM:
On January 27, 1959, Roberto Boyles and Pio Montes were charged in the Court of First Instance of
Davao with the crime of robbery with homicide, the information reciting three (3) a gravating
circumstances, to wit: "1. superior strength, 2. dwelling, and 3. nighttime, the accused having
purposely sought it to facilitate its commission."
Subsequently, on March 11, 1959, the information was amended to include a fourth aggravating
circumstance, namely, "the fact of two prior convictions of both accused."
Upon assignment, both defendants, duly represented by counsel de oficio, Atty. Marcial Tupas,
pleaded guilty to the charge.
ATTY. TUPAS:
The accused are willing to enter a plea of guilty and they are ready to be arraigned.
COURT:
Arraign the accused.
INTERPRETER:
Reading the information to the accused.
ACCUSED PIO MONTES:
I understand the information read to me and I PLEAD GUILTY.
ACCUSED ROBERTO BOYLES:
I understand the information read to me and I PLEAD GUILTY.
COURT:
To the accused Pio Montes:
Q. Do you understand the nature of your plea?
A. Yes, sir.
Q. You insist on pleading guilty?
A. Yes, Your Honor, because I am at fault.
To the accused Roberto Boyles:
Q. Do you understand the nature of your plea?
A. Yes, sir.
Q. You insist on pleading guilty? A Yes, sir.
Q. You understand the charge against you?
A. Yes, sir.
COURT:
Ask the same question to Pio Montes.
INTERPRETER:
Asking the accused Pio Montes.
PIO MONTES:
A. Yes, sir. (pp. 2-3, t.s.n.)
Taking into account the gravity of the offense charged and the lawful penalty that may be imposed
therefor, the trial judge directed the prosecution to go to triaI notwithstanding the plea.
COURT:
The Court would like the prosecution to present witnesses to prove the aggravating
circumstances because the discretion as to the imposition of the proper penalty is with the
Court, and the Court would like to see to it that the proper penalty is meted the accused.
FISCAL DELGRA:
Yes, your Honor, we can present witnesses.
ATTY. TUPAS
Since the accused had already pleaded guilty there is no need to present evidence.
COURT:
Under the Rules of Court the Court has discretion to let the prosecution present evidence for
the purpose of satisfying the Court that the accused is really guilty of the offense, especially
like this case when it is a capital offense. (pp. 3-4, t.s.n.)
In compliance with the foregoing discretion, the prosecution went to trial and established the
following facts:
Early in the morning of November 28, 1959, at about 3:00 o'clock, the spouses Eminiano Bayo and
Brigida Misona of Barrio Monte Carlo, Asuncion, Davao, were awakened by the barking of dogs
about their premises. Eminiano Bayo went down to investigate what the commotion was all about
and soon returned to sleep when he saw that the dogs were just barking at some wild pigs foraging
for root crops in their yard.
1äwphï1.ñ ët
Because of the incident, however, the couple were unable to sleep anymore. At about 5:00 o'clock
that same morning, while his wife was breast-feeding one of their children, Eminiano Bayo decided
to start the day and went down the house to prepare their breakfast. As he opened the door,
however, he was surprised to see a man, later identified as Felizardo Soria, menacingly standing
and all set to attack him, and, just as quickly as he could yell a warning to his wife that there was an
intruder in their abode, the man brokethrough their door, grabbed and wrestled with Bayo. On seeing
the scuffle, Brigida ran to the rescue of her husband. She tried to break the stranger away from
Bayo, but before she could be of any effective help, the man (Soria) shouted for his companions, the
herein two appellants, who came rushing to the house. Pio Montes was armed with a knife, Roberto
Boyles with a gun. Promptly, they joined the fray, and with their quarry thus greatly outnumbered,
Pio Montes stabbed Eminiano Bayo in the neck.
In panic, fear and terror, Brigida blindly sought the window and jumped, the fall spraining her waist
and breaking her legs. Immediately, the stranger who first confronted her husband run down the
house, grabbed and dragged herback upstairs where then the group demanded money from her.
She opened a trunk and get the empty tin can of Klim milk in which she and her husband kept their
savings of about P100.00 and handed over the contents to Pio Montes.
The three, however, did not content themselves with the money-loot.Exhibiting one of the ugliest and
most revolting criminal perversity this Court has ever been made to pass judgment on, the trio
forcibly brought Brigida near where her dead husband lay bathe in blood, and completely insensitive
to the painful, terrified anguish of the just-widowed mother, they forced her to lie beside the corpse
and there took turns raping her. After everyone had quenched his lustful thirst, they tied her hands
behind her back and left.
As soon as her attackers had departed, Brigida worked to free herself from the ropes. She then
woke her 6-year old son and sent him out to ask for help from their neighbors.
Upon their arrests, both appellants readily confessed to the crime. Their sworn statements were first
taken by the Davao Police authorities and later subscribed and sworn to before the Assistant
Provincial Fisca1 of Davao. There is no question whatsoever as to the validity and voluntary
execution of the said documents. They were translated into their dialects and both appellants admit
they executed them upon their own free will and with null awareness of their contents and
consequences.
The third man in the group. Felizardo Soria, was still at large when this case was filed.
As both accused have pleaded guilty, only one issue is addressed to this Court for review, and that
is, the legality of imposing the capital punishment on them.
Counsel for the appellants insists that the proceedings in the lower court have established only two
aggravating circumstances in the commission of the crime, i.e., dwelling and habituality, which are in
turn, however, offset by the two mitigating circumstances borne out by the records of this case,
namely, plea of guilty and lack of intention to commit so grave a wrong. Consequently, it is urged
that the death penalty may not be legally meted pursuant to Article 63, paragraph 2 of the Revised
Penal Code, in relation to paragraph 4 of the same Article.
ART. 63. Rules for application of indivisible penalties. ...
In all cases in which the law prescribe a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
1. ...
2. When there are neither mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty be applied.
3. ...
4. When both mitigating and aggravating circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules according to the result such of such compensation.
We regret to disagree with the position and theory advanced by the appellants.
To begin with, the appellants are now bound to accept the existence of four aggravating
circumstances in the commission of the crime imputed against them because they have pleaded
guilty to the information in which said four circumstances were expressly alleged. The jurisprudence
is firmly settled that while a plea of guilty is mitigating, at the same time, it constitutes an admission
of all the material facts alleged in the information, includingthe aggravating circumstances alleged,
such as no oppoturnity use of superior force, dwelling, etc. (People v. Egido, L-4217, Jan. 31, 1952;
People v. Santos and Vicente, L-12448, Jan. 22, 1959; People v. Agaton Salazar, L-13371, Sept.
24, 1959, all cited in Aquino, The Revised Penal Code, Vol. 1, p. 265, 1961 ed.) It matters not that
the offense is capital for the admission (plea of guilty) covers both the crime as well as its attendant
circumstances qualifying and/or aggravating the crime (People v. Marcial Ama y Perez, L-14783,
April 29, 1961; People v. Roger Perete y Manlapas, L-15515, April 29, 1961).
Although the foregoing jurisprudence covers the whole scope of appellants' appeal, We shall discuss
more extensively the various points raised in their brief in recognition of the seriousness of the
penalty imposed and because one aspect of this case needs further clarification.
The lower court appreciated nocturnity against the appellants solely on the basis of the fact on
record that the crime was committed at about 5:00 o'clock in the morning. This particular finding can
stand correction. By and of itself, nighttime is not an aggravating circumstance. It becomes so only
when it is especially sought by the offender and taken advantage of by him to facilitate the
commission of the crime to insure his immunity from capture (People v. Alcala, 46 Phil. 739; People
v. Matbagon 60 Phil. 887; People v. Pardo, 79 Phil. 658). Stated differently, in default of any showing
or evidence that the peculiar advantages of nighttime was purposely and deliberately sought by the
accused, the fact that the offense was committed at night will not suffice to sustain nocturnidad. It
must concur with the intent or design of the offender to capitalize on the intrinsic impunity afforded
by the darkness of night.
In the case presently on appeal, We note that other than the time of the crime, nothing else
whatsoever suggests the aggravating circumstance of nighttime. Not one of the prosecution
evidence, oral or documentary, makes the slightest indication that the protection of night's darkness
was deliberately availed of by the appellants. In view of this deficiency in the case for the
Government. We are constrained to disallow the said circumstance even as, technically, it may have
been accepted by them when they pleaded guilty on arraignment.
The appellant also question the lower court's finding that they employed superior strength in the
commission of the crime. They claim that the evidence on record show otherwise.
We do not think so. In the first place, there is the uncontradicted testimony of the wife of the victim,
an eyewitness to the attack, that the herein two accused jumped on the victim as he was wrestling
with Felizardo Soria and that it was while they had him thus outnumbered that Pio Montes delivered
the fatal blow. Secondly, the signed confessions of the appellants substantially tally with and confirm
the above testimony of the wife. The records do show that had not the appellants herein seized upon
their greater number and greater power to overwhelm the deceased, the latter might have defended
himself more successfully. His aggressors were armed, and he was unarmed and only by himself.
The number of the aggressors here point to the aggravating circumstance of superior force (U.S. v.
Bañagalo, 24 Phil. 69; People v. Eustaquio Caroz, et al., 68 Phil. 521).
Finally, the point is raised that "aside from the plea of guilty of the accused, the trial court should
have also considered the mitigating circumstance of lack of intention to commit so grave a wrong as
that committed." The argument is that the accused planned only to rob; them never meant to kill.
The obvious fallacy of the above argument lies in the failure to understand the true nature of the
aforementioned mitigating circumstance. Article 13, paragraph 3 of the Revised Penal Code
addresses itself to the intention of the offender at the particular moment when he execute or
commits the criminal act; not to his intention during the planning stage. Therefore, when, as in the
case under review the original plan was only to rob, but which plan, on account of the resistance
offered by the victim, was compounded into the more serious crime of robbery with homicide, the
plea of lack of intention to commit so grave a wrong cannot be rightfully granted. It is utterly of no
moment that the herein accused set out only to rob. The irrefutable fact remains that when they
ganged up on their victim, they employed deadly weapons and inflicted on him mortal wounds in his
neck. At that precise moment, they did intend to kill their victim, and that was the moment to which
Article 13, paragraph 3 of the Revised Penal Code refers.
While intent to kill is purely a mental process, it may be inferred from the weapon used, the extent of
the injuries sustained by the offended party and the circumstances of the aggression (People v.
Parana, 64 Phil. 331) as well as the fact that the accused performed all the acts that should have
resulted in the death (People v. Mercado, 51 Phil. 99). In the case at bar, the weapon used, the force
of the blow, the spot where the blow was directed and landed, and the cold-blood in which it was
inflicted, all tend to negative any motion that the plan was any thing less than to finish their intended
victim (People v. Orongan, 58 Phil. 426). Hence, the charge that the extenuating circumstance of
lack of intent to commit so grave a wrong as that committed was unjustly denied the appellants is
completely unfounded.
In summary, then, the crime committed was robbery with homicide; aggravated by three (3)
circumstances, namely, dwelling, use of superior force and habituality. Only one mitigating
circumstance, voluntary plea of guilty, is legally assessible in appellants' favor. There is absolutely
neither basis nor justice for this Court to extend unto them the extenuating circumstance of lack of
intent to commit so grave a wrong, the records of this case having conclusively demonstrated the
contrary. It may be said, though, that even if We were to credit the last mentioned circumstance in
favor of the herein accused, they still would have to be meted the death penalty since the
aggravating circumstances would still be one more than the mitigating circumstances — a condition
which under our penal system makes mandatory the imposition of the greater penalty, death.
Our attention is called to the fact that the trial court sentenced the appellants to pay, jointlly and
severally, an indemnity of only P3,000.00. As recommended by the Solicitor General's office, this
amount should be increased to P6,000.00 in line with the doctrine first laid down in the case
of People v. Amansec, G.R. No. L-927, March 11, 1948.
IN VIEW OF ALL THE FOREGOING, and, with the sole modification adverted to in the last
paragraph, the decision appealed from is hereby affirmed. Costs against the appellants.
G.R. No. L-54901 November 24, 1986
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO ABUEG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Alberto B. Maguigad for accused-appellant.
ALAMPAY, J.:
In Criminal Case No. CCC-VII-Cavite of the former Circuit Criminal Court, Seventh Judicial District of
Metro Manila (Pasig) Ricardo Abueg and Deogracias San Pedro were accused of the crime of
robbery with homicide, alleged to have been committed as follows:
That on or about November 1, 1973 in the Municipality of Rosario, Province of
Cavite, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed respectively, with a deadly weapon known as "chaco" and a
piece of wood, conspiring, confederating together and mutually helping one another,
by means of violence and intimidation and force upon things, assault, attack and
thrust the door of the house where Marciana Maraya and Diosdado Maraya were
then living, with the piece of wood, one of the accused was then conveniently
provided, hitting Marciana Maraya on her body thereby causing her instantaneous
death, and once inside, with intent of gain and without the consent of the owner, did
then and there, wilfully, unlawfully and feloniously break and smash the cabinet
(aparador), and take, steal, rob and carry away pants, shirts and baby dresses with a
total value of Three Hundred and Ninety Three (P393.00) Pesos, Philippine Currency
belonging to Diosdado Maraya, thereby resulting to the damage and prejudice of said
Diosdado Maraya and of the heirs of Marciana Maraya in the aforementioned
amount.
Contrary to law.
Upon being arraigned, both accused pleaded not guilty to the aforestated offense and the case
proceeded to trial.
The prosecution evidence, as synthesized by the trial court and substantially adopted in the People's
Brief, disclose the following:
On November 1, 1973, at about 10:30 o'clock in the evening, Diosdado Maraya, his
mother, Marciana Maraya and his cousin Norberto Alcaraz were in the house at Biakna-Bato, Rosario, Cavite. They were eating "kalamay" (rice cake) as it was All Saint's
Day. Momentarily, two persons whom they recognized as the accused Ricardo
Abueg and Deogracias San Pedro unexpectedly entered the door of their house.
Inside, Abueg asked the occupants if he could partake in eating "kalamay." Norberto
Alcaraz answered that he could do so (pp. 3-5, tsn, April 23, 1975). While Diosdado
Maraya was serving them with coffee, Abueg suddenly hit Norberto Alcaraz twice
with a "chaco" on the head and on the eyebrow and blood oozed there from.
Because the tie of the "chaco" was disengaged, Abueg and San Pedro retreated and
left (pp. 3-7, tsn., February 17, 1975; pp. 4-9, tsn., April 23, 1975).
Minutes later, Abueg and San Pedro returned. While Marciana Maraya was closing
the door of the house, Abueg speared the door with a piece of wood about one (1)
arm long and hit Marciana Maraya on the chest. Abueg struck the door again. When
it opened, he and San Pedro entered. Carrying the piece of wood he used in striking
the door, Abueg struck the plates and glasses on the table. He also struck Norberto
Alcaraz on the forearm and then destroyed the cabinet (aparador). There upon,
Abueg demanded for money but he was told by the wife of Diosdado Maraya that
they had none since her husband was jobless (pp. 8-12, tsn, February 17, 1975; pp.
9-12, tsn, April 15, 1975). After destroying the cabinet, San Pedro took theclothes
inside. Thereafter, Abueg and San Pedro left (pp. 14-18, tsn, Ibid; p. 19, tsn, Ibid).
The victim was brought to the Maternity Hospital in Rosario, Cavite where she was
pronounced dead on arrival (pp. 15-16, tsn, February 17, 1975). Dr. Nieto Salvador,
NBI medico-legal officer, conducted postmortem examination on the cadaver of the
victim. Based on the examination he conducted, Dr. Salvador found the victim
suffered fractured rib son the left chest. He testified that there was a complete
fracture of the sternum resulting in the extensive contusion of the base of the heart.
The Necropsy Report issued by Dr. Nieto Salvador shows that the cause of death of
Marciana Maraya was due to "shock and traumatic (Exh. "C", p. 126, Rec., pp. 3436, tsn, April 3, 1975).
Upon being informed of the incident, a team of policemen led by Pat. Wilfredo
Perrera repaired to the scene of the crime at about 10:00 o'clock that same evening
of November 1, 1973. At the crime scene, the policemen noticed that the door of the
house was punctured. Pat. Herrera made an inquiry from the children of the victim
and he was told that their mother was speared with a piece of wood by Ricardo
Abueg and Deogracias San Pedro (pp. 4-7, tsn, July 1, 1975).
The policemen hunted for the two suspects. They later spotted Abueg and San
Pedro at the road talking with each other. They apprehended the two and brought
them before the family of the victim who confirmed that they were the ones who
speared the victim to death. Sgt. Rodel Hernandez found two (2) pieces of wood
(Exhs. "D", 7 "D-1 ") at the crime scene. Then they brought Abueg and San Pedro
along with Diosdado Maraya and Norberto Alcaraz to the Municipal Building for
investigation (pp. 11-13, tsn, July 1, 1975).
At the police precinct, Pat. Joaquin Vargas, Jr. of the Rosario Police, conducted an
investigation on the suspects, Ricardo Abueg and Deogracias San Pedro. He also
investigated the witnesses, Diosdado Maraya and Norberto Alcaraz, and took their
respective statements (Exhs. "D" & "D-1 ", pp. 6-7, Rec.; pp. 6-10, tsn, April 29,
1975).
During the investigation, Maraya and Alcaraz Identified the two (2) pieces of wood
(Exhs. "D" & "D-1") and the "chaco" (Exhs. "E" & "E-1") as the weapons used by
Abueg and San Pedro in assaulting them. They also Identified therein the pieces of
clothes taken by the accused as theirs (pp. 34-38, tsn., April 29, 1975). Pat. Vargas
prepared criminal complaint for robbery with homicide (Exh. "F") against Ricardo
Abueg and Deogracias San Pedro and flied the same with the Municipal Court of
Rosario, Cavite (pp. 18-20, tsn, Ibid).
On the other hand, the version of the incident as submitted by the two accused, is as follows:
On November 1, 1973 at about 10:30 P.M., the two accused, Ricardo Abueg and
Deogracias San Pedro, though uninvited, went inside the residence of Diosdado
Maraya which is also the residence of Marciana Maraya. It was Ricardo Abueg who
went ahead while Deogracias San Pedro was left behind near the doorway. As is the
usual custom, being All Soul's day, the Maraya family have prepared a "kalamay"
(powdered rice cake cooked in coconut milk and sugar). Upon seeing the "kalamay,"
Ricardo Abueg asked the occupants of the house if he could partake of the same to
which he was told that he could do so. Whereupon, Ricardo Abueg stepped out of
the house in order to invite Deogracias San Pedro to join him. The latter readily
accepted the invitation and went inside.
Suddenly and for no reason at all, Deogracias San Pedro hit Norberto Alcaraz
(cousin of Diosdado Maraya) with a "chaco" (a two-piece club linked at the midsection with a string used in Martial Arts) hitting said Norberto Alcaraz on the head.
As soon as Alcaraz was hit on the head, San Pedro ran away leaving behind Ricardo
Abueg. It was perhaps due to the poor lighting (perok-perok lamps were used) and
the suddenness of the attack that prompted Alcaraz and Maraya to conclude that it
was Abueg who did the act. As a result, both Maraya and Alcaraz ganged up at
Ricardo Abueg. It should be mentioned that when San Pedro hit Alcaraz with the
"chaco," the other part of the chaco was disengaged and was lying on the floor. It
was this part of the "chaco" that was not recovered anymore. As Ricardo Abueg
proved to be no match to the committed strength of Alcaraz and Maraya, the former
retreated and ran out of the house. As soon as Abueg was outside of the house, he
saw San Pedro still holding the other portion of the "chaco." It was this portion that
Abueg grabbed from San Pedro. Abueg went back to the house and hit Norberto
Alcaraz after which he ran away.
As the duo started to leave the vicinity, Alcaraz and Maraya started to shout
unprintable words at San Pedro and Abueg. Angered by the invectives hurled upon
them, Abueg and San Pedro took pieces of wood from a fence nearby and returned
to the Maraya residence. As the door was already closed when they returned, they
rammed the door panel several times unaware that behind the door was Marciana.
After the door was rammed several times by both the herein accused, a hole was
created and in the process, Marciana Maraya who must have been standing behind
the door, was pierced with a piece of wood. She fell to the floor. Thereupon, the door
was forced open and both Abueg and San Pedro were once more able to gain
entrance. Once inside, and probably bereft of reason due to excessive drinking, the
two accused began smashing the wooden cabinet (aparador) with the pieces of
wood they have previously used in ramming the door. The wooden cabinet was
broken and according to Norberto Alcaraz, it was San Pedro alone who took some
clothes from said cabinet.
Immediately thereafter, both accused ran out of the house. Some hours thereafter,
both accused were arrested by Pat. Wilfredo Pereyna of the Rosario Police Force
and both were booked for implication for the death of Marciana Maraya and for
robbery for having allegedly carted away some clothes belonging to Diosdado
Maraya. (Appellant's Brief, pp. 3-5)
After trial, the court below rendered on March 23, 1976 judgment finding the accused Ricardo Abueg
and Deogracias San Pedro guilty as charged. The dispositive part of said decision reads:
WHEREFORE, finding the accused Ricardo Abueg and Deogracia San Pedro, both
guilty beyond reasonable doubt, of the crime of Robbery with Homicide under Art.
293 of the Revised Penal Code, in relation to Sec. 1, Art. 294 thereof, as charged in
the information, the Court hereby sentences them to suffer the penalty of DEATH; to
pay the amount of P393.00 and to indemnify the heirs of the victim the amount of
TEN THOUSAND (P10,000.00); to pay moral damages in the amount of FIVE
THOUSAND PESOS (P5,000.00) as exemplary damages and to pay their
proportionate shares of the costs.
xxx xxx xxx
However, pursuant to Section 192 of Presidential Decree No. 603, considering that
accused Ricardo Abueg and Deogracias San Pedro were both 19 years old at the
time of the commission of the crime, the execution of their sentence is suspended
and said accused are ordered confined at the Camp Sampaguita Youth Center, New
Bilibid Prison, Muntinlupa, Rizal. If said accused violate any of the rules and
regulations of said institution, or if their continued stay in the training institution is
inadvisable, the Court shall order the Director or any of his duly authorized
representatives to produce the bodies of said accused before this Court for them to
serve their sentence. (Rollo, pp. 13-14)
From the case records, it appears that on June 4, 1977, Ricardo Abueg, escaped from the Youth
Rehabilitation Center of the New Bilibid Prison at Muntinlupa, Metro Manila but was recaptured. On
June 28, 1977, Ricardo Abueg was returned to the committing court. The judgment of conviction
rendered against him in the subject criminal case was then pronounced and the trial court further
ordered the transfer of Ricardo Abueg from the Rehabilitation Center to the Death Row of the New
Bilibid Prison (Tsn, p. 69, Hearing of June 28, 1977)
There cords indicate that Deogracias San Pedro, the other accused in this case, was also returned
to the trial court on June 28, 1977. However, in his case, no pronouncement of the judgment against
him was made by the trial judge because after interrogation it was shown that he had not
participated nor was involved in the escape of his co-accused, Ricardo Abueg. The records also
disclose that subsequently, the mo tion of the counsel of Deogracias San Pedro that custody of said
accused be given to the latter's parents, without prejudice to further interviews being made by the
probation officers,was granted by the trial judge on October 19, 1977 (Case Records, pp. 382-383).
The present case is before this Court by way of an automatic review of the judgment of conviction
rendered against Abueg and the penalty imposed on him. Ricardo Abueg attributes to the trial court
the commission of the following errors:
I. THE LOWER COURT ERRED IN CONVICTING THE APPELLANT OF THE
CRIME OF ROBBERY WITH HOMICIDE NOTWITHSTANDING THE FACT THAT
CONSPIRACY HAS NOT BEEN DULY ESTABLISHED;
II. THE LOWER COURT ERRED IN NOT CONVICTING THE APPELLANT FOR
THE CRIME OF HOMICIDE ONLY, IT APPEARING THAT THIS IS THE ONLY
CRIME, IF AT ALL, WHICH WAS DULY ESTABLISHED AGAINST THE
APPELLANT;
III. ASSUMING GRATIA ARGUMENTI, THAT ROBBERY WHICH HOMICIDE HAS
IN FACT BEEN COMMITTED AND ITS COMMISSION DULY ESTABLISHED, THE
LOWER COURT ERRED IN NOT CONSIDERING THE MITIGATING
CIRCUMSTANCES OF: (1) THAT THE OFFENDER (APPELLANT) HAD NO
INTENTIONTO COMMIT SO GRAVE A WRONG AS THAT COMMITTED; (2) THAT
THE OFFENDER (APPELLANT) IS SUFFERING FROM A MENTAL DEFECT AS
WOULD DIMINISH HIS WILL-POWER IN METING OUT THE PROPER PENALTY.
Appellant does not deny that he should be responsible for the death of Marciana Maraya. In fact, in
his handwritten letter sent to this Court on August 24, 1981 (p. 80, Rollo) from the New Bilibid
Prison, he admitted that the killing of Maraya was accidental as he was not aware that the victim was
behind the lawanit door when he speared the same. He claims that at most he should be convicted
of homicide only and not robbery with homicide since it was his co-accused Deogracias San Pedro
alone who took the clothes and the conspiracy to take the same was not duly established. Appellant
argues that he returned to the victim's house, armed with a piece of wood to get even with Norberto
Alcaraz and Diosdado Maraya who beat him but that there was no previous plan or agreement to
commit a robbery.
Appellant's claim of absence of conspiracy is without merit. Conspiracy need not be proved by direct
evidence; it may be inferred from acts of assailants. Appellant and Deogracias San Pedro went back
to the house of the victim each carrying a piece of wood. With these, they struck the lawanit door
with the wood hitting Marciana Maraya inside who was closing the door. Upon gaining entrance, they
destroyed the wooden cabinet and obviously for the purpose of taking the things therein. In the
Statement of Facts appearing in Appellant's Brief, We find the following.
... Once inside, and probably bereft of reason due to excessive drinking, the two
accused began smashing the wooden cabinet (aparador) with the pieces of wood
they have previously used in ramming the door. The wooden cabinet was broken and
according to Norberto Alcaraz, it was San Pedro alone who took some clothes from
said cabinet. (Appellant's Brief, pp. 4-5).
The fact that the two assailants destroyed the wooden cabinet was attested to by Norberto Alcaraz
when he testified:
FISCAL SALCEDO:
Q What other things in the house was hit by this piece of wood which
was used by Ricardo Abueg in hitting the house?
A Glasses and plates.
Q What else?
A The aparador. They used the piece of wood in hitting the aparador.
Q As a result what happened to the aparador?
A The door of the aparador was destroyed.
Q After the door of the aparador was destroyed what happened?
A After the door of the aparador was destroyed Deogracias San
Pedro took the clothes.
Q And after those clothes were taken by Deogracias San Pedro what
happened next?
A After he has taken the clothes they left.
Q Who left?
A The two Ricardo Abueg and Deogracias San Pedro. (Tsn, April 23,
1975, pp. 17-19)
Appellant's claim that he had no previous knowledge that San Pedro would steal the clothes is belied
by his admission that he demanded money from the Marayas and even threatened them with death
if they would not give their money. Appellant testified, thus:
COURT—
Q By the way, is it not a fact that you and Deogracias San Pedro
ransacked the house of Diosdado Maraya?
A We did not ransack the house. They were the ones who gave the
clothes to us.
Q What is the logical reason why the clothes were given to you?
A Because clothes could be sold there on relief.
Q Is it not a fact that you asked money?
A I was just threatening them. I am just motioning as if I have a gun
so that they will give us.
Q What did you say when you threaten them?
A I said putang ina ninyo, pahingi ng pera.
Q What else?
A They answered they have no money and they would borrow
money. I said if you will not give money I will kill you (witness making
a gesture as if to point something). Then when they did not give
money, Deogracias San Pedro said I sigui patayin mo na William.
Q What did you do?
A So they gave the clothes.
Q When they gave the clothes, what did they say?
A When the clothes were given to me, we ran to the sea.
(pp. 58-60, tsn, September 4, 1975)
The acts of the two accused in destroying the cabinet for the obvious purpose of taking the contents
therein show a continuity of criminal design. Although no previous agreement to commit the robbery
has been proven, such is not essential. It is sufficient that the malefactors acted in concert pursuant
to the same objective. The tacit and spontaneous cooperation and coordination by the two accused
in breaking the cabinet show the existence of a conspiracy. This is bolstered by the fact that
appellant did not even prevent San Pedro from stealing the clothes and running away with the same.
To at least mitigate his criminal liability, the appellant now claims that he is suffering from a mental
defect as shown by the psychological report, dated September 26, 1976 of Nieto Latorre Vitto,
Guidance Psychologist & Acting Social Welfare Analyst, Bureau of Your Welfare, Department of
Social Services & Development (p. 267, Records). It is stated therein that in the test administered by
her, appellant "yielded I.Q.'.s of 68, 68, 66 for the verbal performance and full scale, respectively,
and which classified him in the mentally defective group."
The psychological examinations were conducted on September 26, 1976 while appellant was
already detained at the New Bilibid Prison, about three years after the crime was committed on
November 1, 1973. In going over the records of the case,We find that when appellant testified on
September 4, 1975, which was almost two years after the commission of the crime, he was able to
narrate clearly and accurately the incidents that took place. He was able to recall the place where he
and Deogracias San Pedro went before and after the incident. He even remembered the name of
Pat.Wilfredo Perrera as the policeman who arrested him as well as the time of his arrest. Appellant
likewise recalled that they were confined at the Municipal Jail of Rosario, Cavite for two months and
two weeks; thereafter, they were transferred to Trece Martires (pp. 14-57, tsn, September 4, 1975).
Considering appellant's ability to narrate vividly the details of how the crime was committed and the
other incidents that transpired thereafter, his assertion that he is mentally defective must fail.
Aside from this consideration, it is shown that Dr. Romeo Y. Tating, Chief, Neuro-Psychiatrist
Service of the National Bureau of Investigation conducted a psychiatric evaluation of the appellant
when the latter was detained at Camp Sampaguita Youth Rehabilitation Center, New Bilibid Prison.
His findings on appellant's physical and neurological examinations submitted to the court on
February 10, 1977, place Ricardo Abueg within normal limits (pp. 286-287, Records).
Finally, appellant argues that he had no intention to commit so grave, a wrong as that committed
because the intention of the two accused in ramming the door with pieces of wood was but to force it
open, and they did not know that Marciana Maraya was behind the door. As this may well be, We
are disposed to agree that under the given facts of this case, the mitigating circumstance of lack of
intent to commit so grave a wrong may be appreciated in appellant's favor. It has not been
satisfactorily established that in forcing entrance through the door which was then closed, with the
use of pieces of wood, the two accused were aware that Marciana Maraya was behind the door and
would be hurt. Even as they sought to enter the house to retaliate against the male occupants or
commit robbery, there is no clear showing that they ever desired to kill Marciana Maraya. In People
vs. Gardon, et al., 104 Phil. 371, it was held that, "Considering however the circumstances under
which the crime was committed wherein it does not appear that appellants have deliberately
intended to harm their victims though incidentally two of them laid hands on some who apparently
wanted to prevent their flight,..., the application of the imprisonment would be commensurate to the
crime committed ... "Article 13, par. 3 of the Revised Penal Code, addresses itself to the intention of
the offender at the particular moment when he executes or commits the criminal act (People vs.
Boyles, 11 SCRA 88). As the attendant circumstances in this case indicate that the death of
Marciana Maraya was not deliberately intended, the penalty that was imposed by the trial court on
the accused-appellant may be lessened.
Nevertheless, Ricardo Abueg remains liable for the crime of robbery with homicide because it is
enough that a homicide result by reason of or on the occasion of the robbery. Even assuming that
the two accused, as alleged by them, only sought to wreak vengeance on the male persons inside
the house of the Marayas, this does not exclude the fact that they went further and proceeded to rob
the said family.
WHEREFORE, the judgment of the court below is hereby AFFIRMED with modification as to the
penalty imposed on the accused-appellant Ricardo Abueg, which is hereby reduced to reclusion
perpetua but the indemnity to be paid to the heirs of Marciana Maraya is, however, increased to
Thirty Thousand (P30,000.00) Pesos.
SO ORDERED.
G.R. No. L-37408
October 10, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CANDIDO ENRIQUEZ, ET AL., defendants-appellants.
Guillermo B. Guevara for appellant Enriquez.
Monico R. Mercado for the other appellants.
Attorney-General Jaranilla for appellee.
STREET, J.:
This appeal has been brought to reverse a Judgment of the Court of First Instance of the Province of
Pampanga, finding the appellants, Candido Enriquez, Jose Palacio, Marcelo Franco, Marcelo
Bonifacio, Pedro Mocpoc, Vicente Domingo, and Ambrosio Basa, guilty of the offense of murder and
sentencing Candido Enriquez, as author by induction, to cadena perpetua, with the accessory
penalties prescribed by law, and requiring him to pay the sum of P1,000 to the heirs of the
deceased, Ciriaco D. Gines, and one-eighth of the costs of prosecution, and severally sentencing
Marcelo Bonifacio, Marcelo Franco, Pedro Mocpoc, Vicente Domingo, and Ambrocio Basa, as direct
agents in said murder, to undergo cadena perpetua, with the accessory penalties prescribed by law,
and requiring them jointly and severally to indemnify the heirs of the deceased in the amount of
P1,000, and to pay each one-eight of the costs of prosecution.
Prior to October 28, 1931, two rival corporations were engaged in the transportation of passengers
in central Luzon, both using passenger trucks, or busses, propelled by gasoline. These two lines
were the Pampanga Bus Co., operating, among other places, between Apalit and Masantol, and the
Mallorca Transportation, operating from point's in Pampanga to Manila.
The Mallorca Transportation is owned by Fernando Enriquez, father of the appellant Candido
Enriquez, and the latter was its manager with a garage in Macabebe, Pampanga. For some time
prior to the events with which we are now concerned, the Mallorca Transportation had been called
upon to answer various complaints before the Public Service Commission for infractions of its rules;
and as a consequence of these complaints several fines had been imposed upon Fernando
Enriquez. One Ciriaco D. Gines, an inspector of the Pampanga Bus Co. on its Apalit-Masantol line,
was supposed to be the person who had supplied the material for these complaints and, as a
consequence, he had incurred the ill-will of Candido Enriquez. This feeling of hospitality was
increased when, on October 26, 1931, Gines was seen jotting down the number of one of the trucks
of the Mallorca Transportation, while parked near the station of the Manila Railroad Co. in Apalit.
This seems to have been too much for Candido Enriquez, and he decided that Gines must be gotten
of the way. Accordingly in the morning of October 27, he boarded one of his busses at Macabebe
headed for Manila. His purpose, as he explained to an employee in the garage, was to hire ruffians
in Manila who would beat up Gines so that he would not interfere in the future with the business of
the Mallorca Transportation.
Arriving in Manila, Candido Enriquez found one Jose Palacio, formerly a chauffeur in the
employment of Enriquez, but who had lost his job by reason of some accident for which he was
supposed to have been responsible as driver. Enriquez told Palacio that he wanted him to procure
some ruffians (butañgeros) and bring them up to Macabebe to beat up Gines. Palacio accepted the
mandate and in the course of the day got into touch with a notorious gangster, named Marcelo
Bonifacio, and four others, Marcelo Franco, Pedro Mocpoc, Vicente Domingo, and Ambrosio Basa.
These five agreed to undertake the job. Meanwhile Candido Enriquez had already left Manila for
Macabebe and upon his arrival in that place he told two of his employees to be on the lookout for the
gangsters who would be coming up that night. True to schedule, Jose Palacio and his five ruffians
boarded the last truck of the Mallorca Transportation which left Manila at about 5 o'clock the same
afternoon. On this trip the six were charged no fares by the conductor.
Arriving in Macabebe near 8 o'clock, the truck was stopped at an old house formerly used by
Fernando Enriquez but now occupied by Maximo Tuazon, a mechanic of the Mallorca
Transportation. Palacio and his five ruffians there disembarked, and Palacio took them into this
house. Before long Candido Enriquez came in and directed that food be supplied and, finding that
sufficient food was not there available, he gave Tuazon money and directed him to procure more
food from a store.
After the men have been fed, Jose Palacio, by direction of Enriquez, showed the house of Gines to
Marcelo Bonifacio. Upon the return of the two from this errand, the six were taken into kitchen and
Enriquez there discussed with them the plan for beating up Gines. Bonifacio was for doing the work
that night, but Enriquez objected saying that an attack made at that hour would attract the attention
of too many people, observing further that Gines was not accustomed to leave his house at night. It
was accordingly decided to wait until early in the morning when Gines would be leaving his home;
and it was at the same time agreed that the stipulated compensation would be paid on the morning
when the work was done.
All then retired to rest, and at about 3 o'clock on the next morning, October 28, Candido Enriquez
awoke his employees Amado San Andres and Francisco Mallari, who were sleeping in a truck of the
Mallorca Transportation in the garage, and instructed them to go that day with Maximo Tuazon to
purchase stone in the barrio of Santa Maria, municipality of Bocaue, in the Province of Bulacan.
He then had a conversation with Marcelo Bonifacio, the head of the gang, in which the latter
suggested that his men should be provided with iron bars with which to beat up Gines. Enriquez
agreed and took the men to the garage, where he delivered to them two small iron bars. Passenger
trucks in the garage were then moved out into the street to make way for truck No. TH-4475, which
was to be used by Tuason and his companions in transporting stone from Santa Maria; but before
going on that errand this truck had something more important to do, which was to transport Jose
Palacio and his five ruffians to the house of Gines and to take them away on the road to Bocaue,
when their work of beating up Gines should be accomplished.
Accordingly, as daylight approached, Tuason and his companions, as well as Jose Palacio and his
five, boarded the truck No. TH-4475 and started on their way. Arriving with the house of Gines,
Palacio and his men alighted, and Tuason was instructed to proceed a certain distance so as not to
attract attention, and await Palacio's coming, with the others. Tuason therefore drove on and
stopped the truck a short distance away.
Before the truck left the garage that morning Candido Enriquez delivered to Maximo Tuazon the sum
of P8.50, with which to buy stone in Bocaue, and at the same time he delivered to him P20 more
with directions to give it to Bonifacio and his fellow ruffians when they should have finished the job of
beating up Gines. After the truck had stopped near the house of Gines, Bonifacio approached
Tuazon and asked him for the money which Enriquez had placed in the former's hands. In response
to this request, Tuason gave Bonifacio the P20 above-mentioned, although he had been told to
deliver it only after the work of beating up Gines had been completed. The reason Tuazon did this
was that he feared he might be assaulted in case of refusal.
Meanwhile Jose Palacio, who personally knew Gines and was serving as guide, had posted himself
in front of the house where Gines was having. Presently lights appeared, and as Gines came out,
Palacio that he was the man they were after. Upon being struck, Gines gave an exclamation and in a
moment fell to the ground unconscious. The most serious wound received by Gines was a cut, four
centimeters in length and about seven and one-half centimeters in depth, on the inner side of the
upper part of the calf of the right leg. Other wounds were three severe contusions, one on an arm
and two on the body, and two lighter bruises on the left side of the back. All of these contusions were
evidently caused by the iron bars which had been provided by Enriquez. The malefactors
immediately fled. Jose Palacio ran to the office of Candido Enriquez and reported that the victim was
down; the other assailants ran towards the waiting truck and the driver carried them rapidly towards
Bocaue. Arriving at Bocaue, the five from Manila got off the truck No. TH-4475 and boarded another
bound for Manila. While still aboard the first truck, Marcelo Franco threw the iron bar which he had
used in assaulting Gines to the ground near a gasoline station in Bocaue; and Francisco Mallari
threw the other iron bar to the ground in the barrio of Santa Ana. Both of these bars were presently
recovered upon information received from Jose Palacio and were produced in evidence in court.
Gines was left unconscious upon the ground as his assailants fled. As he recovered consciousness,
he called for help, and his cries attracted the attention of his father and other who came to his aid.
The seriousness of his wounds, especially the cut on the leg, was apparently not at first realized,
and it was 6 o'clock before he was gotten to the Pampanga provincial hospital. At 3.30 p. m. on the
afternoon of the same day, he died from shock and loss of blood.
As Jose Palacio and his five companions were gathered in by the authorities, they severally made
confessions implicating themselves in varying degrees in the incident. Jose Palacio and Marcelo
Franco admitted that the purpose of the assault was to put Gines to sleep, and it will be remembered
that the former was the person who had been commissioned by Enriquez to employ the others. Four
of the accused, namely, Franco, Basa, Mocpoc, and Domingo, admitted in these statements that
they had each been paid the sum of P4 for their part in the enterprise.
Directing our attention now a little more closely to the circumstances of the attack, we note that
Gines, in a declaration made before his death, stated that he was assaulted by three individuals, and
it is satisfactorily proved that these three must have been Marcelo Bonifacio, Marcelo Franco, and
Pedro Mocpoc. Of these three Franco and Mocpoc used the small iron bars which Enriquez had
supplied. There is no satisfactory proof as to the identity of the individual who used the knife.
Lieutenant Lauro Dizon, of the Constabulary, stated on the witness stand that Jose Palacio, told him
that he (Palacio) saw Candido Enriquez give Bonifacio a knife at the same time that he supplied
Marcelo Franco and Pedro Mocpoc with the iron bars to which reference has been made. This
statement was of course competent against Jose Palacio but not against the others. The trial judge
makes no mention of the incident in his opinion. Vicente Domingo, Ambrosio Basa and any other
individual who may have participated in the crime were apparently posted at places convenient for
keeping a lookout and giving alarm.
Upon the circumstances that the wound made with the knife on the leg of the person assaulted was
the primarily cause of death and that the author of this injury has not been identified, the attorney for
the accused chiefly plant their defense, and in this connection it is insisted that the conspiracy to
attack Gines contemplated only beating him up and did not include the infliction of injury by means of
a cutting instrument. Such an Act, so it is said, was not within the scope of the agreement; and it is
insisted that only the individual who inflicted the cut could be held responsible for the death, if that
person were known. It result, in this view, that none of the appellants can be held liable further than
for the bruises inflicted by means of the iron bars. These injuries, so it is claimed, would in the
natural course of events have been curable in a few days.
We are of the opinion that this contention is not tenable. The accused had undoubtedly conspired to
do grave personal injury to the deceased, and now that the injuries actually inflicted have resulted in
death, they cannot escape from the legal effect of their acts on the ground that one of the wounds
was inflicted in a different way from that which had been intended. A blow inflicted by one of the
small iron bars used in this assault might well have resulted in the taking of life, and the
circumstance that a knife was also used in striking the deceased does not relieve the appellants
from the consequence of their joint acts. As has been said by the Supreme Court of the United
States. "If a number of persons agree to commit, and enter upon the commission of a crime which
will probably endanger human life such as robbery, all of them are responsible for the death of a
person that ensues as a consequence." (Boyd vs. U.S., 142; U.S., 450; 35 Law. ed., 1077). In United
States vs. Patten, the court said: "Conspirators who join in a criminal attack on a defenseless man
with dangerous weapons, knock him down, and when he tries to escape, pursue him with increased
numbers, and continue the assault, are liable for manslaughter when the victim is killed by a knife
wound inflicted by one of them during the beating, although in the beginning they did not
contemplate the use of a knife." (42 Appeals, D.C., 239.)
1awphil.net
But the defense has undertaken to prove, as a matter of fact, that the fatal cut was not inflicted by
any of the hirelings brought from Manila, But by Amado San Andres, an employee of Candido
Enriquez. This individual was on the truck No. TH-4475, which carried Jose Palacio and his
gangsters from the garage in Macabebe to the scene of the killing; and a witness was put on the
stand by the defense who testified that he saw Amado San Andres fleeing from the scene of the
tragedy with a knife in hand just before he climbed into the truck which was waiting. In addition to
this, there was testimony showing a suspicious bloodstain on the foot of San Andres later in the
morning. As against this proof, account must be taken of the fact that San Andres was taken before
Gines a short while before the death of the latter supervened, and Gines explicitly stated that San
Andres was not one of the men who assaulted him. This circumstance no doubt accounts for the
facts that the name of San Andres was omitted from the information. Upon the whole the defense
has not proved that San Andres was the person who used the knife.
But even supposing that the cut was inflicted by San Andres, it would not follow that the appellants
should for that reason be exculpated from the homicide. San Andres was a employee of Enriquez.
He was present when Enriquez announced in the garage that he was going to Manila to obtain
gangsters to dispose of Gines. He was present when the Manila contingent arrived at the garage in
Macabebe at about 8 p.m. on the night of October 27, and he was on the truck that carried the
accused (except Enriquez) the next morning on their fatal mission. there is no proof that any of the
accused objected to his participation in the assault upon Gines or that they did anything to prevent
such participation. Cooperation can be inferred not only from proof of actual previous conspiracy, but
from the future of the facts done when the unlawful act is committed. Assuming, then that San
Andres was the person who inflicted the fatal cut, the conclusion would be that he was cooperating
with the appellants with their consent, and the appellants are responsible for the consequences.
The crime committed in this case was murder, in which alevosia should be taken as the qualifying
circumstance. This circumstance is conspicuous in the fact that the assault was characterized by
surprise and was effected by lying in wait for the deceased in the darkness of the night. The plan
adopted was evidently designed to insure the execution of the offense without risk to the appellants
from any defense which the deceased might make. Nocturnity and abuse of superior strength may
properly be considered as absorbed in the alevosia. There was present as to all of the accused,
except Jose Palacio, the aggravating circumstance that the offense was committed for a price in
money. There was also present, as to all the appellants, the circumstance of known premeditation in
that the offense had been under contemplation overnight, and the appellants had ample time to
reflect repeatedly on the manner in which it could best be accomplished.
The trial court gave all of the accused the benefit of the mitigating circumstance that the offender
had no intention to commit so grave a wrong. The estimation of this circumstance was proper, and
its allowance was not inconsistent with the finding that the crime was murder (U.S. vs. Candelaria, 2
Phil., 104; U.S. vs. Luciano, 2 Phil., 96; People vs. Cagoco, G. R. No. 38511, page 524, ante).
The judgment appealed from will be affirmed, it being understood that reclusion perpetua is
substituted for cadena perpetua, in accordance with the Revised Penal Code. So ordered, with costs
against the appellants.
G.R. No. L-26458 January 30, 1976
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALFONSO PAJENADO @ OSOY EDILBERTO PAJENADO, CECILIO PAJENADO, CARLITO
PAJENADO, and ANICETO TOLING, defendants-appellants.
Solicitor General Felix Q. Antonio and Solicitor Teodulo R. Diño for plaintiff-appellee.
Cesar A. Seville for defendants-appeallants.
CONCEPCION, JR., J.:
Mandatory review of the judgment of the Court of First Instance of Samar finding the accused guilty
of the crime of Murder and sentencing all of them to DEATH, to jointly and severally indemnify the
heirs of the deceased Jorge Tapong the sum of P6,000.00, and to pay the costs.
In the evening of March 26, 1966, there was a party at the house of Constancio Pajenado in barrio
Dapdap, Las Navas, Samar, to celebrate the betrothal of his daughter to the son of one Guillermo
Quebec. Food and drinks were served to the guests among whom were the municipal mayor of Las
Navas, one Ases Jolejole, barrio captain Teofilo Jorda, barrio policemen Domingo Pajac and Benito
Sacay, the deceased Jorge Tapong, and the five accused. At the height of the festivities, Mayor
Jolejole commented that the deceased Jorge Tapong was already drunk and should be brought
home. Consequently, the barrio captain, Teofilo Jorda, ordered two of his barrio policemen then
present, Domingo Pajac and Benito Sacay, to help him in taking
Tapong to the house of Pelagia Tapong Gutaba, a cousin of the deceased. While they were on their
way, the five accused, each armed with a piece of wood suddenly emerged between the houses of
Victoria Pajac and Elicito Gutaba, and with the accused Alfonso Pajenado focusing his flashlight on
the eyes of Tapong, they started beating the latter in different parts of his body until he fell. At the
time of the incident, the street was well-lighted by the light coming from a Petromax lamp in the
house of one Donata Pajac. Teofilo Jorda who was following behind and who witnessed the entire
incident blew his whistle and tried to stop the said accused from beating Tapong, but they did not
heed him. After Tapong fell down, the five accused ran away.
Teofilo Jorda aided by rural policeman Pajac and Sacay brought Tapong to hs house and attempted
to secure a statement from him. But, the deceased was already in a coma and was unable to talk.
So, Jorda sent for Tapong's relatives who took the deceased to the poblacion of Las Navas to seek
medical attendance, but Tapong died while they were on the way.
Jorda immediately reported the incident to the chief of police of Las Navas. Thereafter, an autopsy of
the deceased was made by Dr. Angel Tan. The medical examiner found that the deceased suffered
the following external injuries:
1. Hematoma 4 cm. x 1 cm., irregular in shape, left supraorbital region.
2. Abrasion-hematoma, linear in shape surrounded by an area of swelling, forearm,
right, proximal portion.
3. Abrasion-hematoma, 6 cm. x 1 cm., with its long axis perpendicular to the neck,
situated at the left supra-auricular region.
4. Abrasion-hematoma, 4 cm. x 4 cm. infra-suricular region, right.
5. Abrasion-hematoma, linear in shape 3 cm. x 3 cm. situated at the left lateral
aspect of the trunk, crossing the 6th, 7th, 8th, and 9th ribs backwards and
downwards.
6. Swelling neck, right side.
7. Hematoma with swelling right parieto-temporal region.
He concluded that the cause of death is "Uncal herniation leading to death from an increase in
intracranial pressure brought about by an intracranial hemorrhage on account of a fracture of the
right parieto-temporal bone"; and that "the swelling in the right side of the neck could have exerted
pressure on the trachea thereby further embarrassing respiratory excursions and should therefore
be considered as contributory factors in the causation of death." 1 The doctor further testified that the
aforesaid injuries could have been caused by a blunt instrument like a piece of wood.
The accused Aniceto Toling admitted responsibility for the injuries sustained by the deceased Jorge
Tapong and denied that his other co-accused had any hand in beating up the deceased. In
justification, he claims that he acted in the lawful performance of a duty or office. According to him,
he was a barrio policeman of barrio Dapdap and was also present in the house of Constancio
Pajenado when the incident' complained of took Place; that when Tapong became drunk and noisy
at the party, he helped Teofilo Jorda and Benito Sacay taking Tapong to the house of Pelagia
Tapong Gutaba; that while they -were on their way, Tapong was asking why he was taken away
from the party; that when they arrived at the house of Pelagia Tapong again asked them why he was
brought there, and the barrio captain relied that his actuations were shameful to the mayor; that
Tapong became angry and got a bolo depang from the wall of the house and jumped out; that the
barrio captain blew his whistle and ordered them to disarm Tapong; that in compliance with said
order, he picked up a piece of bamboo and told Tapong to drop his weapon, but Tapong, instead,
lunged at him, for which reason, he struck Tapong in the arm; that Sacay, who was behind Tapong,
also beat Tapong several times with a lice of wood; that his co-accused Alfonso. Pajenado was
focusing his flashlight on Tapong while he was beating up the latter; that after Tapong fell, he got the
bolo from the hands of the ate Tapong and handed it to Patrolman Ortiz who was standing nearby,
and then left for home, across the river; that the following morning, he went to his farm and while
there, his conscience bothered him for which reason, he went to the chief of police of Las Navas the
next day and reported the matter, but the chief of police told him to wait for the complaint; and that in
the meantime, he was held in protective custody.
The accused Alfonso Pajenado admitted that he was the one focusing his flashlight on the deceased
when Toling was beating Tapong, but denied having participated in the said beating of the
deceased.
All the other accused, namely: Edilberto Pajenado, Cecilia Pajenado, and Carlito Pajenado, did not
testify in court.
Inasmuch as Aniceto Toling admitted that he was the author of the death of the deceased Jorge
Tapong, it was incumbent upon him, in order to avoid criminal liability, to prove the justifying
circumstance claimed by him on the strength of his own evidence without relying on the weakness of
that of the prosecution, for even if the evidence of the prosecution were weak it could not be
disbelieved after the accused himself had admitted the killing. 2
A person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exerciseof a right or office. 3 There are two requisites in order that the circumstance may be taken as a
justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a
right or office; and (b) that the injury or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office. 4 In the case at bar, we find no
legal basis to justify Toling's action. As found by the trial court, Toling's claim that he was a barrio
policeman of Dapdap at the time of the incident is not worthy of belief as his appointment as such by
the Municipal Mayor of Las Navas, Samar on February 24, 1964 is null and void inasmuch as the
municipal mayor does not possess the power to appoint barrio policemen, such power being vested
in the barrio captain pursuant to the provisions of Section 14 (e) and (i) of Republic Act No. 3590.
Further, barrio captain Teofilo Jorda categorically stated that the accused Aniceto Toling is not a
policeman of the said barrio.
Besides, we find Toling's action not indicative of a person clothed with authority performing a lawful
duty. Thus, he testified that after Tapong fell he ran towards the people who had gathered around,
especially towards the person who was focusing a flashlight, and after recognizing his co-accused
Alfonso Pajenado to be the one doing it, he came back to the deceased and picked up the bolo
depang from the hands of the prostrate Tapong and gave it to the municipal policeman who was
standing nearby. Immediately thereafter, he ran home and the following day, he went to his farm.
Why did he run? To run away from the scene of a crime is indicative of guilt. Why did he not inform
the barrio captain of the incident considering that it was the barrio captain who had allegedly ordered
him to disarm Tapong? Such unnatural action negates and renders improbable the claim that he was
acting in the fulfillment of a duty.
Appellants' counsel points to several facts and circumstances which the trial court allegedly failed to
appreciate or give due weight to, which should have caused the rejection of the case for the
prosecution or, at least, rendered it doubtful.
Foremost, is the alleged lack of motive for the five accused to harm the deceased. It is true that no
motive has been shown why the appellants would beat Jorge Tapong to death, but this Court has
repeatedly held that motive is pertinent only when there is doubt as to the Identity of the culprit,
something which does not obtain in the case at bar as the five accused were Positively Identified by
prosecution witnesses to be the assailants of the victim. 5
Appellants make capital of the affidavits executed by prosecution witnesses Teofilo Jorda and
Domingo Pajac which are conflicting and contradictory to what they have testified in court. It is
unfortunate that the original records of this case were lost 6 and the aforementioned affidavits have
not been reconstituted. At any rate, it can be gleaned from the records that on March 28, 1966, when
Teofilo Jorda and Domingo Pajac reported the incident to the chief of police of Las Navas, their
statements were reduced to writing. 7 In said statements, they said, among others, that while they
were escorting Jorge Tapong to the house of Pelagia Tapong Gutaba, Tapong got sore and attacked
the policemen with a bolo depang so that they scampered away and did not know who later on beat
up Tapong. Then, on March 29, 1966, they subscribed to affidavits 8 pointing to the accused as the
assailants of the declared but disclaiming knowledge of the start of the incident, for Jorda stated that
he just saw the accused beating the deceased, while. Pajac said that he arrived at the scene only
upon hearing the whistle blown by Jorda Admittedly, their declarations are conflicting. These
inconsistent statements, however, were explained by Jorda and Pajac to the effect that their first
statements (Exhs. 2 & 4) were dictated to them by Mayor Jolejole who wanted to protect the
accused who were his political followers and they were afraid to displease the mayor, 9 and that the
wording of their second statements (Exhs. 1 & 3) was that of the chief of police who typed the
same. 10 Anyway, the inconsistency refers to a trivial detail. It cannot destroy the probative value of
their consistent testimony on how the five accused assaulted the deceased.
Counsel for the appellants would also want this Court to disregard the testimony of the People's
rebuttal witnesses Gertrudes Adora, Angel Tapong, and Pelagia Tapong Gutaba for the reasons that
Gertrudes Adora, being the sister-in-law of Domingo Pajac is biased that Angel Tapong and Pelagia
Tapong Gutaba, brother and sister, being cousins of the deceased, and the son of Angel Tapong
having been recently slain by the son of the accused Alfonso Pajenado, have plainly an axe to grind
against the defendants surnamed Pajenado Mere relationship, however, is not sufficient to discard
the testimony of credible witnesses, especially where there is no showing that these witnesses have
testified merely by reason of relationship or alleged interest in the case, other than a desire to see
that justice is done.
It results that the trial court did not err in accepting the prosecution's version as worthy of belief and
in concluding that the guilt of the five accused has been proven beyond reasonable doubt.
The appellants dispute the findings of the trial court that all the accused helped one another in
beating the deceased Tapong with pieces of wood. Conspiracy, however, may be inferred from the
appellants' conduct. The five accused emerged between the houses of Victoria Pajac and Elisoto
Gutaba. All of them were armed with pieces of wood. The accused Alfonso Pajenado had with him a
flashlight which he focused on the eyes of Jorge Tapong while they were all beating Tapong. All of
them fled after Tapong fell down due to the blows inflicted upon him. It is evident that they had
community of design.
The appellants, likewise, contend that the crime committed by them, if any, is only homicide and not
murder in view of the absence of the qualifying circumstance of either treachery and/or abuse of
superior strength. There was treachery because the five accused suddenly intercepted Tapong while
he was on his way to the house of Pelagia. The appellants resorted to a mode of attack which
insured the consummation of the crime without any risk to themselves. The victim was unarmed and
he had no time to defend himself in view of the suddenness of the assault and the fact that he was
drunk at the time. Alevosia qualifies the killing as murder. It is not necessary to resolve whether
there was abuse of superior strength because the circumstance, if present, would be absorbed in
treachery. 11
Appellants further contend that the trial court failed to appreciate in their favor the mitigating
circumstance of lack of intention to commit so grave a wrong. They claim that the weapons used are
mere pieces of wood, and the fact that only seven blows were dealt the deceased by the five of
them, only two of which turned out to be fatal, shows that the tragic and grievous result was far from
their minds. The record shows, however, that the offense committed was characterized by treachery
and tile appellants left the scene of the crime only after the victim had fallen down. Hence, the
mitigating circumstance of lack of intention cannot be appreciated in favor of the appellants. 12
The crime committed is murder qualified by treachery. Although, as recommended by the SolicitorGeneral, the circumstance of abuse of superior strength is merged in treachery, there is, however,
present the aggravating circumstance of the offense having been committed by a band. 13 The
penalty to be imposed should therefore be DEATH. However, for lack of the necessary number of
votes, we hereby impose the penalty of reclusion perpetua.
The indemnity should be increased to P12,000.00.
WHEREFORE, modified as thus indicated, the decision under review is affirmed in all other
respects, with costs against the appellants.
SO ORDERED.
Makasiar, Esguerra, Muñoz Palma, Aquino and Martin, JJ., concur.
Castro, C.J., Fernando and Teehankee, JJ, concur in the result.
Barredo, J., The aggravating circumstances of band does not appear to me to have been sufficiently
proven.
Antonio, J, took no part.
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged
with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an
information which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping and
assisting one another, with treachery and evident premeditation, taking advantage of
their superior strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire did then and
there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda
which caused his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the
means employed was to weaken the defense; that the wrong done in the commission
of the crime was deliberately augmented by causing another wrong, that is the
burning of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial
court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of
the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y
Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and appreciating
the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison
term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson to suffer the penalty
of reclusion perpetua together with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs of the victim in the amount of
P13,940.00 plus moral damages of P10,000.00 and exemplary damages of
P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned the
following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSEDAPPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING
THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY
THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE
TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS
ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used
to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town
fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one
was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and
reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several
companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the
group saw the deceased walking nearby, they started making fun of him. They made the deceased
dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused Pugay suddenly took a can
of gasoline from under the engine of the ferns wheel and poured its contents on the body of the
former. Gabion told Pugay not to do so while the latter was already in the process of pouring the
gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.
The ferris wheel operator later arrived and doused with water the burning body of the deceased.
Some people around also poured sand on the burning body and others wrapped the same with rags
to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police
officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who
were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police
officers brought Gabion, the two accused and five other persons to the Rosario municipal building for
interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two
accused, after which Gabion was released. The two accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the accused-appellants for
the reversal of the decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave their written
statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a
can of gasoline on the deceased believing that the contents thereof was water and then the accused
Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement
that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy
of note is the fact that both statements did not impute any participation of eyewitness Gabion in the
commission of the offense.
While testifying on their defense, the accused-appellants repudiated their written statements alleging
that they were extracted by force. They claimed that the police maltreated them into admitting
authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were mentioned and
discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis
for the findings of facts in the decision rendered. The said court categorically stated that "even
without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony
which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay
and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other persons
investigated by the police, only Gabion was presented as an eyewitness during the trial of the case.
They argue that the deliberate non- presentation of these persons raises the presumption that their
testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of the crime. In
fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and
one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of
gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open
court. They were listed as prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not give rise to the
presumption that evidence wilfully suppressed would be adverse if produced. This presumption does
not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797). Besides, the matter as to whom to utilize as witness is for the prosecution to decide.
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Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was
the latter requested by the mother of the deceased to testify for the prosecution in exchange for his
absolution from liability but also because his testimony that he was reading a comic book during an
unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify
and state the truth about the incident. The mother of the deceased likewise testified that she never
talked to Gabion and that she saw the latter for the first time when the instant case was tried.
Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other
accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion
had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline
on the deceased and then Samson set him on fire is incredible, the accused-appellants quote
Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the
deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on
fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion stated:
Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani
Miranda and lighted by Samson. How could you possibly see that
incident while you were reading comics?
A. I put down the comics which I am reading and I saw what they
were doing.
Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to
prevent him from doing so.
Q. We want to clarify. According to you a while ago you had a talk
with Pugay and as a matter of fact, you told him not to pour gasoline.
That is what I want to know from you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his ass, do you
mean to say you come to know that Pugay will pour gasoline unto
him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline
before he did that actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani with a stick on his ass you
tried according to you to ask him not to and then later you said you
asked not to pour gasoline. Did Pugay tell you he was going to pour
gasoline on Bayani?
A. I was not told, sir.
Q. Did you come to know..... how did you come to know he was going
to pour gasoline that is why you prevent him?
A. Because he was holding on a container of gasoline. I thought it
was water but it was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his
ass, he later got hold of a can of gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you
told him not to pour gasoline when he merely pick up the can of
gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour gasoline he was
already in the process of pouring gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion
stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw
Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was
in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to
do so; and that Gabion later saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy or unity of
criminal purpose and intention between the two accused-appellants immediately before the
commission of the crime. There was no animosity between the deceased and the accused Pugay or
Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused
Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal
responsibility of Pugay and Samson arising from different acts directed against the deceased is
individual and not collective, and each of them is liable only for the act committed by him (U.S. vs.
Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the accused Pugay. Having taken
the can from under the engine of the ferris wheel and holding it before pouring its contents on the
body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this
flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed
to exercise all the diligence necessary to avoid every undesirable consequence arising from any act
that may be committed by his companions who at the time were making fun of the deceased. We
agree with the Solicitor General that the accused is only guilty of homicide through reckless
imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et.
al. 14 Phil. 468, 470, this Court ruled as follows:
A man must use common sense and exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable abandon.
Otherwise his own person, rights and property, all those of his fellow-beings, would
ever be exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional,
as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that
"his conviction of murder, is proper considering that his act in setting the deceased on fire knowing
that gasoline had just been poured on him is characterized by treachery as the victim was left
completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not
agree.
There is entire absence of proof in the record that the accused Samson had some reason to kill the
deceased before the incident. On the contrary, there is adequate evidence showing that his act was
merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack
must be deliberate and the culprit employed means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising from any
defense which the offended party might make.
There can be no doubt that the accused Samson knew very well that the liquid poured on the body
of the deceased was gasoline and a flammable substance for he would not have committed the act
of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded
that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act,
however, does not relieve him of criminal responsibility. Burning the clothes of the victim would
cause at the very least some kind of physical injuries on his person, a felony defined in the Revised
Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must
be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability
shall be incurred by any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
As no sufficient evidence appears in the record establishing any qualifying circumstances, the
accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the
Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating
circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a
fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused
Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp.
16-17).
< äre||a nº •1àw>
The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight
(8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's
parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence,
the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as
moral damages and P5,000.00 as exemplary damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the
accused-appellants.
SO ORDERED.
G.R. No. L-32040 October 25, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants-appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor
Leonardo L. Cruz for appellee.
Ciriaco Lopez, Jr. for appellants.
CONCEPCION, JR. J.:
têñ.£ îhq wâ£
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Pedro
Pagal y Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery with
homicide, committed as follows:
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That on or about December 26, 1969, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and mutually helping each other, did
then and there wilfully, unlawfully and feloniously, with intent to gain, and by means
of violence, take away from the person of one Gau Guan, cash amounting Pl,281.00.
Philippine currency, to the damage and prejudice of the said Gau Guan in the said
sum of Pl,281.00; that on the occasion of the said robbery and for the purpose of
enabling them to take, steal and carry away the said amount of P1,281.00, the herein
accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and
feloniously, with intent to kill and taking advantage of their superior strength,
treacherously attack, assault and use personal violence upon the said Gau Guan, by
then and there stabbing him with an icepick and clubbing him with an iron pipe on
different parts of his body, thereby inflicting upon him mortal wounds which were the
direct and immediate cause of his death thereafter.
Contrary to law, and with the generic aggravating circumstances of (1) nightime
purposely sought to better accomplish their criminal design; (2) evident
premeditation; (3) in disregard of the respect due the offended party; and (4) with
abuse of confidence, the accused being then employees of the offended party. 1
When the case was called for affaigmnent, counsel de oficio for the accused infomred said court of
their intention to enter a plea of guilty provided that they be allowed afterwards to prove the
mitigating circumstances of sufficient provocation or threat on the part of the offended party
immediately preceding the act, and that of having acted upon an impulse so powerful as to produce
passion and obfuscation. 2 Therafter, the trial judge propounded to them the questions and the accused
gave the answers quoted hereunder:
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Court:
Your lawyer here has manifested your desire to enter a plea of guilty
to the offense charged, robbery with homicide. Do you know that by
agreeing to that manifestation of your lawyer, you will be admitting
the commission of the crime charged?
Accused:
We agree, your honor, to what our lawyer said, but we would like to
explain something.
Court:
Your lawyer here has stated that you will still prove mitigating
circumstances. Is that what you like to explain?
Accused:
Yes, your honor.
Court:
If that is the case, I will give you a chance.
Accused:
Yes, your honor.
Court:
Do you know that by agreeing to that manifestation, you will be
admitting the commission of the crime charged, robbery wit,.
homicide?
Accused:
Yes, your honor.
Court:
And for which this court might sentence you to death or life
imprisonment?
Accused:
Yes, your honor.
Court:
And notwithstanding what is explained to you, you still insist in your
desire to enter a plea of guilty to the offense charged?
Accused:
Yes, your honor.
Court:
Q Notwithstanding again the warning of the court that the maximum
penalty impossable is death?
A Yes, your honor.
Court:
Arraign the accused.
(At this stage, both accused were arraigned and both pleaded guilty to the offense
charged). 3
Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient
provocation on the part of the victim immediately preceding the act and acting upon an impulse so
powerful as to produce passion and obfuscation. After the accused had rested their case, the prosecution
presented the statements 4 of the accused, and other pertinent documents regarding the investigation of
the case. 5
After the trial, the court a quo rendered its decision, the dispositive portion of which reads as follows:
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WHEREFORE, both accused are hereby found guilty beyond reasaonable doubt as
principals of the crime of robbery with homicide and there being proven the
aggravating circumstances of nighttime, evident premeditation and disregard of
respect due the offended party offset only by the mitigating circumstance of their plea
of guilty, sentences each one of them to DEATH, jointly and severally indemnify the
heirs of the deceased Gau Guan; P15,000.00 for moral damages; P15,000.00 for
exemplary damages, all amounts to bear interest until they shall have been fully paid;
the sum of P1,281.00 represnting the amount taken from the victim; and to pay
proportionately the costs. 6
The case is now before this Court for mandatory review on account of the death penalty imposed upon
the accused.
The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of
robbery with homicide instead of declaring him liable only for his individual acts, claiming that the
record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino conspired to
commit the crime of robbery with homicide.
The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose
Torcelino cannot be given credence in view of the clear and convincing confession of his guilt in his
statement 7 signed by him before the police investigators several hours after the commission of the
crime. Besides, when he pleaded guilty to the charge, he is deemed to have admitted all the material
facts alleged in the information. 8 By his plea, the appellant admitted not only the commission of the crime
but also the circumstances surrounding its commission, including the allegations of conspiracy. A plea of
guilty when formally entered on arraignment, is sufficient to sustain a conviction even for a capital offense
without the introduction of further evidence, 9 the requisite proofs having been supplied by the accused
himself. 10 We find, therefore, that the trial court did not commit any error in convicting the appellant Pedro
pagal of the crime of robbery with homicide.
The appellants further assail the trial court in not appreciating in their favor the mitigating
circumstances of sufficient provocation, and passion or obfuscation.
Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation which
caused the obfuscation of the appellants arose from the same incident, that is, the alleged
maltreatment and/or ill-treatment of the appellants by the deceased, these two mitigating
circumstances cannot be considered as two distinct and separate circumstances but should be
treated as one. 11 Secondly, the circumstance of passion and obfuscation cannot be mitigating in a crime
which — as in the case at bar — is planned and calmly meditated before its execution. Thus, in People
vs. Daos, 12 a case of robbery with homicide, this Court rejected the claim of the appellants therein that
passion and obfuscation should have been estimated in their favor, because the death of the victim
therein took place on the occasion of a robbery, which, before its execut,.on, had been planned and
calmly meditated by the appellants. Thirdly, the maltreatment that appellants claim the victim to have
committed against them occurred much earlier than the date of the commission of the crime. Provocation
in order to be a mitigating circumstance must be sufficient and immediately proceeding the act. We hold
that the trial court did not commit any error in not appreciating the said mitigating circumstances in favor
of the appellants.
Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of
nighttime, evident premeditation, and disregard of the respect due the offended party on account of
his rank and age.
Although the trial court correctly considered the aggravating circumstance of nocturnity because the
same was purposely and deliberately sought by the a,)pellants to facilitate the commission of the
crime, nevertheless, We disagree with its conclusion that evident premeditation and disregard of the
respect due the offended party were present in the commission of the crime.
Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery with
homicide, if there is evident premeditation to kill besides stealing, it is considered as an aggravating
circumstance. 14 In other words, evident premeditation will only be aggravating in a complex crime of
robbery with homicide if it is proved that the plan is not only to rob, but also to kill. 15 In the case at bar, a
perusal of the written statements 16 of the appellants before the police investigators show that their
original plan was only to rob, and that, they killed the deceased only when the latter refused to open the
"kaha de yero", and fought with them. The trial court, therefore, erred in taking into consideration the
aggravating circumstance of evident premeditation.
The aggravating circumstance that the crime was committed with insult or in disregard of the respect
due the offended party on account of his rank, age or sex may be taken into account only in crimes
against persons or honor, when in the commission of the crime there is some insult or disrespect
shown to rank, age, or sex. 17 lt is not proper to consider this aggravating circumstance in crimes against
property. 18 Robbery with homicide is primarily a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being the main purpose and object of the
criminal. 19 The trial court erred in taking into account this aggravating circumstance.
It results that in the commission of the crime, there is only generic aggravating circumstance, i.e.,
nighttime or nocturnity.
Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating
circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser penalty,
which is reclusion perpetua, should be imposed upon the appellants. 21
ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Marcelino
and Jose Torcefino y Torazo are hereby sentenced to suffer each the penalty of reclusion perpetua. In all
other respects, the judgment of the trial court is affirmed. With costs against the appellants.
SO ORDERED.
THE UNITED STATES, Plaintiff-Appellee, v. EMILIO CARRERO, DefendantAppellant.
W. H. Lawrence, for Appellant.
Attorney-General Araneta, for Appellee.
SYLLABUS
1. HOMICIDE; SELF-DEFENSE. — Unless preceded by an unlawful aggression, which is a
main and essential justification for self-defense, the plea of exemption from criminal
liability can not be considered under the law because the concurrence of the other two
requisites expressly stated in article 8, No. 4, of the Penal Code depend upon the
aggression.
2. ID.; ID. — When an aggression is in retaliation for an insult, injury, or threat it can
not be considered as a defense but as a punishment inflicted on the author of the
provocation, and in such a case the most that courts could do would be to consider the
same as an extenuating circumstance, but never as a cause of complete exemption
from liability.
3. ID.; ID. — A simple threat, though made with a weapon, or in the belief of an
immediate aggression, is not sufficient to determine the exemption of self-defense; it is
indispensable that the intent of the aggressor be ostensibly revealed by his hostile
attitude and other external acts constituting a real, material, unlawful aggression.
4. ID.; MITIGATING CIRCUMSTANCES; PENALTY. — When in the commission of the
crime of homicide two mitigating circumstances have occurred which, together with the
privileged circumstance stated in paragraph 2 of article 9 of the Penal Code, deserve
special consideration, no aggravating circumstance being present, the penalty to be
imposed is the lowest one of the third degree in the general scale — prision correccional
— in accordance with the provisions of article 85, paragraph 2, and article 81, rule 5, of
said code.
DECISION
TORRES, J. :
On the afternoon of the 24th of November, 1906, several laborers working for the
street-railway company, being assembled in the district of Santa Ana, city of Manila, for
the purpose of receiving their wages, were directed to remain in single file and then
successively approach a s mall house, where the paymaster had his office, in order to
be regularly paid. The accused, as foreman in the service of the company, was in
charge of the preservation of order and for such purpose he provided himself with a
pick or spade handle, one end of which he daubed with mud and threatened to push
against the clothing of the laborers if they left the line or created trouble. Benedicto Dio
Pito left his place and forced his way into the file; the accused ordered him out, but still
persisted, and the accused then gave him a blow with the stick on the right side of the
head, above the ear, in consequence of which the deceased, Benedicto Dio Pito, fell to
the ground holding his head with his hands; thereupon the accused and another laborer
rendered him prompt assistance and took him to the interior of a warehouse close by;
the injured man shortly afterwards asked for water, which, however, he was unable to
drink, and became unconscious, and upon being taken to St. Paul’s Hospital died there
a few hours later.
In consequence of the foregoing, an information was filed with the Court of First
Instance charging Emilio Carrero with the crime of homicide, and after proceedings in
prosecution, the court entered judgment on the 4th of December, 1906, sentencing the
accused, as guilty of the crime of homicide to the penalty of six years and one day of
presidio mayor.
The fact that the deceased received a heavy blow with a stick, on the right side of the
head, above the ear, and that in consequence thereof he died shortly after, was fully
proven in the trial, and constitutes the crime of homicide as defined in article 404 of the
Penal Code; in the commission of the above crime none of the characteristics of the
crime of murder, as described in article 403 of said code, were presents.
The accused pleaded not guilty, although he confessed to having struck the deceased
on the right side of his head with a pick handle, one of the working tools; it is therefore
unquestionable that he is the author of the violent death of Benedicto Dio Pito.
The accused, however, alleges that when he struck the blow he merely acted in selfdefense in view of the attitude of the deceased, who, after insulting him, thrust his
hand into his pocket as if for the purpose of drawing a dagger or a pocketknife and that
in order to defend himself, because he believed that the deceased, owing to his
attitude, was about to attack him, he struck him the blow with the stick he had
provided himself with, in consequence of which the deceased fell to the ground, then
arose at once, vomited, and then sat down; that he and two other men then assisted
the deceased and conducted him to the interior of a warehouse, where he became
unconscious, and later on he died in St. Paul’s Hospital, whereto he was removed.
The statement of facts as made by the accused, by his counsel, and witnesses is lacking
in truth; it is rather exaggerated and is not supported by the evidence adduced at the
trial. But even taking the same to be true, it is unquestionable that there was some
insult or provocation on the part of the unfortunate Benedicto Dio Pito, but no attack or
aggression was made by him upon the accused to justify the violent assault by the
latter with a stick, for it has not been shown that the deceased carried in his pocket or
elsewhere any weapon or deadly instrument, so that there was not even an actual
threat or imminent peril of an attack upon the accused.
Unlawful aggression is the main and most essential element to support the theory of
self-defense and the complete or incomplete exemption from criminal liability; without
such primal requisite it is not possible to maintain that a person acted in self-defense
within the terms under which unlawful aggression is subordinate to the other two
conditions named in article 8, No. 4, of the Penal Code. When an act of aggression is in
response to an insult, affront, or threat, it can not be considered as a defense but as
the punishment which the injured party inflicts on the author of the provocation, and in
such a case the court can at most consider it as a mitigating circumstance, but never as
a reason for exemption, except in violation of the provisions of the Penal Code.
The theory that by the simple belief of a person that he would be attacked, a deadly
blow may be inflicted on the ground of self-defense, even though it be with a stick, is
not authorized by the law nor is it a doctrine established by the decisions of courts. In
the judgment of the supreme court of Spain, dated October 31, 1889, not only was the
belief of the individual who was obliged to defend himself considered but also the
hostile attitude and other acts, which in the opinion of the court, were considered as
real and obstensible acts of aggression; and, in other decisions of October 30, 1884,
March 19, 1885, and November 15, 1889, a uniform doctrine was established to the
effect that a threat even if made with a weapon, or the belief that a person was about
to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly
revealed by an act of aggression or by some external acts showing the commencement
of actual and material unlawful aggression. In this case the attitude and behavior of the
deceased at the time certainly did not constitute the unlawful aggression which the law
requires, and the insulting words addressed to the accused, no matter how
objectionable they may have been, could not constitute so important a requisite as the
aggression defined in the Penal Code.
It is not shown in the record of the case that the serious injury suffered by the
deceased, and which caused his death, was not due to the blow he received from the
accused, but to the striking of the head of the deceased against the ground when he
was allowed to fall by the two men who removed him to the warehouse, as alleged by
the accused; apart from the fact that the floor of the warehouse is of pine wood, and
not of stone, even though the shock was received, one can not believe that it was so
heavy as to produce cerebral hemorrhage, and that death ensued in consequence
thereof. Therefore, the lower court has rightly concluded that the death of the deceased
was due to the blow he received on the head, not to the shock of his fall, and this
conclusion is supported by the evidence which counsel for the accused has not rebutted
nor contested in this instance.
In the commission of the homicide in question the circumstance of the accused being
under 18 years of age must be considered, according to No. 2 of article 9 of the Penal
Code, which requires, in connection with paragraph 2 of article 85 of said code, that the
penalty next lower to the one imposed by article 404 should be applied. The penalty of
prision mayor should ordinarily be imposed on the accused, but taking into account the
mitigating circumstances 3 and 4 of said article 9, viz, that he never intended to cause
so serious a harm as the death of Benedicto Dio Pito, and owing to the fact that
provocation on the part of the latter immediately preceded the attack by the accused,
and also considering that no aggravating circumstance is present, and, under rule 5 of
article 81 of the code, the appropriate penalty to be inflicted on the accused should be
the next lower to the above-mentioned penalty of prision mayor, that is, prision
correccional in its medium degree. Therefore,
In view of the foregoing, it is our opinion that the judgment appealed from should be
reversed and that Emilio Carrero should be sentenced to the penalty of two years four
months and one day of prision correccional, to suffer the accessory penalties of article
61 of the code, to pay 1,000 to the heirs of the deceased, or, in case of insolvency, to
suffer subsidiary imprisonment not to exceed one-third of the principal penalty, and to
pay the costs of both instances, and it is so ordered.
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO FIRMO, DefendantAppellant.
Pastor Navarro for Appellant.
Acting Attorney-General Paredes for Appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE. — One who kills another because of abuse is
nevertheless guilty of homicide, it not having been proven that there was reasonable
necessity for the means employed to prevent or repel aggression. The wound was
inflicted not in self-defense, properly speaking, but rather in retaliation of the abuses
perpetrated on the person of the accused. Under such conditions, however, the
mitigating circumstance that sufficient provocation or threat on the part of the offended
party immediately preceded the act can properly be considered.
DECISION
MALCOLM, J. :
The facts of this case may be briefly stated as follows:
ch an rob1 es virt u al 1 aw lib rary
Luis Antonio is the name of the deceased. Leoncia Araña is the name of his widow (or
former querida). Segundo Firmo is the name of the accused, the son of Leoncia Araña.
The husband and wife on the evening of December 26,1915, went to the barrio of
Julita, leaving Segundo Firmo to attend to the errands of the house. On the trip Antonio
became intoxicated. In this condition, on returning to his home, he found Segundo
Firmo lying down without having made any preparation for the evening meal. This so
angered Antonio that he abused Firmo by kicking and cursing him. A struggle ensued,
during which Firmo stabbed Antonio with a penknife in the left side near the armpit.
Luis Antonio died on the 13th of January, 1916.
On behalf of the accused, there are presented three lines of defense. Thus, it is
contended that Luis Antonio died not as a result of the wound but from a fever. The
answer is that the sanitary inspector, the only medical expert called as a witness,
testified that Luis Antonio died as a result of the stab wound. Again, it is contended that
the accused is exempted from criminal responsibility because of having acted in
defense of his person. The answer is that at least one essential prerequisite to this
defense is lacking, namely, reasonable necessity for the means employee to prevent or
repel unlawful aggression. The wound was inflicted not in self-defense, properly
speaking, but rather in retaliation of the abuses inflicted on the person of the accused.
"When an aggression is in retaliation for an insult, injury, or threat it can not be
considered as a defense but as a punishment inflicted on the author of the provocation,
and in such a case the most that courts could do would be to consider the same as an
extenuating circumstance, but never as a cause of complete exemption from liability."
(U.S. v. Carrero [1908], 9 Phil., 544.)
Again it is contended that the wound was inflected by the deceased upon himself. The
answer is that this is an improbable supposition and is not borne out by the proof.
Viewed from every standpoint, we reach the same conclusion that the defendant is
guilty as charged in the information.
No aggravating circumstances exist. One mitigating circumstance can properly be
considered, namely, that sufficient provocation or threat on the part of the offended
party immediately preceded the act. In accordance with the foregoing, the defendant
and appellant is sentenced to twelve years and one day of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased, Luis
Antonio, in the amount of P1,000, and to pay the costs of both instances. So ordered.
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. GUARDIANO
MARQUEZ, Defendant-Appellant.
Maambong & Logarta for Appellant.
Attorney-General Jaranilla for Appellee.
SYLLABUS
1. PENAL CODE; PARRICIDE; ARTICLE 423 OF SAID CODE. — In order that the defendant might be
entitled to the benefits of article 423 of the Penal Code, it was necessary for him to prove positively
that he surprised his wife in the act of committing adultery. No other inference can be made from the
wording of said article. The burden of proof, that he caught his wife in the very act of adultery, is upon
the husband who alleges it by way of defense.
2. ID.; ID.; MITIGATING CIRCUMSTANCES OF PASSION AND OBFUSCATION, AND PROVOCATION. —
It has been established in this case that on the occasion of the crime, the defendant saw an unknown
person jump out of the window of his house, and that his wife begged him, upon her knees, to pardon
her. The first of these facts, under the circumstances of the case, warrants the conclusion that the
defendant believed his wife to be unfaithful, and was overcome by passion and obfuscation. The
second fact, not called in question in these proceedings, leads us to believe that the wife cannot have
been wholly unaware of the unknown person’s presence in her house, since she begged her husband
to pardon her. We hold that such conduct on the part of his wife, thus inferred from the proceedings,
constitutes a sufficient provocation which must be considered as a mitigating circumstance in favor of
the defendant.
3. ID.; ID.; EFFECT OF TWO AFOREMENTIONED MITIGATING CIRCUMSTANCES UPON PENALTY. — By
virtue of the presence of the two circumstances aforementioned, and as there was no aggravating
circumstance, the penalty next lower to that prescribed by law shall be imposed, following rule 5 of
article 81 of the Penal Code, as amended by Act No. 2298.
4. ID.; ID.; ARTICLE 75, RULE 2, PENAL CODE. — The penalty fixed by law for the crime of parricide is
life imprisonment to death, and the penalty next below it is cadena temporal, inasmuch as the penalty
fixed by law is composed of two indivisible penalties (rule 2, article 75, Penal Code).
DECISION
ROMUALDEZ, J.:
This is a case of parricide which the trial court considered sufficiently proven against the herein
appellant, who was sentenced, in consequence, to life imprisonment, the accessaries of law, and a
P1,000 indemnity to the heirs of the deceased, with costs.
The defendant admits that he killed his wife, Oliva Sumampong; but he alleges that he caught her in
the act of adultery, and so took her life.
This allegation of the defendant does not agree with his statements before the justice of the peace
during the preliminary investigation. According to both Exhibit B and the testimony of the justice of
the peace who conducted said investigation, the defendant had been fishing on the night of the crime .
. . "and when he came back at midnight, the house was closed; he knocked at the door but his wife
did not awake, so he knocked again, but still she slept on; then he went to the part of the house
where his wife usually slept, and knocked on the wall; she awoke then and opened the door; and
when he went up, there was a man who jumped out of the window, and when he asked his wife why
there was a man inside the house, she answered that there was no man, but as he insisted that there
had been one, and that he had jumped out of the window, and as his wife would not tell the truth, for
that reason alone he killed her." (P. 13, t. s. n.)
In order that the defendant might be entitled to the benefits of article 423 of the Penal Code, it was
necessary for him to prove that he surprised his wife in the act of committing adultery.
No other inference can be made from the wording of said article.
"Any husband who, having surprised his wife in the act of adultery, shall kill her or her paramour in
the act," etc. (Art. 423, Penal Code.)
Once the appellant had admitted that it was he who killed his wife, it was incumbent upon him to
completely prove his defense, which is, that he found her in the act of adultery. The testimony he
gave during the hearing of this case in the trial court, noticeably weakened by his statements before
the justice of the peace, cannot be considered sufficient proof of the justification he alleges, and so
the fact remains that he took his wife’s life without having proven sufficient justification.
Nevertheless, it was established at the trial that on the occasion of the crime, the defendant saw an
unknown person jump out of the window of his house, and that the appellant’s wife begged for his
pardon on her knees. The first of these facts, under the circumstances, warrants the conclusion that
the defendant believed his wife to be unfaithful, and was overcome by passion and obfuscation. The
second fact leads us to believe that the wife could not have been wholly unaware of the unknown
person’s presence in her house on that night, inasmuch as she considered herself guilty and begged
her husband’s pardon, which is an undisputed fact in these proceedings. To our mind, such conduct on
the part of his wife, thus inferred from the proceedings, constitutes a sufficient provocation, which
must be considered as a mitigating circumstance in favor of the defendant.
We find no merit in the assignments of error made by the defense, and we conclude that the crime of
parricide committed by the herein appellant is not justified in these proceedings.
But we consider the two mitigating circumstances of immediate provocation, and passion and
obfuscation (article 9, paragraphs 4 and 7, Penal Code) to have been established. And by virtue of
these two circumstances, following rule 5 of article 81 of the Penal Code, as amended by Act No.
2298, and as there was no aggravating circumstance, the penalty next lower to that prescribed by law
shall be imposed.
The penalty fixed by law for the crime of parricide is life imprisonment to death, and the penalty next
below it in this case is cadena temporal, inasmuch as the penalty fixed by law is composed of two
indivisible penalties (rule 2, article 75, Penal Code).
Taking into account the details of the case, and the character of the mitigating circumstances present
in the act prosecuted, and availing ourselves of the discretion granted us by law in cases like the
present one (rule 5, article 81, Penal Code) we declare that the penalty to be imposed upon the
appellant is twelve years and one day cadena temporal.
Wherefore, with the provision that the defendant is sentenced to the personal penalty of twelve years
and one day cadena temporal instead of life imprisonment as held by the court below, the judgment
appealed from is hereby affirmed in all other respects, with the costs of both instances against the
appellant. So ordered.
Avanceña, C.J., Johnson, Street, Villamor, Johns and Villa-Real, JJ., concur.
THE UNITED STATES, Plaintiff-Appellee, v. FRANCISCO MENDAC, DefendantAppellant.
Rovira and Amorsolo for Appellant.
Attorney-General Avanceña for Appellee.
SYLLABUS
1. HOMICIDE; SELF DEFENSE. — When two armed disputants mutually enter into the
fight for which they have prepared themselves, and for this purpose confront each
other in the middle of the street, the fact that one of them through the instinct of selfpreservation is beforehand in attacking the other, without waiting to be attacked, is a
mere accident of the struggle, so it would be improper to apply to the case the
exempting circumstance of self-defense, established in No. 4 of article 8 of the Penal
Code; nor can the affair be classified as a duel, even though both disputants exhibited a
decided willingness to quarrel and attack each other, for the conditions fixed by the law
for the crime of dueling, especially penalized by the Code, were not present.
2. ID.; EXTENUATING CIRCUMSTANCES; LACK OF INTENTION. — When the assailant
with a definite and perverse intention of doing injury inflicts upon his victim a serious
and fatal wound in the abdomen, he cannot be given the benefit of the third
circumstance of article 9 of the Code, for it is not to be believed that he had no
intention of killing his victim.
DECISION
TORRES, J. :
This case has been brought up on appeal filed by the defendant from the judgment of
March 18, 1916, whereby the Honorable W. E. McMahon, judge, sentenced him for the
crime of homicide to the penalty of fifteen years of reclusion temporal, to an indemnity
of P1,000 to the heirs of the victim, and to the costs.
Between 2 and 3 of the afternoon of March 8 of this year when, along with others, the
victim Anselmo Badan and the defendant Francisco Mendac had been gambling in the
house of Nicolasa Piñol, situated in Dumaguete, Oriental Negros, these two quarreled
and started to fight but were separated by the lieutenant of the barrio, Crispulo Patron,
and others present. The disputants then retired to their respective houses; but about
an hour later the defendant Mendac, who lived on the hill beside the place where the
gambling had occurred, left his house and went along the road at the side of the house
of the victim Badan, distant some 20 brazas from the house in which they had been on
the point of fighting, to a place opposite that in which the defendant lived with respect
to the house where the gambling occurred. At that moment when the victim Badan saw
the defendant coming he asked him if he was willing to fight, to which the defendant
replied affirmatively, whereupon the victim came down out of his house with a bolo for
the purpose of fighting with the defendant who was also armed with a bolo. Thereupon
the defendant immediately attacked the victim and inflicted upon him a serious and
fatal wound in the abdomen, from which his intestines protruded. He died an hour and
a half later, and the physician who examined his corpse certified that he had found a
slash in the abdomen near the navel from which protruded a large portion of the
intestines, and that the victim had died as a consequence of this serious wound.
The facts set forth, duly proven in the present case, constitute the crime of homicide,
provided for and penalized in article 404 of the Penal Code, for after the altercation the
defendant had with Anselmo Badan in Nicolasa Piñol’s house, when they were
prevented from coming to blows through the intervention of the lieutenant of the
barrio, Crispulo Patron, and others there present, the disputants returned to their
respective houses and at the end of an hour the defendant Mendac, who lived on the
hill near by, came back along the street beside the house of the victim Badan, who
upon seeing him asked him if he was willing to fight. The defendant replied affirmatively
and waited, bolo in hand, for the victim to come down out of the house, and when the
latter reached the ground the two confronted each other, whereupon Anselmo Badan
immediately received a slash in the abdomen near the navel which made a serious
wound that let out his intestines and caused his death an hour and a half afterwards.
It has not been proven that in the commission of the homicide there concurred any of
the qualifying circumstances set forth in article 403 of the Code to determine the
classification as murder. Nor does any unlawful aggression, with the other requisites
established in No. 4 of article 8 of the Penal Code, appear to have preceded the violent
death inflicted upon Anselmo Badan: there is therefore no ground for the allegation that
the court incurred the fourth error assigned in the brief of the defense. If the defendant
Francisco Mendac, an hour after he had been separated by the lieutenant of the barrio
from the deceased when they were at the point of fighting on account of a violent
dispute, had not left his home, which was located some distance away from that of the
deceased, and had not appeared in front of and close to this latter house in the street,
they would not have had the meeting that gave rise to the crime under prosecution,
because each had been on his guard against the other for some hours previous in the
house where the gambling occurred. When Anselmo Badan saw from his house the
approach of the defendant and immediately understood that the defendant was looking
for a fight, he asked the latter if he was willing to fight underneath his house, saying,
according to the witnesses Crispulo Patron and Damian Barba: "Now that we’re here,
we can do as we like; so let’s end it now." This demonstrates that one was as anxious
as the other to fight, the defendant when he left his house and approached that of the
deceased and the latter in leaving his house when he saw his opponent in the street in
front of it; and if it were true that the defendant passed in front of the house of the
deceased on his way to work he would have done so at the usual hour when the
laborers begin the work they are engaged in, and if he had not been looking for a
quarrel he would have turned aside and away from the scene of the occurrence when
he saw Anselmo Badan coming down out of his house to fight.
Both were armed with bolos, Anselmo Badan came down out of his house, the
defendant Francisco Mendac waited for him in the street ready to quarrel, so when the
struggle between the two had begun the fact that one of them was the first to attack.
as is natural, is a mere accident of the contest. It would be improper to apply to the
case the exempting circumstance of self-defense, established by No. 4 of article 8 of
the Penal Code, for when the disputants were face to face mutually ready to attack, as
occurred, it is improper to admit unlawful aggression on the part of either of them and
the need of self-defense, especially when both by mutual consent made preparation
and placed themselves ready to attack each other. Nor can the affair be classified as a
duel, although both disputants exhibited a decided willingness to quarrel and to attack
each other, because the conditions required by law to constitute the crime that of
dueling, as especially penalized by the Code, were not present.
We accept the ruling of the lower court and the classification it made in view of the
evidence adduced at the trial, because there is no ground or reason for making a
different finding from the facts that occurred; and as there did not concur in the
perpetration of the homicide any extenuating or aggravating circumstance, the penalty
the law fixes for the crime must be imposed in its medium degree.
As for the first error assigned by the defense, it cannot be denied that the ruling of the
lower court in denying the motion to dismiss filed during the trial by counsel for the
defendant is in accordance with law, especially when such ruling is within the sound
discretion of the court that tries the case and passes upon the merits which the
evidence developes; and the result of the trial has justified the correctness of said
ruling. Also the allegation is to be held groundless that the second error was incurred
by the court in finding that the defendant had appeared in the vicinity of the victim’s
house, not in order to go to work in the town of Dumaguete, but to continue the fight
that had been interrupted some time before through the intervention of the lieutenant
of the barrio, and to kill the victim.
The trial court made no error in not holding in the defendant’s favor any extenuating
circumstance, such as Nos. 3 and 4 of article 9 of-the Code, for even though the
defendant in attacking his adversary only inflicted upon him a single wound the fact is
that he slashed him in the abdomen with perverse intention and inflicted upon him a
serious and fatal wound; and therefore in doing so it is to be presumed that he
definitely intended to inflict upon him the greatest injury possible and even death. Nor
can it be held that there was provocation on the part of the victim, for if the defendant
had not appeared in the street in front of the victim’s house, perhaps the crime would
not have been committed. Therefore it must be held that the two were ready and
willing to fight, for one sought the other and both at once confronted each other armed,
although the defendant, impelled by the instinct of self-preservation, did not wait for
his adversary’s attack and was beforehand in striking him, thus inflicting a fatal wound.
For the foregoing reasons the judgment appealed from should be affirmed, as we do
affirm it, with the costs of this instance against the defendant, with the further
understanding that he be sentenced to the accessories of article 59 of the Code. So
ordered.
G.R. No. L-23514 February 17, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AVELINO MANANSALA, JR., ET AL., defendants, AVELINO MANANSALA, JR. and JOSE
MANANSALA, defendants-appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Isidro C. Borromeo and
Solicitor Dominador L. Quiroz for plaintiff-appellee.
Quintin C. Paredes and Paredes and Associates for defendants appellants.
MAKALINTAL, J.:
This is an appeal from the decision of the Court of First Instance of Albay in its Criminal Case No.
3285 convicting Avelino Manansala, Jr. and Jose Manansala of murder and sentencing the first to an
indeterminate penalty of from 10 years and 1 day of prision mayor to 17 years 4 months and 1 day
of reclusion temporal, and the second to reclusion perpetua; both of them to indemnify jointly and
severally the heirs of Rodrigo Aringo in the sum of P6,000.00; and each to pay ¹/ 3 of the costs.
The prosecution, relying mainly on the testimony of two eyewitnesses — Celestino Atun and Percival
Amador — and of the policemen who went to the scene of the crime upon noticing the commotion it
produced, sought to establish the following: Between 1:00 and 2:00 o'clock in the afternoon of March
27, 1962, some persons had a quarrel inside the New Bicol Carinderia, an eatery located near the
Legaspi Port Market, Legaspi City. After a short while the protagonists came out through the
backdoor of the carinderia. Jose Manansala had Rodrigo in a tight embrace from behind, with his
arms under the latter's armpits. While Rodrigo was in that position of apparent helplessness, Avelino
stabbed him with a balisong, or Batangas knife. The stabbing continued while Rodrigo was led, or
dragged, by Jose to a bamboo bed (papag) nearby, and even after Rodrigo had been forced down
on it in a prone position. When the policemen who responded to the commotion arrived they found
Avelino still holding the fatal weapon, and Rodrigo's limp body, bathed in his own blood, stretched on
the papag. A taxicab was commandeered to take the wounded man to a hospital, but he expired
even before the vehicle could start. The autopsy later conducted by Dr. Antolin Lotivio, a resident
physician of the Albay Provincial Hospital, revealed that the victim died from massive hemorrhage
and shock as a result of the multiple wounds (thirteen in all) sustained by him in the chest, abdomen,
back and the extremities.
The accused did not take the witness stand. However, they presented two witnesses, Domingo
Daria and Salvador Petilos, who said that they saw the whole incident. The substance of their
testimony is as follows: Early in the afternoon of March 27, 1962 Avelino, a small-time peddler of
textiles in the Legaspi Port Market, was eating his lunch inside one of the eateries dotting the market
site, when Rodrigo Aringo alias Diego, a baggage boy in the same market, approached him and
demanded his fee for having carried Avelino's baggage. Avelino said he was willing to pay for the
services rendered at noon, but not for those rendered earlier in the morning. He then took some
money from his pocket and proferred it to Rodrigo. Obviously peeved at having been thus publicly
rebuffed, Rodrigo brusquely brushed Avelino's hand aside and instantly gave him a fist blow in the
face. Avelino fell from his seat; he tried to get up, but was given another blow, and then a third. As
he reeled from the force of the last blow a batangas knife he was carrying fell from his trousers
pocket. Avelino picked up the knife, and Rodrigo, seeing that he was armed, rushed to
the carinderia's kitchen and returned almost immediately with a 10-inch knife in his hand. With it he
swung at his antagonist, but the latter evaded the blow.
Meanwhile, appellant Jose Manansala, an uncle of Avelino, noticed the commotion from outside
the carinderia, where he was loading baggage on a parked truck some six meters away. He shouted
at Rodrigo to stop. Rodrigo paid no heed and instead delivered another thrust at Avelino, who again
evaded it. At the third attempt, Jose embraced Rodrigo from behind, and it was at that moment that
Avelino stabbed Rodrigo and inflicted the numerous wounds which proved fatal. Jose took the
kitchen knife from Rodrigo and threw it away, and then released his limp body on the papag nearby.
When the policemen arrived Avelino was still clutching the knife he had used. Both appellants were
apprehended.
In its decision rendered on August 14, 1964 the trial court sustained the prosecution's version of the
incident and found both accused guilty of murder. However, the court credited Avelino with the
mitigating circumstance of sufficient provocation or threat on the part of the victim, and imposed
upon him a lesser penalty than that imposed on his uncle.
Appellants' plea is self-defense. This is predicated on the theory that the deceased was himself
armed with a knife with which he tried to stab Avelino, as declared by the two witnesses for the
defense. Several circumstances, however, belie this claim. First, Avelino sustained no knife wound
at all. Second, although several policemen arrived at the scene of the incident almost immediately
after it happened, not one of them saw the knife allegedly used by Rodrigo. Nor was it shown to
them, or at least brought to their attention, by either of the appellants. Indeed, when Avelino
surrendered to the policemen he declined to give any statement, which in the natural course of
things he would have done if he had acted merely to defend himself. A protestation of innocence or
justification is the logical and spontaneous reaction of a man who finds himself in such an
inculpatory predicament as that in which the policemen came upon the appellants, with Avelino still
clutching the death weapon and his victim dying before him.
But while it is clear that Avelino did not act in legitimate self-defense, the trial court correctly held that
there was sufficient provocation on the part of the victim. The evidence given by the witnesses for
the defense as to how and why the fight started, and as to the fact that the deceased hit Avelino with
his fist, is not controverted by the witnesses for the prosecution, who did not see the incident from
the very beginning. And one fist blow at least is confirmed by the doctor who treated Avelino for a
contusion around one eye.
On the other hand, the fact that when Avelino stabbed the victim the latter was practically helpless
and unable to put up any defense being in the tight embrace of Jose Manansala, was correctly
appreciated by the trial court as treachery, and qualifies the offense as murder.
Jose Manansala was found guilty as co-principal on the ground that there was concert of action
between him and his nephew. The evidence does not justify this finding beyond reasonable doubt.
There is no showing that the killing was agreed upon between them beforehand. No motive for it has
been shown other than the provocation given by the deceased; and such motive was true only
insofar as Avelino was concerned. The circumstances indicate that if Jose embraced Rodrigo and
rendered him helpless, it was to stop him from further hitting Avelino with his fists. However, Jose is
not entirely free from liability, for it has been established that even after the first knife thrust had been
delivered he did not try to stop Avelino, either by word or overt act. Instead Jose continued to hold
Rodrigo, even forced him down on the bamboo bed with Avelino still pressing the attack. Withal it
cannot be said that Jose's cooperation was such that without it the offense would not have been
accomplished. But although not indispensable, it was a contributing factor. If Jose's initial intent was
free from guilt, it became tainted after he saw the first knife thrust delivered. The thirteen wounds
must have taken an appreciable interval of time to inflict, and Jose's cooperation facilitated their
infliction. He must therefore be held liable as an accomplice.
The slaying of the deceased having been qualified by treachery, Avelino Manansala is liable for
murder, the penalty of which is reclusion temporal maximum to death (Art. 248, Revised Penal
Code). Appreciating in favor of Avelino the mitigating circumstance of sufficient provocation by the
deceased without any generic aggravating circumstance to offset the same, the penalty imposable
upon him is the minimum period of the penalty for murder (see par. 3, Art. 63, Revised Penal Code),
which is reclusion temporal maximum (17 years, 4 months and 1 day to 20 years). Since the
resulting penalty is neither death nor life imprisonment, the Indeterminate Sentence Law applies
(Sec. 2, Act No. 4103 as amended). Avelino Manansala is therefore entitled to an indeterminate
sentence, the upper range of which is reclusion temporal maximum and the lower range — which is
one degree lower than the penalty prescribed by the Revised Penal Code for murder — is anywhere
within prision mayor maximum (10 years and 1 day) to reclusion temporal medium (17 years and 4
months). The penalty meted out by the trial court on Avelino Manansala, Jr. — "from 10 years and 1
day of prision mayor to 17 years 4 mouths and 1 day of reclusion temporal" — is within the range
allowed by law and is therefore correctly imposed.
As regards appellant Jose Manansala, the penalty prescribed by law, he being an accomplice, is one
degree lower than that prescribed for the principal, or prision mayor maximum to reclusion
temporal medium (10) years and 1 day to 17 years and 4 months). Applying the Indeterminate
Sentence Law, and considering that under paragraph 1, Article 64 of the Revised Penal Code,
"(W)hen there are neither aggravating nor mitigating circumstances, (the court) shall impose the
penalty prescribed by law in its medium period," the decision appealed from should be, as it is
hereby, modified as follows:
Appellant Jose Manansala, as accomplice to the offense of murder, is sentenced to an indeterminate
penalty of from 4 years, 2 months and 1 day of prision correccional to 12 years and 1 day
of reclusion temporal; the amount of the indemnity is raised from P6,000.00 to P12,000.00 to be paid
the heirs of the deceased by Avelino Manansala, Jr. as principal; in case of the insolvency of the
principal, Jose Manansala, as accomplice, is subsidiarily liable for the indemnity due from said
principal; and in all other respects the judgment appealed from is affirmed. No costs in this instance.
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO FIRMO, DefendantAppellant.
Pastor Navarro for Appellant.
Acting Attorney-General Paredes for Appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE. — One who kills another because of abuse is
nevertheless guilty of homicide, it not having been proven that there was reasonable
necessity for the means employed to prevent or repel aggression. The wound was
inflicted not in self-defense, properly speaking, but rather in retaliation of the abuses
perpetrated on the person of the accused. Under such conditions, however, the
mitigating circumstance that sufficient provocation or threat on the part of the offended
party immediately preceded the act can properly be considered.
DECISION
MALCOLM, J. :
The facts of this case may be briefly stated as follows:
ch an rob1 es virt u al 1 aw lib rary
Luis Antonio is the name of the deceased. Leoncia Araña is the name of his widow (or
former querida). Segundo Firmo is the name of the accused, the son of Leoncia Araña.
The husband and wife on the evening of December 26,1915, went to the barrio of
Julita, leaving Segundo Firmo to attend to the errands of the house. On the trip Antonio
became intoxicated. In this condition, on returning to his home, he found Segundo
Firmo lying down without having made any preparation for the evening meal. This so
angered Antonio that he abused Firmo by kicking and cursing him. A struggle ensued,
during which Firmo stabbed Antonio with a penknife in the left side near the armpit.
Luis Antonio died on the 13th of January, 1916.
On behalf of the accused, there are presented three lines of defense. Thus, it is
contended that Luis Antonio died not as a result of the wound but from a fever. The
answer is that the sanitary inspector, the only medical expert called as a witness,
testified that Luis Antonio died as a result of the stab wound. Again, it is contended that
the accused is exempted from criminal responsibility because of having acted in
defense of his person. The answer is that at least one essential prerequisite to this
defense is lacking, namely, reasonable necessity for the means employee to prevent or
repel unlawful aggression. The wound was inflicted not in self-defense, properly
speaking, but rather in retaliation of the abuses inflicted on the person of the accused.
"When an aggression is in retaliation for an insult, injury, or threat it can not be
considered as a defense but as a punishment inflicted on the author of the provocation,
and in such a case the most that courts could do would be to consider the same as an
extenuating circumstance, but never as a cause of complete exemption from liability."
(U.S. v. Carrero [1908], 9 Phil., 544.)
Again it is contended that the wound was inflected by the deceased upon himself. The
answer is that this is an improbable supposition and is not borne out by the proof.
Viewed from every standpoint, we reach the same conclusion that the defendant is
guilty as charged in the information.
No aggravating circumstances exist. One mitigating circumstance can properly be
considered, namely, that sufficient provocation or threat on the part of the offended
party immediately preceded the act. In accordance with the foregoing, the defendant
and appellant is sentenced to twelve years and one day of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased, Luis
Antonio, in the amount of P1,000, and to pay the costs of both instances. So ordered.
G.R. No. L-40757 January 24, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARTE MACARIOLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Ponciano M. Mortera for defendant-appellant,
MELENCIO-HERRERA, J.:
Automatic review of the Decision of the Circuit Criminal Court, Seventh Judicial District, Pasig, Metro
Manila, in Case No. CCC-VII-1346-Rizal, finding the accused Ricarte Macariola, a prisoner (No.
66033-P) confined at the New Bilibid Prisons, Muntinlupa, Metro Manila, guilty of the crime of
MURDER for the death of Romeo de la Peña, a prisoner in the, same Penal institution, and
sentencing the accused to suffer t he capital Penalty of DEATH.
The Information, dated June 1, 1973, filed against accused-appellant alleged:
xxx xxx xxx
That on or about the 21st day of September, 1971, in the New Bilibid Prisons,
Muntinlupa, Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused while then confined at the said institution, with treachery and
evident premeditation, and armed with improvised deadly weapon did then and there
willfully, unlawfully and feloniously assault and wound therewith one Romeo de la
Peña No. 29820-P, a sentenced prisoner in the same institution, inflicting upon him
multiple stab wounds, while then unarmed and unable to defend himself from the
attack launched by the accused, as a result of which the said Romeo de la Peña died
instantly.
CONTRARY TO LAW.
1
The defense does not dispute that the deceased prisoner was stabbed and killed by the accused. It
maintains, however, that the accused stabbed the deceased in self-defense.
The facts established by the prosecution and synthesized in the People's Brief follow:
On September 21, 1971, between the hours of 8:00 and 9:30 o'clock in the morning,
Romeo de la Peña No. 29820-P, an inmate at the New Bilibid Prisons in Muntinlupa,
Rizal, was standing in his cell when suddenly he was approached and stabbed by
appellant Ricarte Macariola with an improvised weapon called 'matalas' (Exhibit 'B').
The stabbing incident took place while they were inside their cell at Brigade No. 2-D
and was witnessed by fellow inmates Romeo Sato, Fernando Gomez, now
deceased, a certain Alvarez and Severino Pingkian (TSN, September 30, 1974, pp.
3, 16 and 30; Exhibit 'G', Rec., p. 127; Exhibit 'C', Rec., p. 128). Romeo de la Peña
shouted, 'Inay ,Inay 'and ran to a 'kubol'. He was pursued by the appellant, and by
inmates Nelson Binas and a certain 'Bugok'. De la Peña dropped to the ground and
lay prostrate inside the 'kubol'. Again appellant stabbed him followed by thrusts from
Nelson Binas and 'Bugok'. De la Peña died inside the 'kubol'. (TSN, September 30,
1974, pp. 1 0- 11).
Meanwhile, Fernando Gomez, considered the 'Mayor' at Brigade No. 2-D since 1970,
upon hearing the victim shout 'papatayin ako, papatayin ako,' entered the cell and
saw the victim in a lying position with the appellant bending over him with a blood
stained knife in his hand. Immediately, he reported the incident to prison keeper
Alfredo Manzano who opened the door of the cell. Alberto Supetran, another prison
keeper, entered the cell. Appellant then approached the latter to whom he
surrendered the improvised weapon ('matalas') which he used in stabbing the victim
(Exhibit 'C', Rec., p. 128).
On the same day, an investigation of the stabbing incident was conducted. Prison
guard Jesus B. Tomagan took the sworn statements of appellant (Exhibit 'A', Rec., p.
125) and prison inmate Fernando Gomez (Exhibit 'C', Rec., p. 128), who a year later,
or on September 12, 1972, was also stabbed to death (Rec., pp. 37 and 66).
Francisco A. Cometa, another prison investigator, took the sworn statement of prison
inmate Romeo Sato (Exhibit 'G', Rec., p. 127). When appellant was investigated, he
admitted having stabbed the victim Romeo de la Peña (TSN, May 29,1974, p. 10).
An autopsy was conducted on the body of the victim by Dr. Cristino S. Garcia,
medico-legal officer of the National Bureau of Investigation. The Necropsy Report
(Exhibits 'D' & 'D-l', Rec., pp. 123-124) prepared by him shows that the victim
sustained a total of sixteen stab wounds, of which, wounds nos. 11 and 12 were
considered fatal. Stab wound No. 11 involved the left lobe of the liver and penetrated
the left ventricle of the heart. Stab wound No. 12, was five in number and penetrated
the upper and middle lobe of the right lung (Exhibits 'D-4' and 'D-5' Rec., p. 124).
These wounds produced severe hemorrhage and caused the death of the victim
(TSN, May 31, 1974, pp. 6 and 8).
In his testimony during the trial, Dr. Garcia opined that because the stab wounds
were of different sizes, more than two instruments were probably used in stabbing
the victim and that, judging from the number of stab wounds found on the body of the
victim, there were more than two assailants. He likewise noted that the five wounds
found in stab wound No. 12 were very near each other, hence, they could have been
delivered while the victim was in a lying position (ibid, pp. 11-13). 2
On the other hand, the accused and another inmate, presented their own versions:
Accused RICARTE MACARIOLA, 29 single, serving sentence of 8 to 14 years for the crime of
Robbery, testified that on September 21, 1971, he was confined at Brigade 2-D together with about
200 inmates, one of whom was the deceased (Romeo de la Peña that at about 4:00 o'clock in the
morning of that day, he and the deceased were gambling and playing "Hong Chang" near the
deceased's "tarima",- that they gambled for about four hours; that the deceased lost in the said
"Hong Chang", and the accused won all the deceased's money of about P 6.00; that he gave the
deceased a blanket as "balato that, while he was still holding the money he won, the victim snatched
them from his hand; that when he (accused.) was taking the money back, the victim kicked him on
the left chest; that he was then sitting on the floor while the victim was seated on his "tarima"; that,
he fell down as a result; that he stood up and took his improvised weapon called "matalas " which is
about 12 inches long, placed on his waist near the right pocket; that, when the victim saw him
holding his "matalas ", the victim also tried to take his own "matalas " which said victim had under his
pillow that for fear that the victim might be able to get hold of his (victim's) "matalas" and would use it
against the accused, the latter stabbed the victim on the stomach; that the victim failed to take hold
of his "matalas" because it fell down; that both of them fell on the floor because the victim pulled him;
that while the victim was holding him by the neck, the accused stabbed him again-although the
accused says he does riot know how many times he stabbed the Victim; that the victim is taller,
bigger and huskier than the accused; that the victim was a boxer; that their cell was closed and there
was no exit: that there was no place to run away from the victim: that the accused had to use the
"matalas " in older to disable the victim, thinking that his life was in imminent danger that the victim
died due to tile stab wounds he had inflicted that the accused surrendered himself and his "matalas"
to jail-keeper Alberto Supetran when the latter came to the cell; that he also saw said official pick up
the "matalas" of the deceased from under the latter's pillow; that the accused was brought to the
office of the Prisons investigators where his statement was taken down in writing by Jesus
Tomagan; that he swore to the truth of his statement before the Prisons Administrative Officer; that
the stabbing happened at about past eight in the morning of that day: that he does not know that
inmate called "Bugok" and that he was placed in the "bartolina" after the incident for about five (5)
months. 3
It is to be noted that the accused mentioned to other participants in the stabbing. He owned
responsibility for the entire incident.
ANTONIO VIVERO, 28, single, inmate of the New Bilibid Prisons, serving sentence of 12 to 17 years
for Murder, declared ared that on September 21, 1971, he was confined in Brigade 2-D along with
Macariola and the deceased and many others of about 200; that at about 8 o'clock in the morning of
that same day, while he was taking his breakfast, inside the cell, his attention was called by loud
exchange of words; heated discussion between Macariola and the deceased, who were about 3
meters away from him; that following the e exchange of words, he saw the victim kick the accused;
that the latter stood up and then, the accused and the victim face each other; that the accused gave
a thrust at the victim with a "matalas", that the victim was thrown to the floor near his bed which is
about one-half meter away; that a commotion occured all over the cell; that the jail-keeper went
inside the cell; that he saw the said- keeper inspect de la Peñas pillow and found thereunder an
improvised weapon called "matalas", that the Victim's improvised weapon. is 14 inches long made of
tube, double-bladed; that he was not aware of the gambling incident between the victim and the
deceased before the stabbing incident; and that the deceased was bigger in build than the accused. 4
In its Decision dated January 10, 1975, the Trial Court found the aggravating circumstances of
treachery, evident premeditation, and recidivism present and sentenced the accused as follow
WHEREFORE, finding the accused, Ricarte Macariola, GUILTY, beyond reasonable
doubt, of the crime of Murder, under Article 248 of the Revised Penal Code, as
charged in the information, the Court hereby sentences him to suffer the Penalty of
DEATH; to indemnify the heirs of the victim the amount of P10,000.00; to pay moral
damages in the amount of P5,000.00 and another P5,000.00 as exemplary
damages; and to pay the costs. 5
The accused now alleges:
I
The Court a quo erred in not giving credence to defendant-appellant's defense of
complete self-defense.
II
The Court a quo erred in finding defendant-appellant guilty beyond reasonable doubt
of the crime of Murder.
III
The Court a quo erred in finding defendant-appellant a recidivist. 6
Having invoked self-defense, the burden of proving it is on the accused.7 Self-defense should be
established by clear, satisfactory and convincing evidence.8
The evidence for the defense falls short of that requirement. The accused claims that the victim was
the unlawful aggressor in that prior to the stabbing, while he was trying to retrieve the money won
from the victim, the latter kicked him on the chest causing to fall. That act, however, does not
constitute such unlawful aggression as would justify the killing of the victim. It was not of such a
nature that posed actual or imminent and real danger to the accused's life. 9 Defense witness
Antonio Vivero testified that upon being kicked by the victim, the accused stood up and both
protagonists positioned themselves against each other ("nag pormahan") "as if they were getting
ready" before the accused stabbed the victim with a "matalas. " This circumstance clearly shows that
the accused and the victim were getting ready for a fight and that the act of the accused was more
out of retaliation than of self-defense.
Besides, even granting that there was unlawful aggression on the victim's part, it was not
continuous. As prosecution witness Romeo Sato testified, the victim fled to a "kubol" after he was
initially wounded and was pursued by the accused. 10
An act of aggression, when its author does not persist in his purpose, or when he
discontinues his attitude to the extent that the object of the attack is no longer in peril
does not constitute an aggression warranting self- defense. 11
The accused's contention that he drew from his waist his "matalas" only when the victim tried to get
hold of his own weapon under his pillow, and that the victim's weapon fell on the floor because the
accused was able to pull said victim 12, is not supported by the evidence. Defense witness, Antonio
Vivero, himself declared that the deceased was not armed during the stabbing incident and that the
victim's weapon was found under the pillow by the Prisons authorities after the incident. 13
The primal requisite of unlawful aggression being absent, the arguments regarding the other
elements of self-defense serve no useful purpose.
But while the victim's act, of kicking the accused on the chest prior to the stabbing does not
constitute unlawful aggression for purposes of self-defense, that act may nevertheless be
considered as sufficient provocation on the victim's part, and a mitigating circumstance that may be
considered in favor of the accused. 14
Piecing together the evidence of the prosecution and the defense, this is what must have transpired:
after the accused tried to snatch the money back from the victim. the latter. then seated on his
"tarima" kicked the accused who was seated on the floor. Both stood up, the accused ready to box
the victim. The latter turned to get something from- under his pillow. The accused stabbed the victim
the first time. It was this stabbing that prosecution witness Romeo Sato first saw and narrated. That
witness did not hear the quarrel, nor did he see the victim kick the accused. The victim ran to a
"kubol" pursued by the accused. From here on, the versions of the prosecution and the defense tally.
The victim went under his "tarima". 'the accused dragged the victim from under and repeatedly
stabbed him until he could move no more.
1 äwphï1. ñët
The commission of the crime was attended by treachery. It may be that, at the inception, treachery
cannot be appreciated as the sudden assault made by the accused, as testified to by prosecution
witness Romeo Sato, was merely an immediate retaliation for the act of kicking by the victim,
thereby placing the latter on his guard. 15 Yet, although absent initially, if the attack is continued and
the crime is consummated with treachery, it may still be taken into consideration.
Even though an attack may be begun under conditions not exhibiting the feature
of alevosia yet if the assault is continued and the crime consummated with alevosia,,
such circumstance may be taken into consideration as a qualifying factor in the
offense of murder. 16
Treachery exists when the offender employs means, methods or forms which tend directly and
specially to insure the execution of the offense without risk to the accused arising from the defense
which the victim might make. 17 The concurrence of the two conditions necessary for treachery to
exist are present in this case, namely: (1) the employment of means, method or manner of execution
which would insure the offender's safety from any defensive or retaliatory act on the party of the
offended party, which means that no opportunity is given the latter to defend himself or to retaliate;
and (2) such means, method or manner of execution was deliberately or consciously chosen. 18
According to the accused's own version, after he was kicked by the victim and as the latter turned to
retrieve something from under his pillow, the accused drew his improvised deadly weapon from his
waist, pulled the victim, and stabbed the latter on the back. Then, according to prosecution witness,
Romeo Sato, the victim ran to the "kubol" where he was pursued by the accused and two other
inmates and as the victim lay prostrate on the floor the accused and two other inmates kept on
stabbing him without let up. The risk to the accused arising from any defense that the victim might
have made had ceased the moment the victim fled and hid under his "tarima " after being initially
wounded. Yet, the accused went in pursuit and continued attacking the victim to s death. According
to the accused himself, after he had stabbed the victim the latter sought refuge under his "tarima";
but the accused pulled him from under and continued assaulting him even as he was lying prostrate
with half of his body under the " tarima " ; The, victim was in no position to retaliate. He was unarmed
and completely defenseless. The state of helplessness of the victim is evidenced by the 16 stab
wounds he received. As the accused had described in his sworn statement (Exhibit " A "):
1äw phï1.ñ ët
Nagalit siya at sinipa niya ako sa dibdib dahil nasa itaas siya ng kanyang tarima at
ako naman ay nakaupo rin sa sahig. Tumayo ako upang siya ay suntukin ngunit
pumihit siya at may kinukuha sa ilalim nang kanyang unan.
Ang ginawa ko binunot ko ang dala kong patalim na naka sukbit sa aking baywang at
hinila ko siya nang kaliwa kong kamay upang huwag makuha kung ano man ang
kanyang kinukuha sa kanyang unan sabay saksak ko sa kanyang likod. Siniko niya
ako dahil sa hawak ko pa rin siya sa leeg kaya magkasama kaming natumba.
Pumasok siya sa ilalim nang kanyang tarima at sinipa niya ako. Ang ginawa ko
hinawakan ko siya sa paa at hinila ko palabas. Nang makalabas na ang katawan
niya hanggang itaas nang suso sinaksak ko siyang sinaksak hanggang sa hindi na
siya kumilos.
xxx xxx xxx 19 (Emphasis supplied).
The evidence, however, does not support a finding of the existence of evident premeditation. There
is nothing in the testimonies of either prosecution or defense witnesses from which it may be
concluded that the accused had meditated and reflected upon his decision to kill the victim. On the
contrary, a quarrel had precipitated the stabbing episode.
Contrary to the stand of the Solicitor General's Office, the special aggravating circumstance of quasirecidivism, under Article 160 of the Revised Penal Code, is attendant. The accused committed this
new felony while serving sentence for Robbery imposed upon him by maximum period of the Penalty
prescribed by law for this new offense should thus be imposed.
The presence of the mitigating circumstance of sufficient provocation is of no consequence as quasirecidivism cannot be offset by any ordinary mitigating circumstance. 20
The result is that the crime committed is Murder qualified by treachery, the maximum of the Penalty
for which is death. 21 For lack of the necessary votes to impose it, however, the Penalty should be
commuted to reclusion perpetua.
WHEREFORE, the judgment appealed from is modified as to the Penalty imposed and the accused,
Ricarte Macariola, is hereby sentenced to suffer reclusion perpetua. The indemnity awarded by the
Trial Court of P10,000.00 is increased to P12,000.00.22 The judgment is affirmed in all other respects.
Costs against accused-appellant Ricarte Macariola.
SO ORDERED.
G.R. No. 151978
July 14, 2004
ARTURO ROMERA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J.:
For review on certiorari is the Decision1 dated January 11, 2002 of the Court of Appeals, in CA-G.R.
CR. No. 23753, affirming the August 16, 1999 Order2 of the Regional Trial Court of Cagayan de Oro
City, Branch 24, in Criminal Case No. 98-1089. The RTC convicted petitioner Arturo Romera of
frustrated homicide and sentenced him to imprisonment ranging from one (1) year, eight (8) months
and twenty (20) days of prision correccional as minimum to six (6) years and one (1) day of prision
mayor as maximum. He was also ordered to pay private offended party P19,361.15 as actual
damages and P10,000 as attorney’s fee.
The Information against petitioner reads:
On October 4, 1998, at about 7:00 o’clock in the evening, at Sitio Puntod, Barangay
Balagnan, Balingasag, Misamis Oriental, within the jurisdiction of the Honorable Court, the
above-named accused, with intent to kill, did, then and there, willfully, unlawfully, and
feloniously attack, assault, and stab one Roy Mangaya-ay with the use of a bolo, thus,
inflicting a mortal wound on the abdomen of the latter; accused thereby performed all the
acts of execution which would have produced the felony of Homicide which was not
produced because of the timely and effective medical attendance administered on the said
victim.
CONTRARY TO and in violation of Article 249, in relation with Article 6 of the Revised Penal
Code.3
When arraigned, petitioner pleaded not guilty and trial thereafter ensued.
The facts, as summarized by the Court of Appeals and borne by the records, are as follows:
In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim, Roy Mangaya-ay,
and five other men namely, Eligario "Beboy" Acenas, Dennis "Bobong" Mangaya-ay, Ric Mangayaay, Bebing Zulueta and Franklin Generol. They were all headed for Biasong to play volleyball. When
they reached Biasong, it was raining, so they decided to while away time at the house of Ciriaca
Capil. Franklin Generol hung a string made of cigarette foil on Bebing Zulueta’s pants and said,
"There’s a monkey among us." Everybody laughed except Roy Mangaya-ay, who got angry and
chided Franklin Generol to stop lest he make enemies. Bebing Zulueta also got angry and pointed a
finger at Franklin Generol and said, "Even if you are stronger and older, if you will be hit by my fist,
you will crawl." Petitioner then stood up and warned everyone, "You all watch out in Balaguan." He
pulled Franklin Generol to join him and said, "Let’s go, there are many boastful people here."
Thereafter, petitioner and Franklin left the group.
At six o’clock in the evening, Roy and his companions arrived in Balaguan. On their way home, they
passed by the house of one Antonio Mangaya-ay. In said house, which is about one kilometer away
from petitioner’s own, they saw petitioner already carrying a bolo waiting for them.
Suddenly, raising the bolo with his right hand, petitioner uttered, "Here are the brave ones." Roy and
his companions ran away but Roy slipped on the muddy ground. Petitioner approached Roy and
said, "Come here, brave one." He held Roy up by the collar and stabbed him in the stomach. Roy fell
unconscious. When he woke up, he found himself at the provincial hospital where he underwent
surgery and stayed for more than three weeks.
After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo Ramoso of the
Citizen’s Armed Force Geographical Unit (CAFGU). Ramoso accompanied petitioner to the
Balingasay police station.
For his part, petitioner testified on what happened as follows:
Petitioner and his family were having dinner in their house at around seven o’clock in the evening.
Thereafter, they went to bed. While lying in bed, they heard Roy call petitioner and his wife, asking if
they had beer and a fighter for sale. He did not answer Roy because he knew that Roy was already
drunk. Roy asked for petitioner but when the latter’s wife told him that petitioner was already asleep,
he told her to wake her husband up. Petitioner went down the house and asked who was at the
door. Just as he opened the door for Roy, Roy thrust his bolo at him. He successfully parried the
bolo and asked Roy what it was all about. Roy answered he would kill petitioner. Petitioner tried to
prevent Roy from entering, so he pushed the door shut. As Roy was hacking at the wall, petitioner’s
wife held the door to allow petitioner to exit in another door to face Roy. He hurled a stone at Roy,
who dodged it. Roy rushed to him and hacked him, but he parried the blow. Petitioner grappled for
the bolo and stabbed Roy in the stomach. Wounded, Roy begged petitioner for forgiveness.
According to petitioner, he ceased harming Roy for fear he might kill him.
The trial court discounted petitioner’s story of self-defense. It found that when petitioner got hold of
the bolo, there was no more danger to his life. Petitioner was convicted of frustrated homicide. The
dispositive part of its decision reads:
WHEREFORE, premises considered, judgment is hereby rendered, finding accused
ARTURO ROMERA guilty beyond reasonable doubt as principal of the offense charged.
Consequently, taking into consideration the mitigating circumstance of voluntary surrender
and the provisions of the [I]ndeterminate Sentence Law, he is hereby sentenced to a penalty
ranging from One (1) year Eight (8) months and Twenty (20) days of Prision Correccional as
minimum to Six (6) years and one (1) day of Prision Mayor as maximum and to pay the
private offended party as actual damages, P19,361.15 and another sum of P10,000.00 as
attorneys fee without, however, subsidiary imprisonment in case of insolvency.
SO ORDERED.4
Petitioner appealed to the Court of Appeals assigning to the trial court the following assignments of
error:
1. FAILURE TO APPRECIATE THE THEORY OF SELF DEFENSE.
2. IN THE ALTERNATIVE, FAILURE TO APPRECIATE SPECIAL PRIVILEGED
MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF DEFENSE, ARTICLE 69,
REVISED PENAL CODE WHICH LOWER THE PENALTY BY TWO DEGREES.
3. FURTHER ALTERNATIVE, FAILURE TO APPLY ARTICLE 62 (5) REVISED PENAL
CODE, WHICH LOWER THE PENALTY BY ONE DEGREE LOWER WITH THE
PRESENCE OF TWO OR MORE MITIGATING CIRCUMSTANCES. 5
The Court of Appeals affirmed the trial court’s judgment. It pointed out that assuming arguendo that
it was the victim who was the aggressor at the start, the unlawful aggression ceased to exist when
petitioner took possession of the bolo from the victim. Absent unlawful aggression, the justifying
circumstance of self-defense becomes unavailing.
The appellate court also ruled that Article 696 of the Revised Penal Code finds no application in this
case. It explained that there can be no self-defense, complete or incomplete, unless the victim has
committed unlawful aggression against the person defending himself. It held, however, that
petitioner is entitled to the mitigating circumstance of voluntary surrender as it was established
during trial that after the incident he surrendered himself to the CAFGU and later on to the police
authorities.
Undeterred, petitioner filed the instant petition for review on the sole ground that both the RTC and
the Court of Appeals erroneously failed to apply Article 64 (5) of the Revised Penal Code, which
lowers the imposable penalty by one degree when two or more mitigating circumstances are
present.
Petitioner contends that the victim provoked him to a fit of anger when the latter woke him up and
thrust a bolo at him without warning as petitioner opened the door. Moreover, by hacking and
destroying the bamboo wall of his house, and endangering the lives of his children, the victim also
obfuscated his thinking and reasoning processes, says the petitioner.
For public respondent, the Office of the Solicitor General (OSG) counters that the mitigating
circumstances of provocation and passion or obfuscation are unavailing to petitioner since it was he
who initiated the attack. The OSG insists that it was not the victim who went to petitioner’s house,
but petitioner who went to where the victim was resting.
We note that while both the RTC and the Court of Appeals did not categorically state who started the
attack, it can be reasonably gleaned from their decisions that it was the victim who initiated the
aggressive encounter. This finding of fact is amply supported by the evidence on record.
Are the mitigating circumstances of provocation and passion or obfuscation present in this case?
Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house
are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking,
more so when the lives of his wife and children are in danger. Petitioner stabbed the victim as a
result of those provocations, and while petitioner was still in a fit of rage. In our view, there was
sufficient provocation and the circumstance of passion or obfuscation attended the commission of
the offense.
But, we must stress that provocation and passion or obfuscation are not two separate mitigating
circumstances. Well-settled is the rule that if these two circumstances are based on the same facts,
they should be treated together as one mitigating circumstance.7 From the facts established in this
case, it is clear that both circumstances arose from the same set of facts aforementioned. Hence,
they should not be treated as two separate mitigating circumstances.
Nonetheless, we hold that since the mitigating circumstance of voluntary surrender is also present,
Article 64 (5) of the Revised Penal Code should be applied, to wit:
ART. 64. Rules for the application of penalties which contain three periods. –…
...
5. When there are two or more mitigating circumstances and no aggravating circumstances
are present, the court shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature of such
circumstances.
...
The penalty for frustrated homicide, pursuant to Article 508 of the Revised Penal Code, is the penalty
next lower in degree than that prescribed by law for consummated homicide. The penalty for
consummated homicide is reclusion temporal, hence the penalty next lower in degree is prision
mayor. There being two mitigating circumstances and no aggravating circumstance, pursuant to
Article 64 (5) of the Revised Penal Code, the next lower penalty, prision correccional, is the next
statutory penalty. But following the Indeterminate Sentence Law herein applicable, the minimum
term of the penalty that should be imposed on petitioner for frustrated homicide should be within the
range of arresto mayor in any of its periods or from one (1) month and one (1) day to six (6) months,
while the maximum term should be within the range of prision correccional in its medium period or
two (2) years, four (4) months and one (1) day to four (4) years and two (2) months.
WHEREFORE, the Decision dated January 11, 2002 of the Court of Appeals affirming the Order of
the Regional Trial Court of Cagayan de Oro City, Branch 24, is MODIFIED as far as the penalty
imposed is concerned. Petitioner ARTURO ROMERA is hereby sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. He is also ORDERED to pay the private offended
party P19,361.15 as actual damages, and P10,000.00 as attorney’s fees. Costs de oficio.
SO ORDERED.
[G.R. No. 48101. November 22, 1941.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VICENTE
NABORA, Defendant-Appellant.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; PROVOCATION AS MITIGATING CIRCUMSTANCE, WHEN
CONSIDERED. — The provocation, to constitute a mitigating circumstance, must, in the
language of the law, be "sufficient", that is, adequate to excite the person to commit
the wrong and must accordingly be proportionate to its gravity.
DECISION
MORAN, J.:
On the night of December 3, 1940, while the accused Vicente Nabora was taking a walk
along the new Luneta, the deceased Domingo de Vera met him near the site of the
flagpole and pointing his finger at him (accused) asked him what he was doing there
and then said: "Don’t you know we are watching for honeymooners here" ? Provoked
by the attitude of the deceased, the accused drew out his knife and stabbed the
deceased on the abdomen and on the other parts of the body which caused the latter
his instant death. An information for homicide was filed against the accused wherein it
was alleged that he is a "recidivist, he having been previously convicted three times of
physical injuries" and "punished once of robbery, three times of theft, and twice of
illegal possession of a deadly weapon, by virtue of final judgments of competent
courts." Defendant pleaded guilty to the charge and was allowed to testify on mitigating
circumstances in his favor. The trial court then sentenced him to an indeterminate
penalty of from 10 years and 1 day of prision mayor to 17 years, 4 months and 1 day
of reclusion temporal and to pay the heirs of the deceased an indemnity of P2,000,
without subsidiary imprisonment in case of insolvency. This judgment is now sought to
be reviewed in this appeal.
By defendant’s plea of guilty, he admits the aggravating circumstances of recidivism
and reiteracion alleged in the information. In partial offset, he is entitled to one
mitigating circumstance — voluntary plea of guilty. His claim to another mitigating
circumstance — that of sufficient provocation on the part of the deceased — cannot be
sustained. The provocation, to constitute a mitigating circumstance, must, in the
language of the law, be "sufficient", that is, adequate to excite the person to commit
the wrong and must accordingly be proportionate to its gravity. In the instant case, it
can hardly be said that the acts of the deceased in pointing his finger at the defendant
and uttering the question aforementioned constitute a sufficient cause for him to draw
out his knife and kill the deceased.
Appellant is accordingly sentenced to an indeterminate penalty of not less than 10
years and 1 day of prision mayor and not more than 18 years of reclusion temporal,
and in all other respects, the judgment is affirmed, with costs against Appellant.
G.R. No. L-33154 February 27, 1976
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANGEL REYES Y ALCANTARA, defendant-appellant.
Office of the Solicitor General for appellee.
Ruben Roxas (Counsel de Oficio) for appellant.
PER CURIAM:
AUTOMATIC REVIEW of the decision of the Circuit Criminal Court of Manila, 6th Judicial District, in
Criminal Case No. CCC-VI-279 (70), dated October 27, 1970, the dispositive portion of which reads
as follows:
WHEREFORE, accused is hereby found guilty beyond i reasonable doubt as
principal of the crime of murder qualified by the treachery and there being proved the
aggravating circumstance of taking advantage of public position, without any
mitigating in circumstance to offset the same the Court sentences him to DEATH, to
indemnify the heirs of the deceased the sum of P12,000.00 for the death of the latter,
the sum of P8,000.00 by way of moral damages, P8,000.00 by way of exemplary
damages, and to pay the costs.
The evidence for the prosecution has established that on October 1, 1970, at about 3:00 o'clock in
the afternoon, Jose Garcia and his cousin, the deceased Norberto Flores, were on their way to the
place where they drive a taxi, which was near their respective residences on G. Tuason, Sampaloc,
Manila. Along the way, they stopped awhile and joined a group of people watching and observing an
insane person. While thus engaged, two men, one of whom was the accused Angel Reyes,
approached them and inquired about a certain Oscar Solomon, who lives in that place. Thereupon,
the deceased Norberto Flores, approached the accused and asked for a cigarette light but the latter
struck him with a karate chop to the stomach using the side of his open palm, at the same time
poking a gun on them saying: "Ang sama ng porma ninyo." The accused and his companion
appeared to have taken liquor as they had alcoholic breath. Thereafter, Jose Garcia and the
deceased Norberto Flores, went to the house of the latter and stayed by the door, while the accused
and his companion proceeded to look for Oscar Solomon.
Immediately after the accused and his companion had left, Jose Garcia together with the deceased
Norberto Flores, Ernesto Bautista and Isagani Reyes went to Police Precinct No. 4 on G. Tuason,
Sampaloc, Manila, where they reported and complained about the "gun-poking" incident. Thereafter,
the accused and his companion were picked up by three police officers and brought to the police
precinct for investigation. Accused made known that he was a policeman from Police Precinct No. 8,
Manila Police Department, but that he was in civilian clothes because he was on emergency leave
that day.
At the police precinct, they were told to go to the investigation room located at the second floor.
While inside the investigation room, the accused tried to settle the matter with Jose Garcia.
Meanwhile, Conchita Flores, mother of the deceased Norberto Flores, arrived. She refused to settle
the case with the accused and soon they shouted at each other. The accused said to Conchita
Reyes: "Ayaw ninyong paareglo gusto ninyo cuarta, cuarta." Thereafter, the accused Angel Reyes
approached Norberto Flores, who was seated on a chair in front of the table of the investigator'. Det.
Domingo Gomez of the MPD, and sat on the edge of the table, about two feet away from the
deceased Norberto Flores. He uttered bad words and said: "I will shoot you now", and immediately,
pulled his gun from his waistline and shot Norberto Flores, who was then seated, stooping and
smoking, hitting the said Norberto Flores in the abdomen which gunshot wound caused his death a
few hours thereafter.
Immediately after the shot, the people inside the investigation room scampered for cover. However,
Det Domingo Gomez remained inside the investigation room. Then Det. Ferrera arrived and
immediately disarmed the accused, who was placed under arrest by Det. Domingo Gomez. The
accused, however, refused to give any statement.
For his defense, appellant claims that the shooting was accidental. His testimony-which was rejected
by the trial court-is to the effect that when he approached the deceased Norberto Flores, who was
then seated in front of the table of the investigator, he heard Norberto Flores say that he (accused)
was only brave because he had a gun. This prompted the accused to answer: "You are always
saying about my gun, here is my gun", after which he drew his gun from his right waist to hand it
over to the deceased. While the accused was in the process of handing over the gun to the
deceased Norberto Flores, the gun suddenly fired hitting the latter in the abdomen.
Appellant now maintains that the trial court erred in holding that the shooting was not accidental, and
assails the trial court in giving weight and credence to the testimonies of prosecution witnesses Jose
Garcia and Conhita Flores, claiming that their testimonies were not only contradictory and conflicting
in material and substantial points but also because they are biased and prejudiced, being the cousin
and mother, respectively of the deceased.
Upon review of the records, We find that the appellants contentions are devoid of merit. As correctly
observed by the trial court, his testimony that he accidentally shot the victim defies belief because
the shooting of the victim was preceded by his threatening words. Besides, had it really been
accidental, then the natural tendency of the accused would have been to immediately give help to
his unfortunate victim and even to plead and express his regret to the mother of the deceased. But
such was not the case. After shooting the victim, the accused still aimed his gun at the prostrate
body on the floor, which prevented the mother of the victim, Conchita Flores, from going to the side
of her son.
Furthermore, as pointed out by the Solicitor General in his belief, appellant's claim of accidental
shooting is negated by the following facts: (1) a revolver is not prone to accidental firing if it were
simply being handed over to the deceased as appellant claims because of the nature of its
mechanism, unless it was already first cocked and pressure was exerted on the trigger in the
process of allegedly handing it over If it were uncooked, then considerable pressure had to be
applied on the trigger to fire the revolver. Either way, the shooting of the deceased must have been
intentional because pressure on the trigger is necessary to make the gun fire, cocked or uncooked;
(2) even assuming for the sake of argument as correct the appellant's pretense of merely handing
the firearm over to the deceased, the barrel or muzzle is never pointed to a person, a basic firearms
safety rule which appellant should know as a police officer; the proper handling of the gun dictates
the handing over of the same, butt first. It is indeed, strange, why in the case at bar the appellant
allegedly handed over the gun to the deceased with the barrel or muzzle of the gun pointed to the
latter, instead of handing it over butt first.
Moreover, after his arrest the appellant refuse to give any statement to the police. Such conduct of
the appellant strongly argues against his claim of accidental shooting. He could have easily
explained the matter to the Police. But he did not. This is another circumstance that casts doubt
upon his claim of accidental shooting.
We find, therefore, no error in the trial court's conclusion that the shooting of the deceased was not
accidental but intentional.
Appellant points out certain inconsistencies in the testimonies of prosecution witnesses Jose Garcia
and Conchita Flores. For example, appellant claims as inconsistent their testimonies as to whether it
was the deceased Norberto Flores who approached the accused or it was the accused who
approached the deceased after which the accused struck the latter with his open palm, at the same
time poking a gun on him; whether appellant poked a gun on the two of them, or only on the
deceased; whether after the gun-poking incident, the deceased Norberto Flores and Jose Garcia
went to the former's house before proceeding to the-police precinct, or simply went directly to the
police precinct; whether Conchita Flores and the accused talked for about 20 minutes inside the
police precinct, or they did not talk to each other; and whether or not they shouted at each other
inside the police precinct. The above inconsistencies refer only to minor and collateral matters that
do not impair the credibility of Jose Garcia and Conchita Flores. The discrepancies signify that the
two witnesses did not deliberately pervert the truth in their narrations. The discordance in their
testimonies on collateral matters heightens their credibility and shows that their testimonies were not
coached nor rehearsed.1 Far from being evidence of falsehood they could justifiably be regarded as
a demonstration of their good faith. 2
We likewise, find no merit in appellant's claim that because these two witnesses are related to the
deceased, their testimonies are necessarily biased and prejudiced. Relationship to the victim alone
does not impair the positive and clear testimony of witnesses. 3
Appellant claims the absence of treachery in the commission of the offense. There is no merit to the
contention. The victim was unarmed at the time he was shot, seated of a chair at the investigator's
table, stooping and smoking, completely unaware of the impending attack. The accused was seated
on the edge of the table two feet away from the deceased when the former pulled out his gun from
his waistline and shot the victim, immediately after the accused had uttered the words, "I will shoot
you now". It is evident that appellant employed a method of attack which tended directly and
specially to insure its execution, without risk to himself arising from the defense which the offended
party might make. Treachery therefore, qualified the killing to murder. 4
The crime was committed with the aggravating circumstance of abuse of public position. 5 Appellant
was in civilian clothes at the time he was apprehended by policemen of Precinct 4. He Identified
himself as a policeman of the Manila Police Department belonging to Precinct 8. Because of his
position he was not relieved of his service firearm which he had on his' person in spite of the fact that
the charge against him was grave threats. At the investigation room of Precinct 4, appellant had the
run of the place, in a manner of speaking, again because of his position. In the course of the
investigation being conducted by Det. Domingo Gomez, appellant had the effrontery and arrogance
to sit on top of the table of the investigator, at the edge thereof, in utter disregard of the respect due
the investigator, let alone the elementary rules of courtesy. From this position, appellant, with his
service firearm, shot the deceased who was then seated on a chair in front of the investigator's table,
stooping and smoking. Instead of upholding the law, appellant broke it; instead of using his service
firearm for good, he used it for evil. Clearly, his crime is graver and his responsibility greater. 6
As to the mitigating circumstances of (a) sufficient provocation; (b) passion and obfuscation; (c)
drunkenness; (d) voluntary surrender; and (e) lack of intent to commit so grave a wrong, which the
appellant claims to have attended the commission of the crime, We find the contention to be without
merit.
Since the alleged provocation 7 which caused the obfuscation 8 of the appellant did not come from
the deceased but from the latter's mother, Conchita Flores, the same may not, be appreciated in
favor of appellant. Besides, it may be pointed out that in the present case, provocation and
obfuscation cannot be considered as two distinct and separate circumstances but should treated as
one, having arisen from the same incident. 9 Voluntary surrender may not also be credited to the
appellant because the fact that he did not try to escape or did not resist arrest after he was taken
into custody by the authorities does not amount to voluntary surrender. 10 A surrender to be voluntary
must be spontaneous, showing the intent of the accused to submit himself unconditionally to the
authorities. Here, the accused after shooting the deceased was immediately disarmed and placed
under arrest. There is, therefore, no voluntary surrender to speak of because the appellant was in
point of fact arrested. 11
As to the alleged lack of intent to commit so grave a wrong as that committed the same cannot
likewise be considered in favor of appellant. His clear intention to kill the deceased may be inferred
from the fact that he used a deadly weapon and fired at the deceased almost point blank, thereby
hitting him in the abdomen and causing death.
And as to the alternative circumstance of intoxication, it suffices to state that the medical
certification 12 shows that appellant was not intoxicated.
Finally as to the civil liability of the accused, We find that the award of moral damages in the sum of
P8,000.00 is in accordance with law. This has been sufficiently discussed in the case of Heirs
of Raymundo Castro vs. Bustos, L-25913, Feb. 28, 1969. 13 Likewise, in view of our finding that the
crime was committed with the aggravating circumstance of abuse of public position, the award of
exemplary damages is also justified
WHEREFORE, finding the appealed judgment in accordance with the law and the evidence, the
same is hereby affirmed in toto.
SO ORDERED.
G.R. No. L-162
April 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO
ALCONGA, appellant.
Jose Avanceña for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for appellee.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio,
Province of Iloilo several persons were playing prohibited games (t.s.n., pp. 95, 125). The deceased
Silverio Barion was the banker in the game of black jack, and Maria de Raposo, a witness for the
prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de
Raposo, the accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of
P5 to a common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while the said accused
posted himself behind the deceased, acting as a spotter of the cards of the latter and communicating
by signs to his partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in the
game because of the team work between Maria de Raposo and the accused Alconga (t.s.n., pp. 96,
126). Upon discovering what the said accused had been doing, the deceased became indignant and
expressed his anger at the former (t.s.n., pp. 96, 126). An exchange of words followed, and the two
would have come to blows but for the intervention of the maintainer of the games (t.s.n., p. 96). In a
fit of anger, the deceased left the house but not before telling the accused Alconga, "tomorrow
morning I will give you a breakfast" (t.s.n., p. 96), which expression would seem to signify an intent
to inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943,
when the latter was in the guardhouse located in the barrio of Santol, performing his duties as "home
guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench in the guardhouse, the
deceased came along and, addressing the former, said, "Coroy, this is your breakfast," followed
forthwith by a swing of his "pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to the
ground under the bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100-101). A
second blow was given but failed to hit the accused, hitting the bench instead (t.s.n., p. 101). The
accused manage to go out of the guardhouse by crawling on his abdomen (t.s.n., p. 101). While the
deceased was in the act of delivering the third blow, the accused, while still in a crawling position
(t.s.n., p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground (t.s.n.,
p. 101). Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused
who, however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight
ensued (t.s.n., p. 102). Having sustained several wounds, the deceased ran away but was followed
by the accused (t.s.n., p. 6). After running a distance of about 200 meters (t.s.n., pp. 21, 108), the
deceased was overtaken, and another fight took place, during which the mortal bolo blow — the one
which slashed the cranium — was delivered, causing the deceased to fall to the ground, face
downward, besides many other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the other
accused, Adolfo Bracamonte, arrived and, being the leader of the "home guards" of San Dionisio,
placed under his custody the accused Alconga with a view to turning him over to the proper
authorities (t.s.n., pp. 102-105).
On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier
(t.s.n., pp. 80, 104). Adolfo Bracamonte turned over Alconga to Collado who in turn took him to the
headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga to
Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the
fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81, 104).
The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows:
P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R. Examine sus
heridas.
P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R. En la cabeza,
en sus brazos, en sus manos, en la mandibula inferior, en la parte frente de su cuello, en su
pecho derecho, y tambien en el pecho izquierdo, y su dedo meñique habia volado, se habia
cortado, y otras perqueñas heridas mas.
P. ¿En la cabeza, vio usted heridas? — R. Si, señor.
P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una contusion en la
corona de la cabeza.
P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el craneo se ha roto.
P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla derecha, una herida
causada por una bala.
P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — R. Heridas
causadas por bolo.
P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la dimension de las
heridas en el pecho.
P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada por el bolo.
(T.s.n., p. 25.)
It will be observed that there were two stages in the fight between appellant and the deceased. The
initial stage commenced when the deceased assaulted appellant without sufficient provocation on
the part of the latter. Resisting the aggression, appellant managed to have the upper hand in the
fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat.
From that moment there was no longer any danger to the life of appellant who, being virtually
unscathed, could have chosen to remain where he was. Resolving all doubts in his flavor, and
considering that in the first stage the deceased was the unlawful aggressor and defendant had not
given sufficient provocation, and considering further that when the deceased was about to deliver
the third blow, appellant was still in a crawling position and, on that account, could not have
effectively wielded his bolo and therefore had to use his "paltik" revolver — his only remaining
weapon — ; we hold that said appellant was then acting in self-defense.
But when he pursued the deceased, he was no longer acting in self-defense, there being then no
more aggression to defend against, the same having ceased from the moment the deceased took to
his heels. During the second stage of the fight appellant inflicted many additional wounds upon the
deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the
fact that he was still able to run a distance of some 200 meters before being overtaken by appellant.
Under such circumstances, appellant's plea of self-defense in the second stage of the fight cannot
be sustained. There can be no defense where there is no aggression.
Although the defendant was not the aggressor, he is not exempt from criminal liability for the
reason that it is shown that he struck several blows, among them the fatal one, after the
necessity for defending himself had ceased, his assailant being then in retreat. Therefore
one of the essential ingredients of self-defense specified in No. 4, article 8 of the Penal Code
is wanting (now article 11, case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7
Phil., 475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the defendants were assaulted by the four
(offended parties), the right to kill in self-defense ceased when the aggression ceased; and
when Toledo and his brothers turned and ran, without having inflicted so much as a scratch
upon a single one of the defendants, the right of the defendants to inflict injury upon them
ceased absolutely. They had no right to pursue, no right to kill or injure. A fleeing man is not
dangerous to the one from whom he flees. When danger ceases, the right to injure ceases.
When the aggressor turns and flees, the one assaulted must stay his hand. (United
States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been
established beyond reasonable doubt. The learned trial court appreciated in his favor of two
mitigating circumstances: voluntary surrender and provocation on the part of the deceased. The first
was properly appreciated; the second was not, since it is very clear that from the moment he fled
after the first stage of the fight to the moment he died, the deceased did not give any provocation for
appellant to pursue much less further to attack him.
The only provocation given by him was imbibed in, and inseparable from, the aggression with which
he started the first stage of the fight. The evidence, as weighed and appreciated by the learned trial
judge, who had heard, seen and observed the witnesses testify, clearly shows that said stage ended
with the flight of the deceased after receiving a bullet wound in his right breast, which caused him to
stagger and fall to the ground, and several bolo wounds inflicted by appellant during their hand-tohand fight after both had gotten up. The learned trial judge said:
The evidence adduced by the prosecution and the defense in support of their respective
theories of the case vary materially on certain points. Some of these facts have to be
admitted and some have to be rejected with the end in view of arriving at the truth. To the
mind of the Court, what really happened in the case at bar, as can de disclosed by the
records, which lead to the killing of the deceased on that fatal morning of May 29, 1945
(should be 1943), is as follows:
xxx
xxx
xxx
In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse
performing his duties as guard or "ronda" in Barrio Santol, the deceased Silverio Barion
passed by with a "pingahan". That was the first time the deceased and the accused Alconga
had met since that eventful night of May 27th in the gambling house of Gepes. Upon seeing
the accused Alconga, who was then seated in the guardhouse, the deceased cried: "Coroy,
this is now the breakfast!" These words of warning were immediately followed by two
formidable swings of the "pingahan" directed at the accused Alconga which failed to hit him.
Alconga was able to avoid the blows by falling to the ground and crawling on his abdomen
until he was outside the guardhouse. The deceased followed him and while in the act of
delivering the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the
blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he
drew forth a dagger. The accused Alconga resorted to his bolo and both persons being
armed, a hand-to-hand fight followed. The deceased having sustained several wounds from
the hands of Alconga, ran away with the latter close to his heels.
The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement
with those found by us and narrated in the first paragraphs of this decision. Upon those facts the
question arises whether when the deceased started to run and flee, or thereafter until he died, there
was any provocation given by him from appellant to pursue and further to attack him. It will be
recalled, to be given with, that the first stage of the fight was provoked when the deceased said to
appellant "Cory, this is now the breakfast," or "This is your breakfast," followed forthwith by a swing
or two of his "pingahan." These words without the immediately following attack with the "pingahan"
would not have been uttered, we can safely assume, since such an utterance alone would have
been entirely meaningless. It was the attack, therefore, that effectively constituted the provocation,
the utterance being, at best, merely a preclude to the attack. At any rate, the quoted words by
themselves, without the deceased's act immediately following them, would certainly not have been
considered a sufficient provocation to mitigate appellant's liability in killing or injuring the deceased.
For provocation in order to be a mitigating circumstance must be sufficient and immediately
preceding the act. (Revised Penal Code, article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having
inflicted so much as a scratch upon appellant, but after, upon the other hand, having been wounded
with one revolver shot and several bolo slashes, as aforesaid, the right of appellant to inflict injury
upon him, ceased absolutely — appellant "had no right to pursue, no right to kill or injure" said
deceased — for the reason that "a fleeing man is not dangerous to the one from whom he flees." If
the law, as interpreted and applied by this Court in the Vitug case, enjoins the victorious contender
from pursuing his opponent on the score of self-defense, it is because this Court considered that the
requisites of self-defense had ceased to exist, principal and indispensable among these being the
unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of said aggression the provocation
thus involved therein still persisted, and to a degree sufficient to extenuate appellant's criminal
responsibility for his acts during the second stage of the fight? Appellant did not testify nor offer other
evidence to show that when he pursued the deceased he was still acting under the impulse of the
effects of what provocation, be it anger, obfuscation or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx
xxx
xxx
4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act.
It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance
that it not only immediately precede the act but that it also be sufficient. In the Spanish Penal Code,
the adjective modifying said noun is "adecuada" and the Supreme Court of Spain in its judgment of
June 27, 2883, interpreted the equivalent provision of the Penal Code of that country, which was the
source of our own existing Revised Penal Code, that "adecuada" means proportionate to the
damage caused by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as
follows:
El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido
ha de preceder para la disminucion de la responsabilidad criminal debe ser proporcionada al
daño que se cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que
hubo fue si en un monton de yeso habia mas omenos cantidad, y como perdiera la apuesta
y bromeando dijera el que la gano que beberia vino de balde, esa pequeña cuestion de
amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario.
(S. de 27 de junio de 1883, Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The
provocation or threat must be sufficient, which means that it should be proportionate to the act
committed and adequate to stir one to its commission" (emphasis supplied).
Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by
the accused. This the instant appellant has utterly failed to do. Any way, it would seem self-evident
that appellant could never have succeeded in showing that whatever remained of the effects of the
deceased's aggression, by way of provocation after the latter was already in fight, was proportionate
to his killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and may be said, not without reason, to
have spent itself after appellant had shot the deceased in his right breast and caused the latter to fall
to the ground; or — making a concession in appellant's favor — after the latter had inflicted several
bolo wounds upon the deceased, without the deceased so much as having scratched his body, in
their hand-to-hand fight when both were on their feet again. But if we are to grant appellant a further
concession, under the view most favorable to him, that aggression must be deemed to have ceased
upon the flight of the deceased — upon the end of the first stage of the fight. In so affirming, we had
to strain the concept in no small degree. But to further strain it so as to find that said aggression or
provocation persisted even when the deceased was already in flight, clearly accepting defeat and no
less clearly running for his life rather than evincing an intention of returning to the fight, is more than
we can sanction. It should always be remembered that "illegal aggression is equivalent to assault or
at least threatened assault of an immediate and imminent kind.
Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que exista el derecho
de defensa es preciso que se nos acometa, que se nos ataque, o cuando menos, que se
nos amenace de atacarnos de un modo inmediato e inminente; v. gr., desenvainando el
puñal para herirnos con el o apuntando la pistola para dispararla contra nosotros. (Viada,
5. a edicion, 173.)
After the flight of the deceased there was clearly neither an assault nor a threatened assault of the
remotest kind. It has been suggested that when pursuing his fleeing opponent, appellant might have
thought or believed that said opponent was going to his house to fetch some other weapon. But
whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a
separate circumstance, the burden of proof to establish such a defense was, of course, upon
appellant, and he has not so much as attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as any other defense. We can not
now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one
defending himself or his property from a felony violently or by surprise threatened by another is not
obliged to retreat but may pursue his adversary until he has secured himself from danger. But that is
not this case. Here from the very start appellant was the holder of the stronger and more deadly
weapons — a revolver and a bolo, as against a piece of bamboo called "pingahan" and a dagger in
the possession of the deceased. In actual performance appellant, from the very beginning,
demonstrated his superior fighting ability; and he confirmed it when after the deceased was first
felled down by the revolver shot in right breast, and after both combatants had gotten up and
engaged in a hand-to-hand fight, the deceased using his dagger and appellant his bolo, the former
received several bolo wounds while the latter got through completely unscathed. And when the
deceased thereupon turned and fled, the circumstances were such that it would be unduly stretching
the imagination to consider that appellant was still in danger from his defeated and fleeing opponent.
Appellant preserved his revolver and his bolo, and if he could theretofore so easily overpower the
deceased, when the latter had not yet received any injury, it would need, indeed, an unusually strong
positive showing — which is completely absent from the record — to persuade us that he had not
yet "secured himself from danger" after shooting his weakly armed adversary in the right breast and
giving him several bolo slashes in different other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed
by appellant is punishable by reclusion temporal in its minimum period, which would be from 12
years and 1 day to 14 years and 8 months. However, in imposing the penalty, we take into
consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as
amended by Act No. 4225. Accordingly, we find appellant guilty of the aforesaid crime of homicide
and sentence him to an indeterminate penalty of from 6 years and 1 day of prision mayor to 14 years
and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of P2,000,
and to pay the costs.
As thus modified, the judgment appealed from is hereby affirmed. So ordered.
G.R. No. L-22697 October 5, 1976
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DONION TAN Y CUI alias DIONING defendant-appellant.
Daza, Ledesma & Saludo and Feliciano C. Tumale for appellant.
CONCEPCION, JR., J.:
This is an appeal interposed by the accused Donion Tan y Cui alias "Dioning" from the judgment of
the Court of First Instance of Samar finding him guilty of killing the late Jose Sosing and sentencing
him to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the amount of
P6,000.00; and to pay the costs.
The inculpatory facts show that at about 9:00 o'clock in the morning of June 25, 1961, the appellant
Donion Tan, then a member of the municipal police force of Pambujan, Samar, approached Jose
Sosing, the maintainer of a "Paitik" game, 1 and asked for a peso. Jose Sosing replied that he did not
have any and offered, instead, forty centavos. Tan was not satisfied and asked to be shown the
permit to operate the game. Jose Sosing did so, but soon after, Tan grabbed the coins and coconut
shell used in the game. A scuffle for the possession of the coconut shell thus ensued between Tan
and Sosing. In the process, Sosing was hit in the mouth while Tan suffered bruises in the left
forearm. Surprised at the unexpected opposition of Sosing, Tan pulled out his service pistol. Fearing
for his life, Sosing took hold of the gun and they wrestled for its possession. The gamblers and
bystanders thereat scampered for safety.
The melee attracted the attention of PC Sergeants Juanito Irigan and Luis Amor who tried to
separate the protagonists. Since neither one of them released his hold on the gun, Sgt. Amor fired
over their hands and the pistol was released. Sgt. Amor then unloaded the gun and gave it to the
chief of police of Pambujan who, in turn, gave it to police sergeant Jesusimo Lipata. Thereafter, Tan
was told to go home.
Upon being disarmed, Tan was heard to say: "You are very thankful that soldiers arrived, if none,
you are already dead now. Before sunset or before the end of this month you will be killed."
The fracas also attracted the attention of Agueda Tiu, an elder sister of Jose Sosing, who, upon
being informed that her brother was involved. lost no time in going to the "paitikan," arriving thereat
just in time to see PC Sgt. Amor separate Pat. Tan and her brother, Jose. She and her brother- inlaw Gaudencio Acero then brought Jose Sosing to her house, escorted by PC Sgt. Juanito Irigan.
On their way Agueda Tiu reproached her younger brother for not giving the appellant the peso asked
of him.
At about noontime, Jose Sosing asked permission to go home in order to eat his lunch. Although
Agueda had already prepared lunch and had invited her brother to stay and eat with them, Jose was
insistent. So Agueda Tiu and Gaudencio Acero accompanied Jose Sosing home. Halfway to Jose's
house, they say Tan coming towards them. Agueda advised her brother to keep silent and to go on
walking home. But, as Tan came closer, they saw Tan pull out his pistol and aim it at Jose
Sosing. 2 Frightened, Jose Sosing turned and ran up the house of Juan Tan. The accused pursued
him there, but his way was blocked by Conrada Tan who told the accused to go down because her
children might be scared.
Jose Sosing then went to the kitchen of the house and leaped to the ground. Upon jumping, he
stumbled and some of the occupants of the house screamed. Upon hearing the outcry, the accused
went down and proceeded to the kitchen gate of the house, along Taft Street, where he waited for
Jose Sosing to come out.
Jose Sosing came out with hands upraised and knelt before the accused, pleading that the latter
spare his life saying: "Don't shoot me." The accused shot him nonetheless. Jose Sosing fell, and
when he failed to rise, his assailant kicked him on the head, saying: "You stand up and fight and let
all your relatives come and I'll exterminate them all." Agueda Tiu, who came to the side of her
brother, knelt before the accused saying: "Don't shoot me after which, she fainted.
Upon hearing the shot, PC Corporal Serafin Estrella, then assigned as escort of Rep. Balite and who
was also at Pambujan at that time, went to the place and saw the accused standing near the
prostrate body of Jose Sosing. With gun aimed at the accused, he told the latter to surrender his
gun. After the accused had given him the gun, he arrested him and brought him to the municipal
building of Pambujan.
The lifeless body of Jose Sosing was likewise brought to the municipal hall where the municipal
health officer performed an autopsy on the cadaver. 3
The medical officer opined that from the nature and location of the wounds is well as the trajectory of
the bullet, it, is possible that the assailant was standing and the victim was kneeling down facing
him.
The appellant does not deny having shot Jose Sosing which caused the latter's death. In
exculpation, he claims that he acted in the fulfillment of his duty, in that, as municipal policeman, he
was merely trying to disarm the deceased and then shot the latter because "he was in the poise of
taking something, which he thought was a pistol, from his pocket." The appellant testified that after
having been disarmed at the "paitikan," he went home, as ordered by his brother, the chief of police,
and put on his uniform in order to patrol the streets. On passing the municipal building, police
sergeant Lipata called him and returned his pistol since he was on patrol duty. Along Del Rosario
Street, and near the house of Juan Tan, he met Jose Sosing, Agueda Tiu, and Gaudencio Acero.
Upon their meeting, Jose Sosing said: "You are strict as policeman, there will be time that you will
become civilian to which lie replied: "You are the one who is mad when in fact you were the one who
is to blame." After this exchange of records, he saw Jose Sosing in the act of taking something from
his pocket which the accused tried to grab but was unable to since Jose Sosing went up the house
of Juan Tail. Believing that Jose Sosing was armed with a pistol and should be disarmed, he
followed Jose Sosing, but his way was blocked by the wife of Juan Tan who told him not to proceed
as her children might be scared. Upon the hearing the screams emanating from the kitchen of the
house, he went down the house and saw Jose Sosing jump to the ground and go towards the gate
at Taft Street, "He (Jose Sosing) faced me and he was in the poise of taking something from his
pocket and so I shot him." Asked by the Court to re-enact, the appellant said that Jose Sosing was
running towards him in a crouching position with his left hand placed on the knee and with the right
hand touching inside the right pocket of his trouser.
The defense of fulfillment of a duty is an affirmative allegation which must be demonstrated with
convincing credibility. The stetement of facts made by the accused and his witness is lacking in truth;
it is rather an afterthought and contrary to human nature. But, even taking the same to be true, the
attitude adopted by the deceased in putting his hands in his pocket is not sufficient to justify the
appellant to shoot him. Appellant admitted that the deceased does not own firearm so that he could
have first warned the deceased, as the latter was coming towards him, to stop where he was, raise
his hands, or do the things a policeman is trained to do, instead of mereilessly shooting him upon a
mere suspicion that the deceased was armed. Appellant, therefore, had not justidication at all in
shooting the deceased.
Appellant also contends that the crime committed, if any, is not murder, the qualifying circumstances
of evident premeditation and treachery being absent.
Indeed, We find that the crime is not attended by evidence premeditation. The rule is settled that the
qualifying circumstance of evidence premeditation is satisfactorily established if it is proved that the
accused had deliberately planned to commit the crime and had persistently and continuously
followed it, notwithstanding that he had ample and sufficient time to allow his conscience to
overcome the determination of his will, if he had desired it, after meditation and reflection. In other
words, it contemplates cold and deep meditation and tenacious persistence in the accomplishment
of the criminal act. 4 In the instant case, there is no doubt of the determination of the accused to kill
the deceased, as shown by this utterances soon after he was disarmed at the "paitikan," but no
sufficient time had elapsed from its inception to its fulfilment for meditation and reflection to justify a
finding of evidence premeditation. Only about two hours had intervened between his rage and his
consummation of the criminal act so that the defendaant had no ample opportunity to cooly and
serenely think and deliberate on the meaning and consequences of what he said he would do.
However, there is treachery because the accused fired at the victim who, with hands upraised, was
kneeling before the accused and pleading that his life be spared. 5 Treachery, therefore, qualifies the
crime to murder.
Finally, counsel for the appellant contends that the court failed to take into consideration, the
mitigating circumstances that (a) sufficient provocation or threat on the part of the deceased
immediately proceded the act; (b) the accused acted upon an impulse so powerful as naturally to
have produced passion or obfuscation and (c) the accused had voluntarily surrendered himself to a
person in authority or his agents.
Provocation, to constitute a mitigating circumstance, must, in the language of the law, be sufficient;
that is, adequate to excite the person to commit the wrong and must accordingly be proportionate to
its gravity and must also immediately precede the act. The provocation relied upon by the appellant
is based on his testimony that when he met the deceased Jose Sosing, the latter said to him: "You
are strict as policeman, there will be time that you will become civilian," to which he replied: "You are
the one who is mad when in fact you were the one who is to blame." After this exchange of words
the deceased allegedly was in the poise of taking something from his pocket, which the accused
immediatelly tried to grab, but the deceased went up the house of Juan Tan. This claim cannot be
sustained. It can hardly be said that the utterances of the deceased, that the appellant is strict, would
constitute a sufficient cause for the defendant to shoot the deceased. Besides, these statements, if
indeed said, did not immediately precede the criminal act since the deceased was slain after he had
fled to the house of Juan Tan and thence to Taft Street where the accused was waiting for him.
Provocation given by an adversely at the commencement and during the first stage of a fight, cannot
be considered as a mitigating circumstance where the appellant pursued and killed the former while
fleeing, and the deceased, from the moment he had fled after the first stage of the fight to the
moment he died, did not give any provocation for appellant to pursue, much less further attack him. 6
Neither could said statement that the appellant is "strict" have aroused the defendant to such an
extent that it can be said he acted upon an impulse so powerful as naturally to have produced
passion or obfuscation, considering his condescending reply to the deceased that the latter is "the
one who is to blame." The accused was actuated more by the spirit of lawlessness than by any
sudden impulse of natural and uncontrollable fury.
Nor is the appellant entitled to the mitigating circumstance of voluntarily surrender. The testimony of
PC Corporal Serafin Estrella is very explicit that he arrested the accused and brought him to the
municipal hall. Besides, in his own spontaneous declaration, 7 the appellant admitted that he "was
arrested by Cpl. ESTRELLA & Pfc BUGNA."
With the modification that the indemnity to the heirs of the deceased be increased to P12,000.00, the
judgment appealed from should be, as it is hereby affirmed. With costs against the appellant.
SO ORDERED.
G.R. Nos. 107200-03 November 9, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL DE GUIA y SAMONTE, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Ricardo D. Latorre for accused-appellant.
PUNO, J.:
Illegal recruiters constitute one of the worst vultures of our society today. They prey on the gullible,
and often, they victimize the already marginalized Filipinos who will do anything to improve their
economic status. The case before us involves one of their kind.
Accused-appellant Manuel de Guia y Samonte was convicted by the Regional Trial Court of Manila,
Branch XLI,1 of the crime of Illegal Recruitment in large scale2 and three (3) counts of Estafa,3 in
violation of Article 38 of the Labor Code, as amended and Article 315 (2) (a) of the Revised Penal
Code, respectively.
The Information in each case reads as follows:
1. Criminal Case No. 92-103341:
That in (sic) or about and during the period comprised between May
23, 1991 and December 11, 1991, 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, representing himself to
have the capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there wilfully and unlawfully for a
fee, recruit and promise employment/job placement abroad to Cirilo
Lising y Mercado, Monteza (sic) Gazmin y Pascual, Leopoldo Realino
y Arceo and Jesus Sumalinog y Carin, without first having secured
the required license or authority from the Department of Labor and
Employment.
Contrary to law. (Rollo, p. 4)
2. Criminal Case No. 92-103342:
That on or about November 24, 1991, in the City of Manila, 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 defraud Leopoldo Realino y Arceo in the following
manner, to wit: the said accused by means of false manifestations
and fraudulent representation which he made to said Leopoldo
Realino y Arceo to the effect that he had the proper (authority) and
capacity to recruit and employ said Leopoldo Realino y Arceo as
factory worker in Japan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the
requirements thereof, and by means of other similar deceits, induced
and succeeded in inducing said Leopoldo Realino y Arceo to give and
deliver, as in fact he gave and delivered to said accused the amount
of P120,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false
and fraudulent and were made solely to obtain, as in fact he did
obtain the amount of P120,000.00, which amount once in his
possession, with intent to defraud he, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to his own
personal use and benefit, to the damage and prejudice of said
Leopoldo Realino y Arceo in the aforesaid amount of P20,000.00
Philippine Currency. (Rollo, pp. 5-6)
3. Criminal Case No. 92-103343:
That on or about and during the period comprised between October 3
and December 11, 1991, inclusive, in the City of Manila, Philippines,
the said accused conspiring and confederating with one whose true
name, identity and presents whereabouts are still unknown and
mutually helping each other did then and there wilfully, unlawfully and
feloniously defraud Jesus Sumalinog y Carin (in) the following
manner, to wit: the said accused by means of false manifestations
and fraudulent representation which they made to said Jesus
Sumalinog y Carin to the effect that he had the proper (authority) and
capacity to recruit and employ said Jesus Sumalinog y Carin as . . .
contract worker in Japan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the
requirements thereof, and by means of other similar deceits, induced
and succeeded in inducing said Jesus Sumalinog y Carin to give and
deliver, as in fact he gave and delivered to said accused the amount
of P50,000.00 on the strength of said manifestations and
representation, said accused well knowing that the same were false
and fraudulent and were made solely to obtain, as in fact he did
obtain the amount of P50,000.00 which amount once in his
possession, with intent to defraud he, willfully, unlawfully and
feloniously misappropriated, misapplied and converted to his own
persona use and benefit, to the damage and prejudice of said Jesus
Sumalinog y Carin in the aforesaid amount of P50,000.00 Philippine
Currency. (Rollo, pp. 7-8)
4. Criminal Case No. 92-103344:
That on May 23, 1991, 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 willfully, unlawfully and
feloniously defraud Monteza (sic) Gazmin y Pascual in the following
manner, to wit: the said accused by means of false manifestations
and fraudulent representation which he made to said Montesa
Gazmin y Pascual to the effect that he had the power and capacity to
recruit and employ said Montesa Gazmin y Pascual as factory worker
in Korea and could facilitate the processing of the pertinent papers if
given the necessary amount to meet the requirements thereof, and by
means of other similar decits, induced and succeeded in inducing
said Montesa Gazmin y Pascual to give and deliver, as in fact she
gave and delivered to said accused the amount of P30,000.00 on the
strength of said manifestations and representations, said accused
well knowing that the same were false and fraudulent and were made
solely to obtain, as in fact he did obtain the amount of P30,000.00
which amount once in his possession, with intent to defraud he,
wilfully, unlawfully and feloniously misappropriated, misapplied and
converted to his own personal use and benefit, to the damage and
prejudice of said Montesa Gazmin y Pascual in the aforesaid amount
of P(30,000.00) Philippine Currency. (Rollo, pp. 9-10)
Upon arraignment, the accused pleaded not guilty to the offenses charged. The cases were tried
jointly.
The prosecution presented the four (4) private complainants (Cirilo Lisong, Montessa Gasmin,
Leopoldo Realino and Jesus Sumalinog) as witnesses. They testified as follows:
CIRILO LISING, a 41-year old farmer from Gapan, Nueva Ecija testified that in August 1991, he was
summoned by his brother-in-law, Jose (Jhun) Cruz, to fix the septic tank in his house. 4 There, he was
introduced to the accused and a certain Loida de Guia who represented themselves to be husband
and wife. The two were boarders in Cruz' house.5 While fixing the tank, the couple engaged him in a
conversation and told him they could facilitate his employment in Korea. He was informed that the
placement fee was forty thousand pesos (P40,000.00). Relying on the couple's representations, he
decided to try his luck abroad. The couple promised him a job as factory worker in Korea with an
income of $500.00 per month. They asked him to prepare an initial amount of nine thousand seven
hundred pesos (P9,700.00) for his plane fare. They told him that he could pay for the balance of the
fee when he reach Korea for upon his arrival, he would receive a two-months cash advance on his
salary. He agreed.6
On August 12, 1991, he submitted to the accused his passport and biodata in their office, ML
Promotions, at Room 102, Marrieta Apt., 1200 J. Bocobo Street, Ermita, Manila. He handed the
amount of P9,700.00 to Loida and the latter issued and signed a receipt therefore. 7
Lising, however, failed to leave for Korea. He then verified the status of the agency from the POEA
and discovered that the accused and Loida were not licensed recruiters.8 Thus, on February 13,
1992, he complained to CIS PO3 Romeo M. Cerezo and gave a written statement. 9
On cross-examination, Lising produced two (2) calling cards of ML Promotions: one showed Loida
de Guia as the general manager while the other showed the accused as its travel consultant. 10
MONTESA GASMIN, a 19-year old, high school graduate from San Juan, Tarlac testified that she
learned from her cousin, Joey Lino, that the accused and Loida de Guia were engaged in job
placement overseas. On May 15, 1991, she asked her cousin to accompany her to the couple's
Ermita office where the accused informed her that they deploy workers to Korea. Relying on said
representation, she applied as a factory worker in Korea and accomplished the corresponding
application form. She was told that she would earn $500.00 per month and was asked to pay thirty
thousand pesos (P30,000.00) to cover her traveling expenses.11
She gave the couple the required amount in two (2) installments, viz: P10,000.00 on May 23, 1991
and P20,000.00 on June 4, 1991, as evidence by two (2) receipts of even date. 12 She gave the
money to Loida who signed the receipts in her presence. 13 The couple assured her that she could
leave for Korea by the end of June 1991. The promise proved to be false. On July 14, 1991, she
again went to the couple's office in Ermita to follow-up her departure. Again, the spouses assured
her that she would be allow to leave on the succeeding week. Nothing came out of the promise.
Thus, together with the other private complainants, she reported the matter to the CIS Camp Crame
where she executed her written statement. 14
LEOPOLDO REALINO, a 42 year-old driver, residing at Balibago, Angeles City testified that her
brother, Roger, brought him to the couple's recruitment office in Ermita where he met the accused.
He inquired from the accused whether he could work out his employment in Japan. The accused
replied in the affirmative. Still undecided, he told the accused he would just come back. 15
Sometime in August 1991, he returned to their Ermita office and applied as a contract worker in
Japan. The accused told him to prepare one hundred twenty thousand pesos (P120,000.00). He was
also asked to fill up and sign an application form. 16
On November 4, 1991, Leopoldo went to their office and handed the money to the accused. The
accused then ordered Loida, whom Leopoldo met for the first time, to prepare the necessary
receipt.17 The accused failed to employ him in Japan despite repeated promises. He demanded the
return of his money but to no avail. He, together with his companions, went to no avail. He, together
with his companions, went to the POEA where they discovered that the accused was not licensed to
recruit workers for overseas employment. With the intention of confronting the accused, they
proceeded to their Ermita office but were informed that the accused was already detained at Camp
Crame. Thus, they went to Camp Crame where they gave their statements.18
The last witness for the prosecution was JESUS SUMALINOG, an industrial electrician from Makati.
He testified that he first met the accused in May 1991 in the accused's Ermita office where the
inquired about the possibility of employment of Japan. The accused interviewed him. The accused
told him that the cost of processing his papers would run from P85,000.00 to P95,000.00. However,
when Sumalinog intimated that he could only afford to pay P50,000.00, the accused conferred with
Loida, who was introduced by the accused as his wife. The couple then agreed to be paid
P50,000.00 and he was told to fill up an application form. He was informed that he could work as a
contract worker in a computer firm where he would earn $1,200.00 per month. The couple asked him
to prepare the money.19
Sumalinog gave the money to the accused in four (4) installments, thus: P10,000.00 on October 3,
October 30, November 18 and November 21, 1991; P8,000.00 on November 25, 1991; and finally,
P2,000.00 on December 11, 1991. In each instance, the accused instructed Loida to prepare the
receipts and the same were duly issued and signed by Loida. 20
The two assured Sumalinog that he could leave after two (2) weeks. Failing to leave as promised, he
was again made to wait for another two (2) weeks. Still, the accused did not make good with said
promise.21
He then went to the POEA where he discovered that the accused was not licensed to recruit workers
for overseas employment. He sought the accused in his Ermita office but found out that the accused
was already in the custody of the CIS. He talked with the accused in Camp Crame and the latter
asked him not to file any complaint. The accused assured him that his money would be returned. He
did not head said request and filed the complaint at bar. 22
The evidence of the accused rests mainly on denial and alibi. He alleged that he was not a recruiter
but a driver by profession from 1970 up to December 1991. He contended that he could not have
participated in the recruitment of complainants since from May to December 1991, he was employed
at RTS Trading Associate Corporation where he reported for work from 7:00 o'clock in the morning
until 5:00 o'clock in the afternoon. He was employed as a driver delivering various merchandise for
the corporation. He alleged that after work, he always went straight home to Montalban, Rizal. 23
He further testified that his legal wife is Paula Diones and the he has no illicit relationship with one
Loida de Guia. According to the accused, he first met Loida in the latter's house in Baclaran in May
1991. He met Loida to secure overseas employment for his son. He again went to Loida's house in
July 1991 to follow-up his son's employment application. Further, the accused claimed that he met
the complainants only while he was already detained in Camp Crame.24
Renato Samonte, owner of RTS Trading and a childhood friend of the accused, corroborated his
alibi. He testified that the accused acted as his part-time driver from May 1991 until December
1991.25
On the basis of the above evidence, the trial court found the accused guilty beyond reasonable
doubt of the crimes charged. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1. In Crim. Case No. 92-103341, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Illegal Recruitment committed in
large scale and hereby sentences the said accused to suffer the penalty of life
imprisonment and for him to pay a fine of P100,000.00. The said accused is further
hereby ordered to pay the complainant Cirilo Lising the sum of P9,700.00 as and by
way of actual damage;
2. In Crim. Case No. 92-103342, finding the accused Manuel Guia y Samonte guilty
beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences the said
accused to suffer an indeterminate sentence ranging from Eight (8) years and One
(1) day of prision mayor as minimum to Fourteen (14) years Five (5) months and
Eleven (11) days of reclusion temporal as maximum and for the said accused to
indemnify the complainant Leopoldo Realino the sum of P120,000.00 as and by way
of actual damage;
3. In Crim. Case No. 92-103343, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences
the said accused to suffer an indeterminate sentence ranging from Three (3) years
Six (6) months and Twenty One (21) days of prision correccional as minimum to
Seven (7) years Five (5) months and Eleven (11) days of prision mayor as maximum
and for the said accused to indemnify the complainant Jesus Sumalinog the sum of
P50,000.00 as and by way of actual damage; and
4. In Crim. case No. 92-103344, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences
the said accused to suffer an indeterminate sentence ranging from One (1) year
Eight (8) months and Twenty One (21) days of prision correccional as minimum to
Five (5) years Five (5) months and Eleven (11) days also of prision correccional as
maximum and for the said accused to indemnify the complainant Montesa P. Gazmin
the sum of P30,000.00 as and by way of actual damage.
Costs against the accused.
SO ORDERED. (Rollo, pp. 20-30)
Accused appealed to this Court raising the following assignment of errors:
I.
THE TRIAL COURT ERRED IN FAILING TO PROSECUTE THE REAL
MALEFACTOR, LOIDA DE GUIA, WHO SHOULD HAVE BEEN INCLUDED AS ONE
OF THE ACCUSED CONSIDERING THAT SHE ISSUED AND SIGNED THE
RECEIPTS EVIDENCING THE PAYMENTS ALLEGEDLY MADE BY THE PRIVATE
COMPLAINANTS AND WHICH WERE THE ONLY BASES FOR FINDING THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT.
II.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BEYOND
REASONABLE DOUBT ON THE BASIS OF THE PAUCITY OF THE EVIDENCE
FOR THE PROSECUTION (receipts of payments) ALTHOUGH THE SAME ARE
INADMISSIBLE IN CHARACTER FOR BEING PURELY HEARSAY EVIDENCE.
III.
THE LOWER COURT ERRED IN (UP) HOLDING THE UNLAWFUL ARREST OF
THE ACCUSED IN A PUBLIC PLACE WITHOUT ANY WARRANT OR PROCESS
ISSUED BY A COMPETENT COURT.
The first (2) assigned errors are interrelated and shall be discussed together.
Appellant's position is that the real perpetrator of the charges imputed against him is Loida de Guia
whose signature appears on all the receipts issued to the complainants. He submits that his mere
presence at the Ermita office everytime the complainants paid the required fees cannot be made the
basis of a finding that he was involved in the illegal recruitment of private complainants. He contends
that Loida de Guia should have been charged as the proper accused.
Appellant's submission deserves scant consideration. To begin with, appellant did not raise this
argument in the trial court. It is too late to raise it on appeal. More importantly, the Informations
against the appellant show that the appellant was charged with "conspiring and confederating with
one whose true name, identity and present whereabouts are still unknown. . . . " From the evidence,
this co-conspirator is Loida de Guia who pretended to be the wife of herein appellant. There is no
obstacle for the State to charge this person who goes by the name of Loida de Guia as soon as her
true identity and address become known to the prosecution. Her non-prosecution at this state,
however, provides no ground for the appellant to fault the decision of the trial court convicting him.
Appellant also erred in dismissing the receipts issued by Loida de Guia as hearsay evidence. The
records show that Leopoldo Realino and Jesus Sumalinog testified that they personally handed the
money representing the required fees to herein appellant. The latter, in turn, instructed Loida to
prepare the corresponding receipts. This was after private complainants were made to believe that
the accused and Loida, aside from being husband and wife, were jointly operating the recruitment
business, with the former as travel consultant and the latter as the general manager. The evidence
shows that the receipts were signed by Loida in the presence of the complaining witnesses.
Consequently, Realino and Sumalinog had personal knowledge of the circumstances surrounding
the issuance of these receipts and their testimonies cannot be considered as hearsay evidence.
It is not also correct to argue that the guilt of the appellant was based alone on the receipts issued
by Loida de Guia. All the complaining witnesses testified that the accused took an active and direct
part in misrepresenting that he had the authority and the power to facilitate their employment abroad.
Aside from their testimonial evidence, calling cards were presented showing the accused to be the
Travel Consultant of said agency, with Loida as the General Manager. Moreover, the evidence also
showed that it was the accused who asked the applicants to fill up their applications and to prepare
their respective biodata. He also demanded from them varying amounts of money as processing
fees. All these show that the accused and Loida de Guia, who are not licensed recruiters, adopted a
systematic and elaborate scheme to defraud the complainants through false promises of jobs
abroad.
We are not also impressed by the defense of the appellant. Glaring inconsistencies marred his short
testimony. At one time, he testified that he was arrested by the CIS officers at a department store in
Ermita, Manila.26 Later on, however, he stated that he was arrested in Marrieta Apartment, located at
J. Bocobo Street, Ermita, Manila.27 He likewise claimed during the trial that he was not aware that
Loida de Guia had an office located in Marrieta Apartment, Ermita, 28 but at the same time, he raises
in this appeal the defense that he himself has been at the Ermita office to follow-up the job
placement of his son in Korea.29
This is not all. Initially, appellant claimed during the trial that he could not have possibly been at the
Ermita office and received payments made by the complainants for he was then employed as a
professional driver for RTS Trading. On appeal, however, appellant would have Us believe that
during the period from May to December 1991 when private complainants went to the Ermita office
to file their application and pay the corresponding fees, accused-appellant "just happened to be
there" for he was himself following-up the job application of his son.30
Appellant's corroborating witness, Renato Samonte, was equally unimpressive. In fact, Samonte's
testimony rendered the defense's theory more open to doubt. For one, his testimony that appellant
has been in his employ from May to December 1991 was not corroborated by any documentary
evidence, such as pay slip/pay roll, certification of SSS contributions and, hence, has little value.
Moreover, even assuming that appellant was a part-time driver of Samonte, the nature of his job
would not make it physically impossible for him to operate a recruitment business on the side. Time
and again, We have ruled that alibi, being a weak defense, must be proved by clear and convincing
evidence which should reasonably satisfy the Court of its veracity. 31
The credence of the private complainants is further bolstered by the admission of appellant himself
that he does not know of any ill-motive why they would hurl such serious accusations against
him.32 The private complainants were all previously unknown to him.
Finally, appellant's alleged warrantless arrest will not exculpate him from his guilt as found by the
trial court. To be sure, the plea comes too late in the day. We note that upon arraignment, appellant
pleaded not guilty to the Information and did not raise the alleged illegality of his arrest. By so
pleading, he waived the alleged illegality of his arrest. 33 In People v. Briones,34 we ruled that the
illegality of appellant's warrantless arrest cannot render all the other proceedings, including the
appellant's conviction, void. It cannot deprive the State of its right to convict the guilty when all the
facts on record point to his culpability.
WHEREFORE, premises considered, the decision of the court a quo finding the appellant Manuel de
Guia y Samonte guilty beyond reasonable doubt of Illegal Recruitment in Large Scale for having
engaged in the business of recruiting the four (4) private complainants for overseas employment
without any license or authority from the POEA and three (3) counts of Estafa, for falsely pretending
to possess power and qualification to deploy private complainants for overseas employment, is
hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.
G.R. No. L-4912
March 25, 1909
THE UNITED STATES, plaintiff-appellee,
vs.
EMILIA GUY-SAYCO, defendant-appellant.
C. Ledesma for appellant.
Office of the Solicitor-General Harvey for appellee.
TORRES, J.:
Long before the commission of the crime herein prosecuted, Gelasio Galupitan, the husband of the
accused, entered into unlawful relations with the deceased Lorenza Estrada; all were residents of
the town of Santa Cruz, the capital of the Province of La Laguna.
The accused, Emilia Guy-sayco, duly became aware of this relation. As her husband had stayed
away from the home for more than two weeks, remaining in the barrio of Dujat, distant about two or
one-half hours' walk from the said town under the pretext that he was engaged in field work, on the
20th of March, 1907, at about 2 p. m., she decided to go to said barrio and join him. To this end she
hired a carromata, and after getting some clothes and other things necessary for herself and
husband, started out with her infant child and a servant girl; but before reaching the barrio and
the camarin where her husband ought to be, night came on, and at about 7 o'clock she alighted and
dismissed the vehicle after paying the driver. They had yet to travel some distance, and for fear of
being attacked she disguised herself, using her husband's clothes and a hat given to her by her
companion, and dressed in this manner they continued on their way. On seeing her husband's horse
tied in front of a house she suspected that he was inside; thereupon she went to the steps leading to
the house, which was a low one, and then saw her husband sitting down with his back toward the
steps. She immediately entered the house and encountered her husband, the deceased, and the
owners of the house taking supper together. Overcome and blinded by jealousy she rushed at
Lorenza Estrada, attacked her with a penknife that she carried, and inflicted five wounds upon her in
consequence of which Lorenza fell to the ground covered with blood and died a few moments
afterwards. The accused left the house immediately after the aggression, and went to that of
Modesto Ramos where she changed her clothes.
From an examination of the body made on the following day by Dr. Gertrudo Reyes, it appeared that
five wounds had been inflicted by a cutting and pointed weapon, one of which was on the left side of
the breast and penetrated the left ventricle of the heart; this wound was of necessity mortal, the
others being more or less serious.
A complaint was thereupon filed by the provincial fiscal on May 31, 1907, and the corresponding
proceedings were instituted. The court below entered judgment on June 29, 1908, sentencing the
accused, Emilia Gut-Sayco, to the penalty of twelve years and one day of reclusion temporal, to
suffer the accessory penalties, to indemnify the heirs of the deceased in the sum of P1,000, and to
pay the costs. From said judgment she has appealed.
The above-stated facts, which has been fully proven in this case, constitute the crime of homicide
defined and punished by article 404 of the Penal Code, for the reason that in the violent death of
Lorenza Estrada, occasioned by the infliction of several wounds, one of which was mortal, none of
the circumstances were present that qualify the crime of assassination and for a heavier penalty as
imposed by the previous article 403 of the code.
The reality and certitude of the crime at bar can not be denied. It has been proven by the testimony
of several witnesses, to wit, Roberto Villaran, Susana de Mesa, the owners of the house, and Maria
Ramos, all of whom witnessed the aggression; they saw the deceased die as the result of five
wounds inflicted upon her, one of which was, of necessity mortal; it was also proven by the
testimony of the surgeon who examined the body, which was seen by the said witnesses and by
others who went to the place of the occurrence.
The accused pleaded not guilty, and in exculpation she alleged that, when Lorenza Estrada saw her
and heard her remonstrate with her husband, she being then upstairs, Lorenza at once asked what
had brought her there and manifested her intention to attack her with a knife that she carried in her
hand, whereupon the accused caught the deceased by the right hand, in which she held the
weapon, and immediately grappled with her, and in the struggle that ensued she managed to get
hold of a penknife that she saw on the floor close by; she could not say whether she struck the
deceased with it as she could not account for what followed.
From this allegation of the accused, her counsel, with a view to asking that she be absolved, claims
that in wounding the deceased she acted in proper self-defense.
It has been proven beyond a reasonable doubt that as soon as the accused entered the house
where she found her husband, without saying a word, she attacked the deceased with a penknife
and inflicted wounds that caused the immediate death of the latter. Such an allegation can not
therefore be admitted, even though corroborated by the husband and the servant of the accused,
inasmuch as the testimony of the latter is entirely contradicted and destroyed by the testimony of the
witnesses for the prosecution, who were present at the aggression, and who deny that the servant
was present; it is not true that a penknife was found on the floor of the house; it is probable that the
instrument with which the crime was committed was carried by the accused when she went to said
house; and even though it were true that when the accused, Emilia, made her appearance, the
deceased Lorenza arose with a knife in her hand and in a threatening manner asked the accused
what had brought her there, such attitude, under the provisions of article 8, No. 4 of the Penal Code,
does not constitute that unlawful aggression, which, among others, is the first indispensable requisite
upon which exemption by reason of self-defense may be sustained.
In order to consider that an unlawful aggression was actually committed, it is necessary that an
attack or material aggression, an offensive act positively determining the intent of the aggressor to
cause an injury shall have been made; a mere threatening or intimidating attitude is not sufficient to
justify the commission of an act which is punishable per se, and allow a claim of exemption from
liability on the ground that it was committed in self-defense. It has always been so recognized in the
decisions of the courts, in accordance with the provisions of the Penal Code.
In the commission of the crime the presence of mitigating circumstance No. 7 of article 9 of the code
should be considered, without any aggravating circumstance to neutralize its effects, for the reason
that it has been proven that the accused, at the time when the crime was committed, acted upon the
impulse of passion and under great jealous excitement at the sight of her husband taking supper in
the company of his mistress, after he had been absent from the conjugal dwelling for several days.
As to the penalty of indemnity contained in the judgment appealed from and impugned by the
defense, article 17 of the code reads: "Every person criminally liable for a crime or misdemeanor is
also civilly liable," and according to the established rule of the courts, in order that an accused
person may be declared to have incurred civil liability, it is sufficient that said liability shall proceed
from, or be the consequence of the criminal liability, and in addition thereto, article 122 of the said
code provides that the courts shall regulate the amount of indemnity for damages under said civil
liability, upon the same terms as prescribed for the reparation of damage in article 121 of the code,
and a finding on the matter should be contained in the judgment.
For the reasons above set forth it is our opinion that the judgment appealed from should be affirmed,
as we do hereby affirm it in all its parts with costs against the appellant. So ordered.
Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.
G.R. No. L-17321
November 29, 1963
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SANTOS DONIEGO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Alfredo J. Donato for defendant-appellant.
PADILLA, J.:
Santos Doniego is charged with the crime of multiple murder for the death of Anselmo Garcia,
Ciriaco Palor and maximo Viernes.
Upon arraignment the defendant entered a plea of not guilty.
After trial, the court found the defendant guilty beyond reasonable doubt as charged and sentenced
him for each murder to suffer the penalty of reclusion perpetua which shall not exceed FORTY (40)
years pursuant to article 70 of the Revised Penal Code and to indemnify the heir of each of the
victims Anselmo Garcia, Ciriaco Palor an Maximo Viernes in the sum of P6,000.00 and to pay the
costs. The defendant was credited with one-half of the time he had undergone preventive
imprisonment.
From the verdict and sentence, the defendant has appealed.
On the night of July 1, 1957, a dance was held in the auditorium of Cabanbanan Norte, Gonzaga,
Cagayan, in celebration of the barrio fiesta but as rain fell, the dance was transferred to a 2-story
house owned by Severino Patubo. At about 10:00 o'clock while the dance was going on, Severino
Patubo, who was in his store on the ground floor, saw Domingo Doniego talking to Patrocinio
Viernes, Camilo Ragual, a companion of Patrocinio Viernes, was also there. While thus conversing,
Severino Patubo saw Domingo Doniego suddenly lunge at Patrocinio Viernes with a Batangas knife
but the latter was not hit because Camilo Ragual wrested the knife from Domingo and with it stabbed
the latter in his back. Severino Patubo called his brother Nemesio Patubo, the second barrio
lieutenant, to come down because there was a fight. Nemesio sent rural policeman Ciriaco Palor to
call Magno Taloza, the first barrio lieutenant. Magno Taloza arrived with Ciriaco Palor and after
seeing the deceased, he sent for rural policemen to see the place. Later, rural policeman Anselmo
Garcia arrived. Taloza asked for paper and pencil and when about to start the investigation, Santos
Doniego, father of the deceased arrived, and asked Taloza who had killed his son Domingo. Taloza
answered that he did not know because he had just arrived. He asked Severino Patubo and the
latter answered that Camilo Ragual had killed his son Domingo. Santos Doniego followed by
Severino Patubo went up the house and shouted "vulva of all your mothers". He unsheathed his
small sharp-pointed bolo (Exh. D) and immediately began to assault the people there. He stabbed
Vicente Pescador on his right thigh who immediately jumped from the back porch (batalan) of the
house; then he hacked rural policeman Anselmo Garcia on the left side of his back. Turning around,
he stabbed Avelino Paet, operator of the amplifier, in the coccyx when he (Avelino) was about to
leap from the house; and as the Patubo brothers and companions were many, Santos avoided the
group and instead stabbed Ciriaco Palor in his abdomen while the latter was helping Taloza, the first
barrio lieutenant, conduct the investigation. Ciriaco Palor jumped from the balcony of the house.
Maximo Viernes, secretary of the barrio council, ran towards the kitchen and there near the door
Santos inflicted upon the former (Maximo Viernes) a thru and thru wound on the right side of his
back piercing the abdomen which caused his intestines to come out. After his brother-in-law Ciriaco
Palor had been stabbed, Magno Taloza jumped out of the house and returned to his house. As a
result of the stab wounds inflicted upon Ciriaco Palor and Maximo Viernes the former died
instantaneously and the latter a little over half an hour later. After he had been stabbed, Anselmo
Garcia was able to return to his house where before he expired at 12:00 midnight, he told his wife,
Francisca Patubo that Santos Doniego had stabbed him. His wife asked him to write an ante
mortem statement (Exit. E). which he did but he was not able to sign it. He wrote in Exhibit E that
Santos Doniego had stabbed him without any motive (Exh. E-1). On 2 July 1957, Dr. Federico P.
Umayam, the municipal health officer of Gonzaga Cagayan, examined the cadavers of the three
deceased and issued the following certificates:
POSTMORTEM EXAMINATION
Body of ANSELMO GARCIA (37 yrs.):
(1) Wound, stabbed, penetrating, perforating, lumbar
region, left back, Length ... About 1 inch.
(2) Wound, stabbed, lower 3rd, arm, posteriorly, left.
Length ... About ½ inch
Depth .... ¹/3 inch
Cause of death. Internal hemorrhage (Exh. A).
Body of MAXIMO VIERNES (33 Yrs):
(1) Wound, stabbed, thru and thru, perforating.
Pt. of Entrance ...... Lumbar region, back, right.
Pt. of Exit ............... Epigastric region
Length ................... About 1 inch
Cause of death ..... Internal hemorrhage (Exh. B).
Body of CIRIACO PALOR (62 yrs.):
(1) Wound, stabbed, penetrating, 5th I.C.S.
Chest, left side of the
Sternum Length ............ About 1-1/3 inch.
Cause of death ............. Internal hemorrhage (Exh. C).
He testified that he had examined the corpses of the three deceased and that the cause of their
death was internal hemorrhage as a result of penetrating stab wounds; and that the wounds
resulting in their death could have been caused by the bolo (Exh. D). He further testified that the
bolo may have been the only weapon used to inflict the stab wounds upon the three victims.
The appellant denied he had killed the victims. He testified that while he, his wife, step-son and his
brother-in-law, Vicente Villena, were taking their dinner at about 10:00 o'clock in the evening of 1
July 1957, Ernesto Palor, a minor, informed him that his son Doniego was quarreling and fighting
with someone in the house of Severino Patubo; that he went unarmed with his wife and brother-inlaw to the house and did not pick any arm in the house; that when he came near the place he saw
people running away and noticed that there were no more people in the upper floor of the house and
the store on the ground floor was closed; that he saw the lifeless body of his son Domingo near the
stairway; that he embraced his dead son and asked his brother-in-law to help him carry his son to
his house as they did; that Laureana Pastor came to his house to tell him that Camilo Ragual
stabbed his son while Patrocinio Viernes held him; that because Patrocinio Viernes, one of the
killers, was not arrested he was enraged his wife Rufina Palor prevented him from doing so; that the
following day patrolman Sofronio Domingo came to his house to bring him to jail because he
threatened to kill Patrocinio Viernes who had not been jailed; that he did not run amuck, nor kill or
wound any person; that Magno Taloza testified against him because in another murder case (Crim.
Case No. 2612-A) he (appellant) and Sgt. Pastores implicated the former and Manuel Doniego who
in his (appellant's) presence and of Basilio Abenoja shot to death the latter's father, Mariano
Abenoja, in 1943 (Exhs. 4 & 5); and that he was not informed that he had killed Palor, Viernes and
Garcia when he was arrested but only a week after.
Vicente Villena, a brother-in-law of the appellant, Eugenio Macalingay, appellant's son-in-law, and
Avelino Paet corroborated the testimony of the appellant.
According to the defense it was Patrocinio Viernes who drew his bolo from its scabbard as he was
going up the house and upon reaching the second floor challenged the relatives of the deceased
saying: "Who among you relatives of Ingo (Domingo Doniego) would take his side;" that Patrocinio
immediately ran toward Ciriaco Palor, uncle of Domingo, but when Palor drew his bolo and aimed at
Patrocinio, the latter noticing that his adversary (Palor) had a larger bolo backed out and ran away;
that to defend his cousin Patrocinio, Maximo Viernes drew his bolo but Ciriaco Palor struck Maximo's
back when the latter tried to escape; and that Anselmo Garcia stabbed Ciriaco Palor who also
stabbed the former.
The appellant claims that the trial court erred in giving more weight to the testimony of the
prosecution witnesses and in convicting the accused of three murders.
The trial court correctly found that the appellant killed Anselmo Garcia, Ciriaco Palor and Maximo
Viernes. It could not be expected of Patrocinio Viernes, after his companion Camilo Ragual had
stabbed Domingo Doniego to death, to go up the house and challenge the relatives of Domingo who
would take his side, for he who helped Ragual when he stabbed Domingo by holding him would not
tarry in the place to be harmed by the relatives of the deceased or arrested. His companion Camilo
Ragual disappeared from the place where Domingo was stabbed to death. Ciriaco Palor, a rural
policeman, was immediately sent by Nemesio Patubo, the second barrio lieutenant, after the
stabbing of Domingo, to call the first barrio lieutenant Magno Taloza, who together with Ciriaco Palor
came to the house of Severino Patubo, so Ciriaco Palor was not in the upper floor of the house of
Severino Patubo when, according to the appellant's evidence, Patrocinio Viernes went up the house
and made the challenge already mentioned. The challenge and assault or stabbing after the arrival
of the first barrio lieutenant Magno Taloza and Ciriaco Palor could not have been made because the
investigation was started or about to start by the first barrio lieutenant Magno Taloza and the
presence of other rural policemen would have certainly deterred Patrocinio Viernes from assaulting
and stabbing people who were in the house at the time.
Francisca Patubo, the wife of Anselmo Garcia, testified that upon arriving at their house her husband
told her that the appellant had stabbed him. Ciriaco de la Cruz, the then chief of police of Gonzaga,
Cagayan, testified that when he together with the Mayor, Dr. Umayam and two policemen, went to
the appellant's house to arrest him because he had killed three persons (Garcia, Palor and Viernes),
and wounded two others, the, appellant seemed to cry and told him (the chief of police) that he (the
appellant) did not know what had happened; and that without a warrant he arrested the appellant on
the strength of his findings at the scene of the crime, bolstered tip by the statements of the first
barrio lieutenant and the owner of the house, that he had killed three persons and wounded two
others.
It was most natural and logical for the appellant to have been enraged and obfuscated at the sight of
his dead son Domingo who was stabbed to death, seized by that feeling of hatred and rancour, to
have stabbed indiscriminately even his brother-in-law Ciriaco Palor, a cousin of his wife, Maximo
Viernes, and the husband of a niece of the appellant's wife Anselmo Garcia, and wounded Vicente
Pescador on the right thigh and Avelino Paet, the amplifier operator, in the coccyx. The latter's
testimony that he was not stabbed by the appellant but by Ciriaco Palor merits scant consideration
because he was stabbed when he was about to leap from the house and there was panic and
confusion at the time. This may be gleaned by his answer when he was asked whether it could be
possible for him to determine or point to the person who stabbed him. His answer is "After I was
stabbed, I immediately turned. The first one I saw was Ciriaco Palor with a bolo." (p. 80, t.s.n., 28
March 1960) Eyewitnesses swore that the appellant did the stabbing. The motives imputed to
Severino and Nemesio Patubo and Magno Taloza that prompted them to testify against the
appellant are not sufficient to discredit their testimony, because the release or non-inclusion of their
nephew Patrocinio Viernes in the complaint or information asked by them (the Patubos) from the
appellant, does not rest with them but depends upon the evidence found by the prosecuting officers;
and because the appellant's conviction in this case would not disqualify, bar and prevent him from
testifying against Magno Taloza in the criminal case for murder filed against him.
The information charges the appellant with two qualifying circumstances, to wit: treachery and
evident premeditation. Although the evidence may justify or support the finding that the assault upon
Vicente Pescador was sudden, yet the assault upon Anselmo Garcia, Avelino Paet, Ciriaco Palor
and Maximo Viernes cannot be deemed to have been sudden, for the assault upon Vicente
Pescador must have put them on guard and the assault upon them cannot be characterized as
unexpected or sudden. To justify the attendance or concurrence of treachery in the commission of a
crime against persons, the offender must have availed himself of such means as would insure the
execution of the crime without risk to himself that may come from the assaulted person. Such means
was not availed of by the appellant. Obviously, evident premeditation was absent when the appellant
with his bolo hacked his victims. On the other hand, the attenuating circumstance of immediate
vindication of a grave offense — the stabbing of his son to death, or of having committed the crime
upon an impulse so powerful as naturally to have produced passion or obfuscation, may be deemed
to have attended the commission of the three crimes alternatively, because both mitigating
circumstances cannot co-exist.
The crime committed by the appellant is homicide and the penalty provided for by section 249 of the
Revised Penal Code is reclusion temporal to its full extent. There being a mitigating circumstance
the penalty should be imposed in its minimum period. And, pursuant to the Indeterminate Sentence
Law, the appellant is sentenced to suffer a minimum of 10 years and one day of prision mayor and a
maximum of 14 years and 8 months of reclusion temporal, the accessories of the law, for each of the
three homicides committed by him.
Modified as to the crime committed and the penalty to be suffered by the appellant, the rest of the
judgment appealed from, in so far as it is applicable to the penalty hereby imposed, is affirmed, with
costs against the appellant.
Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
Makalintal, JJ., concur.
Dizon and Regala, JJ., took no part.
G.R. No. L-45373
March 31, 1937
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMO PARANA, defendant-appellant.
Lorenzo Sumulong for appellant.
Office of the Solicitor-General Tuason for appellee.
AVANCEÑA, C.J.:
The accused Primo Parana appeals from the judgment of the Court of First Instance of Occidental
Negros sentencing him, for the crime of murder committed on the person of Manuel Montinola, to the
penalty of reclusion perpetua and to indemnify the heirs of the deceased in the sum of P1,000, with
the costs.
On the morning of May 19, 1936, in the municipality of Silay, Occidental Negros, the deceased, who
was taking part in a game of monte in the house of Jose Lapuos, was informed by the chauffeur
Valentin Poblacion that his brother Glicerio Montinola's car, which he had ordered for his trip to the
municipality of Cadiz, was ready to start. Five minutes later the deceased came downstairs and
upon reaching the street, he turned towards the car which was waiting or him. As the moment the
chauffeur Poblacion, who saw the appellant behind the deceased in the attitude of stabbing him with
a dagger, shouted to warn him of the danger, and the deceased, looking behind, really saw the
appellant about to stab him. The deceased, really saw the appellant about to stab him. The
deceased, defending himself, retreated until he fell on his back into a ditch two meters wide and 1.7
meter deep. Without lessening the aggression the appellant mounted astride of the deceased and
continued to stab him with the dagger. As the chauffeur Poblacion had been making on alarm from
the beginning, Liboro Montelibano, who was in nearby drug store, about fifty meters away, went to
said place and found the appellant astride of the deceased who was defending himself with his
hands and feet from the blows the appellant gave him with the dagger. Montelibano wrested the
dagger from the hands of the appellant who, finding himself disarmed, seized the revolver which the
deceased carried in his belt and tried to fire at the latter without succeeding in his attempt because
Montelibano likewise wrested said weapon from him. After the appellant and the deceased had been
separated, the former still asked Montelibano for the weapon taken from him, but at that moment a
policeman arrived and the appellant was placed under arrest. When the deceased was later
removed from the ditch into which he had fallen, he was found wounded and was taken to the
municipal building. He was later transferred to the provincial hospital where he was treated by Dr.
Ochoa, expiring six days later, as a result of general peritonitis produced by one of his wounds.
Then preceding night, at about 11 o'clock, monte had also been played in the house of Glicerio
Montinola, brother of the deceased. The deceased took part in said game where the appellant was
designated to attend to the players. One Lamay, who was also taking part in the game, gave the
appellant the sum of P2 to buy beer. For failure of the appellant to immediately comply with this
request, a discussion ensued between him and Lamay and, as both raised their voices, they were
admonished by the deceased. As the appellant left and went to Lapuos' house where he lived,
where the deceased took part in another game on the following day, and where said deceased came
from when he was attacked.
At about 7 o'clock in the morning of the crime, the appellant purchased from the store of the
Japanese Matzu Akisama a hunting knife (Exhibit F), which is the same knife used by him in
attacking the deceased.
On the same morning, at about seven thirty, the appellant went to the house of Crispin Espacio for
whom he used to work, to ask to be excused from work that day as he intended to wreak vengeance
on somebody. Espacio advised him against it as he might again go to Bilibid prison, inasmuch as he
had already served a term for the crime of homicide.
These are the facts found by this court to have been established in this case, proving beyond all
doubt that it was the intention of the appellant to kill the deceased, judging not only from the
condition of the weapon with which he provided himself but also by the manner and circumstances
under which he committed the aggression.
The appellant's testimony is the only evidence in his defense. According to him, on the morning of
the crime he saw the deceased taking part in the game in Lapuos' house where he lived. The
deceased then uttered threatening words to him, which he disregarded, leaving the house and going
to a nearby Chinese store. Sometime, later, as he was on his way to Lapuos' house, he saw the
deceased coming down and, approaching the latter, he spoke to him about the incident of the
previous night and of their meeting a few minutes before, asking said deceased to forgive and not
wreak vengeance on him. The deceased, by way of an answer, drew the revolver which he carried in
his belt, and the appellant, in their face of such attitude, attempted to wrest the weapon from him. In
the struggle the deceased fell on his back into a ditch and the appellant mounted astride of him, tried
to wrest the revolver from him, attacking the deceased therewith. When the appellant had
succeeded in taking possession of the revolver the deceased got up and walked towards the car. At
that moment Liboro Montelibano appeared and the appellant turned over the knife and the revolver
to him.
This version of the incident given by the appellant in his testimony, without any corroboration, is
contradicted by the testimony of the chauffer Poblacion and of Liboro Montelibano. Furthermore it is
improbable, taking into consideration the fact that he was the offended party, suffering from the
justice of the offense received, provided himself with a lethal weapon and approached the deceased,
which circumstances do not agree with his attitude according to his testimony.
The court correctly found that the qualifying circumstance of treachery was present in the
commission of the crime.
The appellant, in inspite of having seen the deceased in the upper story of Lapuos' house, did not
wish to attack the latter there undoubtedly to avoid his being defended by the many players who
were with him. Instead, he waited for the deceased at a merely store until the latter came down, and
attacked him while he had his back turned and could not see the appellant. All these, which were the
beginning of the execution of the appellant's design to kill the deceased, constitute treachery
inasmuch as they tended to avoid every risk to himself arising from the defense which the deceased
might make (U. S. vs. MacMann, 4 Phil., 561; U. S. vs. Pendleton, 7 Phil., 457; U. S. vs. Mercoleta,
17 Phil., 317; U. S. vs. Cabanog, 34 Phil., 620). It matters not that the deceased accidentally turned
around upon hearing Poblacion's warning and was able to defend himself from the elbow which, at
that moment, the appellant was about to give with a dagger, because the treacherous character of a
means employed in the aggression does not defend upon the result thereof but upon the means
itself, in connection with the aggressor's purpose in employing it. Otherwise this reason the law does
not require that the treacherous risk to the person of the aggressor arising from the defense which
the offended party might make, it being sufficient that it tend to this end.
However, even considering at the moment the deceased turned around and saw the appellant in the
attitude of stabbing him, this court also finds therein the elements of treachery inasmuch as the
aggression, under the circumstances, was so sudden that the deceased, who carried a revolver in
his belt, had no chance to defend himself with it.
Considering the incident at the moment the appellant mounted astride of the deceased, who defend
himself only with his feet and hands without having been able to use the revolver carried by him in
his belt, when said appellant, in such situation, inflicted the wound which caused the death of the
deceased, he likewise acted with treachery on the ground that, under the circumstances, he was not
running, as in fact he did not run, any risk arising from the defense which the deceased might make.
And so, whether the beginning and the end of the aggression be considered singly, or the
development thereof be considered as a whole, it is evident that the aggravating circumstance of
treachery was present.
The aggravating circumstance that the appellant is a recidivist must be taken into consideration. The
mitigating circumstance that he had acted in the immediate vindication of a grave offense committed
against him a few hours before, when he was slapped by the deceased in the presence of many
persons, must likewise be taken into consideration. Although this offense, which engenders
perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by
reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the
crime was committed. Lastly, the other mitigating circumstance that the appellant had voluntarily
surrendered himself to the agents of the authorities must be considered.
For the foregoing considerations, this court finds the appellant guilty of the crime of murder qualified
by treachery, and, taking into consideration the presence of one aggravating and two mitigating
circumstances in the commission of the crime, and applying the Indeterminate Sentence Law, Act
No. 4103, he is sentenced to the penalty of from ten years of prision mayor, as the minimum, to
seventeen years, four months and one day of reclusion temporal, as the maximum, affirming the
appealed sentence in all other respects, with the costs. So ordered.
Abad Santos, Imperial and Diaz, JJ., concur.
G.R. No. L-45100
October 26, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants.
Ramon Diokno and Gabriel N. Trinidad for appellants.
Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:
Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First
Instance of Laguna, the dispositive part of which reads as follows:
In view of the foregoing considerations, the court finds the accused Epifanio Diokno and
Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences
each of them to reclusion perpetua, to indemnify jointly and severally the heirs of the
deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered.
In support of their appeal, the appellants assign the following alleged errors as committed by the
court a quo in its judgment in question, to wit:
1. The lower court erred in accepting Exhibit E as evidence.
2. The lower court erred in admitting Exhibit K as evidence.
3. The lower court erred in not acquitting the appellant Roman.
4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.
The following facts have been proven beyond a reasonable doubt during the trial:
The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the
morning of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year,
invited the latter to go with her. Yu Hiong accepted the invitation but he told Salome that her father
was angry with him. Salome answered him: "No matter, I will be responsible." At about 6 o'clock in
the afternoon of said day, Yu Hiong and Salome Diokno took an automobile and went to the house
of Vicente Verina, Salome's cousin, in Pagbilao. As they found nobody in the house, they went on
their way up to San Pablo, Laguna. On January 5th or 6th of said year, Roman Diokno telegraphed
his father Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the
Chinese Yu Hiong. On the morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to
San Pablo, Laguna, in search of the elopers. Having been informed that the latter were stopping at
the house of Antonio Layco, they went there. Upon arriving near the house, they saw Yu Hiong
coming down the stairs. When Yu Hiong saw them, he ran upstairs and they pursued him. As the
Chinese found the door of the house locked, he shouted that it be opened for him. At that moment,
he was overtaken by the accused who carried knives locally known as balisong, of different sizes.
Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with
the knife in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell
on the landing of the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman
Diokno said: "Enough, father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same
street, Hermanos Belen, in front of Antonio Layco's house, saw the accused pursue Yu Hiong and
fired shots for the police to come. Upon hearing the shots, municipal policeman Francisco Curabo
appeared and found Yu Hiong pale and lying on the landing of the stairs. He then asked who had
wounded the Chinese and the accused Epifanio Diokno answered that it was he. The policeman
took the knife (Exhibit C) which Epifanio Diokno carried in his right hand and brought him to police
headquarters. Roman Diokno had left before the policeman arrived and he was not located until after
three days. The municipal president of San Pablo, Laguna, also went to the scene of the crime,
found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E.
The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs.
David Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different
parts of the body, one of them at the back and about three and a half inches long, piercing the pleura
and penetrating the lower lobe of the right lung about an inch, which wound was necessarily mortal
and which caused the death of the victim. On January 8, 1935, while the said Chinese was in a
serious condition in the hospital, he made a statement telling how he was attacked by the accused
(Exhibit K).
The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo
together on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was
coming down the stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told
his son Roman to go home and tell their relatives what had happened; that when Epifanio Diokno
overtook Yu Hiong on the landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether
he was willing to marry his daughter; that the Chinese answered him in the negative and at the same
time tried to take something from his pocket; that as Epifanio knew that Yu Hiong carried a revolver,
he feared the Chinese might harm him; he became obfuscated, drew his knife and knew not what
happened afterwards.
The first question to be decided in the present appeal is whether or not the court a quo erred in
admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal president
of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m.
on January 7, 1935, and wherein Yu Hiong, answering the questions asked by said municipal
president, stated that it was Ramon Diokno and Epifanio Diokno who had wounded him.
It is argued by the defense that said document Exhibit E should not be admitted on the ground that
some words had been altered and because it has not been proven that declarant had a sense of
impending death.
It does not appear that said document was altered after it had been signed, but on the contrary,
municipal president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he
neither erased any word nor put another in its place after said document had been finished.
The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal
president's questions, does not make his declaration inadmissible. It is enough if, from the
circumstances of the case, it can be inferred with certainty that such must have been his state of
mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as
a result of the wounds received by him and, consequently, he could not have the hope to live when
he made his declaration immediately after he was mortally wounded. But even if the document
Exhibit E were not admissible as an ante mortem declaration, it is admissible as a part of the res
gestæ because it was made under circumstances so proximate to the incident that it may be
considered as a part thereof. (People vs. Portento and Portento, 48 Phil., 971; People vs. Palamos,
49 Phil., 601.)
The first assignment of alleged error is, therefore, untenable.
With respect to the second assignment of alleged error consisting in that the court a quo erred in
admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that
when the declarant made it he was aware of impending death and that he did not die until three days
after making it, all that has been said relative to Exhibit E, which is the subject matter of the first
assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense that it is
admissible as an ante mortem declaration. Furthermore, when the deceased made the declaration
Exhibit K, he complained of great difficulty in breathing and of being very ill. The fact that he did not
die until three days later neither implies that he had no sense of impending death when he made his
declaration because he did not improve thereafter but became worse until he died; nor detracts from
its character of an ante mortem declaration because what gives the declaration such character is the
declarant's conviction, upon making it, that he is not going to live (U. S. vs. Mallari, 29 Phil., 14).
The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant,
Roman Diokno.
The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different
dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two
instruments of different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased,
leave no room for doubt that Roman Diokno cooperated with his father and stabbed the deceased
Yu Hiong with a knife in different parts of the body. Furthermore, the deceased stated in his ante
mortem declaration (Exhibit K) that it was Roman Diokno who inflicted the necessarily mortal wound
in his back, which caused his death.
We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior
strength, qualifying the crime of murder, which the trial court found to have been proven, has not
been established beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625),
this court said that "the mere fact that the number of the assailants is superior to that of those
attacked by them is not sufficient to constitute the aggravating circumstance of abuse of superiority."
In this case we have the photographs of the body of the deceased (Exhibits D and D-1) showing that
he had a strong constitution: but there is no evidence of the physical constitution of the accused
Epifanio Diokno and Roman Diokno. Therefore, we cannot determine whether or not said accused
were physically stronger than the deceased and whether or not they abused such superiority.
Neither does this court find the existence of the other circumstance qualifying murder, that is, evident
premeditation, proven beyond a reasonable doubt because, even assuming that both the accused
went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being
customary for the people of said province to carry it, it cannot be inferred with certainty from the
mere fact that they carried knives that their intention in going to San Pablo was to look for the
deceased in order to kill him. In order that premeditation may be considered either as an aggravating
circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be
manifest and it must have been planned in the mind of the offender and carefully meditated. It is not
enough that it arose at the moment of the aggression.
Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime
committed by the accused is simple homicide.
lâwphi1.nê t
The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is,
immediate vindication of a grave offense to said accused, may be taken into consideration in favor of
the two accused, because although the elopement took place on January 4, 1935, and the
aggression on the 7th of said month and year, the offense did not cease while Salome's
whereabouts remained unknown and her marriage to the deceased unlegalized. Therefore, there
was no interruption from the time the offense was committed to the vindication thereof. Our opinion
on this point is based on the fact that the herein accused belong to a family of old customs to whom
the elopement of a daughter with a man constitutes a grave offense to their honor and causes
disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and
anxiety in the minds of the members thereof.
The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon
an impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into
consideration in favor of the accused. The fact that the accused saw the deceased run upstairs
when he became aware of their presence, as if he refused to deal with them after having gravely
offended them, was certainly a stimulus strong enough to produce in their mind a fit of passion which
blinded them and led them to commit the crime with which they are charged, as held by the
Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February
8, 1908, May 25, 1910, July 3, 1909, and in other more recent ones.
The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered
himself immediately to the agents of persons in authority, should also be taken into consideration in
favor of the accused Epifanio Diokno.
In view of the foregoing considerations, this court concludes that the accused are guilty beyond a
reasonable doubt of the crime of homicide defined and punished in article 249 of the Revised Penal
Code, the penalty prescribed therein being reclusion temporal in its full extent. Three mitigating
circumstances must be taken into consideration in favor of the accused Epifanio Diokno and two in
favor of the accused Roman Diokno, with no aggravating circumstance, thus authorizing the
imposition of the penalty next lower to that prescribed by law (reclusion temporal in its full extent),
or prision mayor in its full extent, in the period that this court deems applicable, which is the medium
period in this case, in accordance with the provisions of article 64, rule 5, that is eight years and one
day of prision mayor.
Both accused should be granted the benefits of the indeterminate sentence provided in Act No.
4103, as amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken
from that next lower to prision mayor, or prision correccional of from six months and one day to six
years. Taking into account the circumstances of the case, the indeterminate penalty to which each of
said accused must be sentenced is fixed at from two years and one day of prision correccional to
eight years and one day of prision mayor, crediting each with one-half of the time during which they
have undergone preventive imprisonment (art. 29, Revised Penal Code).
Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of
homicide and sentences each of them to an indeterminate penalty from two years and one day
of prision correccional to eight years and one day of prision mayor, crediting them with one-half of
the time during which they have undergone preventive imprisonment, and to indemnify the heirs of
the deceased in the sum of P1,000, with the costs of both instances. So ordered.
G.R. No. L-19142
March 31, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGRECIO LUMAYAG, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Oscar R. Ongsiako for defendant-appellant.
BENGZON, J.P., J.:
At about seven o'clock in the evening of April 12, 1959, in the barrio of Gumagamot, municipality of
Lala, Lanao del Norte, Pedro Lumayag was up in a coconut tree gathering tuba while his wife,
Luzviminda Pampilo, was on the ground lighting him with the beam of a flashlight. Suddenly he
heard a thud and a shout for help. Recognizing the shout to be that of Jose Pampilo, his father-inlaw, he hurriedly went down from the coconut tree, snatched the flashlight and, together with his
wife, ran towards the place where the shout came from. They heard the sound of hard beating and
the groaning of a man. Pedro Lumayag then directed his flashlight towards it and saw Agrecio
Lumayag, wearing a red shirt and maong pants, straddle over a person by the road with his hands
around the person's neck. Agrecio thereupon jumped and ran away towards his house about 300
meters from the scene.
Pedro Lumayag and his wife approached the person lying face down and recognized him as Jose
Pampilo, who sustained injuries in the nape and bruises in the right cheek and was bleeding. One
meter away from him was his hat and nearby were two empty bottles of liquor. The spouses, upon
verifying that Jose Pampilo was already dead, forthwith reported the incident to the barrio lieutenant
who, in turn, sent a rural policeman to notify the chief of police. Pedro Lumayag and his wife,
accompanied by the barrio lieutenant, returned to the scene of the crime. They found the body of
Jose Pampilo lying on its back with the hat on. The chief of police, several policemen and the
municipal health officer arrived later.
1äwph ï1.ñët
Acting upon the account given by Pedro Lumayag, the chief of Police dispatched some policemen to
summon Agrecio Lumayag. The policemen found only Agrecio Lumayag's wife in his house but,
upon further search, found him hiding in a nearby shack armed with a bolo and a cane.
The policemen brought Agrecio Lumayag to the chief of police. Asked by the chief of police whether
or not he killed Jose Pampilo, Agrecio stated that he would answer the question in the municipal
building. Further asked what attire he had that afternoon, he answered that he wore a red shirt and
maong pants. The red shirt and maong pants were later taken by the chief of police from Agrecio
Lumayag's house and brought to the municipal building.
The municipal health officer, in a postmortem examination of the deceased, found a fracture and
contused wounds at the base of the skull, which may have been inflicted by a blunt instrument, and
swelling on the right side of the face, lower jaw and the neck.
In the municipal building that same evening the chief of police interrogated Agrecio Lumayag but the
latter refused to make a statement and instead promised to do so the following morning. No
investigation, however, was conducted next morning inasmuch as the chief of police left for Iligan
City at about one o'clock in the morning and came back only at 5:30 in the afternoon. Agrecio
Lumayag, upon being again investigated by the chief of police, eventually confessed that he killed
Jose Pampilo with a cane called "bahi". He also indicated the place where he threw the cane when
somebody focused at him a flashlight. A policeman scoured the area indicated by Agrecio Lumayag
and there found the cane.
Subsequently, the provincial fiscal filed an information in the Court of First Instance charging Agrecio
Lumayag with the crime of murder.
After entering a plea of not guilty and standing trial, Agrecio Lumayag was found guilty by the trial
court in its judgment of February 24, 1961, the dispositive portion of which states:
WHEREFORE, the Court declares, as is hereby declared, accused Agrecio Lumayag
GUILTY beyond reasonable doubt of Murder as charged, penalized under Art. 248 with the
aggravating circumstances of treachery and nocturnity, with the mitigating circumstance of
vindication of a wrong he having been boxed and physically injured by the deceased, which
fact, although not immediate, is considered by the Court as attenuating He is, therefore,
sentenced to suffer an imprisonment of THIRTY YEARS of reclusion perpetua and to pay the
costs of this present suit. He is further sentenced to indemnify the heirs of the deceased SIX
THOUSAND PESOS (P6,000), and in case of insolvency, no further subsidiary imprisonment
shall be imposed.
Accordingly, the accused has appealed to this Court.
For his defense of alibi the accused testified to the following: at about four o'clock in the afternoon of
April 12, 1959 he and his wife left Gumagamot by truck for Baroy. From there they crossed Pangil
Bay by banca to Tangub particularly at about six o'clock in the evening. From the time of their arrival,
they stayed in Tangub, particularly in the house of a quack doctor, Tranquilino Melbar, until six
o'clock in the morning of April 14, 1959, during which time appellant was treated by Melbar. They
returned to Gumagamot only on April 14, arriving there at about eight o'clock in the morning,
accompanied by Melbar, to whom the accused promised to give a rooster. Shortly thereafter, a
policeman arrived and arrested the accused for the murder of Jose Pampilo.
The trial court did not give credence to appellant's alibi, observing that it was improbable for
appellant to have been able to travel to Tangub if he was really sick. It also found the testimony of
the quack doctor, in support of appellant's alibi, unreliable.
Appellant's aforestated alibi cannot prevail in the face of the positive testimonies of Pedro Lumayag
and Luzviminda Pampilo definitely identifying him as the very person whom they saw on top of Jose
Pampilo's prostrate body (People v. Ramos, L-17402-03, August 31, 1963). Furthermore, the chief of
police of Lala testified that on the night of the incident he caused the accused to be apprehended
and detained him in the municipal building for investigation; that in the afternoon of April 13 the
accused, still under detention, confessed to having killed Jose Pampilo with a cane called "bahi"
which he threw away about a hundred yards from the scene of the crime. As stated, the cane was
later found in the very place indicated by the accused.
Appellant further questions the credibility of the testimonies of Pedro Lumayag, Luzviminda Pampilo
and the chief of police of Lala. He lays emphasis on the testimony of barrio Lieutenant Luis Ecat,
who stated that Pedro Lumayag and Luzviminda Pampilo, in reporting to him, could not identify the
killer. The record of this case discloses no sufficient motive on the part of Pedro Lumayag,
Luzviminda Pampilo and the chief of police to testify falsely against the accused. On the other hand,
it has been shown by the defense that the deceased was hated in the community, so that a feeling of
hatred may have influenced Luis Ecat. The trial court, at any rate, did not believe him. Appellate
courts as a rule desist from disturbing the findings of the trial court on the credibility of witnesses, for
the latter is in a better position to appreciate the same, having seen and heard the witnesses
themselves and observed their behavior and manner of testifying during the trial. We find no reason
to depart from this settled practice, since it has not been shown that the trial court has overlooked
certain facts of substance and value that, if considered, might affect the result of the case (People v.
Curiano, L-15256-57, October 31, 1963).
Finally, appellant contends that the trial court erred in finding him guilty of murder in spite of the
failure of the prosecution to establish treachery and nocturnity as qualifying circumstances. For the
same reason, the Solicitor General recommends a judgment for homicide instead of murder. The
information cites as qualifying circumstances "treachery, evident premeditation and taking advantage
of nocturnity to better insure the commission of the offense." As appellant points out, however, these
aggravating circumstances were not proved. While there is sufficient evidence to establish the killing
of Jose Pampilo by the accused, there is none, however, to show that he acted with treachery or
evident premeditation or that he specially sought the advantage of nighttime to facilitate the
commission of the crime. We may therefore apply the doctrine laid down in U.S. v. Bañagale, 24
Phil. 69, to the effect that when the details and circumstances surrounding the commission of the
crime are unknown, and there appears no evidence in the case that may indicate the situation of the
victim when he was killed or when it is not conclusively shown that the violent death of a person was
attended by any of the qualifying circumstances specified in Article 248, the crime must be classified
as homicide, and not murder.
The record shows that on July 8, 1958, the deceased boxed the accused several times in the face,
for which the deceased was subsequently convicted of less serious physical injuries by the justice of
the peace court of Lala. The deceased appealed to the Court of First Instance of Lanao and at the
time the accused killed the deceased the case was still pending therein. In view of the length of time,
approximately nine months, between the boxing incident and the killing of Jose Pampilo, it cannot be
said that the second incident was an immediate or a proximate vindication of the first. Accordingly,
the court a quo should not have considered it as mitigating circumstance under paragraph 5, Article
13 of the Revised Penal Code.
PREMISES CONSIDERED, appellant is hereby found guilty beyond reasonable doubt of the crime
of homicide without any mitigating or aggravating circumstances, and condemned to suffer an
indeterminate sentence of six (6) years and one (1) day of prision mayor as minimum to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal as maximum, to indemnify the
heirs of the deceased in the amount of P6,000.00, and to pay the costs. It is so ordered.
G.R. No. 136861
November 15, 2000
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO LOPEZ y MARCELLA @ OPRING, accused-appellant.
DECISION
PER CURIAM:
Before us on automatic review is the decision dated November 12, 1998 of Branch 42, of the
Regional Trial Court of the First Judicial Region stationed in Dagupan City, in its Criminal Case No.
98-02265-D, finding accused-appellant Bonifacio Lopez guilty of murder complexed with abortion
and sentencing him to suffer the supreme penalty of death.
Accused-appellant’s conviction for said crime arose from an Information reading as follows:
That on or about the 19th day of July, 1998, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, BONIFACIO LOPEZ y MARCELLA
@ Opring, being then armed with a bladed weapon, with treachery, abuse of superior strength and
with intent to kill one GERARDA ABDULLAH @ Gina, full term pregnant, did then an there, wilfully,
unlawfully and criminally, attack, assault and use personal violence upon the latter by stabbing her
several times, hitting her on the stomach, thereby causing her death, shortly thereafter due to
"Hypovolemic shock, Hermorrhage massive. Secondary to multiple stab wound, penetrating, multiple
organ perforation (Lung, Liver, Small Intestine, Pregnant Uterus, Fetal death, full term, female,
secondary to stab wound right parietal area with brain tissue, damage", thus resulting also to the
death of the fetus, as per Autopsy Report issued by Dr. Benjamin Marcial Bautista, Rural Health
Physician, this City, to the damage and prejudice of the legal heirs of said deceased, GERARDA
ABDULAH @ Gina, in the amount of not less than FIFTY THOUSAND PESOS (P50,000.00)
Philippine Currency, and other consequential damages.
Contrary to Article 248 in relation to Article 256 of the Revised Penal Code.
(p. 6, Rollo.)
Upon arraignment, accused-appellant entered a plea of not guilty. Trial ensued thereafter.
On April 23, 1996, the trial court, the Honorable Luis M. Fontanilla presiding, rendered the decision
now under review, disposing:
WHEREFORE, premises considered, accused BONIFACIO LOPEZ is hereby found guilty beyond
reasonable doubt of the crime of Murder complexed with Abortion. Thus, he is hereby sentenced to
suffer the extreme penalty of DEATH. He is further ordered to indemnify the heirs of the victim in the
amount of P50,000.00 and also to pay to the said heirs P25,000.00 as actual and compensatory
damages, and another P50,000.00 as moral damages for the pains suffered by the mother of the
victim, if not her children. The accused is also ordered to pay costs.
(p. 26, Rollo.)
The case for the prosecution is woven mainly on the testimony of Librada Ramirez, mother of the
victim, and John Frank Ramirez, brother of the victim. Librada testified that on July 19, 1998, at
around 2:30 o’clock in the afternoon, she heard a commotion inside their house. Alarmed, she
rushed towards their house and there she saw accused-appellant attacking his son John Frank, who
was already bleeding, with a knife. After seeing blood already oozing from her son’s neck, Librada
went near accused-appellant to calm him down but instead, the latter sneered and poked his knife at
her. Accused-appellant grabbed her head by the hair and pulled and pushed violently from one side
to another, while John Frank continued to wrestle with accused-appellant for the possession of the
knife. When finally Librada was able to free herself from accused-appellant’s hold, her son told her to
escape and seek help. Librada ran away from the scene and sought the help of their policeman
neighbor whose house was about 10 to 15 meters away.
We pick up the story now from John Frank who narrated that with the help of a neighbor he was able
to pull accused-appellant outside of their house and locked him out by closing the front and the back
doors. Not long after, he saw accused-appellant jumping off the fence and barging inside the
bathroom where John Frank’s pregnant sister Gina was taking a bath. John Frank stood on top of
their sink and peeped through the bathroom window to see what was happening. There he saw
accused-appellant violently stabbing Gina who fell on her back to the ground. Gina somehow
managed to get up, forcing her way out by tearing down a GI sheet which served as part of the
enclosure of the bathroom.
Librada recalled that when she returned she saw Gina running out from the bathroom. Accusedappellant was about to leave when he saw Gina being lifted into a parked jeep. Accused-appellant
rushed towards Gina, dragged her out of the jeep, kicked her, and again mercilessly stabbed her
and he thence fled. Thereafter, Gina was brought to the Pangasinan Provincial Hospital where she
expired.
John Frank’s and Librada’s account of what happened to Gina while being lifted inside the jeep finds
support in Esteven Basi’s story, a mere passerby who witnessed that accused-appellant was kicking
and stabbing a pregnant woman he later found out to be Gina.
The autopsy report issued by Dr. Benjamin Bautista, Rural Health Physician of Dagupan City who
conducted an autopsy on the cadaver of Gina, is to the following effect:
EXTERNAL FINDINGS
Cadaver is in Rigor Mortis and pregnant, full term, lacerated wound, 8 cm. Left anterior M/3rd
Linear Abrasion, 3 cm. Left medial M/3rd Forearm.
Linear Abrasion, 4 cm. Left, lateral M/3rd Forearm.
Stab wound, 3 cm. Left, mid axillary line, level 3rd ICS penetrating and perforating, 8 cm.
Deep downward direction, one end shar.
Stab wound, 3 cm. Left, mid clavicular line, level 6 cm. Below the xiphoid process,
penetrating and perforating, very deep downward direction, prelapse mesentery, one end
sharp.
Stab wound, 3 cm. Left aneterior axillary line, level 4 cm above the umcilicus, penetrating
and perforating, very deep downward direction, prelapse mesentory, one end sharp.
Confluent skin abrasion left leg anterior M/3rd
Lacerated wound 4 cm. Right, thigh, lateral D/3rd
Stab wound, 3 cm. right, anterior axillary line, level 2nd ICS, penetrating and perforating, one
end sharp, downward direction, 11 cm. deep.
Stab wound, 5 cm. left, para vertebra, level thorasic lumbar, one end sharp, 3 cm. deep, nonpenetrating.
Stab wound, 3 cm. right mid scapular line, buttocks, level sacral 2-3, penetrating and
perforating, one end sharp, slightly upward direction, 12 cm. deep.
Stab wound, 3 cm. right, sygematic lateral, straight direction, 5 cm. deep, one end sharp.
INTERNAL FINDINGS
Intrathorasic Hemorrhage, moderate
Penetrating and perforating, right lung middle lobe and left lung lower lobe
Intra abdominal hemorrhage, massive
Penetrating and perforating, liver, middle lobe
Small intestine, and multiple perforation
Pregnant uterus with prelapse umbilical cord
(pp. 18-19, Rollo.)
Accused-appellant testified in his behalf, and presented his daughter Josephine Lopez Almonte to
corroborate his story.
Accused-appellant’s version of the incident dates back to May 25, 1998 when his daughter Marilyn
was missing. Four days later, he saw the victim Gerarda "Gina" Abdullah, Librada (his own sister),
and her other daughters Vicky and Emily quarrelling with his wife. He heard Gina tell his wife that
their daughter was a flirt.
On June 3, 1998, accused-appellant’s daughter Marilyn returned home. He noticed that she
appeared pale and was always suffering from dizziness, such that on one occasion, due to said
dizziness, she fell down the stairs. This occurrence aroused his suspicion and so he inspected
Marilyn’s personal belongings. He found a letter prepared by Marilyn for one Jeffrey stating the he
had her baby aborted. Accused-appellant confronted his daughter and according to him she
confessed that it was Librada who maneuvered the abortion.
On July 19, 1998, that fateful afternoon, accused-appellant recounted that he was in his house
having lunch with his children and some friends. Thereafter, he went to the house of his sister
Librada and asked her about the abortion incident. Librada answered back by calling him a devil.
Upon hearing the altercation, John Frank took a knife from the kitchen and stabbed him in the
abdomen. Gina then gave assistance by covering his face with a towel while Librada held his left
hand. He and John Frank fought for possession of the knife. Feeling already dizzy because of his
wound in his abdomen, he was not aware if any one was injured in the course of the scuffle. When
he was able to get out of the house, he decided to report the incident to a certain retired captain by
the name of Rosendo Maramba whom he was, however, unable to locate. Nonetheless, when the
police officers arrived, he gave himself up and surrendered.
Accused-appellant did not present any medical certificate to prove his claim of having been stabbed
by John Frank. Likewise, he was unable to present any other witness to corroborate his narration,
except his own daughter, Josephine Lopez Almonte. Her testimony was limited to what allegedly
occurred on that afternoon of July 19, 1998 which substantially was the same as that of accusedappellant.
Giving full faith and credence to the eye witness accounts of Librada, John Frank, and Esteven Basi,
the trial court, in its November 12, 1998 decision, found accused-appellant guilty of murder with
abortion and imposed on him the penalty of death.
Hence, the instant review and appeal wherein accused-appellant argues that the trial court erred: (a)
in the application of Article 63 of the Revised Penal Code; (b) in imposing the penalty of death; and
(c) in convicting him of the crime of murder since the case was not attended by any of the qualifying
circumstances.
Accused-appellant’s contentions lack merit.
Treachery is considered present when there is the employment of means of execution that give the
person attacked no opportunity to defend himself or to retaliate and the method of execution was
deliberately or consciously adopted (People vs. Bernas, G.R. Nos. 76416 and 94372, July 5, 1999).
The essence of treachery is a swift and unexpected attack on a victim without the slightest
provocation on his part (People vs. Lito Lagarteja and Roberto Lagarteja, G.R. No. 127095, June 22,
1998). In this case, victim Gina was taking a bath when accused-appellant suddenly forced himself
into the flimsy structure which served as a bathroom and without warning repeatedly stabbed Gina.
As Gina fell on the ground, accused-appellant continued his attack. Even when Gina was already
forcing herself out of the bathroom, accused-appellant ruthlessly assaulted her from behind.
1âwphi1
Even as the wounded Gina was able to free herself from the hands of accused-appellant and as she
was being lifted into the jeepney to be brought to the hospital, accused-appellant caught up with her,
dragged her out, kicked her while helpless on the ground, and without pity stabbed the already
beaten up 9-month pregnant woman.
An attack upon an unconscious victim who could not have put up any defense whatsoever is
treacherous (People vs. Flores, 252 SCRA 31 [1996]). Gina, almost dead on the ground and
considering her physical condition at that time, was totally unprepared and had no weapon to resist
the attack. The stabbing, thus, could not but be considered treacherous. The lower Court, therefore,
correctly concluded that there was treachery which qualified the killing to murder.
Accused-appellant pleads for consideration of the mitigating circumstance of vindication of a grave
offense committed by the victim against his daughter.
The Court, however, finds no basis from the record to justify the appreciation of such mitigating
circumstance. Notably, accused-appellant claims that his daughter, on May 25, 1998, was missing.
Four days thereafter, he saw Gina and her companions quarrelling with accused-appellant’s wife,
and he heard Gina say that his daughter was a flirt. Even if this be true, considering that the stabbing
incident took place on July 19, 1998 or almost 2 months thereafter, the mitigating circumstance of
immediate vindication of a grave offense cannot be considered in favor of accused-appellant
because he had sufficient time to recover his serenity (People vs. Santos, 255 SCRA 309 [1996]).
The supposed vindication did not immediately or proximately follow the alleged insulting and
provocative remarks. Almost two months had lapsed. Aside from the fact that the provocation should
immediately precede the commission of the offense, it should also be proportionate to the damage
caused by the act and adequate to stir one to its commission (People vs. Luayon, 260 SCRA 739
[1996]). The remark attributed to Gina that accused-appellant’s daughter is a flirt does not warrant
and justify accused-appellant’s act of slaying the victim. Indeed, accused-appellant does not accuse
Gina of committing the alleged abortion; this he imputes to Gina’s mother Librada. Further, accusedappellant even had knowledge that the victim was pregnant, thusly:
Q Do you know that your niece was pregnant when she was stabbed unconsciously by you as you
claimed?
A Yes sir.
Q You know that she was pregnant because her stomach was already bulging?
A Yes sir.
(tsn, Oct. 6, 1998, p. 12.)
However, such tender physical condition of Gina did not deter accused-appellant from taking his
vengeful act, snuffing out the lives of both Gina and the baby inside her womb.
Accused-appellant further asserts that Esteven Basi’s testimony is unreliable since he did not
execute any statement in connection with the investigation. He merely presented himself later to
Librada so he could testify in the trial.
It bears reiterating that the initial reluctance of witnesses to volunteer information about a criminal
case and their unwillingness to be involved in criminal investigation due to fear of reprisal are
common and have been judicially declared insufficient factors to affect credibility (People vs. Lising,
285 SCRA 595 [1998]; People vs. Matubis, 288 SCRA 210 [1998]; People vs. Israel, 231 SCRA 155
[1994]). The natural reluctance of a witness to get involved in a criminal case and to provide
information to the authorities is a matter of judicial notice (People vs. Villanueva, 284 SCRA 501
[1998]; People vs. Cario, 288 SCRA 404 [1998]). Thus, hesitation of a witness to relate the felony he
witnessed and to identify the author thereof is not a ground to discard his testimony.
Frank and consistent manner of testifying bears the mark of a credible witness (People vs. Medina,
292 SCRA 436 [1998]). Esteven was a mere passerby and there is nothing to indicate that he was
actuated by improper motives to testify against accused-appellant, and where there is no evidence
that the witness for the prosecution was actuated by improper motive, the presumption is that he
was not so actuated (People vs. Alfeche, 294 SCRA 352 [1998]). Withal, Esteven’s testimony must
be given full weight.
Lastly,, accused-appellant argues that the trial court gravely erred in the application of Article 63 of
the Revised Penal Code, specifically the rule when an indivisible penalty is prescribed.
It must be emphasized that accused-appellant was charged with the complex crime of murder with
abortion, not of two independent charges of murder and unintentional abortion. In a complex crime,
although two or more crimes are actually committed, they constitute only one crime in the eyes of
the law. The stabbing and killing of the victim which caused likewise the death of the fetus arose
from the single criminal intent of killing the victim, as shown by accuse-appellant’s pursuit of the
victim after she was able to escape (People vs. Alacar, 211 SCRA 580 [1992]).
Article 248 of the Revised Penal Code, as amended by Republic Act 7659, provides:
Art. 248. Murder. – Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any
of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.
xxx
xxx
xxx
In a complex crime, the penalty for the more or the most serious crime shall be imposed, the same
to be applied in its maximum period. As between murder and unintentional abortion, murder is the
more serious crime and the penalty therefore is reclusion perpetua to death. Death being the
maximum or the greater penalty must then be imposed, and since this is an indivisible penalty, the
presence of mitigating or aggravating circumstances is inconsequential.
In sum, the Court cannot give due weight to testimony which were not borne out by the testimonial
evidence of Dr. Benjamin Bautista and his autopsy report (People vs. Hilario, 284 SCRA 344 [1998]).
The identical testimony of accused-appellant and his daughter Josephine that Librada was holding
accused-appellant’s hand while the latter wrestled with John Frank’s for the possession of the knife,
and that Gina assisted by covering accused-appellant’s face with a towel, and in the process, must
have been accidentally stabbed several times causing her and her baby’s death, is incredible, and
thus, unbelievable. While there is no hard and fast rule to determine the truthfulness of one’s
testimony, that which conforms, however, to the quotidian knowledge, observation, and experience
of man is often deemed to be reliable (People vs. Niño, 290 SCRA 155 [1998]). For evidence to be
believed, it must not only proceed from the mouth of a credible witness but must be credible in itself
such as the common experience and observation of mankind can approve as probable under the
circumstances (Cosep vs. People, 290 SCRA 378 [1998]).
Withal, it is beyond dispute that accused-appellant committed the act complained of and should be
made answerable therefore. The Court is more inclined to believe the testimony of Librada, John
Frank, and Esteven who is an impartial and disinterested witness, than the contrary and
unsubstantiated testimony of accused-appellant and that of his daughter. The gruesome wounds
sustained by the victim belie the exculpatory pretension of accused-appellant and confirm the theory
of the prosecution that accused-appellant purposely and vigorously attacked Gina in order to kill her.
It must, however, be noted that modification of the damages awarded by the trial court to the heirs of
the victim is in order in the sense that because no documentary evidence was presented as proof,
the amount of P25,000.00 as actual and compensatory damages should be deleted.
Although four Justices of the Court continue to maintain their adherence to the separate opinions
expressed in People vs. Echegaray (267 SCRA 682 [1997]) that Republic Act No. 7659 is
unconstitutional insofar as it prescribes the death penalty, they nonetheless abide by the ruling of the
majority and assent that the death penalty should herein accordingly be imposed.
WHEREFORE, the decision of the trial court finding accused-appellant Bonifacio Lopez guilty of
Murder with Abortion and sentencing him to suffer the severest penalty of death, and ordering him to
pay the heirs of Gerarda "Gina" Ramirez Abdullah as civil indemnity the amount of P50,000.00 is
AFFIRMED. We also hold that the heirs of the victim are entitled to moral damages of P50,000.00
for their mental anguish and pains suffered based on testimonial evidence during the trial (People
vs. Aguilar, 292 SCRA 349 [1998]). The award of actual damages is DELETED for lack of factual
basis.
In accordance with Section 25 of Republic Act No.7659, amending Article 83 of the Revised Penal
Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the
Office of the President for possible exercise of the pardoning power. No special pronouncement is
made as to costs.
SO ORDERED.
G.R. No. L-32042 February 13, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO Y RESTUBOG, defendant-appellant.
ESGUERRA, J.:
This is a mandatory review of the judgment of the Circuit Criminal Court of Manila in Criminal Case
No. CCC-VI-609, entitled "People of the Philippines vs. Alberto Benito y Restubog," imposing upon
the accused, Alberto Benito y Restubog upon his plea of guilty to the charge of murder, the penalty
of "death; to indemnify the heirs of the deceased as follows: P12,000.00 for the death of the
deceased; P20,000.00 as indemnity for loss of earning capacity of the deceased who was then only
36 years of age at the time of his death and earning P7,597.80 per annum; P20,000.00 for
exemplary damages; P25,000.00 for moral damages, all amounts to bear interest until they shall
have been fully paid; and to pay the costs."
The issues raised by the accused revolve around the alleged errors of the lower court in considering
the mitigating and aggravating circumstances attendant to the commission of the crime to determine
the proper penalty to be imposed on the accused.
It is not controverted that at about 5:30 p.m. of December 12, 1969, the victim Pedro Moncayo, Jr.,
Assistant Chief of Personnel Transaction and Acting Chief of the Administrative Division of the Civil
Service Commission, while driving his car on P. Paredes street in front of the Office of the Civil
Service Commission was followed by the accused, and when the car was about to turn at the
intersection of P. Paredes and Lepanto Streets, Manila, the accused shot him eight times with a .22
caliber revolver, causing the victim's death. The accused was charged with murder and when the
case was called for trial, through counsel de parte, he manifested his desire to withdraw his previous
plea of not guilty and substitute it with a plea of guilty without prejudice to proving mitigating
circumstances. The prosecution manifested that it would controvert whatever mitigating
circumstances the accused would prove and also prove other aggravating circumstances. The trial
court repeatedly explained to the accused the nature and consequences of his plea of guilty to the
offense charged and warned him that the maximum penalty imposable is death. Notwithstanding the
explanation and warning of the trial court, the accused, assisted by his counsel de parte upon being
re-arraigned, entered a plea of guilty. The accused presented evidence to prove mitigating
circumstances and the prosecution subsequently introduced evidence to prove aggravating
circumstances not mentioned in the information. The Court sentenced the accused to death after
finding him guilty as principal in the crime of murder qualified by treachery, with the aggravating
circumstances of evident premeditation and disregard of the respect due to the offended party on
account of his rank, offset by the mitigating circumstance of accused's plea of guilty.
I
On the first assignment of error regarding the failure of the lower Court to consider the mitigating
circumstance of voluntary surrender, both the accused and the Solicitor General are agreed that the
said mitigating circumstance should be considered in his favor. The intention of the accused to
surrender could be clearly discerned from the fact that immediately after the shooting, the accused
having all the opportunity to escape, did not do so but instead called up the Manila Police
Department. When the policemen went to the scene of the crime to investigate, the accused
voluntarily approached them and, without revealing his identity, told them that he would help in
connection with the case as he knew the suspect as well as the latter's motive. While it may be true
that the accused did not immediately tell the police that he was the assassin, perhaps because he
was momentarily shocked by the enormity of his crime, nevertheless when brought to the police
station immediately thereafter as a possible witness (accused was with the police investigators all
that time), he confided to the investigators that he was "voluntarily surrendering" and "also
surrendering the fatal gun used in the shooting of the victim" (pp. 9, t.s.n. December 26, 1969). We
fully subscribe to appellee's observation that all the aforementioned acts of the accused were
strongly indicative of his intent or desire to surrender voluntarily to the authorities. The accused must
be credited with the mitigating circumstance of voluntary surrender.
II
It is the contention of the accused that the criminal act of murder was committed in the immediate
vindication of a grave offense done by the victim against the accused and, therefore, this mitigating
circumstance must be credited in his favor. The supposed grave offense done by the victim was an
alleged remark made in the presence of the accused at about 11:00 a.m. of December 12, 1969,
that the Civil Service Commission is a hangout of thieves. The accused felt alluded to because he
was facing then criminal and administrative charges on several counts involving his honesty and
integrity.
There is merit in appellee's argument that said victim's remark even if actually uttered in the
presence of the accused, cannot be considered a grave offense against the latter. The remark itself
was general in nature and not specifically directed to the accused. If he felt alluded to by a remark
which he personally considered insulting to him, that was his own individual reaction thereto. Other
people in the vicinity who might have heard the remark could not possibly know that the victim was
insulting the accused unless they were aware of the background of the criminal and administrative
charges involving moral turpitude pending against the accused. At most, said remark might be
considered a mere provocation and not a grave offense which might have impelled the accused to
commit a crime in immediate retaliation. As the provocation was not sufficient and did not
immediately precede the act, it may not be considered as a mitigating circumstance.
In this case, however, the provocation was the remark uttered at 11:00 a.m. of December 12, 1969,
while the crime of murder was committed by the accused at about 5:30 p.m. of the same day giving
him several hours to reflect and hold his temper. Stated otherwise, the act of killing did not
immediately or proximately follow the supposed sufficiently insulting and provocative remark. The
juridical reason for appreciating this mitigating circumstance is the implied recognition by the law of
the weakness of human nature such that an ordinary human being if sufficiently provoked would
immediately retaliate in the unchristian spirit of vindictive retribution. But the circumstances of this
case are such that the act of murder committed by the accused could not reasonably be attributed to
an immediate or proximate retaliatory action on his part to vindicate what personal appeared to him
as sufficient provocation in the form of an insulting remark allegedly uttered by the victim. The failure
of the accused to immediately react to the supposed provocative insulting remark might even be
taken as his ignoring it altogether or considering it unimportant at the moment he heard the remark.
In other words, the remark was inadequate to stir or drive the accused to violence at the time it was
uttered and he had more than sufficient time to suppress his emotion over said remark if he ever did
resent it. The trial Court did not commit an error when it rejected the aforementioned incident as a
basis for crediting mitigating circumstance in favor of the accused.
III
The accused also claims that the lower Court should have considered the mitigating circumstance
that sufficient provocation or threat on the part of the deceased immediately preceded the act
because of the alleged statement of the deceased in Tagalog uttered at about 7:00 p.m. on the night
of December 11, 1969 (night preceding the day of the crime), to wit, "Umalis ka na nga diyan baka
may mangyari pa sa iyo at baka ipayari kita dito" (Get out of there, because something might happen
to you and because I might have you finished here). That statement of the deceased was supposed
to have been uttered in the presence of other people almost twenty four (24) hours before the crime
was committed. It was not accompanied by any overt act against accused and nothing more
happened during that night, so that the accused by that utterance could not have felt sufficiently
provoked or threatened so as to immediately react in his defense or retaliate by committing a crime.
The provocation or threat, did not immediately precede the shooting. In other words, the accused
had almost a day to mull over the alleged threat or provocation before he reacted by shooting the
victim. The inevitable conclusion is that the accused did not feel sufficiently threatened or provoked
by the alleged utterance of the victim at the time it was uttered, or within a reasonable time
thereafter, and when he shot the victim the next day, it was a deliberate act of vengeance and not
the natural reaction of a human being to ward off a serious threat or to immediately retaliate when
provoked.
We agree with appellee's contention that "provocation or threat to constitute a mitigating
circumstance, must, in the language of the law, be "sufficient", that is, adequate to excite the person
to commit the wrong and must accordingly be proportionate to its gravity and must also immediately
precede the act."
The lower Court correctly rejected the claim of the accused to this mitigating circumstance.
IV
The generic aggravating circumstance of disregard of rank considered by the lower Court against
the accused is being assailed on the ground that at the time of the commission of the murder, the
accused was no longer connected with the Civil Service Commission as the decision in the
administrative case against him ordering his dismissal from the service became effective February
16, 1966.
There is no question, however, that accused was a clerk in the Civil Service Commission and the
victim was Assistant Chief of the Personnel Transaction of that Office. When the accused saw and
talked with the deceased regarding the former's administrative case that proved to be the motive for
the murder by his own admission, accused made it very obvious that he recognized the deceased as
his superior officer. The mere fact that the dismissal of the accused from office was made
immediately executory was of no moment since he appealed that decision and the case was still
pending and, by his own allegation, he was later completely exonerated by the Civil Service Board of
Appeals in its decision of February 17, 1971.
It may be true that this aggravating circumstance was considered against the accused even if it was
not alleged in the information, but this is a generic aggravating circumstance, and not a qualifying
circumstance that would change the nature or affect the gravity of the crime committed, but one
which is capable of being proven and taken into consideration even if it was not alleged in the
information. The lower Court in considering this generic aggravating circumstance against the
accused did not violate his constitutional right to be informed of the nature and cause of the
accusation against him for murder. This aggravating circumstance was correctly considered against
the accused.
V
We cannot see Our way clear to the argument of the accused that the aggravating circumstance of
evident premeditation, although included in the information, should not be considered against the
accused because although he pleaded guilty to the charge unconditionally, the prosecution sought
and was allowed to adduce evidence to show the criminal participation of appellant in the
commission of the offense and the background of the crime imputed to him, and the evidence
submitted by the prosecution failed to establish the elements of the aggravating circumstance of
evident premeditation. It is further argued that the prosecution is deemed to have thereby waived the
effect of the unconditional plea of guilty by the accused so far as the aggravating circumstance of
evident premeditation is concerned.
What upsets the entire argument of the accused is the fact that the prosecution successfully proved
the existence of evident premeditation because Exhibit "A", his own declaration, narrates fully the
several attempts of the accused to talk with the deceased; how he was rebuffed in those attempts
and even insulted, and that he was jobless after having been dismissed from the office on allegedly
fabricated charges made by the deceased. All of these admissions provided a strong motive for the
accused to plan on how to retaliate against the victim by taking the law into his hands.
We cannot disregard the fact that the accused unconditionally pleaded guilty to the offense charged
after the lower Court specifically called his attention to the aggravating circumstance of evident
premeditation before he was rearraigned (p. 5, t.s.n. December 26, 1969), and after the Fiscal had
rejected his counsel's proposal to delete this aggravating circumstance from the information (p. 3,
t.s.n. December 26, 1969). The accused was fully aware of the consequences of his unconditional
plea of guilty to the offense of murder after it was explained to him, and the serious implication and
meaning of the aggravating circumstance of evident premeditation expressly mentioned in the
information.
The admission of the accused that he had with him a .22 caliber revolver on the afternoon of
December 12, 1969; that when he saw the victim driving his car on P. Paredes Street he followed
him up to the corner of P. Paredes and Lepanto Streets where he shot the victim eight times
suddenly and without any warning speaks eloquently of his plan, generated by an all-consuming
hatred, to kill the person whom he considered responsible for all his misfortunes.
The lower Court did not, therefore, err in considering the aggravating circumstance of evident
premeditation against the appellant.
For all the foregoing, the guilt of the appellant has been established beyond reasonable doubt, with
two mitigating circumstances in his favor, that of plea of guilty and voluntary surrender. However
these are offset by the aggravating circumstances of evident premeditation and disregard of respect
due to the deceased. The crime of murder being punishable with reclusion temporal in its maximum
period to death (Art. 248, Revised Penal Code), the penalty, pursuant to Article 248 in relation to
Article 64 of the Revised Penal Code, should be, as it is hereby, imposed in its medium
period, reclusion perpetua.
The penalty of death imposed by the trial court is hereby modified and reduced as above indicated,
to reclusion perpetua with accessories of the law.
Costs against the accused.
SO ORDERED.
G.R. No. L-12883
November 26, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of
Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three
score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy.
Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect of
this on the accused as explained by him in his confession was, "Why was he doing like that, I am not
a child." With this as the provocation, a little later while the said Modesto Patobo was squatting
down, the accused came up behind him and struck him on the head with an ax, causing death the
following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the
findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the
qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating
circumstance which on cursory examination would not appear to be justified. This mitigating
circumstance was that the act was committed in the immediate vindication of a grave offense to the
one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance
was rightly applied. That there was immediate vindication of whatever one may term the remarks of
Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave
offense" is more uncertain. The Supreme court of Spain has held the words "gato que arañaba a
todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to justify a finding
of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the
same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision
of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in
the proper light. The offense which the defendant was endeavoring to vindicate would to the average
person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious
matter to be made the butt of a joke in the presence of so many guests. Hence, it is believed that the
lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly
sentenced him to the minimum degree of the penalty provided for the crime of murder.
lawph!1. net
Judgment of the trial court sentencing the defendant and appellant to seventeen years four months
and one day of cadena temporal, with the accessory penalties provided by law, to indemnify the
heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs
is affirmed, with the costs of this instance against the appellant. So ordered.
Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CUSTODIO ROSEL, DefendantAppellant.
Pedro R. Arteche, for Appellant.
Solicitor-General Tuason, for Appellee.
SYLLABUS
1. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCE OF TREACHERY. — When one attacks
another unexpectedly, mortally wounding him, there is no doubt that he acts with treachery because
this circumstance exists when means, methods or forms are employed in the perpetration of the
attack which tend directly and specially to insure its commission without risk to the person of the
aggressor resulting from the defense which the offended party might make.
2. ID.; ID.; IMMEDIATELY VINDICATION OF A GRAVE OF OFFENSE. — the act committed by the
accused and appellant constitutes murder. However, there being present in his favor the fifth
mitigating circumstance, without any aggravating one to offset it, the minimum degree of the penalty
prescribed by law should be imposed on him.
DECISION
DIAZ, J.:
The accused-appellant Custodio Rosel was convicted of the crime of murder qualified by treachery,
and sentenced to reclusion perpetua, to indemnify the heirs of the offended party Francisco
Baldostano in the sum of P1,000 and to pay the costs. From said judgment of conviction he appealed
to this court and, in support of his appeal, in his brief alleges that the trial court committed the
following errors:
jg c:ch an rob les.com .p h
"1. In not acquitting him on the ground that he merely acted in defense of himself;
"2. In finding that the wounded Francisco Baldostano with treachery, notwithstanding that there is no
evidence in the record showing the presence of such circumstance; and
"3. In holding that no justifying, exempting or mitigating circumstances whatever were present in the
commission of the crime."
cralaw virt u a1 aw lib rary
The facts which gave rise to the prosecution of the appellant for the said crime of murder are,
according to the record, briefly as follows: On the night of February 14, 1938 several persons, among
them Francisco Baldostano, were gathered for a small celebration in the house of Hilario Ilada in the
barrio of Guyo, municipality of Catubig, Province of Samar. Some entertained themselves by singing
when the accused Custodio Rosel, Esperato Orsolino, Ignacio Alberne and Pedro Gorlon arrived.
Appellant greeted everybody in the house. In answer Francisco Baldostano said rather sarcastically
that strangers should leave the place, adding in the following words more or less: "It is good I have
means of livelihood. I have a rice land. You stranger (addressing the appellant) live at the expense of
your wife." There was no doubt that he referred to the appellant because he addressed the latter when
he said, "You stranger . . . etc.", and because appellant was not a native of the place. Appellant
resented the greeting or remark which Francisco Baldostano made concerning him and demanded an
explanation. Were it not for the intervention of some persons present, he would have attacked
Baldostano at that very moment. He left for his house a little afterwards and returned about one-half
hour later. Upon seeing that Francisco Baldostano was engrossed in conversation with some of those
who still remained in the house, he propped his left arm against the railing of the stairs and stabbed
Baldostano from below in the left armpit with the bolo with which he was armed and withdrew
immediately. The wound thus inflicted on Francisco Baldostano caused his death eight days later. So
unexpected was the attack of which he was the object on the part of the appellant that he was not
able to lower his arm to protect his armpit or to lean forward to dodge the attack. This, undoubtedly,
constitutes treachery because the same is present when means, methods or forms are employed in
the execution of the crime which tend directly and specially to insure its commission without risk to
the person of the aggressor resulting from the defense which the offended party might make.
Testifying in his behalf, appellant declared that on the day after wounding Francisco Baldostano he
presented himself to policemen Melecio Melendres and Juan whose surname he could not recall. It
does not appear, however, that he informed them of the crime he had committed for which reason
they did not place him under arrest.
The remarks of the deceased Francisco Baldostano under the circumstances in which he made them
were highly offensive to the appellant and to any other person in his place. It is not strange that they
engendered obfuscation in him and impelled him to act, as he did, in the immediate vindication of a
grave offense.
Considering the facts proven, our conclusion is that the crime committed by the accused and appellant
is that of murder. However, there being present the fifth mitigating circumstance in the commission
thereof, without any aggravating one to offset it, the judgment rendered against him should be
modified.
Wherefore, modifying the judgment appealed from appellant is sentenced to suffer an indeterminate
penalty of ten years and one day of prision mayor to seventeen years, four months and one day of
reclusion temporal. In all other respects, said judgment is affirmed with costs against the appellant.
So ordered.
[G.R. Nos. 39708 & 39709. April 16, 1934. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. LEOVIGILDO
DAVID, Defendant-Appellant.
Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J. Francisco for Appellant.
Solicitor-General Hilado for Appellee.
SYLLABUS
1. CRIMINAL LAW; FRUSTRATED HOMICIDE. — The defendant, in firing his revolver at the offended
party, hitting him on the upper left hand part of the body, piercing it from side to side and perforating
the lung, performed all the acts of execution which should have produced his death but did not
produced it by reason of the adequate and timely intervention of medical science, a cause entirely
independent of the defendant’s will. Such proven facts constitute the crime of frustrated homicide
defined in article 404 of the old Penal Code which was in force on the date of the commission of the
crime.
2. ID.; DISCHARGE OF FIREARM WITH LESS SERIOUS PHYSICAL INJURIES. — Although it is true that
the shot, which wounded the boy G. P., was not aimed at him, the same cannot be considered
accidental inasmuch as it was willfully aimed at the person against whom the attack was principally
directed and, therefore, the defendant is liable for the consequences of his acts in accordance with the
provisions of article 1, paragraph 3, of the old Penal Code.
DECISION
VILLA-REAL, J.:
This case comprises two appeals taken by the defendant Leovigildo David from the judgment rendered
by the Court of First Instance of Bataan in criminal case Nos. 3310 (G. R. No. 39708) and 3296 (G. R.
No. 39709), the dispositive part of which reads as follows:
jg c:ch an rob les.com.p h
"Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the defendant Leovigildo
David guilty of frustrated murder, without any aggravating nor mitigating circumstance and, therefore,
sentences him to twelve (12) years and one (1) day of reclusion temporal with the accessory penalties
of the law, to indemnify the offended party Jose V. Reyes in the sum of one thousand pesos, with no
subsidiary imprisonment in case of insolvency, and to pay the costs.
"The penalty of reclusion has been imposed instead of cadena following the doctrine laid down in the
case of People v. Orifon (57 Phil., 594).
"In criminal case No. 3296, for discharge of firearms with less serious physical injuries, the court finds
the defendant Leovigildo David guilty of the said crime and sentences him to two (2) years, eleven
(11) months and eleven (11) days of prision correccional with the accessory penalties of the law, and
to pay the costs. So ordered."
cral aw virt u a1 aw lib rary
In support of his appeal, the defendant-appellant assigns the following alleged errors as committed by
the trial court in its aforesaid decision, to wit:
jg c:ch anrob les.com.p h
"1. In holding the defendant-appellant guilty of the crime of frustrated murder charged in the above
entitled case No. 3310, and consequently in sentencing him to reclusion temporal, to indemnify the
offended party and to pay the costs.
"2. In holding the defendant-appellant guilty of the crime of discharge of firearm with less serious
physical injuries with which he was charged in the above entitled case No. 3296 and sentencing him,
by virtue of the same, to prision correccional, with costs.
"3. In adopting the prosecution’s theory that the defendant, with deliberate intent to kill Jose V.
Reyes, fired from behind four revolver shots at the latter.
"4. In not accepting the theory of the defense that the defendant, in firing his revolver at the offended
party, did not intend to kill the latter but he did so in defense of his father and while the offended
party was facing him.
"5. In not acquitting the defendant-appellant of the charges in the two above entitled cases."
cralaw virt u a1 aw lib rary
The two cases at bar arose from two informations filed by the provincial fiscal of Bataan in the justice
of the peace court of Dinalupihan, the one against Leovigildo David and Teodoro David for the
frustrated murder committed on the person of Jose V. Reyes at the time, place and in the manner
described in the corresponding information, and the other against said Leovigildo David for discharge
of firearm with less serious physical injuries committed on the person of German Pinili at the time,
place and in the manner described in the corresponding information. After preliminary investigations
had been duly conducted and the cases forwarded to the Court of First Instance of Bataan, the same
provincial fiscal filed the following informations:
jg c:ch an rob les.com.p h
"On or about April 18, 1931, in the municipality of Dinalupihan, Province of Bataan, Philippine Islands,
and within the jurisdiction of this Court of First Instance, the above named defendant Leovigildo David
willfully, illegally and criminally shot at German Pinili with his revolver, the bullet penetrating the
latter’s left side and lodging itself in the left scapula, as a result of which said German Pinili was under
medical treatment for about 25 days.
"That on or about April 18, 1931, in the barrio of Luacan, municipality of Dinalupihan, Province of
Bataan, Philippine Islands, and within the jurisdiction of this court, the said defendant, without any
justifiable motive whatsoever and with deliberate intent to kill Jose V. Reyes with treachery and
evident premeditation, willfully, illegally and criminally, fired four revolver shots at Jose V. Reyes, who
then had his back toward the defendant, inflicting upon him a serious bullet wound at the back above
the left clavicle, the medical treatment of which lasted about seventy-seven (77) days, having thereby
performed all the acts of execution which should have, as a consequence, produced the crime of
murder on the person of the said Jose V. Reyes, which, nevertheless, was not consummated by reason
of causes independent of the will of the said defendant. The offended party spent about one thousand
pesos for the treatment of his wound.
"The defendant is a recidivist, having been formerly convicted of the offense of less serious physical
injuries in criminal case No. 2901 of this court, by virtue of a final and executory judgment dated
December 8, 1927, the penalty of which was served by the said defendant.
"Contrary to the provisions of article 403, in connection with those of article 3, paragraph 2, of the
Penal Code, and with the aggravating circumstance of recidivism."
cralaw virt u a1 aw lib rary
From the documentary as well as the oral evidence presented at the joint trial of the two cases, the
following pertinent facts, which are necessary for the resolution of the questions raised in these
appeals, have been proven beyond reasonable doubt, to wit:
ch an rob1 es virt u al 1 aw lib rary
The herein defendant-appellant Leovigildo David is the son of Teodoro David, a democrata candidate
for municipal president of Dinalupihan, and the offended party Jose V. Reyes is the brother of Emilio
Reyes, nacionalista candidate for member of the provincial board of Bataan, both during the general
elections of 1931.
While Emilio Reyes and Teodoro David were engaged in an argument after the former had quarreled
with the aforesaid defendant-appellant, then an election inspector, because said Emilio Reyes wanted
to see the list of registered voters, Jose V. Reyes, the complainant in criminal case No. 3310 and
brother of Emilio Reyes, arrived at the scene and asked who was making trouble. Upon hearing him,
Teodoro David, in a contemptuous tone, said in Tagalog: "Phse, ichura mong lalake" (Pshaw, you are
but a shrimp) and, opening the door of the car where he was, rushed upon his interlocutor and the
two engaged in a hand-to-hand fight during which both fell to the ground. Teodoro David fell on his
right side, face downwards, Jose V. Reyes on top of him. The two constabulary soldiers present, who
had arrived in the same car with Teodoro David a few moments before, tried to prevent them from
coming to blows but due to the presence of many people who were witnessing the quarrel, were
unable to make timely intervention and succeeded in separating the combatants only after they had
already fallen to the ground, Cirilo Dullas raising Jose V. Reyes and holding him aside, while Esteban
Aninang did the same to Teodoro David and took him to his car. While Jose V. Reyes was on top of
Teodoro David, there was heard a first shot, which did not hit its mark, fired by the herein defendant
Leovigildo David, later followed by another which hit the stock of the gun carried by the constabulary
soldier Cirilo Dullas in his right hand as he held Jose V. Reyes with his left hand after separating the
latter from Teodoro David. Upon hearing the second shot and feeling the bullet hit the stock of his
gun, Dullas instinctively shoved Jose V. Reyes, whom he continued to hold by the left arm with his left
hand, causing the latter stagger and stoop to the right side, his back toward the north whence the
shots came. While Jose V. Reyes was thus stooping, a third shot was heard, which hit the upper left
hand side of Reyes’ body, whereupon he fell to the ground. Immediately thereafter, there rang a
fourth shot which hit the left axilla of the boy German Pinili, who was perched on top of the fence
witnessing the fight between Jose V. Reyes and Teodoro David. Jose V. Reyes was immediately
brought by his brother Emilio Reyes and others to Dr. Gonzalo Nuguid’s clinic in Orani, Bataan, where
he was given first aid, while the constabulary soldiers seized the revolver of the defendant Leovigildo
David and placed him under arrest. In the chamber of the revolver of the defendant Leovigildo David
were found four empty cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the
incident, immediately ordered the seizure of Jose V. Reyes’ revolver which was found in a box in the
latter’s house, while he, accompanied by his brother Emilio Reyes, was being treated by the doctor.
The first question to be decided in this appeal, in connection with the criminal case for frustrated
murder, is one of fact and consists in whether or not Jose V. Reyes had his back toward Leovigildo
David when the latter shot at him.
The witnesses for the prosecution testified in the affirmative, while those for the defense testified in
the negative stating that when the defendant testified in the negative stating that when the defendant
fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro David, the defendant’s father,
and in the act of hitting Teodoro on the forehead for the second time with the butt of his revolver. The
testimony of the constabulary soldier Esteban Aninang, who stated that the violent shove given Jose
V. Reyes by his companion Cirilo Dullas caused the said Jose V. Reyes to stagger and stoop to the
right side and at the same time to turn his back toward the defendant simultaneously with the third
shot, corroborates the testimony of the witnesses for the defense that Jose V. Reyes was facing the
defendant.
The second question of fact to be decided is whether or not Jose V. Reyes has struck Teodoro David
with the butt of his revolver, while the latter was under him, and was in the act of striking said
Teodoro David for the second time when Leovigildo David fired the shot which hit him.
On this point, the testimony of the two constabulary soldiers, who may be regarded as impartial
witnesses, is unanimous in that when Jose V. Reyes received the bullet wound, he was already
standing far from Teodoro David and beside the constabulary soldier Cirilo Dullas who had dragged
him away from said Teodoro David.
From the foregoing, it may be stated as a conclusion of fact that when Leovigildo David fired the shot
that hit Jose V. Reyes, the latter was facing him, and if the bullet hit Reyes on the back, it was due to
the fact that his position was changed upon being shoved by the constabulary solider; and that when
the said defendant Leovigildo David fired the same shot, said complainant was already far from
Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt at the final, constitute the
crime of frustrated murder for which the defendant Leovigildo David has been convicted and
sentenced?
Inasmuch as the defendant fired the shot facing the victim and in the presence of many people, he did
not employ means, methods and forms in the execution of the crime, which tend directly and specially
to insure its execution without risk to himself arising from the defense which the offended party might
make (article 10, No. 2, of the old Penal Code). The very fact that Jose V. Reyes had been shoved by
the constabulary soldier Cirilo Dullas shows that he could have evaded the shot and thereby frustrate
the defendant’s intent. Therefore, the circumstance of treachery was not present in the commission of
the crime. Did the defendant Leovigildo David had the intention of killing Jose V. Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself from criminal liability
(article 8, No. 5, of the old Penal Code). It has been shown that when the said defendant fired at Jose
V. Reyes, the aggression had already ceased and, therefore, the motive for defense; and in firing at
him victim, the defendant’s intention could not have been only to repel the aggression against his
father but also to kill Jose V. Reyes. Therefore, the intention of the defendant Leovigildo David to kill
Jose V. Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo David, having intended to
kill Jose V. Reyes, had performed all the acts of execution which should have produced the latter’s
death, but did not produce it by reason of causes independent of his will (article 3 of the old Penal
Code).
The doctors, who testified as experts on whether or not the wound received by Jose V. Reyes was
necessarily mortal, are not unanimous.
Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only make approximate
statements, not accurate ones, because in order to determine the seriousness of a wound a doctor can
with certainty state the seriousness of a wound for it is determined only during the autopsy. . . ." (T.
s. n., pp. 144, 145.) "On the basis of general principles, the wound was not mortal. The general
principles I am referring to relate to the normal positions of the organs and tissues." (T. s. n., p. 151.)
"Judging from the position of the scars, I am of the opinion that the left lung was affected but the
affected part is near the border." "It would be perforated. The effect should be internal hemorrhage
but the flow of the blood would be mortal because the blood vessels in that region are small." "All the
wounds including those caused at the base of the lungs, are not mortal." (T. s. n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical because he has been nothing
but the scars, but nevertheless he is of the opinion that if the lung had been perforated, it would
result in an internal hemorrhage and the flow of the blood would be mortal because the blood vessels
of that part are small.
Dr. Afable, who may be said to have saved the offended party’s life, testified as follows: "Taking all
the above state facts into consideration, I arrived at the conclusion that the blood found in the lung of
Mr. Reyes had its origin in the injury or wound in the upper left part of the chest." (T. s. N., p. 6.) "I
am of the opinion that had not the fluid been drained from the patient’s lung, it could have caused his
death, taking into consideration that condition in which he was then found." (T. s. n., p. 8.) Answering
a question regarding the accumulation of the fluid in the pleural region due to the congestion of the
lung, he said: "That is one of the causes of death in this case, and a continuous internal hemorrhage
might cause death as well." (T. s. n., p. 16.)
From all the above expert testimony, it may be inferred that had it not been for the timely and
adequate medical intervention, the offended party Jose V. Reyes would have succumbed from the
wound in his lung. A wound that may, by itself alone, produce a similar consequence, is mortal.
The defendant-appellant Leovigildo David, in firing his revolver and hitting Jose V. Reyes on the upper
left hand part of his body, piercing it from side to side and perforating the lung, then performed all the
acts of execution which should have produced the latter’s death but did not produce it by reason of
the timely and adequate intervention of medical science, which was completely independent of his will.
The facts proven at the trial as committed by the defendant- appellant Leovigildo David constitute the
crime of frustrated homicide, defined and penalized in article 404 of the old Penal Code which was in
force at the time of the commission of the crime. The penalty prescribed by law for the said crime, if
consummated, is reclusion temporal in its full extent. Inasmuch the crime with which Leovigildo David
is charged herein is merely frustrated, the said penalty should be one degree lower, that is, prision
mayor in its full extend, the duration of which is from six years and one day to twelve years. In order
to determine the penalty, the presence of the mitigating circumstance of immediate vindication of a
grave offense committed against an ascendant (article 9, No. 5, of the old Penal Code) should be
taken into consideration, without any aggravating circumstance to compensate the same, for which
reason the said penalty should be imposed in its minimum period, that is, from six years and one day
to eight years of prision mayor (article 81, rule 2, of the old Penal Code).
As to the offended party German Pinili, the evidence shows beyond reasonable doubt that one of the
shots fired by the defendant Leovigildo David hit him on the left axilla, the treatment of the wound
having lasted about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not aimed at him, however, it
cannot be considered accidental because, it having been voluntarily aimed at Jose V. Reyes, the
defendant-appellant Leovigildo David is liable for the consequences of his act, in accordance with the
provisions of article 1, paragraph 3, of the old Penal Code, which provides that "any person voluntarily
committing a felony (delito) or misdemeanor (falta) shall incur criminal liability, although the wrongful
act done be different from that which he intended."
crala w virt u a1 aw lib rary
Although the crime, which the defendant Leovigildo David had intended to commit against Jose V.
Reyes, was homicide, the crime committed by him against the boy German Pinili is discharge of
firearms with less serious physical injuries, and the penalty which should be imposed upon him is that
which corresponds to this complex crime, in its maximum period (article 64, paragraph 2, of the old
Penal Code). However, inasmuch as he is charged only with the said complex crime, the only penalty
that may be imposed upon him is that corresponding to this offense of discharge of firearms with less
serious physical injuries, defined and penalized in articles 408, in connection with article 418 of the old
Penal Code, with prision correccional in its minimum and medium periods, that is, from six months
and one day to four years and two months, which should be imposed in its maximum period, that is,
from two years, eleven months and eleven days, to four years and two months, in accordance with the
rule established in article 89, paragraph 2, of the same Code. There being no modifying circumstance
to be taken into consideration, the said penalty should be imposed in its medium period, that is, from
three years, four months and eight days to three years, nine months and three days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence Law, is applicable to the
defendant-appellant, and consequently the maximum of the penalty, which he should suffer in case
No. 3310, should be the maximum of that what should be imposed upon him under the law, that is,
eight years of prision mayor; and the minimum, a penalty embraced within that next lower in degree
to that prescribed by law for the crime of frustrated homicide, which is prision correccional in its full
extent, the duration of which is from six months and one day to six years, that is, one year and one
day of prision correccional. Therefore, the total extent of the penalty to be imposed upon the
defendant for the crime of frustrated homicide should be from one year and one day to eight years.
In criminal case No. 3296, for the complex crime of discharge of firearms with less serious physical
injuries, the maximum of the penalty, which should be imposed upon the defendant, is the maximum
period of the penalty prescribed by the law, that is, three years, nine months and three days of prision
correccional, and the minimum, four months and one day of arresto mayor, a penalty embraced within
that next lower in degree which is arresto mayor in its medium and maximum periods, the duration of
which is from four months and one day to six months, and consequently the full extent of the penalty
which should be imposed upon him is from four months and one day to three years, nine months and
three days.
The total amount of the expenses incurred by the offended party for medical assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the defendant Leovigildo David is
declared guilty of the crime of frustrated homicide in criminal case No. 3310 of the Court of First
Instance of Bataan (G. R. No. 39709) and sentenced to one (1) year and one (1) day of prision
correccional to eight (8) years of prision mayor and to indemnify the offended party Jose V. Reyes for
damages in the sum of P1,030.79; and in criminal case No. 3296 of the said Court of First Instance of
Bataan (G. R. No. 39708), he is declared guilty of the crime of discharge of firearms with less serious
physical injuries, and sentenced to four months and one day to three years, nine months and three
years, nine months and three days, with the costs of both instances in the two cases against the
appellant. So ordered. Malcolm, Abad Santos, Butte, and Diaz, JJ., concur.
[G.R. No. L-10851. August 28, 1959.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SERGIO DAGATAN, ET
AL., Accused-Appellants.
Assistant Solicitor General José G. Bautista and Solicitor Troadio T. Quiazon,
Jr. for Appellee.
Filemon Sotto and Amadeo D. Seno for appellants.
SYLLABUS
1. EVIDENCE; ALIBI; WHEN DEFENSE CAN PROSPER; CASE AT BAR. — In order that
the defense of alibi, which is easily and conveniently manufactured, could prosper, it
must be so convincing as to preclude any doubt that the accused could not have been
physically present at the place of the crime or its immediate vicinity at the time of its
commission. In the case at bar, while the appellants loosely told the court that they
were in Carmen, Cebu, when the crime was being committed, they however, failed to
present credible and tangible evidence that it was physically impossible for them to be
at carmen at that time. Ont eh contrary, they themselves furnished evidence that
Carmen is only 40 kilometers between the two places.
2. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; VINDICATION OF A GRAVE
OFFENSE AND OBFUSCATION. — The lower court considered in appellant’s favor two
mitigating circumstances, namely, that of having committed the crime in the immediate
vindication of a grave offense to their sister, and that they acted upon an impulse so
powerful as naturally to have produced passion or obfuscation. But these two
circumstances cannot be considered not only because the elopement of appellant’s
sister took place long before the commission of the crime, but also because the
deceased was not the one who eloped with and abandoned her. Furthermore, and as
correctly pointed out by the Solicitor-General, these two mitigating circumstances
cannot be counted separately and independently (People v. Yaon, 43 Off. Gaz., 4142).
DECISION
ENDENCIA, J.:
This case was certified to us by the Court of Appeals upon the finding set in its
Resolution of April 16, 1956, reciting the background of the case as follows:
jg c:ch anrob les.com.p h
"Julio Dagatan, Sergio Dagatan and Saturnino Dagatan were charged for murder before
the Court of First Instance of Cebu in an information filed on October 6, 1937. That
case after hearing was submitted for decision, but the trial judge failed to dispose of the
same, and when the last war broke out, all the records thereof, except the docket
entry, were destroyed.
"On February 22, 1949, the Provincial Fiscal filed a motion before the Court of First
Instance of Cebu, praying that the original records of the case be reconstituted; that
defense counsel Filemon Sotto be ordered to produce all copies of pertinent papers, if
any, in his possession regarding the case; that if defense counsel had no more copies of
said papers, to allow the Provincial Fiscal to file a new information against Sergio
Dagatan and Saturnino Dagatan, because Julio Dagatan had died during the last war;
and that the evidence be taken anew.
"As the defense counsel failed to appear and produce the copies of the pertinent papers
of the case, a new information was filed on August 8, 1949, in the Court of First
Instance of Cebu, charging said Sergio and Saturnino, surnamed Dagatan, with the
crime of murder. The defense then filed a motion for dismissal of the case on the
alleged ground of jeopardy, which was granted by the court, but the matter was taken
to the Supreme Court by appeal of the Fiscal and the Highest Tribunal of the land
reversed the order appealed from and remanded the case to the lower court for further
proceedings. Then a hearing was held and after submission of the evidence by both the
prosecution and the defense, the Court rendered judgment on April 12, 1954, finding
both defendants guilty as charged in the information and sentencing each and every
one of them to from 6 years and 1 day of prision mayor to 17 years, 4 months and 1
day of reclusion temporal, to indemnify the family of the deceased, Victorio Ceniza,
jointly and severally in the sum of P3,000.00, and to pay the costs. From this verdict
defendants appealed to this Court.
"It is to be noted in this connection that the circumstances attending the commission of
the offense of murder that may be taken into consideration for appreciation in the case
at bar, are the following: the qualifying circumstance of evident premeditation, which
was used to raise the crime from homicide to murder; the aggravating circumstance of
taking advantage of superior strength (Art. 14, No. 5, RPC) and nighttime (Art. 4, No.
6, RPC), and the mitigating circumstances, appreciated by the lower court, to wit: that
the act was committed in the proximate vindication of a grave offense to the one
committing the felony, his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within the same degrees (Art. 13,
No. 5, RPC); and that of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation (Art. 13, No. 6, RPC).
"It appears from the record that the motive of the crime was to vindicate an offense
against the honor of the offenders and their sister Lucia Dagatan, because the latter
eloped with one Eleuterio Yara who later on abandoned her, and it is claimed that the
deceased, a very good friend of said Yara, assisted him in the elopement. It must be
stated at this juncture that the deceased was not the one who dishonored their sister
and, anyway, the crime at bar was committed quite a long time after the elopement
and abandonment of appellants’ sister by his [her] seducer, and even assuming that
this circumstance could be appreciated in this case, yet, as stated by the Solicitor
General, it cannot be counted separately from the other circumstance of passion or
obfuscation (People v. Yaon, 43 Off. Gaz., 4142). Moreover, it may be argued against
the appreciation of passion and obfuscation, that the motive of the crime herein
prosecuted took place quite a long time before its commission, aside from the fact that
we entertain serious doubts as to its compatibility with the qualifying circumstances of
evident premeditation.
"Because of the foregoing considerations, we are of the opinion and so hold that the
penalty that shall be imposed upon each of the defendants in case of conviction, is one
not less than reclusion perpetua, a penalty which, according to the Judiciary Act of
1948, falls beyond the jurisdiction of this Court to impose."
cralaw virt u a1 aw lib rary
The testimony of the witnesses for the prosecution established the following facts: On
June 11, 1937, at about eleven o’clock in the evening, after Victorio Ceniza and
Leodegario Into had made their purchases in the market of Moacboac, municipality of
Carmen, Cebu, these two young men walked side by side along the national highway
towards their home at Carmen. When they were approaching the Dawis bridge in
Carmen, Into noticed two men sitting on the railing of the bridge which he recognized
as Sergio Dagatan and Saturnino Dagatan, brothers. Suddenly Sergio attacked Victorio
with a wooden cane about 4 1/2 feet long and 1 1/4 inches in diameter, hitting him on
the shoulder, and Saturnino helped his brother in beating up Victorio, using a handy
leather-covered rod containing a hard metal at its end, locally known as "caborrata."
The victim fell right then and there, unconscious. The Dagatan brothers placed the limp
body of Victorio in the middle of the road to make it appear that it was hit by an
automobile, but Sergio, on second thought, said "Let us throw him out to the sea in
order that they would believe he died by drowning," so Sergio threw the body into the
water. When Leodegario Into saw that his companion was being beaten up by the two
brothers, he started to run, but he was held by Julio Dagatan, now deceased, father of
Sergio and Saturnino, who appeared at the scene. Sergio wanted to kill Into, but the
father dissuaded his son saying, "Don’t kill him because he is my relative and he has no
fault at all." Having seen what had happened, Into was taken to the house of the
Dagatans and were seen walking together by Enrique Puno, now deceased. On the way,
Julio told Into that they had to kill Victorio Ceniza because the latter had besmirched
the reputation of the Dagatan family for having been instrumental in the elopement of
his daughter Lucila Dagatan with Eleuterio Yara, Ceniza’s first cousin, who later
abandoned her and returned to Leyte. Once in the house of the Dagatans, Sergio again
wanted to kill Into, but again Julio said, "Let us not kill him; we will just caution him on
pain of life that if this happening would come to the knowledge of the Government
authorities, we are going to kill him." Into passed the night in the house of the
Dagatans, and on the following morning he was allowed to go home after giving him
some fresh fish to take to his father so that he would not be scolded. Before Into
boarded the truck towards Carmen, he was again given a parting warning not to tell the
authorities about the incident. The truck had to stop by the Dawis bridge as there were
many people curiously looking at the floating body in the creek near the bridge, but
Into did not say a word but merely looked on, remembering the warning of the
Dagatans. Neither did he say anything to his parents about the incident when he
reached home.
On that same morning, June 12th, Domingo F. Buot, then chief of police of Carmen,
was notified by one Florentina Laping, now deceased, that there was a body floating in
the creek. He hurried to the place and saw the body of Victorio Ceniza whom he knew
personally. There was already a crowd of people viewing the floating corpse, among
whom was Isabelo Neis who took pictures thereof (Exhs. D and E). The chief of police
then notified the justice of the peace and the president of the sanitary division, Dr.
Mercado, and the body was removed to the house of the mother of the deceased.
Autopsy was made by Dr. Mercado, between 9:00 and 10:00 that morning, who found
that —
(a) The immediate cause of death was drowning - the lungs and stomach had plenty of
water;
(b) Contusions on different parts of the body caused before the body was thrown into
the water;
(c) The humerous bone of the left arm was broken, caused by a hard and blunt
instrument like a cane or "caborrata;"
(d) The victim was still alive, although unconscious, when thrown into the water.
Police investigation revealed that the last person with whom the deceased was seen
before his death was Leodegario Into. When taken in for questioning, Into told
everything he knew about the crime, which led to the prosecution of herein appellants.
In the course of his investigation, the chief of police found the "caborrata," the middle
portion of which was broken, hanging on a post in the house of the Dagatans.
Appellants’ defense is alibi. They contend that on the night in question they were not in
Dawis bridge in Carmen, but in the City of Cebu, which is about 40 kilometers from the
scene of the crime.
Testifying in his behalf, Sergio Dagatan told the court that he has been a driver of the A
& B Taxicab of the city of Cebu since 1924; that at any time on June 11, 1937, he did
not go to Carmen because from about 8:00 o’clock in the morning of June 10th up to
about the same hour of the following morning, or a 24-hour stretch, he was on duty
driving the A & B taxi within the city of Cebu; that the practice of the company was to
assign two drivers to a given car, who take turns in driving it for 24 straight hours; that
his partner assigned to drive the same car was Roberto Remolisan; that at about past
8:00 o’clock in the morning of June 11th, after turning over his receipts of the previous
day to Genaro Cabahug of the A & B Taxi, he took his breakfast in a nearby restaurant
and then went to sleep in the upper part of the garage where drivers sleep or rest; that
he did not return to his home at the barrio of Pag-utlan, municipality of Danao, which is
about 33 or 34 kilometers from Cebu city, because he had to wait for his wife and his
brother Epifanio Dagatan who was taking a boat that evening from Cebu to go to
Manila; that as a matter of fact he and his wife conducted his brother Epifanio to the
wharf to see him off; that he did not go out of the city of Cebu during the whole day of
June 11th, but slept in the company garage with his wife and small child. He also stated
that he did not know the deceased Victorio Ceniza nor witness Leodegario Into, but that
he knew their names only when this case was first heard before Judge De la Rama.
On cross-examination he admitted that he has a house in the barrio of Pag-utlan,
municipality of Danao, and that he lives with his family there; that Danao is about 34
kilometers from Cebu and about 7 kilometers from Carmen; that he was off-duty on the
11th, and although he was free to go home to Danao, he preferred to stay and sleep in
the company garage in Cebu because, at any rate, he would again be on duty for 24
hours in the following morning, June 12th; that he used to go home to Danao when offduty unless he had an important engagement in Cebu, like the occasion when his
brother had to leave for Manila.
Saturnino Dagatan, testifying in his behalf, stated that he was also a driver of the A & B
Taxi in Cebu; that on June 11, 1937, he was driving a taxi within Cebu and did not go
outside the city; that he has not gone to Carmen the evening of June 11th; that
everytime he drove his taxi, he was given a ration of 10 liters of gasoline which, if he
went out of the city, had to be replaced and permission had to be sought from the
company; that from Cebu to Carmen the car would consume about 10 liters of gasoline;
and that he could not have been to the place of the crime because he was in Cebu from
six to twelve o’clock that evening.
On cross-examination, however, he admitted that there were many buses, trucks and
jeepneys plying between Cebu and Carmen; that if he were to drive himself, it would
take him only forty minutes to get to Carmen from Cebu; that Exhibits 2 and 2-A are
samples of the company from wherein the trips and taxi fares are recorded; that Exhibit
2 is kept by the company, while Exhibit 2-A is retained by the driver; that the records
of the company were presented in court at the first hearing and were seen by Judge De
la Rama.
To corroborate them, appellants presented Genaro Cabahug, the person in charge of
the company at the time, who testified that as a general practice of the taxicab
company, drivers were only allowed to drive within the city of Cebu; that if they had to
go beyond the city limits they had to notify the office, and that if they needed more
gasoline for the trip, they had to ask for additional ration; that the company had a
place in the upper part of the garage wherein drivers who do not live in the City of Cebu
rest and wait for their turns; that on June 11th, 1937, he remembers that Sergio
Dagatan was in the resting place in the garage, and that Saturnino was on duty until
the latter was relieved the following morning; that Sergio was not driving that evening
because it was Saturnino who was on duty, and that these two were driving the same
car, so that if one was driving, the other was off-duty.
On cross-examination, he told the court that the company had 36 drivers for the 18
cars; that he cannot recall the exact whereabouts of each and every one of the 36
drivers on that particular day, but that he remembers particularly those of Sergio and
Saturnino Dagatan because of the incident that happened which is of importance to his
(witness) family, the deceased being a distant relative of his; that he cannot remember
even the names of the 16 other drivers on duty on the day in question except herein
appellants; neither could he remember the companions of Sergio while the latter was
resting in the garage, but that he only presumed he had companions because the
practice was that drivers living outside the city take their rest in that place and wait for
their turns; that Sergio is from the municipality of Danao and had his family there; that
he does not know where Saturnino was at 6:00 o’clock that evening and does not
remember where he was at 10:00 o’clock on the same night, although he maintains
that Saturnino was within the city of Cebu because every time a driver goes beyond the
city limits, he has to notify the office for advice, and that if their gasoline is not enough
for the trip, he has to ask for additional gasoline; neither does he remember where
Saturnino was at 12:00 o’clock that midnight, but that he presumed he was within the
city in accordance with company record which had been presented at the former trial,
although it was possible that even if it is recorded in the company books that Saturnino
was driving within the city, he could have left the taxi in some corner under the pretext
that he is within the city, and could have taken a bus out of the city.
Appellants’ alibi does not merit serious consideration by the Court. Time and again we
have held that in order that this kind of defense, which is easily and conveniently
manufactured, could prosper, it must be so convincing as to preclude any doubt that
the accused could not have been physically present at the place of the crime or its
immediate vicinity at the time of its commission. In this particular case, appellants
loosely told the court that at around eleven o’clock on the night of June 11, 1937, they
were not in Carmen when the crime was being committed because they were in Cebu.
They, however, failed to present credible and tangible evidence that it was physically
impossible for them to be at Carmen at that time. On the contrary, they themselves
furnished evidence that Carmen is only about 40 kilometers from Cebu city, with
abundant means of transportation such as buses, jeepneys and trucks plying between
the two places, which would at most take an hour to go from one place to the other,
and according to Saturnino himself, it would only take him 40 minutes if he were to
drive the car himself. With respect to Sergio’s assertion that he slept at the company
garage with his wife and child on the night in question, his word alone, devoid of
corroboration, is not enough to justify its veracity and credibility, for he admitted that
when he was not on duty, he used to go home to his family at the barrio of Pag-utlan,
Danao, which is about 33 kilometers from Cebu and some 7 kilometers from the scene
of the crime, unless he had an important engagement to attend to in Cebu. Assuming
that he really slept in the garage in Cebu, it was not impossible for him to go to Carmen
with his brother Saturnino at around ten o’clock. Anent Saturnino’s testimony that he
was on duty from 8:00 o’clock in the morning of June 11th up to the following morning,
driving his taxi within the city of Cebu, his defense bolsters the contention of the
prosecution that he participated in the killing of the deceased rather than helps his
defense, for he could have driven his taxi, with his brother Sergio, to Carmen in just 40
minutes to commit the crime, and then return to Cebu soon thereafter, without Genaro
Cabahug knowing his whereabouts, for, according to Cabahug himself, there was no
way of tracing the movement of each and every driver on duty despite the standing
practice that they must notify the office whenever they made trips outside the city, but
that it was possible for such driver, particularly for Saturnino, to leave his taxi in a
certain corner in Cebu and take another transportation to Carmen without the company
knowing about it.
On the other hand, Leodegario Into’s positive testimony that he saw the Dagatan
brothers beat up the deceased with a cane and "caborrata" at the Dawis bridge and
throw him into the water is corroborated by the pictures Exhibits D and E and by the
unrefuted testimony of the chief of police who stated that he found the "caborrata"
broken at the middle, hanging in a post of the house of the Dagatans. There is no room
for doubting, therefore, that appellants committed the crime as charged.
With respect to the defense of double jeopardy invoked by appellants, suffice it to say
that the same has already been passed upon by us when this case was first brought
before this Court on this point (G. R. L-4396, October 30, 1951), * wherein we held
that jeopardy had not set by reason of the fact that the failure of Judge De la Rama to
decide the case after its submission for decision, did not terminate the case either by
dismissal or by conviction.
The lower court in sentencing appellants to an indeterminate sentence of from 6 years
and 1 day of prision mayor to 17 years, 4 months and 1 day of reclusion temporal,
considered in their favor two mitigating circumstances, namely, that of having
committed the crime in the immediate vindication of a grave offense to their sister
Lucila Dagatan (par. 5, Art. 13, RPC), and that they acted upon an impulse so powerful
as naturally to have produced passion or obfuscation (par. 6, Art. 413, RPC). But these
two circumstances cannot be considered not only because the elopement of Lucila
Dagatan with Eleuterio Yara and her abandonment by the latter took place long before
the commission of the crime, but also because the deceased was not the one who
eloped with and abandoned her. Furthermore, and as correctly pointed out by the
Solicitor-General, these two mitigating circumstances cannot be counted separately and
independently (People v. Yaon, 43 Off. Gaz., 4142). On the other hand, we find duly
proven the aggravating circumstances of nighttime, superior strength and treachery
which qualify the crime as murder, and following Art. 248, in relation to Art. 64 of the
Revised Penal Code, the penalty that should be imposed upon appellants is reclusion
perpetua.
Wherefore, with the modification of the penalty imposed, the judgment appealed from
is affirmed in all other respects.