Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 149152             February 2, 2007

RUFINO S. MAMANGUN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y Silverio
seeks the reversal of the Decision1 dated January 19, 2001 (promulgated on February 13, 2001) of
the Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime of Homicide.

The factual backdrop:

On September 12, 1994, herein petitioner, then a police officer, was charged before the
Sandiganbayan with the crime of Murder, allegedly committed, per the indicting
Information,2 docketed as Criminal Case No. 21131, as follows:

That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rufino S.
Mamangun, a public officer, being then a Police Officer (PO2), duly appointed as such and acting in
relation to his office, armed with a gun, with intent to kill, did then and there willfully, unlawfully and
feloniously, with treachery, evident premeditation and abuse of superior strength, attack, assault and
shoot one Gener M. Contreras with the said gun, hitting the latter on his body, thereby inflicting (sic)
him serious physical injuries which directly cause (sic) his death.

CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a plea of
"Not Guilty."

In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson
(Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated Medico-Legal Officer
of Bulacan who performed an autopsy on the cadaver of the victim.

For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino
Mamangun, his co-policemen at the Philippine National Police (PNP), namely, PO2 Carlito Cruz,
PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez, all assigned at the
Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law,
respectively, of Antonio Abacan, owner of the house on which rooftop the shooting of the victim took
place.
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario, Meycauayan,
Bulacan a certain Liberty Contreras was heard shouting, "Magnanakaw…Magnanakaw." Several
residents responded and thereupon chased the suspect who entered the yard of Antonio Abacan
and proceeded to the rooftop of Abacan’s house.

At about 9:00 o’clock that same evening, the desk officer of the Meycauayan PNP Police Station,
upon receiving a telephone call that a robbery-holdup was in progress in Brgy. Calvario, immediately
contacted and dispatched to the scene the crew of Patrol Car No. 601 composed of Team Leader
SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun;
and Patrol Car No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito
Cruz and PO2 Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2 Diaz and
PO2 Cruz went to the rooftop of the house whereat the suspect was allegedly taking refuge.

The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun, searched
the rooftop. There, they saw a man whom they thought was the robbery suspect. At that instance,
petitioner Mamangun, who was walking ahead of the group, fired his handgun once, hitting the man.
The man turned out to be Gener Contreras (Contreras) who was not the robbery suspect.

Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero yielded
the following findings:

The cause of death was "Shock due to massive external and internal hemorrhage due to multiple
gunshot wounds in the left arm side of the thorax, penetrating the left lung and vertebral column."
There were several wounds caused by one (1) bullet.

As shown on the sketch of human body attached to the Certificate of Death, and as testified on by
Dr. Caballero, the bullet entered through the "lower third of the left arm, left side of the thorax and it
penetrated the left lung and vertebral column and that is where the slug was found." From a
layman’s appreciation of the sketch, the bullet entered the outer, upper left arm of the victim, exited
through the inner side of the said upper left arm, a little lower than the left armpit and the slug
lodging on the victim’s back where it was recovered at the vertebral column. 3

From the foregoing admitted or undisputed facts, the prosecution and the defense presented
conflicting versions as to how the fatal shooting of Contreras by petitioner Mamangun actually
happened.

According to Ayson, the lone eyewitness for the prosecution, he accompanied the three policemen
(Mamangun, Diaz and Cruz) to the rooftop of Abacan’s house. He was following petitioner
Mamangun who was ahead of the group. They passed through the second-floor door of the house to
the rooftop. The roof was lighted by an incandescent bulb from an adjacent house. He was beside
Mamangun when they saw, some four to five arms-length away, a man whom he (witness)
recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly
exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi ako?" Before he
(Ayson) could say anything, Mamangun fired his gun, hitting the man who turned out to be
Contreras. He (witness) approached the victim who was then lying on his left side unconscious. He
brought down the victim and they rushed him to the hospital where he died at about 10:00 o’clock
that same evening.

The defense has its own account of what purportedly actually transpired. 1awphi1.net

PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the rooftop
during the shooting incident. Corroborating one another, the three testified that they were the only
ones at the scene of the shooting, and that it was dark. They claimed that each of them, with
Mamangun on the lead, went on separate directions around a water tank. As they met each other at
the other side of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof of the
garage. Thinking that the person was the suspect they were looking for, Mamangun chased said
person. They announced that they were police officers but the person continued to run in a
crouching position until Mamangun caught up with him and shouted, "Pulis. Tigil," whereupon the
person suddenly stopped, turned around, faced Mamangun, and raised a stainless-steel pipe
towards the latter’s head but Mamangun was able to evade the attack. This prompted Mamangun to
shoot the person on the left arm. All three claimed that it was only at this point that PO2 Cruz and
Diaz approached Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near Contreras
and asked, "Why did you go to the rooftop? You know there are policemen here." Contreras was
thereafter brought to the hospital where he died. After the shooting incident, Mamangun reported the
same to the desk officer, POI Filomeno de Luna, who advised him to remain in the police station. De
Luna directed Police Investigator Hernando Banez to investigate the incident. That same evening,
Investigator Banez went to the place where the shooting happened. Banez allegedly found a steel
pipe about three (3) feet long on the depressed portion of the roof.

On January 19, 2001, after due proceedings, the Sandiganbayan came out with its decision 4 finding
the petitioner guilty beyond reasonable doubt of only the crime of Homicide. In so finding, the
Sandiganbayan did not appreciate the presence of the aggravating circumstances of treachery,
evident premeditation and abuse of superior strength to qualify the killing to Murder. But even as the
said court rejected the petitioner’s claim that the shooting was justified by self-defense, it
nonetheless ruled that the crime of Homicide was attended by an incomplete justifying circumstance
of the petitioner having acted in the performance of his duty as a policeman, and also appreciated in
his favor the generic mitigating circumstance of voluntary surrender. Dispositively, the decision
reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond reasonable
doubt of the crime of Homicide, defined and penalized under Article 249, Revised Penal Code, and
taking into account the attendance of one (1) privileged mitigation (sic) circumstance, one generic
circumstance and no aggravating circumstance, he is hereby sentenced under the Indeterminate
Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months
of prision correctional as minimum, to Seven (7) years of prision mayor, as maximum, to indemnify
the heirs (parents) of Gener Contreras in the total amount of P352,025.00, and to past the costs.

SO ORDERED.

Unable to accept the judgment of conviction, petitioner is now with this Court via the present
recourse alleging that the Sandiganbayan committed reversible error in failing to apply paragraph 5,
Article 11, of the Revised Penal Code, which would have absolved him from criminal liability on the
basis of his submission that the shooting in question was done in the performance of a duty or in the
lawful exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras, was
justified because he was repelling Contreras’ unlawful attack on his person, as Contreras was then
about to strike him on the head with a steel pipe.

We are not persuaded.

Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the Court
except where: (1) the conclusion is a finding grounded entirely on speculations, surmises and
conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4)
the judgment is based on misapprehension of facts and the findings of fact are premised on the
absence of evidence and are contradicted by the evidence on record. 5 None of these exceptions
obtains in this case.

Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is charged
with the burden of adducing convincing evidence to show that the killing was done in the fulfillment
of his duty as a policeman.

The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised Penal
Code may be invoked only after the defense successfully proves that: (1) the accused acted in the
performance of a duty; and (2) the injury inflicted or offense committed is the necessary
consequence of the due performance or lawful exercise of such duty.7

Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding to a
robbery-holdup incident. His presence at the situs of the crime was in accordance with the
performance of his duty. However, proof that the shooting and ultimate death of Contreras was a
necessary consequence of the due performance of his duty as a policeman is essential to exempt
him from criminal liability.

As we see it, petitioner’s posturing that he shot Contreras because the latter tried to strike him with a
steel pipe was a mere afterthought to exempt him from criminal liability.

We see no plausible basis to depart from the Sandiganbayan’s findings that there was no reason for
the petitioner to shoot Contreras. The latter was unarmed and had already uttered, "Hindi po ako,
Hindi po ako" before the petitioner fatally shot him on the left arm. Prosecution witness Ayson, who
was then behind the petitioner when the latter shot Contreras, testified that to the victim’s utterances,
the petitioner even responded, "Anong hindi ako," and immediately shot Contreras. 8 As correctly
observed by the Sandiganbayan:

Besides being self-serving (with respect to the accused) and biased (with respect to his co-
policemen-witnesses), We find (1) the claim of the accused and his co-policemen-witnesses that the
victim (Contreras) attacked the said accused and (2) their seemingly "positive" identification of the
stainless-steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for the following
reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the three
policemen appropriately identified themselves as police officers as they started chasing the
man they saw "crouching," and, as claimed by accused PO2 Rufino Mamangun, that, as he
was about to catch up with said man, he shouted, "Pulis! Tigil!" With all these introductions
and forewarnings, it is utterly incredible and contrary to human experience that, that man,
later identified to be Gener Contreras and admittedly not the person they were looking for,
purportedly armed only with a stainless steel "lead" pipe (more of a rod) would suddenly
stop, turn around and attack one of the three policemen who were chasing him, one after the
other, with drawn guns.

(2) When the victim (Gener Contreras) fell down after being shot by accused PO2
Mamangun, and as the latter went near the fallen victim, said accused asked, "Why did you
go to the rooftop. You know there are policemen here." He admits that he did not ask the
victim, "Why did you try to hit me, if you are not the one?" This admission clearly belies the
claim of the police-witnesses that Gener Contreras attacked the accused policeman with an
iron pipe when he was shot, for the accused should have asked the latter question.
 (3) The location of the entry of the bullet fired by accused Mamangun which is at the outer
left arm at about the bicep of the victim and its trajectory as it penetrated his body hitting his
vital organs along the way belies the claim of the accused that the victim was facing him and
had just missed his head with an iron pipe, as instead the victim must have instinctively
shielded his body with his left arm.

Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is intriguing. As it is,
petitioner did not report the same to Police Investigator Banez when he reported back to the police
station after the shooting incident. It was only when a lead pipe was recovered from the scene and
brought to the police station that petitioner conveniently remembered Contreras trying to hit him with
a pipe. Such a vital information could not have escaped the petitioner’s mind. We are thus inclined to
believe that the alleged actuation of Contreras, which could have justified petitioner’s shooting him,
was nothing but a concocted story to evade criminal liability. Indeed, knowing that he shot Contreras,
the least that the petitioner should have done was to bring with him to the police station the very pipe
with which Contreras tried to attack him. As borne by the evidence, however, it was only after a
police investigator referred to the scene that the lead pipe surfaced.

Petitioner would likewise argue that the testimony of prosecution witness Ayson was incredible and
riddled with inconsistencies.

The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he died, and
as to whether Ayson left his house after the shooting incident, are but minor details which do not
affect Ayson’s credibility. We have held time and again that few discrepancies and inconsistencies in
the testimony of a witness referring to minor details and not in actuality touching upon the central
fact of the crime, do not impair his credibility. Quite the contrary, such minor inconsistencies even
tend to strengthen credibility because they discount the possibility that the testimony was
rehearsed.9

For sure, the record reveals that Ayson’s answers to the questions propounded by the defense
counsel are clear and categorical. As to where the victim died, Ayson clarified that the victim was
already at the rooftop even before the arrival of the police officers. As to why he was not able to
warn Mamangun that the victim was his relative, Ayson explained that he was not able to utter any
word because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at the latter. 10 As
to the claim that Ayson was also on the roof, record shows that the robbery-holdup happened at
around 8:00 in the evening. Before the policemen arrived, Ayson and Contreras were already
pursuing the robber.11 Ayson also testified that when the victim was shot by the petitioner, the former
fell on his left side unconscious; that he did not leave his house after the incident because he was
afraid that the policemen would detain him.12

Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying

circumstance in this case. For, from the above admitted, uncontroverted or established facts, the
most important element of unlawful aggression on the part of the victim to justify a claim of self
defense was absent. Lacking this essential and primary element of unlawful aggression, petitioner’s
plea of self-defense, complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s
firing the fatal gunshot at the victim. True, petitioner, as one of the policemen responding to a
reported robbery then in progress, was performing his duty as a police officer as well as when he
was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect,
albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that
the injury or offense committed be the necessary consequence of the due performance of such duty,
there can only be incomplete justification, a privileged mitigating circumstance under Articles 13 and
69 of the Revised Penal Code.

There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner
could have first fired a warning shot before pulling the trigger against Contreras who was one of the
residents chasing the suspected robber.

All told, we find no reversible error committed by the Sandiganbayan in convicting the petitioner of
the crime of Homicide attended by the privileged mitigating circumstance of incomplete justifying
circumstance of having acted in the performance of his duty as a policeman and the generic
mitigating circumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the Sandiganbayan
is AFFIRMED in all respects.

No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199892               December 10, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

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

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision  dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-
1 

H.C. No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision dated March
2 

21, 2007 of the Regional Trial Court (RTC) of fba, Zambales and affirming his conviction for the
complex crime of double murder with multiple attempted murder, with certain modifications on the
civil liability imposed on appellant.
3

In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio Duclayna, SN1 Evelio
Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1 Erlinger Bundang were among the
members of the Philippine Navy sent for schooling at the Naval Education and Training Command
(NETC) at San Miguel, San Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the
afternoon, they went to the "All-in-One" Canteen to have some drink. Later, at around 10:00 in the
evening, they transferred to a nearby videoke bar, "Aquarius," where they continued their drinking
session. Shortly thereafter, a heated argument between SN1 Bacosa and appellant ensued
regarding a flickering light bulb inside "Aquarius." When SN1 Bacosa suggested that the light be
4 

turned off ("Patayin ang ilaw"), appellant who must have misunderstood and misinterpreted SN1
Bacosa’s statement belligerently reacted asking, "Sinong papatayin?," thinking that SN1 Bacosa’s
statement was directed at him. SN1 Cuya tried to pacify SN1 Bacosa and appellant, while SN1
5 

Bundang apologized to appellant in behalf of SN1 Bacosa. However, appellant was still visibly angry,
mumbling unintelligible words and pounding his fist on the table. 6

To avoid further trouble, the navy personnel decided to leave "Aquarius" and return to the NETC
camp. They walked in two’s, namely, SN1 Bundang and SN1 Domingo in the first group, followed by
the group of SN1 Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with
each group at one arm’s length distance from the other. Along the way, they passed by the NETC
7 

sentry gate which was being manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that
time. SN1 Andal and SN1 Duclayna even stopped by to give the sentries some barbecue before
8 

proceeding to follow their companions. 9

Soon after the navy personnel passed by the sentry gate, SN1 De Guzman and F1EN Dimaala
flagged down a rushing and zigzagging maroon Nissan van with plate number DRW 706. The
sentries approached the van and recognized appellant, who was reeking of liquor, as the driver. He
even threatened to kill the Navy members. Punzalan charged forward despite being flagged down,
hit the group of navy personnel from behind, and sped away resulting to the death of Andal and
Duclayan, and injuries to the rest of the group. Punzalan was charged with complex crime of Double
Murder qualified by treachery with Attempted Murder attended by the aggravating circumstances of
use of motor vehicle.
He countered the verdict and claimed that he only accelerated the vehicle because he was attacked
by the Navy group. He insisted that he bumped the group without intent to kill and that he may not
be held criminally liable as he merely acted in avoidance of greater evil or injury, a justifying
circumstance under the RPC. He asserted that the attack against him by the two navy personnel
constituted actual and imminent danger to his life and limb.

Appellant angrily uttered, "kasi chief, gago ang mga ‘yan!," while pointing toward the direction of the
navy personnel’s group. Even before he was given the go signal to proceed, appellant shifted gears
and sped away while uttering, "papatayin ko ang mga ‘yan!" While F1EN Dimaala was writing the
10 

van’s plate number and details in the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De
Guzman saw how the van sped away towards the camp and suddenly swerved to the right hitting
the group of the walking navy personnel prompting him to exclaim to F1EN Dimaala, "chief,
binangga ang tropa!" SN1 De Guzman then asked permission to go to the scene of the incident and
check on the navy personnel. 11

When they were hit by the vehicle from behind, SN1 Cuya and SN1 Bacosa were thrown away
towards a grassy spot on the roadside. They momentarily lost consciousness. When they came to,
12 

they saw SN1 Duclayna lying motionless on the ground. SN1 Cuya tried to resuscitate SN1
13 

Duclayna, while SN1 Bacosa tried to chase the van. 14

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

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

namely, SN1 Cuya, SN1 Bacosa, and SN1 Bundang, were brought to the infirmary for treatment. 17

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

A post mortem examination was conducted on the bodies of SN1 Andal and SN1 Duclayna by Dr.
Jericho Cordero of Camp Crame Medical Division. Dr. Cordero’s findings were that the injuries
sustained by SN1 Andal were fatal and caused by a hard blunt object that hit his body. The force of
the impact was such that the internal organs like the kidneys, mesentery and spleen were also fatally
injured. SN1 Andal died of cardiorespiratory arrest as a result of massive blunt traumatic injuries to
the head, thorax and abdomen. On the other hand, SN1 Duclayna sustained fatal injuries to the
head and liver. The head and neck injuries were such that a lot of blood vessels were ruptured and
the fractures were embedded in the brain. The laceration on the liver, also a mortal injury, was a
blunt traumatic injury.
19
As regards the other navy personnel, SN1 Cuya suffered lacerated wounds on the head and
different parts of the body for which he was confined at the infirmary for about eighteen (18)
days; SN1 Bacosa sustained injuries on his knee and left hand and stayed in the infirmary for a
20 

day; and SN1 Bundang suffered injuries to his right foot.

21  22

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

23 

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

DANILO CUYA:

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

EVELIO BACOSA:

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

ERLINGER BUNDANG:

"Abrasion, medial maleolus, (R)"

ARNULFO ANDAL:

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

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

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

ANTONIO DUCLAYNA:

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

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

When arraigned, appellant maintained his innocence. 24

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

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

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

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

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

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

Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and
SN1 Erlinger Bundang ₱30,000.00 each or an aggregate amount of ₱120,000.00 as indemnity for
their attempted murder. 27
Appellant filed an appeal with the Court of Appeals. In his brief, appellant claimed that the trial court
28 

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

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

The Office of the Solicitor General (OSG), on behalf of the People of the Philippines, refuted the
arguments of appellant and defended the correctness of the RTC Decision. In its brief, the OSG
31 

claimed that the trial court rightly rejected appellant’s defense of avoidance of greater evil or injury.
Appellant’s version of the events did not conform to the physical evidence and it was not consistent
with the testimony of his own witness.

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

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

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

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

Hence, this appeal.

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

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

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

Both the RTC and the Court of Appeals found the evidence presented and offered by the
prosecution credible and that the "prosecution witnesses had overwhelmingly proved beyond
reasonable doubt the culpability of the Accused-Appellant." The Court of Appeals correctly observed
35 

that prosecution witnesses F1EN Dimaala and SN1 De Guzman "positively identified accused-
appellant as the one who hit and ran over the victims." The Court of Appeals further found:
36 

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

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

Whether or not a justifying circumstance may be invoked in the case at bar.

xxxx

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

xxxx

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

Moreover, whether or not petitioner acted in avoidance of greater evil or injury is a question of fact. It
is an issue which concerns doubt or difference arising as to the truth or the falsehood of alleged
facts. In this connection, this Court declared in Martinez v. Court of Appeals :
38  39 

[T]he well-entrenched rule is that findings of fact of the trial court in the ascertainment of the
credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by
the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any
justifiable reason to deviate from the said findings.
This Court has combed through the records of this case and found no reason to deviate from the
findings of the trial and appellate courts. There is nothing that would indicate that the RTC and the
Court of Appeals "ignored, misconstrued, misunderstood or misinterpreted cogent facts and
circumstances of substance, which, if considered, will alter the outcome of the case." 40

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

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

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

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

The RTC and the Court of Appeals rejected appellant’s self-serving and uncorroborated claim of
avoidance of greater evil. The trial and appellate courts noted that even appellant’s own witness who
was in the van with appellant at the time of the incident contradicted appellant’s claim. Thus, the
RTC and the Court of Appeals concluded that the evil appellant claimed to avoid did not actually
exist. This Court agrees.

Moreover, appellant failed to satisfy the third requisite that there be no other practical and less
harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction
of damage or injury to another so that a greater evil or injury may not befall one’s self may be
justified only if it is taken as a last resort and with the least possible prejudice to another. If there is
another way to avoid the injury without causing damage or injury to another or, if there is no such
other way but the damage to another may be minimized while avoiding an evil or injury to one’s self,
then such course should be taken.

In this case, the road where the incident happened was wide, some 6 to 7 meters in width, and the42 

place was well-lighted. Both sides of the road were unobstructed by trees, plants or
43 

structures. Appellant was a driver by occupation. However, appellant himself testified that when he
44  45 

shifted to the second gear and immediately stepped on the accelerator upon seeing the four navy
personnel approaching from in front of him, he did not make any attempt to avoid hitting the
46 

approaching navy personnel even though he had enough space to do so. He simply sped away
straight ahead, meeting the approaching navy personnel head on, totally unmindful if he might run
them over. He therefore miserably failed to resort to other practical and less harmful available
47 

means of preventing the evil or injury he claimed to be avoiding.

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

Whether or not the crime is qualified as murder

We find that the RTC correctly appreciated the existence of treachery in the commission of the
offense. Treachery qualifies the killing to murder. There is treachery when the offender commits any
of the crimes against persons, employing means, methods or forms in the execution thereof which
tend directly and especially to ensure its execution, without risk to himself arising from any defense
which the offended party might make. The elements of treachery are: (1) the employment of means
of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2)
the means of execution was deliberate or consciously adopted.
Accused-Appellant’s act of running over the victims with his van from behind while the victims were
walking inside the NETC camp was a clear act of treachery. The victims were not given any warning
at all regarding the assault of the Accused-Appellant. The victims were surprised and were not able
to prepare and repel the treacherous assault of Accused-Appellant. The prosecution witnesses
testified that after they had flagged down Accused-Appellant’s van, the latter accelerated and upon
reaching the middle of the road, it suddenly swerved to the right hitting the victims who were startled
by the attack.

xxxx

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

We quote pertinent portion of the information, which reads:

"x x x the said accused, with intent to kill, while driving and in control of a Nissan Van with plate No.
DRW 706, did then and there willfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, x x x."

Applying the Supreme Court’s discussion in People vs. Batin, citing the case of Balitaan v. Court of
First Instance of Batangas, to wit:

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

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

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

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

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

citations omitted.)

The essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting
victims, depriving the latter of any real chance to defend themselves, thereby ensuring its
commission without risk to the aggressor, and without the slightest provocation on the part of the
victims. The six navy personnel were walking by the roadside, on their way back to their camp. They
49 

felt secure as they have just passed a sentry and were nearing their barracks. They were totally
unaware of the threat to their life as their backs were turned against the direction where appellant’s
speeding van came. They were therefore defenseless and posed no threat to appellant when
appellant mowed them down with his van, killing two of them, injuring three others and one narrowly
escaping injury or death. Beyond reasonable doubt, there was treachery in appellant’s act. This was
sufficiently alleged in the Information which not only expressly mentioned treachery as one of the
circumstances attending the crime but also described it in understandable language:

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

Use of motor vehicle was also properly considered as an aggravating circumstance. Appellant
deliberately used the van he was driving to pursue the victims. Upon catching up with them,
appellant ran over them and mowed them down with the van, resulting to the death of SN1 Andal
and SN1 Duclayna and injuries to the others. Thereafter, he continued to speed away from the
51 

scene of the incident. Without doubt, appellant used the van both as a means to commit a crime and
to flee the scene of the crime after he committed the felonious act.

The felony committed by appellant as correctly found by the RTC and the Court of Appeals, double
murder with multiple attempted murder, is a complex crime contemplated under Article 48 of the
Revised Penal Code:

Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum period.

Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act
of stepping on the accelerator, swerving to the right side of the road ramming through the navy
personnel, causing the death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an
attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo. The crimes of murder and
52 

attempted murder are both grave felonies as the law attaches an afflictive penalty to capital
53 

punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision
mayor, an afflictive penalty.
54  55

Under Article 248 of the Revised Penal Code, as amended, murder is punishable by reclusion
perpetua to death. Article 63 of the same Code provides that if the penalty prescribed is composed
56 

of two indivisible penalties, as in the instant case, and there is an aggravating circumstance the
higher penalty should be imposed. Since use of vehicle can be considered as an ordinary
aggravating circumstance, treachery, by itself, being sufficient to qualify the killing, the proper
imposable penalty – the higher sanction – is death. However, in view of the enactment of Republic
Act No. 9346, prohibiting the imposition of the death penalty, the penalty for the killing of each of the
57 

two victims is reduced to reclusion perpetua without eligibility for parole. The penalty of reclusion
58 

perpetua thus imposed by the Court of Appeals on appellant for the complex crime that he
committed is correct.

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

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

damages to the heirs of each deceased victim is appropriate. 61

As it was proven that, at the time of his death, SN1 Andal had a monthly income of ₱13,245.55, the
62 

grant of ₱2,172,270.21 for loss of earning capacity is in order.

63

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

was attended by aggravating circumstances, each of them was properly given ₱30,000 exemplary
damages. 65

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

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

(a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio Duclayna:

(i) ₱75,000.00 civil indemnity;

(ii) ₱75,000.00 moral damages;

(iii) ₱30,000.00 exemplary damages; and

(iv) ₱25,000.00 temperate damages;

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

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

(i) ₱40,000.00 moral damages; and

(ii) ₱30,000.00 exemplary damages; and

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

SO ORDERED.
 Republic of the Philippines
SUPREME COURT

SECOND DIVISION

G.R. No. 129875 September 30, 2005

JOVITO CABUSLAY, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division), Respondent.

DECISION

Tinga, J.:

Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil Procedure is
the Decision2 dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586 finding Jovito
Cabuslay, petitioner herein, guilty beyond reasonable doubt of the crime of homicide and sentencing
him as follows:

WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry Cane are
ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY beyond reasonable
doubt of the crime of homicide and is sentenced to an indeterminate penalty of imprisonment of Ten
(10) years and One (1) Day of prision mayor as minimum, to Fourteen (14) Years, Eight (8) Months
and One (1) Day of Reclusion Temporal, as maximum, with all the accessory penalties provided for
by law, and to indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand Pesos
(₱50,000.00) for actual damages and Fifty Thousand Pesos (₱50,000.00) for moral damages, and to
pay the costs.

SO ORDERED.3

In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior Inspector
Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry
Orillaneda Cane were charged with murder, committed as follows:

That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the jurisdiction
of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4
ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE,
all public officers, being then members of the Philippine National Police assigned at the PNP
Provincial Headquarters of Lanao del Norte, acting in the capacities aforesaid and conspiring,
confederating and helping one another, while manning a mobile checkpoint at Libertad, Kauswagan,
Lanao del Norte, thus committing the offense in relation to office, and with intent to kill, did then and
there wilfully, unlawfully, feloniously and treacherously shoot PAQUITO UMAS-AS, with their
firearms, thereby inflicting mortal wounds upon the latter which caused his instantaneous death.5

On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial ensued with the
prosecution presenting as witnesses Dr. Tammy Uy, Bernabe Purificacion Arenga, Leoncio
Tagapulot Zaragosa and Generoso Caayao Umas-as.
The prosecution presented evidence proving the following as facts:

Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua, Cagayan de Oro
City. Still single, Paquito earned a living as a collector of payments for assorted articles such as
jackets, mats, thermos and plates that he sold on credit. Paquito collected as much as ₱70,000.00
for a period of four months and the net profit of such collections was divided equally between him
and his employer. 6

In collecting payments, Paquito used a motorcycle he bought on credit from his employer.7 His
collection brought him to such places as Manticao, Iligan and Kolambogan. 8 He rented a house in
Iligan City but every fifteenth (15th) day of the month, Paquito would go home to his family to give
them a sack of rice.9

At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a refrigeration
technician helper and resident of Roosevelt Street, Iligan City, was conversing with Felix
Lauriana10 near the school building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a
Hammer (Hummer) truck parked in front of them. 11 Four policemen alighted, followed by a driver.
The police thereafter halted the collector who was riding a motorcycle from Lapayan. The collector
was wearing a blue denim jacket with folded sleeves and blue denim pants. 12

The police asked the collector to show his identification card (ID). The collector took the ID out of his
left pocket and when it reached the "front man," one of the policemen, who Zaragosa later verified as
the petitioner, opened fire at the collector whose right hand was then raised. The four other
policemen meanwhile had their firearms pointed at the collector. 13

Petitioner, who was four meters away from the collector, consumed the entire magazine of his M-16
armalite in firing at him. The collector fell to the ground and was still moving when the police placed
him on board a vehicle and brought him to Kolambugan.14 One of the policemen rode on the
collector’s motorcycle and likewise headed for Kolambugan. 15

Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro City,16 NBI

forensic chemist Bernabe P. Arenga examined the victim’s body, later identified as Paquito Umas-
as, on 10 August 1992 to determine the presence of gunpowder nitrates on his hands. Arenga’s
report revealed that the victim was negative for gunpowder nitrates. 17 Arenga opined that on the
average, nitrates would be lost within a seventy-two (72)-hour period; that there had been instances
when the substance would remain on a living person up to nine days; that nitrates could not
penetrate rubber gloves; that no amount of washing can remove the nitrates; and that even the
application of formalin does not affect the presence of nitrates in the hands of a person. 18

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro City,
conducted a post-mortem examination on the body of Paquito Umas-as. At the time of examination,
the victim’s body had already been cleaned and embalmed. Dr. Uy’s examination disclosed that the
cause of death was severe hemorrhage secondary to multiple gunshot wounds. There were eight (8)
gunshot wounds and each wound was considered fatal. 19

To prove damages, Generoso Umas-as testified that he lost consciousness upon learning of the
death of his son Paquito. Paquito’s family spent ₱8,000.00 for the wake and ₱10,000.00 for his
burial. Paquito had left his father ₱12,000.00 to pay for some appliances the former had bought; but
the latter, to underwrite funeral expenses, still had to sell his land for ₱100,000.00 only ₱25,000.00
of which had been paid in advance by the buyer. However, Generoso could not remember where he
placed the receipts for the wake and burial expenses. 20
The defense presented a different version of the commission of the crime. Petitioner presented as
witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito Luna Cabuslay.

Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National Police
(PNP), Lanao del Norte Command stated that he had received a reliable intelligence report of a plot
to assassinate the Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor Abalos and
his family. In response to the intelligence report, he dispatched a team of PNP personnel to conduct
mobile checkpoints along the national highways in several municipalities and to check on people
who would possibly carry out the plot. Jubail claims that the intelligence report was proven accurate
after a few months because the Vice-Mayor of Kauswagan was killed in Samborong, Linamon and in
December of the same year, Governor Abalos was assassinated in Iligan City. 21

The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy, SPO2
Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of responsibility consisted of
the twenty-two (22) municipalities of Lanao del Norte. In full military outfit, save for Canoy as he was
assigned to the Intelligence Operatives Command, the men established a mobile checkpoint on 5
August 1992 at the national highway, Barangay Libertad, Kauswagan, Lanao del Norte for the
purpose of intercepting armed men who intend to carry out the assassination plot. 22

At about 8:30 in the morning, a man riding on a red Honda motorcycle23 going to the direction of
Pagadian City approached the mobile checkpoint. The motorcycle rider was allegedly wearing a
black bonnet, sunglasses, sweatshirt and gloves that covered the half portion of his fingers. 24

Regencia testified that he signaled the motorcycle rider to stop at the right side of the road. He
asked for the identification card of the motorcycle rider who pretended to reach for his wallet, but
instead pulled out a gun. He heard a shot and his thigh went numb. As he rolled to the ground, he
heard a volley of gunshots after which petitioner approached him. Regencia then approached the
motorcyclist and removed his bonnet to be able to identify him. Regencia later found out that the
motorcyle rider was shot by petitioner. 25

Regencia ordered his men to load the motorcycle rider to the truck. The victim later identified as
Paquito Umas-as was still alive when he was loaded on the hummer vehicle to be brought to a
hospital, but was pronounced dead on arrival by Dr. Caga, the attending physician. Regencia then
asked that he be given first-aid treatment for the wounds he sustained. He thereafter turned over the
rider’s motorcycle, sunglasses and revolver to the police station at Kauswagan. And after bringing
the victim’s body to a funeral home in Kolambugan, he proceeded to Baroy General Hospital where
his wounds were treated by a certain Dr. Fabin.26

To prove that he was wounded during the incident, Regencia showed to the court a quo the scars
caused by the gunshot wounds. There were three scars, one of which was the entry of the bullet and
the other two were splinter wounds. He said that the bullet used was the kind that splinters upon
hitting an object. He presented a medical certificate under the signature of Dr. Demterio U. Opamen,
Jr.27

For his defense, petitioner confirmed Regencia’s testimony that the latter had directed an
approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask the
motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw Paquito Umas-
as shoot Celso Regencia. This and his belief that he was the next target prompted him to shoot the
motorcycle rider with his M-16.28
Police Superintendent Jubail was immediately informed of the incident and on the basis of
Regencia’s account, he sent out a "Spot Report" 29 to inform Recon 9 and 13. The report is couched
as follows:

"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S BACK-UP OPEN
FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED) PERSON WWITH
(sic) MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE SPOT PD RESPONDING
PNP ELEMETS RECOVERED FROM THE VICTIM’S BODY ALFA CAL. 38 REVOLVER SMITH
AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x "

The incident found its way to the police blotter of the police station of Kauswagan, Lanao del
Norte.30 It is embodied in a Certification31 signed by Inspector Fulgencio dela Pena Raguine, Chief of
Police, issued at the request of Atty. Arthur Abundiente for trial purposes and formulated in this wise:

Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=

050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements from Lanao
del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded to Libertad,
Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus,
LN.

050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed that suspects were
intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and shot INSPECTOR
CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade) hitting on his right thigh
prompting SPO3 Cabustay (sic), fired back to the suspect hitting at the chest causing the
instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade) with 5 live ammos and
one empty shell at the chamber, one rayban (sunglass) and one motorcycle (Honda-Camel
backtype) color red with out plate Nr.

Police Blotter Page Nr. 497- Entry Nr.9191=

081240H Aug 1992 – Romeo Umas-as, 42 years old x x x.

Police Blotter Page Nr. 501-Entry Nr.9228=

251315H Aug 1992 – Impounded Honda Motorcycle x x x.

Police Blotter Page Nr. 508-Entry Nr. 9100=

021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/ (4) four
live ammo and one empty shell past 30th day of Sep 92 for NBI examination at Cagayan de Oro
City.

Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the next
person to be shot at by the victim; and having acted in defense of his person and that of his superior
officer, he asserted before the court a quo that he has no criminal liability because of the attendance
of the following circumstances: (a) unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to prevent or repel the unlawful aggression of the victim; (c) lack of
sufficient provocation on his part, and in the case of defense of his superior officer, he was not
induced by revenge, resentment, or other evil motives. All of these requisites being present,
petitioner claimed there was legal justification for shooting Paquito Umas-as. 32
The Sandiganbayan however grave credence to the version of the prosecution and rejected the
version of petitioner. So, it found him guilty beyond reasonable doubt of the crime of homicide. It
accorded full faith and credence to the testimony of Zaragosa as it was "categorical, straightforward,
spontaneous and consistent." Moreover, it observed that no proof was adduced to show that
Zaragosa was moved by some evil motive to falsely testify against the accused Cabuslay. 33

The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as follows: (1)
The physical existence of the handgun allegedly used by the victim Paquito was not established as
the same was not presented before the court during the trial; 34 (2) The affidavit executed by
Gualberto Dayot Pasco-presented by the defense to impeach the credibility of Zaragosa-was taken
under intimidating and dubious circumstances, which fact creates doubt as to the affidavit’s
voluntariness and credibility; 35 (3) The medical certificate purportedly evidencing that Regencia had
been shot has no probative value as the doctor who executed the same did not testify during trial.
Notably, the medical certificate was executed by a doctor different from the one who treated
Regencia’s wound;36 (4) The number of gunshot wounds inflicted upon the victim betrays petitioner’s
claim of reasonable necessity of the means used to repel the unlawful aggression allegedly
displayed by the victim.37

Hence, petitioner filed the instant petition before the Court, insisting that the Sandiganbayan erred in
not crediting him the justifying circumstance of self-defense or defense of a stranger or the lawful
exercise of a right or office.38

Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office of the Solicitor General
(OSG) submitted before the Court a Manifestation and Motion In Lieu Of Comment40 to aid the
resolution of the instant petition. In said manifestation, the OSG stated that it is the Office of the
Ombudsman which should represent the People in cases elevated to the Court from the
Sandiganbayan except in cases filed under Executive Orders Nos. 1, 2, 14, and 14-A issued in
1986. Nevertheless, it opined that the conviction of petitioner should be reversed because the
evidence of the prosecution when pitted against that of the defense "may not stand close scrutiny." It
also asserted that the ponente of the appealed decision was not yet a member of the Third Division
when the witnesses testified and when the parties presented their evidence; hence, the applicability
of the
Court’s ruling in People v. Gutual,41 that no respect can be accorded to the trial court’s findings of
fact where the judge who penned the questioned decision heard only one of the witnesses and only
at the sur-rebuttal stage.42

In its Comment,43 the Office of the Ombudsman through the Office of the Special Prosecutor seeks
the denial of the instant petition on the ground that the defense failed to impeach the credibility of
Zaragosa. It agrees with respondent court that petitioner’s story was contrary to human experience
and hence, it correctly debunked self-defense and defense of a stranger as grounds for petitioner’s
acquittal.44

The petition is without merit.

While the rule that the factual findings of the court a quo are generally not disturbed on appeal
because the trial judge had the best opportunity to observe them and the manner by which they
testify is concededly not applicable to the instant case considering that the ponente of the
assailed Decision was not the one who heard all the witnesses, nevertheless, after a careful review
of the records of the case, the Court finds no reason to disturb the conclusions reached by
respondent court. As held in Hugo v. Court of Appeals,45 "the efficacy of a decision is not necessarily
impaired by the fact that the ponente only took over from a colleague who had earlier presided over
the trial. For it does not follow that a judge who was not present during the trial cannot render a valid
and just decision."

Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of three
Justices each, is a collegial body which arrives at its decisions only after deliberation, the exchange
of view and ideas, and the concurrence of the required majority vote. 46

Simply put, the ponente of the assailed Decision is not the Third Division of the Sandiganbayan. He
alone does not speak for and on behalf of his Division. Each Division of the Sandiganbayan is a
three-man body whose members each have one vote to cast in every deliberation concerning a case
or any incident therein that is within its jurisdiction.

We have minutely scrutinized the assailed Decision and find it amply supported by the evidence on
record.

Petitioner claims that he acted in self-defense and in defense of Regencia.

One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof
shifts to the accused who must then prove the justifying circumstance. He must show by clear and
convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger.
With clear and convincing evidence, all the following elements of self-defense must be established:
(1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-
defense.47

Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this
jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is
incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed
by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness of the
prosecution but on the strength of his own evidence, "for even if the evidence of the prosecution
were weak it could not be disbelieved after the accused himself had admitted the killing." 48 Thus,
petitioner must establish with clear and convincing evidence that the killing was justified, and that he
incurred no criminal liability therefor.

In order that defense of a stranger may be appreciated, the following requisites must concur: (1)
unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and
(3) the person defending be not induced by revenge, resentment or other evil motive. 49

Unlawful aggression is the first and primordial element of self-defense. Of the three requisites, it is
the most important. Without it, the justifying circumstance cannot be invoked. If there is no unlawful
aggression, there is nothing to prevent or repel.50

Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the
aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an
actual, sudden and unexpected attack or an imminent danger thereof, which imperils one’s life or
limb. Thus, when there is no peril, there is no unlawful aggression. 51

It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this question in
the negative. Aggression to be unlawful, must be actual and imminent, such that there is a real
threat of bodily harm to the person resorting to self-defense or to others whom that person is seeking
to defend.
Petitioner asserts that he was the victim’s next target, thus the need to shoot the victim in self-
defense. His claim should be disbelieved. As he himself had explicitly testified before respondent
court, the hummer jeep was behind him and was parked about three to four meters from the national
highway.52 He also stated that Paquito could not have seen the hummer jeep because it was
obscured by Muslim houses.53 It only follows that if from Paquito’s perspective, he cannot see the
hummer jeep which is a fairly large vehicle, then he could not have seen petitioner as well. If Paquito
cannot see petitioner from where he was positioned, then Paquito could not have possibly aimed to
shoot at petitioner. Petitioner’s contention therefore that there was an imminent threat of bodily harm
coming from Paquito upon his person is at best illusory. There was no peril, ergo, there was no
unlawful aggression.

It should also be recalled that at the time, Cane was on top of the hummer jeep manning the
machine gun.54 If Regencia had indeed been shot as the defense insists, then Cane was better
situated to defend Regencia. It is implausible how an officer like him, in such a strategic position and
trained in the operation of the said weapon could have omitted firing a shot in Regencia’s defense.
More to the point, it is beyond credulity that the outbursts of gunfire hardly elicited any reaction from
the other police officers who were only a few meters away from the crime scene and who continued
conducting their search on the bus which was then about to pass the checkpoint. 55

Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing that Paquito
was still alive56 and in all probability was still holding a handgun, 57 petitioner chose to assist Regencia
instead of making sure that Paquito had been immobilized and disarmed, basic to a policeman’s
training.

In addition, the claim of the defense that Paquito shot Regencia on his right thigh is untenable.
Petitioner would have the Court believe that Paquito dared challenge five policemen, four of them in
full battlegear, at a checkpoint and armed with only a handgun. This is contrary to ordinary human
experience, as well as the human instinct which is to flee for dear life and seek safety. If indeed
Paquito was armed and had criminal designs in his mind, the natural tendency upon seeing a
checkpoint ahead would be to abort one’s plans and leave the premises immediately. Petitioner’s
story not only was contrary to the ordinary course of nature and the ordinary habits of life, in all
appearances it was also contrived. 58 Respondent court was correct in rejecting it.

We also confirm that the medical certificate presented by Regencia to prove that he had been shot
by the victim has no probative value. The physician who signed the same was never presented as
witness for the defense. We also note that the physician who signed said medical certificate, a
certain Dr. Demterio U. Opamen, Jr., is different from the doctor who according to Regencia had
treated his wounds.59

It is also worthy of note that the defense never presented in evidence the gun Paquito allegedly use
to shoot Regencia. The gun was also not clearly identified. Unlawful aggression on the part of the
victim must be positively proved and said gun would have been a vital evidence to establish this
requisite.

Petitioner, however, insists that he would have presented the gun had not respondent court
pressured him to rest his case and submit it for decision. Such contention hardly inspires belief.
Records reveal that petitioner never made it known to respondent court that the defense would be
presenting the gun allegedly used by Paquito. What the defense did manifest was their intention to
present one Major Bartolino to testify that he had received the gun allegedly used by Paquito and
that he had brought it to the NBI on 30 September 1992 for examination. It should be underscored
that the defense was not even sure that there was an NBI report on said examination. The counsel
for the defense manifested before respondent court, as follows:
ATTY. ABUNDIENTE:

xxx

I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who received the gun
and he will testify on this particular testimony that he was the Station Commander of the municipality
of Kauswagan, Lanao del Norte at the time of the incident and then he received this gun from the
team of Capt. Regencia on August 5, 19 (sic) and that he took the gun for NBI Examination
sometime in the month of October, 1992, no, on the 30th day of September, 1992.

CHAIRMAN:

This was covered by police blotter?

ATTY. ABUNDIENTE:

Yes, Your Honor.

CHAIRMAN:

You don’t need the testimony of Bartolini, but do you have the report of the NBI?

ATTY. ABUNDIENTE:

That is why, Your Honor, because we have not received any communication from Bartolini . . .

CHAIRMAN:

How did you come to know that Bartolini sent this firearm to the NBI for examination? . . .

ATTY. ABUNDIENTE:

Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI examination in
Cagayan de Oro City, Entry No. 91000, page 108 . . .

CHAIRMAN:

Does it matter – whether you can prove the examination report of the NBI or not?

ATTY. ABUNDIENTE:

I don’t know if there was a report of the NBI examination . . .

CHAIRMAN:

Precisely . . ."60

The defense was well aware of the relevance of the NBI report to prove their allegations that the
victim was carrying a gun and used the same on Regencia, especially since the victim was reported
to be negative of nitrates on his hands. No cogent reason could be thought of for the failure to
secure a copy of the report or even know of its existence. It should be noted that the examination
was made as early as September 1992. A party’s failure to produce evidence, which if favorable
would naturally have been produced, is open to the inference that the facts were unfavorable to his
case.61 This Court can only conclude that said gun never existed, and this explains the failure of the
defense to present it before respondent court. Thus, it is immaterial to delve on the issue raised by
the petitioner on the discrepancy of the make of the gun as noted by respondent court in
its Decision.

Parenthetically, petitioner stresses that the victim had tested negative for gunpowder nitrates as the
latter had been wearing gloves at the time of the incident. This claim runs counter to his 62 and
Regencia’s63 testimony that the only things recovered from Paquito and which were turned over to
the Provincial Police Command were the victim’s motorcycle, sunglasses and the alleged gun. The
police blotter reporting the incident confirms their testimonies. Interestingly, said police blotter also
makes no mention that gloves were recovered from the victim. 64

Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony the version of
the prosecution is anchored, we find that petitioner failed to impeach his credibility. No evidence was
shown that Zaragoza was actuated by an improper motive. As such, there is no cogent reason why
the Court should deny Zaragoza’s testimony the full faith and credit it deserves.

On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to state that a witness is not
expected to remember an occurrence with perfect recollection of the minute details. Thus, even the
most

truthful of witnesses may err and often give confusing statements. What is important is that
Zaragosa unwaveringly, forthrightly and unequivocally declared that petitioner shot at the victim.
Neither did he falter in identifying the gunman. 65

All in all, petitioner has failed to prove unlawful aggression on the part of the victim. Without this
essential element, petitioner cannot successfully invoke self-defense. Even assuming that he tried to
defend a stranger, his defense would not prosper. In defense of a stranger, unlawful aggression on
the part of the victim is also indispensable. In both self-defense and defense of a stranger, unlawful
aggression is a primordial element.

Granting arguendo that there was unlawful aggression, we find that petitioner’s contention that he
employed reasonable means to repel the aggression must fail. It is settled that reasonable necessity
of the means employed does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence. 66

Also, the nature and number of wounds suffered by Paquito negate any claim of self-defense or
defense of a stranger. The Court notes that the victim sustained eight gunshot wounds which were
all fatal as they affected vital organs.67 Petitioner testified that he pulled the trigger of his armalite
twice.68 He aimed at "the front of his body, at the chest, up to the stomach." 69 Had petitioner merely
defended himself from the victim’s unlawful aggression, one shot to immobilize him would have been
enough. There was no reason for petitioner to shoot him seven more times, even aiming at his vital
organs. It bears repeating that the nature and number of wounds inflicted by the accused are
constantly and unremittingly considered as important indicia which disprove a plea for self-defense
or defense of stranger because they demonstrate a determined effort to kill the victim and not just
defend oneself.70 In the instant case, Paquito’s wounds serve to tell us that petitioner was induced by
revenge, resentment or other evil motive and that he was set on killing the victim.
Petitioner’s avowal that his first shot was single but went automatic on the second shot is likewise
unbelievable.71 Petitioner’s armalite has a selector that switches it from single shot to automatic.
Since it was petitioner who was in possession of the firearm and he admitted that he fired the shots,
we reasonably conclude that it was he who switched the firearm to automatic firing.

All told, petitioner failed to satisfy the requirements of self-defense and defense of a stranger to
justify the shooting of Paquito.

Next, petitioner contends that the killing of Paquito resulted from the lawful performance of his duty
as police officer. However, such justifying circumstance may be invoked only after the defense
successfully proves that the accused acted in the performance of a duty, and the injury or offense
committed is the necessary consequence of the due performance or lawful exercise of such
duty.72 These two requisites are wanting in this case. The victim was not committing any offense at
the time. Petitioner has not sufficiently proven that the victim had indeed fired at Regencia. Killing
the victim under the circumstances of this case cannot in any wise be considered a valid
performance of a lawful duty by a man who had sworn to maintain peace and order and to protect
the lives of the people. As aptly held in People v. de la Cruz,73 "Performance of duties does not
include murder…. Murder is never justified, regardless of the victim."

A final word on the civil liability. An appeal in a criminal proceeding throws the whole case open for
review and it becomes the duty of the Court to correct any error in the appealed judgment, whether it
is made the subject of an assignment of error or not. Therefore, we delete the award of ₱50,000.00
as actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount
of loss with reasonable degree of certainty premised upon competent proof and on the best
evidence obtainable. Since the prosecution did not present receipts to prove the actual losses
suffered, such actual damages cannot be awarded. 74

On the other hand, consistent with prevailing jurisprudence, we award ₱50,000.00 by way of
indemnity ex delicto to the heirs of Paquito. When death occurs as a result of a crime, the heirs of
the deceased are entitled to such amount as indemnity for death without need of any evidence or
proof of damages.75

We also affirm the award of moral damages in view of the finding that Generoso Umas-as lost
consciousness and suffered anguish and sorrow because of the incident.

WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in Criminal Case

No. 19586 finding petitioner GUILTY of homicide is partially AFFIRMED with the following
MODIFICATIONS: (a) the award of Fifty Thousand Pesos (₱50,000.00) as actual damages is
deleted; and (b) petitioner is ordered to pay fifty thousand pesos (₱50,000.00) as indemnity ex
delicto. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-64965             July 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOVEN BAUSING and MANUEL LOROSO, accused-appellants.

The Solicitor General for plaintiff-appellee.

Manuel Tesiorna for accused-appellants.

BIDIN, J.:

This is an appeal from the decision * of the Regional Trial Court of Dapa, Surigao Del Norte, Branch
XXXI, convicting appellants of the crime of murder, the decretal portion of which reads:

WHEREFORE, viewed in the light of the foregoing, the Court finds the accused JOVEN
BAUSING and MANUEL LOROSO guilty beyond reasonable doubt of the crime of MURDER
qualified with treachery. There being no aggravating circumstance and mitigating
circumstance, the Court hereby sentences JOVEN BAUSING and MANUEL LOROSO, to
suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of the late
ALEXANDER MANTILLA, jointly and severally, the amount of Twelve Thousand Pesos
(P12,000.00); without subsidiary imprisonment in case of insolvency; with the accessory
penalties imposed by law and to pay the costs. (Rollo, p. 66)

The facts, as summarized by the trial court, are as follows:

. . . last August 3, 1978, approximately 9:15 o'clock in the evening, the victim, Alexander
Mantilla, as incumbent Barangay Councilman and a Ronda Member of Barangay Consuelo,
General Luna, Surigao Del Norte, while performing his official duties, was at the billiard hall
of accused Manuel Loroso, together with others the following persons, namely: Ruirino
Crisologo, Domingo Teraytay, Estanislao Sunico, Aureliano Pacanor, Segundiano Pacanor,
Edisimo Minglana, Barangay Captain Rufo Bunga, Pepito Tokong, Juanito Tokong, Manuel
Loroso, Joven Bausing and Valentin Bausing.

There were two (2) billiard tables and on them the following persons were playing: Domingo
Teraytay, Barangay Captain Rufo Bunga, Juanito Tokong and Estanislao Sunico.

The billiard game was first interrupted when Domingo Teraytay and Manuel Loroso were
grappling for the knife which was protruding at the back pocket of the former, the knife was
 ultimately taken with the assistance of Estanislao Sunico and Aureliano Pacanor. Manuel
Loroso, as owner of the billiard hall, confiscated the knife in order to prevent any trouble
therein.

Thereafter, Valentin Bausing, sometimes called "Rodolfo", clattered the billiard balls which
caused Alexander Mantilla to admonish him to stop his act as he was not concerned with the
game.

Without any word, accused Manuel Loroso who came from the back of Mantilla, held the
hands of the latter while being raised when all of a sudden, Joven Bausing appeared in the
scene, with unsheathed sharp pointed bolo (Exh. "A") which was hidden inside the umbrella
(Exh. "B") thrust many times said bolo upon Mantilla. Mantilla was released only by Loroso,
after the victim was staggering unconsciously who later fell dead outside the billiard hall.
(Rollo, pp. 29-31)

Appellants Bausing and Loroso were then charged with murder with assault upon an agent of person
in authority. Both pleaded not guilty to the charge and after trial, the trial court rendered the judgment
which appellants now seek to be reversed.

During the trial, the prosecution established the guilt of appellants through the testimonies of
Crisologo, Tokong, Teraytay and Minglana, among others, who were all present at the billiard hall
when the incident happened.

Crisologo testified that in the billiard hall, he saw Manuel Loroso and Domingo Teraytay grappling
with each other for possession of a knife. The others present in the hall tried to pacify the two and
the knife was taken by Estanislao Sunico. He also testified that he saw Valentin Bausing making
trouble inside the billiard hall and was advised by the deceased Alexander Mantilla to stop as he had
nothing to do with the game. At this point, Manuel Loroso approached the deceased from behind
and took hold of the latter's hands, whereupon Joven Bausing ran towards them repeatedly thrusting
a sharp pointed bolo at the victim (Alexander Mantilla) who kicked his assailant in a futile attempt to
defend himself. The victim was hit below his left breast and right breast. Weakened and already
down, appellant Joven Bausing again stabbed the helpless victim on the mouth after which
appellants Bausing and Loroso walked away (TSN, March 8, 1979, pp. 3-11; Original Records, pp.
172-180).

The above testimony of Crisologo was corroborated in all material points by the testimonies of (1)
Pepito Tokong who was inside the billiard hall because of rain (TSN, April 25, 1979, pp. 3-12;
Original Records, pp. 218-227); (2) Domingo Teraytay who was also playing billiards (TSN, June 28,
1979, pp. 3-16; Original Records, pp. 250-263); and (3) Edisimo Minglana who was also in the hall
watching the billiard game (TSN, November 13, 1979, pp. 14-17; Original Records, pp. 232-245).

All of the above witnesses gave exactly the same version of the gruesome and merciless killing of
Alexander Mantilla to the effect that the deceased was only trying to stop Valentin Bausing from
making trouble when Manuel Loroso approached the deceased from behind, held both of the latter's
hands, while the accused Joven Bausing, father of Valentin, suddenly attacked Mantilla and stabbed
the latter several times. As the victim staggered towards the door, he fell flat on his face. Not
satisfied with the injuries already inflicted by him, accused Bausing held the head of the fallen victim
and stabbed the latter on the armpit, hacked him at the left arm biceps, forearm and mouth.

In this appeal, appellants raise the following errors:

 1. THAT THE LOWER COURT ERRED IN HOLDING THAT APPELLANT MANUEL
LOROSO HELD ALEXANDER MANTILLA FROM THE BACK WHILE THE LATTER WAS
BEING STABBED SEVERAL TIMES BY APPELLANT JOVEN BAUSING, THAT
APPELLANT MANUEL LOROSO AND JOVEN BAUSING CONSPIRED IN KILLING
ALEXANDER MANTILLA AND THAT APPELLANT MANUEL LOROSO'S DEFENSE IS
ALIBI, THUS, ERRED IN CONVICTING MANUEL LOROSO OF MURDER;

2. THAT THE LOWER COURT ERRED IN HOLDING THAT EDERESA TOKONG'S

TESTIMONY HAS BEEN UNREBUTTED AND THEREFORE FATAL TO THE DEFENSE;

3. THAT THE LOWER COURT ERRED IN NOT BELIEVING APPELLANT JOVEN

BAUSING'S DEFENSE THAT HE WAS ACTING IN DEFENSE OF HIS SON, RODULFO
BAUSING, AND IN HOLDING THAT HIS DEFENSE LACKS THE QUANTUM OF PROOF
REQUIRED BY LAW;

4. THAT THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED
WAS QUALIFIED WITH TREACHERY;

5. ASSUMING ARGUENDO THAT APPELLANT JOVEN BAUSING HAS TO BE

CONVICTED, THE LOWER COURT ERRED IN CONVICTING HIM OF MURDER AND NOT
ONLY OF HOMICIDE AND IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE
OF VOLUNTARY SURRENDER IN HIS FAVOR. (Appellant's Brief, pp. 1-2; Rollo, p. 85 c-d)

Appellants' assignment of errors being interrelated, the same shall be addressed jointly.

Joven Bausing admitted the killing of the deceased but invokes the justifying circumstance of
defense of a relative in a bid to escape criminal liability. After a careful examination of the verdict
rendered by the trial court, We find no compelling reason to reverse the judgment of conviction.

In order that the justifying circumstance of defense of a relative may be properly invoked, the
following requisites must concur: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) in case the provocation was given by the person attacked,
that the one making the defense had no part therein (Art. 11, par. 1 & 2, Revised Penal Code).

The first requisite is indispensable. There can be no self-defense unless it is proven that there had
been unlawful aggression on the part of the person injured or killed by the assailant. If there is no
unlawful aggression, there is nothing to prevent or repel (People vs. Malazzab, 160 SCRA 123
[1988]; Ortega v. Sandiganbayan [1990]). In addition, for unlawful aggression to be appreciated,
there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a
threatening or intimidating attitude (People v. Pasco, Jr., supra; People vs. Rey, 172 SCRA 149
[1989] and the accused must present Proof of positively strong act of real aggression (Pacificar v.
Court of Appeals 125 SCRA 716 [1983]; People v. Aquiatan, 123 SCRA 501 [1983]; People v.
Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or
personal safety of the person defending himself or of a relative sought to be defended and not an
imagined threat.

In the case at bar, appellant Bausing's claim of unlawful aggression committed by the deceased has
not been sufficiently established to warrant the appreciation of defense of a relative as a justifying
circumstance. All four prosecution witnesses who were eyewitnesses to the killing of Mantilla
testified categorically that no unlawful aggression was committed by the deceased. The victim
merely admonished Valentin Bausing, son of appellant Joven, to stop meddling with the game going
on. Appellant's claim of defense of his son cannot prevail over the positive testimonies of the
eyewitnesses pointing beyond reasonable doubt that he (appellant) was the aggressor who
treacherously assaulted the deceased.

More importantly, appellant Bausing already admitted the killing of Mantilla. Having made the
admission, it is thus incumbent upon the accused to prove the justifying circumstance to the
satisfaction of the court in order to be relieved of any criminal liability. In such instances, the accused
must proffer strong, clear and convincing evidence of self-defense and depend not on the infirmity of
the prosecution, for even if the latter was weak, the plea of self-defense cannot prosper especially so
where the accused himself has admitted the killing, as in the case at bar (People v. Bayocot, 174
SCRA 285 [1989]; People v. Masangkay, 157 SCRA 320 [1988]; People v. Abagon, 161 SCRA 255
[1988]; People v. Tesorero, 71 SCRA 579 [1976]; People v. Llamera, 51 SCRA 48 [1973]; People v.
Bauden, 77 Phil. 105 [1946]; People v. Ansoyon, 75 Phil. 772 [1946]).

Appellant Loroso next contends that the trial court erred in holding that Ederesa Tokong's testimony
has been unrebutted and therefore fatal to the defense. Loroso argues that he has in fact testified as
a sur-rebuttal witness and rebutted the testimony of Tokong point by point.

The argument is devoid of merit and need not be discussed at length. What the trial court meant
when it said that the testimony of Tokong was unrebutted is the fact that appellant Lorozo failed to
rebut the testimony of Tokong that after the killing of Mantilla, said appellant slept in their (spouses
Tokong's) house with bloodstains on his shirt and pair of trousers and that the blanket and beddings
used by him were also stained by blood. The trial court's pronouncement did not mean that no sur-
rebuttal witness was ever presented by the defense.

The nature, character, location and number of the wounds suffered by the deceased belie any
supposition that the deceased was the unlawful aggressor (People v. Marciales, 166 SCRA 436
[1988]). As reflected in the autopsy report and the testimony of Dr. Prospero Tayco, the deceased
suffered seventeen (17) incised wounds, including the "through and through" incised wound of the
heart, 21 inches long with entrance at the apex of the heart which is the primary cause of death and
massive blood loss secondary thereto, aside from the numerous abrasions and avulsions (Autopsy
Report, Exh. 15, Original Records). In contrast, both Valentin and Joven Bausing suffered no injury.
The infliction of the 17 wounds on the deceased could only lead to the conclusion that Mantilla was
the victim of aggression and not the unlawful aggressor.

On the other hand, appellant Loroso faults the trial court for classifying his denial of participation in
the killing of the deceased as one of alibi. Appellant claims that he was busy pumping air into his
petromax lamp lighting the billiard hall at the time the incident occurred and ran away as soon as he
saw blood after the second thrust by appellant Bausing. Appellant's defense would therefore appear
as a simple denial of his participation in the commission of the offense.

Appellant's unsubstantiated disclaimer of participation cannot be given any credence. Self-serving as

it is, his denial of participation in the commission of the crime cannot prevail over the forthright and
positive testimonies by the prosecution witnesses as they uniformly pointed to him as having held
both hands of Mantilla from behind and raised them upwards while Joven Bausing suddenly
appeared on one side of Mantilla, unsheathed the bolo inside the umbrella he (Bausing) was
carrying and stabbed the victim continuously. Loroso released his hold of Mantilla only when the
latter was already on the verge of death as a result of the stab wounds inflicted by appellant
Bausing. The weak denials of appellant cannot prevail over the clear and positive testimonies of the
eyewitnesses regarding his participation in the killing of the deceased. (People v. Bocatcat, Sr., 188
SCRA 175 [1990]; People v. Delavin, 148 SCRA 25 [1987]; People v. Alcid, 135 SCRA 280 [1985];
People v. Tuscano, 137 SCRA 203 [1985]) for it is a settled rule that greater weight is given to the
positive identification of the accused by the prosecution witnesses than to the accused's plain denial
of participation in the commission of the crime (People vs. de Mesa, 188 SCRA 48
[1990]; citing People v. Canada, 144 SCRA 121 [1986]; People vs. Mostoles, Jr., 124 SCRA 906
[1983]).

That the killing of Alexander Mantilla is murder qualified by treachery is borne out by the records.
The victim was not only unarmed but was also deprived of every means to defend himself from the
treacherous attack. Loroso held both hands of the deceased victim while Joven Bausing suddenly
appeared and started stabbing the victim. In People v. Mahusay (138 SCRA 452 [1985]), this Court
ruled that there is treachery where the victim was held tightly by one of the accused before his co-
accused stabbed him, as in the case at bar. The appellants executed the crime in a manner that
tended directly and specially to ensure its execution without risk to themselves arising from the
defense which the deceased might have made (Art. 14, par. 16, Revised Penal Code; People v.
Pacabes, 137 SCRA 158 [1985]).

The presence of conspiracy was inferred from the concerted acts of both the accused.  They both
1âwphi1

approached the victim almost simultaneously. As one held the victim's hands tightly from behind and
raised them upward, the other delivered the fatal stabs which caused Mantilla's death. The manner
by which Loroso held the victim's hands from behind which clearly prevented the latter from
defending himself and without which act the crime would not have been accomplished, makes
appellant Loroso a conspirator and a principal by indispensable cooperation (People v. Martinez,
127 SCRA 260 [1985]). Where the accused by their acts aimed at the same object, one performing
one part and another performing another part so as to complete it, with a view to the attainment of
the same object, and their acts were concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments, the lower court was justified in
concluding that the defendants were engaged in conspiracy wherein the act of one is the act of all
(People v. Manlolo, 169 SCRA 394 [1989]). Conspiracy can be inferred from and proven by the acts
of the accused themselves when said acts point to a joint purpose and design, concerted action, and
community of interests (People v. Monadi, 97 Phil. 575 [1955]).

The mitigating circumstance of voluntary surrender invoked by Joven Bausing deserves scant
consideration. While appellant Bausing claims to have voluntarily surrendered to Pat. Arturo
Esparrago of Surigao del Norte Police Station on the night of the incident, records of the case show
that appellants were in fact arrested on August 28, 1978 as per return made by Station Commander
Saturnino Plaza of General Luna, Surigao del Norte Police Force (Original Records, p. 7). The
mitigating circumstance of voluntary surrender cannot be appreciated considering that the return of
the warrant of arrest showed that appellant was in fact arrested.

WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification as to the
indemnification which is hereby increased to P50,000.00.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 171284               June 29, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALFREDO DULIN Y NARAG, Accused-Appellant.

DECISION

BERSAMIN, J.:

The accused is guilty only of homicide in a prosecution for murder where the record does not
substantiate the attendance of treachery. But he may not benefit from the privileged mitigating
circumstance of incomplete self-defense if there was no unlawful aggression from the victim. The
Case

Alfredo Dulin y Narag appeals the decision promulgated on August 26, 2005,  whereby the Court of
1

Appeals (CA) affirmed with modification his conviction for the murder of Francisco Batulan rendered
on December 29, 1997 by the Regional Trial Court (RTC), Branch 3, in Tuguegarao, Cagayan.  In 2

convicting him, the RTC had appreciated the privileged mitigating circumstance of incomplete self-
defense, and had then sentenced him to "suffer the penalty of reclusion temporal in its maximum
period of imprisonment ranging from 17 years and 4 months and 1 day to 20 years." On appeal, the
CA prescribed reclusion perpetua.

Antecedents

Tomayao was on Tomayao Street in Atulayan Norte, Tuguegarao in the evening of August 22, 1990,
when a young man came running from the house of Vicente Danao towards the house of Batulan,
shouting that his uncle (Batulan) had been stabbed.

Tomayao rushed towards Danao’s house and there he saw Dulin stabbing Batulan who was already
prostrate face down. Dulin was holding Batulan by the hair and thrusting the knife at Batulan with his
right hand. Tomayao then ran towards Batulan’s house to inform the latter’s wife, Estelita, about the
incident.

The information filed on January7, 1991 averred as follows:

That on or about August 22, 1990, in the Municipality of Tuguegarao, Province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused, Alfredo Dulin y Narag alias Freddie,
armed with a sharp blade(d) instrument, with intent to kill, with evident premeditation and with
treachery did then and there willfully, unlawfully and feloniously attack, assault and stab one,
Francisco Batulan, inflicting upon him several stab wounds on the different parts of his body which
caused his death.

Contrary to law. 3
During the trial, the Prosecution presented four witnesses, namely: (a) Dr. Nelson Macaraniag, (b)
Alexander Tamayao, (c) Romulo Cabalza and (d) Estelita Batulan. Their version follows. Tamayao
was on Tamayao Street in Atulayan Norte, Tuguegarao at about 10:00 o’clock in the evening of
August 22, 1990 when a young man came running from the house of Vicente Danao towards the
house of Batulan, shouting that his Uncle Totoy (Batulan) had been stabbed. Tamayao rushed
towards Danao’s house, which was about 30 meters from his own house, and there he saw
Dulinstabbing Batulan who was already prostrate face down. Dulin was on top of Batulan, as if
kneeling with his left foot touching the ground. Dulin was holding Batulan by the hair with his left
hand, and thrusting the knife at the latter with his right hand. Seeing this, Tamayao ran towards
Batulan’s house to inform Estelita Batulan, the victim’s wife who was his aunt, about the incident. He
went home afterwards.

Tamayao mentioned of the long standing grudge between Batulan and Dulin, and of seeing them
fighting in April 1990. He recalled Dulin uttering on two occasions: He will soon have his day and I
will kill him (Batulan).4

Cabalza, a barangay tanod, was in his house around 10:00 o’clock in the evening of August 22,
1990 when he heard the commotion in Danao’s house which was facing his house. It was Carolina,
Danao’s daughter, screaming for help. He thus sought out a fellow barangay tanod. On his return to
the scene, he found Batulanat the door of Danao’s house, with Dulin wielding a sharp pointed
instrument, about 6-7 inches long. Fearing for his safety, he rushed to the Barangay Hall to seek the
assistance of Edwin Cabalza and Nanding Buenaflor to bring Batulan to the Provincial Hospital in
Carig, Tuguegarao. 5

Estelita recalled that Tamayao went to her house around 10:00 o’clock in the evening of August 22,
1990 to inform her that Dulin had stabbed her husband in Danao’s house. She rushed to Danao’s
house but fainted on the way. Upon regaining consciousness, she learned that her husband had
been rushed to the hospital. On her way to the hospital, she met Barangay Captain Loreto Meman,
who told her: Finally, Freddie Dulin killed your husband as he vowed to do. At the hospital, she was
told that her husband had sustained two wounds in the back and several stab wounds in the front,
and was being attended to at the hospital’s intensive care unit (ICU) before he expired.

Estelita said that Barangay Captain Meman went to her husband’s wake and repeated what he had
said to her about Dulin. But when she later on sought out Barangay Captain Meman to ask him to
confirm what he had told her about Dulin’s vowing to kill her husband, Barangay Captain Meman’s
response was: I’m sorry I cannot go and declare what I have stated because I am afraid of FREDDIE
and he will kill all those persons who will testify in their favor.
6

Estelita mentioned of the heated discussion between her husband and his nephew, Seong Bancud,
in front of Danao’s house in April 1990. On that occasion, Dulin wielded a knife with which he tried to
stab her husband. Dulin was pacified only when she went to the aid of her husband, but she then
heard Dulin saying: You will soon have your day, I will kill you. 7

Batulan was attended to at the Cagayan Valley Regional Hospital on August 22, 1990 by Dr.
Macaraniag, who said that the victim was in a state of shock from his 12 stab wounds. Dr.
Macaraniag was part of the three teams that conducted the surgery on Batulan. He issued the
Medico-Legal Certificate8 attesting that Batulan died on August 24, 1990 at 12:15 a.m.; and that
Batulan had sustained several injuries, as follows:

Multiple stab wounds #12

(1) Lacerated wound, sternum, 1 cm.

 (2) Lacerated wound, 4th ICS, 2 cm. MCL

(3) Lacerated wound, 1 cm. post axillary line

(4) Lacerated wound, 3 x 2 cm. 3 cm below scapula

(5) Lacerated wound, 3 cm. lateral aspect, left hand

(6) Lacerated wound, 3 cm. anterior aspect, left hand

(7) Lacerated wound, 3 cm. anterior aspect, about 3 cm. from elbow, left

(8) Lacerated wound, 2 cm. middle third, left forearm

(9) Lacerated wound, 3 cm. posterior aspect left forearm 4 cm. from left wrist

(10) Lacerated wound, 3 cm. lateral aspect of left foot

(11) Lacerated wound, 4 cm. lateral aspect, left thigh

(12) Lacerated wound, 2 cm. scapular area.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x. 9

Dr. Macaraniag stated the cause of death to be "Hypovolemic shock secondary to Massive
Hemothorax secondary to Multiple stab wounds."  He clarified in court that there were clerical errors
10

in the preparation of the Medico-Legal Certificate because his handwritten records indicated that
Batulan had sustained stab instead of lacerated wounds. He surmised that one of the clerks could
have misread his handwriting in the process of transcription. 11

Estelita declared that her late husband had earned a living from buying pigs, deriving a monthly
income of ₱8,000.00; that their marriage bore only one child; that she spent more or less ₱6,500.00
for Batulan’s hospitalization, including his medicines, and ₱36,000.00 for Batulan’s 10-day wake, his
burial attire and his coffin; that during the wake she butchered one cow worth ₱6,800.00 and six
pigsworth ₱15,000.00; that his death caused her and her family so much pain; and that she and her
family expended a total of ₱70,000.00, plus the ₱20,000.00 for the counsel’s services in bringing the
criminal charge against Dulin.12

In his defense, Dulin testified that it was acutually Batulan who attacked first thatin the evening of
August 22, 1990, he was in his house in Atulayan Norte, Tuguegarao, Cagayan with Doming Narag,
Imelda Danao, Jun Danao, Carolina Dulin and Caridad Narag; that Nicanor Annariao and Raymund
Soriano arrived at his house to see the fighting cocks being sold by Alberto Eugenio (Alberto); that
Alberto was not yet around, arriving only at about 8:00 o’clock in the evening to talk with Raymund
and Nicanor about the price of the fighting cocks; that after their transaction, Alberto served Nicanor
and Raymund food, and he (Dulin) and Jun Danao thereafter accompanied Raymund and Nicanor to
the highway to get a tricycle ride, but on their way, they passed Angel Bancud who called out to him:
that he (Dulin) asked the others to go ahead, and he would just catch up with them; that as he
(Dulin) approached Bancud, Batulan, the cousin of his (Dulin) mother, stabbed him on the right side
of his body and in the left hand; that he complained to Batulan: Uncle, you hit me (Dinisgrasya
nakun), but Batulan replied: I will really kill you; that he (Dulin) ran to the upper level of Carolina
Danao’s house, pursued by Batulan who stabbed him again several times; that they grappled for the
weapon until he (Dulin) was able to wrest it from Batulan; that he (Dulin) stabbed Batulan with the
weapon, and they struggled until he (Dulin) felt weak, eventually falling to the ground; and that he
(Dulin) regained consciousness only the next day at the hospital.

Dulin insisted that there was no grudge between him and Batulan, but interjected that the barangay
captain would summon him to bring Batulan home each time the latter got drunk at night.

Erlinda Danao, Records Officer of the Cagayan Valley Regional Hospital in Tuguegarao, Cagayan,
authenticated the hospital records showing that Dulin had also been injured.  Judgment of the RTC
13

On December 29, 1997, the RTC rendered its decision convicting Dulin of murder,  to wit:
14

WHEREFORE, judgment is hereby rendered finding the accused Alfredo Dulin guilty beyond
reasonable doubt of the crime of Murder, and appreciating the privileged mitigating circumstance of
incomplete self-defense and no aggravating circumstance, this Court hereby lowers the penalty of
said crime by two degrees and hereby sentences him to suffer the penalty of reclusion temporal in
its maximum period of imprisonment ranging from 17 years and 4 months and 1 day to 20 years and
to indemnify the heirs of the victim in the amount of ₱50,000.00 and to pay actual damages in the
amount of ₱36,000.00 and moral damages for ₱40,000.00.

Without subsidiary imprisonment in case of insolvency and without pronouncement as to costs. SO

ORDERED. 15

Decision of the CA

In his appeal, Dulin contended that his crime should be homicide instead of murder, considering the
RTC’s appreciation of incomplete self-defense as a privileged mitigating circumstance; and that even
if self-defense should be unavailing, he could be found guilty only of homicide because it was the
victim who had first attacked by stabbing him, and that the multiple wounds inflicted on the victim did
not mean that he had not been justified in killing the victim. He argued that the penalty imposed on
him was incorrect considering the absence of any aggravating circumstance and the presence of the
privileged mitigating circumstance of incomplete self-defense.

On August 26, 2005, the CA affirmed the conviction subject to the modification of the civil liability,
decreeing:

The Court agrees with the OSG representing the State that the penalty requires modification. The
Court a quo committed error in the imposition of the proper penalty. The crime committed by
appellant in the case at bench is murder qualified by treachery. There being no aggravating and no
mitigating circumstance, the proper penalty is reclusion perpetua. Where no mitigating or
aggravating circumstance attended the commission of the crime, the medium period of the
imposable penalty, which is reclusion perpetua, should be imposed by the trial court.

WHEREFORE, the judgment of conviction is hereby AFFIRMED subject to the modification of the
penalty and awards of damages. Appellant ALFREDO DULIN y NARAG is hereby sentenced to
suffer the penalty of reclusion perpetua. The award of ₱36,000 actual damages is DELETED.
Appellant is ordered to pay the heirs of Francisco Batulan ₱20,000 as temperate damages and
₱50,000 by way of moral damages.

SO ORDERED. 16

On January 12, 2006, the CA denied Dulin’s motion for reconsideration. 17

 Issues

Whether or not Dulin was in the act of Self-defense

In this appeal, Dulin submits the following issues for our review and consideration, to wit:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE

PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE DESPITE CLEAR AND
CONVINCING EVIDENCE SHOWING THE ELEMENTS OF SELF-DEFENSE.

II

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT CONSIDERING SELF-DEFENSE

AS A PRIVILEGED MITIGATING CIRCUMSTANCE, IN THE EVENT THAT THE APPRECIATION
OF A COMPLETE SELF-DEFENSE IS UNAVAILING.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCE OF TREACHERY IN THE KILLING OF FRANCISCO. 18

Ruling of the Court

The appeal is partly meritorious.

I.

There was no self-defense

The accused who pleads self-defense admits the authorship of the crime. The burden of proving
self-defense rests entirely on him, that he must then prove by clear and convincing evidence the
concurrence of the following elements of self-defense, namely: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3)
lack of sufficient provocation on the part of the person defending himself.  The most important of all
19

the elements is unlawful aggression,  which is the condition sine qua non for upholding self-defense
20

as a justifying circumstance. Unless the victim committed unlawful aggression against the accused,
self-defense, whether complete or incomplete, should not be appreciated, for the two other essential
elements of self-defense would have no factual and legal bases without any unlawful aggression to
prevent or repel.

Unlawful aggression as the condition sine qua non for upholding self-defense is aptly described in
People v. Nugas,  as follows:
21

Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance
of self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself.
The test for the presence of unlawful aggression under the circumstances is

whether the aggression from the victim put in real peril the life or personal safety of the person
defending himself; the peril must not be an imagined or imaginary threat. Accordingly, the accused
must establish the concurrence of three elements of unlawful aggression, namely: (a) there must be
a physical or material attack or assault; (b) the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be unlawful.

Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful aggression means an attack with physical force or
with a weapon, an offensive act that positively determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an attack that is impending or at the point of happening;
it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a
knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere
threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was
holstered, accompanied by an angry countenance, or like aiming to throw a pot.

Dulin argues that the CA should have appreciated the justifying circumstance of self-defense in his
favor because all its elements had been present in the commission of the crime.

In rejecting Dulin’s argument, the CA observed that although Batulan had initiated the attack against
Dulin the unlawful aggression from Batulan effectively ceased once Dulin had wrested the weapon
from the latter. The CA thus found and held in its assailed decision:

Appellant testified that after the initial stabbing attack on him, he was able to take possession of the
weapon and ran towards the second level of the house of Vicente Danao, away from FRANCISCO.
At that point, the unlawful aggression against him effectively ceased. When FRANCISCO and
appellant again grappled for possession of the weapon, appellant now became the armed
protagonist, and FRANCISCO’s act of trying to wrest the weapon cannot be considered as unlawful
aggression. At that moment, appellant no longer faced any imminent or immediate danger to his life
and limb from FRANCISCO.

xxxx

From the foregoing, it is evidently clear that FRANCISCO could no longer be considered as unlawful
aggressor. Appellant had nothing to repel. Therefore, appellant’s theory that he was merely
defending himself when he killed FRANCISCO is unavailing. A fortiori, there would be no

basis for the second requisite of self-defense. 22

We uphold the finding and holding of the CA. Batulan, albeit the initial aggressor against Dulin,
ceased to be the aggressor as soon as Dulin had dispossessed him of the weapon. Even if Batulan
still went after Dulin despite the latter going inside the house of Danao, where they again grappled
for control of the weapon, the grappling for the weapon did not amount to aggression from Batulan
for it was still Dulin who held control of the weapon at that point. Whatever Dulin did thereafter – like
stabbing Batulan with the weapon – constituted retaliation against Batulan. In this regard, retaliation
was not the same as self-defense. In retaliation, the aggression that the victim started already
ceased when the accused attacked him, but in self-defense, the aggression was still continuing
when the accused injured the aggressor.  As such, there was no unlawful aggression on the part of
23

Batulan to justify his fatal stabbing by Dulin.

Still, Dulin vigorously insists that the initial aggression employed by Batulan did not cease because
the latter followed him into Danao’s house with the singular purpose of ending his life; and that there
was no gap in the aggression initiated by Batulan. 24
The insistence is unwarranted. Dulin admitted having successfully disarmed Batulan and then
running away from him. With the aggression by Batulan having thereby ceased, he did not anymore
pose any imminent threat against Dulin. Hence, Batulan was not committing any aggression when
Dulin fatally stabbed him.

It is notable, too, that the results of the medico-legal examination indicating Batulan to have
sustained twelve stab wounds  confirmed the cessation of the attack by Batulan. The numerosity
25

and nature of the wounds inflicted by the accused reflected his determination to kill Batulan, and the
fact that he was not defending himself. 26

II.

Incomplete self-defense was not proved

Pursuant to Article 69 of the Revised Penal Code, the privileged mitigating circumstance of
incomplete self-defense reduces the penalty by one or two degrees than that prescribed by law. For
this purpose, the accused must prove the existence of the majority of the elements for self-defense,
but unlawful aggression, being an indispensable element, must be present. Either or both of the
other requisites may be absent, namely: reasonable necessity of the means employed to prevent or
repel it, or the lack of sufficient provocation on the part of the person defending himself.
27

Dulin posits that the totality of circumstances indicated that his acts constituted incomplete self-
defense, and must be appreciatedas a privileged mitigating circumstance. 28

Dulin’s position is untenable. Like in complete self-defense, Dulin should prove the elements of
incomplete self-defense by first credibly establishing that the victim had committed unlawful
aggression against him. With Batulan’s aggression having already ceased from the moment that
Dulin divested Batulan of the weapon, there would not be any incomplete self-defense. Moreover, as
borne out by his stabbing of Batulan several times, Dulin did not act in order to defend himself or to
repel any attack, but instead to inflict injury on Batulan.

III.

The RTC and CA erred in appreciating

the attendance of treachery

Murder is the unlawful killing of any person attended by any of the circumstances listed Article 248 of
the Revised Penal Code.  Treachery, which was alleged in the information, is one such qualifying
1âwphi1

circumstance.

There is treachery when the offender commits any of the crimes against persons, employing means
and methods or forms in the execution thereof which tend to directly and specially ensure its
execution, without risk to himself arising from the defense which the offended party might
make.  Two conditions must concur in order for treachery to be appreciated, namely: one, the
29

assailant employed means, methods or forms in the execution of the criminal act which give the
person attacked no opportunity to defend himself or to retaliate; and two, said means, methods or
forms of execution were deliberately or consciously adopted by the assailant.  Treachery, whenever
30

alleged in the information and competently and clearly proved, qualifies the killing and raises it to the
category of murder. 31
Based on the established facts, Dulinand Batulan grappled for control of the weapon Batulan had
initially wielded against Dulin, who divested Batulan of it and ran with it into the house of Danao, with
Batulan in immediate pursuit. They continued tograpple for the weapon inside the house of Danao,
and it was at that point when Dulin stabbed Batulan several times. Under the circumstances,
treachery should not be appreciated in the killing of Batulan because the stabbing by Dulin did not
take Batulan by surprise due to his having been sufficiently forewarned of Dulin’s impending
assault,  and being thus afforded the opportunity to defend himself, or to escape, or even to recover
32

control of the weapon from Dulin. The essence of treachery is that the attack comes without warning,
or is done in a swift, deliberate and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or to escape, without the slightest provocation on the part of
the victim.  The mode of attack must not spring from the unexpected turn of events.
33

Consequently, Dulin should be liable only for homicide, the penalty for which is reclusion
temporal.  There being no aggravating or mitigating circumstances, the penalty is imposed in its
34

medium period (i.e., 14 years, eight months and one day to 17 years and four months). The
indeterminate sentence of Dulin is, therefore, eight years and one day of prision mayor, as the
minimum, to 14 years, eight months and one day of reclusion temporal, with full credit of his
preventive imprisonment, if any.

Anent the civil liability, the CA ordered the accused to pay to the heirs of Batulan ₱20,000.00 as
temperate damages and ₱50,000.00 as moral damages. We modify the awards, and grant to the
heirs of Batulan ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as
temperate damages. Indeed, the current judicial policy sets the civil indemnity for death caused by a
crime at ₱50,000.00. In addition, the heirs of the victim are entitled to moral damages of ₱50,000.00.
The civil indemnity and moral damages are allowed even without allegation and proof, it being a
certainty that the victim’s heirs were entitled thereto as a matter of law. Temperate damages of
₱25,000.00 should further be granted to the heirs of the victim for they were presumed to have spent
for his interment. It would be unjust to deny them this amount for the reason that they were not able
to establish the actual expenditure for his interment with certainty. 35

In line with recent jurisprudence,  interest of 6% per annum shall be charged on all the items of the
36

civil liability fixed and imposed herein, computed from the date of the finality of this decision until the
items of the civil liability shall be fully paid.

WHEREFORE, the Court MODIFIES the judgment promulgated on August 26, 2005 by finding
ALFREDO DULIN YNARAG guilty beyond reasonable doubt of HOMICIDE, and SENTENCES him
to suffer the indeterminate sentence of EIGHT YEARS AND ONE DAY OF PRISION MAYOR, AS
THE MINIMUM, TO 14 YEARS, EIGHT MONTHS AND ONE DAY OF RECLUSION TEMPORAL,
with full credit of his preventive imprisonment; ORDERS him to pay to the heirs of Francisco Batulan
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as temperate
damages, plus interest of 6% per annum on each item reckoned from the finality of this decision until
full payment; and DIRECTS him to pay the costs of suit.

SO ORDERED.

SECOND DIVISION
 G.R. No. 216021, March 02, 2016

SOLOMON VERDADERO Y GALERA, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

The expectations of a person possessed with full control of his faculties differ from
one who is totally deprived thereof and is unable to exercise sufficient restraint on
his. Thus, it is but reasonable that the actions made by the latter be measured
under a lesser stringent standard than that imposed on those who have complete
dominion over their mind, body and spirit.

This petition for review on certiorari seeks to reverse and set aside the July 10,
2014 Decision1 and the December 15, 2014 Resolution2 of the Court of Appeals (CA)
in CA-G.R. CR No. 35894 which affirmed the May 30, 2013 Judgment3 of the
Regional Trial Court, Branch 03, Tuguegarao City (RTC) in Criminal Case No. 13283,
finding accused Solomon Verdadero y Galera (Verdadero) guilty beyond reasonable
doubt of the crime of Homicide, defined and penalized under Article 249 of the
Revised Penal Code (RPC).

The Facts

In an Information,4 dated September 9, 2009, Verdadero was charged with the

crime of murder for killing Romeo B. Plata (Romeo), the accusatory portion of which
reads:
chanRoblesvirtualLawlibrary

That on or about March 12, 2009, in the municipality of Baggao, Province of

Cagayan, and within the jurisdiction of this Honorable Court, the said
accused SOLOMON VERDADERO armed with a Rambo knife, with intent to kill,
evident premeditation and with treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and stab ROMEO B. PLATA, thereby inflicting upon
him stab wounds on the different parts of his body which caused his death.

Contrary to law.5 ChanRoblesVirtualawlibrary

On June 3, 2011, Verdadero was arraigned and pleaded "Not Guilty." During the
pre-trial, he invoked the defense of insanity but did not consent to a reverse trial.
Thereafter, trial ensued.6

Evidence of the Prosecution

The evidence of the prosecution tended to establish the following:

On March 12, 2009, at around 3:00 o'clock in the afternoon, Maynard Plata
(Maynard) and his father Romeo were at the Baggao Police Station. Together with
Ronnie Elaydo (Ronnie), they went there to report that Verdadero had stolen the
fan belt of their irrigation pump.7

After a confrontation with Verdadero at the police station, the three men made their
way home on a tricycle but stopped at a drugstore as Maynard intended to buy
some baby supplies. Romeo proceeded towards a store near the drugstore while
Ronnie stayed inside the tricycle. From the drug store, Maynard saw Verdadero
stabbing Romeo, after he was alerted by the shouts of Ronnie.8

Verdadero stabbed Romeo on the left side of the latter's upper back with the use of
a Rambo knife. He again struck Romeo's upper back, just below the right shoulder.
Maynard tried to help his father but Verdadero attempted to attack him as well. He
defended himself using a small stool, which he used to hit Verdadero in the chest.9

Meanwhile, Ronnie ran towards the police station to seek assistance. The
responding police officers arrested Verdadero, while Maynard and Ronnie brought
Romeo to a clinic but were advised to bring him to the Cagayan Valley Medical
Center (CVMC). Romeo, however, died upon arrival at the CVMC. Based on the
Post-Mortem Examination Report, his cause of death was cardiopulmonary arrest
secondary to severe hemorrhage secondary to multiple stab wounds and hack
wounds.10

Evidence of the Defense

The evidence for the defense did not refute the material allegations but revolved
around Verdadero's alleged insanity, to wit:

Since 1999 until 2003, Verdadero had been an outpatient of CVMCs Psychiatric
Department for suffering a chronic mental disorder called Schizophrenia as he
claimed to hear strange voices and had difficulty in sleeping. Sometime in 2001,
Miriam Verdadero (Miriam), Verdadero's sister, again brought him to the Psychiatric
Department of CVMC after he became violent and started throwing stones at a
tricycle with a child on board. Verdadero was confined for two (2) months and was
diagnosed to be suffering from mental depression.

On July 21, 2003, he was diagnosed with schizophrenia and was given medications
to address his mental illness. Verdadero would irregularly consult with his doctors
as he had a lifelong chronic disease. Then, in 2009, he was again confined for the
fourth (4th) time at CVMC due to a relapse.

On March 12, 2009, Miriam proceeded to CVMC, after she heard of the stabbing
incident. There, she saw Verdadero removing the IV tubes connected to his body
and, thereafter, locked himself inside the comfort room. Eventually, Verdadero was
given sedatives and was transferred to an isolation room after Miriam informed the
nurses of the incident.11

On March 20, 2009, he was transferred to the Psychiatry Department after Dr.
Leonor Andres-Juliana (Dr. Andres-Juliana) had diagnosed that he was having
difficulty sleeping. Dr. Andres-Juliana opined that Verdadero suffered a relapse, as
evidenced by his violent behaviour.

Acting on the January 4, 2011 Order of the RTC, Dr. Ethel Maureen Pagaddu (Dr.
Pagaddu) conducted a mental examination on Verdadero. She confirmed that as
early as 1999, he was already brought to CVMC and that he was diagnosed with
schizophrenia on July 21, 2003. Dr. Pagaddu agreed with Dr. Andres-Juliana that
Verdadero had suffered a relapse on the day of the stabbing incident.12

The RTC Ruling

On May 30, 2013, the RTC rendered a decision finding Verdadero guilty for the
crime of homicide. The dispositive portion of which reads:
chanRoblesvirtualLawlibrary

WHEREFORE, in light of the foregoing, this Court finds the accused SOLOMON

VERDADERO y Galera GUILTY beyond reasonable doubt of the felony of
Homicide, defined and penalized under Article 249 of the Revised Penal Code, as
amended, and hereby sentences him:

1. To suffer an indeterminate prison sentence ranging from twelve (12) years

of prision mayor [as maximum] as minimum to seventeen (17) years and four (4)
months of reclusion temporal medium, as maximum; and,

2. To pay the heirs of Romeo Plata the amounts of:

    a. P50,000.00 as death indemnity;

    b. P50,000.00 as moral damages and
    c. P30,000.00 as stipulated actual damages; and,

3. To pay the costs.

SO ORDERED.13 ChanRoblesVirtualawlibrary

The RTC ruled that the crime committed was only homicide, as the prosecution
failed to establish the presence of treachery and evident premeditation to qualify
the killing to murder. The trial court, however, opined that Verdadero failed to
establish insanity as an exempting circumstance. The trial court posited that
Verdadero was unsuccessful in establishing that he was not in a lucid interval at the
time he stabbed Romeo or that he was completely of unsound mind prior to or
coetaneous with the commission of the crime.
Aggrieved, Verdadero appealed before the CA.

The CA Ruling

In its July 10, 2014 Decision, the CA upheld Verdadero's conviction of homicide.
The appellate court agreed that the defense was able to establish that Verdadero
had a history of schizophrenic attacks, but was unable to prove that he was not
lucid at the time of the commission of the offense. The decretal portion of the
decision states:
chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing, the Appeal is DENIED. The Judgment,

dated May 30, 2013, rendered by the Regional Trial Court of Tuguegarao City,
Branch 3 in Criminal Case No. 13283, is AFFIRMED.

SO ORDERED.14 ChanRoblesVirtualawlibrary

Verdadero moved for reconsideration, but his motion was denied by the CA in its
resolution, dated December 15, 2014.

Hence, this present petition, raising the following

ISSUE

WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

PETITIONER'S CONVICTION DESPITE THE FACT THAT HIS INSANITY AT
THE TIME OF THE INCIDENT WAS ESTABLISHED BY CLEAR AND
CONVINCING EVIDENCE.

Verdadero insists that he was able to fully support his defense of insanity. He
claims that Maynard even admitted that he was not in the proper state of mind
when they were at the police station before the stabbing took place. Further, it
appeared that Verdadero was having hallucinations after the stabbing incident as
testified to by Dr. Andres-Juliana. Verdadero notes that Dr. Pagaddu concluded that
he had a relapse at the time of the stabbing incident on March 12, 2009.

In its Comment,15 the Office of the Solicitor General (OSG) contended that the
present petition presented a question of fact, which could not be addressed in a
petition for review under Rule 45 of the Rules of Court. Moreover, it asserted that
the CA did not misapprehend the facts as the evidence presented failed to
completely establish Verdadero's insanity at the time of the stabbing.

In his Manifestation (in Lieu of Reply),16 Verdadero indicated that he would no

longer file a reply as his petition for review already contained an exhaustive
discussion of the issues.
 The Court's Ruling

The present petition primarily assails the conviction despite his defense of insanity.
Before delving into the merits of the case, a discussion of the procedural issue is in
order.

Only questions of law may be raised in a petition for review under Rule 45;
Exceptions

The OSG argues that the Court should not entertain Verdadero's petition for review
as it principally revolves around the issue of his insanity — a question of fact which
should no longer be addressed in a petition for review. The Court disagrees.

Generally, questions of fact are beyond the ambit of a petition for review under
Rule 45 of the Rules of Court as it is limited to reviewing only questions of law. The
rule, however, admits of exceptions wherein the Court expands the coverage of a
petition for review to include a resolution of questions of fact. In Laborte v.
Pagsanjan Tourism Consumers' Cooperative et al.,17 the Court reiterated the
following exceptions to the rule that only questions of law may be raised under Rule
45, to wit: (1) when the findings are grounded entirely on speculations, surmises,
or conjectures; (2) when the inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of discretion; (4) when the
judgment is based on misappreciation of facts; (5) when the findings of fact
are conflicting; (6) when in making its findings, the same are contrary to the
admissions of both appellant and appellee; (7) when the findings are contrary to
those of the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; and (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record.

The present petition mainly delves into Verdadero's state of mind at the time of the
stabbing incident. Obviously, it is a question of fact, which, ordinarily is not
entertained by the Court in a petition for review. As will be discussed below, the
Court, nevertheless, finds that the circumstances in the case at bench warrant the
application of the exception rather than the rule.

Insanity must be present at the time the crime had been committed

To completely evade culpability, Verdadero raises insanity as a defense claiming

that he had suffered a relapse of his schizophrenia. Under Article 12 of the RPC, an
imbecile or an insane person is exempt from criminal liability, unless the latter had
acted during a lucid interval. The defense of insanity or imbecility must be clearly
proved for there is a presumption that the acts penalized by law are voluntary.18
In the case at bench, it is undisputed that (1) as early as 1999, Verdadero was
brought to the Psychiatric Department of CVMC for treatment; (2) he was
diagnosed with depression in 2001; (3) he was diagnosed with schizophrenia on
July 21, 2003; (4) he was confined in the psychiatric ward sometime in 2009 due to
a relapse; (5) he was in and out of psychiatric care from the time of his first
confinement in 1999 until the stabbing incident; and (6) he was diagnosed to have
suffered a relapse on March 20, 2009.

Thus, it is without question that he was suffering from schizophrenia and the only
thing left to be ascertained is whether he should be absolved from responsibility in
killing Romeo because of his mental state.

Schizophrenia is a chronic mental disorder characterized by inability to distinguish

between fantasy and reality, and often accompanied by hallucinations and
delusions.19 A showing that an accused is suffering from a mental disorder,
however, does not automatically exonerate him from the consequences of his act.
Mere abnormality of the mental faculties will not exclude imputability.20

In People v. Florendo,21 the Court explained the standard in upholding insanity as

an exempting circumstance, to wit:
chanRoblesvirtualLawlibrary

Insanity under Art. 12, par. 1, of The Revised Penal Code exists when there is
a complete deprivation of intelligence in committing the act, i.e., appellant is
deprived of reason; he acts without the least discernment because of complete
absence of the power to discern; or, there is a total deprivation of freedom of the
will. The onus probandi rests upon him who invokes insanity as an exempting
circumstance, and he must prove it by clear and convincing evidence.

[Emphasis Supplied]
22
In People v. Isla,  the Court elucidated that insanity must relate to the time
immediately preceding or simultaneous with the commission of the offense with
which the accused is charged. Otherwise, he must be adjudged guilty for the said
offense. In short, in order for the accused to be exempted from criminal liability
under a plea of insanity, he must categorically demonstrate that: (1) he was
completely deprived of intelligence because of his mental condition or illness; and
(2) such complete deprivation of intelligence must be manifest at the time or
immediately before the commission of the offense.

In raising the defense of insanity, Verdadero admits to the commission of the crime
because such defense is in the nature of a confession or avoidance.23 As such, he is
duty bound to establish with certainty that he was completely deprived, not merely
diminished, of intelligence at the time of the commission of the crime. Failing
which, Verdadero should be criminally punished for impliedly admitting to have
stabbed Romeo to death.
Proving insanity is a tedious task for it requires an examination of the mental state
of the accused. In People v. Opuran24 the Court explained how one's insanity may
be established, to wit:
chanRoblesvirtualLawlibrary

Since insanity is a condition of the mind, it is not susceptible of the usual means of
proof. As no man can know what is going on in the mind of another, the state or
condition of a person's mind can only be measured and judged by his behavior.
Thus, the vagaries of the mind can only be known by outward acts, by means of
which we read the thoughts, motives, and emotions of a person, and then
determine whether the acts conform to the practice of people of sound mind.

Insanity is evinced by a deranged and perverted condition of the mental faculties

which is manifested in language and conduct. xxx

Establishing the insanity of an accused often requires opinion testimony which may
be given by a witness who is intimately acquainted with the accused; has rational
basis to conclude that the accused was insane based on his own perception; or is
qualified as an expert, such as a psychiatrist.

In the earlier case of People v. Austria,25 the Court elucidated that evidence of the
mental condition of the accused during a reasonable period before and after the
commission of the offense is material, to wit:
chanRoblesvirtualLawlibrary

In order to ascertain a person's mental condition at the time of the act, it is

permissible to receive evidence of his mental condition during a reasonable period
before and after. Direct testimony is not required nor are specific acts of
disagreement essential to establish insanity as a defense. A person's mind can only
be plumbed or fathomed by external acts. Thereby his thoughts, motives and
emotions may be evaluated to determine whether his external acts conform to
those of people of sound mind. To prove insanity, clear and convincing
circumstantial evidence would suffice.

Guided by the precepts laid out by the above-mentioned jurisprudence, the Court
finds that Verdadero sufficiently proved that he was insane at the time of the
stabbing. Thus, the Court takes a view different from that of the CA as the latter
concluded that Verdadero's insanity was not clearly proven.

It is true that there is no direct evidence to show Verdadero's mental state at the
exact moment the crime was committed. This, however, is not fatal to the finding
that he was insane. His insanity may still be shown by circumstances immediately
before and after the incident. Further, the expert opinion of the psychiatrist Dr.
Pagaddu may also be taken into account.

Dr. Pagaddu categorically testified that Verdadero was suffering a relapse at the
time of the stabbing incident. During her testimony, she stated as follows:
chanRoblesvirtualLawlibrary
On direct examination

Atty. Tagaruma
Q: By the way what was the mental condition of the accused referred which
involved your diagnosis as a life long chronic disease?

Witness
A: The accused was diagnosed schizophrenia, sir.

Q: When for the first time Solomon Verdadero was diagnosed with schizophrenia?
A: It was on July 21, 2003, sir. xxx

Q: As an expert witness tell the Honorable Court if a person who has relapse of
schizophrenia could distinguish his act?
A: This mental disorder influence (sic) the impulse. It could at the time of the
commission of the crime that the impulse control and judgment of an individual was
affected sir.

Q: Could it be accurate to state that a person who has the relapse of schizophrenia
could not distinguish any act from right or wrong?
A: There is a possibility, sir.

Court
Q: Why did you say that Solomon Verdadero has the possibility of relapse upon
admission on March 19, 2009?
A: There was a period of relapse meaning the symptom was present and there
must be a remission if the symptom is abated, your Honor.

xxx

Atty. Tagaruma
Q: You have read for the record the report of Dr. Juliana on the alleged
violent behavior of Solomon Verdadero on March 12, 2009 which is the
date of the incident, as an expert psychiatrist is it possible that the violent
behavior of Solomon Verdadero on March 12, 2009 was the basis of Dr.
Juliana in diagnosing that the accused was in relapse upon admission on
March 12, 2009?
A: Yes sir.

Q: Following the remark of scientific conclusion of Dr. Juliana, Dr. Janet

Taguinod and the conclusion made by you, is it also your conclusion that
Solomon Verdadero was in relapse on March 12, 2009 due to violent
behavior?
A: Yes, sir.
On cross examination

Prosecutor Aquino

Q: But definitely during the disorder of the patient, the relapse would somewhat be
continued even when medications is administered to him?
A: The symptom is controlled although there is a circumstances (sic) that the
patient may have relapse (sic) even with medication, sir.

Q: If a continuous medication was undertaken by the accused-patient in this case

could that have a long effect on his mental condition?
A: Continuous medication could somehow control the symptom and not absolutely
eradicate the symptom.

Q: On March 12 , 2009 the accused-patient was on a lucid interval, in view of the

medication undertaken as of January 19, 2009?
A: It's haphazard, sir.

xxx

Court
Q: Madam witness what type of schizophrenia the accused was diagnosed?
A: Undifferentiated, your honor.26

[Emphases Supplied]
Dr. Paggadu, without any reservations, stated that Verdadero was suffering a
relapse of his schizophrenia at the time of the stabbing incident. In contrast, she
was hesitant to opine that Verdadero might have been in a lucid interval because of
the medications taken. Thus, it is reasonable to conclude, on the basis of the
testimony of an expert witness, that Verdadero was of unsound mind at the time he
stabbed Romeo.

Further, the finding of Verdadero's insanity is supported by the observations made

by Maynard, a witness for the prosecution. In his testimony, Maynard gave his
opinion on Verdadero's behavior and appearance when they met at the police
station, to wit:
chanRoblesvirtualLawlibrary

On cross examination

Atty. Tagurama
Q: Having made the report against Solomon Verdadero, do I (sic) correct to say
that you are familiar with Solomon Verdadero even before March 12, 2009?
A: Yes, sir.

Q: Tell us why you are familiar to him even prior to March 12, 2009?
A: We are neighbors, sir.

Q: You are immediate neighbors?

A: Yes, sir

Q: Since you are neighbors with Solomon Verdadero you see him almost a (sic)
time?
A: Yes, sir. I saw him daily.

Q: When you see Solomon Verdadero daily you see his actuation?
A: Yes, sir.

xxx

Q: Sometimes he boxes when he is not in his proper mind, what aberrant behavior
did you observe from him?
A: That's the only thing I observed and sometimes he steal (sic), sir.

Q: For a long time that Solomon Verdadero is your neighbor does his relapse or
what you called not in his proper mind occurred often?
A: It occurred once in a while, sir.

Q: When you said it occurred once in a while, this relapse may occur once a week?
A: Yes, sir.

Q: Prior to March 12, 2009, when did you first observe that Solomon
Verdadero appears not in his proper mind?
A: He was not in his proper mind for a long time, sir.

Q: Maybe it could be 5 months before March 12, 2009?

A: Yes, sir.

xxx

Court
Q: You testified that you observed the accused not in his proper mind for the
passed (sic) years before this incident was he also violent like what happened on
March 12, 2009?

Witness
A: Yes, your honor.

Q: When you went to the police station you allegedly reported the stolen fan belt do
I get you right that Solomon Verdadero was with you at the police station?
A: Yes, your honor.
Q: When he was with you at the police station what did you observe?
A: He was not again in his proper mind (sumro manen), your Honor.

xxx

Q: Can you describe his appearance?

A: His eyes was (sic) very sharp and reddish.

xxx

Q: As far as his appearance is concern (sic) do you remember his actuation or how
he was reacting?
A: Yes, your honor. He was somewhat drank (sic).

Q: You said that he was not on his proper mind for the passed (sic) years?
A: Yes, your honor.27 cralawred

[Emphases Supplied]
Maynard was familiar with Verdadero as the latter was his neighbor for a long time.
He had observed that there were times that Verdadero appeared to be of unsound
mind as he would sometimes become violent. On the day of the stabbing incident,
Maynard perceived that Verdadero was again of unsound mind noting that he had
reddish eyes and appeared to be drunk. Moreover, he was immediately transferred
to the psychiatry department because of his impaired sleep and to control him from
harming himself and others.28

These circumstances are consistent with Dr. Paggadu's testimony that drinking

wine, poor sleep and violent behavior were among the symptoms of a
relapse, the same testimony that was used as basis for his previous
diagnosis.29 The evidence on record supports the finding that Verdadero exhibited
symptoms of a relapse of schizophrenia at the time of the stabbing incident. Thus,
Dr. Pagaddu reiterated Dr. Andre-Juliana's conclusion that Verdadero was having a
relapse of his illness on that fateful day.

Further, on March 22, 2009, he was officially diagnosed to have suffered a relapse
of schizophrenia. Generally, evidence of insanity after the commission of the crime
is immaterial. It, however, may be appreciated and given weight if there is also
proof of abnormal behavior before or simultaneous to the crime.30

Indeed, the grant of absolution on the basis of insanity should be done with utmost
care and circumspection as the State must keep its guard against murderers
seeking to escape punishment through a general plea of insanity.31 The
circumstances in the case at bench, however, do not indicate that the defense of
insanity was merely used as a convenient tool to evade culpability.
The Court notes that at the very first opportunity, Verdadero already raised the
defense of insanity and remained steadfast in asserting that he was deprived of
intelligence at the time of the commission of the offense. He no longer offered any
denial or alibi and, instead, consistently harped on his mental incapacity. Unlike in
previous cases32 where the Court denied the defense of insanity as it was raised
only when the initial defense of alibi failed to prosper, Verdadero's alleged insanity
was not a mere afterthought.

In exonerating Verdadero on the ground of insanity, the Court does not totally free
him from the responsibilities and consequences of his acts. Article 12(1) of the RPC
expressly states that "[w]hen an insane person has committed an act which the law
defines as a felony, the court shall order his confinement in one of the hospitals or
asylums established for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court." Instead of
incarceration, Verdadero is to be confined in an institution where his mental
condition may be addressed so that he may again function as a member of society.
He shall remain confined therein until his attending physicians give a favorable
recommendation for his release.

Verdadero still liable for damages in spite of his exoneration

In appreciating insanity in favor of Verdadero, the Court absolves him from criminal
responsibility. He is, nevertheless, responsible to indemnify the heirs of Romeo for
the latter's death. An exempting circumstance, by its nature, admits that criminal
and civil liabilities exist, but the accused is freed from the criminal liability.33

The amount of damages awarded, however, must be modified in order to conform

to recent jurisprudence.34 The P50,000.00 civil indemnity and P50,000.00 moral
damages awarded by the RTC must each be increased to P75,000.00. In addition,
an interest at the rate of six per cent (6%) per annum should be imposed on all
damages awarded computed from the finality of the decision until the same have
been fully paid.chanrobleslaw

WHEREFORE, the Court grants the petition and ACQUITS accused-appellant

Solomon Verdadero y Galera of Homicide by reason of insanity. He is ordered
confined at the National Center for Mental Health for treatment and shall be
released only upon order of the Regional Trial Court acting on a recommendation
from his attending physicians from the institution.

He is also ordered to pay the heirs of Romeo B. Plata the amounts of P75,000.00 as
civil indemnity; P75,000.00 as moral damages; and P30,000.00 as stipulated actual
damages, plus interest on all damages awarded at the rate of 6% per annum from
the date of finality of this decision until the same shall have been fully paid.

SO ORDERED. cralawlawlibrar

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182941               July 3, 2009

ROBERT SIERRA y CANEDA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review on certiorari1 of the
Decision2 and Resolution3 of the Court of Appeals4 (CA) that affirmed with modification his conviction
for the crime of qualified rape rendered by the Regional Trial Court (RTC), Branch 159, Pasig City, in
its decision of April 5, 2006.

THE ANTECEDENT FACTS

In August 2000, thirteen-year-old AAA5 was playing with her friend BBB in the second floor of her
family’s house in Palatiw, Pasig. The petitioner arrived holding a knife and told AAA and BBB that he
wanted to play with them. The petitioner, who was 15 years old, then undressed BBB and had
sexual intercourse with her. Afterwards, he turned to AAA, undressed her, and also had sexual
intercourse with her by inserting his male organ into hers. The petitioner warned AAA not to tell
anybody of what they did.

AAA subsequently disclosed the incident to Elena Gallano (her teacher) and to Dolores Mangantula
(the parent of a classmate), who both accompanied AAA to the barangay office. AAA was later
subjected to physical examination that revealed a laceration on her hymen consistent with her claim
of sexual abuse. On the basis of the complaint and the physical findings, the petitioner was charged
with rape under the following Information:

On or about August 5, 2000, in Pasig City and within the jurisdiction of this Honorable Court, the
accused, a minor, 15 years old, with lewd designs and by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with his (accused)
sister, AAA, thirteen years of age, against the latter’s will and consent.

Contrary to law.6

The petitioner pleaded not guilty to the charge and raised the defenses of denial and alibi. He
claimed that he was selling cigarettes at the time of the alleged rape. He also claimed that AAA only
invented her story because she bore him a grudge for the beatings he gave her. The parties’ mother
(CCC) supported the petitioner’s story; she also stated that AAA was a troublemaker. Both CCC and
son testified that the petitioner was fifteen (15) years old when the alleged incident happened. 7

The defense also presented BBB who denied that the petitioner raped her; she confirmed the
petitioner’s claim that AAA bore her brother a grudge.

On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused ROBERT SIERRA y CANEDA
GUILTY beyond reasonable doubt of the crime of rape (Violation of R.A. 8353 in relation to SC A.M.
99-1-13) and hereby sentences the said juvenile in conflict with law to suffer the penalty of
imprisonment of reclusion perpetua; and to indemnify the victim the amount of ₱75,000 as civil
indemnity, ₱50,000 as moral damages, and ₱25,000 as exemplary damages.

SO ORDERED.8

The petitioner elevated this RTC decision to the CA by attacking AAA’s credibility. He also invoked
paragraph 1, Section 6 of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006) 9 to exempt him
from criminal liability considering that he was only 15 years old at the time the crime was committed.

The CA nevertheless affirmed the petitioner’s conviction with modification as to penalty as follows:

WHEREFORE, finding that the trial court did not err in convicting Robert Sierra, the assailed
Decision is hereby AFFIRMED with MODIFICATION that Robert Sierra has to suffer the penalty of
imprisonment of RECLUSION TEMPORAL MAXIMUM. The award of damages are likewise
affirmed.

SO ORDERED.10

In ruling that the petitioner was not exempt from criminal liability, the CA held:
As to the penalty, We agree with the Office of the Solicitor General that Robert is not exempt from
liability. First, it was not clearly established and proved by the defense that Robert was 15 years old
or below at the time of the commission of the crime. It was incumbent for the defense to present
Robert’s birth certificate if it was to invoke Section 64 of Republic Act No. 9344. Neither is the
suspension of sentence available to Robert as the Supreme Court, in one case, clarified that:

We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law
reads:

SEC. 38. Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age
or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in
Conflict with the Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that
the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or
more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of
P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from
Section 38 of Republic Act No. 9344. Evidently, the intention of Congress was to maintain the other
disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No.
02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which
is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from
having their sentences suspended.11

The CA denied the petitioner’s subsequent motion for reconsideration; hence, the present petition.

THE ISSUES

The petitioner no longer assails the prosecution’s evidence on his guilt of the crime charged; what he
now assails is the failure of the CA to apply paragraph 1, Section 612 of R.A. No. 9344 under the
following issues:

(1) Whether or not the CA erred in not applying the provisions of R.A. No. 9344 on the
petitioner’s exemption from criminal liability;

(2) Whether or not the CA erred in ruling that it was incumbent for the defense to present the
petitioner’s birth certificate to invoke Section 64 of R.A. No. 9344 when the burden of proving
his age lies with the prosecution by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon.
Gubaton13 thereby denying the petitioner the benefit of exemption from criminal liability under
R.A. No. 9344.
The threshold issue in this case is the determination of who bears the burden of proof for purposes
of determining exemption from criminal liability based on the age of the petitioner at the time the
crime was committed.

The petitioner posits that the burden of proof should be on the prosecution as the party who stands
to lose the case if no evidence is presented to show that the petitioner was not a 15-year old minor
entitled to the exempting benefit provided under Section 6 of R.A. No. 9344. 14 He additionally claims
that Sections 3,15 7,16 and 6817 of the law also provide a presumption of minority in favor of a child in
conflict with the law, so that any doubt regarding his age should be resolved in his favor.

The petitioner further submits that the undisputed facts and evidence on record – specifically: the
allegation of the Information, the testimonies of the petitioner and CCC that the prosecution never
objected to, and the findings of the RTC – established that he was not more than 15 years old at the
time of the commission of the crime.

The People’s Comment, through the Office of the Solicitor General (OSG), counters that the burden
belongs to the petitioner who should have presented his birth certificate or other documentary
evidence proving that his age was 15 years or below. The OSG also stressed that while petitioner is
presumed to be a minor, he is disqualified to have his sentence suspended following the ruling in
Declarador v. Hon. Gubaton.18

THE COURT’S RULING

We grant the petition.

We examine at the outset the prosecution’s evidence and the findings of the lower courts on the
petitioner’s guilt, since the petition opens the whole case for review and the issues before us are
predicated on the petitioner’s guilt of the crime charged. A determination of guilt is likewise relevant
under the terms of R.A. No. 9344 since its exempting effect is only on the criminal, not on the civil,
liability.

We see no compelling reason, after examination of the CA decision and the records of the case, to
deviate from the lower courts’ findings of guilt. The records show that the prosecution established all
the elements of the crime charged through the credible testimony of AAA and the other corroborating
evidence; sexual intercourse did indeed take place as the information charged. 19 As against AAA’s
testimony, the petitioner could only raise the defenses of denial and alibi – defenses that, in a long
line of cases, we have held to be inherently weak unless supported by clear and convincing
evidence; the petitioner failed to present this required evidentiary support. 20 We have held, too, that
as negative defenses, denial and alibi cannot prevail over the credible and positive testimony of the
complainant.21 We sustain the lower courts on the issue of credibility, as we see no compelling
reason to doubt the validity of their conclusions in this regard.

While the defense, on appeal, raises a new ground – i.e., exemption from criminal liability under R.A.
No. 9344 – that implies an admission of guilt, this consideration in no way swayed the conclusion we
made above, as the defense is entitled to present all alternative defenses available to it, even
inconsistent ones. We note, too, that the defense’s claim of exemption from liability was made for the
first time in its appeal to the CA. While this may initially imply an essential change of theory that is
usually disallowed on appeal for reasons of fairness, 22 no essential change is really involved as the
claim for exemption from liability is not incompatible with the evidence submitted below and with the
lower courts’ conclusion that the petitioner is guilty of the crime charged. An exempting
circumstance, by its nature, admits that criminal and civil liabilities exist, but the accused is freed
from criminal liability; in other words, the accused committed a crime, but he cannot be held
criminally liable therefor because of an exemption granted by law. In admitting this type of defense
on appeal, we are not unmindful, too, that the appeal of a criminal case (even one made under Rule
45) opens the whole case for review, even on questions that the parties did not raise. 23 By mandate
of the Constitution, no less, we are bound to look into every circumstance and resolve every doubt in
favor of the accused.24 It is with these considerations in mind and in obedience to the direct and
more specific commands of R.A. No. 9344 on how the cases of children in conflict with the law
should be handled that we rule in this Rule 45 petition.

We find a review of the facts of the present case and of the applicable law on exemption from liability
compelling because of the patent errors the CA committed in these regards. Specifically, the CA’s
findings of fact on the issues of age and minority, premised on the supposed absence of evidence,
are contradicted by the evidence on record; it also manifestly overlooked certain relevant facts not
disputed by the parties that, if properly considered, would justify a different conclusion. 25

In tackling the issues of age and minority, we stress at the outset that the ages of both the petitioner
and the complaining victim are material and are at issue. The age of the petitioner is critical for
purposes of his entitlement to exemption from criminal liability under R.A. No. 9344, while the age of
the latter is material in characterizing the crime committed and in considering the resulting civil
liability that R.A. No. 9344 does not remove.

Minority as an Exempting Circumstance

R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May 20, 2006. Its intent is
to promote and protect the rights of a child in conflict with the law or a child at risk by providing a
system that would ensure that children are dealt with in a manner appropriate to their well-being
through a variety of disposition measures such as care, guidance and supervision orders,
counseling, probation, foster care, education and vocational training programs and other alternatives
to institutional care.26 More importantly in the context of this case, this law modifies as well the
minimum age limit of criminal irresponsibility for minor offenders; it changed what paragraphs 2 and
3 of Article 12 of the Revised Penal Code (RPC), as amended, previously provided – i.e., from
"under nine years of age" and "above nine years of age and under fifteen" (who acted without
discernment) – to "fifteen years old or under" and "above fifteen but below 18" (who acted without
discernment) in determining exemption from criminal liability. In providing exemption, the new law –
as the old paragraphs 2 and 3, Article 12 of the RPC did – presumes that the minor offenders
completely lack the intelligence to distinguish right from wrong, so that their acts are deemed
involuntary ones for which they cannot be held accountable. 27 The current law also drew its changes
from the principle of restorative justice that it espouses; it considers the ages 9 to 15 years as
formative years and gives minors of these ages a chance to right their wrong through diversion and
intervention measures.28

In the present case, the petitioner claims total exemption from criminal liability because he was not
more than 15 years old at the time the rape took place. The CA disbelieved this claim for the
petitioner’s failure to present his birth certificate as required by Section 64 of R.A. No. 9344. 29 The
CA also found him disqualified to avail of a suspension of sentence because the imposable penalty
for the crime of rape is reclusion perpetua to death.

Burden of Proof

Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers to the duty of a party to
present evidence on the facts in issue in order to establish his or her claim or defense. In a criminal
case, the burden of proof to establish the guilt of the accused falls upon the prosecution which has
the duty to prove all the essential ingredients of the crime. The prosecution completes its case as
soon as it has presented the evidence it believes is sufficient to prove the required elements. At this
point, the burden of evidence shifts to the defense to disprove what the prosecution has shown by
evidence, or to prove by evidence the circumstances showing that the accused did not commit the
crime charged or cannot otherwise be held liable therefor. In the present case, the prosecution
completed its evidence and had done everything that the law requires it to do. The burden of
evidence has now shifted to the defense which now claims, by an affirmative defense, that the
accused, even if guilty, should be exempt from criminal liability because of his age when he
committed the crime. The defense, therefore, not the prosecution, has the burden of showing by
evidence that the petitioner was 15 years old or less when he committed the rape charged. 30

This conclusion can also be reached by considering that minority and age are not elements of the
crime of rape; the prosecution therefore has no duty to prove these circumstances. To impose the
burden of proof on the prosecution would make minority and age integral elements of the crime
when clearly they are not. 31 If the prosecution has a burden related to age, this burden relates to
proof of the age of the victim as a circumstance that qualifies the crime of rape. 32

Testimonial Evidence is Competent Evidence

to Prove the Accused’s Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that the petitioner was only 15
years old at the time he committed the crime. Section 7 of R.A. No. 9344 expressly states how the
age of a child in conflict with the law may be determined:

SEC. 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor. [Emphasis supplied]

Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides the implementing
details of this provision by enumerating the measures that may be undertaken by a law enforcement
officer to ascertain the child’s age:

(1) Obtain documents that show proof of the child’s age, such as

(a) Child’s birth certificate;

(b) Child’s baptismal certificate ;or

(c) Any other pertinent documents such as but not limited to the child’s school
records, dental records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending receipt of such documents,
the law enforcement officer shall exhaust other measures to determine age by:

(a) Interviewing the child and obtaining information that indicate age (e.g. date of
birthday, grade level in school);
 (b) Interviewing persons who may have knowledge that indicate[s] age of the child
(e.g. relatives, neighbors, teachers, classmates);

(c) Evaluating the physical appearance (e.g. height, built) of the child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been passed only in 2006), does not
depart from the jurisprudence existing at that time on the evidence that may be admitted as
satisfactory proof of the accused’s minority and age.

In the 1903 case of U.S. v. Bergantino,33 we accepted testimonial evidence to prove the minority and
age of the accused in the absence of any document or other satisfactory evidence showing the date
of birth. This was followed by U.S. v. Roxas34 where the defendant’s statement about his age was
considered sufficient, even without corroborative evidence, to establish that he was a minor of 16
years at the time he committed the offense charged. Subsequently, in People v. Tismo, 35 the Court
appreciated the minority and age of the accused on the basis of his claim that he was 17 years old at
the time of the commission of the offense in the absence of any contradictory evidence or objection
on the part of the prosecution. Then, in People v. Villagracia, 36 we found the testimony of the
accused that he was less than 15 years old sufficient to establish his minority. We reiterated these
dicta in the cases of People v. Morial 37 and David v. Court of Appeals,38 and ruled that the allegations
of minority and age by the accused will be accepted as facts upon the prosecution’s failure to
disprove the claim by contrary evidence.

In these cases, we gave evidentiary weight to testimonial evidence on the accused’s minority and
age upon the concurrence of the following conditions: (1) the absence of any other satisfactory
evidence such as the birth certificate, baptismal certificate, or similar documents that would prove
the date of birth of the accused; (2) the presence of testimony from accused and/or a relative on the
age and minority of the accused at the time of the complained incident without any objection on the
part of the prosecution; and (3) lack of any contrary evidence showing that the accused’s and/or his
relatives’ testimonies are untrue.

All these conditions are present in this case. First, the petitioner and CCC both testified regarding his
minority and age when the rape was committed.39 Second, the records before us show that these
pieces of testimonial evidence were never objected to by the prosecution. And lastly, the prosecution
did not present any contrary evidence to prove that the petitioner was above 15 years old when the
crime was committed.

We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides that any doubt on the
age of the child must be resolved in his favor.40 Hence, any doubt in this case regarding the
petitioner’s age at the time he committed the rape should be resolved in his favor. In other words,
the testimony that the petitioner as 15 years old when the crime took place should be read to mean
that he was not more than 15 years old as this is the more favorable reading that R.A. No. 9344
directs.

Given the express mandate of R.A. No. 9344, its implementing rules, and established jurisprudence
in accord with the latest statutory developments, the CA therefore cannot but be in error in not
appreciating and giving evidentiary value to the petitioner’s and CCC’s testimonies relating to the
former’s age.
Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took effect and that he is no longer a
minor (he was already 20 years old when he took the stand) will not bar him from enjoying the
benefit of total exemption that Section 6 of R.A. No. 9344 grants. 41 As we explained in discussing
Sections 64 and 68 of R.A. No. 9344 42 in the recent case of Ortega v. People:43

Section 64 of the law categorically provides that cases of children 15 years old and below, at the
time of the commission of the crime, shall immediately be dismissed and the child shall be referred
to the appropriate local social welfare and development officers (LSWDO). What is controlling,
therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL’s age at
the time of the promulgation of judgment but the CICL’s age at the time of the commission of the
offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from
9 to 15 years old. [Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22 of the RPC, as
amended, which provides that penal laws are to be given retroactive effect insofar as they favor the
accused who is not found to be a habitual criminal. Nothing in the records of this case indicates that
the petitioner is a habitual criminal.

Civil Liability

The last paragraph of Section 6 of R.A. No. 9344 provides that the accused shall continue to be
civilly liable despite his exemption from criminal liability; hence, the petitioner is civilly liable to AAA
despite his exemption from criminal liability. The extent of his civil liability depends on the crime he
would have been liable for had he not been found to be exempt from criminal liability.

The RTC and CA found, based on item (1) of Article 266-B of the RPC, as amended, that the
petitioner is guilty of qualified rape because of his relationship with AAA within the second civil
degree of consanguinity and the latter’s minority. 44 Both courts accordingly imposed the civil liability
corresponding to qualified rape.

The relationship between the petitioner and AAA, as siblings, does not appear to be a disputed
matter. Their mother, CCC, declared in her testimony that AAA and the petitioner are her children.
The prosecution and the defense likewise stipulated in the proceedings below that the relationship
exists. We find, however, that AAA’s minority, though alleged in the Information, had not been
sufficiently proven.45 People v. Pruna46 laid down these guidelines in appreciating the age of the
complainant:

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to
prove age.
 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a
member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved
is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved
is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken
against him. [Emphasis supplied]

The records fail to show any evidence proving the age of AAA. They do not likewise show that the
petitioner ever expressly and clearly admitted AAA’s age at the time of the rape. Pursuant to Pruna,
neither can his failure to object to AAA’s testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade the crime to qualified rape
– i.e., relationship within the third degree of consanguinity and minority of the victim – does not exist.
The crime for which the petitioner should have been found criminally liable should therefore only be
simple rape pursuant to par. 1, Article 266-A of the RPC, not qualified rape. The civil liability that can
be imposed on the petitioner follows the characterization of the crime and the attendant
circumstances.

Accordingly, we uphold the grant of moral damages of ₱50,000.00 but increase the awarded
exemplary damages ₱30,000.00, both pursuant to prevailing jurisprudence. 47 Moral damages are
automatically awarded to rape victims without the necessity of proof; the law assumes that the victim
suffered moral injuries entitling her to this award.48 Article 2230 of the Civil Code justifies the award
of exemplary damages because of the presence of the aggravating circumstances of relationship
between AAA and petitioner and dwelling.49 As discussed above, the relationship (between the
parties) is not disputed. We appreciate dwelling as an aggravating circumstance based on AAA’s
testimony that the rape was committed in their house.50 While dwelling as an aggravating
circumstance was not alleged in the Information, established jurisprudence holds that it may
nevertheless be appreciated as basis for the award of exemplary damages. 51 lavvphi1

We modify the awarded civil indemnity of ₱75,000.00 to ₱50,000.00, the latter being the civil
indemnity appropriate for simple rape52 on the finding that rape had been committed. 53

In light of the above discussion and our conclusions, we see no need to discuss the petition’s third
assignment of error.
WHEREFORE, premises considered, the instant petition is GRANTED. The Decision dated
February 29, 2008 and Resolution dated May 22, 2008 of the Court of Appeals in CA-G.R.-CR.-H.C.
No. 02218 are REVERSED and SET ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for rape filed against
petitioner Robert Sierra y Caneda is hereby DISMISSED. Petitioner is REFERRED to the
appropriate local social welfare and development officer who shall proceed in accordance with the
provisions of R.A. No. 9344. Petitioner is ORDERED to pay the victim, AAA, ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

Unless there are other valid causes for petitioner’s continued detention, we hereby ORDER his
IMMEDIATE RELEASE under the above terms.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections in Muntinlupa City
for its immediate implementation. The Director of the Bureau of Corrections is directed to report to
this Court within five days from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and Welfare Council.

SO ORDERED.

FIRST DIVISION

G.R. Nos. 147674-75             March 17, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ANACITO OPURAN, appellant.

DECISION

DAVIDE, JR., C.J.:

Appellant Anacito Opuran was charged with two counts of murder before the Regional Trial Court of
Catbalogan, Samar, Branch 29, for the death of Demetrio Patrimonio, Jr., and Allan Dacles under
separate informations, the accusatory portions of which respectively read:

Criminal Case No. 4693

That on or about November 19, 1998, at nighttime, at Km. 1, South Road, Municipality of
Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said
accused, with deliberate intent to kill and treachery, did, then and there willfully, unlawfully, and
feloniously attack, assault and stab Demetrio Patrimonio, Jr., with the use of a bladed weapon (5"
long from tip to handle with scabbard), thereby inflicting upon the victim fatal stab wounds on the
back of his body, which wounds resulted to his instantaneous death.

All contrary to law, and with attendant qualifying circumstance of treachery. 1

Criminal Case No. 4703

That on or about November 19, 1998, at nighttime, at Purok 3, Barangay 7, Municipality of

Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said
accused, with deliberate intent to kill, with treachery, did, then and there, willfully, unlawfully and
feloniously attack, assault and stab one Allan Dacles, who was lying on the bench, with the use of a
bladed weapon, locally known as ‘pisao,’ thereby inflicting upon the victim fatal stab wounds on the
different parts of his body, which wounds resulted to his instantaneous death.

All contrary to law, and with attendant qualifying circumstance of treachery. 2

After Anacito entered a plea of not guilty at his arraignment, trial ensued. 3

The evidence for the prosecution discloses that on 19 November 1998, at about 6:30 p.m.,
prosecution witness Bambi Herrera was studying his lessons inside his house. His brother and a
certain Jason Masbang were outside sitting side by side with each other on a plastic chair; opposite
them was Allan Dacles, who was lying on a bench. 4

Moments later, Jason barged into Bambi’s house, shouting: "There’s a long-haired man!" Bambi
stood up and looked through the open door. He saw appellant Anacito Opuran stab Allan on the
chest with a knife while the latter appeared to be trying to stand up from the bench. Although Allan
had several stab wounds on different parts of his body, he managed to stand up and run inside
Bambi’s house, with Anacito chasing him. Bambi immediately locked the door from the inside to
prevent Anacito from entering. But the latter tried to force the door open by thrusting a knife at the
door shutter. He also threw stones at the door. After a short while, Anacito left. 5

With Anacito gone, Bambi went out to ask the aid of his neighbors so he could bring Allan to the
hospital. He saw Anacito’s two brothers and asked for their assistance. But one of them merely said:
"Never mind because he [referring to Anacito] is mentally imbalanced." 6 As nobody from among his
neighbors responded to his plea for help, Bambi carried Allan on his shoulders and dragged him to
the lower portion of the neighborhood. Several persons, who were having a drinking session, helped
Bambi bring Allan to the hospital. Allan, however, died about fifteen minutes later. 7

At about 7:45 p.m. of the same day, prosecution witness Tomas Bacsal, Jr., of Barangay San Pablo,
Catbalogan, Samar, was in the house of Demetrio Patrimonio, Sr., seeking medical advice from the
latter’s wife. While there, Tomas heard a commotion outside. He looked out from the balcony and
saw people running. He learned that Anacito had stabbed somebody. 8

After about fifteen minutes, while Tomas was on his way home, he saw Demetrio Patrimonio, Jr. He
likewise noticed Anacito hiding in a dark place. When Demetrio Jr. reached the national highway,
near the so-called "lover’s lane," Anacito emerged from his hiding place and stabbed Demetrio Jr.
with a knife about three to four times.9

Tomas immediately ran to the house of the Demetrios to inform them of what he had just witnessed.
He then saw Demetrio Jr. running towards his parents’ house, but the latter did not make it because
he collapsed near the fence. Tomas also caught sight of Anacito running towards the direction of the
house of the Opurans. Meanwhile, Demetrio Jr. was brought by his parents to the Samar Provincial
Hospital, where he died the following day.10

Dr. Angel Tan, Medical Specialist II of the Samar Provincial Hospital, conducted an autopsy on the
cadavers of Allan and Demetrio Jr. He found five stab wounds on Allan’s body, one of which was
fatal because it affected the upper lobe of the right lung and bronchial vessel. 11 Demetrio Jr.
sustained four stab wounds and died of pulmonary failure due to hypovolemia from external and
internal hemorrhage.12

For its part, the defense presented, as its first witness, the appellant himself, Anacito Opuran. He
declared that on the evening of 19 November 1998, he was resting in their house in Canlapwas,
another barangay in Catbalogan, Samar. He never went out that night. While he was sleeping at
about 8:30 p.m., eight policemen entered his house, pointed their guns at him, and arrested him. He
was brought to the police station and detained there until the following morning. He denied being
present at the place and time of the stabbing incidents. He admitted knowing Demetrio Jr. as a
distant relative and friend whom he had not quarreled with. As for Allan, he never knew him. He had
no misunderstanding with prosecution witness Bambi Herrera. He asserted that the accusations
against him were fabricated because he was envied and lowly regarded by his accusers. 13

Subsequent hearings were postponed owing principally to the failure of the defense to present
witnesses. Then on 16 February 2000, the defense moved for the suspension of the hearing on the
following grounds: (1) on 10 January 2000, upon motion of the defense, the trial court issued an
Order authorizing the psychiatric examination of Anacito; (2) in consonance with that Order, Anacito
underwent a psychiatric examination on 26 January 2000 conducted by Dr. Angel P. Tan; (3) Dr.
Tan issued a Medical Certificate dated 26 January 2000 stating that Anacito had a "normal" mental
status on that date but was "suffering from some degree of Mental Aberration," which required
further psychiatric evaluation at Tacloban City.14

The trial court thus ordered a deferment of the hearing and granted the motion for the psychiatric
examination of Anacito at the Eastern Visayas Regional Medical Center (EVRMC), Tacloban City. 15

On 3 August 2000, the trial court received the Medical Report of Dr. Lyn Verona, physician-
psychiatrist of the EVRMC, on the psychiatric examination she conducted on Anacito. At the
resumption of the hearings on 20 November 2000, Dr. Verona testified that she examined Anacito
three times through interviews. From her interview with Anacito’s sister, Remedios Opuran
Manjeron, she learned of Anacito’s psychiatric history of "inability to sleep and talking irrelevantly."
She found that Anacito had a psychotic disorder characterized by flight of ideas and auditory
hallucinations. She confirmed her medical findings that Anacito was psychotic before and during the
commission of the crime and even up to the present so that he could not stand trial and would need
treatment and monthly check-up. Her diagnosis was that Anacito was suffering from schizophrenia. 16

Remedios Opuran Manjeron testified that she brought his brother Anacito to the National Center for
Mental Health (NCMH), Mandaluyong, in 1986 because Anacito had difficulty sleeping and was
talking "irrelevantly."17 Anacito was treated as an out-patient, and was prescribed thorazine and
evadyne.18 They stayed in Manila for one month. In 1989, they returned to the NCMH, and Anacito
was prescribed the same medicine. Since they could not afford to stay long in Manila for follow-up
treatments, Remedios requested that her brother be treated in Catbalogan. Dr. Belmonte of the
NCMH, however, referred them to the EVRMC. Sometime in 1990, Remedios accompanied Anacito
to the EVRMC for examination. A certain Dra. Peregrino prescribed an injectable medicine. But it
was a certain Dr. Estrada of the NCMH who came to Catbalogan to administer the medicine in that
same year. Since then until the year 2000, Anacito did not take any medicine, nor was he subjected
to examination or treatment.19

Anacito’s other sibling, Francisco Opuran, testified that at about 6:00 p.m. of 19 November 1998, he
heard a loud voice outside their house. Anacito heard also the loud voices and then went out. When
Francisco went out to verify, he did not see anything. A few minutes later he saw Anacito at the
corner of the street carrying a knife. He surmised that Anacito had committed a crime, and so he
hugged him. Anacito struggled to free himself, but Francisco brought him to Remedios’ house.
Before the incident, he observed Anacito to be "sometimes laughing, shouting, and uttering bad
words, and sometimes silent."20

In its decision21 of 23 January 2001, the trial court found Anacito guilty of murder for the death of
Demetrio Patrimonio, Jr., and homicide for the death of Allan Dacles. It decreed:

WHEREFORE, the Court Finds Anacito Opuran y Balibalita GUILTY beyond reasonable doubt of the
crimes specified hereunder, to wit:

Murder, in Criminal Case No. 4693, and sentences him to the penalty of reclusion perpetua, to
indemnify the heirs of Demetrio Patrimonio, Jr. in the amount of ₱50,000.00 plus ₱43,500.00 by way
of actual damages, and to pay the costs; and

Homicide, in Criminal Case No. 4703, and, applying the Indeterminate Sentence Law, sentences
him to suffer an imprisonment ranging from ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum to indemnify the heirs
of Allan Dacles in the amount of ₱50,000.00 plus ₱10,000.00 for burial expenses and to pay the
costs.

Anacito seasonably appealed to us from the decision attributing to the trial court grave error in
disregarding the exempting circumstance of insanity. 22 He contends that he was suffering from a
psychotic disorder and was, therefore, completely deprived of intelligence when he stabbed the
victims. Even assuming in gratis argumenti that he is criminally liable, he is entitled to the mitigating
circumstance under paragraph 9, Article 13 of the Revised Penal Code, which is "illness as would
diminish the exercise of the willpower of the offender without however depriving him of the
consciousness of his acts." He likewise maintains that since treachery was not specifically alleged in
the Information as a qualifying circumstance, he cannot be convicted of murder for the death of
Demetrio Jr.

The Office of the Solicitor General (OSG) disagrees and avers that Anacito failed to establish with
the required proof his defense of insanity or his claim of the mitigating circumstance of diminished
willpower. The mental state of Anacito, as testified to by Dr. Verona, corresponds to the period after
the stabbing incidents. Further, Dr. Verona was certain that Anacito was not grossly insane, but she
was uncertain that Anacito was "unconscious" at the time he stabbed the two victims. The OSG also
argues that treachery was duly alleged and proved by the prosecution and should, therefore, be
treated as a qualifying circumstance in the killing of Demetrio Jr.

We agree with the OSG and affirm the trial court’s judgment.

In the determination of the culpability of every criminal actor, voluntariness is an essential element.
Without it, the imputation of criminal responsibility and the imposition of the corresponding penalty
cannot be legally sanctioned. The human mind is an entity, and understanding it is not purely an
intellectual process but is dependent to a large degree upon emotional and psychological
appreciation. A man’s act is presumed voluntary.23 It is improper to assume the contrary, i.e. that
acts were done unconsciously,24 for the moral and legal presumption is that every person is
presumed to be of sound mind,25 or that freedom and intelligence constitute the normal condition of a
person.26 Thus, the presumption under Article 800 of the Civil Code is that everyone is sane. This
presumption, however, may be overthrown by evidence of insanity, which under Article 12(1) of the
Revised Penal Code exempts a person from criminal liability. 27

He who pleads the exempting circumstance of insanity bears the burden of proving it, 28 for insanity
as a defense is in the nature of confession and avoidance. 29 An accused invoking insanity admits to
have committed the crime but claims that he is not guilty because he is insane. The testimony or
proof of an accused's insanity must, however, relate to the time immediately preceding or
coetaneous with the commission of the offense with which he is charged. 30 It is, therefore, incumbent
upon accused’s counsel to prove that his client was not in his right mind or was under the influence
of a sudden attack of insanity immediately before or at the time he executed the act attributed to
him.31

Since insanity is a condition of the mind, it is not susceptible of the usual means of proof. As no man
can know what is going on in the mind of another, the state or condition of a person's mind can only
be measured and judged by his behavior.32 Thus, the vagaries of the mind can only be known by
outward acts, by means of which we read the thoughts, motives, and emotions of a person, and then
determine whether the acts conform to the practice of people of sound mind. 33

Insanity is evinced by a deranged and perverted condition of the mental faculties which is
manifested in language and conduct.34 However, not every aberration of the mind or mental
deficiency constitutes insanity.35 As consistently held by us, "A man may act crazy, but it does not
necessarily and conclusively prove that he is legally so."36 Thus, we had previously decreed as
insufficient or inconclusive proof of insanity certain strange behavior, such as, taking 120 cubic
centimeters of cough syrup and consuming three sticks of marijuana before raping the
victim;37 slurping the victim’s blood and attempting to commit suicide after stabbing him; 38 crying,
swimming in the river with clothes on, and jumping off a jeepney. 39

The stringent standard established in People v. Formigones40 requires that there be a complete

deprivation of intelligence in committing the act, i.e., the accused acted without the least discernment
because of a complete absence of the power to discern or a total deprivation of the will.

In People v. Rafanan, Jr.,41 we analyzed the Formigones standard into two distinguishable tests: (a)
the test of cognition – whether there was a "complete deprivation of intelligence in committing the
criminal act" and (b) the test of volition – whether there was a "total deprivation of freedom of the
will." We observed that our case law shows common reliance on the test of cognition, rather than on
the test of volition, and has failed to turn up any case where an accused is exempted on the sole
ground that he was totally deprived of the freedom of the will, i.e., without an accompanying
"complete deprivation of intelligence." This is expected, since a person’s volition naturally reaches
out only towards that which is represented as desirable by his intelligence, whether that intelligence
be diseased or healthy.42

Establishing the insanity of an accused often requires opinion testimony which may be given by a
witness who is intimately acquainted with the accused; has rational basis to conclude that the
accused was insane based on his own perception; or is qualified as an expert, such as a
psychiatrist.43

Let us examine the evidence offered to support Anacito’s defense of insanity. The appellant points to
the testimony of prosecution witness Bambi Herrera that Anacito was a silent man who would
sharply stare at the lady boarders a few days before the stabbing incident, and would wear Barong
Tagalog and long pants when there was no occasion requiring a formal attire. The appellant also
highlights that the testimony of prosecution witness Tomas Bacsal, Jr., that there was a 15-minute
time interval between the two stabbing incidents shows that the stabbing spree was without any
known motive.44

The testimonial evidence of the defense also attempted to prove the alleged behavioral oddity of
Anacito two to three days prior to the killing. His sister Remedios noticed that his eyes were reddish
and that he was angry with her.45 His brother Francisco also observed that he (Anacito) would
sometimes talk to himself, laugh, shout, and utter bad words, and , at times, he was just quiet. 46 Also
relied upon by the appellant are the testimony of Remedios on his psychiatric history and the expert
testimony of the EVRMC psychiatrist, Dr. Verona.

A careful scrutiny of the records, however, indicates that Anacito failed to prove by clear and
convincing evidence the defense of insanity. For one thing, it was only Bambi’s personal perception
that there was no reason or occasion for Anacito to wear Barong Tagalog. Tested against the
stringent criterion for insanity to be exempting, such deportment of Anacito, his occasional silence,
and his acts of laughing, talking to himself, staring sharply, and stabbing his victims within a 15-
minute interval are not sufficient proof that he was insane immediately before or at the time he
committed the crimes. Such unusual behavior may be considered as mere abnormality of the mental
faculties, which will not exclude imputability.47

Anacito’s psychiatric history likewise fails to meet the stringent yardstick established by case law.
What it shows is that Anacito was prescribed thorazine and evadyne, and later an injectable
medicine to remedy "his lack of sleep and noisiness." As the trial court noted, it was never shown
that these drugs were for a mental illness that deprived Anacito of reason. Further, Anacito was just
an out-patient at the NCMH, EVRMC, and Samar Provincial Hospital. While Remedios claimed that
she requested the confinement of Anacito and that the doctors did not refuse her, the fact remains
that Anacito was never confined in a mental institution. Although Dr. Verona testified that there was
a recommendation for Anacito’s confinement, there was no indication in the records as to when the
recommendation was made, who made the recommendation, and the reason for the
recommendation.48

At any rate, in People v. Legaspi,49 we discarded the confinement of the accused at the NCMH prior
to the incident in question to be by itself proof of his insanity, there being no proof that he was
adjudged insane by the institute. Applying this principle to Anacito’s case, we find another cogent
reason to reject his plea of insanity.

The records are likewise clear that Anacito was not subjected to treatment from 1991 until 1999.
While Remedios insisted that the medicine prescribed for Anacito ran out of stock allegedly in 1990,
there was no proof that Anacito needed the medicine during that period. In fact, there was no
intimation that he needed the medicine prior to the stabbing incident. She bought medicine for
Anacito only in April 2000 because he was "again noisy in the jail." 50 It seems that it was only after
the stabbing incident, when he was in jail, that his symptoms reappeared.

Moreover, as found by the trial court, the results of Dr. Verona’s examinations on Anacito were
based on incomplete or insufficient facts.51 For one thing, she admitted to have examined Anacito for
only three sessions lasting one to two hours each. 52 Her one-page medical report53 reads in part:

Patient came in accompanied by policemen and sister. He was fairly kempt in appearance, wearing
blue shirt and pants. Mesomorphic, dark complexion with earring on the left ear. Had flight of ideas,
with auditory hallucination, "kabastosan," "kanan yawa." He further said his sleep was "minanok" and
complained of occasional headache. He had no delusion. Judgment and insight fair. Fair impulse
control.

Comments:

From the foregoing interviews and examinations, it is determined that the patient has a psychiatric
disorder. It is most likely that the patient is psychotic before and during the commission of the crime.
He is presently psychotic and cannot stand trial. He would need treatment and monthly check-up.

We observe that Dr. Verona’s conclusions have no supporting medical bases or data. She failed to
demonstrate how she arrived at her conclusions. She failed to show her method of testing. 54 Further,
she did not have Anacito’s complete behavioral and psychiatric history. On the witness stand, she
mentioned that Anacito could not distinguish right from wrong, but she was not certain that he was
not conscious of killing his victims in 1998. She also declared that Anacito had a diagnostic case of
schizophrenia, but stated in the next breath that Anacito was not grossly insane. 55

Truly, there is nothing that can be discerned from Dr. Verona’s short psychiatric evaluation report
and her testimony that Anacito’s judgment and mental faculties were totally impaired as to warrant a
conclusion that his mental condition in 1998 when he killed his victims was the same in 2000 when
he was psychiatrically examined. The most that we can conclude is that her findings refer to the
period after the stabbing accident and, hence, would prove Anacito’s mental condition only for said
time. It could be that Anacito was insane at the time he was examined by Dr. Verona. But, in all
probability, insanity could have been contracted during the period of his detention pending trial. He
was without contact with friends and relatives most of the time. He was perhaps troubled by his
conscience, by the realization of the gravity of his offenses, or by the thought of a bleak future for
him. The confluence of these circumstances may have conspired to disrupt his mental equilibrium.

It must be stressed that an inquiry into the mental state of an accused should relate to the period
immediately before or at the precise moment of the commission of the act which is the subject of the
inquiry.56 His mental condition after that crucial period or during the trial is inconsequential for
purposes of determining his criminal liability.57

Interestingly, Anacito failed to raise insanity at the earliest opportunity. He invoked it for the first time
in the year 2000 and only after he had already testified on his defenses of alibi and denial. It has
been held that the invocation of denial and alibi as defenses indicates that the accused was in full
control of his mental faculties.58 Additionally, the trial judge observed that, during the hearings,
Anacito was attentive, well-behaved, and responsive to the questions propounded to him. Thus, the
shift in theory from denial and alibi to a plea of insanity, made apparently after the appellant realized
the futility of his earlier defenses, is a clear indication that insanity is a mere concoction 59 or an
afterthought.60 In any event, Anacito failed to establish by convincing evidence his alleged insanity at
the time he killed Demetrio Jr. and Allan Dacles. He is thus presumed sane, and we are constrained
to affirm his conviction.61

We likewise reject the alternative plea of Anacito that he be credited with the mitigating circumstance
of diminished willpower. In the cases where we credited this mitigating circumstance after rejecting a
plea of insanity, it was clear from the records that the accused had been suffering from a chronic
mental disease that affected his intelligence and willpower for quite a number of years prior to the
commission of the act he was being held for.62 The situation does not exist in the cases at bar. It was
only in 2000 that Anacito was diagnosed as "psychotic" with flight of ideas and auditory
hallucinations and was found to be schizophrenic. There is nothing on record that he had these
symptoms the previous years or at the time he stabbed the victim. Curiously, Dr. Verona did not
make a diagnosis of schizophrenia in her report, only at the witness stand.
We agree with the trial court that treachery cannot be appreciated as far as the killing of Allan is
concerned because the sole eyewitness did not see the commencement of the assault. 63 For
treachery to be considered, it must be present and seen by the witness right at the inception of the
attack. Where no particulars are known as to how the killing began, the perpetration with treachery
cannot be supposed.64

Treachery was correctly appreciated in the killing of Demetrio Jr. Anacito was lying in wait for his
victim in a dark place at the national highway. When Demetrio Jr. reached the "lover’s lane," Anacito
emerged from his hiding place and stabbed the former several times. Anacito’s attack came without
warning; it was deliberate and unexpected, affording the hapless, unarmed, and unsuspecting victim
no opportunity to resist or defend himself. 65

We do not find merit in appellant’s contention that he cannot be convicted of murder for the death of
Demetrio Jr. because treachery was not alleged with "specificity" as a qualifying circumstance in the
information. Such contention is belied by the information itself, which alleged: "All contrary to law,
and with the attendant qualifying circumstance of treachery." In any event, even after the recent
amendments to the Rules of Criminal Procedure, qualifying circumstances need not be preceded by
descriptive words such as qualifying or qualified by to properly qualify an offense. 66

We, therefore, sustain the penalty imposed by the trial court on Anacito. For the crime of murder,
which is punishable by reclusion perpetua to death, he was correctly sentenced to suffer reclusion
perpetua, the lower of the two indivisible penalties, since there was no other aggravating
circumstance attending the commission of the crime. For the crime of homicide, which is punishable
by reclusion temporal, he may be sentenced to an indeterminate penalty whose minimum is within
the range of prision mayor and whose maximum is within the range of reclusion temporal in its
medium period, there being no modifying circumstances.

Coming now to the matter of damages. While Demetrio Sr. testified that he spent ₱43,500 for the
wake and burial of his son, only ₱11,94567 is substantiated by receipts. Hence, in lieu of actual
damages we shall award to Demetrio Jr.’s heirs temperate damages 68 of ₱25,00069 conformably with
current jurisprudence.70

As to the burial expenses for Allan, his father Alfredo Dacles testified that he spent ₱10,000.
However, he failed to present receipts to substantiate his claim. Nevertheless, we also grant
temperate damages in the amount of ₱10,000 on the ground that it was reasonable to expect that
the family of the victim incurred expenses for the coffin, wake, and burial.

The award of civil indemnity of ₱50,000 for the respective heirs of Demetrio Jr. and Allan is affirmed
in line with recent jurisprudence. 71 Civil indemnity is mandatory and is granted to the heirs of the
victim without need of proof other than the commission of the crime. 72

Apart from the civil indemnity, we shall award in favor of the heirs of each victim moral damages in
the amount of ₱50,000 consistent with controlling case law. 73 Moral damages are awarded despite
the absence of proof of mental and emotional suffering of the victim’s heirs. As borne out by human
nature and experience, a violent death invariably and necessarily brings about emotional pain and
anguish on the part of the victim’s family.74

We shall also award in favor of the heirs of Demetrio Jr. exemplary damages in the amount of
₱25,000 in view of the presence of the qualifying aggravating circumstance of treachery. 75

Thus, Anacito shall indemnify the heirs of Demetrio Patrimonio, Jr., damages in the total amount of
₱161,945 and the heirs of Allan damages in the total amount of ₱110,000.
WHEREFORE, we AFFIRM, with modifications as to the damages, the Decision of the Regional
Trial Court of Catbalogan, Samar, Branch 29, finding appellant Anacito Opuran guilty of the crimes
of murder in Criminal Case No. 4693 and homicide in Criminal Case No. 4703, and sentencing him
to suffer reclusion perpetua and an indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum,
respectively. Apart from the ₱50,000 civil indemnity, he is ordered to pay (1) the heirs of Demetrio
Patrimonio, Jr., in the amounts of (a) ₱50,000 as moral damages; (b) ₱25,000 as temperate
damages; and (c) ₱25,000 as exemplary damages, or a total of ₱150,000; and (2) the heirs of Allan
Dacles in the amounts of (a) ₱50,000 as moral damages; and (b) ₱10,000 as temperate damages,
or a total of ₱110,000.

Costs de oficio.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 127818 November 11, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO NEPOMUCENO, JR., accused-appellant.

MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to
the decision dated November 20, 1996 of the Regional Trial Court of the National Capital
Judicial Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the

accused guilty beyond reasonable doubt of the crime of
parricide as defined and penalized under Article 246 of the
 Revised Penal Code as amended by Republic Act No. 7659 for
the death of Grace Nepomuceno and hereby sentences him to
suffer imprisonment of Forty (40) years of reclusion
perpetua and to pay the heirs of the deceased the sum of
P50,000.00 with costs against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court
declares the accused ineligible to inherit from his wife. The
entire estate should go to his son, Giordan Benitez
Nepomuceno.

(pp. 20-
21, Rol
lo.)

The information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines,

the said accused, did then and there willfully, unlawfully and
feloniously, with intent to kill and with treachery and evident
premeditation, attack, assault and use personal violence upon
the person of one GRACE NEPOMUCENO Y BENITEZ, his wife
with whom he was married in lawful wedlock, by then and there
shooting her with a gun of unknown caliber hitting her on the
left hip, thereby inflicting upon the said GRACE NEPOMUCENO
Y BENITEZ gunshot wound, which was necessarily fatal and
which was the direct and immediate cause of her death
thereafter.

(p. 5, Rollo.)

Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due
course. Thereafter, the trial court rendered the judgment of conviction now on appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival,
Forensic Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De
Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo
Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At
around 11 o'clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived
and went to their bedroom where Eden and her ward Giordan, the one-year old son of the
couple, were sleeping. She was awakened by the loud voices of the spouses who were
arguing. She saw accused-appellant get a gun from a drawer, so she went out of the room
because of fear. After a few moments and while was outside the room, she heard Grace
Nepomuceno say: "Sige patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a
gunshot. She was so scared that she went out of the house, reaching the door of the house
of Barangay Chairman Congen Leonardo which is 5 meters away. After ten minutes, she saw
accused-appellant coming out the room. He told her to get a taxi so he could bring the
wounded Grace to the hospital. She was left behind in their room to take care of baby
Giordan. She tried to call up Monserrat de Leon, the sister of Grace in Pasig to inform her of
the incident, but she could not get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).
Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division,
declared that she conducted paraffin examination on both hands of the victim and those of
accused-appellant. She found the victim's hands negative of nitrates, but found accused-
appellant's right hand positive thereof. She gave the opinion that in view of the absence of
nitrates on the hands of the victim, it is probable that she did not fire a gun and that accused-
appellant, being positive of nitrates, did really fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn,
July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico-Legal Officer of the NBI who conducted a second-post
mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that
the victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and
the small intestines and thereafter resting between the uterus and the sacrum of the victim.
He testified that taking into consideration the location of the wound, if the victim were in a
sitting or lying position, the trajectory of the slug was upward coming from right to left; and if
the victim were in a standing position, the muzzle of the gun should have pointed up. The
witness declared that the muzzle of the gun could not have been less that one foot from the
victim. He opined that grappling for possession of the gun was impossible because the
trajectory of the bullet was going upwards and there were no smudges or signs of close
firing. He believed that the victim could have survived if the surgeons had operated
immediately (tsn, July 23, 1996, pp. 15-30).

Monserrat de Leon, sister of the victim, declared that Grace would confide to her that
accused-appellant was jobless and that Grace had problems with the low income of the store
she owned at Zurbaran Mart as compared to her expenses. Accused-appellant would force
sex on Grace especially when he was drunk. Her sister had two miscarriages after their first
child and it was during one of these miscarriages that she saw accused-appellant carrying a
gun in the Mary Chiles Hospital where her sister was confined (tsn, August 12, 1996, pp. 3-
28).

Upon the other hand, the defense presented accused-appellant himself as its lone witness.
His story was quoted by the trial court thus:

Two days before the incident on May 2, 1994 Grace, the

deceased was very much worried about the check (sic) she
issued which was post dated May 2, 1994. She would have no
funds for the checks. She had been nagging him, displaying her
tantrums (nagdadabog) pestering him to do something to be
able to fund the checks.

In the noon time of May 1994, he left her spouse in their store
and went to his mother's house in San Andres Bukid, Manila.
This day was the day after the accused-appellant and his wife,
and in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and

pestering of his wife about his inability to produce money to be
able to fund the postdated checks (sic).

At about 11:00 P.M., after dropping at a friend's house, he

decided to go home, thinking his wife has already cooled off.
 When his wife opened the door, she greeted the husband: "You
left in the store and you room (roam) around, where you able to
find money." He replied, "where would I get money, do you
expect me to hold up people?" (tsn, October 5, 1994, p. 18)

They had some arguments and Eden Ontog went out of their
bedroom and the arguments continued. There was a point in the
argument when the wife told the accused thus: "Wala akong
silbi, bakit pa ako nag-asawa sa kanya."

Because of these continued pestering and nagging of his wife

he thought of separation. Perhaps it would be better if he should
end his life. He then took a gun from their child's drawer. He sat
on the bed holding that gun, engrossed in his thinking what to
do. The gun was pointed towards the floor of their room.

In that situation, his wife continued with his nagging and

pestering. He just remained silent.

And then Guillermo asked her wife: "How come you do not treat
me as a husband, why do you treat me like this."

It was at this point that Guillermo decided to end his life.

Perhaps seriously, perhaps just to scare his wife to stop all the
pestering and tantrums. Surely not only a few husbands would
thought (sic) as what that Guillermo was thinking then, he felt
desperate. He wanted to finish his life. (p. 24, TSN, October 5,
1994)

It was during that time that their son, Jordan woke up, walked to
the space between them (husband and wife) and Nepomuceno
block his son's way with his right knee. In the process, he
wanted to totally force Grace from taking possession and
control of the gun. He raised his arm holding the gun passing
over the left leg of Grace.

The gun went off.

(pp. 16-17, Roll

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS

ACCIDENTAL, AND THAT THE DECEASED WAS EXEMPT FROM
CRIMINAL LIABILITY.

II
 ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL
COURT ERRED IN NOT FINDING THE KILLING WAS RESULT OF
SIMPLE NEGLIGENCE.

III

THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF

THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT.

(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the
least intention of killing his wife. He urges the Court to consider the circumstances attendant
to the killing, which, according to him, negate all inferences and deductions, that he would
kill his wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the
intention of killing the deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual
human behavior, if her husband really intended to kill her. The deceased just uttered,
"Masakit Papa", she did not curse nor mouth evil and harsh language against accused-
appellant to show hatred and anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring
her to the hospital for immediate medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident
was not accidental?

Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of

the Revised Penal Code because, according to him, the incident occurred when he tried to
prevent his wife from killing herself, and he and his wife grappled for possession of the gun.

After a painstaking review of the evidence and record of this case, the Court finds itself
unable to reach conclusions identical to those put forward by accused-appellant.

First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12

of the Revised Penal Code in order to be exempted from criminal liability arising from the
death of his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The

following are exempt from criminal liability:

x x x           x x x          x x x

x x x           x x x          x x x

x x x           x x x          x x x

4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
At all events, accident to be exempting, presupposes that the act done is lawful. Here,
however, the act of accused-appellant of drawing a weapon in the course of a quarrel, the
same not being in self-defense, is unlawful — it at least constitutes light threats (Article 285,
par. 1, Revised Penal Code). There is thus no room for the invocation of accident as a ground
for exemption (People vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from his child's drawer was not even licensed or
registered in his name as shown by the Certification of the Firearms and Explosives Office of
the Philippine National Police, hence, he could have been charged with illegal possession of
a firearm.

Secondly, accused-appellant's claim that the shooting happened when he tried to prevent his
wife from killing herself and he and his wife grappled for the possession of the gun is belied
by the expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post
mortem examination on the cadaver of Grace Nepomuceno. He declared:

Q. Now, is it possible Doctor, considering the

location of the wound, the entrance wound and
the trajectory of the bullet upwards, would you
say Doctor, that both parties, I mean the victim
and the assailant were grappling for the
possession of said gun and it went off
accidentally, is that possible, Mr. Witness?

A. Well, I have to be convinced as to the grappling

between the victim and the assailant, because if
we were to be re-construct of the scenario that the
gun have been fired, the muzzle of the gun could
not have been closer than twelve (12) inches and
considering that the gun was held by a hand, it
farther places the assailant farther from the victim
and farther the victim is, from the assailant, then
the more impossible for the grappling for the gun.
(tsn, July 23, 1996, pp. 19-20).

Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when
the gun discharged, stated:

Q. Please tell the court your relative position and

the victim when the gun actually went off?

A. When I was in the act of trying to dispossess

Grace with that gun and I was trying to let my
right hand pass through my right side but
because Grace was struggling, the butt of the gun
hit a part of her upper leg and it exploded.

Q. So when the gun actually fired, you were

holding that gun, what part of your arm being held
by Grace?
 A. Witness pointing the upper forearm and the
lower portion of her upper arm.

(tsn,
Oct. 5,
1994,
p. 28.)

If Grace were holding the upper forearm and lower portion of the upper arm of accused-
appellant when the gun fired, then at least the hand of Grace that held the upper forearm of
appellant would have traces of nitrate considering its nearness to the exploding gun.
However, in the paraffin test conducted by the Forensic Chemistry Division of the National
Bureau of Investigation on Grace Nepomuceno's both hands, no traces of nitrates were
found; while accused-appellant's right hand was positive of nitrates. The absence of nitrates
on the victim's hands is convincing proof that she did not grapple with accused-appellant for
the possession of the gun. It also proves that she was shot at a distance.

The fact that the victim was not shot in the head, or in any vital part of her body does not
negate intent to kill. The Post Mortem Findings on the cadaver of Grace Nepomuceno by Dr.
Arizala shows that the bullet entered "the left thigh, lateral aspect, upper third . . . directed
slight forwards, slightly upwards and from left to right initially involving the skin and
subcutaneous tissue, then taking an intramascular route into the pelvic cavity thru the left
obturator foramen, partially transecting the left internal iliac artery and the small intestines
with the slug lodging just underneath the uterus in front of the sacrum where it was
recovered." The extent of the physical injury inflicted on Grace, as above proved, manifests
intention to extinguish life (People vs. Dawandawan, 184 SCRA 64 [1994]). Moreover, Dr.
Arizala likewise declared that the bullet injured a vital organ of the victim (tsn, July 23, 1996,
p. 9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh
language against accused-appellant does not, in any way, negate intent to kill. The utterance
of a victim made immediately after sustaining serious injuries may be considered as pure
emanations of the incident or the incident speaking through the victim (People vs. Morin, 241
SCRA 709; 710 [1995]). Thus, by the word "Papa", Grace was in effect, saying that it was
accused-appellant who shot her.

We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to
call a taxi in which he brought the wounded Grace to the hospital is "merely an indication or
act of repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo.).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him from

criminal liability. The law does not find unusual the voluntary surrender of criminal offenders;
it merely considers such act as a mitigating circumstance. Non-flight is not proof of
innocence (People vs. Quijada, 259 SCRA 191 [1996]).

Under the second assigned error, accused-appellant claims that even assuming that the
killing was not totally accidental, his acts would constitute only simple negligence. He
asserts that he had established that the gun went off while he was grappling with his wife for
its possession. He was preventing his wife from taking her own life. He might not have
exercised the necessary due care in wrestling for the gun that resulted in the injury of his
wife, but he could be charged only with parricide through simple negligence. So he says.
It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943); People vs.
Naquil, 43 Phil 232 [1922]). What qualities an act of reckless or simple negligence or
imprudence is the lack of malice or criminal intent in the execution thereof (United States vs.
Maleza, 14 Phil 468, 471 [1909]). Otherwise stated, in criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act done without
malice but with lack of foresight, or with carelessness or negligence, and which has harmed
society or an individual (People vs. Castillo, Jr. (275 SCRA 752 [1997]).

The argument of accused-appellant finds no support in the physical evidence. As already

discussed, it the version of grappling for the gun were to be believed, there should have been
nitrates on both hands of Grace. And if it was when accused-appellant placed the barrel of
the gun at the base of his head that Grace grabbed his hand holding the gun and in the
struggle for its possession his hand holding the gun was pushed down so that its butt hit the
upper leg of Grace causing it to fire, then the trajectory of the slug should be downwards,
through the upper thigh of Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr.
showed the bullet entered the left thigh of Grace directed slightly upwards and from left to
right, taking an intramascular route into the pelvic cavity, instead of a downward direction if
accused-appellant's version were to be believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lack
of powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered
her left thigh being slightly upwards and from left to right instead of downwards, repudiate
accused-appellant's claim of simple negligence. Physical evidence is mute but an eloquent
manifestation of truth and rates high in our hierarchy of trustworthy evidence (People vs.
Uycoqua, 246 SCRA 769 [1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument

that his guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These
elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3)
that the deceased was a legitimate ascendant or descendant, or the legitimate spouse of the
accused (Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 [1933]).

The first and third elements were stipulated during the pre-trial stage of the case, thus:

1. that the victim and the accused are legally married. Said civil
marriage took place on July 5, 1990;

x x x           x x x          x x x

5. that immediately after the shooting, the accused voluntarily

and bodily carried the victim into a taxicab and proceeded to
UERM Hospital where she died on the operating table." (Pre-Trial
Order of July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his
legally wedded wife.
In convicting accused-appellant, the trial court relied heavily on the testimony of the
prosecution witnesses. This Court finds no reason to do otherwise. It is a fundamental and
settled rule that the trial court's assessment in regard to the credibility of witnesses is
entitled to the highest degree of respect and will not be disturbed on appeal, as the trial court
was in a better position to examine real evidence as well as to observe the demeanor of the
witnesses (People vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162
[1993]; People vs. Vallena (244 SCRA 685 [1995]).

The Court agrees with the conclusions of the trial court as they are founded on the dictum
that evidence to be believed must not only proceed from the mouth of a credible witness, but
must be credible in itself — such as the common experience of mankind can approve as
probable under the circumstances. We have no test of the truth of human testimony, except
in conformity with our knowledge, observation, and experience. Whatever is repugnant to
these belongs to the miraculous and is outside of judicial cognizance (People vs. Escalante,
238 SCRA 554 [1994]).

Further, accused-appellant having admitted that he shot his wife, he has the burden of proof
of establishing the presence of any circumstance which may relieve him of responsibility,
and to prove justification he must rely on the strength of his own evidence and not on the
weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after
the accused has admitted the killing (People vs. Bautista, 254 SCRA 621 [1996]).
Unfortunately for accused-appellant, he has miserably failed to discharge this task.

The trial court correctly appreciated the voluntary surrender of accused-appellant as a

mitigating circumstance, this fact having been stipulated by the parties at the pre-trial stage
of this case (Pre-Trial Order, Stipulation No. 10, Record, p. 17).

The penalty for the crime of parricide is reclusion perpetua to death; however, there being
one mitigating circumstance but no aggravating circumstance, the lower of the two
indivisible penalties should be imposed. The penalty cannot be further reduced by one
degree as the Indeterminate Sentence Law does not find application, the penalties involved
being indivisible.

WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO

NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification
that his sentence shall be simply reclusion perpetua, not "imprisonment of Forty (40) Years
of reclusion perpetua" as stated by the trial court.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No 191726               February 06, 2013

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NOEL BARTOLOME y BAJO, Accused-Appellant.

DECISION

BERSAMIN, J.:

A buy-bust operation has been recognized in this jurisdiction as a legitimate form of entrapment of
the culprit. It is distinct from instigation, in that the accused who is otherwise not predisposed to
commit the crime is enticed or lured or talked into committing the crime. While entrapment is legal,
instigation is not.

This final appeal is taken by the accused from the decision promulgated on January 29, 20 I
0,1 whereby the Court of Appeals (CA) affirmed his conviction for illegal sale of methampethamine
hydrochloride or shabu in violation of Section 5, Article II of Republic Act No. 9165 (Comprehensive
Dangerous Drugs Act of 2002) handed down by the Regional Trial Court, Branch 120, in Caloocan
City (RTC) through its decision dated July 12, 20062

Antecedents

On August 13, 2003, the City Prosecutor’s Office of Caloocan City charged the accused with illegally
selling methamphetamine hydrochloride or shabu in violation of Section 5, Article II, of Republic Act
No. 9165 through the information reading thus:

That on or about the 10th day of August 2003 in Caloocan City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did
then and there willfully, unlawfully and feloniously sell and deliver to PO1 Borban Paras, who posed
as poseur buyer, one (1) heat sealed transparent plastic sachet containing 0.06 gram of
Methylamphetamine Hydrochloride (shabu), knowing the same to be dangerous drug.

Contrary to Law.3

After the accused pleaded not guilty, trial ensued.

The evidence for the State was as follows.

On August 10, 2003, at around 1:00 a.m., an informant went to the Anti-Illegal Drugs Special
Operations Unit (ADSOU) in Caloocan City to report the illicit drug dealings of the accused on
Reparo Street, Bagong Barrio, Caloocan City. Acting on the report, Police Inspector Cesar Cruz of
ADSOU immediately instructed some of his men to conduct a buy-bust operation against the
accused. During the pre-operation briefing, the buy-bust team designated PO1 Borban Paras as the
poseur-buyer. Paras was given a ₱100.00 bill that he marked with his initials BP. It was agreed that
the informant would drop a cigarette butt in front of the suspect to identify him to Paras; and that
Paras would scratch his head to signal to the buy-bust team that the transaction with the suspect
had been consummated. The operation was coordinated with the Philippine Drug Enforcement
Agency.

Upon arriving at the target area at around 2:00 a.m. of August 10, 2003, the team members
positioned themselves in the vicinity of a store. The informant then approached a person who was
standing in front of the store and dropped a cigarette butt in front of the person. Paras, then only two
meters away from the informant, saw the dropping of the cigarette butt. Paras went towards the
suspect and said to him: Pre pa-iskor nga. The suspect responded: Pre, piso na lang tong hawak
magkano ba kukunin mo? Paras replied: Ayos na yan, piso lang naman talaga ang kukunin ko, after
which he handed the marked ₱100.00 bill to the suspect, who in turn drew out a plastic sachet
containing white substances from his pocket and gave the sachet to Paras. With that, Paras
scratched his head to signal the consummation of the sale. As the other members of the team were
approaching, Paras grabbed the suspect. PO3 Rodrigo Antonio, another member of the team,
confiscated the marked ₱100.00 bill from the suspect, who was identified as Noel Bartolome y Bajo.
Paras immediately marked the sachet at the crime scene with Bartolome’s initials NBB.4

Insp. Cruz later requested in writing the PNP Crime Laboratory in Caloocan City to conduct a
laboratory examination of the contents of the plastic sachet seized from Bartolome. 5 PO2 Rolando
De Ocampo, another member of the buy-bust team, brought the request and the sachet and its
contents to the laboratory. In due course, Forensic Chemical Officer Jesse Abadilla Dela Rosa of the
PNP Crime Laboratory confirmed in Physical Science Report No. D-1038-03 that the plastic sachet
contained 0.06 gram of methamphetamine hydrocholoride or shabu, a dangerous drug.6

On his part, the accused claimed that the arresting officers had framed him up because they wanted
to extort a substantial amount from him in exchange for his release. The version of the accused
tended to show the following.

On August 9, 2003, at about 12:00 in the afternoon, the accused went to his brother’s house located
on Zapote Street, Bagong Barrio, Caloocan City, to take a rest from his work as a construction
worker. While he and his brother were watching the television show Eat Bulaga inside the house,
two policemen suddenly entered the house. One of the policemen, whom the accused later identified
as PO3 Antonio, frisked the accused but spared his brother because the latter was asthmatic. The
policemen then brought the accused to the police station and detained him. At the police station,
PO3 Antonio inquired from the accused if he was selling shabu, but the accused denied doing so. It
was then that PO3 Antonio demanded ₱20,000.00 from the accused in exchange for his freedom.
The accused refused to pay because he did not have the money. 7

Ruling of the RTC

As stated, the RTC convicted Bartolome of the crime charged, 8 to wit:

WHEREFORE, premises considered, the Court finds and so holds that accused NOEL
BARTOLOME Y BAJO is GUILTY beyond reasonable doubt for violation of Section 5, Article II,
Republic Act No. 9165 and imposes upon him the penalty of LIFE IMPRISONMENT and a fine of
Five Hundred Thousand Pesos (Php500,000.00).

The one (1) piece of heat-sealed transparent plastic sachet containing 0.06 gram of
Methylamphetamine Hydrochloride is hereby ordered confiscated in favor of the government to be
turned over to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.

SO ORDERED.

Ruling of the CA

On appeal, the accused assailed his conviction, stating:

ASSUMING THAT THE ACCUSED-APPELLANT PARTICIPATED IN THE SELLING OF

ILLEGAL DRUGS, THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM OF THE
CRIME CHARGED SINCE HE WAS MERELY INSTIGATED BY THE POLICE INTO DOING
IT.

II

THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE POLICE’S FAILURE
TO COMPLY WITH THE PROCEDURE IN THE CUSTODY OF SEIZED PROHIBITED AND
REGULATED DRUGS PRESCRIBED UNDER THE IMPLEMENTING RULES AND
REGULATION OF REPUBLIC ACT NO. 9165 WHICH CASTS SERIOUS DOUBT ON THE
IDENTITY OF THE SEIZED DRUG CONSTITUTING THE CORPUS DELICTI OF THE
OFFENSE.

The accused argued that the operation mounted against him was not an entrapment but an
instigation, contending that without the proposal and instigation made by poseur buyer Paras no
transaction would have transpired between them; that the police team did not show that its members
had conducted any prior surveillance of him; and that the Prosecution should have presented the
informant as a witness against him.

On January 29, 2010, the CA promulgated its assailed decision, 9 rejecting the assigned errors of the
accused, and affirmed his conviction. It held that the operation against him was not an instigation but
an entrapment, considering that the criminal intent to sell dangerous drugs had originated from him,
as borne out by the shabu being inside his pocket prior to the transaction with Paras; that the
accused did not show that Paras had any ill motive to falsely testify against him; that the conduct of
a prior surveillance and the presentation of the informant as a witness were not necessary to
establish the validity of the entrapment; and that the non-compliance by the buy-bust team with the
requirements under Section 21 of the Implementing Rules and Regulations for Republic Act No.
9165 (IRR) was not fatal because there was a justifiable ground for it, and because the
apprehending team properly preserved the integrity and evidentiary value of the confiscated drugs.

Hence, the accused is now before the Court in a final bid for acquittal.

Ruling

The appeal lacks merit.

To establish the crime of illegal sale of shabu, the Prosecution must prove beyond reasonable doubt
(a) the identity of the buyer and the seller, the identity of the object and the consideration of the sale;
and (b) the delivery of the thing sold and of the payment for the thing. The commission of the offense
of illegal sale of dangerous drugs, like shabu, requires simply the consummation of the selling
transaction, which happens at the moment the buyer receives the drug from the seller. In short, what
is material is the proof showing that the transaction or sale actually took place, coupled with the
presentation in court of the thing sold as evidence of the corpus delicti. If a police officer goes
through the operation as a buyer, the crime is consummated when the police officer makes an offer
to buy that is accepted by the accused, and there is an ensuing exchange between them involving
the delivery of the dangerous drugs to the police officer. 10

The concurrence of the foregoing elements was conclusively established herein.

To start with, Paras, as the poseur-buyer, testified that the accused sold to him shabu during the
buy-bust operation, to wit:

Q – So when the informant proceeded to the place of Noel Bartolome, what did the informant do?

A – After he threw cigarette in front of Noel Bartolome, I approached him.

xxxx

Q – What happened next?

A – When I approached the accused, I told him.

"Pre-paiskor nga" and he said

"Pre, piso na lang tong hawak ko

Magkano ba ang kukunin mo" and he said

"ayos nay an, piso lang naman talaga ang kukunin ko."

Q – Who handed first you or the accused?

A – I was the one who handed the buy bust money.

Q – After giving him the ₱100.00 pesos to Noel Bartolome where did he place it?
A – Then after that he placed it on his front pocket and then after that he got one (1) plastic sachet
from his left front pocket.

Q – And then after giving you the plastic sachet containing illegal drug, what did you do?

A – I scratched my head, sir.

Q – After scratching your head, what transpired if any?

A – When I saw my companions approaching me, I grabbed Noel Bartolome, sir. 11

Secondly, the transmission of the plastic sachet and its contents from the time of their seizure until
they were delivered to the PNP Crime Laboratory for chemical examination was properly
documented, starting with the marking of the plastic sachet at the crime scene by Paras. This was
followed by the preparation of the written request by Insp. Cruz at the ADSOU. PO2 De Ocampo
then personally brought the plastic sachet and its contents, together with the written request, to the
PNP Crime Laboratory, where the delivery of the request and of the sachet and its contents was
recorded by SPO1 Bugabuga of that office. In Physical Sciences Report No. D-1038-03, Chemist
Dela Rosa of the PNP Crime Laboratory ultimately certified that the contents of the plastic sachet
were examined and found to be 0.06 grams of methamphetamine hydrochloride or shabu, a
dangerous drug.12

And, thirdly, the Prosecution presented the shabu, the marked ₱100.00 bill, and Chemist Dela
Rosa’s Physical Sciences Report No. D-1038-03 at the trial. 13

On the other hand, the accused’s claim of being the victim of a vicious frame-up and extortion is
unworthy of serious consideration. The fact that frame-up and extortion could be easily concocted
renders such defenses hard to believe. Thus, although drug-related violators have commonly
tendered such defenses to fend off or refute valid prosecutions of their drug-related violations, the
Court has required that such defenses, to be credited at all, must be established with clear and
convincing evidence.14 But the accused did not adduce such evidence here, for all he put up were
self-serving denials. Had the version of the Defense been what really transpired, there was no
reason for the accused and his brother not to have formally charged the police officers with the
severely penalized offense of planting of evidence under Section 29 15 of Republic Act No. 9165 and
extortion. Thereby, the allegations of frame-up and extortion were rendered implausible.

Yet, the accused discredits the validity of his arrest by contending that the arrest resulted from an
instigation, not from a legitimate entrapment. He insists that the evidence of the Prosecution did not
show him to be then looking for buyers of shabu when Paras and the informant approached him;
that it was Paras who proposed to buy shabu from him; and that consequently Paras instigated him
to sell shabu. He submits that the transaction would not have transpired without the proposal and
instigation by Paras; that Paras initiated the commission of the crime by offering to him ₱100.00 for
the purchase of the shabu; and that he should be acquitted due to the absolutory cause of
instigation.16

The Court is not persuaded to side with the accused.

The trial judge and the CA agreed in their findings on the arrest of the accused being the result of a
legitimate entrapment procedure. Such findings were based on the credible testimonies of the
poseur buyer and other competent witnesses of the Prosecution. We concur with their findings.
Indeed, the trial judge’s assessment of the credibility of the witnesses is entitled to respect. This is
because of the trial judge’s unique opportunity to observe the demeanor of the witnesses as they
testified before him.17 The rule applies even more if, like here, the trial judge’s assessment was
affirmed by the CA upon review.18 This rule should be obeyed here.

Moreover, we find no glaring errors or misapprehension of facts committed by the RTC in not
according credence to the version of the accused and his brother. In this regard, it is significant that
the accused did not ascribe any ill motive to Paras that could have made the officer testify falsely
against him. Considering that the records were patently bereft of any indicium of ill motive or of any
distorted sense of duty on the part of the apprehending team, particularly Paras as the poseur buyer,
full credence was properly accorded to the Prosecution’s evidence incriminating the accused.
Without the clear and convincing indication of the lawmen’s ill motive and irregular performance of
duty, it is always good law to presume them to have performed their official duties in a regular
manner.19 That presumption became conclusive for lack of contravention.

To be clear, then, the insistence by the accused that he was entitled to the benefit of an absolutory
cause as the result of an instigation is unwarranted.

There is a definite distinction between instigation and entrapment. The Court highlighted the
distinction in People v. Bayani, 20 viz:

Instigation is the means by which the accused is lured into the commission of the offense charged in
order to prosecute him. On the other hand, entrapment is the employment of such ways and means
for the purpose of trapping or capturing a lawbreaker. Thus, in instigation, officers of the law or their
agents incite, induce, instigate or lure an accused into committing an offense which he or she would
otherwise not commit and has no intention of committing. But in entrapment, the criminal intent or
design to commit the offense charged originates in the mind of the accused, and law enforcement
officials merely facilitate the apprehension of the criminal by employing ruses and schemes; thus,
the accused cannot justify his or her conduct. In instigation, where law enforcers act as co-principals,
the accused will have to be acquitted. But entrapment cannot bar prosecution and conviction. As has
been said, instigation is a "trap for the unwary innocent," while entrapment is a "trap for the unwary
criminal."

As a general rule, a buy-bust operation, considered as a form of entrapment, is a valid means of

arresting violators of Republic Act No. 9165. It is an effective way of apprehending law offenders in
the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the
offender, without anybody inducing or prodding him to commit the offense.

A police officer’s act of soliciting drugs from the accused during a buy-bust operation, or what is
known as a "decoy solicitation," is not prohibited by law and does not render invalid the buy-bust
operations. The sale of contraband is a kind of offense habitually committed, and the solicitation
simply furnishes evidence of the criminal’s course of conduct. In People v. Sta. Maria, the Court
clarified that a "decoy solicitation" is not tantamount to inducement or instigation:

It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed
in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present and apparently assisting its
commission. Especially is this true in that class of cases where the office is one habitually
committed, and the solicitation merely furnishes evidence of a course of conduct.

As here, the solicitation of drugs from appellant by the informant utilized by the police merely
furnishes evidence of a course of conduct. The police received an intelligence report that appellant
has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a
drug transaction with appellant. There was no showing that the informant induced the appellant to
sell illegal drugs to him.

Conversely, the law deplores instigation or inducement, which occurs when the police or its agent
devises the idea of committing the crime and lures the accused into executing the offense.
Instigation absolves the accused of any guilt, given the spontaneous moral revulsion from using the
powers of government to beguile innocent but ductile persons into lapses that they might otherwise
resist.

People v. Doria enumerated the instances when this Court recognized instigation as a valid defense,
and an instance when it was not applicable:

In United States v. Phelps, we acquitted the accused from the offense of smoking opium after finding
that the government employee, a BIR personnel, actually induced him to commit the crime in order
to persecute him. Smith, the BIR agent, testified that Phelps’ apprehension came after he overheard
Phelps in a saloon say that he like smoking opium on some occasions. Smith’s testimony was
disregarded. We accorded significance to the fact that it was Smith who went to the accused three
times to convince him to look for an opium den where both of them could smoke this drug. The
conduct of the BIR agent was condemned as "most reprehensible." In People v. Abella, we acquitted
the accused of the crime of selling explosives after examining the testimony of the apprehending
police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a
very high one" causing the accused to sell the explosives. We found there was inducement, "direct,
persistent and effective" by the police officer and that outside of his testimony, there was no
evidence sufficient to convict the accused. In People v. Lua Chu and Uy Se Tieng, [W]e convicted
the accused after finding that there was no inducement on the part of the law enforcement officer.
We stated that the Customs secret serviceman smoothed the way for the introduction of opium from
Hong Kong to Cebu after the accused had already planned its importation and ordered said drug.
We ruled that the apprehending officer did not induce the accused to import opium but merely
entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to
better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.

In recent years, it has become common practice for law enforcement officers and agents to engage
in buy-bust operations and other entrapment procedures in apprehending drug offenders, which is
made difficult by the secrecy with which drug-related offenses are conducted and the many devices
and subterfuges employed by offenders to avoid detection. On the other hand, the Court has taken
judicial notice of the ugly reality that in cases involving illegal drugs, corrupt law enforcers have been
known to prey upon weak, hapless and innocent persons. The distinction between entrapment and
instigation has proven to be crucial. The balance needs to be struck between the individual rights
and the presumption of innocence on one hand, and ensuring the arrest of those engaged in the
illegal traffic of narcotics on the other.

Applying the foregoing, we declare that the accused was not arrested following an instigation for him
to commit the crime. Instead, he was caught in flagrante delicto during an entrapment through buy-
bust. In a buy-bust operation, the pusher sells the contraband to another posing as a buyer; once the
transaction is consummated, the pusher is validly arrested because he is committing or has just
committed a crime in the presence of the buyer. Here, Paras asked the accused if he could
buy shabu, and the latter, in turn, quickly transacted with the former, receiving the marked bill from
Paras and turning over the sachet of shabu he took from his pocket. The accused was shown to
have been ready to sell the shabu without much prodding from Paras. There is no question that the
idea to commit the crime originated from the mind of the accused.
The accused argues that the absence of a prior surveillance cast doubt on the veracity of the buy-
bust operation; and that the failure to present the informant as a witness against him, as well as the
buy-bust team’s failure to comply with the requirements under Section 21, Article II, of Republic Act
No.9165, were fatal to the cause of the Prosecution. 21

The argument of the accused lacks merit. We have held that prior surveillance is not necessary to
render a buy-bust operation legitimate, especially when the buy-bust team is accompanied to the
target area by the informant.22 That was what precisely happened here.

Similarly, the presentation of an informant as a witness is not regarded as indispensable to the

success of a prosecution of a drug-dealing accused. As a rule, the informant is not presented in
court for security reasons, in view of the need to protect the informant from the retaliation of the
culprit arrested through his efforts. Thereby, the confidentiality of the informant’s identity is protected
in deference to his invaluable services to law enforcement. 23 Only when the testimony of the
informant is considered absolutely essential in obtaining the conviction of the culprit should the need
to protect his security be disregarded. Here, however, the informant’s testimony as a witness against
the accused would only be corroborative of the sufficient testimony of Paras as the poseur-buyer;
hence, such testimony was unnecessary.24

We consider as unwarranted the contention of the accused about the non-compliance by the buy-
bust team with the requirements of the law for the proper seizure and custody of dangerous drugs.

The requirements are imposed by Section 21, paragraph 1, Article II of Republic Act No. 9165,
whose pertinent portion reads as follows:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof;

xxxx

To implement the requirements of Republic Act No. 9165, Section 21 (a), Article II of the IRR
relevantly states:

xxxx

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items;

xxxx

It is notable that pursuant to the IRR, supra, the non-observance of the requirements may be
excused if there is a justification, provided the integrity of the seized items as evidence is "properly
preserved by the apprehending officer/team."

Although it appears that the buy-bust team did not literally observe all the requirements, like
photographing the confiscated drugs in the presence of the accused, of a representative from the
media and from the Department of Justice, and of any elected public official who should be required
to sign the copies of the inventory and be given a copy of it, whatever justification the members of
the buy-bust team had to render in order to explain their non-observance of all the requirements
would remain unrevealed because the accused did not assail such non-compliance during the trial.
He raised the matter for the first time only in the CA. As such, the Court cannot now dwell on the
matter because to do so would be against the tenets of fair play and equity. That is what the Court
said in People v. Sta. Maria, 25 to wit:

The law excuses non-compliance under justifiable grounds.  However, whatever justifiable grounds
1âwphi1

may excuse the police officers involved in the buy-bust operation in this case from complying with
Section 21 will remain unknown, because appellant did not question during trial the safekeeping of
the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of
Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time
on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the
safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence
cannot be raised for the first time on appeal; when a party desires the court to reject the evidence
offered, he must so state in the form of objection. Without such objection, he cannot raise the
question for the first time on appeal.

We point out that the non-adherence to Section 21, Article II of Republic Act No. 9165 was not a
serious flaw that would make the arrest of the accused illegal or that would render the shabu subject
of the sale by him inadmissible as evidence against him. What was crucial was the proper
preservation of the integrity and the evidentiary value of the seized shabu, inasmuch as that would
be significant in the determination of the guilt or innocence of the accused. 26

The State showed here that the chain of custody of the shabu was firm and unbroken. The buy-bust
team properly preserved the integrity of the shabu as evidence from the time of its seizure to the
time of its presentation in court. Immediately upon the arrest of the accused, Paras marked the
plastic sachet containing the shabu with the accused’s initials of NBB. Thereafter, Paras brought the
sachet and the contents to the ADSOU,27 where his superior officer, Insp. Cruz, prepared and signed
the request for the laboratory examination of the contents of the marked sachet. 28 P02 De Ocampo
handcarried the request and the evidence to the PNP Crime Laboratory. 29 SPO 1 Bugabuga of that
office recorded the delivery of the request and the marked sachet, which were all received by
Chemist Dela Rosa.30 In turn, Chemist Dela Rosa examined the contents of the marked sachet, and
executed Physical Sciences Report No. D-1 03 8-03 confirming that the marked sachet contained
0.06 gram of shabu.31 In this regard, the accused did not deny that Paras and Chemist Dela Rosa
affirmed the sequence of custody of the shabu during the trial.32
The CA and the RTC correctly imposed life imprisonment and fine of ₱500,000.00. Section 5, Article
II of Republic Act No. 9165 states that the penalty for the illegal sale of dangerous drugs,
like shabu, regardless of the quantity and purity, shall be life imprisonment to death and a fine
ranging from ₱500,000.00 to P 10,000,000.00. 33

WHEREFORE, we AFFIRM the decision promulgated by the Court of Appeals on January 29, 2010;
and ORDER the accused to pay the costs of suit.

SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 211465               December 3, 2014

PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,

vs.
SHIRLEY A. CASIO, Accused-appellant.

DECISION

LEONEN, J.:

"Chicks mo dong?" 1

With this sadly familiar question being used on the streets of many of our cities, the fate of many
desperate women is sealed and their futures vanquished. This case resulted in the rescue of two
minors from this pernicious practice. Hopefully, there will be more rescues. Trafficking in persons is
a deplorable crime. It is committed even though the minor knew about or consented to the act of
trafficking.

This case involves Republic Act No. 9208,  otherwise known as the "Anti-Trafficking in Persons Act
2

of 2003."3

Accused Shirley A. Casio was charged for the violation of Republic Act No. 9208, Section 4(a),
qualified by Section 6(a). The information against accused, dated May 5, 2008, states:

That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate
intent, with intent to gain, did then and there hire and/or recruit AAA, a minor, 17 years old and BBB
for the purpose of prostitution and sexual exploitation, by acting as their procurer for different
customers, for money, profit or any other consideration, in Violation of Sec. 4, Par. (a), Qualified by
Sec. 6, Par. (a), of R.A. 9208 (Qualified Trafficking in Persons).

CONTRARY TO LAW. 4

The facts, as found by the trial court and the Court of Appeals, are as follows:

On May 2, 2008, International Justice Mission (IJM),  a nongovernmental organization, coordinated

5

with the police in order to entrap persons engaged in human trafficking in Cebu City. 6

Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar, PO1 Albert Luardo, and
PO1 Roy Carlo Veloso composed the team of police operatives.  PO1 Luardo and PO1 Veloso were
7

designated as decoys, pretending to be tour guides looking for girls to entertain their guests.  IJM
8

provided them with marked money, which was recorded in the police blotter. 9

The team went to Queensland Motel and rented Rooms 24 and 25. These rooms were adjacent to
each other. Room 24 was designated for the transaction while Room 25 was for the rest of the police
team.10

PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Barangay Kamagayan, Cebu
City’s red light district. Accused noticed them and called their attention by saying "Chicks mo dong?"
(Do you like girls, guys?).11

During trial, PO1 Luardo and PO1 Veloso testified that their conversation with accused went as
follows:

Accused: Chicks mo dong?(Do you like girls, guys?)

PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi guests naghulat sa motel. (Are they
new? They must be young because we have guests waiting at the motel.)

Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get them.) 12

At that point, PO1 Luardo sent a text message to PSI Ylanan that they found a prospective subject. 13

After a few minutes, accused returned with AAA and BBB, private complainants in this
case.  Accused: Kining duha kauyon mo ani? (Are you satisfied with these two?)
14

PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well, are they good in sex?)  Accused 15

gave the assurance that the girls were good in sex. PO1 Luardo inquired how much their
serviceswould cost. Accused replied, "Tag kinientos" (₱500.00). 16

PO1 Veloso and PO1 Luardo convinced accused to come with them to Queensland Motel. Upon
proceeding toRoom 24, PO1 Veloso handed the marked money to accused. 17

As accused counted the money, PO1 Veloso gave PSI Ylanan a missed call. This was their pre-
arranged signal. The rest of the team proceeded to Room 24, arrested accused, and informed her of
her constitutional rights. The police confiscated the marked money from accused.  Meanwhile, AAA
18
and BBB "were brought to Room 25 and placed in the custody of the representatives from the IJM
and the DSWD." 19

During trial, AAA testified that she was born on January 27, 1991. This statement was supported by
a copy of her certificate of live birth.20

AAA narrated that in 2007, she worked as a house helper in Mandaue City. In March 2008 she
stopped working as a house helper and transferred to Cebu City. She stayed with her cousin, but
she subsequently moved to a boarding house. It was there where she met her friend, Gee Ann. AAA
knew that Gee Ann worked in a disco club. When Gee Ann found out that AAA was no longer a
virgin, she offered AAA work. AAA agreed because she needed the money in order to helpher
father. AAA recalled that she had sex with her first customer. She was paid ₱200.00 and given an
additional ₱500.00 as tip. For the first few weeks, Gee Ann provided customers for AAA. Eventually,
Gee Ann brought her to Barangay Kamagayan, telling her that there were more customers in that
area.21

AAA stated that she knew accused was a pimp because AAA would usually see her pimping girls to
customers in Barangay Kamagayan.  AAA further testified that on May 2, 2008, accused solicited
22

her services for a customer. That was the first time that she was pimped by accused.  Accused
23

brought her, BBB, and a certain Jocelyn to Queensland Motel. 24

AAA testified that Jocelyn stayed inthe taxi, while she and BBB went to Room 24. It was in Room 24
where the customer paid Shirley. The police rushed in and toldAAA and BBB to go to the other
room. AAA was then met by the Department of Social Welfare and Development personnel who
informed her that she was rescued and not arrested. 25

AAA described that her job as a prostitute required her to display herself, along with other girls,
between 7 p.m. to 8 p.m. She received ₱400.00 for every customer who selected her. 26

The prosecution also presented the police operatives during trial. PSI Ylanan, SPO1 Mendaros, and
SPO1 Altubar testified that after PO1 Veloso had made the missed call to PSI Ylanan, they "rushed
to Room 24 and arrested the accused."  SPO1 Altubar retrieved the marked money worth ₱1,000.00
27

from accused’s right hand "and upon instruction from PCINSP Ylanan recorded the same at the
‘police blotter prior operation’. . . ."
28

The trial court noted that AAA requested assistance from the IJM "in conducting the operation
against the accused." 29

Version of the accused

In defense, accused testified thatshe worked as a laundry woman. On the evening of May 2, 2008,
she went out to buy supper. While walking, she was stopped by two men on board a blue car. The
two men asked her if she knew someone named Bingbing. She replied that she only knew Gingging
but not Bingbing. The men informed her that they were actually looking for Gingging, gave her a
piece of paper witha number written on it, and told her to tell Gingging to bring companions. When
accused arrived home, she contacted Gingging. Gingging convinced her to come because allegedly,
she would be given money by the two males.  Ruling of the trial court
30

The Regional Trial Court, Branch 14 in Cebu City found accused guilty beyond reasonable doubt
and held  that:
31
Accused had consummated the act of trafficking of person[s] . . . as defined under paragraph (a),
Section 3 of R.A. 9208 for the purpose of letting her engage in prostitution asdefined under
paragraph [c] of the same Section; the act of "sexual intercourse" need not have been consummated
for the mere "transaction" i.e. the ‘solicitation’ for sex and the handing over of the "bust money" of
Php1,000.00 already consummated the said act.

....

WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY beyond reasonable doubt of
trafficking in persons under paragraph (a), Section 4 as qualified under paragraph (a), Section 6 of
R.A. 9208 and sentenced to suffer imprisonment of TWENTY (20) YEARS and to pay a fine of ONE
MILLION (Php1,000,000.00).

Finally, accused is ordered to pay the costs of these proceedings.

SO ORDERED[.] 32

Ruling of the Court of Appeals

The Court of Appeals affirmed the findings of the trial court but modified the fine and awarded moral
damages. The dispositive portion of the decision  reads:
33

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby DENIED. The
assailed Decision dated 10 August 2010 promulgated by the Regional Trial Court, Branch 14 in
Cebu City in Crim. Case No. CBU-83122 is AFFIRMED WITH MODIFICATIONS. The accused-
appellant is accordingly sentenced to suffer the penalty of life imprisonment and a fine of
Php2,000,000 and is ordered to pay each of the private complainants Php150,000 as moral
damages.

SO ORDERED. 34

Accused filed a notice of appeal  on August 28, 2013, which the Court of Appeals noted and
35

gavedue course in its resolution  dated January 6, 2014. The case records of CA-G.R. CEB-CR No.
36

01490 were received by this court on March 17, 2014. 37

In the resolution  dated April 29, 2014, this court resolved to notify the parties that they may file their
38

respective supplemental briefs within 30 days from notice. This court also required the
Superintendent of the Correctional Institution for Women to confirm the confinement of accused. 39

Counsel for accused  and the Office of the Solicitor General  filed their respective manifestations,
40 41

stating that they would no longer file supplemental briefs considering that all issues had been
discussed in the appellant’s brief and appellee’s brief filed before the Court of Appeals. Through a
letter  dated June 17, 2014, Superintendent IV Rachel D. Ruelo confirmed accused’s confinement at
42

the Correctional Institution for Women since October 27, 2010.

The sole issue raised by accused iswhether the prosecution was able to prove her guilt beyond
reasonable doubt.

However, based on the arguments raised in accused’s brief, the sole issue may be dissected into
the following:
 (1) Whether the entrapment operation conducted by the police was valid, considering that
there was no prior surveillance and the police did not know the subject of the operation;
43

(2) Whether the prosecution was able to prove accused’s guilt beyond reasonable doubt
even though there was no evidence presented to show that accused has a history of
engaging in human trafficking;  and
44

(3) Whether accused was properly convicted of trafficking in persons, considering that AAA
admitted that she works as a prostitute. 45

Arguments of accused

Accused argues that there was no valid entrapment. Instead, she was instigated into committing the
crime.  The police did not conduct prior surveillance and did not evenknow who their subject
46

was.  Neither did the police know the identities of the alleged victims.
47

Accused further argues that under the subjective test, she should be acquitted because the
prosecution did notpresent evidence that would prove she had a history of engaging in human
trafficking or any other offense. She denied being a pimp and asserted that she was a laundry
woman.  In addition, AAA admitted that she worked as a prostitute. Thus, it was her decision to
48

display herself to solicit customers. 49

Arguments of the plaintiff-appellee

The Office of the Solicitor General, counsel for plaintiff-appellee People of the Philippines, argued
that the trial court did not err in convicting accused because witnesses positively identified her as the
person who solicited customers and received money for AAA and BBB.  Entrapment operations are
50

valid and have been recognized by courts.  Likewise, her arrest in flagrante delicto is valid.  Hence,
51 52

the trial court was correct in stating that accused had "fully consummated the act of trafficking of
persons. . ." 53

We affirm accused Shirley A. Casio’s conviction.

I.

Background of Republic Act No. 9208

The United Nations Convention against Transnational Organized Crime (UN CTOC) was "adopted
and opened for signature, ratification and accession"  on November 15, 2000. The UN CTOC is
54

supplemented by three protocols: (1) the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children; (2) the Protocol against the Smuggling of Migrants by
Land, Sea and Air; and, (3) the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, their Parts and Components and Ammunition. 55

On December 14, 2000, the Philippines signed the United Nations "Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children" (Trafficking Protocol).  This was
56

ratified by the Philippine Senate on September 30, 2001.  The Trafficking Protocol’s entry into force
57

was on December 25, 2003. 58

In the Trafficking Protocol, human trafficking is defined as:

Article 3 Use of terms For the purposes of this Protocol:

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery, servitude or the removal of
organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in
subparagraph (a) of this article shall be irrelevant where any of the means set forth in
subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose
of exploitation shall be considered "trafficking in persons" even if this does not involve any of
the means set forth in subparagraph (a) of this article;

(d) "Child" shall mean any person under eighteen years of age.

Senator Loren Legarda, in her sponsorship speech, stated that the "Anti-Trafficking Act will serve as
the enabling law of the country’s commitment to [the] protocol." 59

Senator Luisa Ejercito Estrada also delivered a sponsorship speech and described trafficking in
persons as follows:

Trafficking in human beings, if only to emphasize the gravity of its hideousness, is tantamount to
modern-day slavery at work. It is a manifestation of one of the most flagrant forms of violence
against human beings. Its victims suffer the brunt of this insidious form of violence. It is exploitation,
coercion, deception, abduction, rape, physical, mental and other forms of abuse, prostitution, forced
labor, and indentured servitude.

....

As of this time, we have signed the following: the Convention on the Elimination of all Forms of
Discrimination Against Women; the 1995 Convention on the Rights of the Child; the United Nations
Convention on the Protection of Migrant Workers and their Families; and the United Nations’
Resolution on Trafficking in Women and Girls, among others.

Moreover, we have also expressed our support for the United Nations’ Convention Against
Organized Crime, including the Trafficking Protocol in October last year.

At first glance, it appears thatwe are very responsive to the problem. So it seems.

Despite these international agreements, we have yet to come up with a law that shall squarely
address human trafficking. 60

During the interpellation of Republic Act No. 9208, then numbered as Senate Bill No. 2444, Senator
Teresa Aquino-Oreta asked if there was a necessity for an anti-trafficking law when other laws exist
that cover trafficking.
61
Senator Luisa Ejercito Estrada explained:

At present, Mr. President, the relevant laws to the trafficking issue are the Revised Penal Code,
Republic Act No. 8042 or the Migrant Workers and Overseas Filipino Act, R[epublic] A[ct] No. 6955
or the Mail-Order Bride Act, and Republic Act No. 8239 or the Philippine Passport Act. These laws
address issues such as illegal recruitment, prostitution, falsification of public documents and the
mail-order bride scheme. These laws do not respond to the issue of recruiting, harboring or
transporting persons resulting in prostitution, forced labor, slavery and slavery-like practices. They
only address to one or some elements of trafficking independent of their results or
consequence.  (Emphasis supplied)
62

Thus, Republic Act No. 9208 was enacted in order to fully address the issue of human trafficking.
Republic Act No. 9208 was passed on May 12, 2003, and approved on May 26, 2003.

II.

Elements of trafficking in persons

The elements of trafficking inpersons can be derived from its definition under Section 3(a) of
Republic Act No. 9208, thus:

(1) The actof "recruitment, transportation, transfer or harbouring, or receipt of persons with or
without the victim’s consent or knowledge, within or across national borders."

(2) The means used which include "threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the
consent of a person having control over another; and

(3) The purpose of trafficking is exploitation which includes "exploitation or the prostitution of
others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs." 63

On January 28, 2013,Republic Act No. 10364  was approved, otherwise known as the "Expanded
64

Anti-Trafficking in Persons Act of 2012." Section 3(a) of Republic Act No. 9208 was amended by
Republic Act No. 10364 as follows:

SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to read as follows:

"SEC. 3. Definition of Terms. – As used in this Act:

"(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring, providing, offering,
transportation, transfer, maintaining, harboring, or receipt of persons with or without the victim’s
consent or knowledge, within or across national borders by means of threat, or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of
the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person for the purpose of exploitation which
includes at a minimum, the exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.
"The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of
exploitation or when the adoption is induced by any form of consideration for exploitative purposes
shall also be considered as ‘trafficking in persons’ even if it does not involve any of the means set
forth in the preceding paragraph. (Emphasis supplied)

Under Republic Act No. 10364, the elements of trafficking in persons have been expanded to include
the following acts:

(1) The act of "recruitment, obtaining, hiring, providing, offering, transportation, transfer,
maintaining, harboring, or receipt of persons with or without the victim’s consent or
knowledge, within or across national borders;"

(2) The means used include "by means of threat, or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person"

(3) The purpose of trafficking includes "the exploitation or the prostitution of others or other
forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or
sale of organs" (Emphasis supplied)

The Court of Appeals found thatAAA and BBB were recruited by accused when their services were
peddled to the police who acted as decoys.  AAA was a child at the time that accused peddled her
65

services.  AAA also stated that she agreed to work as a prostitute because she needed
66

money.  Accused took advantage of AAA’s vulnerability as a child and as one who need money, as
67

proven by the testimonies of the witnesses. 68

III.

Knowledge or consent of the minor is not a defense under Republic Act No. 9208.

Accused claims that AAA admitted engaging in prostitution even before May 2, 2008. She concludes
that AAA was predisposed to having sex with "customers" for money.  For liability under our law, this
69

argument is irrelevant. As defined under Section 3(a) of Republic Act No. 9208, trafficking in persons
can still becommitted even if the victim gives consent.

SEC. 3. Definition of Terms.— As used in this Act:

a. Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or

receipt of persons with or without the victim's consent or knowledge, within or across national
borders by means of threat or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking advantage of the vulnerability of the
persons, or, the giving or receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of exploitation which includes ata
minimum, the exploitation or the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery, servitude or the removal or sale of organs.

The recruitment transportation, transfer, harboring or receipt of a child for the purpose of exploitation
shall also be considered as "trafficking in persons" even if it does not involve any of the means set
forth in the preceding paragraph.  (Emphasis supplied)
70
The victim’s consent is rendered meaningless due to the coercive, abusive, or deceptive means
employed by perpetrators of human trafficking.  Even without the use of coercive, abusive, or
71

deceptive means, a minor’s consent is not given outof his or her own free will.

Section 4 of Republic Act No. 9208 enumerates the different acts of trafficking in persons. Accused
was charged under Section 4(a), which states:

SEC. 4. Acts of Trafficking in Persons.— It shall be unlawful for any person, natural or judicial, to
commit any of the following acts.

a. To recruit, transport, transfer, harbor, provide, or receive a person by any means,

including those done under the pretext of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced
labor, slavery, involuntary servitude or debt bondage; 72

Republic Act No. 9208 further enumerates the instances when the crime of trafficking in persons is
qualified.

SEC. 6. Qualified Trafficking in Persons.— The following are considered as qualified trafficking: a.
When the trafficked person is a child;

b. When the adoption is effected through Republic Act No. 8043, otherwise known as the
"Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution,
pornography, sexual exploitation,forced labor, slavery, involuntary servitude or debt
bondage;

c. When the crime is committed by a syndicate, or in large scale. Trafficking is deemed

committed by a syndicate if carried out by a group of three (3) or more persons conspiring or
confederating with one another. It is deemed committed in large scale if committed against
three (3) or more persons, individually or as a group;

d. When the offender is an ascendant, parent, sibling, guardian or a person who exercise
authority over the trafficked person or when the offense is committed by a public officer or
employee;

e. When the trafficked person is recruited to engage in prostitution with any member of the
military or law enforcement agencies;

f. When the offender is a member of the military or law enforcement agencies; and

g. When by reason or on occasion of the act of trafficking in persons, the offended party dies,
becomes insane, suffers mutilation or is afflicted with Human Immunod eficiency Virus (HIV)
or the Acquired Immune Deficiency Syndrome (AIDS). (Emphasis supplied) 73

Section 3 (b) of Republic Act No. 9208 defines "child" as:

SEC. 3. Definition of Terms.— As used in this Act:

....
b. Child- refers to a person below eighteen (18) years of age or one who is over eighteen (18) but
isunable to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or condition. 74

Based on the definition of trafficking in persons and the enumeration of acts of trafficking in persons,
accused performed all the elements in the commission of the offense when she peddled AAA and
BBB and offered their services to decoys PO1 Veloso and PO1 Luardo in exchange for money. The
offense was also qualified because the trafficked persons were minors.

Here, AAA testified as to how accused solicited her services for the customers waiting at
Queensland Motel. AAA also testified that she was only 17 years old when accused peddled her.
Her certificate of live birth was presented as evidence to show that she was born on January 27,
1991.

The prosecution was able to prove beyond reasonable doubt that accused committed the offense of
trafficking in persons, qualified by the fact that one of the victims was a child. As held by the trial
court:

[T]he act of "sexual intercourse" need not have been consummated for the mere "transaction" i.e.
that ‘solicitation’ for sex and the handing over of the "bust money" of Php.1,000.00 already
consummated the said act. 75

IV.

Validity of the entrapment operation

In People v. Doria,  this court discussed the objective test and the subjective test to determine
76

whether there was a valid entrapment operation:

. . . American federal courts and a majority of state courts use the "subjective" or "origin of intent"
test laid down in Sorrells v. United States to determine whether entrapment actually occurred. The
focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of
mind and inclination before his initial exposure to government agents. All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his eagerness in committing the
crime, his reputation, etc., are considered to assess his state of mind before the crime. The
predisposition test emphasizes the accused's propensity to commit the offense rather than the
officer's misconduct and reflects an attempt to draw a line between a "trap for the unwary innocent
and the trap for the unwary criminal." If the accused was found to have been ready and willing to
commit the offense at any favorable opportunity, the entrapment defense will fail even if a police
agent usedan unduly persuasive inducement.

Some states, however, have adopted the "objective" test. . . . Here, the court considers the nature of
the police activity involved and the propriety of police conduct. The inquiry is focused on the
inducements used by government agents, on police conduct, not on the accused and his
predisposition to commit the crime.For the goal of the defense is to deter unlawful police conduct.
The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to commit the offense; for
purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to
commit a crime that is presented by the simple opportunity to act unlawfully. (Emphasis supplied,
citations omitted)77
Accused argued that in our jurisprudence, courts usually apply the objective test in determining the
whether there was an entrapment operation or an instigation.  However, the use of the objective test
78

should not preclude courts from also applying the subjective test. She pointed out that:

Applying the "subjective"test it is worth invoking that accusedappellant procures income from being a
laundry woman. The prosecution had not shown any proof evidencing accused-appellant’s history in
human trafficking or engagement in any offense. She is not even familiar to the team who had has
[sic] been apprehending human traffickers for quite some time.  (Citations omitted)
79

Accused further argued that the police should have conducted a prior surveillance before the
entrapment operation.

Time and again, this court has discussed the difference between entrapment and instigation. In
Chang v. People,  this court explained that:
80

There is entrapment when law officers employ ruses and schemes to ensure the apprehension of
the criminal while in the actual commission of the crime. There is instigation when the accused is
induced to commit the crime. The difference in the nature of the two lies in the origin of the criminal
intent. In entrapment, the mens reaoriginates from the mind of the criminal. The idea and the resolve
to commit the crime comes from him. In instigation, the law officer conceives the commission of the
crime and suggests to the accused who adopts the idea and carries it into execution. 81

Accused contends that using the subjective test, she was clearly instigated by the police to commit
the offense. She denied being a pimp and claimed that she earned her living as a laundrywoman.
On this argument, we agree with the finding of the Court of Appeals:

[I]t was the accused-appellant who commenced the transaction with PO1 Luardo and PO1 Veloso by
calling their attention on whether they wanted girls for that evening, and when the officers
responded, it was the accused-appellant who told them to wait while she would fetch the girls for
their perusal.
82

This shows that accused was predisposed to commit the offense because she initiated the
transaction. As testified by PO1 Veloso and PO1 Luardo, accused called out their attention by
saying "Chicks mo dong?" If accused had no predisposition to commit the offense, then she most
likely would not have asked PO1 Veloso and PO1 Luardo if they wanted girls.

The entrapment would still be valid using the objective test. The police merely proceeded to D.
Jakosalem Street in Barangay Kamagayan. It was accused who asked them whether they wanted
girls. There was no illicit inducement on the part of the police for the accused to commit the crime.

When accused was arrested, she was informed of her constitutional rights.  The marked money
83

retrieved from her was recorded in the police blotter prior to the entrapment operation and was
presented in court as evidence. 84

On accused’s alibi thatshe was merely out to buy her supper that night, the Court of Appeals noted
that accused never presented Gingging in court. Thus, her alibi was unsubstantiated and cannot be
given credence. 85

With regard to the lack of prior surveillance, prior surveillance is not a condition for an entrapment
operation’s validity.  In People v. Padua  this court underscored the value of flexibility in police
86 87

operations:
A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation, the
conduct of which has no rigid or textbook method. Flexibility is a trait of good police work. However
the police carry out its entrapment operations, for as long as the rights of the accused have not been
violated in the process, the courts will not pass on the wisdom thereof. The police officers may
decide that time is of the essence and dispense with the need for prior surveillance.  (Citations
88

omitted)

This flexibility is even more important in cases involving trafficking of persons. The urgency of
rescuing the victims may at times require immediate but deliberate action on the part of the law
enforcers.

V.

Imposition of fine and award of damages

The Court of Appeals properly imposed the amount of 2,000,000.00. Section 10 (b) of Republic Act
No. 9208 provides that:

SEC. 10. Penalties and Sanctions.— The following penalties and sanctions are hereby established
for the offenses enumerated in this Act:

....

c. Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life
imprisonment and a fine of not less than Two million pesos (₱2,000,000.00) but not more than Five
million pesos (₱5,000,000.00);

However, we modify by raising the award of moral damages from ₱150,000.00  to ₱500,000.00. We
89

also award exemplary damages in the amount of ₱100,000.00. These amounts are in accordance
with the ruling in People v. Lalli  where this court held that:
90

The payment of ₱500,000 as moral damages and ₱100,000 as exemplary damages for the crime of
Trafficking in Persons as a Prostitute finds basis in Article 2219 of the Civil Code, which states:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

 (8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

....

The criminal case of Trafficking in Persons as a Prostitute is an analogous case to the crimes of
seduction, abduction, rape, or other lascivious acts. In fact, it is worse. To be trafficked as a
prostitute without one’s consent and to be sexually violated four to five times a day by different
strangers is horrendous and atrocious. There is no doubt that Lolita experienced physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, and
social humiliation when she was trafficked as a prostitute in Malaysia. Since the crime of Trafficking
in Persons was aggravated, being committed by a syndicate, the award of exemplary damages is
likewise justified.
91

Human trafficking indicts the society that tolerates the kind of poverty and its accompanying
desperation that compels our women to endure indignities. It reflects the weaknesses of that society
even as it convicts those who deviantly thrive in such hopelessness. We should continue to strive for
the best of our world, where our choices of human intimacies are real choices, and not the last resort
taken just to survive. Human intimacies enhance our best and closest relationships. It serves as a
foundation for two human beings to face life’s joys and challenges while continually growing together
with many shared experiences. The quality of our human relationships defines the world that we
create also for others.

Regardless of the willingness of AAA and BBB, therefore, to be trafficked, we affirm the text and
spirit of our laws. Minors should spend their adolescence moulding their character in environments
free of the vilest motives and the worse of other human beings. The evidence and the law compel us
to affirm the conviction of accused in this case.

But this is not all that we have done. By fulfilling our duties, we also express the hope that our
people and our government unite against everything inhuman. We contribute to a commitment to
finally stamp out slavery and human trafficking.

There are more AAA's and BBBs out there. They, too, deserve to be rescued. They, too, need to be
shown that in spite of what their lives have been, there is still much good in our world.

WHEREFORE, premises considered, we AFFIRM the decision of the Court of Appeals dated June
27, 2013, finding accused Shirley A. Casio guilty beyond reasonable doubt of violating Section 4(a),
qualified by Section 6(a) of Republic Act No. 9208, and sentencing her to suffer the penalty of life
imprisonment and a fine of ₱2,000,000.00, with the MODIFICATION that accused-appellant shall not
be eligible for parole under Act No. 4103 (Indeterminate Sentence Law) in accordance with Section
3 of Republic Act No. 9346. 92

The award of damages is likewise MODIFIED as follows:

Accused is ordered to pay each of the private complainants:

(1) ₱500,000.00 as moral damages; and

 (2) ₱100,000.00 as exemplary damages.

SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 157201               September 14, 2007

NEMROD GOTIS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

In order to determine the sufficiency of a provocation for the purpose of mitigating a crime, one must
look into the act constituting the provocation, the social standing of the person provoked, and the
place and time when the provocation is made.1 In the present case, a finding that the act of the
victim did not constitute unlawful aggression does not automatically negate the attendant
circumstance of sufficient provocation.

The Case

This Petition for Review on Certiorari2 under Rule 45 seeks the annulment of the August 30, 2002
Decision3 and February 12, 2003 Resolution4 of the Court of Appeals (CA) in CA-G.R. CR No. 22536
entitled People of the Philippines v. Nemrod Gotis. The assailed Decision affirmed the October 29,
1997 Decision5 of the Irosin, Sorsogon Regional Trial Court (RTC), Branch 55, convicting petitioner
Nemrod of the crime of homicide. The assailed Resolution denied petitioner’s Motion for
Reconsideration.

The Facts
On October 21, 1990, at around six o’clock in the evening, petitioner, Nemrod Gotis, and his brother,
Nahom, arrived at Eddie Bautista’s coconut plantation in Barangay Bonga, Bulan, Sorsogon looking
for Serafin Gotis. Serafin’s wife, Carmen, and daughter, Nilda, were then at the plantation. Petitioner
and Nahom, who were both armed with bolos, angrily approached Carmen and Nilda and asked
them where Serafin was. Not being able to find Serafin, Nahom pointed his bolo at Nilda and said,
"We will kill your father!"6

After petitioner and Nahom had left, Carmen and Nilda went to the house of Adolfo Malinao to wait
for Serafin. When Serafin arrived, Carmen told him what had happened at the plantation and
prevented him from going home. Serafin, however, disregarded Carmen’s warning and insisted on
going home.7

On their way home, Serafin and his family had to pass by Nahom’s house. Upon reaching the gate
of Nahom’s house, Serafin called for Nahom and asked him to come out. When Nahom heard the
shouts of Serafin, he immediately called petitioner for help. Petitioner came over and advised Serafin
to go home, but he refused to leave. Instead, Serafin attempted to hack petitioner and tried to enter
the gate of Nahom’s house.8 Thereafter, Nahom struck Serafin on the head with a bolo. 9 Meanwhile,
petitioner entered his brother’s house to look for a bolo. 10

After being hit, Serafin ran away. Petitioner, however, pursued him, and hit him several times on the
back and arm.11 Carmen, who was then following Serafin, saw the incident and cried for help.
Serafin’s brother, Jose, responded, but before he could extend any help, petitioner poked a
Batangas knife on his neck. Jose, however, was able to parry the blow with his arm. Thereafter,
petitioner ran away.12

Serafin was brought to a hospital in Irosin, Sorsogon, but he eventually died during treatment.

On January 16, 1991, the following Information was submitted before the trial court:

That on or about the 21st day of October, 1990 at about [seven] o’clock in the evening at Barangay
Bonga, Municipality of Bulan, Province of Sorsogon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, armed with bolos and with intent to kill, did then and there, willfully, unlawfully and
feloniously, with treachery and evident premeditation, attack, assault and hack one Serafin Gotis in
the different parts of his body which caused his instantaneous death, to the damage and prejudice of
his legal heirs.13

Petitioner admitted having killed Serafin. He, however, interposed the justifying circumstance of self-
defense. He claimed that he hit Serafin merely to defend himself against the latter’s attack.

After trial, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, the Court renders judgment in Crim. Case No. 676 finding the accused Nahom Gotis
and Nemrod Gotis guilty beyond reasonable doubt of the crime of Homicide as defined in Article
249, of the Revised Penal Code. With respect to Nahom Gotis[,] the mitigating circumstance of
incomplete self-defense and defense of relative should be appreciated in his favor. Applying the
provisions of Article 69 of the Revised Penal Code[,] the court hereby sentences the accused
Nahom Gotis to suffer imprisonment of an indeterminate [s]entence of six (6) months of arresto
mayor maximum as the minimum to six (6) years of prision correccional maximum as the maximum.
The accused Nemrod Gotis is to be credited the mitigating circumstances of sufficient provocation
and voluntary surrender and applying the provisions of Article 64 (5) of the Revised Penal Code[,]
the said accused is to suffer imprisonment for an [i]ndeterminate [s]entence of [f]our (4) years [and]
two (2) months of prision correccional medium as the minimum to [t]en (10) years of prision mayor
medium as the maximum. The accused Nahom Gotis shall jointly and severally indemnify the heirs
of Serafin Gotis the amount of P50,000.00 and to pay the cost.

xxxx

SO ORDERED.14

Nahom applied for probation which was granted by the trial court. Petitioner, on the other hand,
appealed to the CA.

The Ruling of the Court of Appeals

The appellate court held that petitioner failed to satisfactorily prove the elements of self-defense.
Particularly, the CA held that unlawful aggression did not exist at the time that petitioner attacked the
victim. It observed that the unlawful aggression against petitioner’s life had already ceased when
petitioner went inside his brother’s house and the victim ran away. Thus, "[petitioner’s] coming out of
the house with a bolo is indicative of a determination to kill Serafin Gotis and not merely to defend
himself."15

However, the CA ruled that petitioner is not entitled to the mitigating circumstance of sufficient
provocation because "this circumstance is anchored on [petitioner’s] plea for self-defense which
stands discredited by the trial court x x x."16

Also, on the award of damages, the CA granted actual damages in the amount of PhP 3,000,
observing that "expenses for the embalmment of the deceased x x x [were] duly documented by a
receipt."17

The fallo of the August 30, 2002 Decision of the CA reads:

WHEREFORE, the Decision finding [petitioner] Nemrod Gotis guilty of Homicide is AFFIRMED with
the modification that he is hereby sentenced to suffer a prison term of eight (8) years of prision
mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum
and to pay the heirs of Serafin Gotis the amount of P3,000.00 as actual damages in addition to the
P50,000.00 [as] civil indemnity awarded by the trial court.18

Hence, we have this petition.

The Issue

Whether or not the Honorable Court of Appeals gravely erred in affirming with modification the
Decision of the Regional Trial Court disregarding petitioner’s plea of self-defense. 19

The Court’s Ruling

The petition is partly meritorious.

Factual Questions Not Reviewable

The present petition was brought under Rule 45 of the Rules of Court. It is a settled doctrine that
petitions of this nature should only raise questions of law. 20 Moreover, the general rule is that
questions of fact are not reviewable, subject only to certain exceptions as when the judgment is not
supported by sufficient evidence or is premised on a misapprehension of facts. 21

In the present case, petitioner maintains that the CA failed to appreciate that he had acted in self-
defense, and thus, he should not be held liable for Serafin’s death. However, petitioner failed to
show that the CA’s findings of fact should be disregarded. The factual findings are borne out by the
records and are supported by substantial evidence.

Article 11(1) of the Revised Penal Code provides the elements of self-defense as a justifying
circumstance, thus:

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

First. Unlawful Aggression;

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

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

Unlawful aggression by the victim is a primordial element of self-defense; without it, there can be no
self-defense, complete or incomplete. 22 To be appreciated, the unlawful aggression must be a
continuing circumstance or must have been existing at the time the defense is made. 23 A person
making a defense has no more right to attack an aggressor when the unlawful aggression has
ceased.24 In this case, the trial and appellate courts correctly held that while Serafin initially attacked
petitioner with a bolo, the unlawful aggression already ceased when the latter was able to go inside
his brother’s house and the former ran away. At this point, there was no longer any danger on his
life; thus, there was also no necessity to "defend" himself by pursuing and attacking Serafin.

Sufficient Provocation as a Mitigating Circumstance

The trial court appreciated the mitigating circumstance of sufficient provocation. However, the
appellate court reversed the trial court’s ruling explaining that sufficient provocation is not compatible
with the finding that petitioner did not act in self-defense. By faulting petitioner for inflicting injuries on
the victim after the latter had run away, the CA likened sufficient provocation with unlawful
aggression. The CA erred.

As an element of self-defense, unlawful aggression presupposes an actual, sudden, and unexpected

attack, or imminent danger of the attack, from the victim. 25 On the other hand, as a mitigating
circumstance, sufficient provocation is any unjust or improper conduct or act of the victim adequate
enough to excite a person to commit a wrong, which is accordingly proportionate in
gravity.26 Notably, while an act cannot be considered an unlawful aggression for the purpose of self-
defense, the same act can be considered as sufficient provocation for the purpose of mitigating the
crime.

In Pepito v. CA,27 the victim, before the killing, had challenged the accused’s family with a bolo and
an "indian pana." After this attack, the victim went home. The accused thereafter grabbed a bolo,
pursued the victim, and killed him. The Court did not consider the victim’s act as an unlawful
aggression for the purpose of self-defense. However, such was considered a provocation sufficient
to mitigate the crime. People v. Ubaldo28 had likewise disregarded the violent act of the victim before
the shooting incident as an unlawful aggression, but appreciated it as a mitigating circumstance of
sufficient provocation.

Moreover, the retaliation of the accused in Romero v. People, 29 although not considered an unlawful
aggression, was nevertheless deemed as sufficient provocation. The Court explained, "Thrusting his
bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house are, in our view,
sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking, more so when
the lives of his wife and children are in danger." 30

In the present case, petitioner was merely pacifying Serafin when the latter suddenly attempted to
hack the former. Although petitioner evaded the attack, Serafin’s act was enough provocation to
anger petitioner and cause him to strike back.

Thus, we find that sufficient provocation attended the crime. The prison term imposed by the trial
court in its October 29, 1997 Decision is hereby REINSTATED. 1âwphi1

WHEREFORE, the petition is PARTIALLY GRANTED. The August 30, 2002 Decision in CA-G.R.
CR No. 22536 is AFFIRMED with modification on the penalty, as follows:

Petitioner is hereby found guilty of Homicide, and sentenced to suffer an indeterminate prison term
of four (4) years and two (2) months of prisión correccional as minimum to ten (10) years of prisión
mayor as maximum, and to pay the heirs of Serafin Gotis PhP 50,000 as indemnity for his death and
PhP 3,000 as actual damages.

No pronouncement as to costs.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 155094             January 30, 2007

MANUEL O. ORIENTE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court are the Decision1 dated February 14, 2002 of the Court of Appeals (CA)
which affirmed the Decision of the Regional Trial Court of Quezon City, Branch 103 (RTC), dated
November 15, 1999, in Criminal Case No. 96-65313, finding Manuel Oriente (petitioner) guilty of the
crime of Homicide; and the CA Resolution 2 dated September 9, 2002 which denied petitioner’s
Motion for Reconsideration.

An Information dated March 18, 1996 was filed with the RTC charging the petitioner with the crime of
Murder, committed as follows:

That on or about the 16th day of March 1996, in Quezon City, Philippines, the said accused
conspiring, confederating with three other persons whose true names and whereabouts have not as
yet been ascertained and mutually helping one another, with intent to kill, qualified by evident
premeditation and treachery, taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and employ personal violence upon the person of one
ROMULO CARIÑO Y VALLO by then and there hitting him with a lead pipe on the different parts of
his body thereby inflicting upon him serious and mortal wounds which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.3

Upon arraignment, petitioner pleaded not guilty to the crime charged. Thereafter, trial on the merits
ensued.

The evidence presented by the parties, as summarized by the CA, are as follows:

The prosecution’s version of the case is as follows:

On 16 March 1996, at around 10:00 o’clock in the evening, Arnel Tanael was on his way to the
house of Romulo Cariño y Vallo at No. 40 Lukban Street, Area 9, Luzon Avenue, Brgy. Pasong
Tamo, Tandang Sora, Quezon City. He passed in front of the house of [petitioner] Manuel Oriente
and saw the latter and his companions having a drinking spree at the terrace of the [petitioner’s]
house. He arrived at Romulo’s house where the latter was drinking beer alone. Thereafter, Romulo
went out of the house to buy cigarette. While watching television in the house of Romulo, Arnel
Tanael heard two gunshots. Hence, he rushed outside the house to check on what the gunshots
were all about.

Peeping through potted plants (about 3 feet high) perched on top of a neighbor’s fence (about 2 feet
high), and at a distance of more or less eight (8) meters, he saw Romulo Cariño, [petitioner] Manuel
Oriente, the latter’s daughter Marilou Lopez and the latter’s husband, Paul Lopez and one Rogelio
Gascon arguing along the alley beside the concrete fence in front of Manuel Oriente’s house where
there was a lighted fluorescent light. He heard Paul Lopez telling Romulo Cariño, "Ikaw Cariño, and
liit-liit mo, and yabang mo!" Then Arnel Tanael saw Marilou coming out from their house with a lead
pipe and handed it over to Paul. Paul then hit Romulo with a lead pipe at his right arm. Accused-
appellant got the lead pipe from Paul and hit Romulo on his left eyebrow. Romulo reeled and fell
down. Upon seeing Romulo fall down, Arnel got confused, hence, he went back inside the house
and switched off the light and turned the television off. He went outside again and saw Romulo
moaning. At this point, Paul Lopez was already poking a gun at Romulo, then pulled the trigger twice
but the gun did not fire. Arnel then shouted, "Putang ina ninyo, bakit niyo ginagawa iyan sa bayaw
ko, bakit ninyo ginaganito siya, ano ba ang kasalanan niya sa inyo." Oriente and his company did
not say anything. Arnel carried Romulo and brought the latter inside the house. He called up Mario
at the Panabuilt Transport office to get a cab. When the cab arrived, Romulo Cariño was brought by
Arnel to the East Avenue Medical Center where Romulo, two hours after, passed away.

Dr. Roberto Garcia, the NBI Medico-Legal Officer who conducted the post-mortem examination on
the victim’s cadaver declared that the cause of death of Romulo Cariño was traumatic head injury.
He opined that even with immediate and adequate medical attendance, the victim would not have
survived due to the extensive nature of hemorrhage suffered by Romulo.

In an attempt to exculpate [the petitioner], the defense gave the following version:

On the night of the commission of the crime, [petitioner] Manuel Oriente was fetched by Tanod
members in their area to attend a wake. It was already the Tanods’ off-duty. While he was on his
way out of the house, he saw spouses Paul and Malou and his granddaughter inside the car going
out of the garage. The three went to visit Malou’s in-laws.
At the gate of his house, while having a conversation with the Tanod members who fetched him,
they heard two gunshots coming from downhill. They noticed that the person who fired the shots was
walking towards them. They waited for him to pass by. This person was Romulo Cariño. When the
latter reached a store, which is a fence away from Oriente’s house, the latter asked Romulo what
was his problem. Suddenly, Cariño extended his arms and poked [his] gun to Oriente and his
companions. Romulo told them not to get near him or he will shoot and kill all of them. Surprised by
the victim’s response and for fear of being shot, [petitioner] Oriente stepped back towards his yard
and was able to take hold of a piece of wood and hit Romulo. [Petitioner] Oriente mentioned that he
does not know if he hit Cariño’s hands, eyebrow and other parts of his body with that single blow but
he saw Romulo Cariño lose his balance, fall and hit his head on the ground. The victim was still
holding the gun. After five seconds, Romulo Cariño stood up and ran (pasuray-suray) towards the
direction of his house. Fearing that Cariño will shoot them if they would go after him, [petitioner]
Oriente told the Tanods that they will just attend to him the following day. [Petitioner] Oriente further
testified that he had no intention of killing Cariño and that his purpose was only to disarm him. 4

The RTC rendered a Decision dated November 4, 1999 convicting the petitioner of the crime of
Homicide. The dispositive portion of the Decision states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE Y ORILLO
GUILTY beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized
by the Revised Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave
a wrong and sufficient provocation and so he is hereby sentenced to suffer a jail term of Six (6)
Months of Arresto Mayor as minimum and Four Years and One (1) Day of Prision Correctional as
maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the
victim Romulo Carino y Orillo the sum of P41,500.00 as actual damages and P50,000.00 as
indemnification damages.

Costs against the accused.

SO ORDERED.5

However, on November 12, 1999, before the foregoing judgment became final and executory, the
RTC issued an Order motu proprio setting aside the said judgment because of a mistake in the
"judgment proper" and requiring both petitioner and his counsel to appear before the court on
November 17, 1999.6

On the latter date, the RTC promulgated its second Decision dated November 15, 1999, the
dispositive portion of which states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE y Orillo
GUILTY beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized
by the Revised Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave
a wrong and sufficient provocation and so, applying Article 64, paragraph 5, of the Revised Penal
Code and also the Indeterminate Sentence Law, [the] accused is hereby sentenced to suffer an
indeterminate jail term of Four (4) Years, Two (2) Months and One (1) Day of Prision Correccional as
minimum and Eight (8) Years and One (1) Day of Prision Mayor as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the
victim Romulo Cariño y Vallo the sum of P41,500.00 as actual damages and P50,000.00 as
indemnification damages.
Costs against the accused.

SO ORDERED.7 (Emphasis supplied)

The RTC found that the testimonies of the defense witnesses, including the petitioner, are incredible;
that the victim suffered extensive head injuries; that the defense failed to show any imminent threat
or danger to the life of the accused; that the accused has in his favor the mitigating circumstance of
lack of intent to commit so grave a wrong under Article 4 of the Revised Penal Code; that there was
sufficient provocation on the part of the victim since the incident was preceded by an intense
argument, and, therefore, the provocation qualifies as another mitigating circumstance in favor of the
petitioner; that treachery is not present since there was an altercation immediately preceding the
incident; that the prosecution failed to prove the elements of evident premeditation; that there is no
clear showing that the accused took advantage of superior strength; and, finally, that the prosecution
duly proved actual damages amounting to P38,500.00 for the funeral services and P3,000.00 for the
cemetery lot and religious services, while the other expenses were not supported by evidence.

The petitioner appealed to the CA. On February 14, 2002, the CA rendered its Decision, the
dispositive portion of which states:

WHEREFORE, in view of the foregoing, the decision dated 4 November 1999 rendered by the trial
court is hereby AFFIRMED with MODIFICATION that the penalty imposed is an indeterminate prison
term of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and
one (1) day of reclusion temporal as maximum, and to indemnify the heirs of the deceased
Romulo Cariño y Vallo in the amount of Fifty Thousand (P50,000.00) Pesos.

SO ORDERED.8 (Emphasis supplied)

The CA held that there is no cogent reason to depart from the findings of the RTC convicting the
petitioner; that, at most, the inconsistencies of prosecution witness Arnel Tanael refer to minor
details only, which tend to strengthen, rather than weaken, his credibility, and, moreover, prove that
his testimony was unrehearsed; that, all in all, the testimonies of the prosecution witnesses are
highly credible; that the evaluation of the testimonies of the eyewitnesses by the RTC should be
accorded great weight and respect; that the testimony of Tanael on the injuries inflicted on the victim
is supported by the findings of the NBI medico-legal officer as stated in the post mortem report; that
the detailed testimony of a witness in homicide cases acquires greater weight and credibility if it
corresponds with the autopsy report; that the mere fact that the judge who penned the decision was
not the same judge who heard the testimonies of the witnesses does not ipso facto render the
decision erroneous, more so when the judgment appears to be fully supported by the evidence on
record; that the alleged act of the victim poking the gun at the petitioner and his companions does
not constitute unlawful aggression, an essential requirement for self-defense, since the mere aiming
of the gun and threat to kill merely constitute a threat or intimidating attitude which does not amount
to an actual and unexpected attack or imminent danger thereof; and that the accused did not resist
but went peacefully with the police authorities when the latter invited the petitioner to the station
does not amount to voluntary surrender.

Finding that the RTC erred in finding that two mitigating circumstances were present, namely, lack of
intent to commit so grave a wrong and sufficient provocation or threat on the part of the offended
party immediately preceding the act, the CA modified the penalty imposed by the RTC. According to
the CA, the extensive nature of the injuries as stated in the post-mortem findings negates the
contention of the petitioner that he had no intention of killing the victim because his purpose was
only to disarm him; and the provocation, if any, done by the victim was not immediate to the act of
petitioner’s beating the victim, since a certain Paul Lopez had already previously assaulted the
victim, and, moreover, there was a sufficient interval of time between the provocation of the offended
party and the commission of the crime by the petitioner.

Hence, herein petition for review raising the following assignment of errors:

A.

THE HON. COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT THAT THE ACCUSED IS GUILTY OF HOMICIDE ALTHOUGH IT WAS OBVIOUS
THAT THE LOWER COURT FOUND OUT THAT THERE WAS NO INTENT ON THE PART OF
THE PETITIONER TO COMMIT SAID CRIME AND THERE WAS NO PROVOCATION AT ALL ON
HIS PART;

B.

THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT BELOW ERRED IN NOT
APPRECIATING THAT THERE WAS AN UNLAWFUL AGGRESSION ON THE PART OF THE
VICTIM, AND THE MEANS EMPLOYED BY PETITIONER TO PREVENT THE SAME WAS
REASONABLE AND FALLS UNDER THE JUSTIFYING CIRCUMSTANCES OR SELF-DEFENSE;

C.

THE HON. COURT OF APPEALS AND THE LOWER COURT GRAVELY ERRED IN GIVING
CREDENCE TO THE TESTIMONY OF THE LONE ALLEGED EYE WITNESS, WHEN SAID
TESTIMONY HAS FULL OF INCONSISTENCIES; AND

D.

THE HON. COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION

TANTAMOUNT TO LACK OF JURISDICTION WHEN IT MODIFIED THE DECISION OF THE
REGIONAL TRIAL COURT, INCREASING THE PENALTY THEREOF WITHOUT ANY
DISCUSSION OR EXPLANATION IN THE DECISION ITSELF WHY SAID MODIFICATION OF
PENALTY IS NECESSARY AND IN ACCORDANCE WITH LAW.

The Court affirms the conviction of the petitioner except as to damages and the penalty imposed.

The petitioner emphasizes that the victim, allegedly a troublemaker in the vicinity, was drunk, fired
his gun twice, and then proceeded towards the petitioner and his companions. Petitioner argues that
the victim’s act of poking the gun at him constitutes unlawful aggression sufficient to warrant his
claim of self-defense.

The Court is not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing
was legally justified. Having owned the killing of the victim, the accused should be able to prove to
the satisfaction of the Court the elements of self-defense in order to avail of this extenuating
circumstance. He must discharge this burden by clear and convincing evidence. When successful,
an otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of
the accused.
Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the
offender, (2) reasonable necessity of the means employed to prevent or repel that unlawful
aggression, and (3) lack of sufficient provocation on the part of the person defending himself. All
these conditions must concur.9 There can be no self-defense, whether complete or incomplete,
unless the victim had committed unlawful aggression against the person who resorted to self-
defense.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and
unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or
intimidating attitude – but most importantly, at the time the defensive action was taken against the
aggressor.11 To invoke self-defense successfully, there must have been an unlawful and unprovoked
attack that endangered the life of the accused, who was then forced to inflict severe wounds upon
the assailant by employing reasonable means to resist the attack. 12

The petitioner’s plea of self-defense contradicts common knowledge and experience. No better test
has yet been found to measure the value of a witness’ testimony than its conformity to the
knowledge of mankind.13

The Court agrees with the findings of the RTC which are supported by the evidence on record:

The testimonies of the defense witnesses, including the accused, that Cariño threatened the persons
gathered in front of Oriente’s house with a gun is quite difficult to believe in view of the admissions of
the same defense witnesses, including the accused, that Cariño was able to get up from the ground
after being hit and ran away with gun in hand. A person who was already threatening to kill with a
gun and who was then hit with a piece of wood in a serious manner, can be reasonably expected to
make use thereof. Here, the defense makes a rather unusual claim that Cariño simply ran away and
did not use the gun he was holding while running.

The testimony of Arnel Tanael that Cariño did not run away but he got him at the place where he fell
in the alley beside Oriente’s house appears more credible and reasonable than that of the defense.

Moreover, considering the extensive injuries suffered by Cariño – several contusions on the face and
head fractures – it is doubtful that a person in that condition, aggravated by what the defense
claimed to be Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a
handgun while running.

In his testimony, the accused stated that Cariño walked towards him and his companions saying:
"Don’t come near me. I will shoot all of you. I will kill all of you." In the first place, why will Cariño utter
such statements when there was no evidence by the defense that the accused and/or any of his
companions at that time – 10:00 in the evening of March 16, 1996 – and place – in front of the house
of the accused at Brgy. Pasong Tamo, Q.C. – were in the act of arresting Cariño. In the second
place, the alleged statement of Cariño: "Don’t come near me," shows that there were then persons
in the act of going near him. In the third place, if indeed as claimed, Cariño was poking his gun with
both arms extended at Oriente and his Tanod-companions, it is quite difficult to appreciate how he
could not have seen the person in the act of hitting him right across his face and, as he allegedly
threatened, how he could not have shot that person too[,] instinctive self-defense[,] instead of
running away with gun in hand.14

Not that the RTC is alone. The CA, too, aptly observed:

x x x We find the testimony of [defense] witnesses highly incredible. Their version is that Cariño,
after he was hit with the lead pipe, fell on the ground still holding a gun. Thereafter, he just stood up
and ran away. It is surprising, however, why these Tanod members including accused-appellant did
not wrestle for the gun when they had all the opportunities to do so when Cariño fell down, if there
was indeed a threat to their life and limb. And letting an armed man go would not be the normal
reaction of persons in charge of peace and order in the community, especially if the armed man had
previously threatened to shoot them. The only logical conclusion is that Cariño was not a threat to
them and to their community, for as accused-appellant testified, "they will just deal with him the
following day."15

Noteworthy is the testimony of NBI Medico-Legal Officer, Dr. Roberto Garcia, on his findings from
his post-mortem examination of the cadaver of the victim that the cause of death was traumatic head
injury, viz:

1. abrasion, right forearm;

2. contused-abrasion, left temple;

3. lacerated wounds above the left eyebrow; over the left eyebrow;

4. hematomas orbital, left. Scalp frontal region, left side;

5. fractures, skull

6. hemorrhages: extensive

7. visceral organs, congested. 16

On cross-examination, Dr. Garcia opined that even with immediate and adequate medical
attendance, the victim would not have survived considering the extensive nature of the hemorrhages
found.17 As the RTC held:

[C]onsidering the extensive injuries suffered by the victim – several contusions on the face and head
fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed to
be Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun
while running.18

Thus, the defense failed to establish the existence of the gun being pointed at petitioner to constitute
unlawful aggression on the part of the victim.

While petitioner avers that the testimony of Arnel Tanael is burdened with improbabilities and
inconsistencies, after having owned the crime, however, the burden of proof is reversed and,
therefore, he cannot simply protest that the evidence of the prosecution is weak. It then becomes
incumbent upon petitioner to rely on the strength of his own evidence and not on the weakness of
the evidence of the prosecution, for even if the latter were weak, it could not be disbelieved after he
had admitted the killing. Hence, if the accused fails to discharge the burden of proof, his conviction
must ensue as a matter of consequence. 19

The petitioner insists that the CA erred in modifying the RTC’s decision by increasing the penalty
imposed upon him. It is settled that in a criminal case, an appeal throws the whole case
open for review, and it becomes the duty of the appellate court to correct such errors as may be
found in the judgment appealed from, whether they are made the subject of assignment of errors or
not,20 including the propriety of the imposable penalty.21

There is also no point in considering petitioner’s argument that the RTC promulgated two decisions
and, by doing so, he was placed in double jeopardy.

Courts have the inherent power to amend their decisions to make them conformable to law and
justice. This prerogative, however, is not absolute. The rules do not contemplate amendments that
are substantial in nature.22 They merely cover formal changes or such that will not affect the crux of
the decision, like the correction of typographical or clerical errors. Courts will violate due process if
they make substantial amendments in their decisions without affording the other party the right to
contest the new evidence presented in a motion for reconsideration. 23 The Court finds that the
change in the penalty by the RTC in the instant case did not involve the consideration of any new
evidence but a mere "correction" of the penalty imposed to conform with the Revised Penal Code
and The Indeterminate Sentence Law.

And as the Solicitor General correctly noted, the trial court modified the penalty in its Decision dated
November 15, 1999 before the petitioner could perfect his appeal from the first Decision dated
November 4, 1999 which was promulgated on November 10, 1999. Noteworthy is that it was the
RTC’s second Decision dated November 15, 1999 which the petitioner elevated on appeal to the
CA. It is well settled that when an accused appeals from the sentence of the trial court, he waives
the constitutional safeguard against double jeopardy, and, as discussed above, throws the whole
case open to the review of the appellate court, which is then called to render judgment as the law
and justice dictate, whether favorable or unfavorable, and whether they are made the subject of
assigned errors or not. This precept should be borne in mind by every lawyer of an accused who
unwittingly takes the risk involved when he decides to appeal his sentence. 24

As to the mitigating circumstances, the CA is correct in finding that the RTC erred in appreciating in
favor of the petitioner the mitigating circumstances of lack of intent to commit so grave a wrong and
sufficient provocation on the part of the victim, Romulo Cariño.

On the first circumstance, the RTC held:

According to the accused, he did not intend to kill Cariño. In turn, Cariño did not die immediately
from his wounds as he still lived for around two (2) hours after his body was taken to the hospital.
This fact and the fact that Cariño was hit by a hard, blunt object, convince [sic] this court that the
intent of the accused to kill Cariño appears to be reasonably doubtful. . . . 25

However, the CA correctly took into consideration the post-mortem findings of the NBI medico-legal
expert and his testimony that even with immediate and adequate medical attendance, the victim
would not have survived due to the extensive nature of the hemorrhage suffered by the victim. The
brute force employed by the petitioner contradicts the claim that he had no intention to kill the victim.
The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated
cannot be appreciated where the acts employed by the accused were reasonably sufficient to
produce and did actually produce the death of the victim. 26

On the second circumstance, the RTC pointed to the fact that the incident was preceded by an
intense argument between the victim and the accused so as to qualify the situation as a mitigating
circumstance of sufficient provocation or threat on the part of the offended party which immediately
preceded the act.27
Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of
exciting, inciting, or irritating anyone. In order to be mitigating, provocation must be sufficient and
should immediately precede the act. Provocation is sufficient if it is adequate to excite a person to
commit the wrong, which must accordingly be proportionate in gravity. That the provocation must
immediately precede the act means that there should not be any interval of time between the
provocation by the offended party and the commission of the crime by the person provoked. 28

The fact that a heated or intense argument preceded the incident is not by itself the sufficient
provocation on the part of the offended party as contemplated by law. Moreover, petitioner failed to
establish by competent evidence that the victim had a gun and used it to threaten petitioner.

With respect to the other aggravating circumstances of treachery, evident premeditation, and grave
abuse of superior strength, the Court likewise agrees with the findings of the RTC, as affirmed by the
CA, that none of these circumstances are present for lack of evidence.

Thus, the CA is partly correct in modifying the penalty imposed by the RTC. The RTC imposed an
indeterminate prison term of four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum, while the CA adjusted the
sentence upwards since no mitigating circumstances attended the crime, and imposed an
indeterminate prison term of six (6) years and one (1) day of prision mayor as minimum to twelve
(12) years and one (1) day of reclusion temporal as maximum. Article 249 of the Revised Penal
Code provides that any person found guilty of homicide shall be punished by reclusion temporal, i.e.,
twelve (12) years and one (1) day to twenty (20) years. Applying Section 1 of the Indeterminate
Sentence Law, the minimum term of the sentence shall be within the range of the penalty next lower,
which is prision mayor, i.e., anywhere between six (6) years and one (1) day to eight (8) years. The
CA appropriately exercised its discretion when it imposed six (6) years and one (1) day of prision
mayor as the minimum term.

However, the CA erred in imposing twelve (12) years and one (1) day of reclusion temporal as the
maximum term of the indeterminate sentence. In the computation of the maximum term, the law
prescribes that the attending circumstances should be considered. There being no aggravating or
mitigating circumstance in this case, the penalty that should be imposed is the medium period of the
penalty prescribed by law,29 that is, reclusion temporal in its medium period, or, anywhere between
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

And last, the CA, without reason, omitted a portion of the award of damages by the RTC in the civil
aspect of the case, namely, the amount of actual damages which comprised the expenses for the
cemetery lot and religious services. In particular, the RTC held that the prosecution was able to
prove actual damages amounting to P41,500.00 based on supporting evidence,30 in addition to the
death indemnity of P50,000.00 as required by current jurisprudence. 31 On the other hand, the
dispositive portion of the CA judgment merely ordered petitioner to indemnify the heirs of the
deceased victim in the amount of P50,000.00.

The Court restores the full amount of actual damages originally awarded by the RTC.

Moral damages are not awarded for lack of basis in fact and law. 32 No witnesses testified to prove
the existence of the factual basis therefor.

Pursuant to Article 2230 of the Civil Code, in criminal offenses, exemplary damages may be
imposed when the crime is committed with one or more aggravating circumstances. Considering that
no aggravating circumstance is present in this case, the lower courts are correct in not awarding
exemplary damages.
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals are AFFIRMED with MODIFICATION. The petitioner is found GUILTY beyond reasonable
doubt of Homicide and is sentenced to suffer the penalty of an indeterminate sentence of six (6)
years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and
one (1) day, as maximum. The petitioner is further ordered to pay the heirs of the victim the amounts
of P50,000.00 as death indemnity and P41,500.00 as actual damages.

SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 182551               July 27, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSENDO REBUCAN y LAMSIN, Accused-Appellant.

DECISION

LEONARDO–DE CASTRO, J.:

Assailed before this Court is the Decision1 dated August 21, 2007 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 00282, which modified the Decision2 dated November 3, 2003 of the Regional Trial
Court (RTC) of Carigara, Leyte, Branch 13, in Criminal Case No. 4232. In the Decision of the Court
of Appeals, the accused-appellant Rosendo Rebucan y Lamsin was adjudged guilty beyond
reasonable doubt of two (2) separate counts of murder and was sentenced to suffer the penalty of
reclusion perpetua for each count.

On January 23, 2003, the accused-appellant was charged with the crime of double murder in an
Information, the accusatory portion of which reads:

That on or about the 6th day of November, 2002, in the Municipality of Carigara, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, with treachery and evident premeditation and abuse of superior strength, did
then and there willfully, unlawfully and feloniously attack, assault and wound FELIPE LAGERA Y
OBERO, 65 years old and RANIL TAGPIS Y LAGERA, 1 year old, with the use of a long bolo
(sundang) which the accused had provided himself for the purpose, thereby inflicting upon Felipe
Lagera:

Hypovolemic shock, massive blood loss and multiple hacking wounds upon Ranil Tagpis:

Hypovolemic shock, massive blood loss and hacking wound, head[,] which wounds caused the
death of Felipe Lagera y Obera and Ranil Tagpis y Lagera, immediately thereafter. 3

When arraigned on February 10, 2003, the accused-appellant pleaded not guilty to the
charge.4 Trial, thereafter, ensued.

The prosecution presented as witnesses: (1) Dr. Ma. Bella V. Profetana, Municipal Health Officer of
Carigara, Leyte; (2) Carmela Tagpis, the 5-year-old granddaughter of the victim Felipe Lagera and
sister of the victim Ranil Tagpis, Jr.;5 (3) Adoracion Lagera, the wife of Felipe Lagera; and (4) Alma
Tagpis, the daughter of Felipe Lagera and mother of Ranil Tagpis, Jr.

Dr. Profetana testified that she conducted a post-mortem examination on the body of the victim
Felipe Lagera on November 6, 2002. She stated that Felipe sustained three hacking wounds, the
first of which was located at his right arm and was about 23x2x4 centimeters. The said wound was
fatal and could have been caused by a sharp instrument such as a bolo. The second wound was
located at Felipe’s "nose maxillary area,"6 measuring 13 centimeters, with an inverted C shape. The
second wound was not fatal and could have been caused by a sharp-edged instrument like a bolo.
The third wound was located at Felipe’s left arm and was measured as 9x1x1.5 centimeters. The
said wound was fatal and could have likewise been caused by a sharp-edged instrument. Dr.
Profetana concluded that the causes of death of Felipe were hypovolemic shock, massive blood loss
and multiple hacking wounds. She also conducted a post-mortem examination on the body of Ranil
Tagpis, Jr. on the aforementioned date. The results revealed that Ranil sustained a hacking wound
at the "fronto-temporal area"7 with a skull fracture. In the case of Ranil, the cause of death was
"hypovolemic shock secondary to massive blood loss secondary to [the] hacking wound to the
head."8 The instrument that was most likely used was sharp-edged like a bolo. 9

Carmela Tagpis testified as an eyewitness to the incident in question. She pointed to the accused-
appellant as the "Bata Endong" 10 (Uncle Endong) who hacked her grandfather and brother. She
stated that Ranil was hit in the forehead, while Felipe was hit on the face, the left shoulder and the
right shoulder. After Felipe was hacked by the accused-appellant, the former was still able to walk
outside of his house, to the direction of the coconut tree and thereafter fell to the ground. Carmela
said that she saw that a long bolo was used in the killing of Felipe and Ranil. She related that Felipe
also owned a bolo but he was not able to use the same when he was attacked. She was then inside
the house with Felipe and her two younger brothers, Jericho and Bitoy (Ranil). She was sitting about
four meters away when the hacking incident occurred indoors. 11

On cross-examination, Carmela stated that at the time of the incident, she was playing with a toy
camera inside the house and she was situated beside a chicken cage, near a bench. Felipe was
also there near the bench and he was carrying Ranil in his right arm. When asked whether the
accused-appellant came inside the house in a sudden manner, Carmela answered in the affirmative.
She insisted that Ranil was indeed carried by Felipe when the accused-appellant entered the house.
She said that no fight or altercation occurred between Felipe and the accused-appellant. After Felipe
was hacked, he immediately ran outside of the house. Carmela and Jericho then ran to the back of
the house.12

Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002, she was at the house of a certain
Justiniano Rance. After arriving there, she was fetched by a little boy who told her to go home
because Felipe had been hacked. She ran towards the direction of her house. When she got there,
she saw the lifeless body of Felipe sprawled on the ground. She then went inside the house and
found her daughter, Alma Tagpis, cuddling the body of Ranil whose head was wounded. She told
Alma to look for a motor vehicle to bring the child to the hospital. She also found out that the other
two children, Carmela and Jericho, hid when they saw Felipe being hacked. When she asked them
who went to their house, Carmela told her that it was the accused-appellant who entered their house
and hacked the victims.13

Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002, she was in Brgy. Sogod, having
their palay (unhusked rice grain) milled. Shortly thereafter, she went home and proceeded to the
house of her father, Felipe, where she left her children. She then met a person looking for her
mother who was about to tell the latter that Felipe was hacked. When she rushed to Felipe’s house,
she saw him lying in the grassy place, wounded and motionless. She asked Felipe who hacked him,
but he was not able to answer anymore. She went inside the house and saw blood on the floor and
the feet of her son Ranil. Thinking that the killer was still inside, she went to the back of the house
and pulled a slot of board on the wall so she could get inside. Upon seeing the body of Ranil, she
took him and ran towards the road. She was able to bring Ranil to the hospital, but the doctor
already pronounced him dead. Her other two children, Carmela and Jericho, soon arrived at the
hospital with the police. When she asked them who killed Felipe, Carmela answered that it was the
accused-appellant.14

Thereafter, the prosecution formally offered the following documentary evidence, to wit: (1) Exhibit A
– the Post-mortem Examination Report on Felipe;15 (2) Exhibit B – the sketch of the human anatomy
indicating the wounds sustained by Felipe; 16 (3) Exhibit C – the Certificate of Death of Felipe; 17 (4)
Exhibit D – the Post-mortem Examination Report on Ranil; 18 (5) Exhibit E – the sketch of the human
anatomy indicating the wounds sustained by Ranil; 19 and (6) Exhibit F – the Certificate of Death of
Ranil.20

The defense, on the other hand, presented the following witnesses, namely: (1) Raymond Rance,
the stepson of the accused-appellant; (2) Renerio Arminal, 21 the barangay chairperson of Brgy.
Canlampay, Carigara, Leyte; (3) Arnulfo Alberca, a member of the Philippine National Police (PNP)
stationed at Carigara, Leyte; and (4) the accused-appellant Rosendo Rebucan y Lamsin.

Raymond Rance testified that his mother’s name is Marites Rance. The accused-appellant is not his
biological father but the former helped in providing for his basic needs. He narrated that on the night
of July 18, 2002, he saw Felipe Lagera inside their house. Felipe placed himself on top of
Raymond’s mother, who was lying down. Raymond and his younger sister, Enda, were then
sleeping beside their mother and they were awakened. His mother kept pushing Felipe away and
she eventually succeeded in driving him out. In the evening of July 20, 2002, at about 11:00 p.m.,
Raymond recounted that he saw Felipe’s son, Artemio alias Timboy, inside their house. Timboy was
able to go upstairs and kept trying to place himself on top of Raymond’s mother. The latter got mad
and pushed Timboy away. She even pushed him down the stairs. The accused-appellant was
working in Manila when the aforesaid incidents happened. Raymond said that his mother thereafter
left for Manila. Subsequently, he saw the accused-appellant at the house of a certain Bernie, several
days after the accused-appellant arrived in Leyte. He told the accused-appellant about the incidents
involving Felipe and Timboy. On November 6, 2002, Raymond and the accused were already living
in the same house. On the said date, the accused-appellant left their house after they had lunch and
he told Raymond that he was going to call the latter’s mother. Raymond testified that the accused-
appellant is a good man and was supportive of his family. He also stated that the accused-appellant
seldom drank liquor and even if he did get drunk, he did not cause any trouble. 22
Renerio Arminal testified that on November 6, 2002, the accused-appellant surrendered to him. The
latter came to him alone and told him that he (the accused-appellant) fought with Felipe Lagera.
Arminal then ordered the human rights action officer, Ricky Irlandez, and the chief tanod, Pedro
Oledan, to bring the accused-appellant to the police station. Afterwards, the police officers came to
his place and he accompanied them to the house of Felipe. 23

Arnulfo Alberca was likewise called upon to the witness stand to prove that the voluntary surrender
of the accused-appellant was entered into the records of the police blotter. He was asked to read in
open court the Police Blotter Entry No. 5885 dated November 6, 2002, which recorded the fact of
voluntary surrender of the accused-appellant. His testimony was no longer presented, however,
since the prosecution already admitted the contents of the blotter. 24

The accused-appellant testified that he arrived in Carigara, Leyte from Manila on August 15, 2002.
He went to the house of his elder brother, Hilario, to look for his children. There, he learned that his
wife went to Manila and his brother was taking care of his two children and his stepson, Raymond.
On November 2, 2002, he saw Raymond at the place of his friend, Bernie Donaldo. He asked
Raymond why the latter’s mother went to Manila and he was told that, while he was still in Manila,
Felipe and Timboy Lagera went to their house and tried to place themselves on top of his wife. He
then said that he harbored ill feelings towards the said men but he was able to control the same for
the sake of his children. On November 6, 2002, at about 2:00 p.m., he went to the house of
barangay chairperson Arminal to place a call to his wife who was in Manila. He was carrying a bolo
at that time since he was using the same to cut cassava stems in his farm. When he talked to his
wife, she confirmed that she was sexually molested by Felipe and Timboy. Thereafter, as the
accused-appellant proceeded to go home, it rained heavily so he first sought shelter at the place of
his friend, Enok. The latter was drinking gin and he was offered a drink. After staying there and
drinking for half an hour, the accused-appellant decided to go home. Afterwards, he remembered
that he had to buy kerosene so he went to the store of Felipe Lagera. 25

The accused-appellant further testified that when he reached the house of Felipe, the latter was
feeding chickens. When Felipe asked him what was his business in going there, he confronted
Felipe about the alleged sexual abuse of his wife. Felipe allegedly claimed that the accused-
appellant had a bad purpose for being there and that the latter wanted to start a fight. Accused-
appellant denied the accusation and responded that Felipe should not get angry, as it was he
(Felipe) who committed a wrong against him and his wife. Felipe allegedly got mad and hurled the
cover of a chicken cage at him, but he was able to parry it with his hand. The accused-appellant then
drew his long bolo and hacked Felipe on the left side of the abdomen, as the latter was already
turning and about to run to the house. He also went inside the house since Felipe might get hold of a
weapon. When they were both inside and he was about to deliver a second hacking blow, Felipe
held up and used the child Ranil as a shield. As the second hacking blow was delivered suddenly,
he was not able to withdraw the same anymore such that the blow landed on Ranil. When he saw
that he hit the child, he got angry and delivered a third hacking blow on Felipe, which landed on the
right side of the latter’s neck. Thereafter, Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victim’s upper left arm. At that time, Felipe was already on the yard of his
house and was about to run towards the road. He then left and surrendered to the barangay
chairperson.26

During his cross-examination, the accused-appellant said that he was a bit tipsy when he proceeded
to Felipe’s house, but he was not drunk. When Felipe ran inside the house after the first hacking
blow, the accused-appellant stated that he had no intention to back out because he was thinking that
the victim might get a gun and use the same against him. The accused-appellant also asserted that
when he was about to deliver the second hacking blow, Felipe simultaneously took Ranil who was
sitting on a sack and used him to shield the blow. There was a long bolo nearby but Felipe was not
able to take hold of the same because the accused-appellant was chasing him. He admitted that he
had a plan to kill Felipe but claimed that when he arrived at the latter’s house on the day of the
attack, he had no intention to kill him.27

The defense also presented the following documentary evidence: (1) Exhibit 1 – the Police Blotter
Entry No. 5885 dated November 6, 2002;28 and (2) Exhibit 2 – the Civil Marriage Contract of
Rosendo Rebucan and Marites Rance.29

On November 3, 2003, the RTC rendered a decision, convicting the accused-appellant of the crime
of double murder. The trial court elucidated thus:

[In view of] the vivid portrayal of Raymond on how [the wife of the accused] was sexually abused by
the father and son Lagera, the accused hatched a decision to avenge his wife’s sexual molestation.
Days had passed, but this decision to kill Felipe did not wither, instead it became stronger, that on
the 6th of November 2002, he armed himself with a sharp long bolo known as "sundang" and went
to Brgy. Canlampay, Carigara, Leyte where the victim live[d]. Fueled by hatred and the spirit of
London gin after consuming one bottle with his compadre "Enok", he decided to execute his evil
deeds by going to the house of Felipe Lagera, in the guise of buying kerosene and once inside the
house hacked and wounded the victim, Felipe Lagera who was then holding in his arm his grandson,
one and half years 1 ½ old, Ramil Tagpis, Jr.

The manner by which the accused adopted in killing the victim, Felipe Lagera, and Ramil Tagpis, Jr.
was a premeditated decision and executed with treachery.

xxxx

There is credence to the testimony of the minor eyewitness Carmela Tagpis that the victim, Felipe
was holding in his arms her younger brother, Ramil Tagpis, Jr. inside his house, when the accused
entered, and without any warning or provocation coming from the victim, the accused immediately
delivered several hacking blows on the victim giving no regard to the innocent child in the arms of
Lagera. With this precarious situation, the victim who was unarmed has no opportunity to put up his
defense against the unlawful aggression of the accused, moreso, to retaliate. Moreover, what
defense could an innocent 1 1/2 years old Ramil Tagpis, Jr. put up against the armed and superior
strength of the accused, but to leave his fate to God.

The circumstance that the attack was sudden and unexpected and the victims, unarmed, were
caught totally unprepared to defend themselves qualifies the crime committed as murder. x x x.

After the incident, the accused Rosendo Rebucan immediately went to the house of Brgy. Chairman,
Renerio Arcenal at sitio Palali, Brgy. Canlampay, Carigara, Leyte, to surrender, because he killed
Felipe Lagera and Ramil Tagpis, Jr. The Brgy. Chairman instructed his Brgy. Human Rights Action
Officer, Ricky Irlandez and his Chief Tanod, Pedro Oledan to bring Rosendo to the Police Authorities
of Carigara, Leyte. This fact of voluntary surrender was corroborated by Police Officer Arnulfo
Alberca, who presented to Court the police blotter, under entry No. 5885, dated November 6, 2002,
of the PNP, Carigara, Leyte.

Clearly, the act of the accused in surrendering to the authorities showed his intent to submit himself
unconditionally to them, to save the authorities from trouble and expenses that they would incur for
his capture. For this reason, he has complied with the requisites of voluntary surrender as a
mitigating circumstance[.] x x x.
From the circumstances obtaining, the mitigating circumstances of admission and voluntary
surrender credited to the accused are not sufficient to offset the aggravating circumstances of: a)
evident premeditation; b) treachery (alevosia); c) dwelling – the crime was committed at the house of
the victim; d) intoxication – the accused fueled himself with the spirit of London gin prior to the
commission of the crime; e) abuse of superior strength; and f) minority, in so far as the child victim,
Ramil Tagpis, Jr. is concerned, pursuant to Article 63 of the Revised Penal Code as amended. x x x.

xxxx

In the mind of the Court, the prosecution has substantially established the quantum of evidence to
prove the guilt of the accused beyond reasonable doubt. 30

The RTC, thus, decreed:

WHEREFORE, premises considered, pursuant to Sec. 6, Art. 248 of the Revised Penal Code, as
amended and further amended by R.A. 7659 (The Death Penalty Law), the Court found accused
ROSENDO REBUCAN y LAMSIN, GUILTY beyond reasonable doubt of the crime of DOUBLE
MURDER charged under the information and sentenced to suffer the maximum penalty of DEATH,
and to pay civil indemnity to the heirs of Felipe Lagera and Ramil Tagpis, Jr. in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos for each victim and moral damages in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos to each; and

Pay the Cost.31 (Emphases ours.)

The case was originally elevated to this Court on automatic review and the same was docketed as
G.R. No. 161706.32 The parties, thereafter, submitted their respective appeal briefs. 33 In our
Resolution34 dated July 19, 2005, we ordered the transfer of the case to the Court of Appeals for
appropriate disposition, pursuant to our ruling in People v. Mateo. 35 Before the appellate court, the
case was docketed as CA-G.R. CR.-H.C. No. 00282.

The Court of Appeals promulgated the assailed decision on August 21, 2007, modifying the
judgment of the RTC. The appellate court adopted the position of the Office of the Solicitor General
(OSG) that the felonious acts of the accused-appellant resulted in two separate crimes of murder as
the evidence of the prosecution failed to prove the existence of a complex crime of double murder.
The Court of Appeals subscribed to the findings of the RTC that the killing of Felipe Lagera was
attended by the aggravating circumstances of treachery and evident premeditation. With respect to
the ensuant mitigating circumstances, the Court of Appeals credited the circumstance of voluntary
surrender in favor of the accused-appellant, but rejected the appreciation of intoxication, immediate
vindication of a grave offense and voluntary confession. As for the death of Ranil, the appellate court
also ruled that the same was attended by the aggravating circumstance of treachery and the
mitigating circumstance of voluntary surrender. Thus, the Court of Appeals disposed of the case as
follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Decision appealed from is hereby MODIFIED.
As modified, accused-appellant is hereby adjudged guilty beyond reasonable doubt for two (2)
counts of murder for the deaths of Felipe Lagera and Ramil Tagpis, Jr., and is hereby sentenced to
suffer the penalty of reclusion perpetua for each count of murder he has committed.

The award of civil indemnity is reduced to ₱50,000.00 for each victim; the award of moral damages
is likewise reduced to ₱50,000.00 for each victim. Further, exemplary damages in the amount of
₱25,000.00 is awarded to the heirs of each victim. 36
The accused-appellant filed a Notice of Appeal37 of the above decision. In a Resolution 38 dated
February 6, 2008, the Court of Appeals ordered that the records of the case be forwarded to this
Court.

On June 18, 2008, we resolved to accept the appeal and required the parties to file their respective
supplemental briefs, if they so desire, within thirty days from notice. 39 Thereafter, both parties
manifested that they were adopting the briefs they filed before the Court of Appeals and will no
longer file their respective supplemental briefs.40

The accused-appellant sets forth the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT FOR THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN FAVOR OF
THE ACCUSED-APPELLANT.

III

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE INTOXICATION AS

A MITIGATING CIRCUMSTANCE IN FAVOR OF THE ACCUSED-APPELLANT.

IV

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING

CIRCUMSTANCES OF DWELLING, ABUSE OF SUPERIOR STRENGTH AND
MINORITY.41

The accused-appellant admits to the killing of Felipe but denies that the crime was committed with
treachery and evident premeditation. He argues that there is doubt as to the presence of treachery
given that there was no eyewitness who categorically stated that the accused-appellant attacked the
victims suddenly, thereby depriving them of the means to defend themselves. He brushed aside the
testimony of Carmela Tagpis, insisting that she was not in a position to say that there was no
altercation between him and Felipe, which could have put the latter on guard. The prosecution
allegedly failed to prove that the accused-appellant intentionally waited for the time when Felipe
would be defenseless before initiating the attack. The fact that he voluntarily surrendered to the
barangay chairperson and the police and admitted the killings supposedly showed that it was not
intentional and he did not consciously adopt the method of attack upon the two victims. The
accused-appellant similarly rejects the finding of the RTC that there was evident premeditation on
his part since the prosecution failed to prove that he deliberately planned the killing of Felipe.

The accused-appellant maintains that at the time of the incident, he was still unable to control his
anger as he just recently discovered that his wife was sexually abused by Felipe and the latter’s son,
Timboy. He also avers that he was a bit intoxicated when the crime took place so that he was not in
total control of himself. He claims that he is not a habitual drinker and that he merely consumed the
alcohol prior to the incident in order to appease his friend. He likewise argues that the aggravating
circumstance of dwelling should not have been appreciated inasmuch as the same was not alleged
in the information. Moreover, the aggravating circumstance of abuse of superior strength cannot be
appreciated since he did not deliberately harm or attack Ranil Tagpis, Jr. and the death of the latter
was accidental. The accused-appellant prays that he should only be found guilty of the crime of
homicide with the mitigating circumstances of voluntary surrender, immediate vindication of a grave
offense and intoxication.

The appeal lacks merit.

Basic is the rule that in order to affirm the conviction of an accused person, the prosecution must
establish his guilt beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty. Only moral certainty is
required, or that degree of proof which produces conviction in an unprejudiced mind. 42 Ultimately,
what the law simply requires is that any proof against the accused must survive the test of reason for
it is only when the conscience is satisfied that the perpetrator of the crime is the person on trial
should there be a judgment of conviction.43 A finding of guilt must rest on the strength of the
prosecution’s own evidence, not on the weakness or even absence of evidence for the defense. 44

In the instant case, the evidence of the prosecution established the fact that the killings of Felipe and
Ranil were attended by treachery, thus qualifying the same to murder.

According to Article 24845 of the Revised Penal Code, as amended, any person who shall kill another
shall be guilty of murder if the same was committed with the attendant circumstance of treachery,
among other things, and that the situation does not fall within the provisions of Article 246. 46 There is
treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. 47 The essence
of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no
chance to resist or to escape. There is treachery even if the attack is frontal if it is sudden and
unexpected, with the victims having no opportunity to repel it or defend themselves, for what is
decisive in treachery is that the execution of the attack made it impossible for the victims to defend
themselves or to retaliate.48

In the case at bar, the RTC gave more weight to the testimony of Carmela Tagpis in establishing the
presence of treachery in the manner with which the accused-appellant carried out the violent killings
of Felipe and Ranil. In this regard, we reiterate the established doctrine articulated in People v. De
Guzman49 that:

In the resolution of the factual issues, the court relies heavily on the trial court for its evaluation of the
witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is
able to detect that sometimes thin line between fact and prevarication that will determine the guilt or
innocence of the accused. That line may not be discernible from a mere reading of the impersonal
record by the reviewing court. x x x.50

Moreover, we have oftentimes ruled that the Court will not interfere with the judgment of the trial
court in determining the credibility of witnesses unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the significance of which has
been misinterpreted.51

Carmela testified as follows:

PROS. TORREVILLAS:
Q: Do you have a brother named Ranil Tagpis, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead.

Q: Do you know the circumstance of his death?

A: Yes sir.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Do you know also your grandfather Felipe Lagera, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead also.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Is the person your Bata Endong here in the court room who hacked your brother and your
grandfather?

A: Yes sir.

COURT INTERPRETER:

Witness pointing to a person when asked of his name identified himself as Rosendo
Rebucan.

xxxx

Q: What instrument did the accused use in killing your [brother and] your grandfather?

A: Long bolo, sundang.

Q: Were you able to see that long bolo?

A: Yes sir.

xxxx
Q: Was your grandfather armed that time?

A: He has his own bolo but he placed it on the holder of the long bolo.

Q: Was that long bolo used by your grandfather?

A: No sir.

xxxx

Q: How far were you to the incident, when this hacking incident happened?

A: (witness indicating a distance of about 4 meters).

xxxx

COURT:

Cross.

ATTY. DICO:

Q: You stated awhile ago that your brother Jericho, Bitoy [Ranil] and you and your papo
Felipe were at the house of your papo Felipe?

A: Yes sir.

Q: You mean to say that there were no other persons present in that house other than you
four (4)?

A: Yes sir.

xxxx

Q: So, you were playing that toy camera inside the room of your papo Felipe?

A: No sir, I was playing then at the side of the chicken cage.

Q: Is that chicken cage was inside or outside the house of your papo Felipe’s house?

A: Inside the house of my grandfather.

xxxx

Q: Was your brother Ranil carried by your grandfather Felipe?

A: Yes sir.

He was carried by his right arm.

 Q: So, you mean to say that your uncle Endo went inside, it was so sudden?

A: Yes sir.

Q: Because it was sudden, you were not able to do anything, what did you do?

A: I then cried at that time.

xxxx

Q: But you are sure that when your uncle Endo entered as you said that your brother Ramil
was carried by your papo Felipe?

A: Yes sir.

Q: Did your uncle Endo and your papo Felipe fight or was there an altercation?

A: No sir.52

As can be gleaned from the above testimony, Carmela firmly and categorically pointed to the
accused-appellant as the person who entered the house of Felipe. She clearly stated that the attack
was not preceded by any fight or altercation between the accused-appellant and Felipe. Without any
provocation, the accused-appellant suddenly delivered fatal hacking blows to Felipe. The abruptness
of the unexpected assault rendered Felipe defenseless and deprived him of any opportunity to repel
the attack and retaliate. As Felipe was carrying his grandson Ranil, the child unfortunately suffered
the same fatal end as that of his grandfather. In the killing of Ranil, the trial court likewise correctly
appreciated the existence of treachery. The said circumstance may be properly considered, even
when the victim of the attack was not the one whom the defendant intended to kill, if it appears from
the evidence that neither of the two persons could in any manner put up defense against the attack
or become aware of it.53 Furthermore, the killing of a child is characterized by treachery even if the
manner of assault is not shown. For the weakness of the victim due to his tender years results in the
absence of any danger to the accused.54

Although the accused-appellant painted a contrasting picture on the matter, i.e., that the attack was
preceded by a fight between him and Felipe, the Court is less inclined to be persuaded by the
accused-appellant’s version of the events in question. Indeed, the Court has ruled that the testimony
of children of sound mind is "more correct and truthful than that of older persons" and that "children
of sound mind are likely to be more observant of incidents which take place within their view than
older persons, and their testimonies are likely more correct in detail than that of older persons." 55 In
the instant case, Carmela was cross-examined by the defense counsel but she remained steadfast
and consistent in her statements. Thus, the Court fails to see any reason to distrust the testimony of
Carmela.

Incidentally, the testimony of the accused-appellant not only contradicts that of Carmela, but some
portions thereof do not also conform to the documentary evidence admitted by the trial court. The
testimony of Dr. Profetana and the sketch of the human anatomy of Felipe, which was marked as
Exhibit B for the prosecution, stated that Felipe sustained three hacking wounds that were found on
his right arm, at his "nose maxillary area" 56 and on his left arm. On the other hand, the accused-
appellant testified that he delivered four hacking blows on Felipe, the three of which landed on the
left side of the victim’s abdomen, the right side of his neck and on his upper left arm. When
confronted on the said apparently conflicting statements, the accused-appellant did not offer any
explanation.57

Therefore, on the strength of the evidence of the prosecution, we sustain the ruling of the RTC and
the Court of Appeals that the circumstance of treachery qualified the killings of Felipe and Ranil to
murder.

The Court finds erroneous, however, the trial court’s and the Court of Appeals’ appreciation of the
aggravating circumstance of evident premeditation. For evident premeditation to aggravate a crime,
there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung
to his determination; and (3) sufficient lapse of time, between determination and execution, to allow
himself to reflect upon the consequences of his act.58 It is not enough that evident premeditation is
suspected or surmised, but criminal intent must be evidenced by notorious outward acts evidencing
determination to commit the crime. In order to be considered an aggravation of the offense, the
circumstance must not merely be "premeditation"; it must be "evident premeditation." 59 In the case at
bar, the evidence of the prosecution failed to establish any of the elements of evident premeditation
since the testimonies they presented pertained to the period of the actual commission of the crime
and the events that occurred thereafter. The prosecution failed to adduce any evidence that tended
to establish the exact moment when the accused-appellant devised a plan to kill Felipe, that the
latter clung to his determination to carry out the plan and that a sufficient time had lapsed before he
carried out his plan.

Likewise, the trial court erred in appreciating the aggravating circumstances of abuse of superior
strength, dwelling, minority and intoxication. When the circumstance of abuse of superior strength
concurs with treachery, the former is absorbed in the latter. 60 On the other hand, dwelling, minority
and intoxication cannot be appreciated as aggravating circumstances in the instant case considering
that the same were not alleged and/or specified in the information that was filed on January 23,
2003. Under the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, a
generic aggravating circumstance will not be appreciated by the Court unless alleged in the
information. This requirement is laid down in Sections 8 and 9 of Rule 110, to wit:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall
be made to the section or subsection of the statute punishing it.

SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.

With regard to the conflicting rulings of the RTC and the Court of Appeals vis-à-vis the nature of
crimes committed, we agree with the appellate court that the accused-appellant should be held liable
for two (2) separate counts of murder, not the complex crime of double murder.

Article 48 of the Revised Penal Code provides that "[w]hen a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum period."
There are, thus, two kinds of complex crimes. The first is known as compound crime, or when a
single act constitutes two or more grave or less grave felonies. The second is known as complex
crime proper, or when an offense is a necessary means for committing the other. 61

The Court finds that there is a paucity of evidence to prove that the instant case falls under any of
the two classes of complex crimes. The evidence of the prosecution failed to clearly and indubitably
establish the fact that Felipe and Ranil were killed by a single fatal hacking blow from the accused-
appellant. The eyewitness testimony of Carmela did not contain any detail as to this material fact. To
a greater degree, it was neither proven that the murder of Felipe was committed as a necessary
means for committing and/or facilitating the murder of Ranil and vice versa. As the factual milieu of
the case at bar excludes the application of Article 48 of the Revised Penal Code, the accused-
appellant should be made liable for two separate and distinct acts of murder. In the past, when two
crimes have been improperly designated as a complex crime, this Court has affirmed the conviction
of the accused for the component crimes separately instead of the complex crime. 62

In the determination of the penalty to be imposed on the accused-appellant, we uphold the trial
court’s ruling that the mitigating circumstance of voluntary surrender should be appreciated. For
voluntary surrender to mitigate criminal liability, the following elements must concur: (1) the offender
has not been actually arrested; (2) the offender surrenders himself to a person in authority or to the
latter’s agent; and (3) the surrender is voluntary. 63 To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in searching for and capturing them. 64 The
accused-appellant has duly established in this case that, after the attack on Felipe and Ranil, he
surrendered unconditionally to the barangay chairperson and to the police on his own volition and
before he was actually arrested. The prosecution also admitted this circumstance of voluntary
surrender during trial.

We reject, however, the accused-appellant’s contention that the trial court erred in failing to
appreciate the mitigating circumstances of intoxication and immediate vindication of a grave offense.

The third paragraph of Article 15 of the Revised Penal Code provides that the intoxication of the
offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance. The Court finds that the accused-appellant is not entitled to the mitigating
circumstance of intoxication since his own testimony failed to substantiate his claim of drunkenness
during the incident in question. During his cross-examination, the accused-appellant himself
positively stated that he was only a bit tipsy but not drunk when he proceeded to the house of
Felipe.65 He cannot, therefore, be allowed to make a contrary assertion on appeal and pray for the
mitigation of the crimes he committed on the basis thereof.

As regards the mitigating circumstance of immediate vindication of a grave offense, the same cannot
likewise be appreciated in the instant case. Article 13, paragraph 5 of the Revised Penal Code
requires that the act be "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 degrees." The established rule is that there
can be no immediate vindication of a grave offense when the accused had sufficient time to recover
his equanimity.66 In the case at bar, the accused-appellant points to the alleged attempt of Felipe and
Timboy Lagera on the virtue of his wife as the grave offense for which he sought immediate
vindication. He testified that he learned of the same from his stepson, Raymond, on November 2,
2002. Four days thereafter, on November 6, 2002, the accused-appellant carried out the attack that
led to the deaths of Felipe and Ranil. To our mind, a period of four days was sufficient enough a time
within which the accused-appellant could have regained his composure and self-control. Thus, the
said mitigating circumstance cannot be credited in favor of the accused-appellant.

Article 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to
death for the crime of murder. In this case, apart from the qualifying circumstance of treachery, the
prosecution failed to prove the existence of any other aggravating circumstance in both the murders
of Felipe and Ranil. On the other hand, as the presence of the lone mitigating circumstance of
voluntary surrender was properly established in both instances, Article 63, paragraph 3 of the
Revised Penal Code67 mandates that the proper penalty to be imposed on the accused-appellant is
reclusion perpetua for each of the two counts of murder.

Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1)
civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in
proper cases.68

The RTC awarded in favor of the heirs of Felipe and Ranil the amounts of ₱75,000.00 as civil
indemnity and ₱75,000.00 as moral damages for each set of heirs. The Court of Appeals, on the
other hand, reduced the aforesaid amounts to ₱50,000.00 and further awarded the amount of
₱25,000.00 as exemplary damages to the heirs of the victim.

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than
the commission of the crime.69 Similarly, moral damages may be awarded by the court for the mental
anguish suffered by the heirs of the victim by reason of the latter’s death. The purpose for making
such an award is not to enrich the heirs of the victim but to compensate them for injuries to their
feelings.70 The award of exemplary damages, on the other hand, is provided under Articles 2229-
2230 of the Civil Code, viz:

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

In People v. Dalisay,71 the Court clarified that "[b]eing corrective in nature, exemplary damages,
therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous conduct of the offender.
In much the same way as Article 2230 prescribes an instance when exemplary damages may be
awarded, Article 2229, the main provision, lays down the very basis of the award." 72

Thus, we affirm the Court of Appeals’ award of ₱50,000.00 as civil indemnity and ₱50,000.00 as
moral damages. The award of exemplary damages is, however, increased to ₱30,000.00 in
accordance with the prevailing jurisprudence. As held in People v. Combate, 73 when the
circumstances surrounding the crime call for the imposition of reclusion perpetua only, the proper
amounts that should be awarded are ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages
and ₱30,000.00 as exemplary damages.

In lieu of actual or compensatory damages, the Court further orders the award of ₱25,000.00
temperate damages to the heirs of the two victims in this case. The award of ₱25,000.00 for
temperate damages in homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court. Under Article 2224 of the Civil Code, temperate damages
may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss,
although the exact amount was not proven. 74

WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the Decision dated August 21,
2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00282. The accused-appellant Rosendo
Rebucan y Lamsin is found GUILTY of two (2) counts of murder for the deaths of Felipe Lagera and
Ranil Tagpis, Jr. and is hereby sentenced to suffer the penalty of reclusion perpetua for each count.
The accused-appellant is further ordered to indemnify the respective heirs of the victims Felipe
Lagera and Ranil Tagpis, Jr. the amounts of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱30,000.00 as exemplary damages and ₱25,000.00 as temperate damages for each
victim, plus legal interest on all damages awarded at the rate of 6% from the date of the finality of
this decision. No costs.

SO ORDERED

G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial
1 

Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages." 2

The Information charged appellant with parricide as follows:

3 

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of

Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.
 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death." 4

With the assistance of her counsel, appellant pleaded not guilty during her arraignment on March 3,
5 

1997. In due course, she was tried for and convicted of parricide.
6 

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time,
Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom
was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible
for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and
his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded
that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her
to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
 "Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos. )8 

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the
spouses grappling with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work as he was to go
fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx   xxx   xxx
"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did
not bother anyone in Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low
tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and
drugs. And they become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.
 xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it
was her opinion that Marivic fits the profile of a battered woman because 'inspite of her
feeling of self-confidence which we can see at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was
in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined.
The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic constitutional stamina of
the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
 household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He
said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated." 9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a
pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.
Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic
10  11 

violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death." 13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation.15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, this
16 

Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. The defense raised no objection to
17 

these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben. Axiomatic is the rule that a judicial admission is conclusive upon
18 

the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made. Other than merely attacking the non-
19 

presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. As the former further points out, neither the trial court nor the
20 

prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. Well-settled is the rule
21 

that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
23 

defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman." 25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26
More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence," which has three phases: (1) the tension-building phase; (2) the acute battering incident;
27 

and (3) the tranquil, loving (or, at least, nonviolent) phase.

28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident.29

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31
History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.
 Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
33 

bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

 4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What
do you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.
 xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx
Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 

34
Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.
35

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the
36 

Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling. Marivic relates in detail the following backdrop of the fateful night
37 

when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he was not home yet'. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.
Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if
any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

 Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me."  38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one
who was practically the bread earner of the family. The husband was involved in a lot of
vices, going out with barkadas, drinking, even womanizing being involved in cockfight and
going home very angry and which will trigger a lot of physical abuse. She also had the
experience a lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So
she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out."  39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx   xxx   xxx
 Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes. 40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.
 Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."
41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that
42 

during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x." 43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common
myths and misconceptions about battered women. 45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." In her years of research, Dr. Walker found that "the abuse
46 

often escalates at the point of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness. 50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely
51 

abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect." 52

A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
53 

"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances." 54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape. Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
55 

relationship. Unless a shelter is available, she stays with her husband, not only because she
56 
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not prove
the existence of the syndrome. In other words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house; that Ben would seek
58 

her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense. 59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense -- she must have
60 

actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not
merely imaginary. Thus, the Revised Penal Code provides the following requisites and effect of self-
61 

defense: 62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

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

First. Unlawful aggression;

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

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

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden
63 

and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the
64 

present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'" Still, impending danger
65 

(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger. Considering such circumstances and the existence of BWS, self-defense may
66 

be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the
67 

absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim. Thus, Marivic's killing of Ben was not completely justified under the circumstances.
68 

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not been raised by the
parties.
69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part."  70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. Expounding thereon, he said:
71 

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is
the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....

xxx   xxx   xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder
is injury to the head, banging of the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
 probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder."  72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated." 73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this
74  75 

circumstance should be taken in her favor and considered as a mitigating factor.  76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason. To appreciate this circumstance, the following requisites should concur: (1) there
77 

is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity. 78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. His abusive and violent acts, an
79 

aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
80 

[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. In order to qualify an act as treacherous, the circumstances invoked
81 

must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. Because of the gravity of the
82 

resulting offense, treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:
 The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?
A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I
ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.
 COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. 85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must

have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked. There is no
86 

showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor. 87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 of the same Code. The penalty of reclusion temporal in its
88  89 

medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. Under the Indeterminate Sentence Law, the
90 

minimum of the penalty shall be within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole. 91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.

However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio
V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from
"Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I
register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of
self-defense. It operates upon the premise that a woman who has been cyclically abused and
controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or
death, she knows that future beatings are almost certain to occur and will escalate over time. Her
intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive
possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an
existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate
on her acts and to choose a less fatal means of eliminating her sufferings. 1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to

wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical
abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering incident phase which is
characterized by brutality, destructiveness and sometimes, death. The battered woman usually
realizes that she cannot reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief and the batterer may
show a tender and nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more
than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's
witnesses clearly reveal that she knew exactly when she would once again be subjected to acute
battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she
was afraid every time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo
Tero, also testified that appellant sought his help two months before she killed her husband, again
demonstrating that she was in the tension-building phase and was attempting to prevent another
incident of acute battery. Appellant presented evidence to prove that the tension-building phase
would occur whenever her husband would go out looking for other women, would lose at cockfights
or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by
some witnesses for the prosecution, even shouted back, fought off or even injured her husband
during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to
the death of her husband, i.e., when she knew or felt that she was going to be killed by the
deceased. She could not possibly have testified with clarity as to prior tension-building phases in the
cycle as she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant
would seek shelter in her mother's or her father's house after an acute battering incident, after which
would begin the process of begging for forgiveness, promises of change in behavior and return to
the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove whether the deceased felt provoked into battering
by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole
support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped
and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or
did help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The
physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage, 3 six
incidents of which were documented by the 1990-1995 medical records of Marivic. They included,
among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on
the different parts of her body even during her pregnancy in 1995. 4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than
5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive
the latter every time he would fetch her and promise to change. 5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in
the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her
death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before
she was examined by experts on BWS. Unaware of the significance of her declarations, she
candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key. [T]hen he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

xxx       xxx       xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was
frightened I was about to die because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and
I felt I was about to die also because of my blood pressure and the baby, so I got the gun
and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic
before the lower court but only here on automatic review. This makes the foregoing testimony more
worthy of great weight and credence considering that the same could not have been cunningly given
to suit or conform to the profile of a battered woman.
Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino
Caing testified that he treated Marivic for hypertension due to domestically related emotional stress
on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe
hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined
Marivic, assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional
anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and...
physical abuse. The husband had very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices, going out
with barkadas, drinking, even womanizing, being involved in cockfighting and in going home
very angry which... triggered a lot of physical abuse. She also had the experience of taunting
from the husband for the reason that the husband even accused her of infidelity, the
husband was saying that the child she was carrying was not his own. So she was very angry,
she was at the same time very depressed because she .. .[felt] almost like living in purgatory
or even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties,
they were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun
her around. She tried to fight him so there was a lot of fight and when she was able to
escape, she went to another room and she locked herself with the children. And when the
husband was for a while very angry he calms down then and then (sic). But I remember
before that the husband was looking for the gun and I think he was not able to open the
cabinet because she had the key. So during that time, I remember, that she was very much
afraid of him, so when the husband calmed down and he was asleep, all she was concerned
was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational. 9

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this
case that the books you studied in the expertise in line and in the 77 hour contact with
appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on
her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to
survive with her two sons and [the] child she's bringing.
 Q Had she not able to kill her husband, would she still be in the very short moment with the
victim (sic)?

A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that
it was an apprehension of death and the instinct to defend her and her unborn child's life that drove
her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter.
Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack
must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-
a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear
for their life and thus respond in self-defense. Once BWS and an impending danger based on the
conduct of the deceased in previous battering episodes are established, actual occurrence of an
assault is no longer a condition sine qua non before self defense may be upheld. Threatening
behavior or communication can satisfy the required imminence of danger. As stated in
the ponencia, to require the battered person to await an obvious deadly attack before she can
defend her life would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the
physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place
of unlawful aggression, thus entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because the latter was verbally
threatening to kill her while attempting to get a gun from the drawer, but more importantly because
the deceased wounded her on the wrist with a bolo, and because of the deceased's previous
conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder
are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx       xxx       xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble
for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d]
hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light
when the children were there." At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and
he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying
to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.
Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the
following day I will leave, I was afraid and I want to make sure I would deliver my baby
safely.14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes,
then he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag...
you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me
that "you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key. [T]hen he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

xxx       xxx       xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me. 15

RE-DIRECT BY ATTY. TABUCANON

 Q In other words, there were two (2) incidents, the first incident and then he left and then two
(2) hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In
the case at bar, there is more than sufficient physical evidence presented by the appellant from
which her mental state can be inferred. The prosecution did not object to the presentation of these
physical and testimonial pieces of evidence, namely, the medical records of 23 instances of
domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay
captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to
kill her spouse in the first place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster their attempts to
employ the BWS defense.
Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of
passion and obfuscation. This, at the very least, supports a finding that the acts of violence and
battery committed by the deceased were illegal and unlawful and were committed immediately
before appellant could recover her natural equanimity. But what is the natural equanimity of a
battered woman? Appellant was not a normal married woman. She can never be in a state of natural
equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted with diminished
will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the
claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This Court can hardly rely on the
bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which diminished
his exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that
she was a battered woman for 13-14 years and that she suffered from the "Battered Woman
Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus
presented is to make impossible the proof of mental state. Evidence as to the mental state need not
be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes
was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS
justified the killing of the deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the circumstances, the natural response of
the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is

a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes
to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered
Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the
charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa