C.A. No.

384 February 21, 1946 On September 13, 1942, while Avelina was feeding a dog under her house, Amado
approached her and spoke to her of his love, which she flatly refused, and he
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, thereupon suddenly embraced and kissed her and touched her breasts, on account of
vs. which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. and kicked him. She kept the matter to herself, until the following morning when she
AVELINA JAURIGUE, appellant. informed her mother about it. Since then, she armed herself with a long fan knife,
whenever she went out, evidently for self-protection.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee.. On September 15, 1942, about midnight, Amado climbed up the house of defendant
and appellant, and surreptitiously entered the room where she was sleeping. He felt
her forehead, evidently with the intention of abusing her. She immediately screamed
DE JOYA, J.: for help, which awakened her parents and brought them to her side. Amado came out
from where he had hidden under a bed in Avelina's room and kissed the hand of
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made
of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but an attempt to beat Amado, her husband prevented her from doing so, stating that
defendant Avelina Jaurigue was found guilty of homicide and sentenced to an Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the
indeterminate penalty ranging from seven years, four months and one day of prision barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning.
mayor to thirteen years, nine months and eleven days of reclusion temporal, with the Amado's parents came to the house of Nicolas Jaurigue and apologized for the
accessory penalties provided by law, to indemnify the heirs of the deceased, Amando misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end
Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited the conversation, as he might not be able to control himself.
with one-half of the period of preventive imprisonment suffered by her.
In the morning of September 20, 1942, Avelina received information that Amado had
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court been falsely boasting in the neighborhood of having taken liberties with her person
of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, and that she had even asked him to elope with her and that if he should not marry
claimed — her, she would take poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
(1) That the lower court erred in not holding that said appellant had acted in
the legitimate defense of her honor and that she should be completely At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas
absolved of all criminal responsibility; Jaurigue went to the chapel of the Seventh Day Adventists of which he was the
treasurer, in their barrio, just across the provincial road from his house, to attend
(2) That the lower court erred in not finding in her favor the additional religious services, and sat on the front bench facing the altar with the other officials of
mitigating circumstances that (a) she did not have the intention to commit so the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was
grave a wrong as that actually committed, and that (b) she voluntarily quite bright as there were electric lights.
surrendered to the agents of the authorities; and
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival
(3) That the trial court erred in holding that the commission of the alleged of her father, also for the purpose of attending religious services, and sat on the
offense was attended by the aggravating circumstance of having been bench next to the last one nearest the door. Amado Capina was seated on the other
committed in a sacred place. side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina
went to the bench on which Avelina was sitting and sat by her right side, and, without
saying a word, Amado, with the greatest of impudence, placed his hand on the upper
The evidence adduced by the parties, at the trial in the court below, has sufficiently part of her right thigh. On observing this highly improper and offensive conduct of
established the following facts: Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled
out with her right hand the fan knife marked Exhibit B, which she had in a pocket of
That both the defendant and appellant Avelina Jaurigue and the deceased Amado her dress, with the intention of punishing Amado's offending hand. Amado seized
Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed
for sometime prior to the stabbing of the deceased by defendant and appellant, in the Amado once at the base of the left side of the neck, inflicting upon him a wound about
evening of September 20, 1942, the former had been courting the latter in vain, and 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated
that on one occasion, about one month before that fatal night, Amado Capina on one of the front benches, saw Amado bleeding and staggering towards the altar,
snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it and upon seeing his daughter still holding the bloody knife, he approached her and
was being washed by her cousin, Josefa Tapay. asked: "Why did you do that," and answering him Avelina said: "Father, I could not
endure anymore." Amado Capina died from the wound a few minutes later. Barrio firmly from behind, without warning and without revealing his identity, and, in the
lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina struggle that followed, touched her private parts, and that she was unable to free
and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po herself by means of her strength alone, she was considered justified in making use of
ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I a pocket knife in repelling what she believed to be an attack upon her honor, and
place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio which ended in his death, since she had no other means of defending herself, and
lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).
home immediately, to close their doors and windows and not to admit anybody into
the house, unless accompanied by him. That father and daughter went home and And a woman, in defense of her honor, was perfectly justified in inflicting wounds on
locked themselves up, following instructions of the barrio lieutenant, and waited for her assailant with a bolo which she happened to be carrying at the time, even though
the arrival of the municipal authorities; and when three policemen arrived in their her cry for assistance might have been heard by people nearby, when the deceased
house, at about 10 o'clock that night, and questioned them about the incident, tried to assault her in a dark and isolated place, while she was going from her house
defendant and appellant immediately surrendered the knife marked as Exhibit B, and to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana
informed said policemen briefly of what had actually happened in the chapel and of and Ramos, 22 Phil., 249).
the previous acts and conduct of the deceased, as already stated above, and went
with said policemen to the police headquarters, where her written statements were
taken, and which were presented as a part of the evidence for the prosecution. In the case, however, in which a sleeping woman was awakened at night by someone
touching her arm, and, believing that some person was attempting to abuse her, she
asked who the intruder was and receiving no reply, attacked and killed the said
The high conception of womanhood that our people possess, however humble they person with a pocket knife, it was held that, notwithstanding the woman's belief in the
may be, is universal. It has been entertained and has existed in all civilized supposed attempt, it was not sufficient provocation or aggression to justify her
communities. completely in using deadly weapon. Although she actually believed it to be the
beginning of an attempt against her, she was not completely warranted in making
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a such a deadly assault, as the injured person, who turned out to be her own brother-in-
virtuous woman represents the only true nobility. And they are the future wives and law returning home with his wife, did not do any other act which could be considered
mothers of the land. Such are the reasons why, in the defense of their honor, when as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..
brutally attacked, women are permitted to make use of all reasonable means
available within their reach, under the circumstances. Criminologists and courts of In the instant case, if defendant and appellant had killed Amado Capina, when the
justice have entertained and upheld this view. latter climbed up her house late at night on September 15, 1942, and surreptitiously
entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his
On the other hand, it is the duty of every man to protect and show loyalty to previous acts and conduct, instead of merely shouting for help, she could have been
womanhood, as in the days of chivalry. There is a country where women freely go out perfectly justified in killing him, as shown by the authorities cited above..
unescorted and, like the beautiful roses in their public gardens, they always receive
the protection of all. That country is Switzerland. According to the facts established by the evidence and found by the learned trial court
in this case, when the deceased sat by the side of defendant and appellant on the
In the language of Viada, aside from the right to life on which rests the legitimate same bench, near the door of the barrio chapel and placed his hand on the upper
defense of our own person, we have the right to property acquired by us, and the right portion of her right thigh, without her consent, the said chapel was lighted with electric
to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th lights, and there were already several people, about ten of them, inside the chapel,
ed., pp. 172, 173). including her own father and the barrio lieutenant and other dignitaries of the
organization; and under the circumstances, there was and there could be no
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her possibility of her being raped. And when she gave Amado Capina a thrust at the base
in a state of legitimate defense, inasmuch as a woman's honor cannot but be of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep,
esteemed as a right as precious, if not more, than her very existence; and it is evident causing his death a few moments later, the means employed by her in the defense of
that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded her honor was evidently excessive; and under the facts and circumstances of the
exemption from criminal liability, since such killing cannot be considered a crime from case, she cannot be legally declared completely exempt from criminal liability..
the moment it became the only means left for her to protect her honor from so great
an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and But the fact that defendant and appellant immediately and voluntarily and
Alcansare, 62 Phil., 504). . unconditionally surrendered to the barrio lieutenant in said chapel, admitting having
stabbed the deceased, immediately after the incident, and agreed to go to her house
As long as there is actual danger of being raped, a woman is justified in killing her shortly thereafter and to remain there subject to the order of the said barrio lieutenant,
aggressor, in the defense of her honor. Thus, where the deceased grabbed the an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further
defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her fact that she had acted in the immediate vindication of a grave offense committed
against her a few moments before, and upon such provocation as to produce passion Defendant and appellant should also be given the benefit of 1/2 of her preventive
and obfuscation, or temporary loss of reason and self-control, should be considered imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..
as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased
but merely wanted to punish his offending hand with her knife, as shown by the fact
that she inflicted upon him only one single wound. And this is another mitigating
circumstance which should be considered in her favor (United States vs. Brobst, 14
Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was
committed by the defendant and appellant, with the aggravating circumstance that the
killing was done in a place dedicated to religious worship, cannot be legally sustained;
as there is no evidence to show that the defendant and appellant had murder in her
heart when she entered the chapel that fatal night. Avelina is not a criminal by nature.
She happened to kill under the greatest provocation. She is a God-fearing young
woman, typical of our country girls, who still possess the consolation of religious hope
in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore,
to be well taken; and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the
deceased Amado Capina, in the manner and form and under the circumstances
above indicated, the defendant and appellant committed the crime of homicide, with
no aggravating circumstance whatsoever, but with at least three mitigating
circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is entitled
to a reduction by one or two degrees in the penalty to be imposed upon her. And
considering the circumstances of the instant case, the defendant and appellant
should be accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if
it should be reduced by two degrees, the penalty to be imposed in the instant case is
that of prision correccional; and pursuant to the provisions of section 1 of Act No.
4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein
defendant and appellant should be sentenced to an indeterminate penalty ranging
from arresto mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty
ranging from two months and one day of arresto mayor, as minimum, to two years,
four months, and one day of prision correccional, as maximum, with the accessory
penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in
the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to
exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs.
G.R. Nos. L-33466-67 April 20, 1983 South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II).
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, At that time, appellant was taking his rest, but when he heard that
vs. the walls of his house were being chiselled, he arose and there he
MAMERTO NARVAEZ, defendant-appellant. saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega of
his ricemill. So he addressed the group, saying 'Pare, if possible
The Solicitor General for plaintiff-appellee. you stop destroying my house and if possible we will talk it over
what is good,' addressing the deceased Rubia, who is appellant's
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant. compadre. The deceased Fleischer, however, answered: 'No,
gademit, proceed, go ahead.' Appellant apparently lost his
MAKASIAR, J.: equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there
is a gun on the jeep, appellant fired at Rubia, likewise hitting him
This is an appeal from the decision of the Court of First Instance of South Cotabato, (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia
Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
resulted in the conviction of the accused in a decision rendered on September 8, Appellant's Brief, p.161, rec.).
1970, with the following pronouncement:
It appears, however, that this incident is intertwined with the long drawn out legal
Thus, we have a crime of MURDER qualified by treachery with the battle between the Fleischer and Co., Inc. of which deceased Fleischer was the
aggravating circumstance of evident premeditation offset by the secretary-treasurer and deceased Rubia the assistant manager, on the one hand,
mitigating circumstance of voluntary surrender. The proper penalty and the land settlers of Cotabato, among whom was appellant.
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and
64, Revised Penal Code).
From the available records of the related cases which had been brought to the Court
of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R.
Accordingly, finding Mamerto Narvaez guilty beyond reasonable No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:
doubt of the crime of murder,
Appellant was among those persons from northern and central Luzon who went to
(a) In Criminal Case No. 1815, he is hereby sentenced to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate
RECLUSION PERPETUA, to indemnify the heirs of the deceased municipality of South Cotabato. He established his residence therein, built his house,
Davis Q. Fleischer in the sum of P 12,000.00 as compensatory cultivated the area, and was among those who petitioned then President Manuel L.
damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's Quezon to order the subdivision of the defunct Celebes Plantation and nearby
fees, the offended party having been represented by a private Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.
prosecutor, and to pay the costs;
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
(b) In Criminal Case No. 1816, he is hereby sentenced to American landowner in Negros Oriental, filed sales application No. 21983 on June 3,
RECLUSION PERPETUA, to indemnify the heirs of the deceased 1937 over the same area formerly leased and later abandoned by Celebes Plantation
Flaviano Rubia in the sum of P12,000.00 as compensatory Company, covering 1,017.2234 hectares.
damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private
prosecutor, and to pay the costs (p. 48, rec.). Meanwhile, the subdivision was ordered and a public land surveyor did the actual
survey in 1941 but the survey report was not submitted until 1946 because of the
outbreak of the second world war. According to the survey, only 300 hectares
The facts are summarized in the People's brief, as follows: Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).
Jesus Verano and Cesar Ibanez together with the two deceased
Davis Fleischer and Flaviano Rubia, were fencing the land of The 300 hectares set aside for the sales application of Fleischer and Company was
George Fleischer, father of deceased Davis Fleischer. The place declared open for disposition, appraised and advertised for public auction. At the
was in the boundary of the highway and the hacienda owned by public auction held in Manila on August 14, 1948, Fleischer and Company was the
George Fleischer. This is located in the municipality of Maitum, only bidder for P6,000.00. But because of protests from the settlers the corresponding
award in its favor was held in abeyance, while an investigator was sent by the In view of the obvious fact that you do not comply with the
Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came agreement, I have no alternative but to terminate our agreement on
back after ten days with an amicable settlement signed by the representative of the this date.
settlers. This amicable settlement was later repudiated by the settlers, but the
Director of Lands, acting upon the report of Atty. Gozon, approved the same and I am giving you six months to remove your house, ricemill, bodega,
ordered the formal award of the land in question to Fleischer and Company. The and water pitcher pumps from the land of Fleischers & Co., Inc.
settlers appealed to the Secretary of Agriculture and Natural Resources, who, This six- month period shall expire on December 31, 1966.
however, affirmed the decision in favor of the company.
In the event the above constructions have not been removed within
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of the six- month period, the company shall cause their immediate
Cotabato which then consisted only of one sala, for the purpose of annulling the order demolition (Exhibit 10, p. 2, supra).
of the Secretary of Agriculture and Natural Resources which affirmed the order of the
Director of Lands awarding the contested land to the company. The settlers as
plaintiffs, lost that case in view of the amicable settlement which they had repudiated On August 21, 1968, both deceased, together with their laborers, commenced fencing
as resulting from threats and intimidation, deceit, misrepresentation and fraudulent Lot 38 by putting bamboo posts along the property line parallel to the highway. Some
machination on the part of the company. They appealed to the Court of Appeals (CA- posts were planted right on the concrete drier of appellant, thereby cutting diagonally
G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to
Court of First Instance in favor of the company. appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the
effect of shutting off the accessibility to appellant's house and rice mill from the
highway, since the door of the same opens to the Fleischers' side. The fencing
This resulted in the ouster of the settlers by an order of the Court of First Instance continued on that fateful day of August 22, 1968, with the installation of four strands
dated September 24, 1966, from the land which they had been occupying for about of barbed wire to the posts.
30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily
dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to
his other house which he built in 1962 or 1963 near the highway. The second house At about 2:30 p.m. on the said day, appellant who was taking a nap after working on
is not far from the site of the dismantled house. Its ground floor has a store operated his farm all morning, was awakened by some noise as if the wall of his house was
by Mrs. June Talens who was renting a portion thereof. He also transferred his store being chiselled. Getting up and looking out of the window, he found that one of the
from his former residence to the house near the highway. Aside from the store, he laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p.
also had a rice mill located about 15 meters east of the house and a concrete 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased
pavement between the rice mill and the house, which is used for drying grains and Fleischer was commanding his laborers. The jeep used by the deceased was parked
copra. on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
On November 14, 1966, appellant was among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or annulment of the order of award with Appellant now questions the propriety of his conviction, assigning the following errors:
prayer for preliminary injunction. During the pendency of this case, appellant on
February 21, 1967 entered into a contract of lease with the company whereby he First Assignment of Error: That the lower court erred in convicting
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 defendant-appellant despite the fact that he acted in defense of his
from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of person; and
P16.00 monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of ownership Second Assignment of Error: That the court a quo also erred in
could be decided. He never paid the agreed rental, although he alleges that the convicting defendant-appellant although he acted in defense of his
milling job they did for Rubia was considered payment. On June 25, 1968, deceased rights (p. 20 of Appellant's Brief, p. 145, rec.).
Fleischer wrote him a letter with the following tenor:

The act of killing of the two deceased by appellant is not disputed. Appellant admitted
You have not paid six months rental to Fleischers & Co., Inc. for having shot them from the window of his house with the shotgun which he
that portion of land in which your house and ricemill are located as surrendered to the police authorities. He claims, however, that he did so in defense of
per agreement executed on February 21, 1967. You have not paid his person and of his rights, and therefore he should be exempt from criminal liability.
as as even after repeated attempts of collection made by Mr.
Flaviano Rubia and myself.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, his compadre, the deceased Rubia, to stop what they were doing and to talk things
par. 1 of the Revised Penal Code, but in order for it to be appreciated, the following over with him. But deceased Fleischer answered angrily with 'gademit' and directed
requisites must occur: his men to proceed with what they were doing.

First. Unlawful aggression; The actuation of deceased Fleischer in angrily ordering the continuance of the fencing
would have resulted in the further chiselling of the walls of appellant's house as well
Second. Reasonable necessity of the means employed to prevent as the closure of the access to and from his house and rice mill-which were not only
or repel it; imminent but were actually in progress. There is no question, therefore, that there
was aggression on the part of the victims: Fleischer was ordering, and Rubia was
actually participating in the fencing. This was indeed aggression, not on the person of
Third. Lack of sufficient provocation on the part of the person appellant, but on his property rights.
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The question is, was the aggression unlawful or lawful? Did the victims have a right to
fence off the contested property, to destroy appellant's house and to shut off his
The aggression referred to by appellant is the angry utterance by deceased Fleischer ingress and egress to his residence and the highway?
of the following words: "Hindi, sigue, gademit, avante", in answer to his request
addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona
ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his
was in reaction to his having been awakened to see the wall of his house being land or tenements.
chiselled. The verbal exchange took place while the two deceased were on the
ground doing the fencing and the appellant was up in his house looking out of his However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this annulment of the order of award to Fleischer and Company was still pending in the
reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed Court of First Instance of Cotabato. The parties could not have known that the case
and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. would be dismissed over a year after the incident on August 22, 1968, as it was
132, supra). As for the shooting of Rubia, appellant testified: dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon of the award to the company, between the same parties, which the company won by
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. virtue of the compromise agreement in spite of the subsequent repudiation by the
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing settlers of said compromise agreement; and that such 1970 dismissal also carried the
that there was a firearm in the jeep and thinking that if he will take dismissal of the supplemental petition filed by the Republic of the Philippines on
that firearm he will kill me, I shot at him (p. 132, supra, Emphasis November 28, 1968 to annul the sales patent and to cancel the corresponding
supplied). certificate of title issued to the company, on the ground that the Director of Lands had
no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition
The foregoing statements of appellant were never controverted by the prosecution. was premised on the ground that after its filing on November 28, 1968, nothing more
They claim, however, that the deceased were in lawful exercise of their rights of was done by the petitioner Republic of the Philippines except to adopt all the
ownership over the land in question, when they did the fencing that sealed off evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.
appellant's access to the highway.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable
A review of the circumstances prior to the shooting as borne by the evidence reveals judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the
that five persons, consisting of the deceased and their three laborers, were doing the contract of lease on February 21, 1967 was just to avoid trouble. This was explained
fencing and chiselling of the walls of appellant's house. The fence they were putting by him during cross-examination on January 21, 1970, thus:
up was made of bamboo posts to which were being nailed strands of barbed wire in
several layers. Obviously, they were using tools which could be lethal weapons, such
as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary It happened this way: we talked it over with my Mrs. that we better
gadgets. Besides, it was not disputed that the jeep which they used in going to the rent the place because even though we do not know who really
place was parked just a few steps away, and in it there was a gun leaning near the owns this portion to avoid trouble. To avoid trouble we better pay
steering wheel. When the appellant woke up to the sound of the chiselling on his while waiting for the case because at that time, it was not known
walls, his first reaction was to look out of the window. Then he saw the damage being who is the right owner of the place. So we decided until things will
done to his house, compounded by the fact that his house and rice mill will be shut off clear up and determine who is really the owner, we decided to pay
from the highway by the fence once it is finished. He therefore appealed to rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, plea for the deceased and their men to stop and talk things over with him was no
Defense Exhibits) within which to vacate the land. He should have allowed appellant provocation at all.
the peaceful enjoyment of his properties up to that time, instead of chiselling the walls
of his house and closing appellant's entrance and exit to the highway. Be that as it may, appellant's act in killing the deceased was not justifiable, since not
all the elements for justification are present. He should therefore be held responsible
The following provisions of the Civil Code of the Philippines are in point: for the death of his victims, but he could be credited with the special mitigating
circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the
Art. 536. In no case may possession be acquired through force or Revised Penal Code.
intimidation as long as there is a possessor who objects thereto. He
who believes that he has an action or a right to deprive another of The crime committed is homicide on two counts. The qualifying circumstance of
the holding of a thing must invoke the aid of the competent court, if treachery cannot be appreciated in this case because of the presence of provocation
the holder should refuse to deliver the thing. on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA
598), the element of a sudden unprovoked attack is therefore lacking.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be Moreover, in order to appreciate alevosia, "it must clearly appear that the method of
protected in or restored to said possession by the means assault adopted by the aggressor was deliberately chosen with a special view to the
established by the laws and the Rules of Court (Articles 536 and accomplishment of the act without risk to the assailant from any defense that the
539, Civil Code of the Philippines). party assailed might have made. This cannot be said of a situation where the slayer
acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).
Conformably to the foregoing provisions, the deceased had no right to destroy or
cause damage to appellant's house, nor to close his accessibility to the highway while WE likewise find the aggravating (qualifying) circumstance of evident premeditation
he was pleading with them to stop and talk things over with him. The assault on not sufficiently established. The only evidence presented to prove this circumstance
appellant's property, therefore, amounts to unlawful aggression as contemplated by was the testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum,
law. South Cotabato, and a laborer of Fleischer and Company, which may be summarized
as follows:
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs. Encomiendas, On August 20, 1968 (two days before the incident) at about 7:00
46 SCRA 522). A.M., he was drying corn near the house of Mr. and Mrs. Mamerto
Narvaez at the crossing, Maitum, South Cotabato, when the
In the case at bar, there was an actual physical invasion of appellant's property which accused and his wife talked to him. Mrs. Narvaez asked him to help
he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines them, as he was working in the hacienda. She further told him that
which provides: if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr.
Fleischer because there will be nobody who will break his head but
Art. 429. The owner or lawful possessor of a thing has the right to I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
exclude any person from the enjoyment and disposal thereof. For latter told him not to believe as they were only Idle threats designed
this purpose, he may use such force as may be reasonably to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property (Emphasis supplied).
This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there must be
The reasonableness of the resistance is also a requirement of the justifying "direct evidence of the planning or preparation to kill the victim, .... it is not enough
circumstance of self-defense or defense of one's rights under paragraph 1 of Article that premeditation be suspected or surmised, but the criminal intent must be
11, Revised Penal Code. When the appellant fired his shotgun from his window, evidenced by notorious outward acts evincing the determination to commit the crime"
killing his two victims, his resistance was disproportionate to the attack. (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act;
WE find, however, that the third element of defense of property is present, i.e., lack of and that there was sufficient interval between the premeditation and the execution of
sufficient provocation on the part of appellant who was defending his property. As a the crime to allow them (him) to reflect upon the consequences of the act" (People vs.
matter of fact, there was no provocation at all on his part, since he was asleep at first Gida, 102 SCRA 70).
and was only awakened by the noise produced by the victims and their laborers. His
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased damaging appellant's properties and business. Considering appellant's standing in
Davis Fleischer, neutralizes his credibility. the community, being married to a municipal councilor, the victims' actuations were
apparently designed to humiliate him and destroy his reputation. The records disclose
Since in the case at bar, there was no direct evidence of the planning or preparation that his wife, councilor Feliza Narvaez, was also charged in these two cases and
to kill the victims nor that the accused premeditated the killing, and clung to his detained without bail despite the absence of evidence linking her to the killings. She
premeditated act, the trial court's conclusion as to the presence of such circumstance was dropped as a defendant only upon motion of the prosecution dated October 31,
may not be endorsed. 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968
(p. 58, CFI rec. of Criminal Case No. 1815).
Evident premeditation is further negated by appellant pleading with the victims to stop
the fencing and destroying his house and to talk things over just before the shooting. Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to extend
its accumulation of public lands to the resettlement areas of Cotabato. Since it had
But the trial court has properly appreciated the presence of the mitigating the capability-financial and otherwise-to carry out its land accumulation scheme, the
circumstance of voluntary surrender, it appearing that appellant surrendered to the lowly settlers, who uprooted their families from their native soil in Luzon to take
authorities soon after the shooting. advantage of the government's resettlement program, but had no sufficient means to
fight the big landowners, were the ones prejudiced. Thus, the moral and material
Likewise, We find that passion and obfuscation attended the commission of the crime. suffering of appellant and his family deserves leniency as to his civil liability.
The appellant awoke to find his house being damaged and its accessibility to the
highway as well as of his rice mill bodega being closed. Not only was his house being Furthermore, Article 39 of the Revised Penal Code requires a person convicted
unlawfully violated; his business was also in danger of closing down for lack of access of prision correccional or arrests mayor and fine who has no property with which to
to the highway. These circumstances, coming so near to the time when his first house meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day
was dismantled, thus forcing him to transfer to his only remaining house, must have for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on
so aggravated his obfuscation that he lost momentarily all reason causing him to April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to
reach for his shotgun and fire at the victims in defense of his rights. Considering the reparation of the damage caused, indemnification of consequential damages and
antecedent facts of this case, where appellant had thirty years earlier migrated to this costs of proceedings. Considering that Republic Act 5465 is favorable to the accused
so-called "land of promise" with dreams and hopes of relative prosperity and who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
tranquility, only to find his castle crumbling at the hands of the deceased, his 22 of the Revised Penal Code.
dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
Consequently, appellant is guilty of two crimes of homicide only, the killing not being EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
attended by any qualifying nor aggravating circumstance, but extenuated by the BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
privileged mitigating circumstance of incomplete defense-in view of the presence of SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
unlawful aggression on the part of the victims and lack of sufficient provocation on the CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
part of the appellant-and by two generic mitigating circumstance of voluntary IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY
surrender and passion and obfuscation. EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY
Article 249 of the Revised Penal Code prescribes the penalty for homicide IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two ATTORNEY'S FEES.
degrees shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same. Considering that the majority of CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
the requirements for defense of property are present, the penalty may be lowered by ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER
two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO
same may further be reduced by one degree, i.e., arresto mayor, because of the COSTS.
presence of two mitigating circumstances and no aggravating circumstance.
SO ORDERED.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant's reaction. In the case at
bar, the victims not only contributed but they actually provoked the attack by
G.R. No. 132547 September 20, 2000 away from them, SPO1 Ulep shot the victim with his M-16 rifle, hitting him in various
parts of his body. As the victim slumped to the ground, SPO1 Ulep came closer and
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, pumped another bullet into his head and literally blew his brains out. 6
vs.
SPO1 ERNESTO ULEP, accused-appellant. The post mortem examination of the body conducted by Dr. Roberto A. Omandac,
Municipal Health Officer of Kidapawan, showed that Wapili sustained five (5) gunshot
DECISION wounds: one (1) on the right portion of the head, one (1) on the right cheek, one (1)
on the abdomen and two (2) on the right thigh: SHEENT - gunshot wound on the right
parietal area with fractures of the right temporoparietal bones with evisceration of
BELLOSILLO, J.: brain tissues, right zygomatic bone and right mandible, lateral aspect; CHEST AND
BACK - with powder burns on the right posterior chest; ABDOMEN - gunshot wound
In the aftermath of an incident where a certain Buenaventura Wapili 1 went berserk at on the right upper quadrant measuring 0.5 cm. in diameter (point of entry) with
Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 multiple powder burns around the wound and on the right lumbar area (point of exit).
December 1995, Police Officer Ernesto Ulep was found guilty of murder and Gunshot wound on the suprapubic area (point of entry); EXTREMETIES - with
sentenced to death by the trial court for killing Wapili. Ulep was also ordered to gunshot wounds on the right thigh, upper third, anterior aspect measuring 0.5 cm. in
indemnify the heirs of the victim in the amount of ₱50,000.00 and to pay the costs. 2 diameter with powder burns (point of entry) and right buttocks measuring 0.5 cm. in
diameter (point of exit); gunshot wound on the right thigh, upper third, posterolateral
The evidence shows that at around two o' clock in the morning of 22 December 1995 aspect; CAUSE OF DEATH - multiple gunshot wounds.7
Buenaventura Wapili was having a high fever and was heard talking insensibly to
himself in his room. His brother-in-law, Dario Leydan, convinced him to come out of Dr. Omandac concluded that the shots were fired at close range, perhaps within
his room and talk to him, but Wapili told Leydan that he could not really understand twenty-four (24) inches, judging from the powder burns found around some of the
himself. After a while, Wapili went back to his room and turned off the lights. Moments wounds in the body of the victim,8 and that the wound in the head, which caused the
later, the lights went on again and Leydan heard a disturbance inside the room, as if victim's instantaneous death, was inflicted while "the victim was in a lying position." 9
Wapili was smashing the furniture.3 Unable to pacify Wapili, Leydan called Pastor
Bonid of the Alliance Church of Kidapawan to help him "pray over" Wapili, but they The Office of the Ombudsman for the Military filed an Information for murder against
could not enter the latter's room as he became wild and violent. Suddenly, Wapili SPO1 Ulep.1âwphi1 The accused pleaded not guilty to the charge on arraignment,
bolted out of his room naked and chased Leydan. Thereafter, Leydan with the aid of and insisted during the trial that he acted in self-defense. However, on 28 October
two (2) of his neighbors attempted to tie Wapili with a rope but was unsuccessful as 1997, the trial court rendered judgment convicting the accused of murder and
Wapili was much bigger in built and stronger than anyone of them. 4 Wapili, who sentencing him to death -
appeared to have completely gone crazy, kept on running without any particular
direction.
The means employed by the accused to prevent or repel the alleged aggression is
not reasonable because the victim, Buenaventura Wapili, was already on the ground,
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and therefore, there was no necessity for the accused to pump another shot on the back
asked for assistance. As Wapili passed by the house of Plando, he banged Plando's portion of the victim's head. Clearly the gravity of the wounds sustained by the victim
vehicle parked outside. Using a hand-held radio, Plando then contacted SPO1 belies the pretension of the accused that he acted in self-defense. It indicates his
Ernesto Ulep, SPO1 Edilberto Espadera and SPO2 Crispin Pillo, all members of the determined effort to kill the victim. It is established that accused (sic) was already in
PNP assigned to secure the premises of the nearby Roman Catholic Church of the ground that would no longer imperil the accused's life. The most logical option
Kidapawan.5 open to the accused was to inflict on the victim such injury that would prevent the
victim from further harming him. The court is not persuaded by the accused's version
At around four o'clock in the morning of the same day, SPO1 Ulep together with because if it is true that the victim attacked him and his life was endangered - yet his
SPO1 Espadera and SPO2 Pillo arrived at the scene on board an Anfra police service two (2) companions SPO1 Espadera and SPO2 Pillo did not do anything to help him
jeep. The three (3) police officers, all armed with M-16 rifles, alighted from the jeep but just witness the incident - which is unbelievable and unnatural behavior of police
when they saw the naked Wapili approaching them. The kind of weapon Wapili was officers x x x x
armed with is disputed. The police claimed that he was armed with a bolo and a
rattan stool, while Wapili's relatives and neighbors said he had no bolo, but only a WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding
rattan stool. the accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the
accused is hereby sentenced to suffer the extreme penalty of Death, to indemnify the
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or heirs of Buenaventura Wapili the amount of ₱50,000.00 without subsidiary
they would shoot him. But Wapili retorted "pusila!" ("fire!") and continued advancing imprisonment in case of insolvency and to pay the costs.
towards the police officers. When Wapili was only about two (2) to three (3) meters
Death penalty having been imposed by the trial court, the case is now before us on brain to scatter on the ground x x x x the victim, Buenaventura Wapili, was already on
automatic review. Accused-appellant prays for his acquittal mainly on the basis of his the ground. Therefore, there was no necessity for the accused to pump another shot
claim that the killing of the victim was in the course of the performance of his official on the back portion of the victim's head.
duty as a police officer, and in self-defense.
It cannot therefore be said that the fatal wound in the head of the victim was a
Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the necessary consequence of accused-appellant's due performance of a duty or the
burden of proving legal justification therefor. He must establish clearly and lawful exercise of a right or office.
convincingly how he acted in fulfillment of his official duty and/or in complete self-
defense, as claimed by him; otherwise, he must suffer all the consequences of his Likewise, the evidence at hand does not favor his claim of self-defense. The elements
malefaction. He has to rely on the quantitative and qualitative strength of his own in order for self-defense to be appreciated are: (a) unlawful aggression on the part of
evidence, not on the weakness of the prosecution; for even if it were weak it could not the person injured or killed by the accused; (b) reasonable necessity of the means
be disbelieved after he had admitted the killing.10 employed to prevent or repel it; and, (c) lack of sufficient provocation on the part of
the person defending himself.12
Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The
Revised Penal Code may be successfully invoked, the accused must prove the The presence of unlawful aggression is a condition sine qua non. There can be no
presence of two (2) requisites, namely, that he acted in the performance of a duty or self-defense, complete or incomplete, unless the victim has committed an unlawful
in the lawful exercise of a right or an office, and that the injury caused or the offense aggression against the person defending himself.13 In the present case, the records
committed be the necessary consequence of the due performance of duty or the show that the victim was lying in a prone position on the ground - bleeding from the
lawful exercise of such right or office. The second requisite is lacking in the instant bullet wounds he sustained, and possibly unconscious - when accused-appellant shot
case. him in the head. The aggression that was initially begun by the victim already ceased
when accused-appellant attacked him. From that moment, there was no longer any
Accused-appellant and the other police officers involved originally set out to perform a danger to his life.
legal duty: to render police assistance, and restore peace and order at Mundog
Subdivision where the victim was then running amuck. There were two (2) stages of This Court disagrees with the conclusion of the court a quo that the killing of Wapili by
the incident at Mundog Subdivision. During the first stage, the victim threatened the accused-appellant was attended by treachery, thus qualifying the offense to murder.
safety of the police officers by menacingly advancing towards them, notwithstanding We discern nothing from the evidence that the assault was so sudden and
accused-appellant's previous warning shot and verbal admonition to the victim to lay unexpected and that accused-appellant deliberately adopted a mode of attack
down his weapon or he would be shot. As a police officer, it is to be expected that intended to insure the killing of Wapili, without the victim having the opportunity to
accused-appellant would stand his ground. Up to that point, his decision to respond defend himself.
with a barrage of gunfire to halt the victim's further advance was justified under the
circumstances. After all, a police officer is not required to afford the victim the
opportunity to fight back. Neither is he expected - when hard pressed and in the heat On the contrary, the victim could not have been taken by surprise as he was given
of such an encounter at close quarters - to pause for a long moment and reflect coolly more than sufficient warning by accused-appellant before he was shot, i.e., accused-
at his peril, or to wait after each blow to determine the effects thereof. appellant fired a warning shot in the air, and specifically ordered him to lower his
weapons or he would be shot. The killing of Wapili was not sought on purpose.
Accused-appellant went to the scene in pursuance of his official duty as a police
However, while accused-appellant is to be commended for promptly responding to officer after having been summoned for assistance. The situation that the victim, at
the call of duty when he stopped the victim from his potentially violent conduct and the time accused-appellant shot him in the head, was prostrate on the ground is of no
aggressive behavior, he cannot be exonerated from overdoing his duty during the moment when considering the presence of treachery. The decision to kill was made in
second stage of the incident - when he fatally shot the victim in the head, perhaps in an instant and the victim's helpless position was merely incidental to his having been
his desire to take no chances, even after the latter slumped to the ground due to previously shot by accused-appellant in the performance of his official duty.
multiple gunshot wounds sustained while charging at the police officers. Sound
discretion and restraint dictated that accused-appellant, a veteran policeman,11 should
have ceased firing at the victim the moment he saw the latter fall to the ground. The There is treachery when the offender commits any of the crimes against persons,
victim at that point no longer posed a threat and was already incapable of mounting employing means, methods, or forms in the execution thereof which tend directly and
an aggression against the police officers. Shooting him in the head was obviously specially to insure its execution, without risk to himself arising from the defense which
unnecessary. As succinctly observed by the trial court - the offended party might make.14 Considering the rule that treachery cannot be
inferred but must be proved as fully and convincingly as the crime itself, any doubt as
to its existence must be resolved in favor of accused-appellant. Accordingly, for
Once he saw the victim he fired a warning shot then shot the victim hitting him on the failure of the prosecution to prove treachery to qualify the killing to murder, accused-
different parts of the body causing him to fall to the ground and in that position the appellant may only be convicted of homicide.
accused shot the victim again hitting the back portion of the victim's head causing the
Indeed, to hold him criminally liable for murder and sentence him to death under the shall be taken from the penalty next lower in degree which is prision correccional, in
circumstances would certainly have the effect of demoralizing other police officers any of its periods, the range of which is six (6) months and one (1) day to six (6)
who may be called upon to discharge official functions under similar or identical years.
conditions. We would then have a dispirited police force who may be half-hearted, if
not totally unwilling, to perform their assigned duties for fear that they would suffer the The right to kill an offender is not absolute, and may be used only as a last resort, and
same fate as that of accused-appellant. under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge
This brings us to the imposition of the proper penalty. the necessity to kill.18 It may be true that police officers sometimes find themselves in
a dilemma when pressured by a situation where an immediate and decisive, but legal,
We find in favor of accused-appellant the incomplete justifying circumstance of action is needed. However, it must be stressed that the judgment and discretion of
fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised Penal police officers in the performance of their duties must be exercised neither
Code, "a penalty lower by one or two degrees than that prescribed by law shall be capriciously nor oppressively, but within reasonable limits. In the absence of a clear
imposed if the deed is not wholly excusable by reason of the lack of some of the and legal provision to the contrary, they must act in conformity with the dictates of a
conditions required to justify the same or to exempt from criminal liability in the sound discretion, and within the spirit and purpose of the law.19 We cannot
several cases mentioned in Arts. 11 and 12, provided that the majority of such countenance trigger-happy law enforcement officers who indiscriminately employ
conditions be present. The courts shall impose the penalty in the period which may be force and violence upon the persons they are apprehending. They must always bear
deemed proper, in view of the number and nature of the conditions of exemption in mind that although they are dealing with criminal elements against whom society
present or lacking." must be protected, these criminals are also human beings with human rights.

Incomplete justification is a special or privileged mitigating circumstance, which, not WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1
only cannot be offset by aggravating circumstances but also reduces the penalty by ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced
one or two degrees than that prescribed by law.15 Undoubtedly, the instant case to an indeterminate prison term of four (4) years, two (2) months and ten (10) days
would have fallen under Art. 11, par. 5 of The Revised Penal Code had the two (2) of prision correccional medium as minimum, to six (6) years, four (4) months and
conditions therefor concurred which, to reiterate: first, that the accused acted in the twenty (20) days of prision mayor minimum as maximum. He is further ordered to
performance of a duty or the lawful exercise of a right or office; and second, that the indemnify the heirs of Buenaventura Wapili in the amount of ₱50,000.00, and to pay
injury or offense committed be the necessary consequence of the due performance of the costs.
such duty or the lawful exercise of such right or office. But here, only the first
condition was fulfilled. Hence, Art. 69 is applicable, although its "that the majority of SO ORDERED.
such conditions be present," is immaterial since there are only two (2) conditions that
may be taken into account under Art. 11, par. 5. Article 69 is obviously in favor of the
accused as it provides for a penalty lower than that prescribed by law when the crime
committed is not wholly justifiable. The intention of the legislature, obviously, is to
mitigate the penalty by reason of the diminution of either freedom of action,
intelligence, or intent, or of the lesser perversity of the offender. 16

We likewise credit in favor of accused-appellant the mitigating circumstance of

voluntary surrender. The police blotter of Kidapawan Municipal Police Station shows
that immediately after killing Wapili, accused-appellant reported to the police
headquarters and voluntarily surrendered himself.17

Article 249 of The Revised Penal Code prescribes for the crime of homicide the
penalty of reclusion temporal, the range of which is twelve (12) years and one (1) day
to twenty (20) years. There being an incomplete justifying circumstance of fulfillment
of a duty, the penalty should be one (1) degree lower, i.e., from reclusion
temporal to prision mayor, pursuant to Art. 69, in relation to Art. 61, par. 2, and Art.
71, of the Code, to be imposed in its minimum period since accused-appellant
voluntarily surrendered to the authorities and there was no aggravating circumstance
to offset this mitigating circumstance. Applying the Indeterminate Sentence Law, the
maximum of the penalty shall be taken from the minimum period of prision mayor, the
range of which is six (6) years and one (1) day to eight (8) years, while the minimum
G.R. No. 153287 June 30, 2008 The material points in the testimony of Vicente were summarized by the trial court in
its decision7 as follows:
NOEL GUILLERMO y BASILIANO, petitioner,
vs. Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie
PEOPLE OF THE PHILIPPINES, respondent. Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at the public
market of Cuartero, at [sic] the restaurant of Melecio Heyres to eat.8 Noel
DECISION Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking
beer. Noel Guillermo and Arnel Socias are known to him since childhood
since they come from the same barangay.9 Joemar Palma is known to him
BRION, J.: only recently in that incident.10

For our review is the petition1 filed by the petitioner Noel Guillermo y Basiliano While sitting at the table inside the restaurant, an altercation between Arnel
(petitioner) against the decision2 dated November 15, 2001 and the resolution3 dated Socias and Winnie Alon regarding the cutting of wood by a chain saw [sic]
April 5, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 24181. The challenged transpired. Noel Guillermo suddenly took hold of Winnie Alon and stabbed
decision4 affirmed the decision of the Regional Trial Court (RTC), Branch 18, Roxas the latter at the neck three (3) times.11 Joemar Palma went to the kitchen
City convicting and penalizing the petitioner for the crime of homicide with an and got a knife. Arnel Socias hit him with a bottle of beer by [sic] the head.
indeterminate sentence of six (6) years of prision correccional, as minimum, to ten He fell down and lost consciousness.12 [Footnotes referring to the pertinent
(10) years of prision mayor, as maximum. The assailed resolution, on the other hand, parts of the record supplied]
denied the petitioner’s motion for reconsideration.
Significantly, Vicente admitted on cross-examination that he and Winnie were already
BACKGROUND drunk even before they went to the restaurant where the stabbing took place. 13

For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo Eddie corroborated the testimony of Vicente on material points, particularly on the
Socias,5 Joemar Palma, and the petitioner with the crime of homicide under an state of their intoxication even before going to the scene of the stabbing. His
Information that states: testimony on what transpired at the restaurant was summarized in the RTC
decision14 as follows:
xxx
Eddie Roque alleged that at around 5:40 o’clock in the afternoon of July 21,
That at or about 5:40 o’clock in the afternoon, on or about July 21, 1996, at 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo Cabison,
Brgy. Poblacion Takas, Municipality of Cuartero, Province of Capiz, were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public Market to
Philippines, and within the jurisdiction of this Honorable Court, the above- leave their tools of the chain saw [sic] and to eat and drink.15 Noel Guillermo,
named accused, conspiring, confederating[,] and mutually helping one Arnel Socias, and Joemer Palma were ahead of them to [sic] the restaurant
another, armed with knives and with intent to kill, did then and there willfully, and were drinking beer. They invited them and they joined them.16 Before
unlawfully and feloniously assault, attack and stab one WINNIE ALON y each of them could fully consume a bottle served upon each of them, Winnie
BILLANES, hitting the latter and inflicting multiple stab wounds on the Alon and Arnel Socias argued about the cutting of wood by means of a chain
different parts of his body, which injuries caused his death shortly thereafter. saw [sic]. The argument was so heated that each of the protagonists stood
up and Arnel Socias took 2 bottles which were thrown to Vicente Alon who
That due to the untimely death of Winnie Alon y Billanes[,] his heirs are was hit on the forehead.17
entitled to death indemnity in the amount of P50,000.00 and other damages
pursuant to the provisions of the Civil Code of the Philippines. Noel Guillermo hugged or embraced Winnie Alon and stabbed him three
times (3) on [sic] the neck with a Batangueño knife. Arnel Socias went
ACTS CONTRARY TO LAW.6 around, then behind, and stabbed Winnie Alon once, on the left side of his
body, just below his left armpit, with a pointed object, but he could not
determine what weapon was used. Joemar Palma also helped in stabbing
The petitioner and his co-accused were arraigned and pleaded not guilty to the Winnie Alon once, hitting him at the right side of his body. 18
offense charged with the assistance of their counsel de parte. The prosecution
presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as witnesses in the trial
that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby Lou Felipe (Baby Lou), and the Winnie Alon resisted trying to struggle [sic], but could not move because he
three accused – the petitioner, Arnaldo Socias, and Joemar Palma – took the witness was ganged up by the three.19 [Footnotes referring to the pertinent parts of
stand for the defense. the record supplied]
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness stand grabbed Arnel Socias by the collar. Arnel tried to release the hold of Winnie
that he conducted on July 22, 1996 a postmortem examination on the body of from his collar. While he was pacifying the two telling them to settle the
Winnie20 and made the following findings: matter peacefully, Winnie Alon turned to him and said: "you also," then
struck him with a beer bottle. He was hit at the right top of his head thrice.
POSTMORTEM EXAMINATION He stood up and boxed Winnie who again picked up a bottle break [sic] it
against the wall, and struck him with the broken bottle. He stepped back,
pulled his knife, and stabbed him three (3) times but cannot remember what
The postmortem examination is done on the remains of Winnie Alon, 31 part of his body was hit by his successive stabs.26 x x x [Footnotes referring
years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at to the pertinent parts of the record supplied]
about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining
the following injuries:
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the
afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar, arrived
1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at at the restaurant and ordered beer.27 A few minutes later, Vicente, Eddie, Winnie, and
level of 5th rib mid clavicular area. Wilfredo Cabison arrived and also ordered beer. She then saw the group of Winnie
transfer to the table occupied by the petitioner and his companions. Thereafter, the
2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above group had a heated argument among themselves regarding "labtik."28 In the course of
the sternum. the exchange, she saw Winnie strike the petitioner on the head with a bottle. Winnie
and the petitioner then grappled with each other. At that point, she hid behind the
3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area. refrigerator and did not see what happened next. Afterwards, she saw the bloodied
body of Winnie lying outside the restaurant.29 She likewise saw the petitioner outside
the restaurant; his shirt was splattered with blood.30
The most probable cause of death was massive [H]emorrhage secondary to
multiple stab wounds.21
Dr. Betita, this time testifying as defense witness, stated, among others, that the
contusion hematoma suffered by the petitioner could have been caused by a hard
According to Dr. Betita, the cause of death was massive hemorrhage due to multiple object like a beer bottle, while the linear abrasion could have been caused by a
stab wounds.22 He added that the three (3) stab wounds were probably caused by a fingernail.31
sharp-bladed instrument like a knife.23
Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and
The petitioner gave a different version of the events, summarized in the RTC decision Joemar, was drinking beer at the restaurant of Melecio Heyres 32 when Winnie stood
as follows: up and asked if they (Winnie’s group) could join them at their table. Arnaldo and his
companions agreed. Winnie’s group then transferred to the table of Arnaldo’s group. 33
Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he was
in Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes The discussion took a bad turn when the matter of cutting by chainsaw was raised.
Heyres, together with Arnel Socias and Joemar Palma drinking beer, Winnie challenged Arnaldo to a contest to determine who could do the cleanest cut.
consuming only about half a bottle, when Winnie Alon, Eddie Roque, Vicente He declined and claimed he does not know how to operate a chainsaw. To this,
Alon, and Wilfredo Cabison arrived and ordered beer from Babylou Felipe. Winnie retorted, "You are already old in that business, but your finished product is still
Winnie Alon came to him and requested to join them in their table which he crooked. You are all dumb." He countered, "If the wood itself is crooked, you cannot
affirmatively answered. Winnie Alon then had an altercation with Arnel have a straight lumber. You are dumb if you insist you can." At that point, Winnie
Socias regarding "labtik" (string used in marking wood to be cut).24 stood up and grabbed him by the collar. The petitioner intervened and told them to
settle their differences peacefully. Winnie then grabbed a bottle and struck the
Winnie Alon challenged Arnel Socias to a contest on clean or straight cutting petitioner on the head three times.34 Arnaldo added that he did not see who stabbed
of wood. Arnel declined the challenge claiming that he is only an assistant to Winnie, because while the petitioner and Winnie were grappling, he was busy fighting
his brother-in-law. Winnie Alon got angry and told him that he has long been with Vicente.35
in [the] chain saw [sic] business but "you’re stupid" ("gago ka!"). Arnel
responded: "If the wood is crooked and you would deviate from line, you’re Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner, Arnaldo,
stupid."25 and he were drinking beer at the restaurant of Mr. Heyres when four persons, who
appeared to be drunk (later identified as Vicente, Eddie, Winnie, and Wilfredo
Winnie Alon suddenly stood up and said to Arnel: "Don’t ever call me Cabison), entered the restaurant and ordered beer.36 After the latter group joined
stupid," pointing his finger to Arnel. He told them to settle the matter them at their table, Winnie and Arnaldo had a heated discussion regarding expertise
peacefully as they are friend [sic], but Winnie Alon was so furious and in operating a chainsaw. Winnie grabbed the shirt collar of Arnaldo in the course of
the heated exchange.37 The petitioner advised them to calm down, but Winnie struck A: I was able to move backward and I realized that I have a knife on [sic] the
him (petitioner) on the head with a beer bottle three times. Vicente also tried to strike back of my waist.
Arnaldo, but the latter managed to duck and so he (Joemar) took the hit instead.
Thereafter, he and Arnaldo engaged Vicente.38 Q: And what did you do with your knife?

The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime of A: I then stabbed him.
homicide, but acquitted Arnaldo and Joemar. The dispositive portion of the decision
reads:
Q: How many times?
WHEREFORE, the evidence on record having established the guilt of Noel
Guillermo as principal in the crime of homicide for stabbing three (3) times A: About three times as far as I can remember.40 [Emphasis supplied]
Winnie Alon which caused the latter’s death, attended by a special or
privileged mitigating circumstance of incomplete justification, and without The petitioner justifies the stabbing as an act of self-defense.
any aggravating or mitigating circumstances attendant, he is imposed an
indeterminate sentence of six (6) years of prision correccional, as minimum, As the lower courts did, we do not recognize that the petitioner fully acted in self-
to ten (10) years of prision mayor, as maximum, with the corresponding defense.
accessory penalties, and to pay death indemnity of P50,000.00 to the heirs
of Winnie Alon, in the service of his sentence he shall be credited the period
that he undergone [sic] preventive imprisonment, conformably with Art. 29 of As a rule, the prosecution bears the burden of establishing the guilt of the accused
the Code. beyond reasonable doubt. However, when the accused admits the killing and, by way
of justification, pleads self-defense, the burden of evidence shifts; he must then show
by clear and convincing evidence that he indeed acted in self-defense. For that
Costs against the accused. purpose, he must rely on the strength of his own evidence and not on the weakness
of the prosecution’s evidence.41
For insufficiency of evidence, the accused Arnaldo Socias and Joemar
Palma are acquitted of the crime charged. The bail bond for their provisional The elements that the accused must establish by clear and convincing evidence to
liberty is CANCELLED AND DISCHARGED.
successfully plead self-defense are enumerated under Article 11(1) of the Revised
Penal Code:
SO ORDERED.39 [Emphasis in the original]
ART. 11. Justifying circumstances. – The following do not incur any criminal
The petitioner appealed to the CA whose decision is now assailed in the present liability:
petition. The petitioner essentially claims that the RTC and the CA erred in failing to
recognize the existence of all the elements of self-defense. 1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur;
THE COURT’S RULING
First. Unlawful aggression;
We resolve to deny the petition for lack of merit.
Second. Reasonable necessity of the means employed to prevent or
Plea of Self-Defense repel it;

We note at the outset that the petitioner does not deny that he killed Winnie. He Third. Lack of sufficient provocation on the part of the person
expressly made this admission in his testimony of July 15, 1999: defending himself.

ATTY. VILLAREAL: As a justifying circumstance, self-defense may be complete or incomplete. It is

complete when all the three essential requisites are present; it is incomplete when
Q: And what did you do when he struck you with the bottle? the mandatory element of unlawful aggression by the victim is present, plus any one
of the two essential requisites.42
NOEL GUILLERMO:
In the present case, we find it beyond dispute that the victim Winnie started the fight Several reasons militate against our acceptance of the petitioner’s version and
that ended in his death; he struck the petitioner on the head when the latter interpretation of events.
intervened to pacify the quarrel between Winnie and Arnaldo. In short, the victim was
the unlawful aggressor while the petitioner was in the lawful act of pacifying the First, there is intrinsic disproportion between a Batangas knife and a broken beer
quarreling parties; thus, the latter has in his favor the element of unlawful bottle. Although this disproportion is not conclusive and may yield a contrary
aggression by the victim. conclusion depending on the circumstances, we mention this disproportionality
because we do not believe that the circumstances of the case dictate a contrary
We consider it also established that the petitioner did not provoke the fight that conclusion.
ensued; he was a third party to the quarrel between the original protagonists – Winnie
and Arnaldo – and did not at all initiate any provocation to ignite the quarrel. Thus, the Second, physical evidence shows that the petitioner suffered only one contusion
petitioner also has the element of lack of sufficient provocation in his favor. hematoma at the parietal area above the left ear. Unless the three (3) beer bottle
blows that the petitioner alleged all landed on the same site – a situation that could
The third element – the reasonableness of the means to repel the aggression – is the have incapacitated the petitioner – the more plausible conclusion from the physical
critical element that the lower courts found lacking in the petitioner’s case. Generally, evidence is that the petitioner received only one blow, not three as he claimed.
reasonableness is a function of the nature or severity of the attack or aggression Contrary to what the petitioner wishes to imply, he could not have been a defender
confronting the accused, the means employed to repel this attack, the surrounding reeling from successive head blows inflicted by the victim.
circumstances of the attack such as its place and occasion, the weapons used, and
the physical condition of the parties – which, when viewed as material considerations, Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the
must show rational equivalence between the attack and the defense. 43 In People v. restaurant before the fatal fight. This state of intoxication, while not critically material
Escarlos,44 this Court held that the means employed by a person invoking self- to the stabbing that transpired, is still material for purposes of defining its surrounding
defense must be reasonably commensurate to the nature and the extent of the attack circumstances, particularly the fact that a broken beer bottle might not have been a
sought to be averted. In Sienes v. People,45 we considered the nature and number of potent weapon in the hands of a drunk wielder.
wounds inflicted on the victim as important indicia material to a plea for self-defense.
Fourth, and as the CA aptly observed as well, the knife wounds were all aimed at vital
In the present case, the attack on the petitioner came as he intervened in a quarrel parts of the body, thus pointing against a conclusion that the petitioner was simply
between the victim and another party. As we concluded above, we deem it warding off broken beer bottle thrusts and used his knife as a means commensurate
established that the victim was the unlawful aggressor who attacked the petitioner. to the thrusts he avoided. To be precise, the petitioner inflicted on the victim: one
Physical evidence shows that indeed the petitioner suffered the following injuries: stab wound at the chest, 6-8 cms. deep, at the 5th rib clavicular area, or in plainer
terms, in the area of the victim’s heart; another was at the neck, 5 cms. deep, just
1. Contusion Hematoma 2 x 3 left parital area just above the left ear. above the breastbone; and a last one was in the abdominal area, 3-5 cms. deep.
The depth of these wounds shows the force exerted in the petitioner’s thrusts while
2. Linear abrasion 3 – 4 cm left hand medial side. the locations are indicative that the thrusts were all meant to kill, not merely to disable
the victim and thereby avoid his drunken thrusts.
3. Linear abrasion 2 – 3 cm left head ulnar side.46
Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to
disbelieve the petitioner’s allegation of complete self-defense, as reflected in the CA’s
The weapons that caused these injuries were a beer bottle and, quite possibly, further cogent observations that:
fingernails as the victim and the appellant grappled with each other.47 In contrast, the
victim suffered three stab wounds: at the neck, at the abdomen and in the chest. The
weapon used was a Batangas knife that admittedly belonged to the petitioner. Thus, (b) If, indeed the deceased picked up another bottle of beer, hit the same
the physical evidence in the case stands. against the wall, resulting in the breakage of the bottle, and with it, hit the
Appellant anew, it behooved the Appellant to have rushed posthaste to the
police station and report the stabbing, with the request that a policeman be
The petitioner claims self-defense on the position that Winnie, after hitting him on the dispatched to the locus criminis and confirm the presence of broken pieces
head three times with an empty bottle, grabbed another bottle, broke it against the of beer bottle in the restaurant. The Appellant did not. He and his
wall, and thrust it towards him. It was at this point that the petitioner used his knife to companions, Arnaldo and Joemar, fled from the scene, via the back door,
inflict Winnie’s fatal wounds. Clearly, the petitioner wants to impress upon us that his and escaped on board a motorcycle.
response to Winnie’s attack was reasonable; he used a knife to repel an attacker
armed with a broken beer bottle.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
Appellant that, after the Appellant boxed Winnie, who lost his hold of the
 bottle of beer, he picked up another bottle and struck the bottle of beer The penalty which the RTC imposed and which the CA affirmed lowered the penalty
against the wall and hit the Appellant with the bottle. The appellant relied of reclusion temporal by one degree, which yields the penalty of prision mayor. From
solely on is own testimony to buttress his defense. this penalty, the maximum of the indeterminate penalty is determined by taking into
account the attendant modifying circumstances, applying Article 64 of the Revised
(d) The Municipal Trial Court conducted a preliminary investigation of the Penal Code.51 Since no aggravating nor mitigating circumstance intervened, the
"Criminal Complaint" filed against the Appellant, Arnaldo, and Joemar. maximum of the indeterminate penalty shall be prision mayor in its medium period
However, the Appellant did not submit any "Counter-Affidavit" claiming that whose range is from 8 years and 1 day to 10 years.
he was impelled to stab Winnie three (3) successive times on mortal parts of
his body and killing [sic] him because Winnie picked up a bottle, hit the same To determine the minimum of the indeterminate penalty, prision mayor has to be
against a wall and hit the Appellant anew with the broken reduced by one degree without taking into account the attendant modifying
bottle.48 [Underscoring in the original] circumstances. The penalty lower by one degree is prision correccional whose range
is from 6 months and 1 day to 6 years. The trial court is given the widest discretion to
We see no reason to disturb these findings as they are based on existing evidence, fix the minimum of the indeterminate penalty provided that such penalty is within the
and the conclusions drawn therefrom are patently reasonable. We have time and range of prision correccional.
again held that the findings of facts of the trial court, its assessment of the credibility
of witnesses and the probative weight of their testimonies, and the conclusions based The CA affirmed the indeterminate penalty of six (6) years prision correccional, as
on the these factual findings are to be given the highest respect; the trial court enjoys minimum, to ten (10) years of prision mayor, as maximum, as imposed by the RTC on
the unique advantage of being able to observe, at close range, the conduct and petitioner. We affirm this to be the legally correct and proper penalty to be imposed
deportment of witnesses as they testify. These factual findings, when adopted and upon petitioner.
confirmed by the CA, are final and conclusive and need not be reviewed on the
appeal to us. We are not a trier of facts; as a rule, we do not weigh anew the We also affirm the P50,000.00 death indemnity awarded to Winnie’s heirs, in
evidence already passed on by the trial court and affirmed by the CA. 49 Only after a accordance with prevailing jurisprudence.52
showing that the courts below ignored, overlooked, misinterpreted, or misconstrued
cogent facts and circumstances of substance that would alter the outcome of the
case, are we justified in undertaking a factual review. No such exceptional grounds We add that moral damages should be awarded as they are mandatory in murder and
obtain in this case. homicide cases without need of allegation and proof other than the death of the
victim.53 The award of P50,000.00 as moral damages is, therefore, in order.
In sum, we rule that there was no rational equivalence between the means of the
attack and the means of defense sufficient to characterize the latter as reasonable. WHEREFORE, in light of all the foregoing, we DENY the petition. The assailed
decision and resolution of the CA dated November 15, 2001 and April 5, 2002,
respectively, in CA-G.R. CR No. 24181 are AFFIRMED with the MODIFICATION that
The Proper Penalty the petitioner is ordered to pay the heirs of Winnie Alon the amount of P50,000.00 as
moral damages. Costs against the petitioner.
The imposable penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal in its full range.50 Article 69 of the Code however provides that: SO ORDERED.

ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Articles 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or lacking.

Since the petitioner’s plea of self-defense lacks only the element of "reasonable
means," the petitioner is, therefore, entitled to the privileged mitigating circumstance
of incomplete self-defense. Consequently, the penalty for homicide may be lowered
by one or two degrees, at the discretion of the court.
G.R. No. L-30801 March 27, 1974 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
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, complications.
vs.
DOMINGO URAL, accused-appellant. Napola died on August 25, 1966. The sanitary inspector issued a certificate of death
indicating "burn" as the cause of death (Exh. B).
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A.
Torres and Solicitor Vicente P. Evangelista for plaintiff-appellee. 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
Vicente Cerilles and Emeliano Deleverio for accused-appellant. 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
AQUINO, J.:p
It noted that Rufina Paler, the victim's widow, who was present in court, was a vital
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. witness who should have been presented as a witness to prove the victim's dying
Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of murder, declaration or his statements which were part of the res gestae.2
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). 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.
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 His story is that at around nine o'clock in the evening of July 31, 1966 he was in the
to Barrio Camongo, Dumalinao where his father resided. On July 31, 1966, he municipal jail on guard duty. He heard a scream for help from Napola. He entered the
intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him cell and found Napola's shirt in flames. With the assistance of Ernesto Ogoc and
in the town. He decided to sleep in the Buug municipal building where there would be Anecio Siton, Ural removed Napola's shirt. Ural did not summon a doctor because,
more security. according to Napola, the burns were not serious. Besides, he (Ural) was alone in the
municipal building.
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 Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a
acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola. As a complete liar", testified that she heard Napola's scream for help. She saw that
consequence of the fistic blows, Napola collapsed on the floor. Ural, the tormentor, Napola's shirt was burning but she did not know how it happened to be burned. She
stepped on his prostrate body. said that Ural and Siton removed the shirt of Napola and put out the fire.

Ural went out of the cell. After a short interval, he returned with a bottle. He poured its Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at
contents on Napola's recumbent body. Then, he ignited it with a match and left the eight-thirty in the evening of July 31st. Matugas denied that Alberio was in the
cell. Napola screamed in agony. He shouted for help. Nobody came to succor him. municipal building at eight o'clock.

Much perturbed by the barbarity which he had just seen, Alberto left the municipal The trial court held that Ural's denials cannot prevail over the positive testimony of
building. Before his departure, Ural cautioned him: "You better keep quiet of what I Alberio. It observed that Ural's alleged act of removing Napola's burning shirt was at
have done" (sic). Alberto did not sleep anymore that night. From the municipal most an indication that he was "belatedly alarmed by the consequence of his evil act"
building, he went to the crossing, where the cargo trucks passed. He hitchhiked in a but would not mean that he was not the incendiary.
truck hauling iron ore and went home.
Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility
Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old of Alberio, pointed out that he was not listed as a prosecution witness and that he was
victim, whom she treated twice, sustained second-degree burns on the arms, neck, convicted of murder.
left side of the face and one-half of the body including the back (Exh. A). She testified
that his dermis and epidermis were burned. If the burns were not properly treated, Those circumstances would not preclude Alberio from being a credible witness. It
death would unsue from toxemia and tetanus infection. "Without any medical 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 The trial court correctly held that the accused took advantage of his public position
was investigated by a special counsel of the fiscal's office. That might explain why it (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated Napola if he was
was not immediately discovered that Alberio was an eyewitness of the atrocity not a policeman on guard duty. Because of his position, he had access to the cell
perpetrated by Ural. 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
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman judicial leniency. The methods sanctioned by medieval practice are surely not
Matugas are compatible with the prosecution's theory that Ural burned Napola's shirt. appropriate for an enlightened democratic civilization. While the law protects the
Ultimately, the factual issue is: who should be given credence, Alberio or Ural? As police officer in the proper discharge of his duties, it must at the same time just as
already stated, the trial court which had the advantage of seeing their demeanor and effectively protect the individual from the abuse of the police." U.S. vs. Pabalan, 37
behavior on the witness stand, chose to believe Alberio. This Court, after a searching Phil. 352).
scrutiny of the whole record, does not find any justification for disbelieving Alberio.
But the trial court failed to appreciate the mitigating circumstance "that the offender
This case is covered by article 4 of the Revised Penal code which provides that had no intention to commit so grave a wrong as that committed" (Par. 3, Art. 13,
"criminal liability shall be incurred by any person committing a felony (delito) although Revised Penal Code). It is manifest from the proven facts that appellant Ural had no
the wrongful act done be different from that which he intended". The presumption is intent to kill Napola. His design was only to maltreat him may be because in his
"that a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], drunken condition he was making a nuisance of himself inside the detention cell.
Rule 131, Rules of Court). When Ural realized the fearful consequences of his felonious act, he allowed Napola
to secure medical treatment at the municipal dispensary.
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 Lack of intent to commit so grave a wrong offsets the generic aggravating,
the evil caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las circumstance of abuse of his official position. The trial court properly imposed the
condiciones preexistentes (como las condiciones patologicasdel lesionado, la penalty of reclusion perpetua which is the medium period of the penalty for murder
predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las condiciones (Arts. 64[4] and 248, Revised Penal Code).
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- Finding no error in the trial court's judgment, the same is affirmed with costs against
336). the appellant. So ordered.

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
G.R. No. 139542 June 21, 2001 out of his vehicle to warn the appellant not to flee. He then took the wounded
members of his family to the exit where there was an ambulance standing by. The
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, three were then taken to the Sta. Monica Hospital and were later transferred to the
vs. Quezon City Medical Center.
INOCENCIO GONZALEZ, JR., accused-appellant.
The defense’s version of the incident is that Andres cut the appellant’s path by
GONZAGA-REYES, J.: positioning his FX obliquely along the appellant’s lane from the latter’s left side.
Andres then got out of his vehicle, stood beside the appellant’s car window, and
repeatedly cursed the appellant, "Putang ina mo, ang tanda-tanda mo na hindi ka pa
Many unfortunate tragedies would not have happened if the improvident use of a marunong magmaneho. Ang bobo-bobo mo."3 The appellant stayed inside his car
firearm did not exacerbate a simple altercation over traffic. This is one of them. and allegedly replied, "Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente
lang." The appellant Gonzalez and another witness for the defense, Quidic, testified
On a day intended to pay homage to the dead, a pregnant woman was shot to death that Noel Andres went back to his vehicle to move it in such a way that it is straight in
in the course of her husband’s altercation with the accused-appellant and his son front of the appellant’s car. Andres allegedly got out of his vehicle again and
along the Garden of Remembrance within the Loyola Memorial Park in Marikina. The continued shouting and cursing at the appellant. 4 Dino, the appellant’s son, who rode
trial court found the accused guilty of the complex crime of murder and two counts of in another vehicle decided to go back when he did not see his father’s car behind him.
frustrated murder and accordingly sentenced him to death. This case is before us on When Dino arrived at the scene he confronted Andres and the two had an altercation.
automatic review. Both Dino and the appellant stated that Andres remained outside his vehicle during
the altercation with Dino. When Andres suddenly reached for something inside his
The details of what actually transpired in the few seconds immediately preceding the vehicle, Dino froze on the spot where he stood. This prompted the appellant to get his
shooting are controverted by both parties but the events leading to this tragedy are gun from the glove compartment and feeling that his son was threatened he got out of
not disputed. his car ready to shoot. When he saw that Andres did not have a weapon he put down
his hand holding the gun. This is when the appellant’s daughter Trisha who was riding
in Dino’s car arrived at the scene, walked past Dino and Andres, and pushed the
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the appellant away. She hugged her father and in the process held his hand holding the
private complainant Noel Andres and that of the accused-appellant Inocencio gun. The appellant tried to free his hand and with Trisha’s substantial body weight
Gonzalez were on their way to the exit of the Loyola Memorial Park. The appellant pushing against him the appellant lost his balance and the gun accidentally fired. The
was driving a white Isuzu Esteem with his grandson and three housemaids, while the accused stated that he did not know he shot somebody until the private complainant’s
private complainant was driving a maroon Toyota FX with his pregnant wife Feliber sister-in-law, Francar Valdez, got out of the vehicle carrying a bloodied small boy. The
Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law, defense claims that the appellant did not try to flee and even told the complainant’s
Francar Valdez. At the intersection near the Garden of Remembrance, while the sister-in-law to take the wounded to the hospital.
accused-appellant Gonzalez was turning left towards the exit and the complainant
Noel Andres was headed straight along the road to the exit their two vehicles almost
collided. Noel Andres was able to timely step on the brakes. The appellant continued On November 4, 1998 an Information for the complex crime of Murder, Double
driving along his way while Noel Andres drove behind the appellant’s vehicle for some Frustrated Murder and Attempted Murder was filed against herein accused-appellant:
time and cut him off when he found the opportunity to do so. 1 Noel Andres then got
out of his vehicle and knocked on the appellant’s car window. 2 This is as far as their "That on or about the 31st day of October 1998, in the city of Marikina,
versions of the incident coincide. Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously with
The prosecution’s version of the incident is that Noel Andres calmly told the appellant intent to kill, attack, assault and employ personal violence by means of
to be careful with his driving and informed the latter that he, Andres, is with his family treachery and abuse of superior strength upon the person of Noel Andres y
and to this Gonzalez allegedly replied, "Accidents are accidents, what’s your Tomas, by then and there shooting him with a Glock cal. 9mm pistol but
problem." Andres stated that he saw the appellant turning red in anger so he decided instead hitting one Feliber Andres y Ordoño, on the left back portion of her
to go back to his vehicle when he was blocked by the appellant’s son who said, head, thereby inflicting upon her serious and mortal wound which directly
"Anong problema mo sa erpat ko." Andres testified that he felt threatened and so he caused her death, as well as hitting John Kenneth Andres y Ordoño and
immediately boarded his vehicle, sat at the driver’s seat, closed the door, and partially Kevin Valdez y Ordoño physical injuries which ordinarily would have caused
opened the car window just wide enough to talk back to appellant’s son, Dino. their death, thus performing all the acts of execution which would have
Suddenly, one of his passengers said "Binaril kami". He turned to his wife Feliber produced the crime of murder as a consequence, but nevertheless did not
Andres and saw her bloodied and unconscious. He turned around and saw his son produce it by reason of some cause or causes, independent of their will, that
Kenneth and nephew Kevin were also wounded. Andres admitted in court that he and is, the timely and able medical assistance rendered to John Kenneth Andres
Dino were shouting at each other so that he did not hear the shot. Andres then got y Ordoño and Kevin Valdez y Ordoño to their damage and prejudice as well
as to the damage and prejudice of the heirs of Feliber Andres y Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the crimes charged. car driven of the accused and cut cross his path; Second is when Noel
Andres alighted from his vehicle and confronted Inocencio; Third is when
The case records show that Feliber Andres, the wife of Noel Andres did not die Noel had an argument with Dino Gonzalez, the son of the accused; Forth is
instantaneously. She lived to give birth to a baby girl 5 by caesarian section and died when, Inocencio seeing his son having confrontation with Noel, got his gun
the following morning on November 1, 1998. The Autopsy Report 6 states: to protect Dino; and Fifth is when Inocencio had a struggle with his daughter.
Trisha Gonzalez, who tried to reach for the gun and as a result of which
Inocencio lost his balance and as he was falling backward to his side, his
"FINDINGS: Fairly nourished, fairly developed female cadaver, with post right arm holding the gun hit the rear window of the Tamaraw FX van and
mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. the gun accidentally went off hitting the victim, who were all then inside the
Surgical incisions were noted at left tempero-parietal region. Surgical van.
incisions is also noted at the abdominal region secondary to a caesarian
section.
The court likewise take judicial notice on the feature of the automatic pistol
used in this case which is capable of unquestionable demonstration or ought
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, to be known to judges because of their judicial functions. Practically, the
measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform stages before an automatic firearm would be capable of firing are as follows:
abraided collar measuring 0.2 cm., directed posteriorwards, slightly 1) the loading of a bullet into the chamber of the gun; 2) the cocking of the
downwards, and medialwards, fracturing the frontal, and left temporal bones, hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of
lacerating the left cerebral hemisphere, with a deformed slug fragment the trigger to unleash the hammer so that the firing pin will hit the cartridge to
embedded and recovered at the posterior lobe of the left cerebral propel the bullet out to hit the target. Realistically, it demonstrates that a gun
hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm will not fire even if the bullet is loaded in its chamber if the hammer is
from the anterior midline. There are subdural and subarachnoidal uncocked; or even if cocked if the safety pin is engaged; or even if the safety
hemorrages. Stomach contains 1 ½ glassful of partially digested food pin is disengaged if the trigger will not be pressed. However, even if the gun
particles mostly rice and meaty material. is fired if it is not aimed and leveled to the target, the purpose of firing it shall
not be achieved. Contrarily, once a gun is drawn against a person, the
CONCLUSION: Cause of death is gunshot wound on the head." means methods and forms employed for its execution is already conceived.
And once it is tended directly and specifically to insure its execution, it
Kenneth and Kevin were treated for extraction of metallic fragments on their faces. consequently produces the conscious and deliberate intention. Finally if all
They were discharged from the hospital six days later or on November 6, 1998. the acts of execution had been effectively done without risk on the part of the
offender arising from any defense coming from the offended party, treachery
results. In brief, there is treachery when the offender commits any crime
On June 25, 1999 the trial court rendered judgement finding that the shooting was against persons, employing means, methods and forms in the execution
attended by the qualifying circumstance of treachery and held the appellant guilty of thereof which tend directly and specially to insure its execution, without risk
the complex crime of murder for the death of Feliber Andres and for two counts of to himself arising from any defense which the offended party might make
frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and (People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No.
sentenced the appellant to the maximum of the imposable penalty which is death. 112445, March 7, 1996). To appreciate treachery two (2) conditions must be
The trial court held: present, to wit: 1) the employment of means of execution that give the
person attacked no opportunity to defend himself or retaliate; and 2) the
"Beforehand, the Court takes note of the judicial admissions on the verbal means of execution were deliberately or consciously adopted. (People vs.
declarations of the accused that the court ‘a quo’ has jurisdiction over the Azugue, 268 SCRA 711; People vs. Peña, G. R. No. 116022, July 1, 1998,
case; that he owns the black Gluck 9 mm. automatic pistol; that the said gun p. 1)
will never fire even if he drops it; that only one bullet was fired from his gun;
and that the victim Feliber Andres is already dead. With this exegesis and In the case at bar and guided with the above-quoted doctrinal cases,
the declarations in open court of the eyewitness of both the prosecution and logically, the accused is positive of the crime charged against him. When he
some of the defense, there is no real dispute on the antecedent facts alighted with a drawn gun to protect his son and released all the safety
showing that the accused fired on Noel Andres but instead hit and caused measures of his gun as he fired and missed at Noel who was then unarmed,
the fatal injuries to the victims John Kenneth Andres, Kevin Valdez and but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres
Feliber Andres resulting to the ultimate death of the latter. The court takes which resulted to the death of the latter, demonstrate that the accused has
further judicial admissions of the accused made in their memorandum executed the two (2) conditions to generate treachery enough to qualify the
demonstrating the existence of five (5) sequences of events leading to the crime committed to murder."
death of Feliber Andres and the wounding of John Kenneth Andres and
Kevin Valdez which are as follows: First is when Noel Andres overtook the
XXXX XXXXX XXXX
"WHEREFORE, foregoing premises considered, the accused Inocencio In his appeal, Gonzalez submits the following assignments of error:
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of
the complex crime of Murder with Double Frustrated Murder and Attempted "1. The trial court committed reversible error when it found that treachery
Murder penalized under Art. 248, as amended by Republic Act No. 7659 in was present.
relation to Article 48 of the Revised Penal Code and is sentenced to suffer
the maximum penalty of Death by lethal injection.
2. The trial court committed reversible error when it presumed that there was
treachery by taking judicial notice of the feature of the automatic pistol
The accused is further ordered to pay the following civil liabilities: involved in this case.

1. To the private complainant Noel Andres: 3. The trial court committed reversible error when it violated the
constitutional right of the accused-appellant to due process when it took
a) the amount of P50,000.00 as indemnity for the death of Feliber judicial notice of the feature of the automatic pistol involved in this case
Andres; without notice.

b) the amount of P3,363,663.60 as indemnity for the loss of earning 4. The trial court committed reversible error when it found Accused-Appellant
capacity of the deceased Feliber Andres; guilty beyond reasonable doubt of the complex crime of Murder with Double
Frustrated Murder.
c) the amount of P98,384.19 as funeral expenses;
5. The trial court committed reversible error when it failed to appreciate the
d) the amount of P271,800.56 for the hospitalization expenses mitigating circumstances of passion or obfuscation, lack of intention to
incurred for the injuries sustained by the deceased Feliber Andres commit so grave a wrong, provocation or threat on the part of the offended
and the amount of P23,622.58 representing the expenses for the party immediately preceded the act, incomplete defense of relative, and
untimely delivery of the child Ma. Clarisse Andres; voluntary surrender.

e) the amount of P51,566.00 representing the hospitalization 6. The trial court committed reversible error when it failed to find that the
expenses for the injuries sustained by the victim John Kenneth shooting incident was accidental.
Andres;
7. The trial court committed reversible error when it gave credence to the
f) the amount of P150,000.00 as moral damages suffered for the testimonies of prosecution witnesses Elmer Ramos and Moises Castro.
untimely death of his wife Feliber Andres and for the injuries
caused to his son John Kenneth Andres; 8. The trial court committed reversible error when it disregarded the basic
principle that the accused is presumed innocent and his guilt must be proven
g) the amount of P50,000.00 as and by way of attorney’s fees and beyond reasonable doubt.
a fee of P2,000.00 per appearance; and
9. The trial court committed reversible error when it ordered Accused-
h) the costs of the suit. Appellant to pay for the civil liabilities."

2. To the private complainant Nicasio Valdez: The appellant seeks a reversal and prays that judgment be rendered exempting him
from criminal and civil liabilities. Appellant declared that he had no intention to shoot
Noel Andres much less his wife nor the children. He lost his balance when his
a) the amount of P73,824.75 as actual damages for the injuries daughter Trisha approached and pushed him backwards to stop him from joining Dino
sustained by the victim Kevin Valdez; and and Noel Andres but the appellant tried to free his right hand holding the gun and it
accidentally fired. The single bullet fired hit the last window on the left side of the
b) the amount of P75,000.00 as and by way of moral damages. Tamaraw FX. The appellant claims that he did not see the passengers inside the
vehicle at the time of the shooting. This is corroborated by the testimony of two
SO ORDERED." witnesses for the prosecution who testified that the windows of Andres’ vehicle are
heavily tinted so that a person outside the vehicle would not be able to see if there
are people inside. It is also argued that had the appellant intended to shoot Noel
Andres he could have simply done so by shooting at him directly. The defense Finally, the appellant assigns as error the trial court’s rejection of the mitigating
asserts that the evidence for the prosecution failed to establish the attendance of circumstances pleaded by the defense which allegedly attended the commission of
treachery and without the attendance of the said qualifying circumstance the crime the crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation,
committed is homicide, not murder. incomplete defense of a relative and voluntary surrender. The appellant asserts that
these mitigating circumstances were duly proven during the trial and are supported by
The appellant also points out that the trial court made the factual finding that the the evidence on record. The private complainant Noel Andres testified that he saw the
shooting happened in a matter of seconds and that it was preceded by a heated appellant getting red in anger after they, Andres and the appellant, had a heated
argument between the parties. Such being the case, it is argued that the shooting argument immediately prior to the shooting. These admitted circumstances show that
could not have been attended by treachery. There was no time for the appellant to the appellant was not in his proper state of mind at the time of the shooting. First, he
consciously and deliberately employ the mode of attack against Noel Andres, nor was angered by Andres’ abusive language and later he got out of his car with a
against any one of the actual victims, to insure its execution and at the same time to loaded gun to protect his son from a perceived danger. The appellant clams that his
eliminate any form of retaliation from the alleged intended victim. And yet, the trial willingness to help the injured and his voluntary surrender to the police should
court, contrary to the evidence on record, held that the loading of the bullet into the likewise be considered as mitigating circumstances in the imposition of penalties.
chamber of the gun, the cocking of the hammer, the release of the safety pin and the
pulling of the trigger by the appellant of his automatic pistol constitute conscious and The Solicitor-General agrees with the appellant that the crime was not attended by
deliberate effort to employ the gun as a means of committing the crime and the qualifying circumstance of treachery and hence the crime committed by the
resultantly, qualified its commission by treachery. Such a finding presupposes that the appellant for the death of Feliber Andres is homicide, not murder. The appellee takes
appellant loaded the gun to shoot Noel Andres only that very moment when his son into consideration that the shooting was preceded by a heated argument and that the
Dino and Noel Andres were arguing. This conclusion has no basis on record. The supposed victim was placed on guard that attack was imminent. It also appears that
appellant testified that his gun was loaded before he left the house and two witnesses the shooting was done impulsively. There is no evidence that the appellant
for prosecution stated in court that a few seconds after Noel Andres and Dino started deliberately employed the means of attack to insure execution of the crime and at the
shouting at each other, the appellant got out of his car and shot at the last window on same time eliminate the risk of retaliation from the private complainant. The appellee
the left side of the complainant’s vehicle. Further, the appellant assigns as error the also agrees with the appellant that the trial court erred in equating the use of an
procedure adopted by the trial court in taking judicial notice that the gun used by the automatic pistol with treachery. The trial court made the factual finding that the
appellant is an automatic pistol and as such, it will not fire unless aimed at the appellant’s automatic pistol would not fire unless aimed and the trigger is deliberately
intended target. The procedure taken by the trial court is contrary to Section 3, Rule pulled and hence treachery attended the shooting. The appellee submits that if we
129 of the Rules of Court.7 The trial court should have given both parties the follow the reasoning of the trial court it would appear that the appellant intended to
opportunity to present evidence, expert evidence, if necessary, to inform the court on shoot at the complainant’s vehicle only as the shot was fired at the last window on the
the subject matter. The appellant argues that the factual finding borne by such left side of the FX away from where Andres was allegedly seated. The fact that the
erroneous procedure is equally erroneous. The gun used by the appellant is a semi- gun was drawn and fired does not mean that the mode of attack was consciously and
automatic and not an automatic pistol which means that the pistol used has no deliberately employed.
external safety pin to be released and that the hammer need not be cocked. The
pulling of the trigger, intentional or not, will fire the gun. The use of a semi-automatic However, with respect to the injuries sustained by Kevin and Kenneth, the appellee
pistol does not necessarily imply treachery. disagrees with the contention that the appellant is liable only for slight physical
injuries. The injuries sustained by both children are head injuries and could have
Appellant also argues that the testimonies of prosecution witnesses Castro and caused their death if not for the immediate medical attention given them. The number
Ramos were improperly given credence by the trial court. The appellant contends that of days spent in the hospital is not determinative of the severity of the wounds. Their
a reading of their testimonies would show that their narration of the incident is rather nature and location should instead be considered. The appellant cannot escape
absurd and would show that they did not witness the actual shooting. Defense liability for frustrated homicide for the injuries of the two children on the ground that he
witnesses, Gonzalez and his daughter, Trisha, on the other hand, testified that Castro fired a single shot at the vehicle of Noel Andres. He is liable for all the consequences
and Ramos arrived at the scene only after the shooting. of his unlawful act even if the crime committed is different from that intended.

As regards the injuries sustained by Kevin and Kenneth, it is argued that considering As regards the pleaded mitigating circumstances, appellee asserts that none can be
that there was no intent to kill and that they stayed in the hospital only for six days, considered in favor of the appellant. There is evidence on record that the appellant
the crime committed is physical injuries. It is argued that the trial court erred in did not voluntarily surrender to the police and it appears from the testimonies of
awarding damages. The bunch of receipts allegedly representing the medical witnesses that he entertained the possibility of flight but his car was stuck in traffic
expenses incurred for the injuries sustained by the victims was erroneously admitted along the exit of the memorial park. His pretense of incomplete defense of a relative
in evidence, without first requiring the prosecution to establish the authenticity of the is belied by his own admission that when he saw that Noel Andres did not have a gun
receipts. The appellant also points out that the award for loss of earning capacity has he lowered his hand holding the gun. There was allegedly no threat on the life of his
no basis as the deceased was unemployed at the time of the incident. son at the time of the shooting, no uncontrollable fear nor irresistible force that would
mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial This Court has also had occasion to state that whether or not the attack succeeds
court. The appellee alleges that it is not denied by the appellant that Feliber Andres against its intended victim or injures another or whether the crime committed is graver
was a 38 year old registered nurse at the time of the shooting. Although she was then than that intended is immaterial, as long as it is shown that the attack is attended by
unemployed on account of her pregnancy, she still had earning capacity and the trial treachery, the said qualifying circumstance may still be considered by the
court properly applied the salary of a government nurse under the salary court.15 Thus, the determining factor on whether or not the commission of a crime is
standardization scheme in the computation of damages for the loss of earning attended by treachery is not the resulting crime committed but the mode of attack
capacity. The receipts presented in evidence by the prosecution to establish employed in its execution.16
hospitalization and other medical expenses incurred by the private complainants by
reason of the injuries suffered by the victims were duly authenticated by the Treachery is never presumed. It is required that the manner of attack must be shown
prosecution witnesses and there is no dispute that they are exact copies of the to have been attended by treachery as conclusively as the crime itself. 17
original receipts presented in court. The objections raised by the appellant in this
regard were duly met by the evidence presented by the private complainants.
We affirm the recommendation of the Solicitor-General that the shooting was not
attended by treachery and accordingly the crime committed for the death of Feliber
In sum, the appellee asserts that considering that the appellant fired a single shot and Andres is homicide and not murder.
in the process committed four offenses the appellant should be held liable for the
complex crime of homicide for the death of Feliber Andres, double frustrated homicide
against Kevin and Kenneth and attempted homicide against Noel Andres. Under the The encounter between Noel Andres and the appellant was a chance encounter.
rules on complex crimes the penalty for the gravest offense, i.e., reclusion They were total strangers before their vehicles almost collided at an intersection
temporal for homicide, should be imposed in its maximum period. inside the memorial park. Unfortunately, heated exchange of remarks that followed
the near collision was fanned by a short temper, which in the case of the appellant,
was augmented by the improvident use of a firearm.
The appeal has merit.
From a reading of the transcript of the testimonies of the witnesses, it would appear
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the that Noel Andres, who had his pregnant wife and child with him, among others, on
deliberate employment of means, methods or forms in the execution of a crime board the Tamaraw FX provoked the altercation. After the near collision of his vehicle
against persons which tend directly and specially to insure its execution, without risk with that of the appellant, he tailed behind the latter’s car towards the exit until he had
to the offender arising from the defense which the intended victim might raise. For the chance to cut him off to scold him for his failure to observe traffic rules. 18 Andres
treachery to be appreciated two elements must concur: 1) the employment of means stated in court that he calmly told the appellant to be careful with his driving and
of execution that would insure the safety of the accused from retaliatory acts of the denied that he was angry when he alighted from his vehicle to confront the
intended victim and leaving the latter without an opportunity to defend himself and 2) appellant.19 His statement is belied by the witnesses, two prosecution witnesses
the means employed were deliberately or consciously adopted by the offender. 8 The included, who uniformly testified that Andres quarreled with or shouted and cursed at
suddenness of the attack, the infliction of the wound from behind the victim, the the appellant for the latter’s recklessness at the intersection.20 The appellant narrated
vulnerable position of the victim at the time the attack was made or the fact that the in court that Andres repeatedly shouted at him, "Putang ina mo, ang tanda-tanda mo
victim was unarmed do not by themselves render the attack as treacherous. 9 This is na gago ka pa".21 Andres’ hostile behavior towards the appellant is evident from his
of particular significance in a case of an instantaneous attack made by the accused statement in court that he noticed the appellant turning red in anger. 22 It is highly
whereby he gained an advantageous position over the victim when the latter improbable for Gonzalez to have turned red in anger had Andres been polite, as he
accidentally fell and was rendered defenseless.10 The means employed for the claims he was, in scolding Gonzalez. Andres could have simply communicated to the
commission of the crime or the mode of attack must be shown to have been appellant his disgust for the latter’s bad driving when he overtook the appellant’s car
consciously or deliberately adopted by the accused to insure the consummation of the near the scene of the shooting but instead he chose to block the appellant’s path,
crime and at the same time eliminate or reduce the risk of retaliation from the insult and virtually provoke the appellant to retaliate.
intended victim.11 Accordingly, it has been consistently held by this court that chance
encounters, impulse killing or crimes committed at the spur of the moment or that
were preceded by heated altercations are generally not attended by treachery for lack Andres stated in court that when he noticed Gonzalez’ infuriation he immediately
of opportunity of the accused to deliberately employ a treacherous mode of walked towards his vehicle, because according to him the altercation was over. On
attack.12 Thus, the sudden attack made by the accused due to his infuriation by his way to his FX he met another man, whom he later found out to be the appellant’s
reason of the victim’s provocation was held to be without treachery. Sudden attacks son, Dino. It appears that the altercation was far from over because again Andres had
made by the accused preceded by curses and insults by the victim or acts taunting a shouting match this time with Dino.23 In a matter of seconds, the appellant alighted
the accused to retaliate or the rebellious or aggressive behavior of the victim were from his car and fired a single shot at the last window on the left side of Andres’
held to be without treachery as the victim was sufficiently forewarned of reprisal. 13 For vehicle at an angle away from Noel Andres. The single bullet fired hit Feliber Andres
the rules on treachery to apply the sudden attack must have been preconceived by on the forehead near the temporal region above the left eye and the two children with
the accused, unexpected by the victim and without provocation on the part of the metallic fragments of the bullet on their faces, one at the cheek and the other below
latter.14 his left eye.
The prosecution did not present evidence as to the exact seating arrangement of the appellant’s car was not of his own doing but it became so when Noel Andres overtook
victims inside the vehicle; suffice it to say, that an examination of the pictures of the his car and cut off his path.
vehicle24 one of which shows a mass of blood stains on the left side (towards the
driver’s seat) of the white seat cover below the head rest25, would show that the We note further, that the appellant did not act belligerently towards Noel Andres even
deceased Feliber must have been seated at the front passenger’s seat and the after the latter cut off the appellant’s path. Andres stated in court that the appellant did
children at the middle row behind the driver’s seat.26 Another picture shows a bullet not alight from his car nor opened his window until he, Andres, tapped on it. 35 For his
hole on the last window on the left side of the vehicle27 and another shows that the part Gonzalez categorically stated in court that he did not point his gun nor threatened
front windshield appears undamaged.28 A ballistics expert appeared in court for the Andres during their short spat.36 Gonzalez, although he had his gun in his car, did not
prosecution and testified that the bullet fired at the FX came from the appellant’s gun, react to Andres’ cursing until the latter was having an altercation with the appellant’s
which fact was admitted by the defense. The prosecution did not inquire from the son, Dino. Gonzalez claimed that he perceived that his son was in imminent
ballistics expert regarding the trajectory of the bullet or the approximate distance of danger.37 Whether he overreacted or he shot at Andres’ vehicle out of rage over
the appellant from the FX when he fired his gun to establish whether or not the Andres’ aggressive behavior, one thing appears clear to us, that the shooting was not
appellant aimed for Noel or Feliber or simply fired indiscriminately at the latter’s done in cold blood. It is undisputed that the windows of the FX are heavily or darkly
vehicle.29 tinted so that a person outside would not see if anybody was inside. 38 The pictures of
the FX39 on record confirm the testimonies of both prosecution and defense witnesses
At first blush it would seem that the shooting of Feliber Andres was attended by that the other passengers of the FX were not visible from the outside. Gonzalez
treachery as she was inside the FX witnessing her husband’s altercation, first, with admitted in court that Noel Andres mentioned that he has passengers with him while
the appellant then with the appellant’s son, totally defenseless from the shot that he was shouting and cursing at Gonzalez but there is no indication that Gonzalez had
came suddenly from her left side. Public outrage over the death of Feliber was any opportunity to see the passengers when he fired the shot. The totality of the
heightened by the fact that she was then pregnant with her second child and her evidence on record fails to support a conclusion that Gonzalez deliberately employed
death left a new born baby girl and a two year old boy motherless. the mode of attack to gain undue advantage over the intended nor the actual victim.
Without any decisive evidence to the contrary, treachery cannot be considered; thus
However, a meticulous review of the evidence prevents a conclusive finding of the crime committed is homicide.40
treachery and any doubt must be resolved, like the fact of the commission of an
offense, in favor of the accused. The pictures indicate that Gonzalez fired at the FX at The trial court’s finding that the loading of the gun, the cocking of the hammer and
an angle away from Noel Andres and that Gonzalez was not aiming at anybody in finally the pulling of the trigger constitute a deliberate effort on the part of appellant to
particular. It is not disputed that the appellant’s car was directly behind the use the gun as a means of a treacherous attack is patently erroneous. A single and
complainant’s FX and that Gonzalez who was then seated at the driver’s seat alighted continuous attack cannot be divided into stages to make it appear that treachery was
from his car, took a few steps then fired at the left side of the FX. Whether Noel involved.41 The entire incident happened in a matter of minutes, as testified to by
Andres was seated at the driver’s seat inside his vehicle when Gonzalez fired at the witnesses, and as noted by the trial court.42 It was error to our mind for the trial court
FX, as the prosecution asserts, or was standing by the door of the driver’s seat to divide the assault in stages to arrive at the conclusion that the mode of attack was
outside his vehicle, as the defense submits, it is clear that the shot was fired away consciously employed by the appellant. Contrary to the finding of the trial court that
from Noel Andres. The bullet hit Feliber near her temple above the left eye indicating the appellant prepared the gun before getting out of his car, the appellant testified that
that she was facing left towards her husband when the shot was fired. 30 The direct hit he loaded his gun before he left the house and that it was ready to fire when he
on Feliber’s head shows that the angle of the shot was indeed away from Noel alighted his car. There was no time for him to reflect on the mode of attack since he
Andres. Even the eyewitness for the prosecution testified that had the appellant just picked up his gun and alighted from his car and shot at the FX a few seconds
intended to kill Noel Andres he could have shot directly at him, considering that Noel after Dino and Noel Andres started shouting at each other. 43 We note further that the
Andres was just a few steps away from him31 and that Noel Andres was visible from trial court pointed out that from the fact that the appellant prepared his gun to shoot,
the outside because his window was partially open.32 The pictures show that the this was an indication of the deliberate employment of the gun as a means to kill; i.e.
bullet hole was on the third window on the left side of the Tamaraw FX33 belying any that the use of an automatic pistol shows that the shooting was attended by
attempt to shoot Noel Andres. Two prosecution witnesses Ramos and Castro treachery.
unequivocally declared that "nothing or no one" prevented Gonzalez from shooting
directly at Noel Andres and that Gonzalez could have simply done so if he wanted to. We do not agree that the weapon used, by itself, is determinative of treachery, unless
But after alighting from his car, Gonzalez took a few steps and shot at the left side it is shown, and it is not herein shown, that the appellant deliberately used the gun to
window of the FX.34 insure the commission of the crime and to render the unarmed victim defenseless. As
discussed above, the encounter between the appellant and the Andresses was a
The fact that the appellant fired his gun from behind the victim does not by itself chance encounter and the appellant’s gun was in the glove compartment of his car
amount to treachery. There is no evidence on record that the appellant deliberately even before he left his house. The shooting was clearly a spur of the moment or
positioned himself behind the victim to gain advantage over him when he fired the impulsive decision made by the appellant preceded by a heated altercation at the
shot. On the contrary, the evidence before us reveals that the position of the instance of the private complainant. Jurisprudence teaches us that under the
circumstances, treachery is not obtaining. In the case of People vs. Valles, 44 the
accused, a security guard, fired his Armalite and mortally wounded the victim when The mitigating circumstance of passion and obfuscation is also not obtaining. For this
the latter approached the accused four times insisting on entering the workplace mitigating circumstance to be considered, it must be shown that (1) an unlawful act
wearing improper uniform, then cursed and insulted and challenged the accused to a sufficient to produce passion and obfuscation was committed by the intended victim;
fight. We held that the shooting was not attended by treachery as the shooting was (2) that the crime was committed within a reasonable length of time from the
preceded by a heated altercation at the instance of the victim. It is to be noted that the commission of the unlawful act that produced the obfuscation in the accused’s mind;
kind of weapon used against an unarmed victim was not taken into consideration in and that (3) "the passion and obfuscation arose from lawful sentiments and not from a
determining the attendance of treachery; it is the mode of attack employed by the spirit of lawlessness or revenge".52 Noel Andres’ act of shouting at the appellant’s
accused under the particular circumstances of a case that determines its attendance son, who was then a nurse and of legal age, is not sufficient to produce passion and
in the commission of a crime. We find that the prosecution has not discharged its obfuscation as it is claimed by the accused. Besides, the appellant’s son, Dino was
burden to show that the shooting was attended by treachery and we are convinced shouting back at Noel Andres. It was not a case wherein the appellant’s son
that the crime committed for the death of Feliber Andres is homicide. appeared helpless and oppressed that the appellant lost his reason and shot at the
FX of Noel Andres. The same holds true for the appellant’s claim of provocation on
As regards the injuries sustained by the two children we find that the crime committed the part of Noel Andres. Provocation must be sufficient to excite a person to commit
are two counts of slight physical injuries. The intent to kill determines whether the the wrong committed and that the provocation must be commensurate to the crime
crime committed is physical injuries or homicide and such intent is made manifest by committed. The sufficiency of provocation varies according to the circumstances of
the acts of the accused which are undoubtedly intended to kill the victim. 45 In a case the case.53 The aggressive behavior of Noel Andres towards the appellant and his
wherein the accused did not know that a person was hiding behind a table who was son may be demeaning or humiliating but it is not sufficient provocation to shoot at
hit by a stray bullet causing superficial injuries requiring treatment for three days, the the complainant’s vehicle.
crime committed is slight physical injuries.46 In case of doubt as to the homicidal
intent of the accused, he should be convicted of the lesser offense of physical The plea for the appreciation of the mitigating circumstance of incomplete defense of
injuries.47 We have earlier pointed out that the intent to kill is absent in this case. It a relative is also unmeritorious since the act of Andres in cursing and shouting at the
was also found that one small metallic fragment was extracted from Kenneth below appellant and his son do not amount to an unlawful aggression against them, Dino
his left eye while another fragment was extracted from Kevin "immediately below the Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack
level of his skin before the cheek bone".48 An examination of the testimonies of the of intent to commit so grave a wrong is likewise devoid of merit. This mitigating
attending physicians, showed that the wounds sustained by the two children from the circumstance is obtaining when there is a notable disparity between the means
metallic fragments are not in themselves fatal but may cause death if left untreated. employed by the accused to commit a wrong and the resulting crime committed. The
One of the attending physician testified in court that the fragments themselves "will intention of the accused at the time of the commission of the crime is manifested from
not cause complication, it is the entry of the fragment" or the open wound that is the weapon used, the mode of attack employed and the injury sustained by the
susceptible to infection.49 Two small fragments were no longer extracted from the victim.54 The appellant’s use of a gun, although not deliberately sought nor employed
face of Kevin Valdez, as the doctor deemed it to be without danger of in the shooting, should have reasonably placed the appellant on guard of the possible
complication.50 We note that the various sizes of the metallic fragments were not consequences of his act. The use of a gun is sufficient to produce the resulting crimes
established, at least to give an indication of the severity of the wounds sustained. committed.
Both children were discharged after six days of treatment and there is no showing
that they required subsequent treatment or that they were immobilized for a greater For the death of Feliber Andres, and in the absence of any mitigating circumstance,
number of days by reason of the injuries sustained. Considering the nature and the appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day
location of their injuries and the number of days required for their treatment, we find of prision mayor, in its medium period, as minimum to 14 years 8 months and 1 day of
that the crime committed for the injuries sustained by the children are two counts of reclusion temporal in its medium period, as maximum. For each count of the slight
slight physical injuries under Art. 266 of the Revised Penal Code which imposes a physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant
penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained that is hereby sentenced to 20 days of arresto menor in its medium period.
has incapacitated the victim for one to nine days or required medical attendance for
the same period. For evident lack of criminal intent to kill the complainant, Noel
Andres, as above stated, the information for attempted homicide must fail. The rules on the imposition of penalties for complex crimes under Art. 48 of the
Revised Penal Code are not applicable in this case. Art. 48 applies if a single act
constitutes two or more grave and less grave felonies or when an offense is a
The mitigating circumstances of voluntary surrender, passion and obfuscation, necessary means of committing another; in such a case, the penalty for the most
incomplete defense of a relative and lack of intent to commit so grave a wrong, serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal
pleaded by the defense, were not convincingly proved and none can be considered in Code in relation to Art. 25 defines grave felonies as those to which the law attaches
the imposition of penalties. The testimony of prosecution witness contradicts the the capital punishment or afflictive penalties from reclusion perpetua to prision mayor;
appellant’s pretense of voluntary surrender. Witness Ramos testified that the less grave felonies are those to which the law attaches a penalty which in its
appellant drove away towards the gate of the memorial park while he was questioning maximum period falls under correctional penalties; and light felonies are those
him after the shooting and had not Noel Andres and onlookers blocked his path the punishable by arresto menor or fine not exceeding two hundred pesos. Considering
appellant could have fled the scene of the crime.51 that the offenses committed by the act of the appellant of firing a single shot are one
count of homicide, a grave felony, and two counts of slight physical injuries, a light
felony, the rules on the imposition of penalties for complex crimes, which requires two
or more grave and/or less grave felonies, will not apply.

The pecuniary award granted by the trial court for actual damages was duly
established by the testimonies of the prosecution witnesses as supported by the
original receipts for hospitalization and other medical expenses presented in evidence
by the prosecution. The award for loss of earning capacity is likewise sustained for
the reason that while Feliber Andres was pregnant and was unemployed at the time
of death, it is not disputed that she was a registered nurse and had earning capacity.
Noel Andres also testified that he and his wife had plans to go back to Saudi Arabia to
work after Feliber had given birth to their second baby. While there is no evidence as
to Feliber’s actual income at the time of her death, in view of her temporary
separation from work because of her pregnancy, we do not consider it reversible error
for the trial court to peg her earning capacity to that of the salary of a government
nurse under the salary standardization law, as a fair estimate or reasonable
assessment of her earning capacity at the time of her death. It would be grossly
inequitous to deny her spouse and her minor children damages for the support that
they would have received, considering clear evidence on record that she did have
earning capacity at the time of her death.

The awards for moral damages for the death of Feliber Andres and for the injuries
sustained by the two children, which under the circumstances are reasonable, are
likewise sustained.

WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is
hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an
indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as
minimum, to 14 years 8 months and 1 day of reclusion temporal in its medium period,
as maximum. For each count of the slight physical injuries committed against
Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of
arresto menor.

The pecuniary awards granted by the trial court are hereby sustained.

SO ORDERED.
G.R. No. L-32040 October 25, 1977 Court:

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Your lawyer here has manifested your desire to
vs. enter a plea of guilty to the offense charged,
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants- robbery with homicide. Do you know that by
appellants. agreeing to that manifestation of your lawyer, you
will be admitting the commission of the crime
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and charged?
Solicitor Leonardo L. Cruz for appellee.
Accused:
Ciriaco Lopez, Jr. for appellants.
We agree, your honor, to what our lawyer said,
CONCEPCION, JR. J.:têñ.£îhqw⣠but we would like to explain something.

In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the Court:
accused, Pedro Pagal y Marcelino and Jose Torcelino y Torazo were charged with
the crime of robbery with homicide, committed as follows: ñé+.£ªwph!1 Your lawyer here has stated that you will still
prove mitigating circumstances. Is that what you
That on or about December 26, 1969, in the City of Manila, like to explain?
Philippines, the said accused, conspiring and confederating
together and mutually helping each other, did then and there Accused:
wilfully, unlawfully and feloniously, with intent to gain, and by
means of violence, take away from the person of one Gau Guan, Yes, your honor.
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 Court:
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 If that is the case, I will give you a chance.
there wilfully, unlawfully and feloniously, with intent to kill and taking
advantage of their superior strength, treacherously attack, assault Accused:
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 Yes, your honor.
mortal wounds which were the direct and immediate cause of his
death thereafter. Court:

Contrary to law, and with the generic aggravating circumstances of Do you know that by agreeing to that
(1) nightime purposely sought to better accomplish their criminal manifestation, you will be admitting the
design; (2) evident premeditation; (3) in disregard of the respect commission of the crime charged, robbery wit,.
due the offended party; and (4) with abuse of confidence, the homicide?
accused being then employees of the offended party. 1
Accused:
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
Yes, your honor.
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 Court:
trial judge propounded to them the questions and the accused gave the answers
quoted hereunder: ñé+.£ªwph!1
 And for which this court might sentence you to severally indemnify the heirs of the deceased Gau Guan;
death or life imprisonment? P15,000.00 for moral damages; P15,000.00 for exemplary
damages, all amounts to bear interest until they shall have been
Accused: fully paid; the sum of P1,281.00 represnting the amount taken from
the victim; and to pay proportionately the costs. 6
Yes, your honor.
The case is now before this Court for mandatory review on account of the death
penalty imposed upon the accused.
Court:
The appellant Pedro Pagal contends that the trial court erred in convicting him of the
And notwithstanding what is explained to you, crime of robbery with homicide instead of declaring him liable only for his individual
you still insist in your desire to enter a plea of acts, claiming that the record is bereft of any proof or evidence that he and his co-
guilty to the offense charged? appellant Jose Torcelino conspired to commit the crime of robbery with homicide.

Accused: 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
Yes, your honor. 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
Court: 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,
Q Notwithstanding again the warning of the court including the allegations of conspiracy. A plea of guilty when formally entered on
that the maximum penalty impossable is death? 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
A Yes, your honor. 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.
Court:
The appellants further assail the trial court in not appreciating in their favor the
mitigating circumstances of sufficient provocation, and passion or obfuscation.
Arraign the accused.

Again, the appeflants'contention is devoid of merit. Firstly, since the alleged

(At this stage, both accused were arraigned and both pleaded guilty
to the offense charged). 3 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
Thereafter, the accused presented evidence to prove the mitigating circumstances of and separate circumstances but should be treated as one. 11 Secondly, the
sufficient provocation on the part of the victim immediately preceding the act and circumstance of passion and obfuscation cannot be mitigating in a crime which — as
acting upon an impulse so powerful as to produce passion and obfuscation. After the in the case at bar — is planned and calmly meditated before its execution. Thus,
accused had rested their case, the prosecution presented the statements 4 of the in People vs. Daos, 12 a case of robbery with homicide, this Court rejected the claim
accused, and other pertinent documents regarding the investigation of the case. 5 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
After the trial, the court a quo rendered its decision, the dispositive portion of which robbery, which, before its execut,.on, had been planned and calmly meditated by the
reads as follows: ñé+.£ªwph!1 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
WHEREFORE, both accused are hereby found guilty beyond
immediately proceeding the act. We hold that the trial court did not commit any error
reasaonable doubt as principals of the crime of robbery with
in not appreciating the said mitigating circumstances in favor of the appellants.
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 Finally, the appellants claim that the trial court erred in considering the aggravating
plea of guilty, sentences each one of them to DEATH, jointly and 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.
G.R. No. 182750 January 20, 2009 Cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident.
RODEL URBANO, Petitioner,
vs. Which directly caused his death, to the damage and prejudice of the heirs of the said
PEOPLE OF THE PHILIPPINES, Respondent. Brigido Tomelden.

DECISION CONTRARY to Article 249 of the Revised Penal Code.

VELASCO, JR., J.: Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties’
waiver of pre-trial, trial on the merits then ensued.
This petition for review under Rule 45 seeks to reverse and set aside the
Decision1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. As summarized in the decision subject of review, the prosecution’s evidence
25371 which affirmed with modification the April 30, 2001 Decision 2 of the Regional established the following facts:
Trial Court (RTC), Branch 39 in Lingayen, Pangasinan in Criminal Case No. L-5028.
The RTC found petitioner Rodel Urbano guilty beyond reasonable doubt of the crime On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and
of Homicide. petitioner were at the compound of the Lingayen Water District (LIWAD) in Lingayen,
Pangasinan, having just arrived from a picnic in the nearby town of Bugallon,
The Facts Pangasinan, where, with some other co-workers, they drunk beer in a restaurant.
While inside the compound, the two had a heated altercation in the course of which
In an Information filed before the RTC, petitioner was charged with Homicide, Tomelden hurled insulting remarks at petitioner. Reacting, petitioner asked why
committed as follows: Tomelden, when drunk, has the penchant of insulting petitioner.

That on or about the 28th of September 1993 in the evening, in Barangay Poblacion, The exchange of words led to an exchange of blows. Cooler heads succeeded in
Municipality of Lingayen, Province of Pangasinan, Philippines and within the breaking up the fight, but only for a brief moment as the protagonists refused to be
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did pacified and continued throwing fist blows at each other. Then petitioner delivered a
then and there willfully, unlawfully and feloniously attack, assault, hit and maul Brigido "lucky punch," as described by eyewitness Orje Salazar, on Tomelden’s face, which
Tomelden, inflicting upon him mortal injuries and as borne out from the autopsy report made Tomelden topple down. Tomelden was on the verge of hitting his head on the
the following findings: ground had their companions not caught him and prevented the fall. The blow,
however, caused Tomelden’s nose to bleed and rendered him unconscious.
EXTERNAL FINDINGS:
Petitioner and his other co-workers brought Tomelden to the office of the LIWAD
general manager where he spent the night. He remained in the compound the
A- Softened portion of the scalp over (R) occipito-temporal area about 5 following day, September 29, 1993. Upon arriving home at around 6:00 p.m. of that
inches above and posterior to the (R) ear. day, Tomelden informed his wife, Rosario, of the fight the previous night and of his
having been rendered unconscious. He complained of pain in his nape, head, and ear
B- Clotted blood over the (R) occipito-temporal area. which impelled Rosario to immediately bring him to the Lingayen Community Hospital
where Dr. Daisy Arellano examined him and treated his lacerated left index finger,
C- No lacerations noted. contusions, and hematoma at the right cerebrum.

INTERNAL FINDINGS: On October 2 and 7, 1993, Tomelden went back to the hospital complaining of
dizziness, headache, and other pains. The attending doctors observed the patient to
be in a state of drowsiness and frequent vomiting. On October 8, 1993, Rosario
A- On opening the skull there is oozing of dark colored blood from the brain brought Tomelden to the Sison Memorial Provincial Hospital in Dagupan City, where
substances. the attending physician, Dr. Ramon Ramos, diagnosed Tomelden suffering from
"brain injury, secondary to mauling to consider cerebral hemorrhage." 3
B- More darked blood vessels at the (L) side of the brain.
Tomelden was confined in the provincial hospital until 3:00 p.m. of October 10, 1993,
CAUSE OF DEATH: and, due to financial constraints, was thereafter discharged despite signs negating
physical condition improvement. Upon reaching their house, however, Tomelden
again complained of extreme head pain, prompting his wife to bring him back to the proximate cause of Tomelden’s hospitalization and ultimately his death. And like the
Lingayen Community Hospital where Dr. Arellano again attended to him. This time, RTC, the CA found no qualifying circumstance to increase or lower the penalty.
things turned for the worst, the doctor noting that Tomelden appeared to be semi-
conscious, sleepy, uncooperative, and not responding to any stimulant. Tomelden Following the denial of petitioner’s motion for reconsideration, per the CA
died at 9:00 p.m. of that day due, per Dr. Arellano, to "cardio-respiratory arrest Resolution7 of April 24, 2008, he interposed this petition.
secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling
incident."
The Issues
The defense presented petitioner who denied having any intention to kill, asserting
that hypertension, for which Tomelden was receiving treatment, was the cause of the On essentially the same issues raised before the CA, petitioner now urges the Court
latter’s death. to set aside the appealed decision, or at least modify it, maintaining that the appellate
court:
The Ruling of the RTC
I. x x x erred in affirming the decision of the [RTC] finding [him] guilty beyond
reasonable doubt of the crime charged.
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as charged.
The fallo of the RTC’s decision reads:
II. x x x erred in not appreciating the mitigating circumstances of sufficient
provocation on the part of the victim and lack of intent to commit so grave a
WHEREFORE, the prosecution having established beyond reasonable doubt the guilt wrong in favor of the petitioner.8
of the accused of the crime of HOMICIDE as defined and penalized under Art. 249 of
the Revised Penal Code, this Court in the absence of any modifying circumstances,
hereby sentences said accused to suffer the indeterminate prison term of eight (8) The Court’s Ruling
years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four
(4) months of Reclusion Temporal as maximum and to indemnify the legal heirs of the The petition is partly meritorious.
victim in the amount of PHP50,000.00, plus cost of the suit.
Homicide Duly Proved
The period of preventive imprisonment suffered by the accused shall be credited in
full in the service of his sentence in accordance with Art. 29 of the Revised Penal It is petitioner’s threshold posture that the fistic injury Tomelden sustained was not
Code.4 "the main underlying cause of his death."9 In this regard, petitioner draws attention to
the fact that the fist fight in question happened on September 28, 1993. Tomelden,
Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR No. however, died only on October 10, 1993 or 12 days thereafter and that, during the
25371. intervening days, particularly September 29, 1993, the deceased regularly reported
for work. Moreover, petitioner avers that days prior to the fateful incident of
The Ruling of the CA September 28, 1993, Tomelden failed to come to work as he was suffering from
malignant hypertension and that this circumstance greatly engenders doubt as to the
proximate cause of the victim’s death. Petitioner, thus, contends that he could only be
On January 25, 2008, the CA rendered a decision, affirming the conviction of adjudged guilty of physical injuries.10
petitioner, but awarding moral damages to the heirs of Tomelden, disposing as
follows:
We are not persuaded.
WHEREFORE, in the light of the foregoing, the appeal of the accused-appellant is
DISMISSED. The decision appealed from is AFFIRMED with MODIFICATION that an The prosecution witness, Salazar, testified about petitioner’s lucky punch hitting
award of P50,000.00 moral damages is GRANTED. Tomelden right smack on the face. And even if Tomelden’s head did not hit the
ground as his co-workers averted that actuality, that punch gave him a bleeding nose
and rendered him unconscious right after the September 28, 1993 fight. From then
Remand of the records should immediately follow finality for the consequent on, Tomelden was in and out of the hospital complaining of headache, among other
execution of the decision.5 pains, until his demise on October 10, 1993, or 12 days after the blow that made
Tomelden unconscious.
The appellate court held that the commission by petitioner of the crime of homicide,
as defined and penalized under Article 2496 of the Revised Penal Code (RPC), had
been proved beyond moral certainty of doubt, pointing to the lucky punch as the
Significantly, Dr. Arellano testified conducting an autopsy on the body of Tomelden xxxx
and stressed that the "softened portion of the scalp over (R) occipito-temporal area
about 5 inches above and posterior to the (R) ear" of the victim could have been 3. That the offender had no intention to commit so grave a wrong as that committed.
caused by a fist blow. She also opined that the fist blow which landed on Tomelden’s
head could have shaken his brain which caused the cerebral concussion; and that the
cause of the victim’s death was "cardio-respiratory arrest secondary to cerebral 4. That sufficient provocation or threat on the part of the offended party immediately
concussion with resultant cerebral hemorrhage due to mauling incident." preceded the act.

The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed by When the law speaks of provocation either as a mitigating circumstance or as an
that of Rosario who related about her husband’s post September 28, 1993 severe essential element of self-defense, the reference is to an unjust or improper conduct of
head pain, clearly establish beyond cavil the cause of Tomelden’s death and who was the offended party capable of exciting, inciting, or irritating anyone;12 it is not enough
liable for it. that the provocative act be unreasonable or annoying; 13 the provocation must be
sufficient to excite one to commit the wrongful act14 and should immediately precede
the act.15 This third requisite of self-defense is present: (1) when no provocation at all
The CA observed aptly: was given to the aggressor; (2) when, even if provocation was given, it was not
sufficient; (3) when even if the provocation was sufficient, it was not given by the
It was through the direct accounts of the prosecution witnesses of the events that person defending himself; or (4) when even if a provocation was given by the person
transpired during the fisticuff incident x x x more specifically the landing of the "lucky defending himself, it was not proximate and immediate to the act of aggression.16
punch" on the face of [Tomelden], taken together with the result of the medical
examinations and autopsy report which described the death of the victim as "cardio- In the instant case, Tomelden’s insulting remarks directed at petitioner and uttered
respiratory arrest secondary to cerebral concussion with resultant cerebral immediately before the fist fight constituted sufficient provocation. This is not to
hemorrhage due to mauling incident" that we are convinced that the "lucky punch" mention other irritating statements made by the deceased while they were having
was the proximate cause of [Tomelden’s] death. The prosecution had satisfactorily beer in Bugallon. Petitioner was the one provoked and challenged to a fist fight.
proven that it was only after the incident that transpired on September 28, 1993 that
the victim was hospitalized on several occasions until he expired, twelve days later x
x x. It is moreover of no consequence whether the victim was able to report for work Petitioner’s unrebutted testimony on the events immediately preceding the fisticuff
during the intervening days x x x. and earlier dovetails with the testimony of Salazar.

We find no reason to depart from the doctrinal rule that great weight is accorded the In gist, petitioner testified being, in the afternoon of September 28, 1993, in the
factual findings of the trial court, particularly with respect to the ascertainment of the nearby town of Bugallon for a picnic. He was with Tomelden and several others,
credibility of witnesses. There was absence of any ill motive on the part of x x x including Dominador Navarro, Chairperson of LIWAD. At a restaurant in Bugallon, the
Salazar who in fact testified that he was a friend of both [petitioner] and [Tomelden]; group ordered goat’s meat and drank beer. When it was time to depart, Navarro
more so on the part of the attending physicians.11 x x x asked petitioner to inform Tomelden, then seated in another table, to prepare to
leave.
Petitioner’s suggestion that Tomelden succumbed to heart ailment and/or that his
death was the result of his malignant hypertension is untenable, given that the post- When so informed, Tomelden insulted petitioner, telling the latter he had no business
mortem report yields no positive indication that he died from such malady. stopping him from further drinking as he was paying for his share of the bill.
Chastised, petitioner returned to his table to report to Navarro. At that time, petitioner
saw that Tomelden had already consumed 17 bottles of beer. In all, the group stayed
Mitigating Circumstances Present at the picnic place for three and a half hours before returning to the LIWAD.

Petitioner next contends that the mitigating circumstances of no intention to commit Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled insults
so grave a wrong and sufficient provocation on the part of the victim ought to be at him, calling him "sipsip" just to maintain his employment as Navarro’s tricycle
appreciated in petitioner’s favor. driver. Tomelden allegedly then delivered several fist and kick blows at petitioner, a
couple of which hit him despite his evasive actions. Petitioner maintained that he only
On this score, we agree with petitioner. boxed the victim in retaliation, landing that lucky punch in the course of parrying the
latter’s blows.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
The following testimony of Salazar attests to the provocative acts of Tomelden and to
Art. 13. Mitigating circumstances.––The following are mitigating circumstances: his being the aggressor:
PROSECUTOR CHIONG A Yes, sir.

Q After you heard from the accused those remarks, what if any did the victim replied if Q And the accused refused to accept the challenge?
any?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel
WITNESS Urbano. He is stouter than the accused.

A They exchanged angry words, sir. Q But finally the fist fight took place?

Q What were these words? A Yes, sir.18

A Rodel Urbano said, "When you’re already drunk, you keep on insulting me." PROS. CHIONG

Q And what was the reply if any? Q When the victim and this accused had this fight, fist fight, they exchanged blows,
but there was this lucky punch that hit the victim because the victim fall down, is that
A ‘Akina tua lanti". correct?

PROS. CHIONG A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he was
much aggressive than the accused, sir.
Q Who said that?
Q You mean that although it was the victim who was more aggressive than the
accused here, he also [threw] punches but sometime some of his punches most of
WITNESS which did not hit the victim?

A It was Brigido Tomelden, sir. A He tried to parry the blows of the late Brigido Tomelden, sir.

Q And what transpired next? Q Because he tried to parry the blow of the Brigido Tomelden, when the accused
throw punches, the punch was directed to the victim but most of them did not hit the
A After that they exchange words, sir. " If you like we will have a fist fight" he said. victim, is that what you saw?

Q Who said that? A Yes, sir.19 (Emphasis added.)

A Brigido Tomelden said. It is abundantly clear from the above transcript that the provocation came from
Tomelden. In fact, petitioner, being very much smaller in height and heft, had the
Q At that time, were you already inside the compound of the LIWAD? good sense of trying to avoid a fight. But as events turned out, a fisticuff still ensued,
suddenly ending when petitioner’s lucky punch found its mark. In People v.
Macaso,20 a case where the accused police officer shot and killed a motorist for
A Yes, sir. repeatedly taunting him with defiant words, the Court appreciated the mitigating
circumstance of sufficient provocation or threat on the part of the offended party
Q After the victim allegedly told the accused, "If you want a fist fight," what transpired immediately preceding the shooting. The Court had the same attitude in Navarro v.
next? Court of Appeals,21 a case also involving a policeman who killed a man after the latter
challenged him to a fight. Hence, there is no rhyme or reason why the same
mitigating circumstance should not be considered in favor of petitioner.
A Rodel Urbano said, "if it is a fist fight we fight."17

Moreover, the mitigating circumstance that petitioner had no intention to commit so

Q And when you were already in the compound of LIWAD Office, Brigido Tomelden
grave a wrong as that committed should also be appreciated in his favor. While intent
was challenging the accused for a fist fight?
to kill may be presumed from the fact of the death of the victim, this mitigating factor
may still be considered when attendant facts and circumstances so warrant, as in the WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371
instant case. Consider: Petitioner tried to avoid the fight, being very much smaller is, in the light of the presence and the appreciation of two mitigating circumstances in
than Tomelden. He tried to parry the blows of Tomelden, albeit he was able, during favor of petitioner, hereby MODIFIED by decreasing the term of imprisonment. As
the scuffle, to connect a lucky punch that ended the fight. And lest it be overlooked, thus modified, petitioner Rodel Urbano is hereby sentenced to serve an indeterminate
petitioner helped carry his unconscious co-worker to the office of the LIWAD’s general prison term of from two (2) years and four (4) months of prision correccional, as
manager. Surely, such gesture cannot reasonably be expected from, and would be minimum, to eight (8) years and one (1) day of prision mayor, as maximum, with
unbecoming of, one intending to commit so grave a wrong as killing the victim. A whatever imprisonment he has already served fully credited in the service of this
bare-knuckle fight as a means to parry the challenge issued by Tomelden was sentence. The rest of the judgment is hereby AFFIRMED.
commensurate to the potential violence petitioner was facing. It was just unfortunate
that Tomelden died from that lucky punch, an eventuality that could have possibly No pronouncement as to costs.
been averted had he had the financial means to get the proper medical attention.
Thus, it is clear that the mitigating circumstance of "no intention to commit so grave a
wrong as that committed" must also be appreciated in favor of petitioner while finding SO ORDERED.
him guilty of homicide. That petitioner landed a lucky punch at Tomelden’s face while
their co-workers were trying to separate them is a compelling indicium that he never
intended so grave a wrong as to kill the victim.

Withal, with no aggravating circumstance and two mitigating circumstances

appreciable in favor of petitioner, we apply par. 5 of Art. 64, RPC, which pertinently
provides:

Art. 64. Rules for the application of penalties which contain three periods.––In cases
in which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the courts shall
observe for the application of the penalty the following rules, according to whether
there are or are no mitigating or aggravating circumstances:

xxxx

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 prescribed penalty for homicide under Art. 249 of the RPC is reclusion temporal
or from 12 years and one day to 20 years. With the appreciation of two mitigating
circumstances of no intention to commit so grave a wrong as that committed and of
sufficient provocation from the victim, and the application of par. 5 of Art. 64, RPC,
the imposable penalty would, thus, be the next lower penalty prescribed for homicide
and this should be prision mayor or from six years and one day to 12 years.
Consequently, with the application of the Indeterminate Sentence Law, petitioner
ought to be incarcerated from prision correccional as minimum and prision mayor as
maximum. In view of the circumstances of the case, considering that the petitioner
never meant or intended to kill the victim, a prison term of eight (8) years and one (1)
day of prision mayor as maximum period is proper while the period of two (2) years
and four (4) months of prision correccional as minimum period is reasonable.

We find no reason to modify the award of civil indemnity and moral damages.
G.R. No. L-32042 February 13, 1975 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
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, General are agreed that the said mitigating circumstance should be considered in his
vs. favor. The intention of the accused to surrender could be clearly discerned from the
ALBERTO BENITO Y RESTUBOG, defendant-appellant. 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
ESGUERRA, J.: 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
This is a mandatory review of the judgment of the Circuit Criminal Court of Manila in it may be true that the accused did not immediately tell the police that he was the
Criminal Case No. CCC-VI-609, entitled "People of the Philippines vs. Alberto Benito assassin, perhaps because he was momentarily shocked by the enormity of his
y Restubog," imposing upon the accused, Alberto Benito y Restubog upon his plea of crime, nevertheless when brought to the police station immediately thereafter as a
guilty to the charge of murder, the penalty of "death; to indemnify the heirs of the possible witness (accused was with the police investigators all that time), he confided
deceased as follows: P12,000.00 for the death of the deceased; P20,000.00 as to the investigators that he was "voluntarily surrendering" and "also surrendering the
indemnity for loss of earning capacity of the deceased who was then only 36 years of fatal gun used in the shooting of the victim" (pp. 9, t.s.n. December 26, 1969). We
age at the time of his death and earning P7,597.80 per annum; P20,000.00 for fully subscribe to appellee's observation that all the aforementioned acts of the
exemplary damages; P25,000.00 for moral damages, all amounts to bear interest accused were strongly indicative of his intent or desire to surrender voluntarily to the
until they shall have been fully paid; and to pay the costs." authorities. The accused must be credited with the mitigating circumstance of
voluntary surrender.
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 II
commission of the crime to determine the proper penalty to be imposed on the
accused. 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
It is not controverted that at about 5:30 p.m. of December 12, 1969, the victim Pedro and, therefore, this mitigating circumstance must be credited in his favor. The
Moncayo, Jr., Assistant Chief of Personnel Transaction and Acting Chief of the supposed grave offense done by the victim was an alleged remark made in the
Administrative Division of the Civil Service Commission, while driving his car on P. presence of the accused at about 11:00 a.m. of December 12, 1969, that the Civil
Paredes street in front of the Office of the Civil Service Commission was followed by Service Commission is a hangout of thieves. The accused felt alluded to because he
the accused, and when the car was about to turn at the intersection of P. Paredes was facing then criminal and administrative charges on several counts involving his
and Lepanto Streets, Manila, the accused shot him eight times with a .22 caliber honesty and integrity.
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 There is merit in appellee's argument that said victim's remark even if actually uttered
withdraw his previous plea of not guilty and substitute it with a plea of guilty without in the presence of the accused, cannot be considered a grave offense against the
prejudice to proving mitigating circumstances. The prosecution manifested that it latter. The remark itself was general in nature and not specifically directed to the
would controvert whatever mitigating circumstances the accused would prove and accused. If he felt alluded to by a remark which he personally considered insulting to
also prove other aggravating circumstances. The trial court repeatedly explained to him, that was his own individual reaction thereto. Other people in the vicinity who
the accused the nature and consequences of his plea of guilty to the offense charged might have heard the remark could not possibly know that the victim was insulting the
and warned him that the maximum penalty imposable is death. Notwithstanding the accused unless they were aware of the background of the criminal and administrative
explanation and warning of the trial court, the accused, assisted by his counsel de charges involving moral turpitude pending against the accused. At most, said remark
parte upon being re-arraigned, entered a plea of guilty. The accused presented might be considered a mere provocation and not a grave offense which might have
evidence to prove mitigating circumstances and the prosecution subsequently impelled the accused to commit a crime in immediate retaliation. As the provocation
introduced evidence to prove aggravating circumstances not mentioned in the was not sufficient and did not immediately precede the act, it may not be considered
information. The Court sentenced the accused to death after finding him guilty as as a mitigating circumstance.
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 In this case, however, the provocation was the remark uttered at 11:00 a.m. of
accused's plea of guilty. 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
I 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 Service Commission as the decision in the administrative case against him ordering
would immediately retaliate in the unchristian spirit of vindictive retribution. But the his dismissal from the service became effective February 16, 1966.
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 There is no question, however, that accused was a clerk in the Civil Service
his part to vindicate what personal appeared to him as sufficient provocation in the Commission and the victim was Assistant Chief of the Personnel Transaction of that
form of an insulting remark allegedly uttered by the victim. The failure of the accused Office. When the accused saw and talked with the deceased regarding the former's
to immediately react to the supposed provocative insulting remark might even be administrative case that proved to be the motive for the murder by his own admission,
taken as his ignoring it altogether or considering it unimportant at the moment he accused made it very obvious that he recognized the deceased as his superior
heard the remark. In other words, the remark was inadequate to stir or drive the officer. The mere fact that the dismissal of the accused from office was made
accused to violence at the time it was uttered and he had more than sufficient time to immediately executory was of no moment since he appealed that decision and the
suppress his emotion over said remark if he ever did resent it. The trial Court did not case was still pending and, by his own allegation, he was later completely exonerated
commit an error when it rejected the aforementioned incident as a basis for crediting by the Civil Service Board of Appeals in its decision of February 17, 1971.
mitigating circumstance in favor of the accused.
It may be true that this aggravating circumstance was considered against the accused
III 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
The accused also claims that the lower Court should have considered the mitigating affect the gravity of the crime committed, but one which is capable of being proven
circumstance that sufficient provocation or threat on the part of the deceased and taken into consideration even if it was not alleged in the information. The lower
immediately preceded the act because of the alleged statement of the deceased in Court in considering this generic aggravating circumstance against the accused did
Tagalog uttered at about 7:00 p.m. on the night of December 11, 1969 (night not violate his constitutional right to be informed of the nature and cause of the
preceding the day of the crime), to wit, "Umalis ka na nga diyan baka may mangyari accusation against him for murder. This aggravating circumstance was correctly
pa sa iyo at baka ipayari kita dito" (Get out of there, because something might happen considered against the accused.
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 V
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 We cannot see Our way clear to the argument of the accused that the aggravating
as to immediately react in his defense or retaliate by committing a crime. The circumstance of evident premeditation, although included in the information, should
provocation or threat, did not immediately precede the shooting. In other words, the not be considered against the accused because although he pleaded guilty to the
accused had almost a day to mull over the alleged threat or provocation before he charge unconditionally, the prosecution sought and was allowed to adduce evidence
reacted by shooting the victim. The inevitable conclusion is that the accused did not to show the criminal participation of appellant in the commission of the offense and
feel sufficiently threatened or provoked by the alleged utterance of the victim at the the background of the crime imputed to him, and the evidence submitted by the
time it was uttered, or within a reasonable time thereafter, and when he shot the prosecution failed to establish the elements of the aggravating circumstance of
victim the next day, it was a deliberate act of vengeance and not the natural reaction evident premeditation. It is further argued that the prosecution is deemed to have
of a human being to ward off a serious threat or to immediately retaliate when thereby waived the effect of the unconditional plea of guilty by the accused so far as
provoked. the aggravating circumstance of evident premeditation is concerned.

We agree with appellee's contention that "provocation or threat to constitute a What upsets the entire argument of the accused is the fact that the prosecution
mitigating circumstance, must, in the language of the law, be "sufficient", that is, successfully proved the existence of evident premeditation because Exhibit "A", his
adequate to excite the person to commit the wrong and must accordingly be own declaration, narrates fully the several attempts of the accused to talk with the
proportionate to its gravity and must also immediately precede the act." 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
The lower Court correctly rejected the claim of the accused to this mitigating accused to plan on how to retaliate against the victim by taking the law into his hands.
circumstance.
We cannot disregard the fact that the accused unconditionally pleaded guilty to the
IV offense charged after the lower Court specifically called his attention to the
aggravating circumstance of evident premeditation before he was rearraigned (p. 5,
The generic aggravating circumstance of disregard of rank considered by the lower t.s.n. December 26, 1969), and after the Fiscal had rejected his counsel's proposal to
Court against the accused is being assailed on the ground that at the time of the delete this aggravating circumstance from the information (p. 3, t.s.n. December 26,
commission of the murder, the accused was no longer connected with the Civil 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. 149372 September 11, 2007 The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
pronounced dead on arrival. Eduardo died two hours later.
RICARDO BACABAC, petitioner,
vs. Post-mortem examination showed that the victim sustained two bullet wounds in the
PEOPLE OF THE PHILIPPINES, respondent. thoraco-abdominal regions and one bullet wound in the extremities, and that he died
due to "maceration of the internal organs due to bullet wounds." 6 Eduardo sustained
DECISION two bullet wounds in the thoraco-abdominal region, and died of "hemorrhage due to
gunshot wounds."7
CARPIO MORALES, J.:
Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo
City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance portion of the first Information, docketed as Criminal Case No. 35783, reads:
hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo)
and Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel
Talanquines (Edzel).1 That on or about the 23rd day of December, 1990, in the Municipality of San
Joaquin, Province of Ilo-ilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
Jonathan and Edzel left the dance hall. Not long after, the victim and his companions mutually helping one another to better realize their purpose, armed with two
also left and on their way home, they encountered Jonathan and Edzel. It appears (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown
that the two groups then and there figured in a misunderstanding. make and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause or
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, motive, did then and there willfully, unlawfully and feloniously assault, attack
noticed a commotion. He soon saw that Melchor was "hugging" Edzel, and later and shoot one HERNANI QUIDATO with the firearms they were then
"tying" Jonathan "with his hands." Still later, he saw the victim hit Edzel with a provided, inflicting upon the latter gunshot wounds on the different parts of
"stick."2 He thus told the victim and his companions that Edzel is the son of Councilor his body which caused the immediate and instantaneous death of said
Jose Talanquines, Jr. (Jose), whereupon Eduardo3 told him (Jesus) to go away for Hernani Quidato.
they might shoot him. Jesus thus left and proceeded to Edzel's residence to report to
his father what he had witnessed. In the meantime, Edzel and Jonathan managed to CONTRARY TO LAW.8
flee.
The accusatory portion of the second Information, docketed as Criminal Case No.
The victim and his companions thereafter headed for home in the course of which 35784, reads:
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan
who are his nephews, and Edzel's father, Jose, his mother, and two sisters at the
corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were carrying That on or about the 23rd day of December, 1990, in the Municipality of San
M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this
revolver, respectively. Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another to better realize their purpose, armed with two
(2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown
Jesus thereupon pointed to the victim and his companions as the ones who had make and caliber, with deliberate intent and decided purpose to kill, with
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his treachery and evident premeditation and without any justifiable cause or
companions mistook Jonathan and Edzel for other persons. Jesus blurted out, motive, did then and willfully, unlawfully and feloniously assault, attack and
however, "You are just bragging that you are brave. You are only bullying small shoot one EDUARDO SELIBIO with the firearms they were then provided
children."4 Petitioner, at that instant, fired his armalite into the air, while Jose fired his inflicting upon the latter gunshot wounds on the different parts of his body
armalite ("as if spraying his rifle from right to left") at the victim and Eduardo, even which caused the immediate and instantaneous death of said Eduardo
hitting Jonathan in the thigh as he (Jonathan) "was on the move to strike [the victim] Selibio.
with a piece of wood." Eduardo fell. And so did the victim who was in a kneeling
position, and as he was raising his hands in surrender, Jose shot him again.
CONTRARY TO LAW.9
Meanwhile, Melchor escaped.5
The cases were jointly tried.
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of While petitioner and his co-accused filed a Notice of Appeal14 which was given due
conspiracy among petitioner and his co-accused,10 convicted them of murder qualified course,15 only petitioner filed a Brief, albeit beyond the extensions granted to him,
by treachery.11 The dispositive portion of the decision of the trial court reads: drawing the Court of Appeals to dismiss his appeal.16 The conviction of petitioner's
co-accused had thus become final and executory.
WHEREFORE, premises considered, judgment is hereby rendered as
follows: Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having been
denied,18 he filed a Petition for Review with this Court which, by Resolution of October
In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., 22, 1997, directed the Court of Appeals to reinstate petitioner's appeal. 19
Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus
Delfin Rosadio are hereby found guilty beyond reasonable doubt of the By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's
crime of murder and there being no aggravating circumstances with one decision. Entry of final judgment was made by the Court of Appeals on July 22,
mitigating circumstance [immediate vindication for Jose and Jesus; voluntary 1999.21
surrender for Pat. Ricardo Bacabac12], and applying the indeterminate
sentence law, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus The trial court thereafter issued a February 7, 2000 Order directing the issuance of
Delfin Rosadio are hereby sentenced each to suffer imprisonment for a warrants for the arrest of the accused.22 Except petitioner, all were arrested.23
period of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day
as maximum; while accused Edzel Talanquines and Jonathan Bacabac who
are entitled to the privileged mitigating circumstance of minority and the On February 24, 2000, petitioner filed before the appellate court a Petition for Relief
ordinary mitigating circumstance of immediate vindication of a grave offense from Judgment, Order, and/or Denial of Appeal24 which was granted,25 hence, the
are hereby sentenced each to suffer imprisonment for a period of four (4) Entry of Judgment issued by the appellate court on July 22, 1999 was set aside. He
years, 2 months, and 1 day, as minimum, to 10 years and 1 day as thereafter filed a Motion for Reconsideration26 of the appellate court's June 28, 1999
maximum. All the accused are ordered to pay jointly and severally the heirs Decision which was denied by Resolution of August 8, 2001;27 hence, the present
of the deceased Hernani Quidato, the amount of P50,000.00 for his wrongful Petition for Review on Certiorari.28
death; P20,000.00 for moral damages; P10,000.00 for attorneys fees; and
the costs of the suit. (Underscoring supplied) Petitioner assails the Court of Appeals' decision as follows:

In Criminal Case No. 35784, judgment is hereby rendered as follows: First: Contrary to its conclusion on the basis of the facts of the case,
Petitioner may not be deemed to be in conspiracy with the other Accused.
All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines,
Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin Rosadio are Second: Contrary to its conclusion, there was no treachery.
hereby found guilty of the crime of Murder and there being no aggravating
circumstance with one mitigating circumstance, accused Jose Talanquines, Third: Contrary to its conclusion, Petitioner, assuming in gratis
Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each argumenti the correctness of the pronouncement of guilt, should have been
to suffer imprisonment for a period of 10 years and 1 day as minimum, to 17 credited with the mitigating circumstance of immediate vindication of a
years, 4 months and 1 day, as maximum; while accused Edzel Talanquines grave offense, in the same manner that the other Accused were so
and Jonathan Bacabac who are entitled to the privileged mitigating credited.
circumstance of minority and the ordinary mitigating circumstance of
immediate vindication of a grave offense, are hereby sentenced to suffer
imprisonment for a period of 4 years, 2 months and 1 day, as minimum to 10 Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been
years and 1 day as maximum. All the accused are ordered to pay jointly and proved beyond reasonable doubt; hence, by the equipoise rule, should have
severally the heirs of the deceased Eduardo Selibio, the amount been acquitted.
of P50,000.000 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorney's fees; and the costs of the suit. Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis
(Underscoring supplied) in the original)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the The Court notes that the first, second, and fifth arguments of petitioner were, in the
number of days he spent under detention, if he is qualified. main, raised before the appellate court.30

SO ORDERED.13
During the pendency of the present petition, petitioner, through counsel, filed before Another indication that there was no unity of purpose and of execution in
the trial court an "Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabac's so far as the Petitioner is concerned is his conduct after Jose
Motion for Reconsideration and/or to Vacate the Order dated February 7, 2000 Talanquines, Jr. shot the victims. Eyewitness accounts state that after
[directing the arrest of the accused] and to Recall the Warrant of Arrest Dated the that lone warning shot, closely followed by Jose Talanquines, Jr. firing at the
Same Date in so far as the Accused Pat. Ricardo Bacabac Only is victims, the petitioner merely stood there and did nothing and said nothing.
Concerned)."31 The trial court denied32 the motion as it did deny33 petitioner's motion This is obviously because he was himself stunned by the fast happening of
for reconsideration,34 drawing petitioner to file before this Court on October 5, 2006 a events. The investigating police officer, PO3 NESTOR SANTACERA, on
"Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest rebuttal, likewise, admitted to the facts that ten (10) minutes after the
Issued by the Regional Trial Court (Branch 39) of Iloilo City."35 incident, they (the police) responded and upon arrival thereat, learned that
the Petitioner already reported the incident to their station and that it
In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest was the Petitioner who first reported the shooting incident officially to
Issued by the Regional Trial Court . . . ," petitioner argues that their office. The aforedescribed proven conduct of the Petitioner during and
immediately after the incident in question are, Petitioner respectfully
submits, inconsistent with what a co-conspirators is [sic] wont to do
[T]he basis of the RTC's Order of February 7, 2000 was the Entry of under the circumstances. It is submitted instead that his conduct on the
Judgment by the Court of Appeals dated 25 November 1999.36 BUT THE contrary underscores the lack or want of community of purpose and interest
SAID ENTRY OF JUDGMENT was ALREADY VACATED and SET-ASIDE in the killing incident to make him criminally liable under the conspiracy
BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13 theory.
DECEMBER 2000. Therefore, the RTC's Order of 7 February 2000 was ipso
facto vacated.37 (Emphasis in the original)
Finally, in connection with the conspiracy theory and anent
the finding below that the Petitioner and his Co-Accused waited for the
and that victims' arrival at the corner of St. Domingo and M.H. del Pilar Streets, it is
asserted that the same runs counter to the natural and ordinary
[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by experience of things and event [sic], and raises a cloud of doubt over the
the Order of 13 July 2006 does not apply to the case at correctness of the lower Courts decision which are based on the
bench because the main case on the merits which originated in the RTC Prosecution's version of the incident. Since, according to the prosecution,
as Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R. the Petitioner and the other Accused were armed with high-powered
No. 16348 and is now pending in the Supreme Court (Third Division) as G.R. firearms (armalite rifles and revolver); they waited at the stated street corner
No. 149372 because of the Petition for Review On Certiorari filed by Movant for thirty (30) minutes; the stated street corner was well lighted;
herein x x x. THE MAIN CASE IS NO LONGER PENDING IN THIS accompanying them were the wife and two (2) young daughters of Jose
HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO Talanquines, Jr; and they stood there conversing with the group of Elston
JURISDICTION TO REITERATE AND EXECUTE THE ORDER OF 7 Saquian [a prosecution witness who testified that he saw the petitioner and
FEBRUARY 2000.38 (Emphasis in the original) his co-accused waiting for the victims39 and admitting that they were waiting
for certain persons who mauled Edzel Talanquines and Jonathan Bacabac.
As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate
. . ." is rendered unnecessary. In other words, the lower Courts gave credence to an improbable
scenario painting the Petitioner, known to the place as a police officer, and
Petitioner, denying the presence of conspiracy on his part, argues: co-accused to have recklessly and uncaringly displayed, for all and sundry to
see, their alleged criminal intentions. It would indeed be the height of
foolishness for them to be by a well lighted street corner, perhaps even well
[The petitioner] affirms that he was at the scene of the incident and merely traversed, conspicuously fully armed, waiting for persons who were not even
fired a warning shot into the air to respond to a public disturbance, and sure would pass by such place, and apparently willing to admit to other
his firing a warning shot into the air was intended to avert further acts of passers-by that they were indeed waiting for the persons who mauled Edzel
violence; both circumstances, therefore, being merely and solely in and Jonathan, and consequently give out the impression that they were
pursuance to his avowed duty to keep peace and order in the community intending to retaliate – which is what the lower Courts regrettably observed.
and clearly not to be part of any alleged community of design to kill the
victims.
xxxx

xxxx
Likewise, the presence of the wife and two (2) young daughters of the
accused Jose Talanquines, Jr. at the scene of the alleged crimes, as
 testified to by the prosecution witnesses and believed by the lower Courts, The Appellant and Jose were armed with high-powered guns. Jesus
assumes importance in the matter of determining which version of the was armed with a revolver. The nature of the weapons of the Accused
incident is correct. evinced a common desire to do away with the culprits, not merely to
scare them.
The Prosecution places the wife and the daughters with the alleged fully
armed Petitioner and Co-Accused at Sto. Domingo Streets, also waiting What is outrageous is that the Appellant was a policeman. He could
during the same length of time as the men for the (probable) arrival of the very well have just arrested the culprits as they sauntered by and
group of the victims. But such a scenario is, likewise, unnatural. brought them to the police station for the requisite investigation and
Because, will the male relatives unhesitatingly expose their the institution of criminal complaints, if warranted. He could have
defenseless womenfolk to imminent danger?40 (Citations omitted, dissuaded Jose and Jesus and assured them that the culprits will be
emphasis in the original, and underscoring supplied) duly investigated and charged if warranted. The Appellant did not. He
armed himself with an M-16 armalite x x x. [T]he three (3) positioned
Petitioner's argument that it is improbable for him and his co-accused to have waited themselves at the corner of M.H. del Pilar and Sto. Domingo Streets for the
for the victims at a well-lighted street corner does not persuade. Crimes are known to culprits to arrive. Hernani and his companions were doomed. It may be true
have been brazenly committed by perpetrators, undeterred by the presence of that the Appellant did not aim his gun at the deceased but the same is peu
onlookers or even of peace officers, completely impervious of the inevitability of de chose. By his overt acts, in unison with the other Accused and his kinship
criminal prosecution and conviction.41 with Jonathan and Edzel, We are convinced that he conspired with Jose
Talanquines, Jr. and the other Accused to achieve a common purpose to kill
Hernani and Eduardo.46 (Emphasis and underscoring supplied)
From the mode and manner in which the crimes were perpetrated, the conduct of
petitioner before, during, and after their commission, 42 and the conditions attendant
thereto,43 conspiracy, which need not be proved by direct evidence, is Petitioner's failure to assist the victims after the shooting reinforces this Court's
deduced.44 Petitioner's firing of his armalite could not have amounted to none other appreciation of community of design between him and his co-accused to harm the
than lending moral assistance to his co-accused, thereby indicating the presence of victims. That it was he who first officially reported the shooting to the police
conspiracy.45 station47 does not make him any less a conspirator. Voluntary surrender and non-
flight do not conclusively prove innocence.48 Besides, a conspirator who wants to
extricate himself from criminal liability usually performs an overt act to dissociate or
As the appellate court observed which is quoted with approval: detach himself from the unlawful plan to commit the felony while the commission of
the felony is in progress.49 In petitioner's case, he reported the shooting incident after
In the present recourse, when informed that Jonathan and Edzel were being it had already taken place. In legal contemplation, there was no longer a conspiracy
manhandled and assaulted by male persons, Appellant armed himself to be repudiated since it had already materialized.50
with an M-16 armalite. Jose Talanquines, Jr., the father of Edzel, followed
suit and armed himself with an M-16 armalite gun. Jesus armed himself with Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the
a revolver while Jonathan armed himself with a piece of wood. Jonathan and presence of conspiracy despite its finding that there was no evident premeditation.
Edzel were nephews of the Appellant who resided in the house of Jose This Court's pronouncement that conspiracy presupposes the existence of evident
Talanquines, Jr. All the Accused including the Appellant then proceeded premeditation52 does not necessarily imply that the converse ─ that evident
posthaste to the corner of M.H. del Pilar corner Sto. Domingo Streets premeditation presupposes the existence of a conspiracy ─ is true. In any event, a
where the culprits would pass by and waited for the advent of the link between conspiracy and evident premeditation is presumed only where the
culprits. Even as Hernani apologized for his and his companions' conspiracy is directly established and not where conspiracy is only implied, as in the
assault of Edzel and Jonathan, Jesus berated Hernani and his present case.53
companions. Almost simultaneously, the Appellant fired his gun into
the air as Jonathan lunged at Hernani and his companions to hit them
with the piece of wood. Almost simultaneously, Jose Talaquines, Jr. fired Neither did the appellate court err in finding the presence of treachery. Treachery,
his gun at Hernani and shot Eduardo hitting them and, in the process, hitting under Article 14, paragraph 16 of the Revised Penal Code, is present "when the
his nephew, Jonathan Bacabac. The Appellant did not lift a finger when offender commits any of the crimes against the person, employing means, methods,
Jose fired at and shot Hernani and Eduardo. He stood by as Jose shot or forms in the execution thereof which tend directly and specially to insure its
Hernani anew when the latter on bended knees, raised his two (2) execution, without risk to himself arising from the defense which the offended party
hands, in surrender. The Appellant and the other Accused then fled might make."
from the scene, with their respective firearms and weapons. The overt
act of the Accused and the Appellant in conjunto, constitute proof of What is decisive in treachery is that "the attack was executed in such a manner as to
conspiracy. make it impossible for the victim to retaliate." 54 In the case at bar, petitioner, a
policeman, and his co-accused were armed with two M-16 armalites and a revolver.
The victim and his companions were not armed. 55 The attack was sudden and
unexpected,56 and the victim was already kneeling in surrender when he was shot the
second time. Clearly, the victim and his companion Eduardo had no chance to defend
themselves or retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor
legal to hold him guilty of treachery.57 This argument falls in the face of the settled
doctrine that once conspiracy is established, the act of one is the act of all even if not
all actually hit and killed the victim.58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication

of a grave offense," it fails. For such mitigating circumstance to be credited, the act
should be, following Article 13, paragraph 5 of the Revised Penal Code, "committed in
the immediate vindication of a grave offense to the one committing the felony
(delito), his spouse, ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity within the same degree."59 The offense
committed on Edzel was "hitting" his ear with a stick60 (according to Jesus), a bamboo
pole (according to Edzel).61 By Edzel's own clarification, "[he] was hit at [his] ear, not
on [his] head."62 That act would certainly not be classified as "grave offense." And
Edzel is petitioner's nephew, hence, not a relative by affinity "within the same degree"
contemplated in Article 13, paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate court's decision

is AFFIRMED.

Costs against petitioner.

SO ORDERED.
G.R. No. 4971 September 23, 1909 sentencing the accused to the penalty of death, to be executed according to the law,
to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs.
THE UNITED STATES, plaintiff, The case has been submitted to this court for review.
vs.
AUGUSTUS HICKS, defendant. The above-stated facts, which have been fully proven in the present case, constitute
the crime of murder, defined and punished by article 403 of the Penal Code, in that
Office of the Solicitor-General Harvey for plaintiff. the woman Agustina Sola met a violent death, with the qualifying circumstance of
Jose Robles Lahesa for defendant. treachery (alevosia), she being suddenly and roughly attacked and unexpectedly fired
upon with a 45-caliber revolver, at close, if not point blank range, while the injured
woman was unarmed and unprepared, and at a time when she was listening to a
TORRES, J.: conversation, in which she was concerned, between her aggressor and third person,
and after usual and customary words had passed between her and her aggressor.
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an From all of the foregoing it is logically inferred that means, manners, and forms were
Afro-American, and Agustina Sola, a Christian Moro woman, illicitly lived together in employed in attack that directly and specially insured the consummation of the crime
the municipality of Parang, Cotabato, Moro Province, until trouble arising between without such risk to the author thereof as might have been offered by the victim who,
them in the last-mentioned month of 1907, Agustina quitted Hick's house, and, owing to the suddenness of the attack, was doubtless unable to flee from the place
separation from him, went to live with her brother-in-law, Luis Corrales. A few days where she was standing, or even escape or divert the weapon.
later she contracted new relations with another negro named Wallace Current, a
corporal in the Army who then went to live in the said house. The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory
allegations which were certainly not borne out at the trial, the evidence in the case is
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with absolutely at variance therewith and conclusively establishes, beyond peradventure
a soldier named Lloyd Nickens called at said house, and from the sala called out to of doubt, his culpability as the sole fully convicted author of the violent and
his old mistress who was in her room with Corporal Current, and after conversing with treacherous death of his former mistress, Agustina Sola.
her in the Moro dialect for a few minutes, asked the corporal to come out of said
room; in response thereto the corporal appeared at the door of the room, and after a It is alleged by the accused that when he withdrew his hand from that of Current, who
short conversation, Current approached Hicks and they shook hands, when Hicks had seized him, he fell backward but managed to support himself on his two hands,
asked him the following question: "Did I not tell you to leave this woman alone?," to and when he got up again the said corporal threatened him with a revolver thrust into
which Current replied: "That is all right, she told me that she did not want to live with his face; whereupon he also drew his revolver, just as Edward Robinson caught him
you any longer, but if she wishes, she may quit me, and you can live with her." The from behind, when his revolver went off, the bullet striking the deceased.
accused then replied: "God damn, I have made up my mind;" and as Corporal Current
saw that Hicks, when, he said this, was drawing a revolver from his trousers' pocket,
he caught him by the hand, but the latter, snatching his hand roughly away, said: This allegation appears to be at variance with the testimony of the witnesses Wallace
"Don't do that," whereupon Current jumped into the room, hiding himself behind the Current, Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective
partition, just as Hicks drew his revolver and fired at Agustina Sola who was close by declaration, especially with that of the second and third, who witnessed the actual
in the sala of the house. The bullet struck her in the left side of the breast; she fell to firing of the shot by the aggressor at the deceased, as shown by the fact that
the ground, and died in a little more than an hour later. Robinson immediately approached the accused in order to take his weapon away
from him which he succeeded in doing after a brief struggle, whereupon the
aggressor ran out of the house. Thus, the shot that struck the deceased in the breast
Upon hearing the shot Edward Robinson, who was also in the house, went to render and caused her death was not due to an accident but to a willful and premeditated act
assistance and wrested the weapon from the hand of the accused. The latter on the part of the aggressor with intent to deprive the victim of her life.
immediately fled from the house and gave himself up to the chief of police of the
town, H. L. Martin, asking him to lock him up in jail; and, when a few minutes later a
policeman came running in and reported that Hicks had fired a shot at Agustina, the In addition to the qualifying circumstance of treachery, as above referred to, the
said chief of police caused Hicks to be arrested. The latter, when once in jail, threw presence of other aggravating circumstances, such as premeditation, and the fact
eight revolver cartridges out of the window; these were picked up by a policeman who that the crime was committed in the dwelling of the deceased should be taken into
reported the occurrence and delivered the cartridges to his chief. consideration. The last-mentioned circumstances appears proven from the testimony
of several witnesses who were examined at the trial of the case.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a
complaint with the Court of First Instance of said province charging Augustus Hicks Inasmuch as in the present case the crime has already been qualified as committed
with the crime of murder. Proceedings were instituted, the trial court, after hearing the with treachery, the circumstance of premeditation should only be considered as a
evidence adduced, entered judgment on the 10th of September of the same year, merely generic one. Premeditation is, however, manifest and evident by reason of the
open acts executed by the accused. According to the testimony of Charles Gatchery
and Eugenio R. Whited, Hicks asked leave from the former to be absent from the
canteen where he was working on the morning of the day when the affray occurred,
alleging that his mind was unsettled and that he feared getting into trouble. It is also
shown by the fact that Whited, who was in Hicks' house about noon upon the latter's
invitation, and while both where drinking gin, and while the revolver, the instrument of
the crime, was lying on the table on which were also several loaded cartridges, heard
the accused repeatedly say, referring to the deceased, that her time had come,
adding that he would rather see her dead than in the arms of another man, and when
the accused went to bed apparently very much worried, and refusing to answer when
called, the witness left him. On the day after the crime the police found on a table in
the cuprit's house several loaded cartridges, a bottle of oil and a piece of cloth used
undoubtedly for cleaning the revolver.

All the foregoing circumstances conclusively prove that the accused, deliberately and
after due reflection had resolved to kill the woman who had left him for another man,
and in order to accomplish his perverse intention with safety, notwithstanding the fact
that he was already provided with a clean and well-prepared weapon and carried
other loaded cartridges besides those already in his revolver, he entered the house,
greeting everyone courteously and conversed with his victim, in what appeared to be
a proper manner, disguising his intention and claiming her by his apparent repose
and tranquility, doubtless in order to successfully accomplish his criminal design,
behaving himself properly as he had planed to do beforehand.

As against the two foregoing aggravating circumstances no mitigating circumstances

is present, not even that mentioned in paragraph 7 of article 9 of the Penal Code, to
wit loss of reason and self-control produced by jealousy as alleged by the defense,
inasmuch as the only causes which mitigate the criminal responsibility for the loss of
self-control are such as originate from legitimate feelings, not those which arise from
vicious, unworthy, and immoral passions.

From the foregoing considerations, and as the judgment appealed from is in

accordance with the law, it is our opinion that the same should be affirmed, as we do
hereby affirm it with costs, provided, however, that the death penalty shall be
executed according to the law in force, and that in the event of a pardon being
granted, the culprit shall suffer the accessory penalties of article 53 of the Penal Code
unless the same be expressly remitted in the pardon. So ordered.
G.R. No. L-7094 March 29, 1912 crime by producing in the accused strong emotion which impelled him to the
criminal act and even to attempt his own life, were a sufficient impulse in the
THE UNITED STATES, plaintiff-appellee, natural and ordinary course to produce the violent passion and obfuscation
vs. which the law regards as a special reason for extenuation, and as the
HILARIO DE LA CRUZ, defendant-appellant. judgment did not take into consideration the 8th circumstance of article 9 of
the code, the Audiencia rendering it seems to have violated this legal
provision."
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the
"causes which mitigate the criminal responsibility for the loss of self-control are such
CARSON, J.: as originate from legitimate feelings, not those which arise from vicious, unworthy,
and immoral passions," and declined to give the benefit of the provisions of this article
The guilt of the defendant and appellant of the crime of homicide of which he was to the convict in that case on the ground that the alleged causes for his loss of self-
convicted in the court below is conclusively established by the evidenced of record. control did not "originate from legitimate feelings." But in that case we found as facts
that:
The trial court was of opinion that its commission was not marked by either
aggravating or extenuating circumstances, and sentenced the convict to fourteen All the foregoing circumstances conclusively prove that the accused,
years eight months and one day of reclusion temporal, the medium degree of the deliberately and after due reflection had resolved to kill the woman who had
penalty prescribed by the code. Burt we are of opinion that the extenuating left him for another man, and in order to accomplish his perverse intention
circumstance set out in subsection 7 of article 9 should have been taken into with safety, notwithstanding the fact that he was already provided with a
consideration, and that the prescribed penalty should have been imposed in its clean and well-prepared weapon and carried other loaded cartridges besides
minimum degree. Subsection 7 of article 9 is as follows: those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a
The following are extenuating circumstances: proper manner, disguising his intention and calming her by his apparent
repose and tranquility, doubtless in order to successfully accomplish his
criminal design, behaving himself properly as he had planned to do
xxx xxx xxx beforehand.

That of having acted upon an impulse so powerful as naturally to have In the former case the cause alleged "passion and obfuscation" of the aggressor was
produced passion and obfuscation. the convict's vexation, disappointment and deliberate anger engendered by the
refusal of the woman to continue to live in illicit relations with him, which she had a
The evidence clearly discloses that the convict, in the heat of passion, killed the perfect right to do; his reason for killing her being merely that he had elected to leave
deceased, who had theretofore been his querida (concubine or lover) upon him and with his full knowledge to go and live with another man. In the present case
discovering her in flagrante in carnal communication with a mutual acquaintance. We however, the impulse upon which defendant acted and which naturally "produced
think that under the circumstances the convict was entitled to have this fact taken into passion and obfuscation" was not that the woman declined to have illicit relations with
consideration in extenuation of his offense under the provisions of the above-cited him, but the sudden revelation that she was untrue to him, and his discovery of her in
article. flagrante in the arms of another. As said by the supreme court of Spain in the above-
cited decision, this was a "sufficient impulse" in the ordinary and natural course of
things to produce the passion and obfuscation which the law declares to be one of the
This was the view taken by the Court of Spain upon a similar state of facts as set forth
extenuating circumstances to be taken into consideration by the court.
in its sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19,
art. 9 of vol. 6) as follows:
Modified by a finding that the commission of the crime was marked with the
extenuating circumstance set out in subsection 7 of article 9, and by the reduction of
Shall he who kills a woman with whom he is living in concubinage for having
the penalty of fourteen years eight months and one day of reclusion temporal to
caught her in her underclothes with another party and afterwards shoots
twelve years and one day of reclusion temporal, the judgment of conviction and the
himself, inflicting a serious wound, be responsible for that crime with the
sentence imposed by the trial court should be and are hereby affirmed, with the costs
extenuating circumstance of having acted with violent passion and
of this instance against the appellant.
obfuscation? The Audiencia of Santiago de Cuba did not so hold and its
judgment was reversed by the supreme court for the improper disregard of
article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts
held to be true by the trial court, and which were the immediate cause of the
G.R. No. 95357 June 9, 1993 home until July 3, l987 when she abandoned her family to live with her paramour.
(TSN, December 19, 1988, pp. 10-11) He did not know the name of his wife's
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, paramour nor the name of the owner of the house where his wife and her paramour
vs. had lived together.
EDUARDO GELAVER, accused-appellant.
Appellant further testified that on March 24, 1988, after he was informed by his
The Solicitor General for plaintiff-appellee. daughter that his wife and paramour were living at a house in front of the Sto. Niño
Catholic Church, appellant immediately repaired to that place. Upon entering the
house, he saw his wife lying on her back and her paramour on top of her, having
Joffrey L. Montefrio for accused-appellant. sexual intercourse.

QUIASON, J.: Appellants version of the killing was that when his wife saw him, she pushed her
paramour aside. Her paramour immediately stood up, took a knife placed on top of
This is an appeal from the decision of the Regional Trial Court, Branch 26, Surallah, the bedside table and attacked appellant. The latter was able to wrest possession of
South Cotabato, finding Eduardo Gelaver, guilty beyond reasonable doubt of the knife and then used it against the paramour, who evaded the thrusts of the
Parricide (Art. 246, Revised Penal Code) and sentencing him to "suffer the penalty of appellant by hiding behind the victim. Thus, it was the victim who received the stab
reclusion perpetua and to indemnify the heirs of his wife, Victoria Pacinabao, in the intended for the paramour.
amount of P30,000.00." (Decision, p. 7; Rollo, p. 28)
As to why he continued to stab his wife, appellant said that his mind had been
In the Information filed with the trial court and docketed as Criminal Case No. 643, "dimmed" or overpowered by passion and obfuscation by the sight of his wife having
Eduardo Gelaver, was charged with Parricide committed as follows: carnal act with her paramour.

That on or about the 24th day of March, 1988 at 7:00 o'clock in the Appellant faults the trial court in imposing the penalty of reclusion perpetua for the
morning, more or less, in Barangay Poblacion, Municipality of Sto. crime of parricide, instead of the penalty of destierro for killing under exceptional
Niño, Province of South Cotabato, Philippines, and within the circumstances pursuant to Article 247 of the Revised Penal Code. (Appellant's Brief,
jurisdiction of this Honorable Court, said accused with intent to kill p. 1)
and being then armed with a knife did then and there wilfully,
unlawfully and feloniously attack, assault and stab one VICTORIA Appellant's contention is bereft of merit.
GELAVER Y PACINABAO, his lawfully wedded wife, with the use
of the said knife hitting her and wounding her on the different parts
of her body and as a result thereof said Victoria Gelaver y Before Article 247 of the Revised Penal Code can be operative, the following
Pacinabao died instantly. (Rollo, p. 7) requisites must be compresent:

At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on the 1. That a legally married person or a parent surprises his spouse or
merits ensued. his daughter, the latter under 18 years of age and living with him, in
the act of committing sexual intercourse with another person.
The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of March
24, 1988, he heard shouts coming from the house of Tessie Lampedario in Barangay 2. That he or she kills any or both of them or inflicts upon any or
Poblacion, Municipality of Sto. Niño, South Cotabato. He saw the appellant and a both of them any serious physical injury in the act or immediately
woman having a heated argument. Thereafter, appellant held the neck of the victim, thereafter.
dragged her and with a knife on his right hand, stabbed the latter three times on the
breast. Appellant then went out of the gate and fled in the direction of the public 3. That he has not promoted or facilitated the prostitution of his wife
market of Sto Niño. (TSN, June 27, 1988, pp. 7-10) or daughter, or that he or she has not consented to the infidelity of
the other spouse. (II Reyes, The Revised Penal Code, 12th Ed., pp.
Eduardo Gelaver admitted killing his wife but claimed that he did so after catching her 452-53; Emphasis supplied)
having carnal act with her paramour.
These requisites must be established by the defense.
Appellant testified that he was married to Victoria Pacinabao, with whom he begot
four children. (TSN, December 19, 1988, p. 9) They lived together at their conjugal
Implicit in this exceptional circumstance is that the death caused must be the However, the trial court erred in finding the presence of the mitigating circumstance of
proximate result of the outrage overwhelming the accused after chancing upon his passion or obfuscation "as a result of his (appellant's) wife leaving their home and
spouse in the act of infidelity (People v. Abarca, 153 SCRA 735 [1987]). In this case, their children." (Rollo, p. 28) Before this circumstance may be taken into
appellant wants this Court to believe that he caught his wife and her paramour in consideration, it is necessary to establish the existence of an unlawful act sufficient to
sexual intercourse. However, his testimony is tainted with inconsistencies which leads produce such a condition of mind. The act producing the obfuscation must not be far
Us to believe otherwise. removed from the commission of the crime by a considerable length of time, during
which the accused might have recovered his equanimity. (I Revised Penal Code,
Appellant's failure to inform the police that he killed his wife when he saw her having Aquino, 1987 ed., p. 267) The crime was committed almost a year after the victim had
sexual intercourse with her paramour, devastated in one fell swoop whatever abandoned the conjugal dwelling.
credibility could possibly be accorded to his version of the incident. As noted by the
Solicitor General, the natural thing for a person to do under the circumstances was to WHEREFORE, the Judgment appealed from is AFFIRMED except with the
report to the police the reason for killing his wife. (Appellee's Brief, p. 8; Rollo, p. 76) MODIFICATION that the indemnity, be increased to P50,000.00 (People v. Sison,
Appellant's contention that he thought that only the killing itself should be blottered, 189 700 [1990]).
reserving the details to the defense lawyer, sounded like a spoonfed afterthought.
SO ORDERED.
If there was a naked man with the victim, he would have had no time to get dressed
because he was then under attack by appellant. There would then have been the
spectacle of a man in the nude running in the streets.

The trial court noted several contradictions in appellant's testimony. Appellant claimed
that he chased the paramour but was unable to overtake him and at the same time,
he testified that the paramour stayed in the room and used the victim as a shield
against appellant's attack with the knife. Appellant also claimed that upon entering the
gate of the fence, he saw his wife and her paramour having carnal act and at the
same breath, he testified that he saw his wife and her paramour only when he opened
the main door of the house.

The trial court found as contrary to human nature appellant's claims that he went to
confront the paramour of his wife unarmed and that he never learned the name of the
paramour inspite of the fact that his wife, allegedly, had been living with the paramour
in the same town for almost a year before the incident.

Absent any substantial proof that the trial court's decision was based on speculation,
the same must be accorded full consideration (People v. Martinada, 194 SCRA 36
[1991) and should not be disturbed on appeal (Mercury Drug v. CIR, 56 SCRA 694
[1974]).

Appellant's claim that on the day prior to his killing of the victim, his daughter Sheryl
had confided to him that her mother was living with a paramour at the house in front
of the Sto. Niño Catholic Church was belied by Sheryl herself. In her testimony, she
stated that she did not know the house where the crime was committed and she had
not gone to that place. She further testified that she had not seen her mother in any
other house except that of her grandfather's. (TSN, January 17, 1989, p. 5)

The trial court was correct in finding the presence of the mitigating circumstance of
voluntary surrender to the authorities. Appellant, immediately after committing the
offense, voluntarily placed himself at the disposal of the police authorities as
evidenced by the entry in the official police blotter.
(Exh. "1")
G.R. No. L-18792 February 28, 1964 caressing his common-law wife inside the movie house; (7) that being in love
with her he took her out from the movie and warned her to be more discreet
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, in her personal conduct in Gumaca; (8) that Alicia Cervantes continued to
vs. serve at Maring's Place as a public hostess; (9) that on May 20, 1958, at
GUILLERMO BELLO, defendant-appellant. 3:00 p.m. the accused went to Maring's Place to ask for some money from
Alicia; (10) that Maring, the owner of the place, and Alicia refused to give
money, Maring telling him to forget Alicia completely because he was
Office of the Solicitor General for plaintiff-appellee. already an old man, an invalid besides and should stop bothering Alicia; (11)
Ferdinand E. Marcos for defendant-appellant. that having failed to obtain financial assistance from his paramour, accused
left the place somewhat despondent and went home passing Bonifacio
REYES, J.B.L., J.: Street; (12) that on his way home he met the brothers Justo Marasigan and
Luis Marasigan who greeted the accused, Luis saying to his brother Justo
Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case the following: "So this is the man whose wife is being used by Maring for
No. 592-G, for murder. white slave trade"; (13) that these remarks of Luis Marasigan naturally
brought grief to the accused, to drown which he sought Paty's place in
Gumaca where he drank 5 glasses of tuba; (14) that from Paty's place he
The information filed against the accused alleged four (4) aggravating circumstances, went to Realistic Studio which is in front of Maring's Place and from there
namely: treachery, evident premeditation, nighttime, and superior strength. The trial watched the movements of Alicia; (15) that at about 9:00 o'clock that night
court made a finding of "treachery, evident premeditation and in cold blood and he entered Maring's Place and without much ado held Alicia from behind
without any provocation"; however, the dispositive portion of the appealed decision with his left hand in the manner of a boa strangulating its prey and with his
states as follows: right hand stabbed Alicia several times with a balisong; (16) that seeing
Alicia fallen on the ground and believing her to be mortally wounded, he fled
... the Court finds the accused Guillermo Bello guilty beyond reasonable and went to the municipal building and there surrendered himself to the
doubt of the crime of murder defined an punished by Article 248 of the police of Gumaca.
Revised Penal Code with the aggravating circumstances of (1) nighttime, (2)
abuse of confidence and obvious ungratefulness, (3) superior strength offset Both the prosecution and the defense also agree that the crime committed is not
only by his surrender to the authorities and hereby sentence him to DIE by murder but only homicide, but they disagree in the qualifying or aggravating and
electrocution in the manner provided by law ordering his heirs, after his mitigating circumstances. The prosecution holds that the crime is homicide,
death, to indemnify the heirs o the deceased Alicia Cervantes in the sum of aggravated by abuse of superior strength, but offset by voluntary surrender. On the
P3,000.00, wit costs. other hand, the defense maintains that the accused is entitled to the additional
mitigating circumstance of passion and obfuscation. The trial court held a different
The record bears out, the Office of the Solicitor General does not challenge, and the conclusion, as earlier stated.
counsel de oficio agree with, and adopts, the following findings of fact of the trial
court: While it cannot be denied that Alicia was stabbed at the back, the wound was but a
part and continuation of the aggression. The four (4) stab wounds (the 3 others were
From the evidence adduced at the hearing of the case, it has been in the breast, hypogastric region, and in the left wrist as shown in the certificate of the
established to the satisfaction of the Court (1) that on September 17, 1954, Municipal Health Officer) were inflicted indiscriminately, without regard as to which
the accused Guillermo Bello, a widower who at that time was about 54 years portion of her body was the subject of attack. The trial court itself found that the stab
of age, took a young peasant lady named Alicia Cervantes, about 24 years in the back was inflicted as Alicia was running away. For this reason, treachery
old his common-law wife; (2) that from that day they lived together cannot be imputed (People v. Cañete, 44 Phil. 478).
apparently in blissful harmony as man and wife without the benefit of
marriage bearing, however, no child, ...; (3) that on May 15, 1958, the Evident premeditation was, likewise, not established. The accused had been carrying
accused who had no means of substantial livelihood except that of making a balisong with him for a long time as a precaution against drunkards, and without
"kaingin" and who apparently was then in financial straits induced Alicia any present plan or intent to use it against his common-law wife. That he watched her
Cervantes to accept an employment as entertainer in a bar and restaurant movements daily manifest his jealous character, but there is no evidence that from
establishment known as Maring's Place situated the corner of Aguinaldo and this jealousy sprouted a plan to snuff out her life.1äwphï1.ñët
Bonifacio Streets, Gumaca, Quezon (4) that Alicia Cervantes entered the
service of Maring's Place on that day as a public hostess; (5) that the
accused being infatuated with his young bride used to watch her movements The evidence does not show, either, any superior strength on the part of the accused,
in Maring's Place everyday; (6) that on May 16 he saw Alicia enter the and, not possessing it, he could not take advantage of it. True that he was armed with
Gumaca theater in Gumaca with a man whom the accused found later was a balisong, but he was old and baldado (invalid), while Alicia was in the prime of her
youth, and not infirm. The facts are not sufficient to draw a comparison of their wine (tuba) before visiting Alicia (the deceased) to plead with her to leave her work.
relative strength. Possession of a balisong gives an aggressor a formidable Alicia's insulting refusal to renew her liaison with the accused, therefore, was not
advantage over the unarmed victim, but the physique of the aggressor ought also to motivated by any desire to lead a chaste life henceforth, but showed her
be considered. At any rate, taking into account the emotional excitement of the determination to pursue a lucrative profession that permitted her to distribute her
accused, it is not clearly shown that there was "intencion deliberada de prevalerse de favors indiscriminately. We can not see how the accused's insistence that she live
la superioridad o aprovecharse intencionadamente de la misma" (Sent. TS. 5 Oct. with him again, and his rage at her rejection of the proposal, can be properly qualified
1906), i.e., deliberate intent to take advantage of superior strength. as arising from immoral and unworthy passions. Even without benefit of wedlock, a
monogamous liaison appears morally of a higher level than gainful promiscuity.
The crime was committed at nighttime, but the accused did not seek or take
advantage of it the better to accomplish his purpose. In fact, Maring's Place was WHEREFORE, the appealed decision should be, and hereby is, modified. This Court
bright and well-lighted; hence, the circumstance did not aggravate the crime. (U.S. vs. finds the accused-appellant, Guillermo Bello, guilty beyond reasonable doubt of the
Ramos, et al., 2 Phil. 434; U.S. vs. Bonete, 40 Phil. 958.) crime of homicide, attended by two (2) mitigating circumstances: (a) passion and
obfuscation, and (b) voluntary surrender, and, therefore, imposes upon him an
We can not understand how the trial court came to couple the crime with the indeterminate sentence ranging from a minimum of six (6) years and one (1) day
aggravating circumstance of abuse of confidence and obvious ungratefulness. There of prision mayor to a maximum of ten (10) years of prision mayor; orders him also to
is nothing to show that the assailant and his common-law wife reposed in one another personally indemnify the heirs of Alicia Cervantes in the amount of P6,000.00, and to
any special confidence that could be abused, or any gratitude owed by one to the pay the costs. So ordered.
other that ought to be respected, and which would bear any relation, or connection,
with the crime committed. None is inferable from the fact that the accused was much
older than his victim, or that he was penniless while she was able to earn a living and
occasionally gave him money, since both lived together as husband and wife. Neither
is it shown that the accused took advantage of any such special confidence in order
to carry out the crime.

Since the aggravating circumstances of treachery, evident premeditation, and abuse

of superior strength, which could have qualified the crime as murder, were not
present, and since the generic aggravating circumstances of nighttime and abuse of
confidence and obvious ungratefulness have not been established, the accused can
only be liable for homicide.

Both defense and prosecution agree that the accused-appellant is entitled to the
benefit of the mitigating circumstances of voluntary surrender to the authorities. The
remaining area of conflict is reduced to whether the accused may lay claim to a
second mitigating circumstance, that of having acted on a provocation sufficiently
strong to cause passion and obfuscation. The defense submits that accused is so
entitled, because the deceased's flat rejection of petitioner's entreaties for her to quit
her calling as a hostess and return to their former relation, aggravated by her
sneering statement that the accused was penniless and invalid (baldado), provoked
the appellant, as he testified, into losing his head and stabbing the deceased. The
state disputes the claim primarily on the strength of the rule that passion and
obfuscation can not be considered when "arising from vicious, unworthy, and immoral
passions" (U.S. vs. Hicks, 14 Phil. 217).

We are inclined to agree with the defense, having due regard to the circumstances
disclosed by the record. It will be recalled that the lower court found that the accused
had previously reproved the deceased for allowing herself to be caressed by a
stranger. Her loose conduct was forcibly driven home to the accused by Marasigan's
remark on the very day of the crime that the accused was the husband "whose wife
was being used by Maring for purposes of prostitution," a remark that so deeply
wounded the appellant's feelings that he was driven to consume a large amount of
G.R. Nos. 54344-45 January 10, 1994 (Danilo) was hit on the left chest by a dart from the slingshot of Gildo whom he saw
aiming at him. He (Danilo) pulled the dart from his chest and ran away but was hit on
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, the lips by a bullet. Then he was pushed by Hernando to seek cover.4
vs.
WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused. Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His
version was that while he, his brothers-in-law and one Sergio Argonzola were walking
WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants. along Divinagracia Street that afternoon, two men approached them. Without any
provocation, one suddenly stabbed him. After being hit on the left arm, he
immediately fled to the plaza where he flagged down a passing cab to take him to the
The Solicitor General for plaintiff-appellee. hospital. He did not see what happened next to his companions. 5

Sixto P. Demaisip for accused-appellants. The defense however maintains that it was the Oro brothers who started the fight.
Accused Gildo Amaguin recounted that on 24 May 1977, at about five o'clock in the
BELLOSILLO, J.: afternoon, Pacifico with five others went to their house in Divinagracia Street, La Paz,
Iloilo City, and approached his brother Celso, who was waiting for his wife at the foot
The coup de main on the Oro brood sent two brothers to the mortuary and a third to of the stairs. While Pacifico was talking to Celso, a companion of Pacifico came
medical care. The bloodbath resulted in the brothers Willie, Gildo and Celso, all forward, held Celso by the shoulder and said : "This is the bravest man in
surnamed Amaguin, being charged with the murder of the Oro brothers Pacifico and Divinagracia Street, the Amaguin." Meanwhile, another companion of Pacifico gave
Diosdado. Willie and Gildo went through trial while Celso to this date remains a Celso a flying kick that sent him reeling. Gildo then went down the house shouting :
fugitive. "Don't fight." However, the attackers drew their knives and slingshots. In return, Celso
pulled out his knife. Since one of the companions of Pacifico lunged at him, Gildo
retreated to the other side of the road and threw stones at his attackers.
The culpability of the Amaguin brothers was recounted by Hernando Oro, a younger
brother of Pacifico and Diosdado. Hernando narrated that in the afternoon of 24 May
1977, he and his brothers Diosdado and Danilo, brother-in-law Rafael Candelaria, an Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot. But
first cousin Sergio Argonzola were invited by their eldest brother Pacifico to the later Danny himself was stabbed from behind by one of Pacifico's companions. Then
latter's house in the interior of Divinagracia Street, La Paz, Iloilo City, for a small Ernie Ortigas, a guest of Celso, emerged from the Amaguin residence holding a
gathering to celebrate the town fiesta.1 At about five o'clock in the afternoon, after revolver. Ernie initially fired three warning shots, after which he successively shot
partaking of the meager preparations put together by Pacifico, he (Hernando) and his Pacifico and a person who tried to stab the former as well as an identified companion
companions decided to leave. They were accompanied by their host to the plaza of Pacifico. Later, both Ernie Ortigas and Celso Amaguin escaped towards the railway
where they could get a ride. tracks.6 The following day, he was brought by his uncle to the PC authorities in Fort
San Pedro for "safe-keeping" and turned over to the local police after a week.

On their way, while traversing Divinagracia Street, Pacifico was called by accused
Celso Amaguin : "Pare, come here." But Pacifico answered : "Pare, not yet because I The story of Gildo was confirmed by Vicente Belicano7 and Nilda Tagnong,8 long-time
have to conduct my guests first." Immediately, Celso, with a butcher's knife in hand, residents of Divinagracia Street, and Nenita Amaguin, mother of the accused
rushed towards Pacifico. Gildo, Celso's younger brother, with a knife tucked to his brothers, who even affirmed that her son Celso was indeed troublesome, 9 but added
waist, followed with a slingshot known as "Indian pana" or "Indian target". While Gildo that Willie "never had any brush with the
aimed the dart from his slingshot at Danilo, which hit the latter on the chest, Celso law." 10
hacked Pacifico. Gildo then stabbed Diosdado with a knife. Thereafter, Willie, the
eldest of the Amaguin brothers, appeared with a handgun and successively shot the On his part, Willie related that he was in the house of his uncle along Divinagracia
brothers Pacifico, Diosdado and the fleeing Danilo. Diosdado, own kneeling, gasping Street that afternoon drinking with some friends. He left the group after hearing some
for breath and pleading for his life, was again shot by Willie who next fired anew at explosions coming from the direction of his mother's house and then seeing his
Pacifico. Meanwhile, Gildo and Celso repeatedly stabbed Pacifico who already lying cousin Danny, with a stab wound at the back, being taken by two policemen, and his
prostrate and defenseless.2 wounded brother Gildo running towards the plaza. Thus, he went to his mother's
residence to find out what happened. But when he got there, the incident had already
Danilo Oro, the youngest of the Oros, likewise testified. He said that at around five ended. As a consequence, he was told by his mother to look for his two brothers who
o'clock in the afternoon of 24 May 1977, while walking along Divinagracia Street on were wounded in the fight and to take them to the hospital. 11 He turned himself in
their way to the plaza for ride home with his three brothers and two others, they were after five days, upon learning that law enforcers were looking for him.
waylaid by Celso, Willie and Gildo, their cousin Danny, all surnamed Amaguin, and
several others. Celso placed an arm on the shoulder of Pacifico and stabbed him with Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused Willie
a knife.3 Then there was a clash between the two groups. In a split second, he only left their gathering after the explosions were heard, and only after seeing his
wounded brother Gildo and his cousin Danny, who was in the company of two conclusiveness, on appeal unless there is a showing of arbitrariness. Always, this has
policemen, pass by. been the familiar rule. 16

Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that after In the instant case, the trial court has accepted as credible the testimonies of
hearing six explosions, she saw an unidentified man with a revolver running away Hernando and Danilo Oro who positively identified accused Celso and Gildo Amaguin
from the scene of the crime, followed by accused Celso who was holding a knife. She as having started the assault on the Oro brothers with the use of a knife and an
was certain that the unidentified man was not accused Willie as the latter was very "Indian pana," and accused Willie Amaguin as the gunwielder who shot the brothers
well known to her, she being a former neighbor of the Amaguins. 12 Pacifico, Diosdado and Danilo during the fray. We see no reason to disregard the
assessment. We simply cannot set aside the factual findings of the trial court absent
Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District Command, any showing of capriciousness on its part.
INP, conducted an autopsy on Pacifico and Diosdado. He declared that out of the 15
stab wounds and one gunshot wound Pacifico sustained, five of the stab wounds The defense belittles the testimony of Hernando Oro pointing to accused Willie
were fatal. With regard to Diosdado, four (4) stab wounds, out of the ten (10), and the Amaguin as the gunman as it stands "singly and alone," in contrast to the declaration
lone bullet he had sustained were considered fatal. 13 of the defense witnesses exonerating Willie and Gildo. While the defense may have
presented a number of witnesses who, as the trial court puts it, "virtually 'sang' in a
After a joint trial, and finding the version of the prosecution to be more credible, the chorus that the killers (Celso and Danny Amaguin and a certain Ernie Ortigas) not the
then Court of First Instance of Iloilo, Br. II, 14 found the accused Gildo Amaguin, also two accused herein (Willie and Gildo
known as "Tigib," guilty beyond reasonable doubt of the crime of Murder, and . . . Amaguin)," 17 still the trial judge had the opportunity, as well as the right and
sentenced (him) to Reclusion Perpetua, both in Criminal Cases Nos. 8041 and 8042, responsibility, to assess their credibility — just like all other witnesses. After all, there
together with all the accessory penalties, and to pay the costs." is no law which requires that the testimony of a single witness needs corroboration
except when the law so expressly requires. As it is often said, witnesses are to be
weighed, not numbered. If credible and positive, the testimony of a single witness is
As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as sufficient to convict. 18 Indeed the determination of the credibility of witnesses is the
accomplice in both Criminal Cases 8041 and 8042, and . . . sentenced (him) to an trial court's domain, hence, we respect its factual findings.
indeterminate penalty of Seventeen (17) Years, Four (4) Months, and One (1) Day to
Twenty (20) Years each in said cases together with all the accessory penalties, and
to pay the costs." For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi
that he did not participate in the fray and that he was in the nearby house of his uncle
drinking with his friends, and accused Gildo Amaguin's denial that he was unarmed
Both accused were "further sentenced to indemnify the heirs of the late Pacifico Oro but later forced to hurl stones to defend himself, are without sound basis. Alibi is one
and Diosdado Oro, jointly and severally in the total sum of P24,000.00 as death of the weakest defenses that can be resorted to especially where there is direct
compensation; P20,000.00 (as) moral damages; P10,000.00 (as) exemplary testimony of an eyewitness, not only because it is inherently weak and unreliable but
damages; and P5,000.00 for burial expenses, in both Criminal cases nos. 8041 and also because of the ease of its fabrication and the difficulty of checking and rebutting
8042." it.19 Besides, alibi to be believed must be supported by the physical impossibility of
the accused to have been at the scene of the crime. 20 And as in an alibi, a denial, if
In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a unsubstantiated by clear and convincing evidence, is a negative and self-serving
quo erred: (a) in categorizing the offense/s as murder; (b) in finding Willie Amaguin to evidence which deserves no weight in law and cannot be given greater evidentiary
be the person involved in the incident; (c) in holding that there was conspiracy value over the testimony of credible witnesses who testify on affirmative
between the brothers Gildo and Celso Amaguin (the latter is at large); (d) in finding matters.21 Thus, as between a mere denial of the accused and the positive
Gildo Amaguin to be armed with a knife and an Indian target when he was only armed identification and detailed declarations of the prosecution witnesses, the trial court
with stones; and, (e) even assuming the accused to be guilty, in not holding them committed no error in according heavier weight to the latter. 22
responsible for their individual acts, and in not appreciating the mitigating
circumstance of voluntary surrender. 15 Hence, this version of the prosecution prevails: Celso and Gildo, together with others,
attacked the Oros. During the fray, Gildo was armed with a knife and an "Indian
Before disposing of the other issues raised by appellants, we resolve the second and target." And just as they were about to finish off the Oro brothers, Willie, the eldest of
fourth assigned errors first to determine which of the two conflicting versions of the the Amaguins, appeared with a revolver and delivered the coup de grace.
incident deserves credence. Their resolution rests upon the credibility of the
witnesses who have come forward, a matter addressed to the sound judgment of the The factual setting having been settled, we now go to the first assigned error , i.e.,
trial court which is in a better position to decide them, it having heard the witnesses thwt the lower court erred in categorizing the offense as murder there being no
and observed their deportment and manner of testifying during the trial. treachery since "the combatants were face to face" and "[c]onfronting each other
Consequently, the assessment of the trial judge is usually received with respect, if not frontally . . . that each will know each other's next move." 23 Except for appellants'
premise, the argument has merit. The killing of Pacifico and Diosdado cannot be In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already with
qualified by treachery. numerous fatal stab wounds, Willie should be liable for frustrated homicide it
appearing that the gunshot wound was not fatal although his intent to kill was evident.
While we have already ruled that even a frontal attack can be treacherous, as when it Likewise, the aggravating circumstance of abuse of superior strength may be
is sudden and unexpected and the victim is unarmed, 24 here, it appears that the appreciated as a generic aggravating circumstance.
aggressors did not employ means tending directly and specially to ensure the
execution of the crime without risk to themselves arising from the defense which the Finally, we agree with accused-appellants' view that voluntary surrender should be
offended parties might take. appreciated in their favor. While it may have taken both Willie and Gildo a week
before turning themselves in, the fact is, they voluntarily surrendered to the police
It must be noted that the assailants attacked a group of six (6) individuals who could authorities before arrest could be effected. For voluntary surrender to be appreciated
have been armed. as a mitigating circumstance, the following elements must be present: (a) the offender
has not been actually arrested; (b) the offender surrendered himself to a person in
authority; and (c) the surrender must be voluntary. 28 All these requisites appear to
It is highly probable that at least one of those attacked could offer resistance and have attended their surrender.
could put the lives of the aggressors in danger, as what indeed happened when
accused-appellant Gildo Amaguin and his cousin Danny suffered injuries as a result
of the fight which, from all indications, ended in a free-for-all. That Pacifico sustained Now, we turn to the penalties.
15 stab wounds and a gunshot wound, and Diosdado, ten stab wounds and a bullet
wound, does not necessarily mean that treachery attended the killings. As already In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate
adverted to, for treachery to be appreciated, the offender must employ means, crimes of homicide for the death of Diosdado and Pacifico, respectively. The penalty
methods, or forms in the commission of the crime which tend directly and specially to prescribed by law for homicide is reclusion
insure its execution without risk to himself arising from the defense which the temporal. 29 Applying the Indeterminate Sentence Law, and appreciating the
offended party might take.25 Here, there is serious doubt. mitigating circumstance of voluntary surrender with no aggravating circumstance, the
maximum penalty to be imposed on accused Gildo Amaguin for each of the homicide
On the third assigned error, i.e., that there was conspiracy between Gildo and Celso, he has committed, which he must serve successively, should be taken from the
who remains at large, the evidence shows how Celso and Gildo simultanously minimum of the imposable penalty, which is reclusion temporal the range of the
assaulted the Oro brothers. While Celso lunged at Pacifico, Gildo aimed his slingshot minimum period of which is twelve (12) years and one (1) day to fourteen (14) years
at Danilo who was hit by its dart, and immediately and eight (8) months, while the minimum should be taken from the penalty next lower
attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo and in degree, which is prision mayor the full range of which is six (6) years and one (1)
Celso acted in unison and cooperated with each other toward the accomplishment of day to twelve (12) years, in any of its periods.
a common felonious objective. Certainly, there was conspiracy between the brothers
Gildo and Celso, and it was not necessary to prove a previous agreement to commit In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of
the crime since from their overt acts, it was clear that they acted in concert in the superior strength but offset by the mitigating circumstance of voluntary surrender, and
pursuit of their unlawful design. in Crim. Case No. 8042, he is guilty of frustrated homicide likewise aggravated by
abuse of superior strength but offset by voluntary surrender. For the homicide,
However, it was error to rule that accused Willie was an accomplice to his brothers. applying the Indeterminate Sentence Law and taking into account the mitigating
There being no sufficient evidence to link him to the conspiracy, he should be liable circumstance of voluntary surrender which, as earlier mentioned, offsets the
for the natural and logical consequence of his own felonious acts. Hence, we take aggravating circumstance of abuse of superior strength, the maximum penalty should
exception to the conclusion of the trial court that Pacifico and Diosdado did not die be taken from the medium of the imposable penalty, which is reclusion temporal the
due to the gunshot wounds inflicted by Willie. range of the medium period of which is fourteen (14) years eight (8) months and one
Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico and (1) day to seventeen (17) years and four (4) months, while the minimum should be
Diosdado, testified that while the gunshot wound sustained by Pacifico was not fatal, taken from the penalty next lower in degree which is prision mayor in any of its
that suffered by Diosdado was fatal.26 periods.

Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he For the frustrated homicide, the imposable penalty is one degree lower than the
should be liable for homicide. And, since Diosdado was already on bended knees and penalty prescribed by law for the consummated offense, and one degree lower
pleading for his life when fatally shot, the aggravating circumstance of the abuse of than reclusion temporal is prision mayor. Applying the Indeterminate Sentence Law
superior strength, although not alleged in the information but proven during the trial, and the attending circumstances which offset each other, the maximum penalty to be
may be considered as a generic aggravating circumstance. 27 imposed should be taken from the medium of the imposable penalty, which is prision
mayor the range of the medium period of which is eight (8) years and one (1) day to
ten (10) years, while the minimum should be taken from the penalty next lower in
degree, which is prision correccional the full range of which is six (6) months and one
(1) day to six (6) years, in any of its periods.

WHEREFORE, the decision of the court a quo finding the accused-appellants WILLIE
AMAGUIN and GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and 8042 is
MODIFIED as follows:

(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim. Case

No. 8041 and is sentenced to six (6) years, two (2) months and one (1) day of prision
mayor minimum as minimum, to fourteen (14) years, eight (8) months and twenty (20)
days of reclusion temporal medium as maximum, and of FRUSTRATED HOMICIDE
in Crim. Case No. 8042 and is sentenced to six (6) months and twenty (20) days
of prision correccional minimum as minimum, to eight (8) years, four (4) months and
ten (10) days of prision mayor as maximum, to be served successively;.

(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate crimes of
HOMICIDE in Crim. Cases Nos. 8041 and 8042 and is sentenced to six (6) years two
(2) months and one (1) day of prision mayor minimum as minimum, to twelve (12)
years, six (6) months and ten (10) days of reclusion temporal minimum as maximum,
for each homicide, to be served successively;

(c) in Crim. Case No. 8041, accused-appellants WILLIE AMAGUIN and GILDO
AMAGUIN are declared jointly and severally liable to the heirs of Diosdado Oro for
P50,000.00 as civil indemnity consistent with prevailing jurisprudence; and,

(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the heirs
of Pacifico Oro for P50,000.00 as civil indemnity.

Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in both

cases.

SO ORDERED.
G.R. No. L-45284 December 29, 1936 The facts charged constitute the crime of robbery defined in article 294 of the Revised
Penal Code and punished by the penalty of prision correccional to prision mayor in its
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, medium period.
vs.
FRANCISCO DE LA CRUZ, ET AL., defendants. The allegations of the information with respect to the appellant Francisco de la Cruz
FRANCISCO DE LA CRUZ, appellant. are not sufficient to consider him a habitual delinquent (People vs. Venus, p.
435, ante). However, the facts alleged in this respect constitute the aggravating
Marciano Sayoc for appellant. circumstance of recidivism.lawphi1.net
Undersecretary of Justice Melencio for appellee.
On the other hand, the appellant's plea of guilty does not constitute a mitigating
AVANCEÑA, C.J.: circumstance under article 13, subsection 7, of the Revised Penal Code, which
requires that this plea be spontaneous and that it be made prior to the presentation of
evidence by the prosecution. The confession of guilt, although subsequent to the
This case was prosecuted upon the following information: consummation of the crime and entirely alien to its development, constitutes a cause
for the mitigation of the penalty, not because it is a circumstance modifying criminal
That on or about the 30th day of May, 1936, in the City of Manila, Philippine Islands, responsibility already incurred and in the evolution of which it has not intervened
the said accused Francisco de la Cruz, Fernando Legaspi and three other persons absolutely, but because, as an act of repentance and respect for the law, it indicates
whose identities are still unknown, confederating together and helping one another, a moral disposition in the accused favorable to his reform. It is clear that these
did then and there willfully, unlawfully and feloniously, and with intent of gain, attack, benefits are not deserved by the accused who submits to the law only after the
assault and use personal violence upon one Yu Wan, by then and there giving him presentation of some evidence for the prosecution, believing that in the end the trial
blows with his fist on the face and other parts of the body, thereby inflicting upon him will result in his conviction by virtue thereof.
physical injuries which have required and will require medical attendance for a period
of more than one but less than nine days and have prevented and will prevent the Wherefore, eliminating the additional penalty by reason of habitual delinquency,
said Yu Wan from engaging in his customary labor for the same period of time; and considering the presence of an aggravating circumstance in the commission of the
afterwards took, stole and carried away with him without the consent of the owner crime without any mitigating circumstance, and applying the Indeterminate Sentence
thereof the following personal property, to wit: Law, the appellant is sentenced to the penalty of from six months of arresto mayor, as
minimum, to six years, ten months and one day of prision mayor, as maximum,
Twenty-six (P26) pesos in cash, consisting of different denominations affirming the appealed sentence in all other respects, with the costs. So ordered.
................ P26.00

belonging to said Yu Wan, to the damage and prejudice of the said owner in the said
sum of P26, Philippine currency.

That the said accused Francisco de la Cruz is a habitual delinquent under

the provisions of the Revised Penal Code, he having been previously
convicted once of the crime of theft and twice of the crime of estafa, by virtue
of final judgments rendered by competent courts, having been last convicted
on July 24, 1933.

Upon arraignment, the accused pleaded not guilty.

During the trial and after two witnesses for the prosecution had testified, the accused
withdrew their plea of not guilty, substituting it by that of guilty. The court sentenced
Francisco de la Cruz to six months and one day of prision correccional and,
considering him a habitual delinquent, sentenced him furthermore to the additional
penalty of six years and one day of prision mayor. The other accused Fernando
Legaspi was sentenced to ten months of prision correccional. Francisco de la Cruz
appealed for this sentence.
G.R. No. 140937 February 28, 2001 petitioner told Gardenio and Maria he would call them the next day so that they could
talk the matter over with his father.
EXUPERANCIO CANTA, petitioner,
vs. However, petitioner never called them. Hence, Narciso Gabriel reported the matter to
PEOPLE OF THE PHILIPPINES, respondent. the police of Malitbog, Southern Leyte.6 As a result, Narciso and petitioner
Exuperancio were called to an investigation. Petitioner admitted taking the cow but
MENDOZA, J.: claimed that it was his and that it was lost on December 3, 1985. He presented two
certificates of ownership, one dated March 17, 1986 and another dated February 27,
1985, to support his claim (Exh. B).7
This is a petition for review on certiorari of the decision, dated August 31, 1999, and
resolution, dated November 22, 1999, of the Court of Appeals, 1 which affirmed the
decision of the Regional Trial Court, Branch 25, Maasin, Southern Leyte,2 finding Narciso presented a certificate of ownership issued on March 9, 1986, signed by the
petitioner Exuperancio Canta guilty of violation of P.D. No. 533, otherwise known as municipal treasurer, in which the cow was described as two years old and female. On
the Anti-Cattle Rustling Law of 1974, and sentencing him to ten (10) years and one the reverse side of the certificate is the drawing of a cow with cowlicks in the middle
(1) day of prision mayor, as minimum, to twelve (12) years, five (5) months, and of the forehead, between the ears, on the right and left back, and at the base of the
eleven (11) days of reclusion temporal medium, as maximum, and to pay the costs. forelegs and hindlegs (Exhs. C, C-1 to 4).8 All four caretakers of the cow identified the
cow as the same one they had taken care of, based on the location of its cowlicks, its
sex, and its color. Gardenio described the cow as black in color, with a small portion
The information against petitioner alleged: of its abdomen containing a brownish cowlick, a cowlick in the middle of the forehead,
another at the back portion between the two ears, and four cowlicks located near the
That on or about March 14, 1986, in the municipality of Malitbog, province of base of its forelegs and the hindlegs.9
Southern Leyte, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused with intent to gain, did then and there, On the other hand, petitioner claimed he acquired the animal under an agreement
willfully, unlawfully and feloniously, take, steal and carry away one (1) black which he had with Pat. Diosdado Villanueva, that petitioner take care of a female cow
female cow belonging to Narciso Gabriel valued at Three Thousand Pesos of Pat. Villanueva in consideration for which petitioner would get a calf if the cow
(P3,000.00) without the knowledge and consent of the aforesaid owner, to produced two offsprings. Petitioner claimed that the cow in question was his share
his damage and prejudice in the amount aforestated.1âwphi1.nêt and that it was born on December 5, 1984. This cow, however, was lost on December
2, 1985. Petitioner said he reported the loss to the police of Macrohon, Padre Burgos,
CONTRARY TO LAW.3 and Malitbog, on December 3, 1985 (Exh. A and Exh. 1).10

The prosecution established the following facts: Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the
cow at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to
Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the Pilipogan with the mother cow on March 14, 1986 to see whether the cow would
case, upon its birth on March 10, 1984. The cow remained under the care of Erlinda suckle the mother cow. As the cow did, petitioner took it with him and brought it,
Monter for sometime. Subsequently, Narciso gave the care and custody of the together with the mother cow, to his father Florentino Canta. 11 Maria Tura tried to get
animal, first, to Generoso Cabonce, from October 24, 1984 to March 17, 1985; then to the cow, but Florentino refused to give it to her and instead told her to call Narciso so
Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio Agapay, that they could determine the ownership of the cow.12 As Narciso did not come the
from March 3, 1986 until March 14, 1986 when it was lost.4 It appears that at 5 o'clock following day, although Maria did, Florentino said he told his son to take the cow to
in the afternoon of March 13, 1986, Agapay took the cow to graze in the mountain of the Municipal Hall of Padre Burgos. Petitioner did as he was told. Three days later,
Pilipogan in Barangay Candatag, about 40 meters from his hut. However, when he Florentino and Exuperancio were called to the police station for investigation. 13
came back for it at past 9 o'clock in the morning of March 14, 1986, Agapay found the
cow gone. He found hoof prints which led to the house of Filomeno Vallejos. He was Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,
told that petitioner Exuperancio Canta had taken the animal.5 198514 and a statement executed by Franklin Telen, janitor at the treasurer's office of
the municipality of Padre Burgos, to the effect that he issued a Certificate of
Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal Ownership of Large Cattle in the name of petitioner Exuperancio Canta on February
from petitioner's wife, but they were informed that petitioner had delivered the cow to 27, 1985 (Exh. 5).15 The statement was executed at the preliminary investigation of
his father, Florentino Canta, who was at that time barangay captain of Laca, Padre the complaint filed by petitioner against Narciso.16
Burgos, Southern Leyte. Accordingly, the two went to Florentino's house. On their
way, they met petitioner who told them that if Narciso was the owner, he should claim Petitioner's Certificate of Ownership was, however, denied by the municipal treasurer,
the cow himself. Nevertheless, petitioner accompanied the two to his father's house, who stated that petitioner Exuperancio Canta had no Certificate of Ownership of
where Maria recognized the cow. As petitioner's father was not in the house, Large Cattle in the municipality of Padre Burgos (Exhs. E, E-1 and 2).17 On the other
hand, Telen testified that he issued the Certificate of Ownership of Large Cattle to The Court of Appeals affirmed the trial court's decision and denied petitioner's motion
petitioner on March 24, 1986 but, at the instance of petitioner, he (Telen) antedated it for reconsideration. Hence, this petition. It is contended that the prosecution failed to
to February 27, 1985.18 prove beyond reasonable doubt his criminal intent in taking the disputed cow.

On January 24, 1997, the trial court rendered its decision finding petitioner guilty of First. Petitioner claims good faith and honest belief in taking the cow. He cites the
the offense charged. In giving credence to the evidence for the prosecution, the trial following circumstances to prove his claim:
court stated:
1. He brought the mother cow to Pilipogan to see if the cow in question
From the affidavits and testimonies of the complainant and his witnesses, it would suckle to the mother cow, thus proving his ownership of it;
is indubitable that it was accused Exuperancio Canta who actually took the
cow away without the knowledge and consent of either the 2. He compared the cowlicks of the subject cow to that indicated in the
owner/raiser/caretaker Gardenio Agapay. Certificate of Ownership of Large Cattle issued on February 27, 1985 in his
name, and found that they tally;
That the taking of the cow by the accused was done with strategy and
stealth considering that it was made at the time when Gardenio Agapay was 3. He immediately turned over the cow to the barangay captain, after taking
at his shelter-hut forty (40) meters away tethered to a coconut tree but it, and later to the police authorities, after a dispute arose as to its
separated by a hill. ownership; and

The accused in his defense tried to justify his taking away of the cow by 4. He filed a criminal complaint against Narciso Gabriel for violation of P. D.
claiming ownership. He, however, failed to prove such ownership. Accused No. 533.
alleged that on February 27, 1985 he was issued a Certificate of Ownership
of Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the
Office of the Municipal Treasurer of Padre Burgos, a neighboring town. On These contentions are without merit.
rebuttal Franklin Telen denied in Court the testimony of the accused and
even categorically declared that it was only on March 24, 1986 that the P.D. No. 533, §2(c) defines cattle-rustling as
accused brought the cow to the Municipal Hall of Padre Burgos, when he
issued a Certificate of Ownership of Large Cattle for the cow, and not on . . . the taking away by any means, methods or scheme, without the consent
February 27, 1985. Franklin Telen testified thus: of the owner/raiser, of any of the abovementioned animals whether or not for
profit or gain, or whether committed with or without violence against or
"Q. According to the defense, this Certificate of Ownership of Large intimidation of any person or force upon things.
Cattle was issued by you on February 27, 1985. Is that correct?
The crime is committed if the following elements concur: (1) a large cattle is taken; (2)
A. Based on the request of Exuperancio, I antedated this. it belongs to another; (3) the taking is done without the consent of the owner; (4) the
taking is done by any means, methods or scheme; (5) the taking is with or without
(TSN, June 3, 1992, p. 7)" intent to gain; and (6) the taking is accomplished with or without violence or
intimidation against person or force upon things.20
The testimony of Franklin Telen was confirmed in open court by no less than
the Municipal Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, These requisites are present in this case. First, there is no question that the cow
September 29, 1992, pp. 5-8). belongs to Narciso Gabriel. Petitioner's only defense is that in taking the animal he
acted in good faith and in the honest belief that it was the cow which he had lost.
Second, petitioner, without the consent of the owner, took the cow from the custody of
If accused Exuperancio Canta were the owner of the cow in question, why the caretaker, Gardenio Agapay, despite the fact that he knew all along that the latter
would he lie on its registration? And why would he have to ask Mr. Franklin was holding the animal for the owner, Narciso. Third, petitioner falsified his Certificate
Telen to antedate its registry? It is clear that accused secured a Certificate of of Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make
Ownership of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs. A it appear that he owned the cow in question. Fourth, petitioner adopted "means,
& B) only after the act complained of in the instant case was committed on methods, or schemes" to deprive Narciso of his possession of his cow, thus
March 14, 1986. His claim of ownership upon which he justifies his taking manifesting his intent to gain. Fifth, no violence or intimidation against persons or
away of the cow has no leg to stand on. Upon the other hand, the force upon things attended the commission of the crime.
complainant has shown all the regular and necessary proofs of ownership of
the cow in question.19
Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which In any event, petitioner was not justified in taking the cow without the knowledge and
petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in permission of its owner. If he thought it was the cow he had allegedly lost, he should
the municipal treasurer's office, admitted that he issued the certificate to petitioner 10 have resorted to the court for the settlement of his claim. Art. 433 of the Civil Code
days after Narciso's cow had been stolen. Although Telen has previously executed a provides that "The true owner must resort to judicial process for the recovery of the
sworn statement claiming that he issued the certificate on February 27, 1985, he later property." What petitioner did in this case was to take the law in his own hands. 25 He
admitted that he antedated it at the instance of petitioner Exuperancio Canta, his surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay,
friend, who assured him that the cow was his.21 which act belies his claim of good faith.

Telen's testimony was corroborated by the certification of the municipal treasurer of For the foregoing reasons, we hold that the evidence fully supports the finding of both
Padre Burgos that no registration in the name of petitioner was recorded in the the trial court and the Court of Appeals that accused-appellant is guilty as charged.
municipal records. Thus, petitioner's claim that the cowlicks found on the cow tally There is therefore no reason to disturb their findings.
with that indicated on the Certificate of Ownership of Large Cattle has no value, as
this same certificate was issued after the cow had been taken by petitioner from However, the decision of the Court of Appeals should be modified in two respects.
Gardenio Agapay. Obviously, he had every opportunity to make sure that the
drawings on the certificate would tally with that existing on the cow in question.
First, accused-appellant should be given the benefit of the mitigating circumstance
analogous to voluntary surrender. The circumstance of voluntary surrender has the
The fact that petitioner took the cow to the barangay captain and later to the police following elements: (1) the offender has not actually been arrested; (2) the offender
authorities does not prove his good faith. He had already committed the crime, and surrenders to a person in authority or to the latter's agent; and (3) the surrender is
the barangay captain to whom he delivered the cow after taking it from its owner is his voluntary.26 In the present case, petitioner Exuperancio Canta had not actually been
own father. While the records show that he filed on April 30, 1986 a criminal arrested. In fact, no complaint had yet been filed against him when he surrendered
complaint against Narciso Gabriel, the complaint was dismissed after it was shown the cow to the authorities. It has been repeatedly held that for surrender to be
that it was filed as a countercharge to a complaint earlier filed on April 16, 1986 voluntary, there must be an intent to submit oneself unconditionally to the authorities,
against him by Narciso Gabriel. showing an intention to save the authorities the trouble and expense that his search
and capture would require.27 In petitioner's case, he voluntarily took the cow to the
Petitioner says that he brought a mother cow to see if the cow in question would municipal hall of Padre Burgos to place it unconditionally in the custody of the
suckle to the mother cow. But cows frequently attempt to suckle to alien authorities and thus saved them the trouble of having to recover the cow from him.
cows.22 Hence, the fact that the cow suckled to the mother cow brought by petitioner This circumstance can be considered analogous to voluntary surrender and should be
is not conclusive proof that it was the offspring of the mother cow. considered in favor of petitioner.

Second. Petitioner contends that even assuming that his Certificate of Ownership is Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D. No.
"not in order," it does not necessarily follow that he did not believe in good faith that 533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in
the cow was his. If it turned out later that he was mistaken, he argues that he imposing the penalty of 10 years and 1 day of prision mayor, as minimum, to 12
committed only a mistake of fact but he is not criminally liable. years, 5 months and 11 days of reclusion temporal medium, as maximum. The trial
court apparently considered P. D. No. 533 as a special law and applied §1 of the
Petitioner's Certificate of Ownership is not only "not in order." It is fraudulent, having Indeterminate Sentence Law, which provides that "if the offense is punished by any
been antedated to make it appear it had been issued to him before he allegedly took other law, the court shall sentence the accused to an indeterminate sentence, the
the cow in question. That he obtained such fraudulent certificate and made use of it maximum term of which shall not exceed the maximum fixed by said law and the
negates his claim of good faith and honest mistake. That he took the cow despite the minimum shall not be less than the minimum term prescribed by the same." However,
fact that he knew it was in the custody of its caretaker cannot save him from the as held in People v. Macatanda,28 P. D. No. 533 is not a special law. The penalty for
consequences of his act.23 As the Solicitor General states in his Comment: its violation is in terms of the classification and duration of penalties prescribed in the
Revised Penal Code, thus indicating that the intent of the lawmaker was to amend the
Revised Penal Code with respect to the offense of theft of large cattle. In fact, §10 of
If petitioner had been responsible and careful he would have first verified the the law provides:
identity and/or ownership of the cow from either Narciso Gabriel or Gardenio
Agapay, who is petitioner's cousin (TSN, 9/12/91, p. 26). Petitioner,
however, did not do so despite the opportunity and instead rushed to take The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as
the cow. Thus, even if petitioner had committed a mistake of fact he is not the Revised Penal Code, as amended, pertinent provisions of the Revised
exempted from criminal liability due to his negligence. 24 Administrative Code, as amended, all laws, decrees, orders, instructions,
rules and regulations which are inconsistent with this Decree are hereby
repealed or modified accordingly.
There being one mitigating circumstance and no aggravating circumstance in the
commission of the crime, the penalty to be imposed in this case should be fixed in its
minimum period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of
the Revised Penal Code, petitioner should be sentenced to an indeterminate penalty,
the minimum of which is within the range of the penalty next lower in degree, i.
e., prision correccional maximum to prision mayor medium, and the maximum of
which is prision mayor in its maximum period.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the

modification that petitioner Exuperancio Canta is hereby SENTENCED to suffer a
prison term of four (4) years and two (2) months of prision correccional maximum, as
minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum.

SO ORDERED.1âwphi1.nêt