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People vs. Paycana Gr. No. 179035 Mahawan vs. People Gr. No. 176609 People vs. Badriago Gr. No. 183566 People vs. Regalario Gr. No. 174483 People vs. Aleta Gr. No. 179708 Urbano vs. People Gr. No. 182750 Herrera vs. Sandiganbayan Gr. No. 119660-61 People vs. Domingo, Gr. No. 184343 People vs. Antonio Gr. No. 174372 Sta. Catalina vs. People Gr. No.167805 People vs. Abare Gr. No. 172973 Polo vs. People Gr. No. 160541 People vs. Cauasay Gr. No. 180512 Mendoza vs. People Gr. No. 173551 People vs. Obligado Gr. No. 171735 People vs. Lopit Gr. No. 177742 People vs. Tampus Gr. No. 181084 People vs. Banez Gr. No. 125849 People vs. Abdullah Gr. No. 182518 People vs. Jumawid Gr. No. 184756 People vs. Gayeta Gr. No. 171654 People vs. Feliciano Gr. No. 102078 People vs. Montesa Gr. No. 181899
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2 12 41 62 89 108 130 161 190 203 215 233 242 255 301 312 332 372 382 400 413 436 445

SELF DEFENSE
1. People vs. Paycana Gr. No. 179035; April 16, 2008
SECOND DIVISION

THE PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 179035

Present:

QUISUMBING, J., - versus Chairperson, CARPIO-MORALES. TINGA, VELASCO, JR., and BRION, JJ. JESUS PAYCANA, JR., Appellant. Promulgated:

April 16, 2008

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DECISION
TINGA, J.:

Appellant Jesus Paycana Jr. was charged1[1] with the complex crime of parricide with unintentional abortion before the Regional Trial Court (RTC) of Iriga City, Branch 37. Appellant pleaded not guilty during the arraignment.2[2] Pre-trial ensued, in which appellant admitted that the victim Lilybeth Balandra-Paycana (Lilybeth) is his legitimate wife.3[3]

Appellant sought to exculpate himself from the crime by setting up selfdefense, claiming that it was his wife who attacked him first. In view of the nature of self-defense, it necessarily follows that appellant admits having killed his seven (7)-month pregnant wife, and in the process put to death their unborn child.

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The prosecution presented Tito Balandra (Tito), the father of the victim; Angelina Paycana (Angelina), appellant‘s eldest daughter who personally witnessed the whole gruesome incident; Barangay Tanod Juan Parañal, Jr.; Dr. Stephen Beltran, who conducted the autopsy; and Santiago Magistrado, Jr., the embalmer who removed the fetus from the deceased‘s body. The evidence for the prosecution established that on 26 November 2002, at around 6:30 in the morning, appellant, who worked as a butcher, came home from the slaughter house carrying his tools of trade, a knife, a bolo, and a

sharpener.4[4] His wife was preparing their children for school and was waiting for him to come home from his work. For reasons known to him alone, appellant stabbed his wife 14 times.5[5] Tito, whose house is at back of appellant‘s house, heard his daughter shouting for help. When he arrived, he saw his daughter lying prostrate near the door and her feet were trembling. But seeing appellant, who was armed, he stepped back. Angelina told Tito by the window that appellant had held her mother‘s neck and stabbed her. 6[6]

Appellant claimed that he wrested the weapon from Lilybeth after she stabbed him first. According to him, they had an altercation on the evening of 25

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November 2002 because he saw a man coming out from the side of their house and when he confronted his wife about the man, she did not answer. On the following morning, he told her that they should live separately. As appellant got his things and was on his way out of the door, Lilybeth stabbed him. But he succeeded in wresting the knife from Lilybeth. And he stabbed her. He added that he was not aware of the number of times he stabbed his wife because he was then dizzy and lots of blood was coming out of his wound.7[7] The trial court found appellant guilty in a decision dated 14 April 2005.8[8] The case was automatically appealed to the Court of Appeals pursuant to Rule 122 Section 3(d) of the Rules of Criminal Procedure.9[9] The appellate court denied appellant‘s appeal in a decision dated 30 May 2007.10[10] Appellant filed a notice of appeal dated 14 June 2007 before the Court of Appeals.11[11] The Court is not convinced by appellant‘s assertion that the trial court erred in not appreciating the justifying circumstance of self-defense in his favor.

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Self-defense, being essentially a factual matter, is best addressed by the trial court.12[12] In the absence of any showing that the trial court failed to appreciate facts or circumstances of weight and substance that would have altered its conclusion, the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason, therefore, exists for this Court to disturb the trial court‘s finding that appell ant did not act in self-defense Appellant failed to discharge the burden to prove self-defense. An accused who interposes self-defense admits the commission of the act complained of. The burden to establish self-defense is on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached. The first paragraph of Article 11 of the Revised Penal Code13[13] requires, in a plea of self-defense, (1) an unlawful aggression on the part of the victim, (2) a reasonable necessity of the means employed by the accused to prevent or repel it, and (3) the lack of sufficient provocation on the part of the person defending himself.14[14]

Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether

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complete or incomplete, that can validly be invoked.15[15] Appellant‘s claim of self-defense was belied by the eyewitness testimony of his own daughter Angelina, which was corroborated by the testimony of his father-in-law Tito and the medical findings. Angelina‘s testimony was very clear on how her father strangled and stabbed her mother just as she was about to greet him upon arriving home. She begged her father to stop, and even tried to grab her father‘s hand but to no avail.16[16] Tito ran to appellant‘s house as he heard his daughter Lilybeth‘s screaming for help, and he saw her lying prostate near the door with her feet trembling. He moved back as he saw appellant armed with a weapon. Angelina told him by the window that appellant had held her mother‘s neck and stabbed her.17[17] Moreover, Dr. Rey Tanchuling, a defense witness who attended to appellant‘s wound, testified on cross-examination that the injuries suffered by appellant were possibly self-inflicted considering that they were mere superficial wounds.18[18] In any event, self-defense on the part of appellant is further negated by the physical evidence in the case. Specifically, the number of wounds, fourteen (14) in

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all, indicates that appellant's act was no longer an act of self-defense but a determined effort to kill his victim.19[19] The victim died of multiple organ failure secondary to multiple stab wounds.20[20] The Court agrees with the trial court‘s observation, thus:
Angelina who is 15 years old will not testify against her father were it not for the fact that she personally saw her father to be the aggressor and stab her mother. Telling her grandfather immediately after the incident that accused stabbed her mother is part of the res gestae hence, admissible as evidence. Between the testimony of Angelica who positively identified accused to have initiated the stabbing and continuously stabbed her mother and on the other hand, the testimony of accused that he killed the victim in self-defense, the testimony of the former prevails.21[21]

The RTC, as affirmed by the Court of Appeals, properly convicted appellant of the complex crime of parricide with unintentional abortion in the killing of his seven (7)-month pregnant wife.

Bearing the penalty of reclusion perpetua to death, the crime of parricide22[22] is committed when: (1) a person is killed; (2) the deceased is killed

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by the accused; and (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused. 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 would be the marriage certificate. The testimony of the accused of being married to the victim, in itself, may also be taken as an admission against penal interest.23[23] As distinguished from infanticide,24[24] the elements of unintentional abortion25[25] are as follows: (1) that there is a pregnant woman; (2) that violence is used upon such pregnant woman without intending an abortion; (3) that the violence is intentionally exerted; and (4) that as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom. In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence.26[26] However, even if the child who was expelled prematurely and deliberately were alive at birth, the offense is abortion due to the

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fact that a fetus with an intrauterine life of 6 months is not viable.27[27] In the present case, the unborn fetus was also killed when the appellant stabbed Lilybeth several times. The case before us is governed by the first clause of Article 4828[28] because by a single act, that of stabbing his wife, appellant committed the grave felony of parricide as well as the less grave felony of unintentional abortion. A complex crime is committed when a single act constitutes two or more grave or less grave felonies.

Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances. Applying the aforesaid provision of law, the maximum penalty for the most serious crime (parricide) is death. However, the Court of Appeals properly commuted the penalty of death imposed on the appellant to reclusion perpetua, pursuant to Republic Act No. 9346.29[29]

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Civil indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is automatically granted to the offended party, or his/her heirs in case of the former‘s death, without need of further evidence other than the fact of the commission of any of the aforementioned crimes (murder, homicide, parricide and rape). Moral and exemplary damages may be separately granted in addition to indemnity. Moral damages can be awarded only upon sufficient proof that the complainant is entitled thereto in accordance with Art. 2217 of the Civil Code, while exemplary damages can be awarded if the crime is committed with one or more aggravating circumstances duly proved. The amounts thereof shall be at the discretion of the courts.30[30] Hence, the civil indemnity of P50,000.00 awarded by the trial court to the heirs of Lilybeth is in order. They are also entitled to moral damages in the amount of P50,000.00 as awarded by the trial court.31[31] In addition to the civil liability and moral damages, the trial court correctly made appellant account for P25,000.00 as exemplary damages on account of relationship, a qualifying circumstance, which was alleged and proved, in the crime of parricide.32[32] WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals is AFFIRMED.

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SO ORDERED.

DANTE O. TINGA Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR. Associate Justice Associate Justice ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division. LEONARDO A. QUISUMBING Associate Justice Chairperson, Second Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, it is hereby certified that the conclusions

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in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

2. Mahawan vs. People Gr no. 176609;

December 18, 2008
THIRD DIVISION

FERNANDO ESTABAS MAHAWAN alias PADO, Petitioner,

G.R. No. 176609

Present:

YNARES-SANTIAGO, J., Chairperson, - versus AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

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PEOPLE OF PHILIPPINES, Respondent.

THE Promulgated:

December 18, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,33[1] petitioner Fernando Estabas Mahawan alias Pado, seeks the reversal of the Decision34[2] of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, which affirmed in toto the Decision35[3] of the Cebu City Regional

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Trial Court (RTC), Branch 10, in Criminal Case No. CBU-42385, dated 10 August 2004, finding him guilty of frustrated homicide.

The records of the case bear the following facts: On 18 October 1996, an Information36[4] was filed before the RTC charging petitioner with frustrated homicide. The accusatory portion of the information reads:

The undersigned Prosecutor I of Cebu City accuses FERNANDO ESTABAS MAHAWAN alias ―PADO‖ of the crime of FRUSTRATED HOMICIDE, committed as follows: That on or about the 5th day of October, 1995, about 9:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a firearm, with deliberate intent and with intent to kill, did then and there attack, assault and use personal violence upon the person of Diosdada Paradero, by firing shots at said Diosdada Paradero, hitting her on the vital parts of her body, thereby inflicting upon her the following physical injuries: ―GUNSHOT WOUND POINT OF ENTRY 3rd ICS (LEFT) MCL. NO POINT OF EXIT, 4 PT. PERFORATION DESCENDING COLON, GRADE II LIVER INJURY SEGMENT I, 1.5 CM. DIAPHRAGMATIC RENT (LEFT) INCISED WOUND (LEFT) EAR LOBULE, (RIGHT) WRIST‖ which injuries, under ordinary circumstance, would cause the death of said Diosdada Paradero, thus performing all the acts of execution which would have produced the crime of homicide, but which nevertheless did not produce it by reason of causes independent of the will of the herein accused, that is, by the timely and able medical assistance rendered to said Diosdada Paradero which prevented her death.

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When arraigned on 22 April 1997, petitioner, assisted by his counsel de parte, pleaded ―Not guilty‖ to the charge.37[5] Trial on the merits thereafter followed.

The prosecution presented as witnesses private complainant Diosdada S. Paradero (Paradero), Dr. James Guardiario (Dr. Guardiario), and Police Chief Inspector Myrna Arreola (Inspector Arreola). Their testimonies, woven together, produce the following narrative:

Paradero is a resident of B. Aranas Extension, Cebu City. Her house has two floors. She operates a store on the ground floor, while the second floor is utilized by her and her family as sala and bedrooms.

On 5 October 1996, at about 9:30 p.m., Paradero was tending her store when petitioner arrived and asked her for a bottle of beer. She told petitioner that there was no more beer. When she was about to open the refrigerator in the store to show petitioner that there was really no more beer, petitioner sneaked inside the store. She closed the refrigerator and faced petitioner. Suddenly, petitioner pulled out a gun (caliber .38 revolver) and shot her on the left chest. She retreated and

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fell on the ground. As petitioner moved closer to her, she grabbed a kitchen knife nearby to defend herself. Petitioner shot Paradero again but the bullet this time merely grazed her left earlobe. Petitioner snatched the kitchen knife from her hand and fled the store.

Paradero‘s sister and some neighbors brought her to Chong Hua Hospital where the gunshot wound in her left chest was treated. She also underwent a surgical operation on her colon (large intestine), liver and diaphragm as these vital organs were hit by the trajectory of the bullet. Dr. Guardiario performed the said treatment and operation.

Meanwhile, petitioner was brought by the police authorities to the Cebu City Police Station for investigation. Thereupon, a paraffin test was conducted on him by Inspector Arreola. The result of the test showed there was gun powder residue on his right hand.

On 16 October 1996, Paradero was discharged from the Chong Hua Hospital.

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On 3 February 1997, Paradero was confined and she underwent another operation on her colon at the Don Vicente Sotto Medical Center. She was discharged therefrom on 14 February 1997.38[6]

The prosecution adduced documentary pieces of evidence to buttress the aforesaid allegations, to wit: (1) medical certificate of Paradero issued by Dr. Guardiario (Exhibit A);39[7] (2) medical certificate of Paradero issued by the chief of Vicente Sotto Memorial Medical Center (Exhibit B);40[8] (3) list of expenses and official receipts as regards Paradero‘s treatment and confinement for a gunshot wound (Exhibit C);41[9] (4) subpoena duces tecum issued by the RTC to Inspector Arreola (Exhibit D);42[10] (5) physical science report on the paraffin test conducted on petitioner (Exhibit E);43[11] and (6) letter-request for paraffin test on petitioner (Exhibit F).44[12]

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For its part, the defense presented the testimonies of petitioner and his friend/neighbor named Antonio Artiaga (Artiaga) to refute the accusations against him. Petitioner disclaimed any liability and invoked self-defense. His version of the incident, as corroborated by Artiaga on some relevant points, is as follows:

On 5 October 1996, at around 9:30 p.m., petitioner went to Paradero‘s store to buy cigarettes. Upon arriving there, he saw Paradero standing near the store‘s door. He asked Paradero if he could buy cigarettes. Paradero replied in a loud voice that she did not have any stock of cigarettes. Suddenly, Paradero, then holding a knife, went out of the store and approached him. Paradero tried to stab him with the knife but he parried the thrust. He and Paradero grappled for possession of the knife causing him injury on the left finger. He did let go of Paradero. The latter, however, attacked him again with the knife. This time he was slightly hit by the knife on the stomach. He drew his firearm and shot Paradero who, upon being hit by the bullet, slumped on the ground. He took Paradero‘s knife and went home. Subsequently, he proceeded to his brother‘s house where he called a policeman named Senior Police Officer 2 (SPO2) Quevedo. He surrendered to SPO2 Quevedo upon the latter‘s arrival at his (petitioner) brother‘s house. SPO2 Quevedo brought him to the Cebu City Police Station where he was investigated. Afterwards, he was taken to the Cebu City

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Medical Center for treatment of the injuries sustained during the incident. Later, he learned that Paradero attacked him with a knife because Paradero had a quarrel with his (petitioner) wife‘s relative named Dindo Ruiz (Ruiz), who was allegedly stabbed and killed by Paradero‘s bata-bata (subordinates).45[13]

The defense likewise proffered the medical certificate of petitioner to support his claims. The medical certificate states that petitioner was treated for incised wounds on the left finger and for abdominal abrasion.46[14]

After trial, the RTC rendered a Decision convicting petitioner of frustrated homicide, sentencing him to an indeterminate term of 6 years of prision correccional, as minimum, to 10 years of prision mayor, as maximum. He was also ordered to pay Paradero the amounts of P110,000.00 as actual damages, P50,000.00 as exemplary damages, P9,000.00 as unearned income, and P50,000.00 as attorney‘s fees. The dispositive portion of the RTC Decision reads:

WHEREFORE, PREMISES CONSIDERED, this Court finds the accused FERNANDO ESTABAS MAHAWAN, GUILTY of committing the crime of FRUSTRATED HOMICIDE. He is hereby sentenced to suffer the indeterminate

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term of SIX (6) YEARS of PRISION CORRECCIONAL as minimum to TEN (10) YEARS OF PRISION MAYOR as maximum thereto.47[15]

Petitioner filed a motion for reconsideration48[16] of the RTC Decision but this was denied.49[17] Undaunted, he appealed to the Court of Appeals.

On 25 May 2006, the appellate court promulgated its Decision affirming in toto the RTC Decision. Petitioner sought a reconsideration50[18] of the appellate court‘s decision but it was denied.51[19] Thus, petitioner lodged the instant petition before us assigning the following errors:

I. THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING IN ITS QUESTIONED DECISION THAT ACCUSED-APPELLANT, PETITIONER

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HEREIN, FAILED TO FIRMLY ESTABLISH THAT UNLAWFUL AGGRESSION PRECEDED HIS ATTACK ON THE PRIVATE OFFENDED PARTY; II. COROLLARILY TO THE FOREGOING, BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT LIKEWISE ERRED IN CONCLUDING THAT THE SECOND AND THIRD ELEMENTS OF SELFDEFENSE ARE WANTING IN THE CASE AT BAR;

III. THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN NOT FINDING THAT THERE WAS NO INTENT TO KILL ON THE PART OF ACUSED-APPELLANT, PETITIONER HEREIN; IV. BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN NOT APPRECIATING THE ―EQUIPOISE DOCTRINE‖ IN FAVOR OF THE ACCUSED-APPELLANT, PETITIONER HEREIN; V. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN TOTO THE AWARD FOR DAMAGES GRANTED BY THE LOWER COURT; VI. THE HONORABLE COURT OF APPEALS ERRED IN DENYING ACCUSED-APPELLANT‘S, PETITIONER HEREIN, EARNEST MOTION FOR RECONSIDERATION WITHOUT CLEARLY SETTING FORTH THE FACTS AND LAW AS BASIS FOR THE DENIAL THEREOF.52[20]

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In the main, petitioner argues he should be acquitted because he merely acted in self-defense when he shot Paradero during the incident. It is axiomatic that where an accused pleads self-defense, he thereby admits authorship of the crime. Accordingly, the burden of evidence is shifted to the accused who must then prove with clear and convincing proof the following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the attack; and (3) lack of sufficient provocation on the part of the person defending himself. Although all three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression attributed to the victim is established, there can be no self-defense, whether complete or incomplete. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense to apply.53[21]

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant‘s life in actual peril. There is an unlawful aggression on the part of the victim when he puts in actual or imminent danger the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon. To constitute unlawful aggression, the person attacked must be

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confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.54[22]

Petitioner asserts that the findings of the RTC and the Court of Appeals are in contrast as to whether there was unlawful aggression on the part of Paradero during the incident; that the Court of Appeals erred in concluding that he failed to establish unlawful aggression on the part of Paradero; that such conclusion contradicts the RTC‘s finding that there was unlawful aggression on the part of Paradero; and that the RTC‘s view is more consistent with the facts and evidence on record as compared with the disquisition of the Court of Appeals.55[23]

We shall first ascertain whether the findings of the RTC and the Court of Appeals are contradictory as to whether petitioner failed to establish unlawful aggression on the part of Paradero.

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In support of his claim that the RTC found unlawful aggression on the part of Paradero, petitioner quoted the following excerpts56[24] from the RTC Decision:
This Court cannot sustain private complainant‘s claim that accused Mahawan, for a flimsy reason that she had no more beer, would immediately enter her store and shoot her with his firearm. x x x. xxxx Correspondingly, this Court would find Mahawan‘s claim that it was the private complainant who attacked him first, to be in accordance with human knowledge and experience of mankind, more so, that accused has a corroborative witness in the person of Mr. Antonio Artiaga, who testified that he saw private complainant holding a knife and was attempting to stab the accused.

As can be gleaned from the foregoing, the RTC believed petitioner‘s allegation that it was Paradero who attacked first during the incident. It should be observed, however, that the RTC does not specifically state or conclude that there was unlawful aggression on the part of Paradero. In the succeeding paragraph, the RTC categorically pronounced that there was insufficient evidence to determine the unlawful aggressor during the incident, thus:
In the case at bar, there is insufficient evidence to determine who was the unlawful aggressor from the start, which would qualify accused‘s claim of selfdefense. It was thus held that: “In the absence of evidence showing that the victim was the unlawful aggressor at the start, the law will consider the aggression as reciprocal between the combatants.”57[25]

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The subsequent disposition of the RTC implies that although the prosecution failed to show by sufficient evidence that it was petitioner who first attacked Paradero, the defense likewise failed to establish that unlawful aggression on the part of Paradero preceded petitioner‘s attack on her. This, in effect, means that petitioner failed to discharge his burden of proving with clear and convincing evidence that there was unlawful aggression on the part of Paradero. This conclusion was evident from the fact that the RTC disregarded petitioner‘s claim of self-defense and convicted the latter of frustrated homicide.58[26] The seemingly confusing statements in the RTC Decision may be a mere result of inadvertence in the drafting of the same. Nevertheless, petitioner cannot capitalize on such in arguing his case. He cannot pluck and cite some portions of the RTC Decision which fit his defense and disregard or omit those parts which are adverse to him. It should be borne in mind that the decision of the court should be read and understood in its entirety.59[27] Given the foregoing, we rule that there is no contradiction between the findings of the RTC and the Court of Appeals that petitioner failed to establish unlawful aggression on the part of Paradero.

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We shall now determine whether the findings of both courts that petitioner failed to establish unlawful aggression on the part of Paradero were correct. Paradero testified that on the night of the incident, petitioner went to her store and asked for a bottle of beer. When she told petitioner that there was no more beer, the latter entered her store, confronted her, and shot her with a gun. There is nothing in the foregoing which evinces unlawful aggression on the part of Paradero. What is clear is that petitioner was the aggressor during the incident. We have carefully examined the testimony of Paradero and found it to be credible and trustworthy. She testified in a clear and consistent manner during the trial. She was faithful and steadfast in recounting her ordeal despite the grueling crossexamination of the defense. Besides, Paradero testified that petitioner was drunk at the time of the incident. She also declared that she had known petitioner since 1988 and that the latter had, under the influence of alcohol, assaulted several persons.60[28] These circumstances reinforce the allegation petitioner‘s propensity for harming people when he gets drunk. On the other hand, petitioner narrated that when he went to Paradero‘s store to buy cigarettes, the latter replied in a loud voice that she did not have any stock of cigarettes. Paradero, then holding a knife, suddenly went out of the store and attacked him. This testimony does not inspire belief. It is inconsistent with logic and human experience that after Paradero told petitioner that there were no more cigarettes, Paradero would thereafter immediately attack petitioner. Precisely, there was no reason for Paradero to be angry and thereupon assault petitioner. It was petitioner who had more reason to be angry and attack Paradero, because the

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latter had told him in a loud voice that there were no more cigarettes. Petitioner alleged that Paradero attacked him because she had a grudge against his wife‘s relative named Dindo Ruiz. He also claimed that Ruiz had been stabbed and killed by Paradero‘s bata-bata (subordinates). These uncorroborated allegations deserve scant consideration for being unsubstantiated and unsupported by evidence. The fact that petitioner sustained injuries on his hand and stomach, allegedly caused by Paradero‘s knife, does not signify that he was a victim of unlawful aggression. The medical certificate presented by petitioner states that the latter sustained incised wounds on the 2nd and 5th fingers measuring 2 centimeters and abdominal abrasion measuring 2.5 centimeters. Petitioner was discharged on the same day he was treated in the hospital.61[29] It is clear from the foregoing that the injuries he sustained were not serious or severe. The superficiality of the injuries was not indication that his life and limb were in actual peril.62[30] In stark contrast, Paradero sustained a gunshot wound on the left chest. The trajectory of the bullet hit and seriously injured her liver, colon and diaphragm. This caused her to undergo two surgical operations. She also sustained wounds on her left forearm, right wrist and left earlobe. Based on the foregoing, it is difficult to believe that Paradero was the unlawful aggressor. The gravity, location, and number of wounds she sustained belie self-defense on petitioner‘s part.63[31]

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Hence, the RTC and the Court of Appeals were correct in concluding that petitioner failed to establish unlawful aggression on the part of Paradero. Apropos the second issue, petitioner maintains that the second element of self-defense, which is reasonable necessity of the means employed to prevent or repel the attack, was present in the instant case; that although he was younger, taller, and heavier than Paradero, it does not mean that there was no reasonable necessity on his part to shoot Paradero; that the RTC and the Court of Appeals overlooked the fact that he was forced to shoot Paradero because the latter had already stabbed him twice and thus caused a wound on his belly measuring 4 centimeters; that people react differently to a given situation, and that he merely acted under the instinct of self-preservation; that any person placed in his situation during the incident would do the same thing he did and would not risk the chance of being stabbed for the third time or expose himself to unnecessary danger; and that it was unfair to judge his act as totally and morally wrong. Further, petitioner avers that the third element of self-defense, which is lack of sufficient provocation on the part of the person making the defense, was present in the case at bar; and that he did not commit any act or omission which provoked Paradero to attack him.64[32]

The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed

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may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.65[33]

In the case at bar, there was no reason or necessity for petitioner to shoot Paradero with a gun. Paradero was merely tending her store and did not attack or place in danger the life of petitioner during the incident. Even if we are to adopt petitioner‘s version of the incident, his act of shooting Paradero would not also be a reasonable and necessary means of repelling the aggression allegedly initiated by Paradero. As aptly observed by the RTC:

Indubitably, considering the age, height, built and sex of the accused and the victim, the accused was 31 years old and about 5‘9 to 5‘10 in height and heavily built, while the victim is frail and about 5‘1, more or less, in height, the struggle for the possession of the knife would be over in a few seconds and accused would be able to disarm the victim. There is, therefore, no immediate need for the accused to fire his gun to stop the victim from attacking him. Proof of this is the knife presented by the accused in court which he had allegedly confiscated from the private complainant.66[34]

In addition, petitioner was armed with a gun while Paradero supposedly held a knife. Petitioner should have fired a warning shot first to ward off Paradero or, if the latter persisted in attacking, fired a shot at a non-vital portion of her body in order to disable her instead of shooting her instantly in the chest. Further, when Paradero allegedly approached and tried to stab him, petitioner was not trapped or

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cornered in a specific area such that he had no way out. He testified that he and Paradero were outside the store during the incident. He could have run away and called the neighbors or police for help. In short, petitioner had other less harmful options than to shoot Paradero. Indeed, petitioner‘s act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression. As we earlier found, petitioner shot Paradero when she told him there was no more stock of cigarettes. Paradero then was forced to grab a knife to defend herself. Clearly, petitioner provoked Paradero and not the other way around. Hence, the element of lack of sufficient provocation on the part of the person making the defense is also wanting in the present case. Self-defense is inherently a weak defense because, as experience has demonstrated, it is easy to fabricate and difficult to prove.67[35] Thus, for this defense to prosper, the accused must prove with clear and convincing evidence the elements of self-defense. He must rely on the strength of his own evidence and not on the weakness of that of the prosecution. Even if the evidence of the prosecution is weak, it cannot be disbelieved if the accused admitted responsibility for the crime charged.68[36] In the case before us, petitioner failed to prove with plausible evidence all the elements of self-defense. Hence, his plea of self-defense must fail.

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Regarding the third issue, petitioner posits that the fact that he shot Paradero only once showed that he had no intent to kill her. There would have been intent to kill on his part if he shot Paradero several times, but such was not the case. Further, when Paradero fell on the ground, he immediately left the scene. He could have finished her off at that moment if he really intended to kill her.69[37] An essential element of homicide, whether in its consummated, frustrated or attempted stage, is intent of the offender to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.70[38] Evidence to prove intent to kill in crimes against persons may consist, inter alia, of the means used by the malefactors; the nature, location and number of wounds sustained by the victim; the conduct of the malefactors before, at the time of, or immediately after the killing of the victim, the circumstances under which the crime was committed; and the motive of the accused.71[39]

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In the instant case, petitioner used a lethal weapon, i.e., a gun, in assaulting Paradero. He shot Paradero twice at a distance of two meters.72[40] The bullet from the first shot hit Paradero‘s left chest. The trajectory of the bullet hit Paradero‘s vital organs such as the liver and colon. The bullet from the second shot hit Paradero‘s left earlobe. Moreover, Dr. Guardiario testified that the injury on Paradero‘s colon was fatal and would have caused her death were it not for the timely medical attention given her.73[41] The seriousness of Paradero‘s injuries was also shown by the fact that she was confined and operated on twice in different hospitals for the wound sustained in the colon. Verily, the foregoing circumstances clearly manifest intent to kill on the part of petitioner. Even assuming, arguendo, that Paradero sustained only one gunshot wound, such does not negate intent to kill on the part of petitioner. The number of wounds inflicted is not the sole consideration in proving intent to kill.74[42] As earlier mentioned, the means used by the malefactors and the nature and location of the wounds also manifest intent to kill. Petitioner‘s use of a gun in shooting Paradero on the chest and the fact that the bullet hit some of her vital organs of Paradero clearly indicate intent to kill. With regard to the fourth issue, petitioner claims that his testimony was corroborated by Artiaga, while the testimony of Paradero was uncorroborated. As

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such, his testimony deserves credence and the equipoise doctrine should be applied in his favor.75[43] Credibility is weighed not by the number of witnesses but by the quality of their testimonies.76[44] Witnesses are to be weighed, not numbered. Evidence is assessed in terms of quality and not quantity. Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily on the greatest number, and conviction can still be had on the basis of the credible and positive testimony of a single witness.77[45] We have earlier found the sole testimony of Paradero to be more credible than that of petitioner, even if the latter‘s testimony was corroborated by Artiaga on some relevant points. Paradero‘s account of the incident was clear and consistent. On the other hand, petitioner‘s narration of the incident, though corroborated by Artiaga, hardly inspires belief, as it does not conform to reason and human experience. Further, the RTC and CA upheld the sole testimony of Paradero over that of petitioner. They concluded that petitioner failed to prove his claim of self-defense despite the fact that her testimony was corroborated by Artiaga. Basic is the rule that factual findings of the trial court deserve great

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weight and respect especially when affirmed by the appellate court.78[46] We found no compelling reason to disturb the ruling of both courts. Given the foregoing, Paradero‘s testimony outweighs the testimonies of petitioner and Artiaga. Petitioner‘s reliance on the equipoise rule is misplaced. Under the equipoise rule, where the evidence on an issue of fact is in equipoise (evenly balanced), or there is doubt on which side the evidence preponderates, the party having the burden of proof loses.79[47] The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations -- one of which is consistent with the innocence of the accused and the other with his guilt -- in which case the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.80[48] In the instant case, there are no inculpatory facts and circumstances which are capable of two or more explanations because petitioner has already admitted shooting Paradero. In other words, there is no more issue as to the innocence or guilt of petitioner. What is left to be resolved is whether he can be relieved of liability by virtue of the self-defense he pleaded. We have earlier held that petitioner failed to discharge his burden of proving with clear and convincing

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evidence the presence of the elements of self-defense. Thus, the equipoise rule does not apply to this case. As regards the fifth issue, petitioner avers that the award of actual damages to Paradero in the amount of P110,000.00 was unwarranted, because her name was not indicated in the hospital and medication receipts presented by the prosecution; that the grant of exemplary damages was not proper because there was unlawful aggression on the part of Paradero; that the award of P9,000.00 as unearned income was inappropriate, as there was no basis or evidence to support the same; and that the award of attorney‘s fees amounting to P50,000.00 was improper because there was unlawful aggression on the part of Paradero.81[49] To be entitled to an award of actual damages, there must be competent proof of the actual amount of loss. Credence can only be given to those that are supported by receipts.82[50] Most of the receipts on record83[51] were issued in Paradero‘s name. Although her name was not stated in the other receipts, it appears, however, that these receipts were issued to Paradero‘s relatives and that the items covered by the same were purchased for Paradero. Also, it is a fact that some pharmacy outlets do

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not specify the name of the purchaser in the receipts they issue, but only indicate the items sold and their corresponding amounts. The receipts on record show that Paradero incurred expenses in the amount of P22,426.06. She claimed other expenses, but they are not supported by receipts or other competent proofs. As such, the amount of actual damages awarded by the RTC and the Court of Appeals should be reduced from P110,000.00 to P22,426.06. However, we have held that when actual damages proven by receipts amount to less than P25,000.00, such as in the present case, the award of temperate damages amounting to P25,000.00 is justified in lieu of actual damages for a lesser amount.84[52] This is based on a sound reasoning that it would be anomalous and unfair that the victim who tried but succeeded in proving actual damages of less than P25,000.00 only would be in a worse situation than another who might have presented no receipts at all but would be entitled to P25,000.00 temperate damages.85[53] Thus, instead of P22,426.06, the amount of P25,000.00 as temperate damages should be awarded to Paradero. We agree with petitioner that Paradero is not entitled to exemplary damages, but we differ in his reason for the disallowance thereof. Exemplary damages may be awarded only when one or more aggravating/qualifying circumstances are alleged in the information and proved during the trial.86[54] In the instant case,

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no aggravating/qualifying circumstance was alleged in the information. Hence, the award of exemplary damages by the RTC and the Court of Appeals is unwarranted. The general rule is that documentary evidence should be presented to substantiate a claim for damages for loss of earning capacity. As an exception, damages may be awarded in the absence of documentary evidence, provided that there is testimony that the victim was either (1) self-employed and earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in victim‘s line of work, no documentary evidence is available; or (2) employed as a daily wage worker earning less than the minimum wage under current labor laws.87[55] In the case under consideration, no documentary evidence was adduced to support Paradero‘s claim for loss of earning capacity. Nonetheless, Paradero testified that she derived her income from operating a small sari-sari store, which she also owned. She also stated that she earned less than P50.00 a day from selling goods in her sari-sari store.88[56] It is a fact and commonly recognized in our country that owners or operators of small sari-sari store, such as Paradero, do not issue official receipts since the quantity of the items being sold is minimal and these are sold cheap. Thus, Paradero is entitled to indemnity for loss of earning capacity. As to its proper amount, we agree with the RTC and the Court of Appeals that Paradero is entitled to P9,000.00.

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Records89[57] show that Paradero underwent treatment and medication, which incapacitated her from working in her store for a period of 6 months. Hence, the computation is P50.00 multiplied by 180 days or 6 months. Consequently, the amount which she could have earned during the said period was P9,000.00. Likewise, the award of attorney‘s fees in the amount of P50,000.00 is in order90[58] because the records show that Paradero incurred such expenses in hiring a private prosecutor for the instant case.91[59] In his last assigned error, petitioner insists that the Court of Appeals erred in denying his motion for reconsideration without setting forth the factual and legal bases for the denial. Art. VIII, Sec. 14 of the Constitution provides that ―no petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.‖ This requirement was fully complied with when the Court of Appeals, in denying reconsideration of its decision, stated in its resolution that it found no reason to change its ruling, because petitioner had not raised anything new.92[60] Thus, its resolution denying petitioner‘s motion for reconsideration states:

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For consideration is accused-appellant‘s motion for reconsideration of this Court‘s decision promulgated on May 25, 2006. Acting on the motion filed by the accused-appellant, and considering that the same discloses no substantial argument or cogent reason to warrant a reconsideration or modification of our assailed decision which has already considered, if not squarely ruled upon, the arguments herein presented, we resolve to deny the motion. WHEREFORE, there being no cogent reason for us to depart from our questioned findings, we hereby DENY the aforementioned motion.93[61]

We shall now determine the propriety of petitioner‘s conviction for frustrated homicide and the corresponding prison term imposed. We have held that the crime of frustrated homicide is committed if the following are present: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code is present.94[62] All of the aforementioned are present and were duly establish in the case at bar. First, petitioner‘s use of a gun and his act of firing it twice from a distance of 2 meters towards Paradero clearly indicated his intent to kill her. Second, vital organs of Paradero like her liver and colon were hit by the trajectory of the bullet. Dr. Guardiario testified that the injury on Paradero‘s colon was fatal and would

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have caused her death were it not for the timely medical attention given her. And third, none of the qualifying circumstances for murder was alleged in the information. Thus, the RTC and the Court of Appeals were correct in convicting petitioner of frustrated homicide. Petitioner, nonetheless, alleges that he is entitled to the mitigating circumstance of voluntary surrender. We agree on this point with petitioner. For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the offender has not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.95[63] The foregoing requisites are present in the case before us. Petitioner has not been actually arrested. After the incident, he immediately went to his brother‘s house and thereupon called via telephone a policeman named SPO2 Quevedo. He told SPO2 Quevedo that he wanted to surrender. Upon the latter‘s arrival at the house of petitioner‘s brother, petitioner turned himself in and, thereafter, he was brought to the police station.96[64] The prosecution did not rebut the foregoing facts.

The penalty for frustrated homicide, pursuant to Article 250 of the Revised Penal Code, is prision mayor. There being one mitigating circumstance and no aggravating circumstance, pursuant to Article 64(2) of the Revised Penal Code, the

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minimum period of prision mayor should be imposed. Applying the Indeterminate Sentence Law, the range of the penalty is 4 years, 2 months and 1 day to 6 years of prision correccional as minimum, to 6 years and 1 day to 8 years of prision mayor as maximum. Thus, the RTC and the Court of Appeals erred in sentencing petitioner to a term of 6 years of prision correccional as minimum to 10 years of prision mayor as maximum. The proper penalty to be imposed on petitioner is 6 years of prision correccional, as minimum to 8 years of prision mayor, as maximum. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, is hereby AFFIRMED with the following MODIFICATIONS: (1) petitioner Fernando Estabas Mahawan is sentenced to an indeterminate sentence of 6 years of prision correccional, as minimum to 8 years of prision mayor, as maximum; (2) the amount of P25,000.00 as temperate damages is awarded to Diosdada Pardero in lieu of the actual damages; and (3) the award of exemplary damages in the amount of P50,000.00 is deleted. SO ORDERED.
MINITA V. CHICO-NAZARIO

Associate Justice

WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

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MA. ALICIA AUSTRIA-MARTINEZ

ANTONIO EDUARDO B. NACHURA Associate Justice

Associate Justice

RUBEN T. REYES

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division
CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman‘s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO
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Chief Justice

3. People vs. Badriago Gr. No. 183566; December 18, 2008
Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 183566

Present: - versus CARPIO MORALES, J., Acting Chairperson, BONIFACIO BADRIAGO, TINGA,

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Accused-Appellant.

VELASCO, JR., LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated:

May 8, 2009 x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

On automatic review is the Decision dated April 22, 2008 of the Court of Appeals (CA) in CA G.R. CR-H.C. No. 00129, which found accused-appellant Bonifacio Badriago guilty of Frustrated Homicide in Criminal Case No. 4255 and Murder in Criminal Case No. 4276.

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The Facts

Accused-appellant was charged before the Regional Trial Court (RTC) under the following Informations:
Criminal Case No. 4255

That on or about the 13th day of September 2002 in the Municipality of Carigara, [P]rovince of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and hack one ADRIAN QUINTO, with the use of a long sharp bolo (sundang) which the accused had provided himself for the purpose, thereby inflicting upon the latter the following wounds, to wit: SURGERY NOTES: (+) hacked wounds transverse approximately 16 cms. Linear (L) lumbar area level of L-L5 (+) hacked wound (L) forearm. ORTHO NOTES: A) Near amputation M/3rd (L) forearm 2˚ to hack wound. DIAGNOSIS: Hack wound 15 cms. oblique level of L2 posterior lumbar area, transecting underlying muscle. Fracture both radius and ulna. OPERATION: September 14, 2002. Wound Debridement and Repair ORIF (Pinning) Which wounds required a period of from thirty (30) days to ninety (90) days to heal and incapacitated said offended party from performing his habitual work for the same period of time; thus the accused performed all the acts of execution which [would] have produced the crime of Homicide as a consequence thereof, but nevertheless did not produce it by reason or causes independent of the will of the accused, that is the timely and able medical assistance rendered to the said Adrian Quinto which prevented his death.
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CONTRARY TO LAW.

Criminal Case No. 4276

That on or about the 13th day of September, 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, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab one OLIVER QUINTO with the use of a long sharp bolo (sundang) which the accused had provided himself for the purpose, thereby inflicting upon the latter the following wounds, to wit: 1. [Stab] wound 4 cm. x 1.5 cm. x 16 cm. (L) ant. chest at the level of 5th ICS along the (L) ICL; 2. [Stab] wound 6.5 x 3 cm. x 22 cm. (L) ant. chest at the level of 6th ICS along (L) anterior AAL; 3. [Stab] wound 3.5 cm. x 1.5 x 2 cm., (L) arm proximal 3rd lateral aspect; 4. Amputating wound (L) 3rd, 4th and 5th finger; 5. [Stab] wound 5 cm. x 3.5 cm. x 6 cm. umbilical area with intestinal and omental prolapsed; 6. Hacking wound 9 cm. x 2 cm. (L) occipital area with skull fracture; 7. [Stab] wound 3 cm. x 1 cm. x 15 cm. (L) posterior back at the level of T 12, 3 cm. away from vertebral line; 8. [Stab] wound 2 cm. x 1 cm. x 9 cm. (L) posterior back 8 cm. away from vertebral line; 9. Hacking wound 11 cm. x 2 cm. x 9 cm. (L) posterior iliac with fracture of hip bone; 10. [Stab] wound 3 cm. x 2 cm. x 3 cm. (L) buttocks; 11. [Stab] wound 5.5 cm. x 1.5 cm. x 2.5 cm. lumbar area along the vertebral line. which wounds caused the death of said Oliver Quinto. CONTRARY TO LAW.97[1]

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Upon arraignment, accused-appellant pleaded not guilty to both charges. The parties later agreed to try the case jointly. During trial, the prosecution presented the following witnesses: Dr. Ma. Bella Profetana, Adrian Quinto, Dr. Frederic Joseph Asanza, and Victoriano Quinto. The defense witnesses consisted of accused-appellant and Rodolfo Gabon. The prosecution‘s presentation of evidence is summarized as follows: Adrian testified that on the morning of September 13, 2002, he was asked by his mother to bring a letter to one Berting Bello at Barangay Guindapunan, Leyte. He drove a tricycle to deliver the letter along with his younger brother, Oliver. After finishing the errand they headed back to the town plaza where their mother was waiting for them. Before they could reach their destination, however, they were approached by accused-appellant at Sitio Mombon in Carigara. Accused-appellant then suddenly hacked him with a sundang or long bolo on his lumbar area.98[2] Accused-appellant aimed a second time but Adrian was able to somehow shield himself. His lower left arm suffered a hack wound as a result. Struck with panic, he jumped off the tricycle but could not run away. He was able to push Oliver off the tricycle so he could run away and call for help. He could no longer testify on what happened thereafter as he lost consciousness and only woke up while confined at Carigara District Hospital. His mother later informed him that Oliver was also attacked and did not survive. Dr. Asanza‘s testimony showed that Adrian suffered from two wounds that could have been fatal: the hack wound on the lumbar area and on his left arm. He explained that Adrian could have died had he not been brought to the hospital.

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When cross-examined, he stated that there was a possibility that Adrian could still crawl or walk despite the infliction of the wound on the lumbar area. He also testified that it was possible that Adrian was first hit on the forearm as he was facing accused-appellant and that he could have been hit on the lumbar area while he was running.99[3] Dr. Profetana told the court that her post-mortem examination of Oliver showed that eight of the 11 wounds inflicted on him were fatal. She identified hypovolemic shock as Oliver‘s cause of death. Furthermore, she stated that it was impossible for the victim to have survived the wounds as these severed the blood vessels and caused hemorrhage.100[4] Victoriano, father of the victims, testified that his family incurred PhP 20,000 in expenses for the stainless bar placed on Adrian‘s injured arm. According to his estimate, they spent about PhP 50,000 for Adrian‘s two -month hospitalization but they were not able to keep the receipts. For the death of his other son, Oliver, they spent PhP 9,000 for the coffin and about PhP 10,000 for the wake. He likewise testified that if his family‘s losses could be quantified they would claim the amount of PhP 100,000.101[5

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In his defense, accused-appellant stated under oath that on the morning of September 13, 2002, he was on his pedicab looking for passengers. While he was on his way to the bus terminal in Carigara, Leyte, he was accosted by Adrian and Oliver, who carried stones with them. Adrian called out to him, ―Now Boning, let us fight.‖ He tried to speed away but the two chased him, with Adrian driving his pedicab and Oliver standing on the cargo compartment. They bumped accusedappellant‘s pedicab, causing him to swerve to the middle of the road.102[6] When accused-appellant looked back, Adrian got out of his pedicab and approached him with a knife about 10 inches long. Seeing Adrian was about to stab him, he grabbed a bolo from his pedicab‘s passenger seat and used it to strike at Adrian, injuring his left hand. Adrian‘s knife fell and when he bent to pi ck it up, accusedappellant again hacked at him with his bolo. Adrian then managed to run away from accused-appellant and head towards Barangay Guindapunan. Accusedappellant, meanwhile, ran towards the municipal building to inform the police that he had injured someone. He denied killing Oliver as while he was fighting with Adrian he did not even see Oliver.103[7] When cross-examined accused-appellant admitted that he did not suffer any injury following the confrontation with Adrian. He claimed not to know what happened to Oliver. The other defense witness, Rodolfo, testified that he knew accused-appellant as a pedicab driver. On the day of the incident he saw two pedicabs engaged in a

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chase. He noticed that accused-appellant was in one pedicab and he was being chased by the pedicab driven by Adrian. The bumper of accused-appellant‘s pedicab was bumped by Adrian‘s pedicab. From a distance of about four arms‘ length, he saw the two go down from their respective pedicabs. Adrian said ―let‘s have a fight‖ while drawing a short bolo from his waist. Adrian tried to stab accused-appellant but was unable to hit him. He then saw accused-appellant draw his own bolo from his waist and hit the left arm of Adrian. Adrian‘s bolo fell to the ground and when he was about to pick it up he was again hit by accused-appellant. On cross-examination, Rodolfo stated that he had not seen if Adrian had a passenger on board his pedicab, and that the incident occurred along a national road with many houses and shrubbery.104[8] On July 29, 2004, the RTC rendered its judgment. Accused-appellant was found guilty of the crimes charged. The fallo of the Decision is as follows:
WHEREFORE, premises considered, with the aggravating circumstance of treachery, the Court [finds] accused BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER instead of Frustrated Homicide in Criminal Case No. 4255, and [sentences him] to suffer an indeterminate penalty 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 pay Adrian Quinto actual damages in the amount of Twenty Thousand (P20,000.00) Pesos and exemplary damages in the amount of Ten Thousand (P10,000.00) pesos. Likewise, pursuant to Art. 248 of the Revised Penal Code as amended and further amended by R.A. No. 7659 (The Death Penalty Law) the Court found accused BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt of the crime of MURDER charged under the information in Criminal Case No. 4276, and sentenced to suffer the maximum penalty of DEATH, and pay the heirs of Oliver Quinto civil indemnity in the amount of Seventy Five Thousand

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(P75,000.00) and exemplary damages in the amount of Twenty Five Thousand (P25,000.00) Pesos; and [to] pay the cost. SO ORDERED.105[9]

On September 14, 2004, the records of the case were transferred to this Court on automatic review as the death penalty was involved. But conformably with People v. Mateo,106[10] the case was transferred to the CA via a Resolution dated February 15, 2005. Accused-appellant, in his Brief filed before the CA, claimed that the trial court erred in convicting him of frustrated murder as what was read to him at his arraignment was a charge for frustrated homicide, and the trial court likewise erred in convicting him of frustrated murder and murder as his guilt was not proved beyond reasonable doubt. He also challenged the conviction on the ground that the mitigating circumstances of voluntary surrender, incomplete self-defense, and lack of intention to commit so grave a wrong were not appreciated by the trial court. The CA sustained accused-appellant‘s first contention. It ruled that his conviction for frustrated murder was a gross violation of his constitutional right to be informed of the nature and the cause of accusation against him. Accusedappellant‘s other arguments, however, were not given merit. The CA noted the undisputed fact that it was accused-appellant, claiming self-defense, who inflicted the wounds sustained by Adrian and Oliver. The circumstantial evidence presented

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showed accused-appellant‘s culpability. Moreover, according to the CA, his choice of weapon and the areas he hacked on the victim‘s bodies revealed a clear intention to kill. The CA said he was able to injure the brothers with no injury caused to himself. Lastly, the appellate court rejected the mitigating circumstances proffered by accused-appellant. It ruled that there was no voluntary surrender as accusedappellant himself testified that he had merely reported the injury and did not surrender. As to the self-defense theory, the CA stated that accused-appellant failed to establish the victims‘ unlawful aggression, a requisite in such a mitigating circumstance. In view of Republic Act No. 9346 or An Act Prohibiting the Imposition of Death,107[11] the CA reduced accused-appellant‘s penalty to reclusion perpetua with respect to the murder charge in Criminal Case No. 4276. The decretal portion of the CA Decision reads:

WHEREFORE, all the foregoing taken into account, the instant appeal is partially granted. Accordingly, in Criminal Cases No. 4255 accused-appellant is found guilty only of FRUSTRATED HOMICIDE and is hereby penalized to suffer an indeterminate sentence of 2 years, 4 months and 1 day of prision correccional as minimum to 8 years and 1 day of prison mayor as maximum and to pay Adrian Quinto the sum of twenty five thousand pesos (P25,000.00) by way of temperate damages. In criminal case no. 4276 accused-appellant is found guilty of MURDER and is hereby sentenced to Reclusion Perpetua and to pay the amount of fifty

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thousand pesos (Php50,000.00) as civil indemnity; twenty five thousand pesos (P25,000.00) by way of temperate damages, fifty thousand pesos (P50,000.00) as moral damages and twenty-five thousand pesos (P25,000.00) as exemplary damages. With costs. SO ORDERED.108[12]

The Issues On September 1, 2008, this Court notified the parties that they may file supplemental briefs if they so desired. The parties manifested that they were dispensing with such filing. Accused-appellant, thus, re-pleads his arguments first made before the CA. His appeal being partially granted, the only remaining issues to be resolved are the following:

I THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME OF FRUSTRATED HOMICIDE AND MURDER DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT II THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER, INCOMPLETE SELF-DEFENSE, AND LACK OF INTENTION TO COMMIT SO GRAVE A WRONG

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Our Ruling

We affirm accused-appellant‘s conviction. Frustrated Homicide To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.109[13] Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without medical intervention or attendance.110[14] On the other hand, the essential elements of a frustrated felony are as follows: (1) The offender performs all the acts of execution; (2) all the acts performed would produce the felony as a consequence; (3) but the felony is not produced; and (4) by reason of causes independent of the will of the perpetrator.111[15]

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From the evidence presented to the trial court, it is very much clear that accused-appellant was able to perform all the acts that would necessarily result in Adrian‘s death. His intention to kill can be presumed from the lethal hacking blows Adrian received. His attack on Adrian with a bolo was not justified. His claim of self-defense was not given credence by both the trial and appellate courts. Neither are there any of the qualifying circumstances of murder, parricide, and infanticide. The circumstances, thus, make out a case for frustrated homicide as accusedappellant performed all the acts necessary to kill Adrian; Adrian only survived due to timely medical intervention as testified to by his examining physician. Murder Qualified by Treachery It is also argued by the defense that the attendant qualifying circumstance of treachery was not proved by clear and convincing evidence. Accused-appellant reasons that Adrian was still able to put up a defense by parrying the blow made by accused-appellant and was even able to jump off from the pedicab he was driving. He, thus, maintains that the trial court erroneously characterized the incident as a sudden attack. The essence of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no chance to resist or to escape.112[16] 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

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defend themselves or to retaliate.113[17] The records show that Adrian was suddenly attacked with a bolo, and the most he could do at that moment was to shield himself somehow from the blow with his arm. Another blow to Adrian‘s back showed the vulnerability of his position as he had his back turned to accusedappellant and was not able to flee from attack. Treachery may also be appreciated even if the victims were warned of the danger to their lives where they were defenseless and unable to flee at the time of the infliction of the coup de grace.114[18] Sufficiency of the Prosecution’s Evidence Accused-appellant speculates that if the incident happened in broad daylight and near a bus terminal, there should have been independent eyewitnesses identifying accused-appellant as Oliver‘s killer. Much is made of the fact that not even Adrian was able to identify accused-appellant as Oliver‘s assailant. The failure by the prosecution to present the weapon allegedly used in the attack is, in accused-appellant‘s mind, yet another obstacle to the State‘s obligation to prove guilt beyond reasonable doubt. We hold that the circumstantial evidence available was enough to convict accused-appellant. Circumstantial evidence may be competent to establish guilt as long as it is sufficient to establish beyond a reasonable doubt that the accused, and

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not someone else, was responsible for the killing.115[19] Circumstantial evidence is sufficient for conviction as long as there is (1) more than one circumstance; (2) the facts from which the inferences are derived are proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.116[20] We go back to accused-appellant‘s own admission that he indeed injured Adrian, causing him near-fatal injuries. From this admission the rest of the evidence, albeit circumstantial, made out a clear case for Oliver‘s murder. First, the victims were together in Adrian‘s pedicab when the attack took place; second, accused-appellant hacked Adrian with a bolo; third, Adrian‘s injuries were caused by a bolo; fourth, Adrian tried to push Oliver to safety before he lost unconsciousness; fifth, Oliver‘s wounds were found to have been caused by a weapon that made similar hacking wounds as the one made by accused-appellant when he assaulted Adrian; and sixth, Oliver died on the same day Adrian sustained stab wounds. Although there is no direct evidence of Oliver‘s actual wounding, the circumstantial evidence presented sufficiently established that it was accusedappellant who perpetrated the twin attacks on the brothers

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Accused-appellant, thus, cannot argue that the prosecution‘s evidence was insufficient to convict him. Furthermore, we have long ago held that the presentation of the murder weapon is not even essential for a conviction.117[21]

Voluntary Surrender For the mitigating circumstance of voluntary surrender to be appreciated, the surrender must be spontaneous and in a manner that shows that the accused made an unconditional surrender to the authorities, either based on recognition of guilt or from the desire to save the authorities from the trouble and expenses that would be involved in the accused‘s search and capture.118[22] Moreover, it is imperative that the accused was not actually arrested, the surrender is before a person in authority or an agent of a person in authority, and the surrender was voluntary.119[23] None of these requisites are present in accused-appellant‘s case. In fact, jurisprudence holds that merely reporting the incident cannot be considered voluntary surrender within contemplation of the law.120[24] By accused

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appellant‘s own admission, he only went to the authorities to inform them that Adrian was injured. What is more, accused-appellant claims he had nothing to do with the murder of Oliver. Even if we were to consider voluntary surrender as mitigating, this would only apply to the injury inflicted on Adrian. Accusedappellant denies culpability in Oliver‘s death and this negates any

acknowledgement of guilt. Incomplete Self-Defense We likewise find implausible accused-appellant‘s assertion that he employed self-defense. The records show that the requisites of a successful claim of selfdefense were not met. As found in the Revised Penal Code, these are:
Art. 11. Justifying circumstances.––The following do not incur any criminal liability: 1. Any one 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.

In incomplete self-defense, the indispensable requisite is unlawful aggression.121[25] What is missing is either reasonable necessity of the means employed to prevent or repel it or lack of sufficient provocation on the part of the persons defending themselves. In the instant case, accused-appellant‘s self-serving claim of self-defense coupled with the fact that he did not sustain any injuries from

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his supposed attacker, Adrian, fails to support any claim of unlawful aggression, the crucial requisite to his defense. As the appellate court noted, there was no clear, credible, and convincing evidence that Adrian was the one who instigated the fight and that accused-appellant was merely fending off an attack. Unlawful aggression by the victim must be clearly shown.122[26]

Lack of Intention to Commit So Grave a Wrong Under Article 13(3) of the Code, the circumstance that the offender had no intention to commit so grave a wrong as that committed mitigates criminal liability. This mitigating circumstance addresses itself to the intention of the offender at the particular moment when the offender executes or commits the criminal act.123[27] Looking at the victims‘ wounds, however, we cannot count the circumstance in accused-appellant‘s favor. Adrian suffered a hacking wound on his left forearm that caused near amputation, and another one on his lumbar area. These wounds would have been fatal were it not for timely medical assistance. Oliver, on the other hand, bore the brunt of the attack with eleven (11) different stab wounds, including one on the skull and on the chest. The number, location, and nature of these stab wounds belie accused-appellant‘s claim of lack of intention to commit so grave a wrong against his victim.124[28

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Conclusion

We agree with the findings by the trial and appellate courts on the particulars of the case. Findings of facts of the trial court, as affirmed by the appellate court, are conclusive absent any evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and circumstances of substance which, if considered, would warrant a modification or reversal of the outcome of the case.125[29] Since the aforementioned exceptions are not present, accused-appellant‘s conviction is warranted. Finally, we affirm the sentence imposed on accused-appellant in both criminal cases. In accordance with jurisprudence,126[30] we, however, additionally award moral damages of PhP 50,000 to Adrian. His physical, psychological, and moral sufferings from the wounds inflicted on him serve as the basis for the award and this does not require proof or pleading as ground for this award.127[31]

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WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CRH.C. No. 00129 which found accused-appellant guilty of Frustrated Homicide in Criminal Case No. 4255 and Murder in Criminal Case No. 4276 is AFFIRMED with the MODIFICATION that he is likewise ordered to pay Adrian the amount of PhP 50,000 as moral damages. SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice WE CONCUR CONCHITA CARPIO MORALES Associate Justice Acting Chairperson

DANTE O. TINGA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division
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CONCHITA CARPIO MORALES Associate Justice Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson‘s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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4. People vs. Regalario Gr. No. 174483; March 31, 2009

EN BANC

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 174483

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, - versus CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO,* VELASCO, JR.,

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NACHURA,** LEONARDO-DE CASTRO, BRION,* and RAMON REGALARIO, PERALTA, JJ. MARCIANO REGALARIO, SOTERO REGALARIO, Promulgated: BIENVENIDO REGALARIO and March 31, 2009 NOEL REGALARIO, Accused-Appellants. x-----------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

For automatic review is the decision128[1] of the Court of Appeals (CA) in CA-G.R. CR No. 01556 which affirmed with modification, an earlier decision129[2] of the Regional Trial Court of Ligao, Albay, Branch 13 in Criminal

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Case No. 3613, finding accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel, all surnamed Regalario guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00, and another sum of P50,000.00 as moral damages and to pay the costs of the proceedings. In the court of origin, accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel were originally charged with Homicide. However, after reinvestigation of the case, the Panel of Prosecutors of the Department of Justice, Legaspi City, consisting of State Prosecutors Romulo SJ Tolentino, Mary May B. De Leoz and Elmer M. Lanuzo filed an amended information130[3] charging the accused-appellants with murder, committed as follows:

That on February 22, 1997 at about 11:00 in the evening, at Brgy. Natasan, Municipality of Libon, province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously with cruelty, treachery, abuse of superior strength, nighttime attack, assault, strike and hit ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks, hitting the latter at the different parts of his body and tying down his hands and feet with a rope, thereby inflicting upon the latter serious and mortal wounds which directly caused his death, to the damage and prejudice of his legal heirs. ACTS CONTRARY TO LAW.

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On October 9, 1998, accused-appellants, duly assisted by their counsel, entered a plea of ―not guilty‖ to the offense charged.131[4] Thereafter, trial ensued. The prosecution presented the following as its witnesses: Zaldy Siglos, Nancy Sara, Ryan Sara, Armando Cabais Poblete, Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen Talagtag, Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and Nicanor Regonia testified on rebuttal. Nancy Sara, Cynthia Sevilla and Ryan Sara were presented for a second time also as rebuttal witnesses. On their part, accused-appellants took the witness stand. All raised the defense of denial except for Ramon who admitted the act charged but claimed selfdefense. To corroborate their defense, Jose Poblete and Adonis Velasco were presented. The defense also presented Senior Police Officer 2 (SPO2) Jimmy Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr. Leopoldo Barrosa II. On August 24, 2000, the trial court rendered its decision132[5] giving full faith and credit to the prosecution‘s evidence. It ruled out accused -appellant Ramon Regalario‘s claim of self defense, and held that there was conspiracy among the accused-appellants in the commission of the crime as shown in the manner in which all of them inflicted the wounds on the victim‘s body. It further ruled that the killing was qualified to murder by abuse of superior strength and by

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their scoffing at the body of the victim. It also appreciated the presence of the mitigating circumstance of voluntary surrender. The pertinent dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered finding Ramon, Sotero, Bienvenido, Marciano and Noel, all surnamed Regalario, guilty beyond reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of the Revised Penal Code, as amended, with the aggravating circumstance of scoffing at the corpse of the victim. However, accused are entitled to the benefit of the mitigating circumstance of voluntary surrender which offset the aggravating circumstance of scoffing at his corpse, hence, are hereby sentenced to suffer the Penalty of Reclusion Perpetua together with the accessory penalties provided for by law. The accused are hereby ordered to indemnify jointly and severally the heirs of the late Rolando Sevilla the amount of P50,000.00 and another sum of P50,000.00 as moral damages and to pay the costs. Pursuant to Supreme Court Administrative Circular No. 2-92 the P200,000.00 bail bond put up by accused Marciano Regalario is hereby cancelled and is ordered recommitted to jail. SO ORDERED.

The record of this case was forwarded to this Court for automatic review, in view of the penalty imposed. In our Resolution133[6] of August 13, 2001, We accepted the appeal and directed the Chief of the Judicial Records Office, to send notices to the parties to file their respective briefs. The Court also required the Jail Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to the Bureau of Corrections, Muntinlupa City, and make a report of such transfer within ten (10) days from notice. Likewise, the Director of the Bureau of Corrections was required to Accused-appellants filed their

confirm the detention of accused-appellants.

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Appellants‘ Brief134[7] on December 4, 2001, while the People, thru the Office of the Solicitor General, filed its Appellee's Brief135[8] on July 30, 2002. Pursuant to our pronouncement in People v. Mateo136[9] which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was referred for appropriate action and disposition to the CA where it was docketed as CA-G.R. No. 01556. The evidence for the prosecution is summarized by the Office of the Solicitor General, as follows:
Accused-appellants, all surnamed Regalario, are barangay officials of Natasan, Libon, Albay and related to one another by consanguinity. Marciano, barangay chairman, Sotero, barangay kagawad and Ramon, barangay tanod, are brothers while Bienvenido Regalario, also barangay tanod, is their cousin and Noel is the son of Marciano. (TSN, November 16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117) On the night of February 22, 1997, a dance and singing contest was being held in the barangay pavilion of Natasan, Libon, Albay. At around ten o‘clock that evening, Rolando Sevilla and Armando Poblete were enjoying the festivities when appellant Sotero Regalario approached them (TSN, December 7, 1998, p.4). To avoid trouble, the two distanced themselves from Sotero. Nevertheless, a commotion ensued. (ibid., p. 5). Appellants Sotero and Bienvenido Regalario were seen striking Rolando Sevilla several times with their respective nightsticks, locally known as bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The

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blows caused Sevilla to fall down in a sitting position but after a short while he was able to get up (ibid., pp. 16-17). He ran away in the direction of the house of appellant Mariano Regalario, the barangay captain (ibid., pp. 18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, TSN, December 7, 1998. p. 6). When Sevilla was already near Marciano‘s house, he was waylaid by appellant Ramon Regalario and at this point, Marciano Regalario and his son Noel Regalario came out of their house (TSN, December 7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife. The five appellants caught the victim in front of Marciano‘s house. Armed with their nightsticks, they took turns in hitting the victim until he slumped to the ground face down (ibid., pp. 8, 35 and 38). In that position, Sevilla was boxed by Marciano in the jaw. After a while, when Sevilla was no longer moving, Marciano first ordered the others to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with the help of Sotero, tied the neck, hands and feet of the victim with a nylon rope used by farmers for tying carabao. The rest of the group just stood by watching. (ibid., pp. 37-38). In the early morning of February 23, 1997, Cynthia Sevilla, the victim‘s widow, after she was informed of her husband‘s death, went to the poblacion of Libon to report the incident at the town‘s police station (TSN, December 8, 1998, pp. 7-8). However, her statements were not entered in the police blotter because appellant Marciano Regalario had earlier reported to them, at two o‘clock in the morning, a different version of the incident, i.e., it was the victim Sevilla who shot Marciano‘s brother Ramon and that Sevilla, allegedly still alive, was placed under the custody of the barangay tanods. (ibid., p. 7; TSN, November 20, 1998 [A.M. Session], pp. 9-10). At around eight o‘clock of the same morning, SPO4 Jose Gregorio, with some other police officers and Cynthia Sevilla, left the police station on board a truck and proceeded to the crime scene in Natasan. SPO4 Gregorio conducted an investigation of the incident. (TSN, November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the policemen took the victim‘s cadaver to the police station in the poblacion (ibid., p. 26) where pictures were taken showing the victim‘s hands and legs tied behind him [Exhibits ‗C‘ and ‗D‘] (ibid., pp. 14-15; TSN, December 8, 1998, p. 10; TSN, November 20, 1998 [P.M. Session], pp 5-7). On that same day, SPO4 Gregorio requested the Libon‘s Rural Health Unit to conduct an autopsy on the victim‘s body but since the municipal health officer was not around, it was only performed the next day, February 24 (TSN, November 20, 1998 [A.M. Session], p. 26; TSN, December 8, 1998, pp. 1011; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr. Mario Cerillo, Municipal Health Officer of Libon conducted the autopsy, he forthwith issued a Medico-Legal Report dated February 24, 1997 (Exhibit ‗B‘), the pertinent portions of which read:

Findings: Head
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:

Lacerated wound 4 cm

: :

: :

: : Neck :

:

frontal area, Right. Lacerated wound 8 cm. occipital area, Right. Lacerated wound 4 cm. with fractured skull (post auricular area), Right. Abrasion 4 x 2 cm. eyebrow, Right. Abrasion 2 cm. x 1 cm. with lacerated wound 1 cm. eyebrow, Left. Periorbital Hematoma Left and Right eye. Lacerated wound 1 cm. lower lip, Left. Stab wound 2 cm. penetrating lateral base of the neck just above the clavicle, Right. Stab wound 2 cm., 6 cm. depth lateral base of the neck just above the clavicle, Right. Hematoma 10 x 8 cm. clavicular area, Right. Multiple abrasion chest Contusion 7 x 2 cm., 7th Intercorsal space and clavicular line, left. Multiple abrasion and contusion on both Right and Left arm and forearm. Abrasion (Ropemark) around Right and Left wrist. Abrasion (Ropemark) around distal 3rd of both Right and Left leg. xxx xxx

Trunk

: : :

Extremities

:

: :

xxx

xxx

Cause of Death: Sever blood loss secondary to stab wound and multiple lacerated wound, probably secondary to intracranial hemorrhage.
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On the witness stand, Dr. Cerillo opined that the victim‘s lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or iron bar, his stab wounds by a sharp-edged instrument or knife, his contusions and hematoma by a fist blow or through contact with a blunt instrument. Also according to the physician, the sharp object which caused the victim‘s stab wounds could have been a knife 2 cm. wide and 6 cm. long because they were clean cut wounds. (TSN, November 20, 1998 [P.M. Session], pp. 14-15).137[10]

On the other hand, the accused-appellants‘ Brief presents a different story:
At the time of the incident in question, accused Marciano Regalario was the incumbent barangay captain of Natasan, Libon, Albay. Accused Sotero was a kagawad, while Ramon and Bienvenido were barangay tanods of the same place. Noel Regalario had no public position. He is the son of one of the other accused. On the night of February 22, 1997, a public dance and singing contest was held in their barangay. Naturally, being barangay officials, the accused, (except Noel who is not an official and whose wife has just given birth) were at the place of the celebration, discharging their peace-keeping duties. They were posted at different places in that vicinity. At first, a fire broke out in the toilet of the Day Care Center. It was attended to by the persons assigned in that area. A while later, there was another commotion in the area assigned to accused Ramon Regalario. When he approached the group where the disturbance was taking place and tried to investigate, Rolando Sevilla suddenly emerged from the group and without any ado, fired a shot at him. He was hit at the left shoulder. Instinctively, and in order to disable Sevilla from firing more shots, which might prove fatal, he struck his assailant with his nightstick and hit him at the back of his head. This is the blow which Nancy Sara and Zaldy Siglos said were delivered by Sotero and Bienvenido. This blow caused Sevilla to reel backward and lean on the bamboo fence. To prevent Sevilla from regaining his balance, Ramon pressed his counterattack by continuing to harass him with blows of his nightstick. As Ramon pressed on forward, Sevilla retreated backward. Ramon kept him busy parrying the blows which hit his arms and front part of the body, as they were face to face with each other. But even in the course of such harassment, Sevilla was able to fire a second shot which missed Ramon. When they reached the end of the road pavement, Sevilla lost his footing on edge of the pavement and fell down. At that juncture, Sotero arrived and shouted to Ramon to stop beating Rolando. But Ramon told him that Rolando still had the gun. So, Sotero plunged at Rolando and they wrestled on the ground

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for the possession of the gun. As they struggled, the gun went off but no one was hurt. When Rolando raised his arms to move the gun away from Sotero, Ramon knocked the gun off his hand and it fell near the place where Jose Poblete was standing. Poblete just arrived at the scene along with Marciano Regalario who was already told that his brother Ramon was shot by Sevilla. Poblete picked up the gun. He was instructed by Marciano to keep it until it is turned over to the authorities. The wounded Ramon Regalario was brought to town for treatment and later to the provincial hospital. Marciano and Sotero proceeded to the police station to report the shooting of Ramon. Bienvenido Regalario, the barangay tanod, arrived at the scene after the fact. He was instructed by Marciano, the barangay captain to effect the arrest of Rolando Sevilla for the crime of shooting Ramon. According to Bienvenido, they were taught in their training seminar to just use a rope in lieu of handcuffs because they could not be supplied with it. So, he tied the hands and feet of Rolando Sevilla for fear that he might be able to escape. On the early morning of February 23, a team of policemen went to Natasan and found the dead body of Rolando Sevilla. Jose Poblete also turned over to the police, Rolando Sevilla‘s gun. Meanwhile, Noel Regalario, after learning of the incident, scoured the place where the third shot was fired during the struggle between Sotero and Rolando. He found a .38 caliber slug which was also turned over to the police.138[11]

On May 31, 2006, the CA promulgated the herein challenged decision affirming for the most part the decision of the trial court with modification as to the penalty imposed. Unlike the trial court, the CA did not appreciate the mitigating circumstance of voluntary surrender in favor of the accused-appellants. Thus, the penalty was changed from reclusion perpetua to death, and an additional award of P25,000.00 as exemplary damages was likewise imposed. Pertinently, the CA decision reads in part:

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WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The accused-appellants are hereby sentenced to suffer the penalty of DEATH and to pay, jointly and severally, the heirs of Rolando Sevilla the amount of P25,000.00 as exemplary damages. Let the entire records of this case be elevated to the Supreme Court for its review, pursuant to AM No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which took effect on October 15, 2004. SO ORDERED.139[12]

As can be gleaned from the above quote, the CA elevated the instant case to this Court in view of the penalty imposed. In our Resolution140[13] dated

November 14, 2006, we required the parties to simultaneously submit their respective supplemental briefs. On December 12, 2006, the people filed a

manifestation141[14] stating that it is waiving the filing of a supplemental brief. Accused-appellants filed their supplemental brief142[15] on February 15, 2007. In their Brief, accused-appellants raise the following assignment of errors:

1.

THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE ACCUSED PARTICIPATED IN THE KILLING OF ROLANDO SEVILLA

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AND BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON ITS OWN SUPPOSITIONS, CONJECTURES AND INFERENCES

2.

THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE THEIR VITAL CONTRADICTIONS AND OBVIOUS FALSEHOODS; THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED AND THAT THE COMMISSION OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF THE VICTIM; THE LOWER COURT ERRED IN NOT FINDING THAT THE DECEASED WAS KILLED IN SELF-DEFENSE AND/OR DEFENSE OF RELATIVE THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE HEIRS OF THE DECEASED.143[16]

3.

4.

5.

We begin our evaluation with accused-appellant Ramon Regalario‘s claim of self-defense. Both the CA and the trial court gave no credence to this theory of self-defense. When self-defense is invoked by an accused charged with murder or homicide he necessarily owns up to the killing but may escape criminal liability by proving that it was justified and that he incurred no criminal liability therefor. Hence, the three (3) elements of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel the aggression; and (c) lack of sufficient provocation on the part of the person defending himself, must be proved by clear and convincing evidence.

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However, without unlawful aggression, there can be no self-defense, either complete or incomplete.144[17] Accused-appellant Ramon contends that the victim Rolando Sevilla committed an act of unlawful aggression with no provocation on his [Ramon‘s] part. Ramon testified that he was trying to investigate a commotion when, without warning, Rolando emerged from the group, thrust and fired his gun at him, hitting him in the left shoulder. To disable Rolando from firing more shots, Ramon struck the victim‘s head at the back with his nightstick, causing the victim to reel backward and lean on the bamboo fence. He continued hitting Rolando to prevent the latter from regaining his balance and, as he pressed on farther, the victim retreated backward. By Ramon‘s own account, after he was shot, he hit the victim at the back of the latter‘s head and he continued hitting the victim who retreated backward. From that moment, the inceptive unlawful aggression on the part of the victim ceased to exist and the continuation of the offensive stance of Ramon put him in the place of an aggressor. There was clearly no longer any danger, but still Ramon went beyond the call of self-preservation. In People v. Cajurao,145[18] we held:
…The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. If he persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense.

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Self-defense does not justify the unnecessary killing of an aggressor who is retreating from the fray. (Emphasis supplied)

Ramon‘s claim of self-defense is further belied by the presence of two (2) stab wounds on the neck, four (4) lacerated wounds on the head, as well as multiple abrasions and contusions on different parts of the victim‘s body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who conducted the post-mortem examination on the victim revealed that the victim‘s lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or an iron bar; his stab wounds by a sharp-edged instrument or knife; his contusions and hematoma by a fist blow or through contact with a blunt instrument. He also declared that the sharp object which caused the victim‘s stab wounds could have been a knife 2 centimeters (cms.) wide and 6 cms. long because they were clean-cut wounds. Indeed, even if it were true that the victim fired a gun at Ramon, the number, nature and severity of the injuries suffered by the victim indicated that the force used against him by Ramon and his co-accused was not only to disarm the victim or prevent him from doing harm to others. The four (4) other accused-appellants, namely, Sotero, Marciano, Bienvenido and Noel, to exonerate themselves, denied their involvement in inflicting wounds on Rolando. Sotero claimed that he arrived at the scene of the crime at the time when Rolando lost his footing on the edge of the pavement and fell down. He even shouted at Ramon to stop beating Rolando. However, when Ramon told him that Rolando still had the gun, he jumped on Rolando and they wrestled on the ground for the possession of the gun.

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Marciano maintained that he, together with Jose Poblete, arrived at the crime scene when Ramon had already knocked the gun out of Rolando‘s hand and the gun fell near the place where Jose Poblete was standing. When he went to that place, he already knew that his brother (Ramon) had been shot, so, he told the latter to go to the hospital. Thereafter, he and Sotero proceeded to the police station to report the shooting incident. Bienvenido asserted that he arrived at the crime scene after the shooting incident. He was asked by Marciano to arrest Rolando. Lastly, Noel insisted that he was not present when the shooting incident took place. He was inside their house sleeping, as his wife had just given birth. We are not convinced. Accused-appellants‘ denials cannot overcome the positive identification by the prosecution‘s witnesses. Elementary is the rule that positive identification, where categorical and consistent, prevails over unsubstantiated denials because the latter are negative and self-serving, and thus, cannot be given any weight on the scales of justice.146[19] The participation of each of the accused-appellants can be fully ascertained from the clear, categorical and spontaneous testimony given by prosecution witness, Ronnie Siglos, who was at the scene of the crime, thus:

PROSECUTOR RESARI: Q While you were walking on your way home, was there an unusual incident and can you recall?

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A Q A

Yes, ma‘am What was that incident about? While I was on my way towards the house of my parents, I just suddenly saw a person being beaten on the road. When you first noticed that there was a man being beaten along the road, how far were you? I was about more or less 9 to 10 meters. xxx xxx xxx

Q A

Q A

When you saw a man being beaten what did you do? I continue walking, but upon reaching that place near the person being beaten, I stopped. Why did you stop? To verify and know as to who that person being beaten. xxx xxx xxx

Q A

Q A Q A

And who was that person being beaten? Rolando Sevilla. Who were the persons beating Rolando Sevilla? Marciano Regalario, Sotero Regalario, Ramon Regalario, Bienvenido Regalario, Noel Regalario, Ernani Regalario, Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio Rebanal. Who else? Cecilio Lunas. If some of the persons you saw beating Rolando Sevilla are present in this court room, will you be able to point and identify them? Yes, ma‘am. xxx xxx xxx

Q A Q A

PROSECUTOR: Q A Q You stated that you saw the persons you have just named as beating Rolando Sevilla. Were there weapons used in beating Rolando Sevilla? Yes. What kind of weapons (was) used?

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A

Sotero was armed with bahi wood, and also Ramon. Bienvenido was also armed with bahi, as well as Cecilio Lunas, Jose Quinno were also armed with ‗malo-palo.‘ xxx xxx xxx

Q A

What kind of weapon was being held by Noel Regalario? A knife. xxx xxx xxx

Q A Q A Q A Q

Now, when you saw Rolando Sevilla being beaten by the persons you mentioned before, what did you notice on the condition of Rolando Sevilla? He was lying on his stomach. Did you see the face of Rolando Sevilla? Yes. How were you able to see the face of Rolando Sevilla? Because Sotero was holding him by his hair. What was your observation on the condition of Rolando Sevilla? xxx xxx xxx

WITNESS: He was already motionless. He is not moving anymore. PROSECUTOR: Of the persons you named as holding weapons, you did not mention Marciano Regalario as holding any weapon. What was Marciano Regalario doing then? He boxed Rolando Sevilla and Rolando was hit on his jaw. What else did Marciano Regalario do if any? After he boxed Rolando Sevilla, he went inside his house but after about one (1) minute he again return(ed) back. After Marciano Regalario returned back, what did he do if any? He shouted to kill that. After you heard Marciano Regalario (say) to kill ―that,‖ what did you do? I proceeded towards home.

A Q A

Q A Q A

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Q A Q A

While you were walking, was there any unusual incident which again happened? Yes. And, what was that incident? While I was walking towards home, again I heard Marciano Regalario shouted to tie him, that is why I again stopped. When you heard Marciano Regalario to tie him how far were you from him? More or less 7 meters. You said that upon hearing Marciano Regalario, you stopped. What else happened? Bienvenido Regalario passed by me and went to that sleigh (pababa) which is on the lower portion and got a rope. What did Bienvenido Regalario do with the rope? He tied Rolando Sevilla by placing he rope around his neck and tied his hands. Was there somebody who assisted Bienvenido Regalario in tying Rolando Sevilla? Yes. Who were the persons, if any? Sotero Regalario. Aside from Sotero, was there anybody else who helped Bienvenido Regalario in tying Rolando Sevilla? No more. While Rolando Sevilla was being hog tied, where were the persons of Marciano Regalario, Noel Regalario, Ramon Regalario and the rest of the persons whom you just mentioned awhile ago? They were there standing beside Rolando Sevilla and they were watching. Did you notice whether Rolando Sevilla was still moving when he was still being tied up by Bienvenido and Sotero? He was not moving anymore.147[20]

Q A Q A

Q A

Q A Q A Q A Q

A Q A

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The aforequoted testimony of Ronnie Siglos is corroborated by the following testimony of Armando Poblete:

Q A

While you were standing by the road, what did you notice? Then I saw Rolando Sevilla being chased by Bienvenido and Sotero both surnamed Regalario To what direction was Rolando Sevilla being chased by Sotero and Bienvenido Regalario? Towards the place of Kapitan. xxx xxx xxx

Q A

PROSECUTOR RESARI: Q Considering that was already nighttime, how were you able to know that the person being chased was Rolando Sevilla and the persons chasing him were the two (2) Regalarios which you have identified? Because, I was with Sevilla during that time and it was moonlit night. When the two (2) were chasing Rolando Sevilla, what happened next? Ramon waylaid Rolando Sevilla. xxx Q A xxx xxx

A Q A

After you saw Ramon Regalario waylaid Rolando Sevilla, what else did you see? After that I saw the group of Sotero, Regalario, Marciano, Noel, caught up with Rolando. xxx xxx xxx

PROSECUTOR RESARI: Q Since Bienvenido Regalario and Sotero Regalario were the ones chasing Rolando Sevilla, from what direction did Ramon Regalario come from when he waylaid Rolando Sevilla? That side, left side going towards the house of Kapitan. And where did Marciano and Noel xxx come from? From their house. After the five (5) caught up with Rolando Sevilla, what happened to Rolando Sevilla?

A Q A Q

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A Q A Q

They took turns in beating him. Did they use any weapon in beating Rolando Sevilla? Yes, their night sticks. When Bienvenido and Sotero caught up with Rolando Sevilla; and the three (3) other accused also joined the two (2), how far was your distance to them? More or less 14 to 15 meters.148[21]

A

We agree with the findings of the two courts below as to the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of intent. It does not matter who inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal liability.149[22] We quote with approval the findings and observations of the CA, thus:
The eyewitnesses‘ account surrounding Rolando Sevilla‘s death shows that the accused-appellants performed concerted acts in pursuit of a common objective. Sotero, Bienvenido, and Ramon, armed with nightsticks, and Noel armed with a knife, seven inches in length, beat Rolando Sevilla. All five accused-appellants caught up with the victim, blocked all means through which the victim could escape and ensured the achievement of their plan to kill Rolando Sevilla even as the latter already fell to the ground. Accused-appellant Marciano hit the victim on his jaw and later, ordered his co-accused to kill and tie the victim. Upon hearing Marciano‘s instruction, Bienvenido Regalario tied

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Rolando‘s neck, hands and feet with a rope. The collective act of the accusedappellants is sufficient to make them co-principals to the killing.150[23]

Considering the foregoing, as well as the manner in which the attack against Rolando was carried out, and the testimonies of the prosecution witnesses positively identifying the accused-appellants as the assailants, we concur in the rulings of the CA, affirming those of the trial court, in (a) disregarding Ramon Regalario‘s declaration that he attacked the victim in self -defense and (b) holding that all the accused-appellants acted in concert and killed Rolando.

We likewise rule that both the CA and the trial court were correct in appreciating the qualifying circumstance of abuse of superior strength in killing Rolando Sevilla. To take advantage of superior strength is to use force out of proportion to the means available to the person attacked to defend himself. In order to be appreciated, it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof.151[24] In this case, as testified to by the prosecution eyewitnesses, accused-appellants Ramon, Sotero and Bienvenido, with the exception of Marciano, were armed with nightsticks ( bahi) while Noel was holding a knife. Clearly they took advantage of their superiority in

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number and arms in killing the victim, as shown by numerous wounds the latter suffered in different parts of his body.

Also affirmed is the ruling of both courts appreciating the presence of the generic aggravating circumstance of scoffing at the body of the victim. Accusedappellants did not just kill the victim. They tied him hog-style after rendering him immobilized. This action constituted outraging or scoffing at the corpse of the victim. In this connection, we agree with the trial court‘s observation:

…The concerted acts committed by all the accused mostly armed with wooden clubs and one with a 7-inch long knife after the victim fell pummeling him with mortal blows on the forehead and back of his head and stab wounds on his neck and one of them telling his co-accused to kill the victim clearly proved that the Regalarios conspired and took advantage of their strength and number. Not satisfied with delivering mortal blows even when their hapless victim was already immobile, Bienvenido and Sotero, upon order of their co-accused Marciano, tied their victim hog style. The manner by which Rolando was tied as vividly captured in the picture (Exhs. ‗C‘ & ‗D‘) clearly speaks for itself that it was nothing but to scoff at their victim.152[25]

The CA was likewise correct in not appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellants. For said circumstance to be appreciated, it must be spontaneous, in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expense

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of finding and capturing him.153[26]

In the case at bar, accused-appellants

remained at large even after Judge Jose S. Sañez issued the warrant for their arrest on February 6, 1998. Accused-appellants surrendered only on September 9, 1998 after several alias warrants of arrest were issued against them. Hence, voluntary surrender cannot be appreciated in their favor as mitigating circumstance.

The accused-appellants‘ acts plainly amount to murder, qualified by abuse of superior strength. As the generic aggravating circumstance of scoffing at the body of the victim was alleged and proven, and as there was no mitigating circumstance, the CA correctly sentenced accused-appellants to death in accordance with Art. 248, as amended by Republic Act No. 7659, in relation to Art. 63(1) of the revised Penal Code.

In view, however, of the passage of Republic Act No. 9346,154[27] the imposition of the death penalty has been prohibited. Thus, the penalty imposed upon accused-appellants should be reduced to reclusion perpetua, without eligibility for parole.

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While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.155[28] Consequently, the civil indemnity for the victim is still

P75,000.00. In People v. Quiachon,156[29] we explained that even if the penalty of death is not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor (292 SCRA 186), the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense.

As to the award of moral and exemplary damages, the CA correctly held accused-appellants jointly and severally liable to pay the heirs of Rolando Sevilla for the same. 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. 157[30] If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This

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kind of damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct.158[31] However,

consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00159[32] while the award of exemplary damages should be increased from P25,000.00 to P30,000.00.160[33]

WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 in CA-G.R. CR No. 01556 is hereby AFFIRMED with the following modifications: (1) the penalty of death imposed on accused-appellants is lowered to reclusion perpetua without eligibility for parole; (2) the monetary awards to be paid jointly and severally by accused-appellants are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages and P30,000.00 as exemplary damages; and (3) interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed.161[34]

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SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

CONCHITA CARPIO MORALES RENATO C. CORONA
Associate Justice Associate Justice

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DANTE O. TINGA Associate Justice

(On leave)

MINITA V. CHICO-NAZARIO Associate Justice
(No part)

PRESBITERO J. VELASCO, JR.
Associate Justice

ANTONIO EDUARDO B. NACHURA
Associate Justice

(On leave)

DIOSDADO M. PERALTA Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

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5. People vs. Aleta Gr. No. 179708; April 16, 2009
SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 179708

Present:

QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, - versus VELASCO, JR., and BRION, JJ.

MARCELO ALETA162[1], Promulgated: FERDINAND ALETA, ROGELIO April 16, 2009 ALETA, MARLO163[2] ALETA, JOVITO ALETA,

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Appellants.

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

DECISION

CARPIO MORALES, J.:

On appeal is the July 9, 2007 Court of Appeals Decision164[3] affirming with modification the October 25, 2001 Decision165[4] of the Regional Trial Court (RTC) of Ilocos Norte, Branch 19, with station at Bangui, convicting accused-appellant Marcelo and his sons-co-appellants Ferdinand, Rogelio, Marlo and Jovito, all surnamed Aleta, of Murder in two cases.

Two Informations dated June 21, 1994 for the death of Celestino Duldulao (Duldulao) and Fernando Acob (Acob) were filed against accused-appellants:

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The accusatory portion of Criminal Case No. 1102-19 reads:

That on about May 22, 1994, at about 3:00 o‘clock in the afternoon, all the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and with abuse of superior strength, did then and there willfully, unlawfully and feloniously strike and club with the use of hard objects one Celestino Duldulao y Yadao inflicting upon the latter bodily injuries which caused his death as a consequence thereof.

CONTRARY TO LAW.166[5] (Underscoring supplied)

The accusatory portion of Criminal case No. 1103-19 reads:

That on about May 22, 1994, at about 3:00 o‘clock in the afternoon, all the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and with abuse of superior strength, did then and there willfully, unlawfully and feloniously strike and club with the use of hard objects one FERNANDO ACOB inflicting upon the latter bodily injuries which caused his death as a consequence thereof. (Underscoring supplied)

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CONTRARY TO LAW.167[6]

The victim Acob was the son of appellant Marcelo‘s sister Marina Acob (Marina), while the other victim Duldulao was the victim Acob‘s father-in-law.

Culled from the evidence for the prosecution is its following version:

While the deceased Acob‘s mother Marina was at the community center of Barangay Nagsurot, Burgos, Ilocos Norte on May 22, 1994, that there was a quarrel at appellants‘ compound. she heard a

commotion at the yard of appellants. Soon after returning home, she told Acob

Against his mother‘s pleas, Acob repaired to appellants‘ compound. Marina followed and upon reaching appellants‘ compound, she saw her nephew appellant Rogelio striking her son Acob twice at the left cheek and at the back of his head with a piece of wood, causing Acob to fall on the ground. She thereafter saw Rogelio striking Acob‘s father-in-law Duldulao twice on the face drawing his eyes to pop up, and again on the head causing him to fall on the ground.

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Rogelio then ran towards the family house whereupon Marina heard gunshots. Rogelio‘s brothers-co-appellants Jovito, Marlo and Ferdinand and their father Marcelo at once began clubbing Acob and Duldulao with pieces of wood, mainly on the face and head, as well as on different parts of their bodies.

Even while the victims were already lying prostrate on the ground, Marcelo, Jovito, Marlo, and Ferdinand continued to hit them. And when Rogelio emerged from the house, he got another piece of wood and again clubbed the victims.

As found by Dr. Arturo G. Llabore, a medico-legal officer of the National Bureau of Investigation-Regional Office, San Fernando, La Union who supervised the exhumation and autopsy of the bodies of Acob and Duldulao on June 3, 1994, the two victims suffered multiple abrasions, lacerations, open wounds, contusions and fractures on their face, head, scalp, arms, legs and thighs; that Acob‘s death was due to ―hemorrhage, intercranial, severe, secondary to traumatic injuries, head‖ while Duldulao‘s was due to ―hemorrhage, intercranial , severe, secondary to traumatic injuries, head, multiple;‖ that both victims could have died within one (1) hour after the infliction of the injuries; and that because of the severity and multiplicity of the injuries sustained, the same could not have been inflicted by only one person.

Upon the other hand, appellants Ferdinand and Marlo interposed selfdefense and defense of relative, respectively.
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Additionally, Marlo invoked

voluntary surrender as a mitigating circumstance. invoked alibi. Their version of the incidents follows:

Marcelo, Rogelio and Jovito

At around 3:00 in the afternoon, while Ferdinand and Marlo were resting at their compound, Acob arrived, uttering ―Oki ni inayo” (Vulva of your mother‖) and drew out a knife about six inches long. As Acob repeatedly uttered ―Vulva of your mother, I will kill all of you!,‖ he thrust the knife at Ferdinand was able to evade it. Acob and Ferdinand slipped and fell on the ground, After some

struggle, Acob succeeded in stabbing Ferdinand on the thigh. As Acob was about to stab Ferdinand again, Marlo took a piece of wood and struck him three times on the face. Ferdinand thereafter fell on the ground at which instant Marlo dropped the wood.

Duldulao soon emerged and at about 10 meters away from Marlo, he uttered ―Vulva of your mother.‖ As Duldulao looked as though he was going to strike Marlo with a piece of wood, Marlo took a piece of wood and hit Duldulao twice on the left cheekbone, causing him to fall on the ground. He went on to club Duldulao, as well as Acob, to make sure that ―they will no longer live.‖ Marlo thereafter pocketed the knife used by Acob in stabbing Ferdinand.

Marlo never noticed where prosecution witnesses including Marina were during the incidents. Nor did he notice where his father Marcelo and his brothers Rogelio and Jovito were.
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Ferdinand later went to the Batac General Hospital where Dr. Edgar Cabading treated his stab wound, ½ to 1 centimeter deep, at his inner thigh.

The following morning, Marlo surrendered to the police. Marcelo and the other appellants also surrendered days later.

Crediting the prosecution version, the trial court found appellants guilty beyond reasonable doubt of Murder in both cases and sentenced each of them to suffer the death penalty and to pay, jointly and severally, P250,000 to the heirs of Duldulao, and another P250,000.00 to the heirs of Acob by way of civil damages.

In arriving at its Decision, the trial court held that although what triggered the incidents was never explained, Acob and Duldulao died as a result of the attacks on them, qualified by abuse of superior strength and cruelty.

In brushing aside Marlo‘s claim of self-defense and Ferdinand‘s defense of relative, the trial court held that, assuming arguendo that there was unlawful aggression on the part of the victims, the same ceased when the victims were already on the ground after Marlo hit them; and that force beyond what was necessary to repel the aggression was employed when the victims were repeatedly clubbed.
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The trial court also brushed aside Marcelo, Jovito and Rogelio‘s alibi ─ th at they were inside their house attending to a sick relative during the incidents, given their silence and failure to deny the imputations against them, their alibi having been invoked not by them but by Ferdinand and Marlo on their behalf.

Also brushing aside Marlo‘s claim of voluntary surrender, the trial court noted that there was no conscious effort on his part to surrender or acknowledge his guilt; and that that he did not resist but went peacefully with the police did not amount to voluntary surrender.

Appellants moved for a reconsideration of the trial court‘s decision, contending that there was no abuse of superior strength as the same was not consciously adopted; and that the testimonies of the prosecution witnesses, particularly Marina‘s, are incredible or inconsistent. The motion for

reconsideration having been denied by Order168[7] dated January 29, 2003, appellants appealed to the Court of Appeals, before which it raised the same issues as those in their motion for reconsideration before the trial court. Additionally, they questioned the penalty imposed upon them.

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By the challenged Decision dated July 9, 2007, the appellate court affirmed appellants‘ conviction of murder but lowered the penalty imposed from death to reclusion perpetua. And it modified the damages awarded from P250,000.00 to the heirs of each victim to the following amounts: P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages.

In modifying the penalty from death to reclusion perpetua, the appellate court noted that in the absence of any mitigating or aggravating circumstance, the lesser of the two indivisible penalties should be imposed.

Hence, the present appeal, appellants maintaining that both the trial and the appellate courts erred in giving full weight and credence to the testimonies of the prosecution witnesses.

As in most criminal cases, the present appeal hinges primarily on the issue of credibility of witness and of testimony. As held in a number of cases, the trial court is best equipped to make the assessment on said issue and, therefore, its factual findings are generally not disturbed on appeal, unless: (1) the testimony is found to be clearly arbitrary or unfounded; (2) some substantial fact or circumstance that could materially affect the disposition of the case was

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overlooked, misunderstood, or misinterpreted; or (3) the trial judge gravely abused his or her discretion.169[8]

From a considered review of the records of the cases, the Court finds that none of the above-stated exceptions is present to warrant a reversal of the factual findings of the trial and appellate courts.

As held in a catena of cases and correctly applied by both lower courts, Marina‘s positive identification of all appellants as the assailants and her accounts of what transpired during the incidents, which were corroborated on all material points by prosecution witnesses Loreta Duldulao (Loreta) and Willie Duldulao (Willie), as well as the findings of the medico-legal officer, carry greater weight than appellants‘ claims of self-defense, defense of relative and alibi. More particularly, that Marina‘s narration was so detailed all the more acquires greater weight and credibility against all defenses, especially because it jibed with the autopsy findings.170[9]

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Respecting the defense‘s questioning of Loreta‘s testimony that Willie had told her that Duldulao was already dead, but was later to claim that on reaching the scene of the crime, Duldulao was still alive, lying on the ground and being clubbed by appellants, the same deserves scant consideration. Far from being inconsistent, the same is in sync with the other witnesses‘ claim and Marlo‘s own admission that appellants continued to club the two victims even as they lay motionless and helpless on the ground.

At any rate, inconsistencies in the testimonies of witnesses which refer to minor and insignificant details, such as whether Duldulao was still alive or not, cannot destroy Loreta‘s testimony. Minor inconsistencies in fact even gua rantee truthfulness and candor.171[10] A witness‘ testimony deserves full faith and credit where there exists no evidence to show any dubious reason or improper motive why he should testify falsely against the accused, or why he should implicate the accused in a serious offense.172[11] That the prosecution witnesses are all related by blood to

appellants should a fortiori be credited, absent a showing that they had motive to falsely accuse appellants.

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As to the claims of self-defense, defense of relative, and alibi relied upon by appellants, the lower courts‘ finding the same unsubstantiated is well taken. People v. Caabay173[12] instructs:

Case law has it that like alibi, self-defense or defense of relatives are inherently weak defenses which, as experience has shown, can easily be fabricated. If the accused admits the killing, the burden of evidence, as distinguished from burden of proof, is shifted on him to prove with clear and convincing evidence the essential elements of the justifying circumstance of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression; and (c) lack of sufficient provocation on the part of the accused defending himself. Defense of a relative requires the following essential elements: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression of the victim; and (c) in case of provocation given by the person being attacked, the one evading the attack, defense had no part therein. For the accused to be entitled to exoneration based on self-defense or defense of relatives, complete or incomplete, it is essential that there be unlawful aggression on the part of the victim, for if there is no unlawful aggression, there would be nothing to prevent or repel. For unlawful aggression to be appreciated, there must be an actual, sudden and unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude. (Emphasis supplied)

Assuming arguendo that Acob was indeed the aggressor, the aggression ceased the moment he was disarmed and already lying on the ground after being struck by Marlo. Even if Marlo‘s account that Duldulao approached with a piece of wood above his head, the same, albeit intimidating, cannot be said to reek of imminent and actual danger. When Marlo then continued to club Acob while in a

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prone position, and struck Duldulao after he had fallen, self-defense and defense of relative no longer avail.174[13]

It is settled that the moment the first aggressor runs away, unlawful aggression on the part of the first aggressor ceases to exist; and when unlawful aggression ceases, the defender no longer has any right to kill or wound the former aggressor; otherwise, retaliation and not self-defense is committed. Retaliation is not the same as self-defense. In retaliation, the aggression that was begun by the injured party already ceased when the accused attacked him, while in self-defense the aggression was still existing when the aggressor was injured by the accused. (Emphasis supplied)

Besides, the self-defense claimed to have been employed by Marlo cannot be said to be reasonable.

The means employed by a person claiming self-defense must be commensurate to the nature and the extent of the attack sought to be averted, and must be rationally necessary to prevent or repel an unlawful aggression. The nature or quality of the weapon; the physical condition, the character, the size and other circumstances of the aggressor as well as those of the person who invokes self-defense; and the place and the occasion of the assault also define the reasonableness of the means used in self-defense.175[14] (Emphasis supplied)

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Thus, even if Ferdinand‘s and Marlo‘s accounts of what transpired were true, Marlo‘s repeated clubbing of the already unarmed and helpless victims inside their own compound is clearly unreasonable. Consider the following admission of Marlo during his direct examination:

Q.: A: Q.: A: Q.: A: Q.: A.: Q.: A.:

And what happened to him when you were able to strike him? He fell down, sir. And when he fell down, what did you do next? I again clubbed him, sir. And after clubbing him for the second time, what did you do next? I clubbed them alternately, sir. Why did you club them alternately? Because they might still live and will again attacked (sic) us, sir. Whom did you club alternately? Fernando Acob and Celestino Duldulao, your honor. (Emphasis supplied)

Marlo did not thus intend to merely repel the alleged attack. He wanted to be sure that the two victims would not survive.

That Ferdinand sustained a ½ to 1 centimeter deep stab wound in the thigh does not necessarily prove that he acted in self-defense or that Marlo acted in

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defense of a relative.176[15] Parenthetically, the knife, allegedly used by Acob which Marlo claims to have taken, was not even presented in evidence.

As for the alibi of Marcelo, Rogelio and Jovito, for it to prosper, it must be shown that it was physically impossible for them to have been at the scene of the crime at the approximate time of its commission.177[16] That they were in Marcelo‘s house attending to a relative who was allegedly having difficulty breathing, did not render it impossible for them to have been at the scene of the crimes, the house being a mere 13.5 meters away,178[17] more or less. Besides, it is impossible that they could not have noticed the commotion that preceded and attended the incidents.

It bears noting that appellants enjoyed superiority in number (five) over the two victims, clearly showing abuse of superior strength and that the force used by them was out of proportion to the means of defense available to the victims.179[18]

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More. Contrary to the contention of appellants, conspiracy was present during the attack. When two or more persons aim their acts towards the

accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative indicating closeness of personal association and a concurrence of sentiment, conspiracy may be inferred. And where there is conspiracy, the act of one is deemed the act of all.180[19]

The appellate court‘s reduction of the penalty of death to reclusion perpetua in its July 9, 2007 decision is in order, there being no mitigating nor aggravating circumstance in the present cases. In any event, in view of the enactment of Republic Act No. 9346 or ―An Act Prohibiting the Imposition of Death Penalty in the Philippines on June 24, 2006, the imposition of the death penalty could not have been maintained. So too is the lowering of the civil indemnity for the heirs of Fernando and Duldulao.

WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals dated July 9, 2007 is, in light of the foregoing discussion, AFFIRMED.

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SO ORDERED. CONCHITA Associate Justice CARPIO MORALES

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division LEONARDO A. QUISUMBING Associate Justice Chairperson
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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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6. Urbano vs. People Gr. No. 182750
Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

RODEL URBANO, Petitioner,

G.R. No. 182750

Present:

QUISUMBING, J., Chairperson, CARPIO MORALES, - versus TINGA, VELASCO, JR., and BRION, JJ.

Promulgated:
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PEOPLE OF THE PHILIPPINES, Respondent. January 20, 2009

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

DECISION

VELASCO, JR., J.:

This petition for review under Rule 45 seeks to reverse and set aside the Decision181[1] dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 25371 which affirmed with modification the April 30, 2001 Decision182[2] of the Regional Trial Court (RTC), Branch 39 in Lingayen, Pangasinan in Criminal Case No. L-5028. The RTC found petitioner Rodel Urbano guilty beyond reasonable doubt of the crime of Homicide.

The Facts

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In an Information filed before the RTC, petitioner was charged with Homicide, committed as follows:

That on or about the 28th of September 1993 in the evening, in Barangay Poblacion, Municipality of Lingayen, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault, hit and maul Brigido Tomelden, inflicting upon him mortal injuries and as borne out from the autopsy report the following findings: EXTERNAL FINDINGS: A- Softened portion of the scalp over (R) occipito-temporal area about 5 inches above and posterior to the (R) ear. B- Clotted blood over the (R) occipito-temporal area. C- No lacerations noted. INTERNAL FINDINGS: A- On opening the skull there is oozing of dark colored blood from the brain substances. B- More darked blood vessels at the (L) side of the brain. CAUSE OF DEATH: Cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling incident. Which directly caused his death, to the damage and prejudice of the heirs of the said Brigido Tomelden. CONTRARY to Article 249 of the Revised Penal Code.

Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties‘ waiver of pre-trial, trial on the merits then ensued.

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As summarized in the decision subject of review, the prosecution‘s evidence established the following facts:

On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and petitioner were at the compound of the Lingayen Water District (LIWAD) in Lingayen, Pangasinan, having just arrived from a picnic in the nearby town of Bugallon, Pangasinan, where, with some other co-workers, they drunk beer in a restaurant. While inside the compound, the two had a heated altercation in the course of which Tomelden hurled insulting remarks at petitioner. Reacting, petitioner asked why Tomelden, when drunk, has the penchant of insulting petitioner.

The exchange of words led to an exchange of blows. Cooler heads succeeded in breaking up the fight, but only for a brief moment as the protagonists refused to be pacified and continued throwing fist blows at each other. Then petitioner delivered a ―lucky punch,‖ as described by eyewitness Orje Salazar, on Tomelden‘s face, which made Tomelden topple down. Tomelden was on the verge of hitting his head on the ground had their companions not caught him and prevented the fall. The blow, however, caused Tomelden‘s nose to bleed and rendered him unconscious.

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Petitioner and his other co-workers brought Tomelden to the office of the LIWAD general manager where he spent the night. He remained in the compound the following day, September 29, 1993. Upon arriving home at around 6:00 p.m. of that day, Tomelden informed his wife, Rosario, of the fight the previous night and of his having been rendered unconscious. He complained of pain in his nape, head, and ear which impelled Rosario to immediately bring him to the Lingayen Community Hospital where Dr. Daisy Arellano examined him and treated his lacerated left index finger, contusions, and hematoma at the right cerebrum.

On October 2 and 7, 1993, Tomelden went back to the hospital complaining of dizziness, headache, and other pains. The attending doctors observed the patient to be in a state of drowsiness and frequent vomiting. On October 8, 1993, Rosario brought Tomelden to the Sison Memorial Provincial Hospital in Dagupan City, where the attending physician, Dr. Ramon Ramos, diagnosed Tomelden suffering from ―brain injury, secondary to mauling to consider cerebral hemorrhage.‖183[3]

Tomelden was confined in the provincial hospital until 3:00 p.m. of October 10, 1993, and, due to financial constraints, was thereafter discharged despite signs negating physical condition improvement. Upon reaching their house, however, Tomelden again complained of extreme head pain, prompting his wife to bring him

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back to the Lingayen Community Hospital where Dr. Arellano again attended to him. This time, things turned for the worst, the doctor noting that Tomelden appeared to be semi-conscious, sleepy, uncooperative, and not responding to any stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr. Arellano, to ―cardiorespiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling incident.‖

The defense presented petitioner who denied having any intention to kill, asserting that hypertension, for which Tomelden was receiving treatment, was the cause of the latter‘s death.

The Ruling of the RTC

On April 30, 2001, the RTC rendered judgment finding petitioner guilty as charged. The fallo of the RTC‘s decision reads:

WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the accused of the crime of HOMICIDE as defined and penalized under Art. 249 of the Revised Penal Code, this Court in the absence of any modifying circumstances, hereby sentences said accused to suffer the indeterminate prison term of eight (8) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of Reclusion Temporal as maximum and to indemnify the legal heirs of the victim in the amount of PHP50,000.00, plus cost of the suit.

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The period of preventive imprisonment suffered by the accused shall be credited in full in the service of his sentence in accordance with Art. 29 of the Revised Penal Code.184[4]

Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR No. 25371.
The Ruling of the CA

On January 25, 2008, the CA rendered a decision, affirming the conviction of petitioner, but awarding moral damages to the heirs of Tomelden, disposing as follows:

WHEREFORE, in the light of the foregoing, the appeal of the accusedappellant is DISMISSED. The decision appealed from is AFFIRMED with MODIFICATION that an award of P50,000.00 moral damages is GRANTED. Remand of the records should immediately follow finality for the consequent execution of the decision.185[5]

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The appellate court held that the commission by petitioner of the crime of homicide, as defined and penalized under Article 249186[6] of the Revised Penal Code (RPC), had been proved beyond moral certainty of doubt, pointing to the lucky punch as the proximate cause of Tomelden‘s hospitalization and ultimately his death. And like the RTC, the CA found no qualifying circumstance to increase or lower the penalty.

Following the denial of petitioner‘s motion for reconsideration, per the CA Resolution187[7] of April 24, 2008, he interposed this petition.

The Issues

On essentially the same issues raised before the CA, petitioner now urges the Court to set aside the appealed decision, or at least modify it, maintaining that the appellate court:

I. x x x erred in affirming the decision of the [RTC] finding [him] guilty beyond reasonable doubt of the crime charged.

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II. x x x erred in not appreciating the mitigating circumstances of sufficient provocation on the part of the victim and lack of intent to commit so grave a wrong in favor of the petitioner.188[8]

The Court’s Ruling

The petition is partly meritorious.

Homicide Duly Proved

It is petitioner‘s threshold posture that the fistic injury Tomelden sustained was not ―the main underlying cause of his death.‖189[9] In this regard, petitioner draws attention to the fact that the fist fight in question happened on September 28, 1993. Tomelden, however, died only on October 10, 1993 or 12 days thereafter and that, during the intervening days, particularly September 29, 1993, the deceased regularly reported for work. Moreover, petitioner avers that days prior to the fateful incident of September 28, 1993, Tomelden failed to come to work as he was

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suffering from malignant hypertension and that this circumstance greatly engenders doubt as to the proximate cause of the victim‘s death. Petitioner, thus, contends that he could only be adjudged guilty of physical injuries.190[10]

We are not persuaded.

The prosecution witness, Salazar, testified about petitioner‘s lucky punch hitting Tomelden right smack on the face. And even if Tomelden‘s head did not hit the ground as his co-workers averted that actuality, that punch gave him a bleeding nose and rendered him unconscious right after the September 28, 1993 fight. From then on, Tomelden was in and out of the hospital complaining of headache, among other pains, until his demise on October 10, 1993, or 12 days after the blow that made Tomelden unconscious.

Significantly, Dr. Arellano testified conducting an autopsy on the body of Tomelden and stressed that the ―softened portion of the scalp over (R) occipitotemporal area about 5 inches above and posterior to the (R) ear‖ of the victim could have been caused by a fist blow. She also opined that the fist blow which landed on Tomelden‘s head could have shaken his brain wh ich caused the cerebral concussion; and that the cause of the victim‘s death was ―cardio -respiratory arrest

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secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling incident.‖

The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed by that of Rosario who related about her husband‘s post September 28, 1993 severe head pain, clearly establish beyond cavil the cause of Tomelden‘s death and who was liable for it.

The CA observed aptly:

It was through the direct accounts of the prosecution witnesses of the events that transpired during the fisticuff incident x x x more specifically the landing of the ―lucky punch‖ on the face of [Tomelden], taken together with the result of the medical examinations and autopsy report which described the death of the victim as ―cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling incident‖ that we are convinced that the ―lucky punch‖ was the proximate cause of [Tomelden‘s] death. The prosecution had satisfactorily proven that it was only after the incident that transpired on September 28, 1993 that the victim was hospitalized on several occasions until he expired, twelve days later x x x. It is moreover of no consequence whether the victim was able to report for work during the intervening days x x x. We find no reason to depart from the doctrinal rule that great weight is accorded the factual findings of the trial court, particularly with respect to the ascertainment of the credibility of witnesses. There was absence of any ill motive on the part of x x x Salazar who in fact testified that he was a friend of both [petitioner] and [Tomelden]; more so on the part of the attending physicians.191[11] x x x

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Petitioner‘s suggestion that Tomelden succumbed to heart ailment and/or that his death was the result of his malignant hypertension is untenable, given that the post-mortem report yields no positive indication that he died from such malady.

Mitigating Circumstances Present

Petitioner next contends that the mitigating circumstances of no intention to commit so grave a wrong and sufficient provocation on the part of the victim ought to be appreciated in petitioner‘s favor.

On this score, we agree with petitioner.

Paragraphs 3 and 4 of Art. 13, RPC provide as follows:

Art. 13. Mitigating circumstances.––The following are mitigating circumstances: xxxx 3. That the offender had no intention to commit so grave a wrong as that committed. 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.
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When the law speaks of provocation either as a mitigating circumstance or as an essential element of self-defense, the reference is to an unjust or improper conduct of the offended party capable of exciting, inciting, or irritating anyone;192[12] it is not enough that the provocative act be unreasonable or annoying;193[13] the provocation must be sufficient to excite one to commit the wrongful act194[14] and should immediately precede the act.195[15] This third requisite of self-defense is present: (1) when no provocation at all was given to the aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when even if the provocation was sufficient, it was not given by the person defending himself; or (4) when even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression.196[16]

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In the instant case, Tomelden‘s insulting remarks directed at petitioner and uttered immediately before the fist fight constituted sufficient provocation. This is not to mention other irritating statements made by the deceased while they were having beer in Bugallon. Petitioner was the one provoked and challenged to a fist fight.

Petitioner‘s unrebutted testimony on the events immediately preceding the fisticuff and earlier dovetails with the testimony of Salazar.

In gist, petitioner testified being, in the afternoon of September 28, 1993, in the nearby town of Bugallon for a picnic. He was with Tomelden and several others, including Dominador Navarro, Chairperson of LIWAD. At a restaurant in Bugallon, the group ordered goat‘s meat and drank beer. When it was time to depart, Navarro asked petitioner to inform Tomelden, then seated in another table, to prepare to leave.

When so informed, Tomelden insulted petitioner, telling the latter he had no business stopping him from further drinking as he was paying for his share of the bill. Chastised, petitioner returned to his table to report to Navarro. At that time, petitioner saw that Tomelden had already consumed 17 bottles of beer. In all, the group stayed at the picnic place for three and a half hours before returning to the LIWAD.

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Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled insults at him, calling him ―sipsip‖ just to maintain his employment as Navarro‘s tricycle driver. Tomelden allegedly then delivered several fist and kick blows at petitioner, a couple of which hit him despite his evasive actions. Petitioner maintained that he only boxed the victim in retaliation, landing that lucky punch in the course of parrying the latter‘s blows.

The following testimony of Salazar attests to the provocative acts of Tomelden and to his being the aggressor:

PROSECUTOR CHIONG Q After you heard from the accused those remarks, what if any did the victim replied if any?

WITNESS A Q A Q A They exchanged angry words, sir. What were these words? Rodel Urbano said, ―When you’re already drunk, you keep on insulting me.‖ And what was the reply if any? ‗Akina tua lanti‖.

PROS. CHIONG Q Who said that?

WITNESS A Q A Q
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It was Brigido Tomelden, sir. And what transpired next? After that they exchange words, sir. ― If you like we will have a fist fight‖ he said. Who said that?

A Q A Q A Q A Q A

Brigido Tomelden said. At that time, were you already inside the compound of the LIWAD? Yes, sir. After the victim allegedly told the accused, ―If you want a fist fight,‖ what transpired next? Rodel Urbano said, ―if it is a fist fight we fight.‖197[17] And when you were already in the compound of LIWAD Office, Brigido Tomelden was challenging the accused for a fist fight? Yes, sir. And the accused refused to accept the challenge? Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel Urbano. He is stouter than the accused. But finally the fist fight took place? Yes, sir.198[18]

Q A

PROS. CHIONG Q When the victim and this accused had this fight, fist fight, they exchanged blows, but there was this lucky punch that hit the victim because the victim fall down, is that correct? When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he was much aggressive than the accused, sir. You mean that although it was the victim who was more aggressive than the accused here, he also [threw] punches but sometime some of his punches most of which did not hit the victim? He tried to parry the blows of the late Brigido Tomelden, sir. Because he tried to parry the blow of the Brigido Tomelden, when the accused throw punches, the punch was directed to the victim but most of them did not hit the victim, is that what you saw? Yes, sir.199[19] (Emphasis added.)

A Q

A Q

A

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It is abundantly clear from the above transcript that the provocation came from Tomelden. In fact, petitioner, being very much smaller in height and heft, had the good sense of trying to avoid a fight. But as events turned out, a fisticuff still ensued, suddenly ending when petitioner‘s lucky punch found its mark. In People v. Macaso,200[20] a case where the accused police officer shot and killed a motorist for repeatedly taunting him with defiant words, the Court appreciated the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the shooting. The Court had the same attitude in Navarro v. Court of Appeals,201[21] a case also involving a policeman who killed a man after the latter challenged him to a fight. Hence, there is no rhyme or reason why the same mitigating circumstance should not be considered in favor of petitioner.

Moreover, the mitigating circumstance that petitioner had no intention to commit so grave a wrong as that committed should also be appreciated in his favor. While intent to kill may be presumed from the fact of the death of the victim, this mitigating factor may still be considered when attendant facts and circumstances so warrant, as in the instant case. Consider: Petitioner tried to avoid the fight, being

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very much smaller than Tomelden. He tried to parry the blows of Tomelden, albeit he was able, during the scuffle, to connect a lucky punch that ended the fight. And lest it be overlooked, petitioner helped carry his unconscious co-worker to the office of the LIWAD‘s general manager. Surely, such gesture cannot reasonably be expected from, and would be unbecoming of, one intending to commit so grave a wrong as killing the victim. A bare-knuckle fight as a means to parry the challenge issued by Tomelden was commensurate to the potential violence petitioner was facing. It was just unfortunate that Tomelden died from that lucky punch, an eventuality that could have possibly been averted had he had the financial means to get the proper medical attention. Thus, it is clear that the mitigating circumstance of ―no intention to commit so grave a wrong as that committed‖ must also be appreciated in favor of petitioner while finding him guilty of homicide. That petitioner landed a lucky punch at Tomelden‘s face while their co-workers were trying to separate them is a compelling indicium that he never intended so grave a wrong as to kill the victim.

Withal, with no aggravating circumstance and two mitigating circumstances appreciable in favor of petitioner, we apply par. 5 of Art. 64, RPC, which pertinently provides:

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

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xxxx 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.

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

We find no reason to modify the award of civil indemnity and moral damages.

WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371 is, in the light of the presence and the appreciation of two mitigating
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circumstances in favor of petitioner, hereby MODIFIED by decreasing the term of imprisonment. As thus modified, petitioner Rodel Urbano is hereby sentenced to serve an indeterminate prison term of from two (2) years and four (4) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, with whatever imprisonment he has already served fully credited in the service of this sentence. The rest of the judgment is hereby AFFIRMED. No pronouncement as to costs. SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice Chairperson

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CONCHITA CARPIO MORALES
Associate Justice

DANTE O. TINGA

Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

LEONARDO A. QUISUMBING
Associate Justice

Chairperson
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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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FULFILLMENT OF DUTY 1. Herrera vs. Sandiganbayan Gr. No. 119660-61; February 13, 2009

FIRST DIVISION

PAT.

EDGARDO

HERRERA y

G.R. Nos. 119660-61

BALTORIBIO and PAT. REDENTOR MARIANO y ANTONIO,

Petitioners,

Present:

- versus -

PUNO, C.J., Chairperson, CARPIO, CORONA, AZCUNA, and LEONARDO-DE CASTRO, JJ.

HONORABLE

SANDIGANBAYAN

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and PEOPLE OF THE PHILIPPINES,

Respondents.

Promulgated:

February 13, 2009

X-----------------------------------------------------------------------------------------X

DECISION

AZCUNA, J.:

Petitioners Pat. Edgardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio, together with the other accused, Pat. Roberto Barrera and Pat. Rodolfo Alcalde, all members of the Parañaque Police Station, were charged with two (2) counts of murder, FOR THER KILLING OF Shi Shu Yang and George Go y Tan, before public respondent Sandiganbayan in Criminal Case Nos. 16674 and 16675. The original informations, both dated December 4, 1990, against the petitioners and two other accused alleged:

In Criminal Case No. 16674:

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That on or about the 28th day of December, 1989 in the Municipality of [Parañaque], Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused who were then public officers, being then members of the Parañaque Police Force, and armed with guns, and conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Parañaque Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.202[1]

In Criminal Case No. 16675: That on or about the 28th day of December, 1989 in the Municipality of Parañaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers, being then members of the Parañaque Police Force, armed with guns, conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Parañaque Police Force, did then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.203[2]

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On March 18, 1992, petitioners and the other accused were arraigned but they pleaded not guilty. Petitioners then filed a joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed by the petitioners ―in relation to their office‖ citing the case of Bartolome v. People.204[3] On March 18, 1992, public respondent Sandiganbayan ordered the amendment of the informations and stated that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits.

The amended informations, both dated July 15, 1992, against the petitioners and the two accused alleged:

In Criminal Case No. 16674: That on or about the 28th day of December, 1989 in the Municipality of Parañaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Parañaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Parañaque Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.205[4]

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In Criminal Case No. 16675: That on or about the 28th day of December, 1989 in the Municipality of Parañaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Parañaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Parañaque Police Force, then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.206[5]

Arraigned anew on September 18, 1992, petitioners Herrera and Mariano entered their pleas of not guilty207[6] and withdrew their objections to the issue of lack of jurisdiction of public respondent Sandiganbayan over the case and moved that the proceedings and evidence presented during their petition for bail be adopted in toto. The two other accused, Barrera208[7] and Alcalde, remained at large.

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During the pre-trial on March 30, 1993, the parties stipulated that during the commission of the crimes, the petitioners were public officers. Whereupon, the cases were consolidated and a joint trial on the merits ensued.

The prosecution‘s evidence consisted of the following:

Reynaldo Ong was the manager of Chow Chow Restaurant which was owned by Spouses George Go, one of the victims, and Edna Ong Go, located at 5 Country Homes Commercial Center, Dr. A. Santos Avenue, Parañaque, Metro Manila. Ong was the younger brother of Edna Go. At about 4:00 am of December 28, 1989, Ong heard two explosions. He proceeded to the third floor of the restaurant to check on what had happened and as he looked down, he saw accused Pat. Roberto Barrera and his friend lighting firecrackers at the back of restaurant. Ong descended the stairs toward the ground floor of the restaurant where he saw the victims George Go and Shi Shu Yang. George Go asked for some firecrackers from him and proceeded to the kitchen to light the firecrackers. From a distance outside the restaurant, accused Barrera shouted, ―Pare, meron pa ba?‖ (asking if there are still firecrackers) to which George Go responded, ―Marami pa.‖ (―There are still plenty.‖) After George Go responded in the affirmative, accused Barrera went to the restaurant armed with a .38 caliber pistol tucked in his waist. George Go then went upstairs, took his .45 caliber pistol from an attache case, tucked it in his waist, and went back to the kitchen. Moments later, accused Barrera approached George Go, introduced himself as a Parañaque policeman, and disarmed him (George Go) of his licensed .45 caliber pistol. Barrera then shouted at his (Barrera‘s) companion, a policeman, who was upstairs, ―Ilabas mo iyong mahaba‖ (ordering the companion to bring out the long firearm) while commanding George Go to come out as he had went to the parking lot to hide there. Ong pleaded with Barrera and told him that George Go would surface only if Barrera would not shoot him. As soon as George Go emerged from the parking lot, Barrera said, ―Tarantado kang Chekwa ka, ako yung nagbigay sa iyo ng sobre‖ (uttering invective upon the victim with the use of the pejorative term for Chinese as he referred to his Christmas solicitation from the victim

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who gave him twenty pesos (P20) and two t-shirts). George Go was quiet. Barrera also demanded that George Go present the license of his firearm which the latter readily showed. Barrera then told George Go that he would bring the firearm to the police station for verification. He then called the police station informing them that he had just disarmed George Go.209[8]

At about 6:00 a.m. of that same day, George Go and his Taiwanese friend, the victim Shi Shu Yang, were brought to the Parañaque Police Station. Reynaldo Ong proceeded, but went back to the house to inform Edna Go, wife of George Go, to go to the police station. When she arrived at the police station, Edna Go saw her husband, who was making a telephone call, and Shi Shu Yang. She heard Barrera demanding George Go to produce his license to carry a firearm. Barrera also told George Go to undergo medical examination, but the latter refused. Thus, Barrera, together with the petitioners and accused Alcalde, shoved George Go to the wall and made him and Shi Shu Yang ride a police car waiting nearby. They took the victims to the Parañaque Community Hospital for medical examination. Thereafter, the two were brought to Timothy Street along Multinational Village where they were shot to death.210[9]

Edna Go also testified that George Go was an agent of Stanley Work Sales and operator of Chow Chow Restaurant. She said she had spent for the wake and funeral of her husband and, estimated the expenses for the wake to be at around P10,000 as she was not able to keep the receipts. However, she presented the receipt issued by La Funeraria Paz amounting to P11,500

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as expenses for the casket and funeral services. She stated that she was in a state of shock and became frightened upon learning of the death of her husband.211[10]

Cristina Winterhalter y Siscar, a resident of nearby Saint Anthony Street, witnessed the killing of the two victims with the use of a pair of binoculars lent to her by a neighbor, as she viewed it from a distance of about 80 to 90 meters. She testified that at around 11:00 a.m. of December 28, 1989, she was standing by the window, waiting for her daughter and an Italian neighbor to come home, when she noticed a Ford Fiera patrol van, with ―Parañaque Police Mobile‖ appearing on both sides, parked along Timothy Street. From a distance of between 80 to 90 meters, she saw seven persons inside the van, two seated in front while five stayed at the back. When the van was parked, she saw two men alight from the backseat, one was in civilian clothes (referring to Pat. Alcalde) and one in police uniform and carrying a rifle (referring to Pat. Barrera). They were followed by George Go and an unidentified man in black shirt. They took out Shi Shu Yang who was seated at the back. The one seated at the passenger side was petitioner Herrera while petitioner Mariano was the one driving the van. Petitioner Mariano went to the front area of the van and wrote something on a piece of paper. Pat Barrera hit George Go on the face and, together with petitioner Mariano, they fired about 20 successive shots at the victim. They also kicked Shi Shu Yang and fired about four times. Petitioner Herrera also fired at the victims lying on the pavement. They placed the bodies of the victims inside the van and headed for Fortunate Village. Winterhalter and a neighbor went to the crime scene and found bloodstains on the pavement, a set of dentures, and a pair of eyeglasses. Later, she executed a sworn statement before the NBI to narrate what she witnessed. A diagram (Exhibits ―L‖ and ―L-1‖) was made to give a clearer picture of the location of her house and that of the crime scene. 212[11]

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Dr. Roberto Garcia, Medico Legal Officer of the National Bureau of Investigation (NBI), conducted an autopsy on the body of George Go at around 5:30 p.m. of December 28, 1989 at the Rizal Funeral Homes, Pasay City. The Autopsy Report No. 89-4195 (Exhibit ―A‖) showed that George Go sustained eight (8) fatal gunshot wounds on his jaw, chest, abdomen, and arms, as follows: gunshot wound no. 1 had entry point (4 by 61/2 centimeters) on the right jaw with exit point (1.8 by 1.5 centimeters) on the left forehead; gunshot wound no. 2 had entry point (0.6 by 1 centimeters) on the upper left chest right with exit point (1.8 by 1.5 centimeters in diameter) on the upper left back; gunshot wound no. 3 had entry point (0.6 by 0.8 centimeters) below the left collar bone with exit point (3.2 by 2.8 centimeters) on the upper right back; gunshot wound no. 4 had entry point (0.5 by 0.7 centimeters) on the upper right chest with exit point (4 by 2.8 centimeters) on upper right back; gunshot wound no. 5 had entry point (0.7 by 1.3 centimeters) on the upper right abdomen with exit point (1.5 by 1.3 centimeters) on the upper right back; gunshot wound no. 6 had entry point (0.5 by 0.8 centimeters) on the abdomen area which was just above the navel with exit point (2.6 by 1.9 centimeters in diameter) on the lower right back; gunshot wound no. 7 had entry point (0.6 by 0.8 centimeters) on the lower left abdomen with exit point on the lower right (2.6 by 1.9 centimeters) on the lower right back; and gunshot wound no. 8 had entry point (0.5 by 0.7 centimeters) on the left arm with exit point (1.8 by 1.6 centimeters) on the left arm. He estimated that the probable distance from the muzzle of the gun to the victim was about an armslength of 24 inches. He prepared a diagram (Exhibit ―B‖) indicating the different gunshot wounds sustained by the victim and issued a Certificate of Post-Mortem Examination (Exhibit ―C‖). With the trajectory of the bullet, he said that it was possible that after the first shot was fired, the victim assumed a kneeling position or was lying on the pavement as the assailant continued to fire the successive shots. The body of the victim was later identified by Edna Go, wife of George Go.

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At around 7:00 p.m., Dr. Garcia also conducted an autopsy on the body of Shi Shu Yang in the said funeral parlor. The Autopsy Report No. 89-4196 (Exhibit ―D‖) indicated that Shi Shu Yang sustained three gunshot wounds. He made a diagram (Exhibit ―E‖) identifying the

locations of the gunshot wounds and, likewise, issued a Certificate of Post-Mortem Examination (Exhibit ―F‖). Illustrating a distance of about 24 inches, the entry point of gunshot wound no. 1 was at the back of the head of the victim with no exit point as the deformed bullet was lodged therein. `The entry point of gunshot wound no. 2 was on the left side of the neck of the victim (0.6 by 0.8 centimeters) and exit point on the right side of the neck (1.2 by 1 centimeter in cross diameter). He concluded that the assailant must have been at the left of the victim when the shot was fired. As for gunshot wound no. 3, the distance between the muzzle of the gun and the right arm could have been more than 24 inches and that the assailant was at the oblique front right of the victim.213[12]

Edwin Purificando, Senior Forensic Chemist of the NBI, examined the blood type of the victims, as follows, blood type ―B‖ for George Go per Biology Report No. B-89-2490 (Exhibit ―M-2‖) and blood type ―A‖ for Shi Shu Yang per Biology Report No. B-89-2491 (Exhibit ―M1‖). He also analyzed the specimen of the blood obtained by the NBI Duty Chemists, Aida Pascual and Bella Arriola, from the pavement located along Timothy Avenue, called ―blood scraping‖ as shown Biology Examination Report No. B-89-2498 (Exhibit ―M‖), and found that it only yielded blood type ―B‖ which matched with the blood type of George Go. He repeated the blood scraping procedure and no evidence of blood type ―A‖ was found Biology Examination Report No. B-90-15 (Exhibit ―N‖ and ―N-1‖).214[13]

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Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, testified that on December 28, 1989, acting upon the requests for paraffin test (Exhibit ―I‖ and ―I-1‖) by P/Cpl. Glen Tiongson and P/Cpl Jose Suarez, respectively, she conducted the diphenylamine-paraffin tests on the dorsal of the left and right hands of the victims and per Chemistry Report No. C-891605 for George Go (Exhibit ―H‖) and Chemistry Report No. C-89-1606 for Shi Shu Yang (Exhibit ―H-1‖), they were found negative of nitrates which proved that the victims never fired a gun.215[14]

Teodoro Ubia y Janeo, a Medical Technologist of the NBI, took pictures of the cadaver of George Go (Exhibits ―K to K-4‖) and an unidentified person, later known to be, Shi Shu Yang (Exhibits ―J to J-2‖) to show the different locations where the victims were shot.216[15]

Atty. Leoncio Evangelista, an agent of the NBI, conducted investigation on the killing incident.

On the other hand, the evidence for the defense, are as follows:

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Rodolfo Ver y Foronda, Fingerprint Examiner II of the NBI, presented the following documents relative to the shooting incident that resulted in the death of the two victims, to wit; Progress Report dated December 28, 1989 (Exhibits ―1‖ and ―1-a‖); Initial Investigation Report signed by Col. Rogelio Pureza (Exhibit ―2‖); Request for Paraffin Test dated December 28, 1989 (Exhibit ―3‖); Sworn Statements of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera (Exhibits ―4,‖ ―4-a,‖ ―5,‖ ―5-a,‖ ―6,‖ ―6-a,‖ ―7,‖ and ―7-a‖); photocopies of a picture of the Parañaque Police van No. 102 (Exhibits ―8,‖ ―8-a‖ to ―8-g‖) and a Certification issued by Capt. Abraham Gatchillano dated January 5, 1990 (Exhibits ―9‖ and ―9-a‖).217[16]

Col. Rogelio Pureza y Abutan, PNP District Director of the NPD, CAMANABA testified that he approved the Progress Report dated December 28, 1989 (Exhibits ―1‖ and ―1-a‖) of Rodolfo Ver. The report addressed to the Regional Commander (Exhibit 11) was based on the investigation conducted on petitioners Herrera and Mariano, Pat. Alcalde, Pat. Barrera, and Edwin Maquinay, and the report of the investigator on the case. He narrated that at about noontime of December 28, 1989, Edna Go came to his office requesting Col. Pureza for assistance with regard to her husband‘s case, but he told her to await for the outcome of the investigation as the cases for Illegal Possession of Firearms and Resisting Arrest were already filed with the Prosecutor‘s Office and it would be inappropriate for him to intercede in the c ase. While he was talking with Go, SPO4 Ticzon called to inform him about a shooting incident involving the husband of Go. Since he was not sure if George Go was already dead when the call came in, he did not relay the information to Go. Thereafter, he came to know that George Go was brought to the Parañaque Community Hospital by petitioners and accused Barrera and Alcalde, together with one Shi Shu Yang. As a result of the investigation conducted, he and the other police officers filed a case for homicide against two of their policemen based on the evaluation report of their investigator. He turned over the petitioners and the accused to the NBI

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for investigation. The two (2) reports stated that one of the victims was carrying a caliber 45 firearm and that said firearm was forwarded to the PCCI laboratory for verification and also for the purpose of determining if it was previously involved in a crime and to the Firearms and Explosive Unit for the issuance of a certification as to the veracity of its license.218[17]

SPO4 Glenn Fuentes Ticson testified that on December 28, 1989, he was assigned as Duty Investigator at the CID, Parañaque Police Station and, as such, was tasked to investigate criminal cases referred to him by their Desk Officer or immediate supervisor. On December 28, 1989, Cpl. Antonio Batola, Duty Officer, reported to him about a shooting incident and that the victims were already brought to the Parañaque Community Hospital. He and Pat. Oscar dela Cruz immediately proceeded to the said hospital and upon arrival, the hospital personnel informed them that the victims were pronounced dead on arrival. The victims were identified through their identification cards. The bodies of the victims sustained multiple gunshot wounds and were bathed in blood. When he was informed that the victims were brought by four (4) policemen, he interviewed two (2) of them (accused Barrera and Alcalde) and they admitted having shot the victims but claimed self-defense. He called up their Station Commander

informing him about the shooting incident involving Parañaque policemen. He retrieved the service firearms belonging to the two accused and proceeded to the scene of the crime past noon. The people within the vicinity told him that while they did not see the actual shooting incident, they heard successive gunshots. The patrol van used by the petitioners and the two accused suspects was left in the hospital and, later brought to the police station. Ticzon declared further that after the incident, he instructed his co-investigator to get the statement of the wife of the victim George Go at the Chow Chow restaurant. Prior to the shooting incident, he was informed that George Go was previously arrested by accused Barrera in connection with a case for Illegal Possession of Firearms. He was familiar with the people in Timothy street to avoid traffic in going to the police headquarters. On the same day of the shooting incident, he requested the NBI to conduct an autopsy on the cadaver of the victims. Thereafter, he prepared two (2) reports

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which he submitted to Col. Pureza at about 9:00 o‘clock pm. of December 28, 1989. The pictures of the police van used in transporting the deceased to the hospital were taken at about 3:00 0‘clock p.m. at the police station but he had nothing to do with the taking of those pictures. The extent of his investigation with respect to the shooting incident from the beginning to the end and before the case was turned over to the NBI are all included in Exhibit 1. upon arrival at the police headquarters coming from the scene of the crime, he reported to Col. Pureza. Before the turn-over of the case to the NBI, Col. Pureza assigned Pat. De la Cruz and Pat. Octavio to assist him in the investigation of the incident. As head investigator, his duties include any request for autopsy and paraffin tests but he did not recommend that paraffin test be conducted upon the two victims. Before the turn-over of this case to the NBI, he did not gather the firearms involved in this case for ballistic examination. The Cal. 45 firearm recovered from George Go was in the custody of Col. Pureza which was turned over by Pfc. Biong but he does not know if Col. Pureza signed any receipt for said firearm. He only saw the serial no. of said firearm, which was tampered, in the office of Col. Pureza in the afternoon of December 28, 1989.219[18]

SPO3 Gil Labay y Cantor declared that on January 8, 1990, he was assigned at the Physical Identification Division of the PNP Crime Laboratory at Camp Crame, Quezon City and among his duties was to perform macro-etching on firearms and motor vehicles. On January 8, 1990, he examined one (1) Cal. 45 bearing serial no. 198842 (Exhibit ―16‖). His findings showed that there were signs of filing and grinding on the metal surface where the serial no. is located. His examination was based upon the letter-request of the Station Commander of the Parañaque police station (Exhibit ―17‖). Said request was received by their duty officer but they did not retain a copy of the receipt that was issued to the requesting party. He does not know if said firearm was first submitted to the PC Crime Laboratory and said firearm was received by one Pat. Bustillo (Exhibit ―18-a‖). the serial number of the firearm was tampered and he did not see the original serial number of the said firearm. In the course of his examination, he could not determine the approximate period of time when the allege.d tempering of the firearm was made

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because of the super-imposition of the number. He did not verify from the Firearms and Explosive Unit whether the firearm was licensed or not.220[19]

Testifying in his defense, petitioner Redentor Mariano declared that on December 28, 1181, he was connected with the Parañaque Police Station and assigned with the Mobile Patrol Division, with his tour of duty being from 6:00 o‘clock p.m. to 6:00 o‘clock a.m. At about 5:30 o‘clock a.m. in the morning of December 28, 1181, he received a radio message from their radio operator to proceed to the police head quarters to assist accused Barrera in bringing persons for medical examination. Upon arrival at the police headquarters, accused Alcalde and Barrera alighted from the mobile patrol van while he stayed inside the mobile car. At about 10:30 o‘clock a.m. of the same day, accused Alcalde, Barrera, Herrera and himself brought two persons to the Parañaque Community Hospital. In going to the said hospital, they passed through Fortunate Village and Multinational Village and, upon arrival at the hospital, accused Alcalde and Barrera accompanied the two persons. At about 11:00 o‘clock a.m., on their way back to the Parañaque police station, he heard accused Alcalde saying ―George, ano ka ba, bitiwan mo ang baril mo‖ and not long after, he heard successive shots. When he looked back, he saw George Go grappling for the possession of a firearm with accused Alcalde. He stopped the van and alighted in order to pacify what was happening inside the van but he heard again successive shots and thereafter, he saw the two Chinese nationals fall inside the van bathed with blood. He told his companions to bring the victims to the hospital and later informed their Chief of Police about the incident. Upon arrival at the hospital, he told his companions to request the hospital

personnel to get the two dead persons inside the van. After the incident, he was investigated and his statement was taken.221[20]

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On cross-examination, he declared that the reason why the two Chinese nationals were brought to the hospital in the morning of December 28, 1181 for medical examination was because he learned that there was a case filed against George Go. In going to the hospital, he was in front of the van just besides the driver, while accused Alcalde, Barrera, George Go and the latter‘s companion were at the back. He and the driver were both armed with cal. 38 while accused Alcalde was armed with M-16 armalite rifle and accused Barrera was armed with a Cal. 38. While inside the van, George Go was handcuffed while his companion was not. Accused Alcalde and Barrera were seated fronting the two Chinese nationals. The distance from the seat where accused Alcalde and Barrera were seated to the seat where the two victims were seated would be more or less 2 feet but there was a gap between the knees of the passengers seated which was about 12 inches. From the time he heard the first shot up to the time the police van stopped, they had traveled more or less 5 to 10 meters. He was shocked when he heard the first shot and when he looked back, he saw George Go trying to grab the firearm of the accused Alcalde by holding the butt and almost the muzzle of the firearm. He did not see the finger of accused Alcalde on the trigger guard of his firearm immediately after he heard the series of shots because the incident happened too fast. While at the police headquarters, he asked accused Alcalde and Barrera what happened and they told him that George Go tried to grab the firearm of accused Alcalde but he was not able to ask them who shot George Go.222[21]

In the morning of December 21, 1181, they were submitted for paraffin tests at the PNP Crime Laboratory and with respect to him, the findings was negative but he does not know what was the result of the findings with respect to accused Barrera and Alcalde. They left the hospital before 1:00 o‘clock p.m. and it was only a matter of minutes before they reached Multinational village. The investigator did not take photographs at the scene of the incident at that time. in the night of march 3, 1111, Mrs. Edna Go came to see him at Camp Bicutan and asked him why the

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other policemen did not see her when in fact an agreement that the case be settled before the NAPOLCOM had been reached.

Dr. Frederick Singson y Soliven, Resident Physician of the Parañaque Community Hospital testified that on December 28, 1181, he examined George Go and found out that the latter was positive for alcohol breath but no signs of physical injuries. At about 11:45 a.m. of the same day, George Go was brought back to the hospital with six gunshot wounds and was declared dead on arrival (Exhibit 11-a). He also treated accused Herrera on the same day and found out that said patient was negative of alcohol breath and had a linear abrasion which was 1 cm. in size (Exhibit 20-a). He was not the one who prepared the entries in Exhibit 11-a and there was no initial of the person who made the handwritten notations therein. George Go was brought to the hospital by the policemen and one of them was accused Herrera but he did not ask the policemen the purpose why George Go was to be examined. He did not take the blood chemistry of George Go to determine whether alcohol existed in his blood. He admitted that he was not the one who wrote the notations of the dorsal portion of Exhibit 20. The first portion of the medical report of George Go was written by Dr. Bautista and the lower portion was written by him (Exhibit x and y). According to accused Herrera, the abrasion inflicted on his neck was due to an alleged scuffle with somebody but said injury could also be self-inflicted.223[22]

SPO2 Armand Octavio, a member of the Parañaque police Station testified that on December 28, 1181, he was instructed to take the statement of accused Barrera (Exhibit 21, 21-a and 21-b). He also received an investigation report from the office of the Investigation Division signed by SPO3 Ticzon and Col. Pureza. Aside from these reports, he was also furnished a

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certification from the Firearms and Explosive Unit and an investigation report regarding the charge for Illegal Possession of Firearms against accused George Go.224[23]

Testifying in his defense, petitioner Edgardo Herrera declared that he had been a member of the Parañaque Police Station. On December 28, 1181, he reported at the police headquarters and his tour of duty was from 6:00 o‘clock p.m. to 6:00 o‘clock a.m. and his companions were accused Mariano and Alcalde. At about 6:00 o‘clock a.m. of December 28, 1181, they received a radio message from their headquarters, directing them to report to the Chief of Police. Upon arrival at the police headquarters, their Desk Officer ordered them to bring a certain George Go to the Parañaque Community Hospital for medical examination. Before George Go was brought to the hospital, he was very unruly at the police headquarters and refused to be brought to the hospital. On their way to the hospital, they took Sucat road and proceeded towards Fortunata Village and then to Multinational Village to avoid traffic jams. After the examination of George Go, they brought him back to the police headquarters but upon reaching Timothy Street in Multinational Village, a shooting incident happened. While he was at the steering wheel, he heard accused Alcalde saying ―George, bitiwan mo ang baril ko‖ and not long after, he heard a gunshot. He looked back and when he saw that the muzzle of an Armalite rifle was almost at his back, he tried to parry it but it went off successive shots. He immediately jumped out of the vehicle and pulled out his firearm and saw the two Chinese nationals already lying on the floor of the police van. He immediately drove the police van and brought the victims back to the Parañaque Community Hospital. After the incident, he was investigated and his statement was taken (Exhibits 7 and 7-a). negative.225[24] He was also subjected to paraffin tests and the result was

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On cross-examination, he declared that he did not see who placed handcuffs on the hands of George Go but when he saw the latter seated at the back of the police van, he was not handcuffed. Before they brought George Go to the hospital, he saw Go‘s wife who was insisting to go with them but George Go did not allow her and, instead, he took along his Taiwanese friend, one Shi Shu Yang. Apart from George Go and Shi Shu Yang, there were four (4) of them who boarded the police van and alighted at the hospital but did not go back with them to the police headquarters. All of them, except Maquinay, were armed. Being the driver of the police van for almost a year, he was familiar with the different roads coming from the police station to the Parañaque Community Hospital. In fact, there are two routes in going to the said hospital, one of which is Dr. Santos Avenue up to Sucat road and other is thru Fortunata Village and then to Multinational Village. There are houses and business establishments along Dr. Santos Ave. while there are few houses and unfinished structures along Timothy Street in Multinational Village. He was the one who decided to take Multinational Village in going back to the police headquarters to avoid traffic. The road leading to Fortunata Village is not a bumpy road. In fact, he can reach the police station from the hospital if he passes thru Multinational Village without passing thru Timothy Street. He claimed that George Go and Shi Shu Yang were not forced to go down by accused Barrera and Alcalde from the police van when it passed thru Timothy Street. After hearing the gunshots, he stopped the vehicle. When they went back to the scene of the crime, he saw blood dripping and blood stains on the sidewalk.226[25]

On December 13, 1994, public respondent Sandiganbayan227[26] convicted each of the petitioners of two (2) counts of murder. The dispositive portion of its Decision reads as follows:

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WHEREFORE, after joint trial on the merits in the above-numbered cases, judgment is hereby rendered in the following: I. In Crim. Case No. 16674 — accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are hereby found guilty beyond reasonable doubt as coprincipals in the offense of Murder, as defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties of imposed by law; to indemnify, jointly and severally, the heirs of the late George Go in the amounts of P11,500.00 as actual damages, plus P500,000.00 in the form of unrealized earnings and income. II. In Crim. Case No. 16675 — accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are herby found GUILTY beyond reasonable doubt as coprincipals in the offense of Murder, defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties of [i]mposed by law; to indemnify, jointly and severally, the heirs of the late Shi Shu Yang in the amounts of P50,000.00; III. Both accused to pay their proportionate share of the costs of these actions. 228[27]

On March 28, 1995, public respondent Sandiganbayan denied petitioners‘ joint motion for reconsideration. On April 3, 1995, petitioner Herrrera filed a notice of appeal and thereafter on May 30, 1995, together with petitioner Mariano, he filed a petition for review on certiorari with this Court alleging the following grounds:

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1. THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE PETITIONERS FOR MURDER UNDER THE AMENDED INFORMATIONS;

2. THE RESPONDENT SANDIGANBAYAN ERRED IN REFUSING TO ALLOW THE PETITIONERS TO CONDUCT FURTHER CROSS EXAMINATION ON PROSECUTION WITNESS WINTERHALTER; 3. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING IN CREDIBILITY;

4. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT PROSECUTION WITNESS NBI MEDICO-LEGAL OFFICER AND HIS REAL EVIDENCE SUPPORT THE THEORY OF THE DEFENSE;

5. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY;

6. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE PETITIONERS ARE ENTITLED TO THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL ACTS; AND

7. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION FAILED TO ESTABLISH THE GUILT OF THE PETITIONERS BEYOND REASONABLE DOUBT. The Court affirms the conviction.

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First. Petitioners insist that respondent Sandiganbayan erred in convicting them for the crime of murder under the amended informations as they had earlier been arraigned under the original informations for murder and their rearraignment under the amended informations placed them in double jeopardy.

The rule on double jeopardy does not apply. Public respondent Sandiganbayan ordered the amendment of the informations and made it of record that the evidence adduced during the pretrial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits. Double jeopardy did not attach by virtue of petitioner‘s plea of not guilty under the amended information. For a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.229[28]

In the present case, petitioners and the other accused pleaded not guilty to the original informations. Thereafter, at the instance of the petitioners, through a joint petition for bail, they raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed ―in relation to their office.‖ On the same day, respondent court ordered the amendment of the informations accordingly. Thus, the first

requirement for double jeopardy to attach, that is, that the informations against the petitioners were valid, has not been complied with.

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Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed ―in relation to their office.‖ Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information. Moreover, there was no dismissal or termination of the case against petitioners.

Furthermore, it was well-within the power of public respondent Sandiganbayan to order the amendment of the information under Section 4, Rule 117 of the Rules on Criminal Procedure which states that if the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

Second. Petitioners make much of the fact the public respondent Sandiganbayan should have allowed their counsel to conduct further cross-examination on prosecution witness Winterhalter.

Rule 132, Section 6 of the Revised Rules on Evidence provides that upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue. The cross-examination of a witness is a right of a party against whom he is called. Article III, Section 14(2) of the Constitution states that the accused shall have the right to meet the witnesses face to face. Rule 115, Section 1(f) of the Revised Rules of Criminal Procedure also states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him. Indeed, petitioners‘
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counsel has conducted an extensive cross-examination of witness Winterhalter on the scheduled dates of hearing. Petitioners, therefore, cannot claim there has been any procedural infirmity in the proceedings.

Moreover, the trial court has the power to direct the course of the trial either to shorten or to extend the direct or cross examination of a counsel. Under Rule 133, Section 6 of the Revised Rules on Evidence, the court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. Thus, it is within the prerogative of the trial court to determine when to terminate the presentation of the evidence of the prosecution or the defense.

Third. Petitioners‘ attempt to destroy the credibility of prosecution witness Winterhalter fails. The trial court had the opportunity to observe first-hand the demeanor and deportment of the witnesses, and, therefore, its findings that the witnesses for the prosecution are to be believed over those of the defense are entitled to great weight. Winterhalter recognized the petitioners as the ones who cooperated with Pat. Barrera in killing the victims. She saw the events unfolding with the use of her binoculars 80-90 meters away. She established the identity of the petitioners as the companions of Pat. Barrera when he effected the killing. It has been ruled that findings of fact of the trial court on credibility of witnesses should be accorded the highest respect. The Court has refrained from interfering with the judgment of the trial court in passing on the credibility of witnesses unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which as been misapprehended or misinterpreted. None exists in this case.

After the incident, Winterhalter‘s neighbor, who was also a foreigner, has been receiving death threats. She herself has been getting death threats too, yet she voluntarily testified in order to
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shed light on the commission of the crime. In fact, she did not even know the two victims. Indeed, where there is nothing to indicate that a witness was moved by improper motives, his positive and categorical declarations on the witness stand, made under solemn oath, should be given full faith and credence. It has not been shown that Winterhalter has any reason to falsely implicate petitioners.

Winterhalter narrated that Pat. Barrera and Pat. Alcalde, together with petitioners, were responsible for the death of the victims. This was confirmed by the post mortem report prepared by Dr. Roberto Garcia, medico legal officer of the NBI, showing the gunshot wounds on the different parts of the victims‘ body.

Fourth. Petitioners would persuade the Court that the testimony of the NBI-Medico Legal Officer, a prosecution witness, supports the theory of the defense that they acted in self-defense.

This argument cannot stand. By invoking the justifying circumstance of self-defense, petitioners assume the onus of proving: (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. Petitioners failed to discharge this burden.

To proceed with the argument that there was unlawful aggression by the two deceased who tried to get the pistol tucked in the waist of one of the police officers, petitioners should prove that they used reasonable means in repelling the aggression. Considering that both deceased where handcuffed and unarmed and had restricted movements, it could only mean that the perceived threat to petitioners‘ lives were not sufficiently serious, in which case they were not justified in shooting the hapless victims who were unarmed. Petitioners could have simply subdued the two victims in a manner as to engage them in a fight without necessarily killing them. Moreover, the
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autopsy reports showing the extent of the wounds sustained by George Go and Shi Shu Yang tend to discredit the version of the defense.

Fifth. Petitioners assert that there was total absence of evidence to support the theory that conspiracy attended the commission of the crime.

Conspiracy can be inferred from the acts of the accused which clearly manifest a concurrence of wills, a common intent or design to commit a crime. The familiar rule in conspiracy is that when two or more persons agree or conspire to commit a crime, each is responsible, when the conspiracy is proven, for all the acts of the others, done in furtherance of the conspiracy.230[29] In this case, petitioner Herrera drove the vehicle along Timothy Street to a place which was less conspicuous to passersby. There, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the van in order to perpetuate the killing. Petitioner Mariano alighted from the right front seat of the van and stood beside Pat. Alcalde and Pat. Barrera who began shooting the victims. According to Winterhalter, petitioner Mariano even appeared to be writing something on a sheet of paper immediately before the shooting, although it cannot be determined with certainty as to whether he was making an inquiry or merely noting the names of the victims. While it was Pat. Barrera who actually shot the two victims, the evidence showed a common design on the part of both petitioners as they did not do anything to prevent him from killing the victims, thus, indicative of the fact that they are in unison with the criminal design of the Pat. Barrera. Petitioner Herrera alighted form the van without doing anything to prevent the killing, and worse, after the killing took place along the street, petitioner Herrera even helped carry the two victims into the van while petitioner Mariano, the driver, remained in the vehicle during the incident. Consequently, applying the rule that the act of one is the act of all, petitioners are thus as guilty as Pat. Barrera and Pat. Alcalde. In fact, conspiracy

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need not be established by direct evidence but may be inferred from the surrounding circumstances.

Sixth. Intertwined with their argument that they were acting in self-defense, petitioners want this Court to appreciate the presumption of regularity in the performance of their official acts.

This contention has no merit. In order to consider the defense of fulfillment of a duty, it must be shown that: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a right or office.231[30] There was no showing that petitioners should resort to inflicting injuries and even to the extent of killing the victims as there was no resistance at all from them when they were apprehended. The two victims were handcuffed and unarmed while the petitioners and the other police officers were armed with pistols and a rifle. Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, per Chemistry Report No. C-89-1606, conducted the paraffin test on George Go and Shi Shu Yang which yielded negative results, thus showing that the victims never fired a gun and were totally defenseless in the face of the fully armed police officers.

Petitioners anchor their argument that they merely acted in self-defense. This contention has no merit. The accused who invokes self-defense thereby admits having killed the victim, and the burden of evidence is shifted on him to prove, with clear and convincing evidence, the confluence of the following essential elements: (1) unlawful aggression; (2) reasonable

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necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.232[31]

Moreover, the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea of self-defense or defense of stranger because they demonstrate a determined effort to kill the victim and not just defend oneself.233[32] The victims were repeatedly shot at close range and on vital parts of their bodies, thus indicia that the police officers really intended to kill them. Clearly, the presumption of regularity in the performance of official duties on the part of the petitioners and the other police officers does not apply.

Seventh. Petitioners maintain that the prosecution failed to establish their guilt beyond reasonable doubt.

On the contrary, the killing of the two victims was proved to have been committed with the qualifying circumstance of treachery. The essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed.

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What is decisive is that the execution of the attack made it impossible for the victim to defend himself/herself or to retaliate.234[33]

The records are extant on the findings of respondent Sandiganbayan that when petitioner Herrera drove the patrol car along Timothy Street to an practically deserted area and isolated from traffice and pedestrians, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the patrol car in order to eventually salvage them which showed that all the police officers had a community of criminal design. Petitioner Mariano mad the pretense of writing down something prior to the shooting incident. It would appear that he was faking an alleged interrogation or trying to get the name of Shi Shu Yang, whose identity was not immediately known, yet the fact remains that he did not do anything to prevent the killing and even helped in loading the body of George Go inside the patrol car. Clearly, the elements of murder have been proven: 1). that the two victims were killed; 2). that petitioners and the two other accused killed the victims; 3). that the killing was attended by the qualifying circumstance of treachery committed by the petitioners and the two other accused who conspired together in killing the victims; and 4). that the killing was not parricide or infanticide. Eighth. Public respondent Sandiganbayan did not grant any award of damages in favor of the heirs of Shi Shu Yang and George Go y Tan. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.235[34]

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Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. Under prevailing jurisprudence, the award of P50,000 to the heirs of the victims as civil indemnity is in order.236[35] In cases of murder and homicide, moral damages may be awarded without need of allegation and proof of the emotional suffering of the heirs, other than the death of the victim, since the emotional wounds from the vicious killing of the victims cannot be denied. Thus, the award of P50,000 is proper.237[36] As to the award of actual damages, Edna Go testified that she incurred funeral expenses of P11,500. Moreover, the award of exemplary damages of P25,000 is proper since the qualifying circumstance of treachery attended the killing of the victims. Article 2230 of the Civil Code allows the award of exemplary damages as part of the civil liability when the crime was committed with one or more aggravating circumstances. The term aggravating circumstance as used therein should be construed in its generic sense since it did not specify otherwise.238[37] WHEREFORE, the petition is DENIED for lack of showing that public respondent Sandiganbayan committed any reversible error. The Decision of public respondent

Sandiganbayan, dated December 13, 1994, finding petitioners Pat. Eduardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio guilty beyond reasonable doubt as co-principals for two (2) counts of murder and sentencing each of them to suffer the penalty of reclusion perpetua with the accessory penalties of civil interdiction during the time of their sentence and perpetual absolute disqualification for public office is AFFIRMED WITH MODIFICATION. Additionally, petitioners are ORDERED to pay the heirs of Shi Shu Yang and George Go y Tan

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each in the amount of P50,000 as civil indemnity, P50,000 as moral damages, P11,500 for actual damages, and P25,000 as exemplary damages. Costs against the petitioners. SO ORDERED. ADOLFO S. AZCUNA

Associate Justice
WE CONCUR: REYNATO S. PUNO

Chief Justice Chairperson

ANTONIO T. CARPIO

RENATO C. CORONA

Associate Justice

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO

Chief Justice

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ARTICLE 13 EXEMPTING CIRCUMSTANCES INSANITY 1. People vs. Domingo, Gr. No. 184343; March 2, 2009

THIRD DIVISION

PEOPLE OF PHILIPPINES,

THE

G.R. No. 184343

Plaintiff-Appellee,

Present:

QUISUMBING, J.,* CARPIO,** CARPIO MORALES,***

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- versus -

CHICO-NAZARIO, and Acting Chairperson, PERALTA, JJ.

JESUS DOMINGO,

Promulgated:
Accused-Appellant.

March 2, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Appellant Jesus Domingo assails the Decision239[1] of the Court of Appeals dated 30 April 2008 in CA-G.R. CR No. 30511, modifying the Decision240[2]

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dated 13 November 2006 of Branch 13 of the Regional Trial Court (RTC) of Malolos, Bulacan. The Court of Appeals found appellant guilty beyond reasonable doubt of murder in Criminal Cases No. 1496-M-2000 and No. 1497-M-2000, attempted murder in Criminal Cases No. 1498-M-2000 and No. 1501-M-2000, frustrated murder in Criminal Case No. 1500-M-2000, and frustrated homicide in Criminal Case No. 1499-M-2000.

On 7 March 2003, six Informations241[3] were filed before the RTC charging appellant with the following offenses:

Criminal Case No. 1496-M-2000 for Murder ―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife and screw driver and with intent to kill one Marvin G. Indon, with evident premeditation, treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, stab and hit with the kitchen knife and screw driver said Marvin G. Indon, hitting him on his body thereby inflicting thereon mortal wounds which directly caused his death.‖ Criminal Case No. 1497-M-2000 for Murder ―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife and screw driver and with intent to kill one Melissa G. Indon, with evident premeditation, treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, stab and hit with the kitchen knife and screw driver said Melissa G. Indon, hitting her on

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different parts of her body thereby inflicting thereon mortal wounds which directly caused her death.‖ Criminal Case No. 1498-M-2000 for Frustrated Murder ―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with kitchen knife and screw driver, did then and there willfully, unlawfully and feloniously, with evident premeditation and treachery attack, assault and hit with the said screw driver one Michelle G. Indon, a minor of 9 years old, hitting her on her back and buttocks, thereby inflicting on her serious physical injuries which ordinarily would have caused the death of the said Michelle G. Indon, thus performing all the acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, this is, by the timely and able medical assistance rendered to said Michelle G. Indon.‖ Criminal Case No. 1499-M-2000 for Frustrated Murder ―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife and screw driver, did then and there willfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault, stab and hit with the said kitchen knife and screw driver one Ronaldo Galvez, hitting him on different part of his body, thereby inflicting on him serious physical injuries which ordinarily would have caused the death of Ronaldo Galvez, thus performing all the acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to said Ronaldo Galvez.‖ Criminal Case No. 1500-M-2000 for Frustrated Murder ―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife and screw driver, did then and there willfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault, stab and hit with the said kitchen knife and screw driver one Raquel Gatpandan Indon, hitting her on the different parts of her body, thereby inflicting on her serious physical injuries which ordinarily would have caused the death of the said Raquel Gatpandan Indon, thus performing all the acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to said Raquel Gatpandan Indon.‖ Criminal Case No. 1501-M-2000 for Attempted Murder

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―That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kettle and with intent to kill one Jeffer G. Indon, did then and there willfully, unlawfully and feloniously, with evident premeditation and treachery, commence the commission of murder directly by overt acts, that is by attacking, assaulting, and hitting the said Jeffer G. Indon, a 2 year old boy, with the kettle, hitting the latter on his head, thereby inflicting upon him physical injuries and if the accused was not able to accomplish his purpose, that is to kill the said Jeffer G. Indon, it was not because of his voluntary desistance but due to the timely intervention of third persons.‖

On 7 September 2000, appellant, with the assistance of counsel, was arraigned and he entered separate pleas of ―Not Guilty‖ to the crimes charged. Thereafter, pre-trial conference was held, and trial ensued accordingly.242[4]

Evidence for the prosecution consisted of the testimonies of complainants Raquel Indon, Jeffer Indon, and Michelle Indon; Dr. Jacinto Caluag; Police Officer (PO) 3 Asher Villegas and PO2 Rogelio Santos.

Complainant Raquel Indon testified that between 1:00 a.m. and 2:00 a.m. of 29 March 2000, she and her minor children Melissa, Michelle, Marvin and Jeffer were sleeping inside their house in Caingin, San Rafael, Bulacan, when she was awakened by the sound of appellant kicking their door open. Raquel narrated that she immediately recognized the accused, since the kitchen light illuminated his

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face. Armed with a screwdriver and a kitchen knife, appellant cut the cord of the mosquito net and repeatedly stabbed her, using the six-inch screwdriver, and hit her right arm three times. She screamed and was heard by her sister-in-law, whose house was contiguous to theirs. When her sister-in-law asked her for the identity of the assailant, she immediately identified herein appellant as ―Doser,‖ a name by which he is known in the community. Appellant was angered by her reply and said, ―Anong Doser?‖ and thereafter pulled a kitchen knife from his right side and stabbed her on the stomach. When she tried to escape from the room, four-yearold Marvin rushed towards her. She then grabbed him and ran towards the gate. However, before reaching the gate, she fell down and appellant stabbed her right leg. The appellant then proceeded to stab Marvin, hitting the latter twice on the arm and twice on his left chest. Marvin died on 3 April 2000 as a result of these injuries. After stabbing Marvin, appellant returned back to the house, towards Raquel‘s two daughters Michelle and Melissa. When Raquel pleaded that the appellant spare her daughters‘ lives, he retorted: ―Ngayon pa, nagawa ko na.‖ Melissa died because of the stab wounds that the appellant inflicted on her; while Michelle, who was able to hide under the papag merely sustained serious physical injuries. The appellant also attacked two-year-old Jeffer by striking him on the head with the screwdriver, but the latter managed to run to the house of Raquel‘s sister-in-law. Raquel got up and ran for help, but the appellant followed her. Their neighbor, Ronaldo Galvez, came to their rescue and tried to subdue the appellant. Raquel, thereafter, lost consciousness. She also relayed that she was later informed that a struggle ensued between appellant and Galvez. Appellant inflicted wounds on Galvez‘s upper left chest and arms, after which Galvez was able to hit appellant

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with a piece of wood, which rendered the latter unconscious. Raquel, Melissa, Marvin, Jeffer, Galvez and the appellant were taken to the hospital.243[5]

Raquel also testified that she spent P15,000.00 for the casket of Melissa Indon, P27,000.00 for the burial expenses of Melissa Indon and Marvin Indon, and approximately P30,000.00 for the food served during their wake. She also stated that because of her stab wounds, she spent P90,000.00 for hospitalization expenses and medicines. However, the receipts were lost except those issued by Sagrada Familia Hospital and Bulacan Provincial Hospital. 244[6]

Jeffer Indon, who was five years old at the time he testified, stated that the scar on his forehead was the result of the stab wound inflicted by Doser. However, on cross-examination, he admitted that he did not know who stabbed him.245[7]

Michelle Indon identified the appellant as the man who stabbed her mother, her brother Marvin and her sister Melissa. She testified that the appellant stabbed her

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in the back once. Thereafter, she hid under the papag. She related that she did not go to the hospital anymore, because a certain Nanang Ella had already seen to her stab wound.246[8]

Dr. Jacinto Caluag stated under oath that he treated Raquel Indon for multiple stab wounds. He testified that he also assisted in the operation on Raquel to repair her liver and gallbladder, which were damaged. He also disclosed that Raquel would have gone into shock and died had she not been given medical attention.247[9]

Police officers Asher Villegas and Rogelio Santos testified that they proceeded to the scene of the crime after the neighbors of the complainant reported the incident. When they arrived at the crime scene, appellant was already tied up. They took pictures of the victims, while the kitchen knife and the screwdriver allegedly used by the appellant were turned over to Police Officer Villegas. The complainants and the appellant were then brought to the hospital. They recorded the incident in the Police Blotter and prepared the statements of the witnesses. After the accused was treated for injuries, he was brought to the police station and detained. When

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asked why he committed the crime, accused denied knowledge of what happened.248[10]

In an Order dated 10 July 2003, the trial court ordered that Ronaldo Galvez‘s testimony during his direct examination be stricken off the records due to his absences on the days he was scheduled to be cross-examined.249[11]

The documentary evidence offered by the prosecution included the following: (1) the sketches of Raquel Indon‘s house, to prove that the light from the kitchen allowed her to identify the appellant, marked as Exhibits ―A to A-6;‖ (2) the Death Certificate of Marvin Indon marked as Exhibit ―D;‖ (3) the Medico -Legal Certificates of Raquel Indon, Marvin Indon, Jeffer Indon, and Ronaldo Galvez marked as Exhibits ―E,‖ ―F,‖ ―H,‖ and ―L,‖ respectively; (4) the Birth Certificates of Marvin Indon and Michelle Indon marked as Exhibits ―B‖ and ―N;‖ (5) pictures of Melissa Indon‘s lifeless body marked as Exhibits ―G‖ and ―O;‖ (6) Sworn Statements of Ronaldo Galvez and Michelle Indon marked as Exhibits ―K‖ and ―M;‖ (7) Statement of Account of the Medical Expenses incurred by Raquel Indon, issued by Sagrada Familia Hospital in the amount of P38,500.00, marked as Exhibit ―I;‖ and (8) Statement of Account of the Medical Expenses incurred by

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Raquel Indon, issued by the Bulacan Provincial Hospital, in the amount of P7,843.00, marked as Exhibit ―J.‖250[12]

In his defense, appellant testified that prior to the incident, he was in good terms with the Indon family and that he had no record of mental illness. However on 20 March 2000, he went to East Avenue Medical Center for a medical check-up, and he was advised to have an operation. He suffered from sleeplessness, lack of

appetite, and nervousness. Occasionally, a voice would tell him to kill. He averred that when he regained his memory, one week had already passed since the incidents, and he was already detained. He only came to know of the incidents from his sister and his children who visited him. On cross-examination he

admitted that when he regained his memory, he did not even ask the police officers why he was incarcerated.251[13]

Dr. Regienald Afroilan, a witness for the defense, also testified that appellant was first brought to the National Center for Mental Health (Center) in August 2004 for a psychiatric evaluation, psychological examination and final testing to determine if he could stand trial. Dr. Afroilan stated that based on his evaluation, appellant

suffered from Schizophrenia, a mental disorder characterized by the presence of delusions and or hallucinations, disorganized speech and behavior, poor impulse

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control and low frustration tolerance. He could not find out when the appellant started to suffer this illness, but the symptoms of Schizophrenia which were manifested by the patient indicated that he suffered from the illness six months before the Center examined the appellant. On cross-examination, he clarified that the evaluation finding that appellant suffered from Schizophrenia covered the period when the appellant submitted himself to examination.252[14]

In a Decision dated 13 November 2006, the RTC decreed that the appellant was guilty beyond reasonable doubt of homicide in Criminal Cases No. 1496-M-00 and No. 1497-M-00, frustrated homicide in Criminal Cases No. 1499-M-00 and No. 1500-M-00, and attempted homicide in Criminal Cases No. 1498-M-00 and No. 1501-M-00. The RTC gave credence to the principal eyewitness, Raquel Indon, whose testimony was corroborated by Michelle Indon, regarding appellant‘s attack on 29 March 2000. The trial court found the appellant‘s defense of insanity unmeritorious, since what was presented was proof of appellant‘s mental disorder that existed five years after the incident, but not at the time the crimes were committed. The RTC also considered it crucial that appellant had the presence of mind to respond to Raquel Indon‘s pleas that her daughters be spared by saying, ―Ngayon pa, nagawa ko na.‖ It also noted that based on the psychiatrist‘s findings, the appellant was competent to stand trial. However, the trial court declared that there were no qualifying circumstances to support the charges of Murder,

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Frustrated Murder or Attempted Murder.253[15] Decision dated 13 November 2006 reads:

The dispositive part of the

WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonable doubt of the crime of: a) In Crim. Case No. 1496-M-00, Homicide, for the death of Marvin G. Indon, minor and hereby sentences him to suffer the indeterminate penalty of seven (7) years of prision mayor as minimum to thirteen (13) years of reclusion temporal as maximum; and to indemnify the heirs of the deceased in the amount of P75,000.00. b) In Crim. Case No. 1497-M-00, Homicide, for the death of Melissa Indon, and hereby sentences him to suffer the indeterminate penalty of seven (7) years of prision mayor as minimum to thirteen (13) years of reclusion temporal as maximum; and to indemnify the heirs of the deceased in the amount of P75,000.00. c) In Crim. Case No. 1498-M-00, Attempted Homicide, and hereby sentences him to suffer the indeterminate penalty of six (6) months of aresto mayor as minimum to five (5) years of prision correccional as maximum; and to indemnify the private complainant in the amount of P10,000.00. d) In Crim. Case No. 1499-M-00, Frustrated Homicide, and hereby sentences him to suffer the indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision correccional as maximum; and to indemnify the private complainant Ronaldo Galvez in the amount of P30,000.00. e) In Crim. Case No. 1500-M-00, Frustrated Homicide, and hereby sentences him to suffer the indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision correccional as maximum; and to indemnify the private complainant Raquel Gatpandan Indon in the amount of P30,000.00. Likewise, accused is further directed to pay to the private complainant herein the sum of P90,000.00 to cover hospitalization and medical expenses; P42,000.00 to cover the casket and burial expenses for Melissa and Marvin, and P30,000.00 for food expenses, all by way of actual damages. f) In Crim. Case No. 1501-M-00, Attempted Homicide, and hereby sentences him to suffer the indeterminate penalty of six (6) months of aresto mayor as minimum to five (5)

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years of prision correccional as maximum, and to indemnify the private complainant in the amount of P10,000.00.254[16]

The appellant filed an appeal before the Court of Appeals docketed as CA-G.R. CR No. 30511, wherein he faulted the RTC for not taking note of the inconsistencies in Raquel Indon‘s testimony and for not giving due weight to his defense of insanity.255[17] In a Decision dated 30 April 2008, the appellate court adjudged that Raquel Indon‘s testimony was credible, and that the inconsistency pointed out by appellant—whether or not Raquel was standing up or lying down when appellant stabbed her legs—referred to minor details. Moreover, insanity exempts the accused only when the finding of mental disorder refers to appellant‘s state of mind immediately before or at the very moment of the commission of the crime. This was not the case when appellant was first medically examined more than four years after the commission of the crimes. Appellant‘s response to Raquel Indon‘s pleas also proved that his faculties of reasoning were unimpaired at the time of the attack against Raquel‘s children.256[18]

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The Court of Appeals nevertheless modified the RTC‘s Decision dated 13 November 2006 and declared that the qualifying circumstance of treachery, which was alleged in the six Informations along with evident pre-meditation, was adequately proven by the prosecution. Raquel Indon, Michelle Indon, Melissa Indon, Marvin Indon, and Jeffer Indon were merely sleeping inside their bedroom and had not even given the slightest provocation when appellant attacked them without warning. Furthermore, the killing of Marvin Indon and Melissa Indon, both minors who could not be expected to defend themselves against an adult, was considered treacherous, and would sustain a conviction for murder. The penalties imposed were adjusted accordingly. Appellant‘s conviction for frustrated homicide in Criminal Case No. 1499-M-2000 was affirmed, since prosecution failed to prove appellant‘s treachery or evident premeditation in his assault against Rolando Galvez, who came to the scene of the crime to subdue the appellant.257[19]

The Court of Appeals also modified the trial court‘s award of damages. It reduced the civil indemnity of P75,000.00 awarded by the trial court, occasioned by the deaths of Marvin Indon and Melissa Indon, to P50,000.00 and awarded the heirs of each murder victim moral damages in the amount of P50,000.00. The awards for funeral expenses of P42,000.00 and food expenses of P30,000.00 were deleted by the appellate court for lack of sufficient evidence to support the same. The appellate court awarded Raquel Indon civil indemnity of P30,000.00 and moral damages of P25,000.00, but reduced the actual damages of P90,000.00 awarded by the RTC to P46,343.00, in accordance with the Statement of Accounts

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from Sagrada Familia Hospital and Bulacan Provincial Hospital. It affirmed the trial court‘s award for moral damages of P10,000.00 in favor of Michelle Indon and P10,000.00 in favor of Jeffer Indon. Moral damages of P25,000.00 were also awarded by the appellate court in favor of Ronaldo Galvez. 258[20]

In the Decision dated 30 April 2008, the fallo reads:

WHEREFORE, the appealed Decision dated November 13, 2006 of the trial court is modified as follows: 1) In Criminal Case No. 1496-M-2000, accused-appellant Jesus Domingo is convicted of the crime of murder and sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Marvin Indon the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages. The trial court‘s award of funeral and food expenses of P42,000.00 and P30,000.00 respectively, are hereby deleted. 2) In Criminal Case No. 1497-M-2000, accused-appellant Jesus Domingo is convicted of the crime of murder and is sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Melissa Indon the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages. 3) In Criminal Case No. 1498-M-2000, accused-appellant Jose Domingo is convicted of the crime of attempted murder and is sentenced to an indeterminate penalty of six (6) years of prision correccional maximum, as the minimum penalty, to ten (10) years of prision mayor medium, as the maximum penalty and to pay Michelle Indon P10,000.00 as moral damages. 4) In Criminal Case No. 1499-M-2000, accused-appellant Jose Domingo is convicted of the crime of frustrated homicide and is sentenced to an indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision mayor as maximum and to pay Ronaldo Galvez P25,000.00 as moral damages.

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5) In Criminal Case No. 1500-M-2000, accused-appellant Jose Domingo is convicted of the crime of frustrated murder and is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as the minimum penalty, to seventeen (17) years and four (4) months of reclusion temporal medium, as the maximum penalty and to pay Raquel Indon the amount of P30,000.00 as civil indemnity, P46, 343.00 as actual damages and P25,000.00 as moral damages. 6) In Criminal Case No. 1501-M-2000, accused-appellant Jose Domingo is convicted of the crime of attempted murder and is sentenced to an indeterminate penalty of six (6) years of prision correccional maximum, as the minimum penalty, to ten (10) years of prision mayor medium, as the maximum penalty and to pay Jefferson (sic) Indon P10,000.00 as moral damages.259[21]

Hence, the present petition where the appellant reiterates the assignment of errors that were raised before the Court of Appeals, to wit:
I THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIMES CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT; and

II ASSUMING THAT THE ACCUSED-APPELLANT COMMITTED THE CRIMES CHARGED, THE TRIAL COURT GRAVELY ERRED IN NOT EXEMPTING HIM FROM CRIMINAL LIABILITY IN VIEW OF HIS INSANITY AT THE TIME OF THE COMMISSION OF THE SAME.260[22]

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This Court affirms the judgment of conviction.

The testimony of the principal witness of the prosecution, Raquel Indon, is assailed by appellant for not being credible due to an inconsistency in her testimony and a lack of conformity with the experience of ordinary men.

Appellant refers to Raquel‘s testimony during cross-examination wherein she narrated that after the appellant entered her bedroom, she screamed. Her sister-inlaw, who lived next door, responded by asking Raquel who her assailant was, and the latter identified the appellant. Appellant claims that the conversation between Raquel and her sister-in-law was contrary to the ordinary course of things, and that the initial reaction of people in such a situation would be to ask for help from other people in order to save those who are in danger. Secondly, Raquel also testified during cross-examination that the appellant stabbed the front of her legs when she fell down. It is also argued that the appellant could not have stabbed the front of her legs, since she would be lying on front of her legs when she fell down.

This Court finds no merit in these arguments. To begin with, there was nothing out of the ordinary as regards Raquel‘s testimony on these two matters. First, there was nothing unusual about the sister-in-law‘s query as to who was attacking Raquel. Considering that the exchange merely consisted of this question and the reply to it, it would not even be accurate to refer to it as a ―conversation.‖ Secondly, it was not impossible for the appellant to stab the front of Raquel‘s le gs,
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had her legs been positioned sideways when she fell. But more importantly, these are peripheral details that do not affect the substantial aspects of the incident. Raquel clearly and positively testified that she was carrying her son Marvin when she rushed to the gate and fell down, and the appellant stabbed her legs and thereafter proceeded to stab Marvin who later died from the stab wounds. Her testimony was supported by the Medico-Legal Reports marked as Exhibits ―E‖ and ―F.‖ Any inconsistencies in such peripheral details would not exculpate the

appellant.

Appellant also asserts that he was insane or completely deprived of intelligence during the commission of the alleged crimes, and therefore should be exempted from criminal liability in accordance with Article 12, Chapter 2 of the Revised Penal Code.261[23] However, this claim is not supported by evidence.

Appellant offers his uncorroborated testimony as the only proof that he was insane at the time he committed the crime. He testified that nine days before he

committed the crime, he suffered from lack of appetite, sleeplessness, and anxiety. In addition, he allegedly heard voices ordering him to kill bad people. He claims that he does not remember anything that happened on 29 March 2000, when the crimes were committed, and that he was already detained when he became conscious of his surroundings.

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The law presumes every man to be of sound mind. Otherwise stated, the law presumes that all acts are voluntary, and that it is improper to presume that acts are done unconsciously. Thus, a person accused of a crime who pleads the exempting circumstance of insanity has the burden of proving beyond reasonable doubt that he or she was insane immediately before or at the moment the crime was committed.262[24]

Insanity exists when there is a complete deprivation of intelligence while committing the act; i.e., when the accused is deprived of reason, he acts without the least discernment because there is a complete absence of power to discern, or there is total deprivation of freedom of the will. Mere abnormality of the mental faculties is not enough, especially if the offender has not lost consciousness of his acts. Insanity is evinced by a deranged and perverted condition of the mental faculties and is manifested in language and conduct. An insane person has no full and clear understanding of the nature and consequences of his or her acts.263[25]

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Even assuming that appellant‘s testimony is credible, his sleeplessness, lack of appetite, nervousness and his hearing imaginary voices, while suggestive of an abnormal mental condition, cannot be equated with a total deprivation of will or an absence of the power to discern. Mere abnormality of mental faculties will not exclude imputability. The popular conception of the word ―crazy‖ is used to describe a person or an act unnatural or out of ordinary. Testimony that a person acted in a crazy or deranged manner days before the commission of the crime does not conclusively prove that he is legally insane and will not grant him or her absolution.264[26]

Raquel Indon‘s narration of the events presents evidence that is more revealing of appellant‘s mental state at the time the crime was committed. Appellant‘s reply to her pleas that her daughters‘ lives be spared, ―Ngayon pa, nagawa ko na,‖ was a positive sign that he was aware of what he was doing, and that his reasoning faculties were unimpaired.

The trial court found the testimony of Raquel Indon more credible than that of the accused, and its findings were affirmed by the Court of Appeals. It is settled that when the trial court‘s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. This Court does not generally disturb the findings of fact of the trial court because it is in a better position to examine real evidence, as well as to observe the demeanor of witnesses

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while testifying on the stand. Unless there is a clear showing that it overlooked certain facts and circumstances that might alter the result of the case, the findings of fact made by the trial court will be respected and even accorded finality by this Court.265[27]

It is also remarkable that appellant‘s testimony is not supported by his family‘s or intimate friends‘ accounts of his purported insanity. Appellant testified that he

had been suffering from symptoms of insanity nine days before the incident. Insanity may be shown by the surrounding circumstances fairly throwing light on the subject, such as evidence of the allegedly deranged person‘s general conduct and appearance, his conduct consistent with his previous character and habits, his irrational acts and beliefs, as well as his improvident bargains.266[28] It is difficult to believe that appellant‘s behavior, conduct and appearance, which would denote mental disturbance, escaped the notice of his family and friends.

Appellant draws attention to the results of the medical examination conducted by Dr. Regienald Afroilan in 2004, showing that he was suffering from Schizophrenia. It should be noted however that the examination was taken four years after the crimes were committed, and that Dr. Afroilan admitted that his findings did not include the mental state of petitioner four years before. The

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alleged insanity of an accused should relate to the period immediately before or at the very moment the felony is committed, not at any time thereafter. Medical findings of mental disorder, referring to a period after the time the crime was committed, will not exempt him from criminal liability. 267[29]

Appellant emphasizes the fact that he was a friend of the Indon family and would not have committed such atrocities against them, unless he was totally deprived of reason. In People v. Madarang,268[30] this Court ruled that the fact that the accused had no quarrel with his victim prior to the killing does not prove the unstable mental condition of the accused. Jurisprudence is replete with cases in which lives have been terminated for the flimsiest reasons.

This Court will now discuss the imposition of penalties and modify those imposed by the Court of Appeals. Appellant is guilty of Murder in Criminal Cases No. 1496-M-2000 and No. 1497-M-2000. The penalty for murder is reclusion perpetua to death. There being neither mitigating nor aggravating circumstances, the penalty for murder should be imposed in its medium period, or reclusion

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perpetua.269[31] Thus, for the murder of Marvin Indon and Melissa Indon, the penalty imposed on appellant is two sentences of reclusion perpetua.

When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.270[32]

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.271[33] Under prevailing jurisprudence, the award of P50,000.00 to the heirs of the victim as civil indemnity is in order.272[34] Thus, P50,000.00 is awarded to the heirs of Marvin Indon and P50,000.00 to the heirs of Melissa Indon.

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The heirs of Marvin Indon and Melissa Indon are not entitled to actual damages, because said damages were not adequately proved. The party seeking actual damages must produce competent proof or the best evidence obtainable, such as receipts, to justify an award therefor.273[35] The funeral expenses, to

which Raquel Indon referred in her testimony, were not supported by receipts. Nevertheless, the award of P25,000.00 in temperate damages for homicide or murder cases is proper when no evidence of burial or funeral expenses is presented in the trial court.274[36] 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 proved.275[37] Thus, the heirs of Marvin Indon and Melissa Indon are entitled to temperate damages of P25,000.00 for each death.

In cases of murder and homicide, the award of moral damages is mandatory, without need of allegation and proof other than the death of the victim.276[38] The award of P50,000.00 as moral damages is in order for the death for Marvin Indon, and likewise for that of Melissa Indon.

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Exemplary damages of P25,000.00 should also be awarded, since the qualifying circumstance of treachery was firmly established.277[39] Marvin Indon and Melissa Indon were both minors when they were killed by the appellant. The killing by an adult of a minor child is treacherous.278[40] Moreover, the victims in this case were asleep when appellant barged into their house and attacked their family. The attack was clearly unprovoked, and they were defenseless against him.

In Criminal Cases No. 1498-M-2000 and No. 1501-M-2000, appellant is guilty of the Attempted Murder of Michelle Indon and Jeffer Indon. The penalty

for Attempted Murder is prision correccional maximum to prision mayor medium. Thus, the penalty imposed on the appellant is two sentences of six years of prision correccional, as minimum, to ten years of prision mayor medium, as maximum, for the attempted murder of Michelle Indon and Jeffer Indon. In addition to the moral damages of P10,000.00 for each victim, which the Court of Appeals imposed, appellant is also ordered to pay civil indemnity of P20,000.00279[41] and exemplary damages of P25,000.00.280[42

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In Criminal Case No. 1499-M-2000, appellant is convicted of the crime of frustrated homicide of Ronaldo Galvez. The penalty for frustrated homicide, there being no other mitigating or aggravating circumstances attending the same, is five years of prision correccional as minimum to eight years and one day of prision mayor as maximum. Moral damages in the amount of P25,000.00, awarded by the Court of Appeals, are affirmed. Appellant is guilty of Frustrated Murder in Criminal Case No. 1500-M-2000. The penalty for Frustrated Murder is reclusion temporal, which must be imposed in its medium period, considering that there were neither aggravating nor mitigating circumstances that were proven in this case. Applying the Indeterminate Sentence Law, appellant should be sentenced to suffer the penalty of twelve years of prision mayor, as minimum, to seventeen years and four months of reclusion temporal medium, as the maximum penalty. This Court affirms the award by the Court of Appeals of (1) Civil Indemnity in the amount of P30,000.00;281[43] (2) actual damages of P46,343.00 for medical expenses, which are supported by receipts marked as Exhibits ―I‖ and ―J‖; and (3) moral damages of P25,000.00. Appellant is also ordered to pay exemplary damages of P25,000.00 based on the finding that the assault against Raquel Indon was attended by treachery.282[44] The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner of execution, affording the hapless and unsuspecting victim no

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chance to resist or escape.283[45] At the time Raquel was attacked, she was in her home, unarmed and sleeping with her children. She was undoubtedly unprepared and defenseless to resist appellant‘s attack on her and her young children. All the sums of money awarded to the victims and their heirs will accrue a 6% interest from the time of this Decision until fully paid. WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 30 April 2008 in CA-G.R. CR No. 30511 is MODIFIED in accordance with the hereinabove discussion on penalties and award of damages, to wit: 1. In Criminal Case No. 1496-M-2000, this Court additionally awards P25,000.00 as temperate damages and P25,000.00 as exemplary damages to the heirs of Marvin Indon 2. In Criminal Case No. 1497-M-2000, this Court additionally awards P25,000.00 as temperate damages and P25,000.00 as exemplary damages to the heirs of Melissa Indon. 3. In Criminal Case No. 1498-M-2000, the Court additionally awards civil indemnity of P20,000.00 and exemplary damages of P25,000.00 to Michelle Indon. 4. In Criminal Case No. 1499-M-2000, the appellant is sentenced to serve an indeterminate penalty of five years of prision correccional as minimum to eight years and one day of prision mayor as maximum.

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5. In Criminal Case No. 1500-M-2000, this Court additionally awards exemplary damages of P25,000.00 to Raquel Indon. 6. In Criminal Case No. 1501-M-2000, this Court additionally awards civil indemnity of P20,000.00 and exemplary damages of P25,000.00 to Jeffer Indon. No costs. SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice

ANTONIO T. CARPIO

CONCHITA CARPIO MORALES

Associate Justice

Associate Justice

DIOSDADO M. PERALTA Associate Justice

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ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division. MINITA V. CHICO-NAZARIO Associate Justice Acting Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson‘s attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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OFFENDER’S DESISTANCE 1. People vs. Antonio Gr. No. 174372; January 20, 2009

EN BANC

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 174372

Present:

PUNO, C.J.,
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QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, - versus AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, & BRION, JJ.

ELPIDIO ANTONIO, Appellant.

Promulgated:

January 20, 2009 x----------------------------- ------------------ x

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DECISION

CARPIO MORALES, J.: The Court of Appeals having affirmed the conviction of Elpidio Antonio (appellant) by the trial court of two counts of rape of his minor daughter AAA and the denial by the trial court of his Motion for Reconsideration and Motion for New Trial anchored in the main on AAA‘s purported execution of an Affidavit of Desistance, the present appeal was lodged.

Appellant Elpidio Antonio was by separate Informations charged with two counts of rape of his minor daughter AAA before the Regional Trial Court (RTC) of Nueva Ecija. The first, docketed as Criminal Case No. 3765, alleged

xxxx That on or about the 6th day of June 1994, at Barangay San Roque, Municipality of San Isidro, Province of Nueva Ecija and within the jurisdiction of this Honorable Court, the above-named accused with the use of force, pointing a kitchen knife to her, and taking advantage of his superior strength, did then and there, willfully, unlawfully and feloniously lay with and have sexual intercourse with the offended party [AAA], his daughter, a minor, about 14 years of age, against her will and in their own house. x x x x284[1]

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The second, docketed as Criminal Case No. 3770, alleged

xxxx That on or about the 14th day of August, 1994, at Barangay San Roque, Municipality of San Isidro, Province of Nueva Ecija and within the jurisdiction of this Honorable Court, the above-named accused with the use of force, pointing a kitchen knife to her, and taking advantage of his superior strength, did then and there willfully, unlawfully and feloniously lay with and have sexual intercourse with the offended party [AAA], his daughter, a minor, about 14 years of age, against her will and in their own house.285[2] xxxx

The two cases were jointly tried.

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Culled from the records of the cases is the following version of the prosecution:286[3]

At around 6:00 o‘clock in the morning of June 6, 1994, the then 13 -year-old AAA287[4] who was sleeping with her six siblings at their house in San Isidro, Nueva Ecija awoke to find her father–herein appellant lying beside her, touching her breasts and vagina. Over her resistance, and at the point of a bladed weapon, he undressed her and inserted his penis into her vagina causing it to bleed. And he threatened to kill her if she reveals to anyone what he had done.

In the morning of August 14, 1994, again as AAA was sleeping at their house with her siblings, she awoke to find appellant mashing and sucking her breasts, licking her vagina, pointing a bladed weapon at her, following which, over her resistance, he undressed her and himself and inserted his penis into her vagina. Again blood oozed from her vagina.

On August 20, 1994 or thereabouts, AAA‘s mother BBB, who was in Manila at the time the rapes took place, returned to their house and learned from AAA what had

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happened to her.

She thus brought AAA to San Antonio Hospital for medical

examination which yielded the following findings on the private and other parts of her body:

1. 2. 3. 4.

Healed Lacerations at 1, 4, 7, 9 o‘clock Negative Discharge Breasts – [F]irm, Supple, Brownish Areola and Nipples Abdomen – Flat and Firm.288[5]

Dr. Benjamin Lopez (Dr. Lopez) who conducted the medical examination explained that the lacerations on AAA‘s hymen could have been due to the entry of a hard object into the vagina.289[6]

Admitting that AAA is his daughter, appellant denied the charges, claiming that they were filed at BBB‘s instance in retaliation for his having driven her away from home following an altercation on August 13, 1994. And t o show BBB‘s motive, appellant presented his mother who claimed that BBB demanded the payment by appellant of P100,000 and the transfer to her of the house and lot she (mother) owned as conditions for the dropping of the charges.290[7]

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By Decision291[8] of August 15, 2000, Branch 36 of the Nueva Ecija RTC found appellant guilty of both charges, disposing as follows:

WHEREFORE, accused ELPIDIO ANTONIO Y SALAZAR, who, after hearing, was found guilty of RAPE, as charged, beyond reasonable doubt, is sentenced to suffer the penalty of DEATH, for each count of Rape, or two (2) deaths and to indemnify the victim [AAA] the sum of SEVENTY FIVE THOUSAND (P75,000.00) pesos for each count. And said Elpidio S. Antonio is further condemned to pay P50,000.00 for moral damages and another P50,000.00 for exemplary damages. SO ORDERED.292[9] (Underscoring supplied)

After the promulgation of the trial court‘s judgment, appellant filed a Motion for Reconsideration293[10] and a Motion for New Trial294[11] anchored in

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the main on, as stated earlier, the purported execution by AAA of a September 23, 2000 Affidavit of Desistance reading:

Ako, [AAA], dalaga, may sapat na gulang, at kasalukuyang naninirahan sa San Roque, San Isidro, Nueva Ecija, matapos manumpa nang ayon sa batas, ay malaya at kusangloob na nagsasaysay ng mga sumusunod: 1. Na ako ang nagsampa ng kasong Rape, Criminal Case Nos. 3765 at 3770 laban sa aking amang si Elpidio Antonio, na nakabinbin sa Regional Trial Court (RTC), Branch 36, Gapan, Nueva Ecija, at ang kapasiyan at hatol ng Hukom, Kgg. Arturo M. Bernardo, ay nakatakdang basahin sa ika-18 ng Setyembere 2000; 2. Na matapos kong muling pag-aralan nagayong ako ay mayroon nag sapat na gulang at kalayaan, ang mga pangyayari kaugnay ng mga kasong isinampa ko laban sa aking amang si Elpidio Antonio – ay lubusan kong napatunayan, naliwanagan, at naipasya sa aking sarili na walang sapat na batayan at hindi makatarungan na mahatulan at magdusa ang aking amang si Elpidio Antonio dahil ang tutuo ang kasong ito ay bunga lamang ng malubhang personal na alitan na namamagitan noon sa aking amang si Elpidio Antonio at inang si Thelma Manalad, at pinili kong pinanigan ang aking ina sa aking paniniwala noon na sya ang agrabyado at tama; 3. Na sa ngalan ng katarungan at sa bisa ng sinumpaang salaysay na ito ay kusangloob kong iniuurong at lubusang pinawawalan ng saysay ang aking nabanggit sa demandang Rape, Criminal Cases Nos. 3765 at 3770 laban sa aking amang si Elpidio Antonio, at walang sinumang pumilit, tumakot, at nangako ng anumang pabuya upang

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gawin ko ang sinumpaang salaysay pag-uurong ng demandang ito.295[12] (Underscoring supplied)

The trial court denied both motions.296[13]

The records of the cases were thereupon elevated for automatic review to this Court which, following People v. Mateo297[14] providing for an intermediate review of criminal cases where the death penalty, life imprisonment and reclusion perpetua are imposed, referred them to the Court of Appeals.298[15] By Decision299[16] of April 25, 2006, the Court of Appeals affirmed the trial court‘s decision, hence, the present appeal. Appellant hinges his appeal on the execution by AAA of an Desistance.300[17] Thus he faults the trial court Affidavit of

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x x x IN ITS FINDING THAT THE ACCUSED IS GUILTY BEYOND REASONABLE DOUBT OF TWO COUNTS OF RAPE, DESPITE SUBSEQUENT RETRACTION AND SUBMISSION OF [THE] AFFIDAVIT OF DESISTANCE BY THE OFFENDED PARTY. xxxx x x x IN DENYING THE MOTION FOR NEW TRIAL AND IN NOT GIVING CREDENCE AND DISALLOWING THE PROBATIVE VALUE OF [THE] AFFIDAVIT OF DESISTANCE OF THE OFFENDED PARTY.301[18] (Underscoring supplied

The appeal is bereft of merit.

It bears noting that the affidavit was presented after the judgment of conviction by the trial court was promulgated which, as a rule, the Court frowns upon.302[19]

For AAA‘s supposed Affidavit of Desistance to warrant a new trial, it must deny the truth of her complaint, not merely seek the withdrawal of appellant‘s

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prosecution.303[20] Her statement that there is no sufficient basis for her father to be convicted of rape and it is unjust to convict her father and let him suffer (―walang sapat na batayan at hindi makatarungan na mahatulan at magdusa ang aking amang si Elpidio Antonio‖) is just a legal conclusion. Apropos is this Court‘s pronouncement in People v. Junio:304[21
x x x The unreliable character of [the affidavit of desistance] is shown by the fact that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, [the victim] would suddenly turn around and declare that ―[a]fter a careful deliberation over the case, (she) find(s) that the same does not merit nor warrant criminal prosecution.‖305[22]

Parenthetically, the affidavit is of doubtful authenticity, for AAA‘s purported signature thereon is different from her signature on her Complaint-Affidavit which she identified in open court.306[23] The conviction of appellant for both counts of rape must thus stand.

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In view, however, of the enactment of Republic Act No. 9346 prohibiting the imposition of the death penalty, the penalty imposed for each count of rape is reduced to reclusion perpetua.307[24] WHEREFORE, the Decision of the Court of Appeals dated April 25, 2006 affirming the decision of Branch 36 of the Nueva Ecija dated August 15, 2000 is AFFIRMED with the MODIFICATION that the penalty imposed on accusedappellant, Elpidio Antonio, for each count of rape, is reduced to reclusion perpetua, with no eligibility for parole. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING

CONSUELO YNARES- SANTIAGO

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Associate Justice

Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court REYNATO S. PUNO Chief Justice

2. Sta. Catalina vs. People Gr. No.167805; November 14, 2008

SECOND DIVISION

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ARNOLD STA. CATALINA, Petitioner,

G.R. No. 167805
Present:

- versus -

QUISUMBING, Acting C.J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: November 14, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, Acting C.J.: This petition for review on certiorari seeks to reverse and set aside the Decision308[1] dated October 26, 2004 and the Resolution309[2] dated April 14,

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2005 of the Court of Appeals in CA-G.R. CR No. 21877. Petitioner was charged before the Regional Trial Court, Branch 63, Makati City, with the crime of estafa defined under Article 315, paragraph 1(b)310[3] of the Revised Penal Code. The Information311[4] reads:
xxxx That [o]n or about and sometime during the month of February 1988, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said accused, received in trust from LORENZO B. BALLECER the amount of P100,000.00 for the purpose of opening a letter of credit for the intended importation of jute sacks from China with the express obligation on the part of the accused of returning the same if the transaction does not materialize, but the accused once in possession of the said amount far from complying with his obligation, with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously appropriate, apply and convert to his own personal use and benefit the said amount and despite demands, failed and refused and still fails and refuses to return the same to said Lorenzo B. Ballecer, to the damage and prejudice of the latter in the aforesaid amount of P100,000.00. CONTRARY TO LAW.

Petitioner pleaded not guilty upon arraignment. Thereafter, a trial on the merits ensued. The following facts were established. Private complainant Lorenzo B. Ballecer was the president of Sunrise Industries Development, Incorporated while his friend, herein petitioner, was the president of

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Century United Marketing and Trading Corporation.312[5]

Sometime in February 1988, Ballecer entered into a joint business venture with petitioner involving importation of jute sacks from China. Petitioner intimated to Ballecer that he could secure the jute sacks from China through a company in Hongkong which would act as his agent. Petitioner also told Ballecer that he had a ready buyer in the Philippines named Saugus Enterprises which was willing to buy the jute sacks at P12.25 per piece. Convinced, Ballecer ordered through petitioner one container load of jute sacks with the total cost of P137,000.313[6] After the order was made, petitioner told Ballecer to open the importation‘s letter of credit. Accordingly, Ballecer and petitioner proceeded to Citytrust Bank to open said letter of credit. However, before the letter of credit could be opened, the bank required them to submit the supporting customs documents and to post a marginal deposit of P100,000. Ballecer then asked petitioner to accompany him to United Coconut Planters Bank to encash a check worth P100,000.314[7] After the encashment of the check, the two returned to Citytrust Bank. However, they arrived after banking hours, so the letter of credit could no longer be opened. Petitioner then suggested that the money be deposited in his account at Citytrust

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instead. Ballecer agreed.315[8] By way of acknowledgment, petitioner executed a document which reads:
xxxx This is to certify that I have received from LORENZO B. BALLECER the amount of ONE HUNDRED THOUSAND PESOS ONLY (P100,000.00) and deposited in my CITYTRUST BANK Account No. 00035016566 for use in the opening of a Letter of Credit at said bank for the importation of 20,000 pcs. of jute sacks from Hongkong and that the same will be returned to him if transaction does not materialize.316[9] (Underscoring supplied.)

While preparing the supporting customs documents for the letter of credit, Ballecer found that the cost of the jute sacks was not $0.15 but $0.62 or P16.15 per piece.317[10] Realizing that his business venture was a losing proposition,

Ballecer cancelled the importation and asked petitioner to return the P100,000. Petitioner, however, failed to return the money despite repeated verbal and formal demands. In defense, petitioner testified that he did not misappropriate the P100,000. Petitioner claimed that the said money was spent and used for the office expenses, salaries and miscellaneous expenses of the office which Ballecer and petitioner occupy and share together. He further testified that when the check was given to Ballecer, they encashed it and entered into an oral agreement that whatever profit

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they will realize from their joint business venture shall be shared equally after deducting all expenses.318[11] On March 11, 1997, the trial court convicted the petitioner of the crime charged. The decretal portion of the Decision319[12] reads:
Finding all the elements necessary to qualify an act as estafa to be present, the court finds the accused ARNOLD STA. CATALINA, ―GUILTY‖ beyond reasonable doubt. A judgment of conviction is rendered against him and he is to suffer the penalty of from 2 years 11 months and 11 days of prision correc[c]ional in its minimum and mediu[m] period, to 8 years of … prision mayor and 1 year for each additional P10,000.00 in excess of P22,000.00 as provided for under Art. 315 par. 1. Likewise, accused is ordered to pay civil indemnity in the amount of P100,000.00 representing the amount he received from private complainant and which he deposited in his own account. SO ORDERED.320[13]

Aggrieved, petitioner appealed. He filed a motion praying that the testimony covered by the transcript of stenographic notes dated February 5, 1991 be retaken. The motion was granted by the Court of Appeals in a Resolution321[14] dated July 14, 1999. However, on April 10, 2000, the public prosecutor filed a

Manifestation322[15] stating that Ballecer was no longer interested in pursuing his

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complaint against petitioner and that the case should be decided in light of Ballecer‘s Affidavit of Desistance.323[16] On October 26, 2004, the Court of Appeals rendered a Decision affirming the judgment of conviction by the trial court. The appellate court held:
WHEREFORE, PREMISES CONSIDERED, the Decision, dated March 11, 1997, is hereby AFFIRMED and the sentence imposed by the Court a quo on the accused is clarified, thus: for the accused to suffer the indeterminate penalty of 2 years, 11 months and 11 days of prision correccional as minimum to 15 years of reclusion temporal as maximum. The judgment of the Court a quo ordering accused-appellant to pay private complainant the sum of P100,000.00 representing the amount misappropriated is likewise AFFIRMED. SO ORDERED.324[17]

Petitioner filed a motion for reconsideration.325[18] The same was denied in a Resolution dated April 14, 2005. Dissatisfied with the aforementioned rulings of the Court of Appeals, the petitioner now comes before us, raising the following issues:
I. WHETHER OR NOT THE RESPONDENT COURT OF APPEALS HAS DECIDED THE CASE (CA-G.R. CR NO. 21877) IN A WAY PROBABLY NOT IN ACCORDANCE WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE

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SUPREME COURT; II. WHETHER THE RESPONDENT COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND [USUAL] COURSE OF JUDICIAL PROCEEDINGS, OR SO FAR SANCTIONED SUCH DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE POWER OF SUPERVISION; III. WHETHER OR NOT THIS HONORABLE TRIBUNAL, IN THE EXERCISE OF ITS POWER OF REVIEW, MAY REVERSE THE DECISION OF THE RESPONDENT COURT, ESPECIALLY IN CASES WHERE THERE IS MORE THAN A CLEAR GROUND OF REASONABLE DOUBT.326[19]

In the main, the issue is: Did the Court of Appeals err in convicting the petitioner for the crime of estafa despite the missing transcript of stenographic notes dated February 5, 1991? In his petition, the petitioner contends that he should have been acquitted of the crime charged. He avers that when the trial court rendered its decision, the transcript of stenographic notes taken on February 5, 1991 was missing. Hence, the appellate court erred in not ordering the trial court to render a new decision based on the complete evidence submitted by the parties, including the testimony on the missing stenographic notes. Petitioner asserts that the facts as found by the trial court and adopted by the appellate court are not complete. Thus, the same should not be used as basis for convicting him of the crime charged.327[20] For its part, the Office of the Solicitor General (OSG) counters that nothing

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on the record states that the questioned transcript was already missing when the trial court rendered its decision. In fact, the matter of the transcript being lost or missing surfaced only when the case was already in the appellate stage. Also, there is no proof that Ballecer‘s testimony was not considered at all when the trial court rendered its decision. The OSG submits that contrary to petitioner‘s claim, the decision of the trial court made reference to the testimony of Ballecer. Conversely, even if the February 5, 1991 transcript was missing when the trial court decided the case, other evidence were presented, which as properly appreciated, led the trial court to correctly conclude that the petitioner committed the crime of estafa.328[21] We have carefully examined the records of the case and find no cogent reason to disturb the findings of the appellate court. First, all the elements of estafa under Article 315, par. 1(b) of the Revised Penal Code are present. The elements of estafa under said provision are: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another.329[22]

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Here, the petitioner received in trust from Ballecer the amount of P100,000 for the purpose of opening a letter of credit for the importation of jute sacks with the concurrent obligation to return the same amount in the event that the transaction failed to materialize. Petitioner, however, misappropriated and applied to his own use the said amount and even admitted issuing checks to be drawn from the P100,000 for a purpose other than opening a letter of credit. Petitioner was then asked to return the P100,000. Despite repeated verbal and formal demands, petitioner failed and refused to return said amount to the prejudice of Ballecer. Clearly, all the elements of the crime of estafa were proven in the instant case.330[23] Second, the appellate court did not err in convicting petitioner despite the fact that the February 5, 1991 transcript was missing. As correctly pointed out by the OSG, nothing on record categorically indicates that the transcript was already missing when the trial court rendered its decision. The mere fact that the trial court did not mention the February 5, 1991 testimony does not mean that it was not considered at all. Courts are not required to state in its decision all the facts found in the records. It is enough that the court states the facts and the law on which its decision is based.331[24] The mere fact that no mention was made in the trial court‘s decision of the testimony of a witness does not necessarily mean said testimony was overlooked by the trial court in arriving at its decision. If it did not

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make reference of said testimony, it is because it was insignificant.332[25] Even assuming that the transcript of February 5, 1991 was missing at the time the trial court decided the case, there were other evidence presented which led it to correctly conclude that indeed petitioner committed estafa. Ballecer. In fact, the

missing transcript of February 5, 1991 contained only a portion of the testimony of Other transcripts, which extensively covered Ballecer‘s testimonies,

provided sufficient basis for the trial court to convict petitioner. Finally, the Affidavit of Desistance333[26] submitted by Ballecer will not justify the dismissal of the action. By itself, an Affidavit of Desistance is not a ground for the dismissal of an action, once the action has been instituted in court.334[27] Here, Ballecer made the so-called pardon of the petitioner after the institution of the action. He made the Affidavit of Desistance only on October 25, 1999 – more than two years after the trial court had rendered its decision. The Court attaches no persuasive value to a desistance especially when executed as an afterthought. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who had given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and

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place the investigation at the mercy of unscrupulous witnesses.335[28] Moreover, if we allow the dismissal of the case in view of Ballecer‘s Affidavit of Desistance, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable.336[29] WHEREFORE, the petition is hereby DENIED. The Decision dated

October 26, 2004 and the Resolution dated April 14, 2005 of the Court of Appeals in CA-G.R. CR No. 21877 are AFFIRMED. SO ORDERED.

LEONARDO A. QUISUMBING Acting Chief Justice

WE CONCUR:

CONCHITA CARPIO MORALES Associate Justice

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DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

LEONARDO A. QUISUMBING Acting Chief Justice

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ARTICLE 13 MITIGATING CIRCUMSTANCES LACK OF INTENT TO COMMIT SO GRAVE A WRONG 1. People vs. Abare Gr. No. 172973; December 18, 2008

Republic of the Philippines
Supreme Court
Manila

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THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 172973 Present: QUISUMBING, YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and REYES, JJ. Promulgated: December 18, 2008

- versus -

MARCELINO ABARE, Appellant.

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

DECISION

AUSTRIA-MARTINEZ, J.:

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For review before this Court is the July 18, 2005 Decision337[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00764 which affirmed the Decision338[2] dated January 18, 2002 of the Regional Trial Court (RTC) of Calapan City, Oriental Mindoro, Branch 40, finding Marcelino Abare (appellant) guilty of murder qualified by treachery and sentencing him to suffer the penalty of reclusion perpetua.

The Information in Criminal Case No. C- 5351 reads as follows:

That on or about the 24th day of November 1997 at around 7:30 o'clock in the evening, in Barangay Bucayao, Municipality of Calapan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with deliberate intent to take the life of SAMSON CUYOGAN and with treachery and evident premeditation, did then and there willfully, unlawfully, feloniously, unexpectedly and treacherously attack, assault, and hack the latter with a scythe, wounding him on the neck and on the different parts of his body, which wounds being necessarily mortal, thereby causing the direct and immediate death of the said SAMSON CUYOGAN. Contrary to law.339[3]

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When arraigned, appellant pleaded ―not guilty.‖340[4] Thereafter trial ensued.

The prosecution presented three witnesses: Armando Yabut (Yabut), Magdaleno Gameng (Gameng) and Dr. Angelita Legaspi. The defense presented appellant and Senior Police 0fficer 1 Agapito Marasigan.

The CA narrated the evidence presented by the parties, to wit:

Armando Yabut, 36 years old and a resident of Bucayao, Calapan City, Oriental Mindoro, testified that at around 7:30 in the evening of November 24, 1997, he was at the living room of his house at Barangay Bucayao, Calapan City together with Magdaleno Gameng, Antonio Bernardino and the victim, Samson Cuyogan who were among his guests in his birthday celebration. The accused Marcelino Abare earlier arrived at his house at around 11:30 in the morning and left at around 7:30 in the evening. Incidentally, the accused is his brother-in-law, the accused being his wife's cousin. While waiting for the liquor they requested to be bought, the witness, together with Gameng, Bernardino and the victim Cuyogan, engaged in a conversation. He and the victim were seated with their backs turned against the window of the living room. He was about two (2) feet away from the left side of the victim who was leaning against the window pane, while on his left was Gameng and on Gameng's left was Bernardino. They were seated in such a way that they formed a slightly curved line, with Gameng and Bernardino facing him and the victim. During the conversation, the witness suddenly saw the victim fall forward with blood oozing from his neck. He also saw the accused standing outside holding a bloodied scythe. He then went outside and approached the accused and asked him, ―Bakit mo nagawa ang bagay na yan? Bakit mo siya pinatay? Ano ang kanyang kasalanan?‖ To which the accused replied, ―Amanos na kami, solved na ang problema ko.‖ The witness then grabbed the hand of the accused and wrested the scythe from him and threw it towards the side of the house. After a few minutes, several people arrived including the victim's wife who became hysterical after seeing what happened to her

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husband. Thereafter, he and several neighbors brought the victim to the Provincial Hospital where the latter was pronounced dead on arrival.341[5] On cross-examination, the witness stated that prior to the incident, no altercation transpired between the victim and another person. He did not actually see the accused hack the victim and when he wrested the scythe from the accused, the latter did not resist.342[6] On the other hand, Magdaleno Gameng testified that he arrived at the house of Armando Yabut at around 5 o'clock in the afternoon of November 24, 1997 and joined the drinking session in celebration of Yabut's birthday. He was seated at the left side of Yabut facing the latter. By 7:30 in the evening of said date, he and his companions Yabut, Bernardino, and Cuyogan were already tipsy, having consumed a lot of liquor and they ordered for more. While waiting for the liquor they requested to be bought, the victim suddenly fell face down (sumubasob) and his neck was bloodied and almost severed from the body. He then saw the accused outside the window holding a scythe with blood flowing down from it. After a while, he saw Yabut go out of the house and confront the accused about what the latter just did. On cross-examination, the witness said that while he did not actually see the manner by which the accused stabbed or hacked the victim, the accused was the only one who was holding a scythe outside the window after the victim fell face down. Finally, he claimed that he did not know if any altercation had transpired between the accused and the victim prior to the incident.343[7] Finally, Dr. Angelita Legaspi, the rural health physician of Calapan City, testified that she conducted the autopsy on the cadaver of the victim on November 25, 1997, and issued a Necropsy Report344[8] x x x. xxxx Dr. Legaspi explained that the victim suffered abrasions on the chin, left side of the chest, upper forearm and the left 3rd and 4th fingers probably caused by a sharp object or by rubbing on a rough surface, as in this case when the victim fell down on the floor. She also stated that the victim

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sustained a hack wound on the front portion of the neck which is about eight (8) inches long probably caused by a sharp object like a bolo or scythe. She opined that the assailant could have been in front, at the side or at the back of the victim when he inflicted the injury on the neck of the victim. She claimed the injury on the neck was fatal because it contained major blood vessels including the carotid artery and these blood vessels were cut. She concluded that the victim died because of loss of blood resulting from the wound on his neck.345[9] In his defense, accused-appellant testified that while he was at his house on November 24, 1997, Armando Yabut came to fetch him to attend the former's birthday celebration. At around 5:00 o'clock in the afternoon, Yabut requested him to buy one case of beer after which they, together with Gameng and Bernardino, engaged in a drinking spree. At around 6:00 p.m., the victim Samsom Cuyogan arrived somewhat drunk, requesting that more beer be bought. After one and half (1 ½) cases more beer were bought, the group continued drinking. After a while, the accused demanded from the victim the amount of P200.00 as his wages for the excavation and installation of a deep-well tank in Barangay Natulo, Naujan, Oriental Mindoro. Apparently, the victim was a contractor in the installation of deep-well tanks while the accused was one of the victim's workers. When the victim told him that he had no money, he replied that he could give him rice. The victim, however, told him, “problema mo na yan, hindi ko problema yan!” The witness then saw a scythe on top of the table which they were then using to cut calamansi fruits, and he and the victim grappled for it. He was able to take possession of the scythe and when the victim turned his back on him, he struck the former with a scythe thinking that the victim would just be hit on the shoulders. He then went out of the door, taken aback by what he did. He claimed that he had not intention to kill the victim. Thereafter, a number of people arrived, among those was his aunt who patted him on the left shoulder and told him, ―Takbo na!‖ He then got scared and ran towards his father's house. His father instructed him to go to Barangay Biga, Calapan City, together with his brother. They then proceeded to the house of his brother-in-law where he slept for a while. At twelve midnight, his brother and father fetched him to surrender him to the police authorities. Finally, he reiterated that he did not intend to kill the victim.346[10] On cross-examination, he testified that he had an altercation with the victim when he demanded the full payment of wages due him for the the installation of a deep-well in Naujan, Oriental Mindoro. He got angry about the victim's reply and struck the latter. He did not intend to hit the victim on the neck and did not see any blood coming out of the body of the victim. He did not remember having told Yabut, ―Ay amanos na kami, solved na ang aking problema.‖ He claimed he voluntarily surrendered to the police.347[11]

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The last witness to take the stand was SPO1 Agapito Marasigan, a member of the Philippine National Police, who testified that on the night of November 24, 1997, somebody arrived at his residence in Bucayao, Calapan City and informed him about the killing of the victim Samson Cuyogan. He then proceeded to the crime scene and on his way thereto, he met the father of the accused who told him that his son was involved in the killing of Cuyogan and intended to surrender the accused to him. The father of the accused then fetched the former from where he was staying at that time. The witness then brought the accused to the police detachment in Barangay Sta. Isabel, Calapan City and called up the Calapan City Police Station. When police investigators from the police station arrived, he informed them that the accused voluntarily surrendered to him but he was not aware if the same was recorded in the police blotter or any relevant police record.348[12] (Emphasis supplied)

The RTC upheld the prosecution evidence and found appellant guilty of the crime of murder.

The dispositive portion of the RTC decision reads as follows:
Accordingly, this Court finds herein accused Marcelino Abare y Isidro guilty beyond reasonable doubt as principal by direct participation of the crime of Murder qualified by treachery and punishable under Article 248 of the Revised Penal Code. Considering the absence of any other aggravating nor mitigating circumstances, said accused is hereby sentenced to suffer the penalty of RECLUSION PERPETUA with all the accessory penalties as provided for by law and to pay the costs, to indemnify the heirs of the victim Samson Cuyogan the amount of P50,000 as civil indemnity and another P50,000 as moral damages. SO ORDERED.349[13]

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The RTC decision was appealed to this Court by the appellant; the decision, was, however, referred to the CA pursuant to People v. Mateo.350[14]

In its Decision dated July 18, 2005, the CA affirmed the decision of the RTC, to wit:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The January 18, 2002 Decision of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, is hereby AFFIRMED. SO ORDERED.351[15]

Appellant filed a Motion for Reconsideration,352[16] which was denied by the CA through a Resolution353[17] dated January 27, 2006.

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Hence, herein appeal.

In his Brief,354[18] appellant raises the following errors:

I. THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF ACCUSEDAPPELLANT FOR THE CRIME OF MURDER HAS BEEN PROVEN BEYOND REASONABLE DOUBT. II. THE COURT A QUO ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.355[19]

The appeal is not meritorious.

Appellant submits that the prosecution was not able to prove beyond an iota of doubt that the crime of Murder was committed, and that treachery was attendant in the case at bar.356[20] Appellant argues that there was no direct eyewitness to the alleged hacking incident.357[21] More specifically, appellant contends that the testimonies of prosecution

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witnesses Yabut and Magdaleno reveal that neither of them saw how the hacking commenced. To bolster his case, appellant relies on this Court's pronouncement in People v. Lugaw358[22] (Lug-aw), to wit:

―Absent any particulars as to the manner in which the aggression commenced, on how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to Murder.‖ x x x.359[23]

The reliance of appellant on Lug-aw is misplaced, as the factual circumstances therein do not find application to the case at bar. In Lug-aw, the Court observed:

The trial court drew conclusion of the presence of treachery because the attack was sudden as Palloy was simply going about his task of fencing his kaingin. We find however, that no one witnessed the initial attack. As Sonia herself testified, she heard the first shot, went up a hill, climbed a tree and from there, saw Lug-aw shooting her father with the shot reverberating as the second gun report. Nowhere do we find in the records any evidence that she witnessed the first shot nor how her father reacted to it. What she did see was her father trying to repel the assault with a bolo but failed when a second shot hit him. As this Court held in People v. Castor, where the lone eyewitness was not able to observe the commencement of the assault, he could not testify on how it all began and developed.360[24] (Emphasis and underscoring supplied)

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In other words, in Lug-aw, the aggravating circumstance of treachery was not appreciated for the following reasons: first, it was only after the eyewitness had gone up a hill and climbed a tree upon hearing the first shot that she saw Lug-aw shooting her father for the second time; and second, since the eyewitness never saw the first shot, she therefore could not testify how the attack on her father by the accused therein began and developed. Such circumstances do not obtain in the present case. The eyewitnesses were just seated right beside the victim when they saw appellant behind the victim who had suddenly fallen face down in front of them. The CA is correct in its observation thus:

It is undisputed and was clearly established that when the victim suddenly fell face down with blood oozing from his neck, the witnesses, at that instant, saw the accused-appellant standing by the window just behind the victim, holding a scythe with blood flowing from it. Any man or even a child with sufficient reason could easily deduce that the accused-appellant committed that act, and it could be inferred just as easily that the witnesses did not actually see that act of hacking because of the suddenness of the act.361[25] (Emphasis supplied)

Furthermore, considering that the victim was seated when appellant hacked him from behind and that the attack was sudden,362[26] only one conclusion can be drawn; that is, the victim had no time to react and defend himself.

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Moreover, even the cited cases in Lug-aw do not find application to the case at bar. In People v. Castor,363[27] United States v. Perdon,364[28] and United States v. Pangilion,365[29] the Court ruled out the presence of treachery because of one of the following circumstances: first, the presence of numerous stab wounds would indicate the possibility of a frontal attack; second, there was a possibility that the victim could have offered resistance; third; there was no proof that the hacking was sudden or unexpected; fourth, the presence of several wounds (one at the back) makes it impossible to ascertain which blow was inflicted first; fifth, there was a possibility that a fight occurred before the hacking; sixth, there was evidence to show that there was a struggle before the eyewitnesses arrived at the scene of the crime. None of these circumstances are present in the case at bar.

The defense of appellant that he had acted on impulse366[30] deserves scant consideration. Appellant would have this Court believe that he felt aggrieved when the victim refused to pay his salary and even further commented, ―Problema mo 'yan, hindi ko problema 'yan!‖ It was allegedly this feeling that caused him to attack the victim. On this score, this Court agrees with the observation of the RTC, to wit:

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His (the accused) asseverations that after having an altercation with the victim relative to the payment for the excavation and installation of the a deep-well tank for which the victim uttered, ―Problema mo 'yan, hindi ko problema yan,‖ he saw a scythe on top of a table and thereafter, he and the victim grappled for the possession of the same and after getting hold of the scythe, the victim turned his back for which he struck the latter hitting the neck is not only unbelievable but runs counter to the normal course of human behavior. It is quite unnatural for a person who is quarreling with somebody to just turn his back from his assailant knowing fully well that the latter is armed with a scythe.367[31] x x x‖

Moreover, appellant testified that Lupito Bernardino and Gameng were inside the house when he hit the victim.368[32] If an altercation and subsequent struggle between appellant and the victim really transpired, then someone should have seen or at the very least heard the commotion. On the contrary, Yabut and Gameng testified that prior to the incident, no altercation transpired between the victim and appellant. More importantly, Yabut testified that appellant left his house at 7:30 in the evening, and that the latter was not with their group while they were waiting for liquor.369[33] This was corroborated by Gameng who testified that only the victim, Yabut and Bernardino were with him while they were waiting for liquor.370[34] No altercation between appellant and the victim could have transpired if appellant was not there in the first place. Thus, even the contention of appellant to the

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effect that during the altercation he did not intend to use a scythe, but that it was the first weapon he saw on the table, is unbelievable considering that no actual altercation between him and the victim took place.

The following elements must concur in the appreciation of the aggravating circumstance of treachery:

1.

that at the time of the attack, the victim was not in a position to defend himself; and

2. that the offender consciously adopted the particular means, method or form of attack employed by him.371[35]

In the case at bar, considering that the victim was suddenly hacked on his neck as he was seated with his back turned against the window and that appellant was outside the window when he hacked the victim, the first element has been satisfied, because no man could have offered any type of defense under those circumstances. In addition, since it has been established that no altercation transpired between appellant and the victim prior to the incident, the conclusion is inevitable that appellant has consciously chosen a scythe and deliberately hacked the victim from behind. Thus, there exists no cogent reason to disturb the finding of the lower court on the existence of treachery in the case at bar.

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In addition, appellant's claim that he only intended to hit the shoulders of the victim372[36] and his insistence that the victim got mad at him when he demanded payment for his services373[37] do not serve to mitigate his liability. The mitigating circumstances of no intention to commit so grave a wrong as that committed374[38] and that sufficient provocation on the part of the offended party immediately preceded the act,375[39] find no application to the case at bar. In the first place, the mitigating circumstance of no intention to commit so grave a wrong cannot be appreciated in cases of murder qualified by treachery.376[40] Moreover, the reply of the victim, ―Problema mo 'yan, hindi ko problema yan,‖ can hardly be considered a sufficient provocation to warrant the appreciation of a mitigating circumstance.

As a result of the foregoing finding, and as conceded by appellant,377[41] it would be unnecessary to discuss the second issue, as the imposable penalty would not change even if

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this Court were to appreciate the mitigating circumstance of voluntary surrender. As correctly observed by the CA:
Be that as it may, whether or not We appreciate the mitigating circumstance of voluntary surrender is already immaterial as its existence, as correctly pointed out by the Solicitor General, does not warrant modification of the penalty imposed upon accused-appellant. Article 63 of the Revised Penal Code provides: Article 63. Rules for the application of indivisible penalties. xxxx In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: xxxx 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. In this case, the crime committed is Murder, and under Article 48 of the Revised Penal Code, the imposable penalty is reclusion perpetua to death. Reclusion Perpetua and death are indivisible penalties. Since there is no aggravating circumstance in the instant case, even if We are to appreciate the mitigating circumstance of voluntary surrender, the lower penalty of reclusion perpetua shall still be applied.378[42] (Emphasis and underscoring supplied)

Lastly, even if this Court were to appreciate the mitigating circumstances of voluntary surrender with the mitigating circumstances of no intention to commit so grave a wrong as that committed379[43] or that sufficient provocation or threat on the part of the offended party immediately preceded the act,380[44] the penalty of reclusion perpetua

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would still be imposed as provided for in paragraph 3, Article 63 of the Revised Penal Code. In conclusion, following current jurisprudence, for the death of Samsom Cuyogan, civil indemnity is awarded in the amount of P50,000.00 without need of proof other than the commission of the crime.381[45] Moreover, pursuant to this Court's ruling in People v. Ortiz,382[46] moral damages in the amount of P50,000.00 are likewise awarded. Lastly, exemplary damages in the amount of P25,000.00 are warranted because of the presence of the aggravating circumstance of treachery.383[47] WHEREFORE, premises considered, the Decision of the Court of Appeals in CAG.R. CR-HC No. 00764 dated July 18, 2005, finding appellant Marcelino Abare guilty beyond reasonable doubt of Murder is AFFIRMED with modification as to the damages awarded. Appellant is sentenced to suffer the penalty of Reclusion Perpetua and ORDERED to pay the heirs of the victim, Samson Cuyogan, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. SO ORDERED MA. ALICIA AUSTRIA-MARTINEZ

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Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MINITA V. CHICO-NAZARIO Associate Justice

RUBEN T. REYES Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, it is hereby certified that the conclusions in the above Decision had been

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reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division. REYNATO S. PUNO Chief Justice

2. People vs. Badriago Gr. No. 183566; May 8, 2009 (Please refer to p. 41) 3. Urbano vs. People Gr. No. 1827 50; January 20, 2009 (Please refer to p.108) SUFFICIENT PROVOCATION ON THREAT OF THE VICTIM 1. Urbano vs. People Gr. No. 182750; January 20, 2009 (Please refer to p.108) 2. Polo vs. People Gr. No. 160541; October 24, 2008

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FIRST DIVISION
RONELO POLO,
Petitioner, Present:

G.R. No. 160541

CARPIO, J., Acting Chairperson,* CORONA, - versus AZCUNA, LEONARDO-DE CASTRO, and BRION,** JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.

October 24, 2008

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

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RESOLUTION
CARPIO, J.:

This is a petition for review384[1] of the 16 June 2003 Decision385[2] and 12 September 2003 Resolution of the Court of Appeals in CA-G.R. CR No.

25163. The 16 June 2003 Decision affirmed in toto the 4 October 2000 Decision of the Regional Trial Court, Branch 55, Irosin, Sorsogon (trial court), finding petitioner Ronelo Polo (Polo) guilty beyond reasonable doubt of homicide and sentencing him to suffer an indeterminate penalty of 10 years and 1 day of

prision mayor maximum, as minimum, to 17 years and 4 months of reclusion temporal medium, as maximum. The Court of Appeals also affirmed the trial court‘s order for Polo to pay the heirs of the victim Danilo Balisoro (Balisoro) P30,000 as actual damages, P50,000 as indemnity for death, P50,000 as moral damages and to pay the costs. The 12 September 2003 R esolution denied Polo‘s motion for reconsideration.

On 27 February 1995, Polo was charged with the murder of Balisoro.

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Polo pleaded not guilty upon arraignment.

During the trial, prosecution witnesses Chito Leander and Dante Encinares testified that they were on their way home from the dance hall when Polo called Balisoro. They all stopped and Polo ran toward their group with his hands on his back. When Polo was near enough, Polo had a short conversation with Balisoro. Suddenly, Polo hacked Balisoro on the head. Balisoro was brought to the hospital but he later died due to the head injuries he sustained.

Polo admitted hacking Balisoro with a bolo but claimed to have done it in self-defense. Polo said that he witnessed an altercation between Balisoro and his cousin, Romeo Hispano (Romeo), and that he was just trying to help Romeo. Then Roberto Caña came running toward Polo carrying a bladed weapon and Balisoro boxed him twice, hitting him on the cheeks. Polo said that Balisoro pulled out a knife and was about to stab him, but he escaped and ran to his house. Polo said that he got hold of ―something,‖ which he later learned was a balisong, and he used it to strike Balisoro. Polo then fled the scene of the crime and met Kagawad Alfredo Cielo who accompanied him when he surrendered to a certain policeman Pantua. Defense witness Ronaldo Hispano (Ronaldo) said he was the one who witnessed the altercation between his brother Romeo and Balisoro. Ronaldo told

Polo of the incident and Polo went after Balisoro to confront him. Ronaldo said that Polo hacked Balisoro because Balisoro was about to stab Polo.

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Arlan Ete, another defense witness, corroborated Polo‘s testimony that Balisoro boxed Polo twice and even attempted to stab him. The trial court found the testimonies of the prosecution witnesses candid, straightforward and consistent while those of the defense witnesses were declared to be full of inconsistencies. The trial court ruled that Polo‘s claim of self -defense did not have factual basis and that Polo failed to prove that there was unlawful aggression on the part of Balisoro. However, the trial court did not appreciate the qualifying circumstances of treachery and evident premeditation because the prosecution failed to establish them with reasonable certainty. The trial court also did not appreciate the mitigating circumstance of voluntary surrender because the records showed that on 27 October 1994, the Municipal Trial Court of Irosin (MTC) issued a warrant of arrest386[3] and that it was ―duly served.‖ On 4 October 2000, the trial court rendered its decision, finding Polo guilty of homicide under Article 249 of the Revised Penal Code. Polo appealed to the Court of Appeals. Polo asked the Court of Appeals to appreciate in his favor the mitigating circumstances of voluntary surrender and sufficient provocation on the part of the offended party immediately preceding the act. In its 16 June 2003 Decision, the Court of Appeals denied Polo‘s appeal and affirmed in toto the trial court‘s decision. The Court of Appeals agreed with the trial court that the prosecution‘s version was more credible than that of the defense, which was full of inconsistencies and was tailor-made to suit Polo‘s claim. The

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Court of Appeals said Polo failed to show that there was sufficient provocation from Balisoro to excite Polo to commit the crime. The Court of Appeals also found Polo‘s testimony as to the circumstance of his voluntary surrender unclear. The Court of Appeals agreed with the trial court that the duly served warrant of arrest belied Polo‘s claim of voluntary surrender. In its 12 September 2003 Resolution, the Court of Appeals denied Po lo‘s motion for reconsideration Hence, this petition.

We find the petition without merit. When the trial court‘s factual findings are affirmed by the Court of Appeals, such findings are generally conclusive and binding upon the Court.387[4] The Court of Appeals was correct in not appreciating the mitigating circumstance of suffi cient provocation in Polo‘s favor. In this case, there was no showing that Balisoro provoked Polo. If there was indeed provocation from Balisoro to merit the attack, it was not adequate to excite Polo to commit a wrong, which must be proportionate in gravity. Also, a sufficient interval of time had already elapsed giving Polo time to regain his reason and exercise self-control. As to the mitigating circumstance of voluntary surrender, we agree with the Court of Appeals that between Polo‘s self-serving testimony and the duly served warrant of arrest, the latter deserves more credence. If Polo surrendered to

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policeman Pantua on 23 October 1994, then the MTC should not have issued a warrant of arrest on 27 October 1994. Where the accused surrendered only after the warrant of arrest was served on him, it cannot be considered as voluntary surrender. However, we delete the award of actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable.388[5] In this case, the prosecution presented receipts amounting to only P12,026.60.389[6] However, in accordance with People v. Villanueva,390[7] we award P25,000 as temperate damages in lieu of the actual damages of a lesser amount.

The trial court and the Court of Appeals also overlooked the award of loss of earning capacity despite the testimony of Avelina Balisoro (Avelina) on her husband‘s income. The absence of documentary evidence to substantiate the claim for the loss will not preclude recovery of such loss.391[8] Avelina testified that

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her husband earned P6,400392[9] a year from stripping abaca and P18,000393[10] a year from planting rice. The defense did not object to Avelina‘s testimony on her husband‘s earning capacity. The rule is that evidence not objected to is

deemed admitted and may be validly considered by the court in arriving at its judgment.394[11] It was also established that at the time of his death, Balisoro was 31 years old.395[12] Loss of earning capacity is computed based on the following formula:

Net Earning = Life Expectancy x Gross Annual Income – Living Expenses Capacity [2/3 (80-age at death)] = 2 (80-31) 3 = 2 (49) 3 = 98 x P12,200 x P24,400 – P12,200 (GAI) x GAI (50% of GAI) – [50% of GAI]

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3 = 32.67 x P12,200

Net Earning Capacity = P398,574

WHEREFORE, we DENY the petition and AFFIRM the 16 June 2003 Decision and 12 September 2003 Resolution of the Court of Appeals in CA-G.R. CR No. 25163 finding Ronelo Polo guilty beyond reasonable doubt of homicide with the MODIFICATION that Ronelo Polo is ordered to pay the heirs of Danilo Balisoro as follows: P25,000 for temperate damages and P398,574 for loss of earning capacity. We DELETE the award of actual damages. SO ORDERED.

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

ADOLFO S. AZCUNA

TERESITA J. LEONARDO-DE CASTRO

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Associate Justice

Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION
I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

ANTONIO T. CARPIO Associate Justice Acting Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson‘s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

LEONARDO A. QUISUMBING Acting Chief Justice

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3. People vs. Abare Gr. No. 172973; January 20,2009 (Please refer to p.215) PASSION OR OBFUSCATION 1. People vs. Cauasay Gr. No. 180512; October 17, 2008

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 180512

Present:

QUISUMBING, J., Chairperson, - versus CARPIO MORALES, TINGA, VELASCO, JR., and
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BRION, JJ.

NOEL CUASAY, Accused-Appellant.

Promulgated:

October 17, 2008

DECISION

VELASCO, JR., J.:

This is an appeal from the July 31, 2007 Decision396[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00625 which affirmed with modification the March 13, 2003 Decision397[2] of the Regional Trial Court (RTC), Branch 40 in Calapan City in Criminal Case No. C-5385, finding accused-appellant Noel Cuasay guilty of murder qualified by treachery. The CA awarded PhP 25,000 as exemplary damages to the heirs of the victim but deleted the award of PhP 50,000 as moral and exemplary damages.

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The Facts

The case started with an information charging accused-appellant with the crime of murder as follows:
That on or about the 15th day of October 1997, at around 1:00 o‘clock in the morning, in Barangay Estrella, Municipality of Naujan, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with treachery, without any justifiable cause and with the deliberate intent to take the life of EDUARDO ANSULI alias ―EDDIE ANSULI‖ did then and there willfully, unlawfully, feloniously and suddenly attack, assault and stab the said EDUARDO ANSULI with a sharp-pointed instrument thereby inflicting upon the latter mortal wound on the chest, causing his untimely demise. That in the commission of the aforecited offense, the qualifying circumstance of treachery was attendant.398[3]

Accused-appellant pleaded ―not guilty‖ to the charge. During trial, the prosecution presented Rizon Reyes, a councilperson of Barangay Estrella, Naujan, Oriental Mindoro and an eyewitness to the crime. Reyes testified that on October 15, 1997, around 1:00 a.m., he, Eduardo Ansuli, Bronson Albufera, and Rimon Martinez were playing mahjong at the wake of a certain Rosalina Petalpo. Barangay tanods were also present at the wake, about three meters from the mahjong table. At the table, Reyes was seated across Ansuli while accused-appellant and a certain Johnson Suarez were seated at the right side of Ansuli, watching the game. While Ansuli was picking a mahjong tile, Reyes saw accused-appellant about to stab Ansuli so Reyes shouted ―huwag.‖ Accused-appellant, however, suddenly stabbed

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Ansuli with a Swiss-type knife, hitting the latter on the right breast. Accusedappellant thereafter fled towards the residence of barangay captain Librado Teves of Barangay Estrella, Naujan, Oriental Mindoro while Ansuli ran to his house. Around 6:00 a.m. of the following day, Ansuli‘s dead body was found by the side of the road, approximately 50 meters from the location of the wake. In the same morning, the barangay captain of Nag-iba surrendered accused-appellant to the authorities. Reyes added that he does not know of any reason why accusedappellant stabbed the victim because prior to the incident, accused-appellant was even cracking jokes with them. He said that he does not know if there were ill feelings between accused-appellant and the victim.399[4]

Another witness, Flor Paglinawan, a councilperson of Barangay Estrella, testified that when she and accused-appellant were in the terrace of the house of the barangay captain of Nag-iba, accused-appellant admitted to her that he stabbed the victim. The prosecution also presented Leonila Ilagan, a public health nurse at Naujan. She testified on the necropsy report which stated that the victim suffered a stab wound that led to profuse hemorrhage and eventual death. The prosecution dispensed with evidence regarding the civil aspect of the case after the defense admitted the testimony of the victim‘s mother, Lydia Ansuli.400[5]

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Accused-appellant, on the other hand, claimed killing Ansuli in self-defense. He alleged that the victim suspected him of stealing PhP 20 and because of that, the victim boxed him three times. The victim allegedly scolded him, saying ―Putang ina mo. Ang yabang mo manyapat may dala ka lang balisong .‖ Accused-appellant allegedly replied, ―Pinsan, hindi ko naman ipinagyayabang ito. Ginagamit ko ito sa pangingisda.‖ Accused-appellant claimed that the victim called him ―patay gutom at pulubi‖ and boxed him at the right shoulder. Thus, he stabbed the victim with his fan knife then ran to the house of the barangay captain.401[6]

On March 13, 2003, the RTC rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, finding herein accused Noel Cuasay y Borillo alias ―Aping‖ guilty beyond reasonable doubt as principal by direct participation of the crime of Murder qualified by treachery which is punishable under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, and there being no other aggravating or mitigating circumstances present in the instant case, said accused is hereby sentenced to suffer the penalty of RECLUSION PERPETUA with all the accessory penalties provided for by law. The accused is likewise ordered to indemnify the heirs of the victim Eduardo Ansuli, alias ―Eddie Ansuli‖, the amount of P50,000.00 as actual damages; the amount of P50,000.00 as civil indemnity and the additional amount of P50,000.00 as moral and exemplary damages. The accused shall be credited with the full time during which he had undergone preventive imprisonment provided that said accused [agree] voluntarily in writing to abide with the disciplinary rules imposed upon convicted prisoners, otherwise, he shall be credited in the service of his sentence with only four-fifths (4/5) of the time during which he has undergone preventive imprisonment.

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SO ORDERED.402[7]

Accused-appellant filed a Notice of Appeal on April 1, 2003 and thereafter filed his brief before this Court on May 4, 2004, docketed as G.R. No. 158055. On December 13, 2004, we remanded the case to the CA in accordance with People v. Mateo.403[8]

The Ruling of the CA

In his appeal before the CA, accused-appellant prayed for his acquittal based on self-defense, or for conviction for homicide only because of the mitigating circumstance of passion or obfuscation that resulted in incomplete self-defense. He asserted that treachery was not present since the incident was preceded by a heated altercation and there was no intention on his part to attack the victim.

The CA noted that accused-appellant admitted having stabbed the victim; hence, the burden of evidence shifts to him to prove the elements of self-defense. Interestingly, he alone testified to the alleged act of aggression of the victim

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despite the presence of other witnesses in the wake. The CA also observed that accused-appellant‘s testimony is not credible, and said that if indeed the victim first hit accused-appellant with three fist blows, as alleged by accused-appellant, it is unlikely that the other mahjong players would not pacify them. The CA also found no merit in the claim of passion or obfuscation since there was no proof of any act on the part of the victim that could have impelled accused-appellant to act with passion or obfuscation. Furthermore, the CA found the presence of treachery because the attack was a surprise on the defenseless victim. As regards damages, the CA deleted the award for moral damages for lack of proof therefor. The award for exemplary damages, however, was retained and set at PhP 25,000 in view of the attendance of treachery. The dispositive portion of the CA‘s decision reads:

WHEREFORE, in view of the foregoing, we resolve to AFFIRM the decision appealed form with MODIFICATION that the accused-appellant is ordered to pay the heirs of Eddie Ansuli the amount of P25,000.00 as exemplary damages. The award of P50,000.00 as moral and exemplary damages is DELETED.404[9]

Assignment of Errors

In the instant appeal, accused-appellant assigns the following errors on the part of the CA:

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THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE AND THE MITIGATING CIRCUMSTANCE OF PASSION OR OBFUSCATION IN FAVOR OF THE ACCUSED-APPELLANT ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS CULPABLE, THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY.

The Court’s Ruling

The appeal has no merit.

It is important to note that accused-appellant admitted stabbing the victim but claimed that he did it in self-defense. When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified.405[10] Thus, the accused must prove these requisites for self-defense: (1) unlawful aggression on the part of the victim; (2) lack of sufficient provocation on the part of the accused; and (3) employment of reasonable means to prevent and repel aggression.406[11]

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In this case, the trial court found that accused-appellant failed to prove the requisites of self-defense. Accused-appellant alone testified regarding the alleged fist blows thrown at him by the victim. There was no other testimony to that effect. For accused-appellant‘s defense to stand, his testimony must be credible. During his direct examination, however, he stated:

Atty. Matibag: Q: Now, there were many other persons around particularly the three players who were playing mahjong with Eddie Ansuli, what did they do to when Eddie Ansuli boxed you? A: They just looked at us, sir.407[12]

As aptly observed by the trial court, it is unlikely that the spectators will continue their business despite seeing the victim hit accused-appellant. It is unnatural for the players of mahjong and the barangay tanods present to not attempt to pacify them. Accused-appellant could have presented at least one of the witnesses who can support his claim of unlawful aggression by the victim, but he failed to do so. Accused-appellant‘s testimony is not realistic and, therefore, doubtful.

In contrast, the prosecution witness, Reyes, stated that accused-appellant suddenly attacked the victim. Reyes was able to present a convincing and straightforward account of the incident, particularly the identity of accused-appellant and the

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suddenness of the attack on the victim.

Accused-appellant failed to impeach

Reyes‘ testimony and there was no ill motive imputed against the lat ter. The trial court was thus correct in believing Reyes‘ account of the incident. Such finding of fact of the trial court is accorded great weight and respect and will not be disturbed on appeal.408[13] Since accused-appellant failed to prove that there was unlawful aggression on the part of the victim, the claim of self-defense cannot prosper.

Accused-appellant‘s alternative claim of passion or obfuscation likewise deserves no credit. To be entitled to this mitigating circumstance, the following elements must be present: (1) there should be an act both unlawful and sufficient to produce such condition of mind; and (2) the act that produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.409[14] There was no evidence of unlawful aggression or any act on the part of the victim that could have caused accused-appellant to act with passion or obfuscation. He failed to present any witness or proof that would support his claim. Thus, the trial and appellate courts were correct in overruling the claim for said mitigating circumstance. As regards the second issue, we agree with the courts‘ finding of treachery. We held that treachery exists when the offender commits any of the crimes against the

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person, employing means, methods or forms in the execution thereof which tend directly or specially to ensure its execution, without risk to himself arisin from the defense which the offended party might make.410[15] In the case at bar, the victim was unarmed and unsuspecting when accused-appellant suddenly stabbed him. Treachery was clearly present in accused-appellant‘s method. The appellate court should not have deleted the award of moral damages. In murder cases, the heirs of the victim should be automatically indemnified in the amount of PhP 50,000 as moral damages. No proof is necessary since the

emotional and mental suffering of the heirs is apparent.411[16] WHEREFORE, the July 31, 2007 Decision of the CA in CA-G.R. CR-H.C. No. 00625, finding accused-appellant guilty beyond reasonable doubt of the crime of murder with treachery, is AFFIRMED in all respects with the MODIFICATION that he is hereby ordered to pay the heirs of Eduardo Ansuli the amount of PhP 50,000 as moral damages. The instant appeal is accordingly DENIED. No costs.

SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice WE CONCUR:

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LEONARDO A. QUISUMBING Associate Justice Chairperson

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division. LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.
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REYNATO S. PUNO Chief Justice

VOLUNTARY SURRENDER 1. Mendoza vs. People Gr. No. 173551; October 4, 2007
EN BANC

ARNALDO MENDOZA, Petitioner,

G.R. NO. 173551

Present:

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PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, - versus CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR.,* NACHURA,** and REYES, JJ.

PEOPLE

OF

THE

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PHILIPPINES, Respondent.

Promulgated:

October 4, 2007 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

For review is the Decision412[1] and Resolution413[2] dated 30 November 2005 and 5 July 2006, respectively, of the Court of Appeals in CA-G.R. CR-H.C. No. 00446, affirming with modification the Decision414[3] and Order415[4] of the

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Lipa City Regional Trial Court (RTC), Branch 12, dated 20 October 2004 and 24 November 2004, respectively, in Criminal Case No. 0582-98 convicting petitioner Arnaldo Mendoza of the crime of murder, and imposing upon him the supreme penalty of death plus civil indemnity, actual, moral and exemplary damages.

On 6 October 1998, petitioner and his relatives by affinity, namely, Manolito Gonzales (Manolito), Glenn Gonzales (Glenn) and Ruperto de Villa (Ruperto), were indicted in an Information416[5] for murder, allegedly committed as follows:

That on or about the 1st day of September, 1998, at about 1:30 o‘clock in the afternoon, at Barangay Lumanglipa, Municipality of Mataasnakahoy, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with unlicensed short firearms and M-16 rifle, conspiring and confederating together, acting in common accord and mutually helping one another, with intent to kill, with treachery, evident premeditation and grave abuse of superior strength and without any justifiable cause, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearms suddenly and without warning one Ernesto Velasquez y Ciruelas, thereby inflicting upon the latter gunshot wounds on the different parts of his body, which directly caused his death.

After evading arrest for around four years, petitioner surrendered to the authorities, while his co-accused Manolito, Glenn and Ruperto remained at large. When arraigned on 14 August 2002, petitioner, with the assistance of counsel de parte, pleaded ―Not Guilty‖ to the charge.417[6] Thereafter, trial on the merits ensued.

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Gathered from the records are the following facts:

Petitioner is Manolito‘s brother-in-law, while the latter is Glenn‘s father. Ruperto is Manolito‘s cousin.418[7]

On 31 August 1998, at about 5:00 in the afternoon, the victim, Ernesto C. Velasquez (Ernesto), and his friends were drinking and singing outside the house of Ernesto‘s parents at Barangay Lumanglipa, Mataasnakahoy, Batangas when a gunshot rang out. Ernesto ran towards the road in front of his parent‘s house and saw Glenn driving a jeepney loaded with several passengers and heading towards the southern direction. Minutes later, Glenn, who was driving alone this time and heading towards the northern direction, passed again in front of the house of Ernesto‘s parents. Ernesto flagged down and asked Glenn who had fired a gunshot earlier in front of his parent‘s house. Glenn responded, “Wala ka nang pakialam kung sino ang nagpaputok!” Irked, Ernesto pushed Glenn‘s left chin with his palm and told the latter “Umalis ka na, bastos ka!” When Glenn was about to leave, he threatened Ernesto, “Humanda ka, babalikan ka namin, papatayin ka namin!”419[8]

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On 1 September 1998, at around 8:00 in the morning, petitioner, Glenn, Manolito and Ruperto boarded a red Nissan Sentra Super Saloon car with plate number UBU-674 and traversed the southern road of Barangay Lumanglipa, Mataasnakahoy, Batangas. Petitioner drove the car.420[9]

At about 9:30 in the morning of 1 September 1998, petitioner, Glenn, Manolito and Ruperto, on board the same car, arrived at the house of Ernesto‘s parents at Barangay Lumanglipa, Mataasnakahoy, Batangas. Petitioner and Ruperto went out of the car and inquired from Ernesto‘s wife, Vida Velasquez (Mrs. Velasquez), the whereabouts of Ernesto. Mrs. Velasquez replied that Ernesto was in Mataasnakahoy. Thereafter, petitioner, Glenn, Manolito and Ruperto left and proceeded to the direction of Mataasnakahoy.421[10]

At 1:30 in the afternoon of 1 September 1998, petitioner, Glenn, Manolito and Ruperto reached Mataasnakahoy and parked the car near a chapel. Petitioner went out of the car while Glenn, Manolito and Ruperto remained inside. Petitioner then walked towards a group of persons, among them Ernesto, who were playing a card

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game called tong-its near the chapel. Petitioner approached Ernesto and asked, “Ikaw ba si Ernesto Velasquez?” Ernesto answered, “Ako nga po.” Petitioner asked him again, “Ay bakit ganoon, bakit mo sinampal agad si Glenn Gonzales?” Ernesto retorted, “Hindi ko sinampal, nilamas ko lamang ang bibig dahil masama ang nalabas sa bibig niya.” Subsequently, petitioner called Glenn, who was inside the car. When Glenn alighted, petitioner told Glenn, “Yon pala namay nilamas lamang ang bibig mo ay anong desisyon mo?” Without saying a word, Glenn drew a short firearm, approached Ernesto frontally and shot the latter who was sitting at that moment. Ernesto stood up and tried to run, but he fell towards the ground. Glenn fired more shots at Ernesto, who was lying on the ground. Petitioner also drew a short firearm and shot Ernesto once. When petitioner and Glenn were about to board the car, petitioner noticed that Ernesto was still alive. Thus, petitioner told Manolito and Ruperto who were at the backseat of the car, “Pare, buhay pa ito, gamitin mo yung mahaba.” Ruperto then handed an M-16 armalite to Manolito. The latter took the armalite and moved to the driver‘s seat. Thereupon, Manolito shot Ernesto with the armalite. Ruperto also shot Ernesto with a short firearm. When petitioner was about to board the car, he brandished his short firearm and shouted, “Sino pa sa inyo?” Thereafter, petitioner, Glenn, Manolito and Ruperto left the crime scene on board the car. Subsequently, several persons brought Ernesto to the hospital where he was pronounced dead on arrival.422[11]

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Petitioner denied any involvement in the killing of Ernesto. He alleged that on 1 September 1998, at about 9:30 in the morning, Manolito and Glenn arrived at his house at Barangay II, Mataasnakahoy, Batangas. Manolito and Glenn told him that they will hitch a ride with him in going to Barangay Lumanglipa since petitioner will also go to the said place with his car to buy tilapia from his mother-in-law for the birthday of his son on the next day, September 2.423[12] While on their way to Barangay Lumanglipa, Manolito and Glenn asked him if they can pass by the house of Ernesto‘s parents. He agreed. However, upon reaching Barangay Lumanglipa, Manolito and Glenn changed their minds and instead requested him to proceed to the barangay hall of Lumanglipa. While traversing the road leading to the barangay hall, they saw Ruperto in a nearby chapel. Manolito and Glenn told him to stop the car and wait for them. Manolito and Glenn alighted from the car and talked with Ruperto. Petitioner drove the car a little farther and parked it beside the road.424[13]

Later, he went out of the car and decided to go to the house of ―Pareng Digo.‖ But before he could go farther, he heard gunshots and saw some persons scampering. He went back inside the car and started the engine. When he maneuvered the car towards the road back to Barangay II, Mataasnakahoy, Manolito, Glenn and Ruperto suddenly appeared and boarded the car. The three, who were nervous and jittery, told him to speed up the car. He then asked them, “Bakit, bakit ano bang

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nangyari?” One of the three whom he could no longer recall told him, “Basta idiretso mo at saka na kami magpapaliwanag sayo” After traveling for a few minutes, one of the three whom he could not also remember directed him to pull over on the side of the road because they will just talk to somebody. He told the three that he will go ahead and that he was leaving the car to them. He immediately went out of the car and boarded a jeepney bound for Lipa City. Upon seeing a telephone booth along the way, he alighted from the jeepney, entered the telephone booth and called his house at Barangay II, Mataasnakahoy. A person, whom he again failed to recall, answered his call and instructed him to proceed to his house/residence at Sta. Cruz, Manila.425[14]

Subsequently, he boarded a bus bound for Manila. Upon reaching his house/residence at Sta. Cruz, Manila, he slept. When he woke up the next morning, his wife told him that he was implicated in the murder of Ernesto.426[15]

After trial, the RTC rendered a Decision dated 13 October 2004 finding petitioner guilty beyond reasonable doubt of the crime of murder. Thus:

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WHEREFORE, the Court finds the accused, ARNALDO MENDOZA, guilty beyond reasonable doubt, as co-principal by direct participation, of the crime of murder, as defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, with one (1) aggravating circumstance, and sentences him to suffer the penalty of DEATH. Arnaldo Mendoza is also ordered to pay the heirs of Ernesto Velasquez the sums of P50,000.00, as indemnification for his death, P35,000.00, as actual damages, P100,000.00 as moral damages and P50,000.00 as exemplary damages and to pay his proportionate share of the costs. For insufficiency and unreliability of the evidence of loss of earning capacity, no award for the same is made.427[16]

Petitioner filed a Motion for Reconsideration dated 25 October 2004,428[17] and a Supplemental Motion for Reconsideration429[18] dated 8 November 2004 which were denied by the RTC in its Order dated 24 November 2004.

Undaunted, petitioner appealed to the Court of Appeals. On 30 November 2005, the appellate court promulgated its Decision affirming with modification the RTC decision. The modification pertains only to the amount of moral and exemplary damages. The appellate court decreed:

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WHEREFORE, the decision of the Regional Trial Court of Lipa City, finding accusedappellant ARNALDO MENDOZA GUILTY beyond reasonable doubt of murder and sentencing him to suffer the supreme penalty of death is hereby AFFIRMED. With regard to the civil aspect of the case, except with respect to the civil indemnity and actual damages, same is MODIFIED to read as follows: Appellant is hereby ordered to pay the heirs of the victim the amount of P50,000.00 as moral damages and P25,000.00 as exemplary damages. However, pursuant to Section 13, Rule 124 of the Amended Rules to Govern Review of Death Penalty Cases, We refrain from entering judgment and, instead, forthwith certify the case and elevate its entire record to the Supreme Court for further review.430[19]

Petitioner filed a Motion for Reconsideration dated 3 January 2006431[20] but was denied by the appellate court in its Resolution dated 5 July 2006.

Before us, petitioner assigns in his Petition,432[21] Supplemental Petition for Review433[22] and Supplemental Brief 434[23] the following errors:

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I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN HOLDING THAT THE TESTIMONIES OF THE PROSECUTION WITNESSES ARE CREDIBLE. II. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN HOLDING THAT CONSPIRACY EXISTS AND THAT AGGRAVATING CIRCUMSTANCES OF EVIDENT PREMEDITATION AND ABUSE OF SUPERIOR STRENGTH ATTENDED THE KILLING OF THE VICTIM. III. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN HOLDING THAT ACCUSED IS NOT ENTITLED TO THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER. IV. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN DISREGARDING THE FACT THAT THE TRIAL JUDGE TOTALLY DENIED ACCUSED-APPELLANT OF HIS DAY IN COURT.

Anent the first issue, petitioner maintains that the prosecution failed to establish the true identity of the person who shot to death Ernesto; that the prosecution‘s alleged eyewitness Dante Ciruelas (Ciruelas) did not mention in his affidavit that he saw petitioner shoot Ernesto after the latter was shot by Glenn, whereas during the trial, Ciruelas testified that he saw petitioner shoot Ernesto right after Glenn shot Ernesto; that such is a material and substantial inconsistency which adversely affects the credibility of Ciruelas as an eyewitness; and that Ciruelas‘s testimony was not corroborated by other prosecution witnesses.435[24]

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Petitioner also asserts that there is a material discrepancy between the testimonies of Ciruelas and the doctor who autopsied the body of Ernesto, namely, Dr. Antonio S. Vertido (Dr. Vertido). According to petitioner, Ciruelas testified that during the incident, Glenn positioned himself at a distance of one meter in front of Ernesto, who was then seated on a chair and playing tongits, and shot the latter for the first time. Thus, if Ernesto was sitting and facing Glenn at the time he was allegedly shot by the latter, the bullet that hit Ernesto should have been located somewhere in his chest or in any upper portion of his body and that the gunshot wound should have a point of entry somewhere in the anterior or front portion of Ernesto‘s body and not at his back or in the posterior portion of his body. On the contrary, Dr. Vertido testified that, except for the gunshot wound in the right thigh of Ernesto, the entry points of the three other gunshot wounds were located at Ernesto‘s back or in the posterior part thereby indicating that the assailant was at Ernesto‘s back at the time the latter was shot.436[25]

Petitioner further avers that Dr. Vertido‘s testimony that the three gunshot wounds sustained by Ernesto were caused by an armalite bullet and that the fourth gunshot wound was caused by a .22 caliber bullet is very inconsistent with his other statement that all of the four gunshot wounds sustained by Ernesto have the same diameter; that no bullets and empty shells from the armalite allegedly used by Manolito were found in the body of Ernesto and in the crime scene; and that the

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deformed slug and empty shells presented by the prosecution were not subjected to ballistic examination.437[26]

As testimonial evidence, the prosecution presented the following witnesses, namely: Reynaldo Velasquez (Reynaldo), Ciruelas, Maximino Guiterrez (Gutierrez), SPO1 Dominador Castillo (SPO1 Castillo), Dr. Vertido, Police Chief Inspector Ruben S. Castillo (Police Chief Castillo) and Mrs. Marquez.

Reynaldo, brother of Ernesto and a resident of Barangay Lumanglipa, Mataasnakahoy, Batangas, testified that he knows petitioner because petitioner and the latter‘s wife are natives of Barangay Lumanglipa, Mataasnakahoy, Batangas. He also knows Glenn, Manolito and Ruperto because they are all residents also of Barangay Lumanglipa, Mataasnakahoy, Batangas. He narrated that on 31 August 1998, at about 5:00 in the afternoon, he was with Ernesto and the latter‘s friends outside their parent‘s house located at Barangay Lumanglipa, Mataasnakahoy, Batangas. Ernesto and the latter‘s friends were then drinking and singing when a gunshot rang out. He immediately looked on the road opposite his parent‘s house and saw Glenn driving a jeepney filled with passengers and was traveling on the southern direction leading to the Poblacion of Mataasnakahoy, Batangas. At about 7:00 in the evening, he was buying cigarettes in a nearby store when he saw Glenn, who was driving alone on the northern direction, pass by in front of his parent‘s house. At a distance of two meters, he saw Ernesto flag down Glenn. When Glenn

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pulled over on the side of the road, Ernesto approached the former and inquired as to who fired a gunshot when he and his visitors passed in front of his parent‘s house in going to the Poblacion. Glenn replied “Wala ka nang pakialam kung sino ang nagpaputok!” Irked, Ernesto pushed Glenn‘s left chin with his palm and told the latter, “Umalis ka na, bastos ka!” When Glenn was about to leave, he threatened Ernesto, “Humanda ka, babalikan ka namin, papatayin ka namin!” Thereafter, Glenn sped away while he led Ernesto to his own house, which is adjacent to the house of their parents.

The next day, 1 September 1998, at around 8:00 in the morning, he drove his own jeepney and went to the Poblacion. On the way, he saw, on the southern part of Barangay Lumanglipa, petitioner, Glenn, Manolito and Ruperto on board a maroon Nissan Sentra Super Saloon with plate number UBU-674. Petitioner was the one driving. He nodded at petitioner, but the latter just looked at him and ignored him. Since then, he did not see petitioner, Glenn, Manolito and Ruperto again.438[27]

Ciruelas, uncle of Ernesto and a resident of Barangay Lumanglipa, Mataasnakahoy, Batangas, testified that he knows petitioner because the latter‘s wife was his former classmate and that he also knows Glenn, Manolito and Ruperto for they are all residents of Barangay Lumanglipa, Mataasnakahoy, Batangas. He declared that on 1 September 1998, at about 1:00 in the afternoon, he was with a group of persons playing tongits in a table near a road which was

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four meters away from a chapel at Barangay Lumanglipa, Mataasnakahoy, Batangas. Among the persons present were Ernesto, and certain individuals, namely, Menandro Ariola (Ariola), German Ciruelas (German), Ruel Umali (Ruel) and Petillano Umali (Petillano). Only German, Ruel and Ariola were playing tongits then, while he, Ernesto, Petillano and some unidentified persons were merely kibitzers or onlookers. At about 1:15 in the afternoon, Ernesto substituted Ariola as one of the tongits players. At around 1:30 in the afternoon, while watching Ernesto and his companions play tongits, he noticed a maroon Nissan Sentra Super Saloon with plate number UBU-674 approach their place/position. He saw petitioner driving the said car with Manolito, Glenn and Ruperto on board as passengers. Petitioner parked the car at a distance of three meters from the table where Ernesto, German and Ruel were playing tongits. Petitioner went out of the car and approached Ernesto who was then seated and playing tongits. He was then one meter away from the position of Ernesto. Petitioner asked Ernesto, “Ikaw ba si Ernesto Velasquez?” Ernesto answered, “Ako nga po.” Petitioner asked again, “Ay bakit ganon, bakit mo sinampal agad si Glenn?” Ernesto replied “Hindi ko po sinampal.” Petitioner once more asked, “Bakit mo sinampal agad si Glenn Gonzales?” Ernesto responded, “Hindi ko sinampal, nilamas ko lamang ang bibig dahil masama ang nalabas sa bibig niya.” Petitioner went back to the car and called Glenn who was inside the car. When Glenn alighted from the car, petitioner told the former, “Yon pala namay nilamas lamang ang bibig mo ay anong desisyon mo?” Without saying a word, Glenn drew a short firearm and upon cocking it, a bullet ejected therefrom. Glenn went in front of Ernesto who was then seated and playing tongits, and shot the latter once. Stunned, he took cover nearby but did not entirely leave the scene, while the rest of the players and onlookers scampered to different directions and hid. He saw Ernesto stand up and try to run but the latter fell with his right face hitting the ground.
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Glenn fired more shots at Ernesto, while the latter was lying on the ground. Thereafter, at a distance of more or less two meters from petitioner, Glenn saw petitioner shoot Ernesto once with a short firearm. When petitioner was about to board the car, he noticed that Ernesto was still breathing. Petitioner then informed Glenn, Manolito and Ruperto that Ernesto was still alive. Within a distance of more or less four meters, Glenn saw Ruperto, who was then at the backseat of the car, take an armalite and give it to Manolito who was then seated beside the driver‘s seat. Manolito took the armalite, sat in the driver‘s seat, and shot Ernesto several times with the armalite. Ruperto, who was in the backseat of the car, also drew a short firearm and shot Ernesto. Petitioner then looked around and shouted, “Sino pa sa inyo?” Subsequently, petitioner boarded the car while Manolito sat beside him and Glenn moved to the backseat. Petitioner drove the car and proceeded to the direction of the town proper. Afterwards, he and several others immediately approached Ernesto and loaded the latter into a jeepney. They brought Ernesto to Dr. Faller Hospital where he was pronounced dead.439[28]

Gutierrez, Barangay Captain of Barangay Lumanglipa, Mataasnakahoy, Batangas from 1998 up to 2002, testified that he knows petitioner, Glenn, Manolito, Ruperto and their respective families because they are all natives/residents of Barangay Lumanglipa, Mataasnakahoy, Batangas. He told the court that on 1 September 1998, at around 1:30 in the afternoon, while fixing the engine of his motor banca at

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the lakeshore of Barangay Lumanglipa, Mataasnakahoy, Batangas, which is about thirty meters away from his house, he heard gunshots coming from the place near his house. He went to his house to verify the gunshots. When he was about twelve meters away from reaching his house, he took cover beside a sari-sari store owned by a certain Armenio Ciruelas. He saw petitioner, Glenn and Ruperto holding pistols while Manolito was holding an armalite. They were four meters away in front of his house. Petitioner and Glenn were standing beside a maroon Nissan Sentra Super Saloon with plate number UBU-674, while Manolito and Glenn were seated at the backseat of the car. Thereafter, he heard petitioner say, “Pare, buhay pa ito, gamitin mo yung mahaba.” Manolito then opened the window of the car, placed the barrel of an armalite outside the window, and fired the armalite several times. He did not see the person to whom the shots were directed because his view was blocked by the car. He saw Ciruelas hiding beside the post of a nearby chapel while also watching the incident.

Later, he heard petitioner utter, “Sino pa sa inyo?” Petitioner, Glenn, Manolito and Ruperto thereafter left the scene. He then approached the bloodied Ernesto who was sprawled on the ground in front of his house. He and several persons brought Ernesto to Dr. Faller Hospital. Since Ernesto was already pronounced dead, he and some companions brought Ernesto‘s body to the Mataasnakahoy Police Station to report the incident. Upon the advice of Police Chief Castillo, he instructed Ciruelas to bring Ernesto‘s body to San Jose, Batangas for autopsy.440[29]

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SPO1 Castillo, a member of the Philippine National Police since 1985, testified that in September 1998, he was assigned at the Police Station of Mataasnakahoy, Batangas. On 1 September 1998, he reported for work as duty investigator from 8:00 in the morning of that day up to 8:00 in the morning of the following day. On the said date, at about 2:30 in the afternoon, he, Police Chief Castillo and other colleagues were in the Police Station of Mataasnakahoy, Batangas, when German reported a shooting incident at Barangay Lumanglipa, Mataasnakahoy, Batangas. German told him that the perpetrators were on board a maroon Nissan Sentra Super Saloon with plate number UBU-674. He and some colleagues alerted and requested the nearby police stations of Lipa City, Malvar, Balete, Tanauan City, Cuenca and San Jose to block the route of the said vehicle and apprehend its occupants. After being informed that the victim was in the hospital and was already dead, he, Police Chief Castillo and some colleagues went to the crime scene and conducted an investigation. Upon arriving at the crime scene, they saw a plastic table and three chairs in disarray, and some blood stains near the table. They also found four empty shells of Super Caliber .38, one live ammunition of Super Caliber .38 and one deformed slug of Super Caliber .38. These were recovered two meters away from the table. He interviewed Gutierrez and other persons who witnessed the incident. Subsequently, he prepared a sketch of the crime scene and placed, as markings, three parallel lines on the said empty shells and three parallel curving on the live ammunition. He assured the court that the empty shells and live ammunition recovered from the crime scene came from a Super Caliber .38 because it was indicated on the shells themselves.

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SPO1 Castillo personally prepared the criminal complaint and listed as one of the exhibits attached thereto one empty shell of an M-16 armalite rifle since this was recovered by Police Chief Ruben Castillo from a maroon Nissan Sentra Super Saloon with plate number UBU-674. On 2 September 1998, he was then off-duty when Police Chief Castillo called and told him that the car which fits the description of the car allegedly used by the assailants during the incident was found abandoned in Barangay Magape, Balete, Batangas. Police Chief Castillo proceeded to the said place, towed the car and brought it to the police station of Barangay Lumanglipa, Mataasnakahoy, Batangas. When he reported for duty on 3 September 1998, he saw the car in front of the police station, and Police Chief Castillo handed him an empty shell of an M-16 armalite rifle recovered from the same car. He then placed his marking ―DCC‖ on the surface of the empty shell and searched the car. He did not find anything else so he just took a picture of it. Thereafter, he took the statements of Gutierrez, Ariola and Ciruelas.441[30]

Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation, Batangas Regional Office, testified that he conducted an autopsy on the body of Ernesto on the evening of 1 September 1998. His findings are as follows:

POST MORTEM FINDINGS Pallor, lips and nailbeds. Abrasions, anterior chest wall, midline, 6.5 x 2.5 cm., hand, left, dorso-lateral aspect, 0.5 x 0.5 cm.

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Grazing wounds, anterior chest wall, left, 12.0 x 6.0 cm., mammary area, left, 5.0 x 1.0 cm. GUNSHOT WOUNDS: I ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the back, left side, 8.5 cm. form the posterior median line, 110.0 cm. above the left heel, directed forward, upward and laterally, involving the skin and underlying soft tissues, blasting lower lobe of the left lung and making an EXIT wound, 1.0 x 1.5 cm., ovaloid, edges everted, located at the left anterior chest wall, 17.0 cm. from the posterior median line, 116.5 cm. above the left heel. II ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the left lumbar area, 4.5. cm. from the posterior median line, 104.0 cm. above the left heel, directed forward, upward and from left to right, involving the skin and soft tissues, perforating omentum, intestine, blasting liver, diaphragm and lower lobe of the left lung, then finally making an EXIT wound, 1.0 x 1.2 cm., ovaloid, edges everted, located at the right antero-lateral chest wall, 20.0 cm. from the anterior median line, 116.0 cm. above the left heel. III ENTRANCE, 0.5 x 0.7 cm., ovaloid, edges inverted, located at the left arm, posterior aspect, middle third, 10.0 cm. above the left elbow, directed forward, and downwards, involving the skin and soft tissues, fracturing the left humerus, middle third, severing the corresponding blood vessels then making an EXIT, 17.0 x 14.0 cm. irregular, located at the middle and lower third of the left arm, 5.0 cm. above the left elbow. IV. ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the right thigh, anterior aspect, upper third, 33.0 cm. above the right knee, directed backwards, upwards and medially, involving the skin and underlying soft tissues, grazing the right femur, cutting the right femoral artery and making an EXIT at the anal opening. CAUSE OF DEATH: Hemorrgage, severe, secondary to Gunshot wounds.442[31]

He also found during the autopsy that Ernesto‘s brain was pale implying severe blood loss. He concluded then that Ernesto‘s death was caused by hemorrhage

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secondary to gunshot wounds. He reduced his findings in writing and issued the corresponding Death Certificate443[32] of Ernesto.

The prosecution dispensed with the testimony of Police Chief Castillo when petitioner, through counsel, admitted that he was the one who recovered one empty shell of an M-16 armalite rifle under the seat of the maroon Nissan Sentra Super Saloon with plate number UBU-674 which was found abandoned in Barangay Magape, Balete, Batangas.444[33]

Mrs. Velasquez, wife of Ernesto, testified that on 1 September 1998, at about 9:30 in the morning, she was at the main door of her parents-in-law‘s house at Barangay Lumanglipa, Mataasnakahoy, Batangas, when Ruperto and petitioner approached her. Ruperto was wearing a camouflage jacket while petitioner was clad in a black jacket. Both had something bulging at their backs. Petitioner and Ruperto had two companions, whom she recognized as Glenn and Manolito, seated inside a maroon Nissan Sentra Super Saloon with plate number UBU-674. Petitioner asked her about Ernesto‘s father, “Nasaan si Ka Piko?” She replied that her father-in-law was in Manila. Petitioner then inquired, “Nasan yung anak ni Ka Piko, si Ernesto?” She said that Ernesto was in Mataasnakahoy, Batangas. Ruperto asked when will Ernesto come home. She said she does not know. Afterwards, petitioner

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and Ruperto went back inside the car and proceeded to the direction of Mataasnakahoy, Batangas. Later that afternoon, she learned that Ernesto was shot near the barangay chapel and was already dead.

The prosecution also presented documentary and object evidence to buttress the foregoing testimonies of the prosecution witnesses, to wit: (1) sworn statement of Ciruelas;445[34] (2) sworn statement of Ariola;446[35] (3) pictures of the maroon Nissan Sentra Super Saloon with plate number UBU-674;447[36] (4) sworn statement of Gutierrez;448[37] (5) sworn statement of Mrs. Velasquez;449[38] (6) one live ammunition of Super Caliber .38;450[39] (7) four empty shells of Super Caliber .38;451[40] (8) one deformed slug of Super Caliber .38;452[41] (9) one

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empty shell of an M-16 armalite rifle;453[42] (10) sketch of the crime scene drawn and prepared by SPO1 Castillo;454[43] (11) certification issued by the Chief of the Firearms and Explosives Division of the Philippine National Police, Camp Crame verifying, among other things, that petitioner was a licensed/registered holder of a Pistol Colt Caliber .38, and that the license was issued on 15 June 1995 and expired on November 1997 and has not been renewed since then;455[44] (12) letter-request for autopsy dated 2 September 1998;456[45] (13) certification identifying the body of Ernesto signed by the sister of Ernesto and Dr. Vertido;457[46] (14) findings/autopsy report on the body of Ernesto signed by Dr. Vertido;458[47] (15) anatomical sketch indicating the wounds mentioned in the

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autopsy report of Dr. Vertido;459[48] (16) death certificate of Ernesto issued and signed by Dr. Vertido;460[49] (17) lists of expenses and receipts for the funeral, coffin, autopsy and food during the burial of Ernesto;461[50] and (18) overseas employment certificate of Ernesto.462[51] For its part, the defense presented Ariola and petitioner as its witnesses. Ariola was introduced by the defense as an adverse witness to repudiate prosecution‘s theory that petitioner was allegedly outside the car when the latter shot Ernesto. He testified that he executed a sworn statement dated 3 September 1998 regarding the incident. Paragraph 12 of the said statement reads:

T – Ang sabi mo ay malapit ka lamang ng maganap ang pagbaril kay Ernesto, saan naman siya tinamaan, maari mo bang isalaysay? S – Ang una pong bumaril ay si Glenn Gonzales at tinamaan sa katawan itong si Ernesto kaya ako po ay tumakbong palayo pero kita ko pa po ng barilin ulit siya nitong si Glenn hanggang sa tumumba itong si Ernesto at nang nakatumba na siya ay doon siya pinagbabaril ng mga nasa kotse na sina Manolito Gonzales, Ruperto de Villa at si “Boy” Arnaldo Mendoza.463[52]

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He confirmed before the court such statement and maintained that petitioner was inside the car with Manolito and Ruperto when petitioner shot Ernesto during the incident.464[53]

Petitioner, a businessman residing at Cavite Street, Santa Cruz, Manila, testified that on 1 September 1998, at about 9:30 in the morning, Manolito and Glenn arrived in his house at Barangay II, Mataasnakahoy, Batangas. Manolito and Glenn told him that they will hitch a ride with him in going to Barangay Lumanglipa since he will also go to the said place with his car to buy tilapia from his motherin-law for the birthday of his son on the following day. While on their way to Barangay Lumanglipa, Manolito and Glenn asked him if they can pass by the house of Ernesto‘s parents. He agreed. However, upon reaching Barangay Lumanglipa, Manolito and Glenn changed their minds and instead requested him to proceed to the barangay hall of Lumanglipa. While traveling the road leading to the barangay hall, they saw Ruperto in a nearby chapel. Manolito and Glenn told him to stop the car and wait for them. Manolito and Glenn alighted from the car and talked with Ruperto. He drove the car a little farther and parked it beside the road. Later, he went out of the car and decided to go to the house of ―Pareng Digo.‖ But before he could go farther, he heard gunshots and saw some persons scampering. He went back inside the car and started the engine. When he

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maneuvered the car towards the road leading to Barangay II, Matasnakahoy, Manolito, Glenn and Ruperto suddenly appeared and boarded the car. The three, who appeared nervous and jittery, told him to speed up the car. He then asked them, “Bakit, bakit ano bang nangyari?” One of the three whom he could no longer recall told him, “Basta idiretso mo at saka na kami magpapaliwanag sayo” After traveling for a few minutes, one of the three whom he could not also remember, directed him to pull over on the side of the road because they will just talk to somebody. He told the three that he will go ahead and that he was leaving the car to them. He immediately got out of the car and boarded a jeepney bound for Lipa City. Upon seeing a telephone booth along the way, he alighted from the jeepney, entered the telephone booth and called his house at Barangay II, Mataasnakahoy. A person, whom he again failed to recall, answered his call and instructed him to proceed to his house/residence at Sta. Cruz, Manila.

Subsequently, he boarded a bus bound for Manila. Upon reaching his house/residence at Sta. Cruz, Manila, he slept. When he woke up the next morning, his wife told him that he was implicated in the murder of Ernesto.465[54]

In support of the foregoing testimonies, the defense presented the respective sworn statements of Ariola and petitioner466[55] as its documentary evidence.

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Prosecution witness Ciruelas clearly stated in paragraph 8 of his Affidavit dated 2 September 1998 that Ernesto was shot first by Glenn followed by petitioner:

08 – T : Sino naman ang unang bumaril dito kay Ernesto Velasquez kung iyong nakita? S : Ang una pong bumaril ay si Glenn Gonzales na may armas na maigsing pistola at sumunod na bumaril ay si Arnaldo Boy Mendoza na may armas na maigsing pistola, na sumunod naman ay si Manoling Gonzales na may hawak na armalite at ito namang si Ruperto de Villa ay may armas din na maigsing pistola na bumaril din kay Ernesto Velasquez.

Ciruelas reiterated and confirmed his foregoing statement in his testimony during the trial. Hence, contrary to petitioner‘s assertion, there is no omission or inconsistency in the sworn statement and court testimony of Ciruelas as regards the said fact.

The fact that none of the other prosecution witnesses corroborated Ciruelas‘s testimony that petitioner shot Ernesto is inconsequential. It should be emphasized that the testimony of a single witness, if positive and credible, as in the case of Ciruelas, is sufficient to support a conviction even in the charge of murder.467[56]

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The testimonies of Ciruelas and Dr. Vertido are substantially consistent with each other on material points. Ciruelas testified that Glenn went in front of Ernesto, who was then seated and playing tongits, and shot the latter once. This is compatible with Dr. Vertido‘s testimony and findings that Ernesto sustained a gunshot wound in the right thigh, the entry point of which was on the front portion of Ernesto‘s right thigh. Ciruelas also testified that when Ernesto fell and lay down with his face on the ground, Glenn fired more shots at the former, and that thereafter petitioner, Manolito and Ruperto also shot Ernesto while the victim was lying on the ground. Again, this is in harmony with Dr. Vertido‘s testimony that Ernesto also sustained gunshot wounds, the entry points of which were on the back portion of Ernesto’s body.

Although Dr. Vertido‘s testimony, that the three gunshot wounds sustained by Ernesto were caused by an M-16 armalite bullets and that the other gunshot wound was probably caused by a .22 caliber bullet, appears to be inconsistent with his other statement that all of these four gunshot wounds have the same diameter, such is only a minor discrepancy and cannot be automatically considered as a ground for acquittal.

It may be true that no bullets from the M-16 armalite rifle used by Manolito were found inside Ernesto‘s body. It should be stressed, however, that one empty shell of an M-16 armalite rifle was recovered inside the maroon Nissa Sentra Super Saloon with plate number UBU-674 used by petitioner, Glenn, Manolito and Ruperto before, during and after the incident. This is once more consistent with
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Dr. Vertido‘s testimony that some of the gunshot wounds sustained by Ernesto were caused by M-16 armalite rifle bullets. To our mind, the conduct of ballistic examination on the deformed slug and empty shells presented as evidence by the prosecution is not indispensable in proving the crime charged in the face of other overwhelming evidence presented.

The foregoing testimonies are in harmony with the documentary and object evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Ciruelas and Dr. Vertido to be candid and credible. Both courts also found no improper motives on the part of the prosecution witnesses to testify against petitioner.

Likewise vital are the documentary evidence consisting of the (1) sworn statement of Ciruelas attesting that during the incident, he saw petitioner shoot Ernesto; (2) sworn statement of Ariola stating that during the incident, he saw petitioner shoot Ernesto; (3) sworn statement of Gutierrez declaring that during the incident, he saw petitioner, Glenn, Manolito and Ruperto holding firearms while Ernesto was bloodied and lying; (4) sworn statement of Mrs. Velasquez narrating that on the day of the incident, petitioner and Ruperto went to her house and sought Ernesto; (5) certification issued by the Chief of the Firearms and Explosives Division of the Philippine National Police, Camp Crame verifying, among others, that petitioner was a licensed/registered holder of a Pistol Colt Caliber .38, and that the license was issued on 15 June 1995 and expired on November 1997 and has not been renewed since such expiration; (6) findings/autopsy report on the body of Ernesto
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signed by Dr. Vertido stating that the latter died of severe hemorrhage secondary to gunshot wounds and had also sustained grazing wounds, which, according to the court testimony of Dr. Vertido, may have been caused by a bullet from any type of gun or caliber; (7) anatomical sketch signed by Dr. Vertido indicating that Ernesto sustained grazing wounds on the chest, gunshot wound in the front portion of the right thigh, and three gunshot wounds at the upper back portion of the body; (8) death certificate of Ernesto issued and signed by Dr. Vertido; and (9) sketch of the crime scene drawn and prepared by SPO1 Castillo.

It is also equally important to note the object evidence comprising (1) one live ammunition of Super Caliber .38; (2) four empty shells of Super Caliber .38; (3) one deformed slug of Super Caliber .38; (4) one empty shell of an M-16 armalite recovered from a maroon Nissan Sentra Super Saloon with plate number UBU-674 used by petitioner, Glenn, Manolito and Ruperto before, during and after the incident; and (5) pictures of the maroon Nissan Sentra Super Saloon with plate number UBU-674 which was recovered after the incident.

The rule is that the findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect.468[57] This is more true if such findings were affirmed by the appellate

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court. When the trial court‘s findings have been affirmed by the appellate court, said findings are generally binding upon this Court.469[58]

In utter contrast, the evidence for the defense comprises mainly denials and alibi. Petitioner denied having shot Ernesto. He insisted that on the day of the incident, he merely brought Glenn, Manolito and Ruperto near the chapel of Barangay Lumanglipa, Mataasnakahoy, Batangas where the three alighted; that upon hearing a gunshot, he went inside his car and started the engine; that Glenn, Manolito and Ruperto suddenly boarded again his car; that when he asked them what happened, the three told him to just drive away and they will explain later; and that out of fear, he left his car with the three and went to his house in Sta. Cruz, Manila. Petitioner also posited that the prosecution‘s evidence is unreliable because Ariola, the adverse witness, stated in his sworn statement that petitioner was inside the car when the latter shot Ernesto, thereby contradicting Ciruelas‘s testimony that petitioner was outside the car and standing when the latter shot Ernesto. Aside from these negative and self-serving claims, petitioner did not adduce any convincing proof to substantiate and corroborate his defense of denial and alibi.

Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is the weakest of all defenses for it is easy to contrive and difficult to prove. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that it

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was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.470[59]

Petitioner claims he was inside his car which was parked in front of the chapel at the time of the incident. The chapel was merely four meters away from the crime scene.471[60] Being very near the crime scene, it was not physically impossible for him to be there during the incident.

Petitioner‘s asseveration that the prosecution‘s evidence is fabricated, by reason of Ariola‘s testimony being inconsistent with Ciruelas‘s testimony, will not help his cause because Ariola also mentioned in his sworn statement and during the trial that petitioner was among those who shot Ernesto with a short firearm during the incident. What is certain is the fact that petitioner shot Ernesto.

It is a well-entrenched doctrine in criminal law that, as between denials or alibi and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.472[61]

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Apropos the second issue, petitioner argued that he never conspired with Glenn, Manolito and Ruperto in killing Ernesto; that his being with Glenn, Manolito and Ruperto inside a car and fleeing after the incident does not imply conspiracy; that there was no evident premeditation in the killing of Ernesto because he had no ill feelings or prior animosity towards Ernesto or any of the latter‘s relatives and as such, he had no reason to plan on how to kill Ernesto; and that no abuse of superior strength can be appreciated in the killing of Ernesto.473[62]

Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons agree to commit a felony and decide to commit it. The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design.474[63]

As can be gleaned from the testimonies and sworn statements of the prosecution witnesses, petitioner was seen together with Glenn, Manolito and Ruperto on board a car and was inquiring on Ernesto‘s whereabouts before the incident. Petitioner

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was also seen shooting Ernesto right after Glenn shot the latter, and subsequently fled with Glenn, Manolito and Ruperto on board a car. Clearly, the foregoing acts of petitioner before, during and after the incident demonstrate that he was a coconspirator of Glenn, Manolito and Ruperto.

Evident premeditation qualifies the killing of a person to murder if the following elements are present: (1) the time when the offender was determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his resolve; and (3) a sufficient interval of time between the determination or conception and the execution of the crime to allow him to reflect upon the consequence of his act and to allow his conscience to overcome the resolution of his will if he desired to hearken to its warning.475[64]

All of the foregoing elements and requisites of evident premeditation were satisfactorily established by the prosecution.

First, at about 5:00 in the afternoon of 31 August 1998, Ernesto confronted Glenn and thereafter pushed the latter‘s left chin after hearing insulting answers from Glenn. Thereafter, Glenn threatened Ernesto, “Humanda ka, babalikan ka namin, papatayin ka namin!” On the following day, 1 September 1998, at around 9:00 in the morning, petitioner together with Glenn, Manolito and Ruperto went to the

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house of Ernesto‘s parents and sought Ernesto. This was the time that petitioner and his three cohorts were determined to kill Ernesto.

Second, after being told by Mrs. Velasquez on that same day that Ernesto was in the Mataasnakahoy, petitioner together with Glenn, Manolito and Ruperto proceeded to said place. Upon arriving at 1:30 in the afternoon, petitioner immediately approached Ernesto. Thereafter, petitioner shot Ernesto right after the latter was shot by Glenn. The act of the petitioner and of his three cohorts in locating and shooting Ernesto indicates that they had clung to their determination to kill the victim.

Finally, petitioner and his cohorts manifested their determination to kill Ernesto at the time they went to the house of Ernesto‘s parents and asked about his whereabouts at 9:00 in the morning of 1 September 1998. On the other hand, petitioner and his cohorts shot Ernesto at about 1:30 in the afternoon of 1 September 1998. Indeed, a gap of four hours between the determination and the execution to kill Ernesto was sufficient for the petitioner and his cohorts to reflect on the consequences of the acts they were about to commit.

Taking advantage of superior strength also qualifies the killing to murder if the offender purposely used excessive force out of proportion to the means of defense available to the person attacked.476[65] The evidence for the prosecution had

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sufficiently proven the existence of this qualifying circumstance. Petitioner, Glenn, Manolito and Ruperto were all armed with pistols and armalite and used the same in shooting Ernesto, whereas the latter was unarmed and in a sitting position playing tongits at the time of the shooting. Verily, petitioner and his cohorts took advantage of their number and weapons against Ernesto.

We observed that the aggravating circumstances of treachery and use of an unlicensed firearm were also alleged in the information. We agree with the RTC and the Court of Appeals that treachery cannot be appreciated in the instant case since treachery presupposes a sudden and unexpected attack on the unsuspecting victim.477[66] In the case at bar, the attack on Ernesto was not sudden and expected. Prior to the shooting, petitioner repeatedly asked Ernesto why he slapped Glenn. Ernesto even managed to answer back and replied that he did not slap Glenn. At this stage, Ernesto was already forewarned of the dangers that such questioning brought as well as the presence of petitioner and his cohorts considering that he had a previous quarrel with Glenn. However, we take exception to the ruling of the RTC and the Court of Appeals that the aggravating circumstance of use of unlicensed firearm cannot be appreciated. The prosecution presented a certification issued by the Chief of the Firearms and Explosives Division of the Philippine National Police, Camp Crame, verifying, among others, that petitioner was a licensed/registered holder of a Pistol Colt Caliber .38, and that the license was issued on 15 June 1995 and expired in November 1997 and has not

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been renewed since then.478[67] The incident occurred on 1 September 1998. It also presented one live ammunition of Super Caliber .38, four empty shells of Super Caliber .38, and one deformed slug of Super Caliber .38, all of which matched petitioner‘s Super Caliber .38.479[68]

Regarding the third issue, petitioner elucidated that it took him a while to surrender because of fear; that he was never arrested and had instead surrendered to the authorities; and that the mitigating circumstance of voluntary surrender should be appreciated in his favor.480[69] For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the offender had not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.481[70] In order for a surrender to be considered as voluntary, the same must be spontaneous in such a manner that it shows the interest of the accused to surrender

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unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture.482[71] In the case at bar, petitioner went into hiding for almost four years before he submitted himself to the authorities.483[72] Upon his surrender, he did not acknowledge liability for the killing of Ernesto. As such, his surrender cannot be considered spontaneous.484[73] Moreover, his flight after the incident is a circumstance from which an inference of guilt may be drawn.485[74] As regards the fourth issue, petitioner alleged that his former counsel, Atty. Reynaldo Q. Marquez (Atty. Marquez), did not defend him to the fullest and was negligent in handling his case because Atty. Marquez presented as witness Ariola, who, prior to the trial, had executed an affidavit stating that petitioner was one of those who shot Ernesto during the incident. Atty. Marquez also admitted the fact that an empty shell of an armalite bullet was found inside the maroon Nissan Sentra Super Saloon with plate number UBU-674. For these reasons, petitioner claims that he was not able to completely present his defenses and thus he was denied due process.

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Petitioner further claimed that the Presiding Judge of the RTC which rendered the assailed decision, Judge Vicente Landicho (Judge Landicho), was partial and biased; that after the assailed RTC Decision was promulgated, he found out that Judge Landicho‘s cousin, a certain Mayor Celso Landicho (Mayor Landicho), is a relative of Ernesto; that Mayor Landicho‘s wife introduced his wife to Judge Landicho; that Judge Landicho advised his wife to tell him not to surrender and to mellow first (―magpalamig muna‖); that after three years, Judge Landicho recommended Atty. Marquez to him; and that these circumstances show that Atty. Marquez was loyal to Judge Landicho and not to him.486[75] The essence of due process is a hearing before conviction and before an impartial and disinterested tribunal. Due process is satisfied as long as a party is given the reasonable opportunity to be heard and submit any evidence in support of his defense.487[76] The instant case underwent a full-blown trial before the RTC. Petitioner was adequately heard and given opportunity to adduce evidence in support of his defense and to refute the evidence for the prosecution. Relevant and material issues were ventilated before the RTC and the Court of Appeals rendered their respective decisions. Petitioner filed all the necessary pleadings in support of his cause before the said courts.

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Atty. Marquez had sufficiently performed his duties in defending petitioner. A perusal of the thick records shows that Atty. Marquez conducted a lengthy direct examination on petitioner and exhaustively cross-examined the witnesses for the prosecution. He also objected to the admissibility of some evidence for the prosecution. He even filed a motion for reconsideration of the RTC Decision convicting petitioner.488[77]

It also appears from the records that Atty. Marquez presented the testimony of adverse witness Ariola for the purpose of proving that there was inconsistency in the testimony of the prosecution witnesses and thus the prosecution‘s evidence was fabricated, to wit:

Atty. Marquez: We are offering the testimony of this witness, first: as an adverse party witness; second: to prove that the evidence of the prosecution as against the accused Arnaldo Mendoza is totally fabricated; third: we will prove that by the testimony of this witness, the prosecution deliberately suppressed a piece of vital document because had this document been presented it would not have been adverse to the cause of the prosecution. Finally, we are offering the testimony of this witness to prove that the evidence for the prosecution insofar as the alleged participation of Arnaldo Mendoza is diametrically inconsistent with each other in the sense that the testimony of this witness is inconsistent with the testimony of the other eyewitnesses, Your Honor.489[78] (Emphases supplied.)

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If indeed, as petitioner alleged, Atty. Marquez was still to be considered as negligent or has committed mistakes in presenting the testimony of Ariola and in admitting that one empty shell of an M-16 armalite rifle was found in the car used by petitioner and his cohorts despite the foregoing consideration, such cannot be considered as serious negligence because, as we earlier found, there was no total abandonment of petitioner‘s cause Mere imputation of bias and partiality against a judge is not enough since bias and partiality can never be presumed.490[79] There was no evidence showing that the family/relatives of Ernesto had unduly influenced Judge Landicho in convicting petitioner. There was also no proof that Judge Landicho told petitioner not to surrender or ―magpalamig muna‖ and that Judge Landicho recommended Atty. Marquez to petitioner. In the absence of such proofs, petitioner‘s bare assertion cannot overturn the presumption of regularity in the performance by Judge Landicho of his official duty.491[80]

The penalty for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death. As we earlier found, there were evident premeditation, taking advantage of superior strength and use of unlicensed firearm in the killing of Ernesto. Considering that only one between evident premeditation and taking advantage of superior strength is necessary to qualify the killing to murder, the

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other one becomes a generic aggravating circumstance.492[81] There being one generic aggravating circumstance plus the special aggravating circumstance of use of unlicensed firearm, and there being no mitigating circumstance, the penalty, following Article 63(1) of the Revised Penal Code, is death. However, with the effectivity of Republic Act No. 9346 entitled, ―An Act Prohibiting the Imposition of Death Penalty in the Philippines,‖ the imposition of the capital punishment of death has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted to petitioner shall be reclusion perpetua. Said section reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on petitioner, he is not eligible for parole following Section 3 of said law which provides:

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

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As regards the civil liability of petitioner, we find the damages awarded and their corresponding amounts to be correct. However, we deem it proper to increase the civil indemnity from P50,000.00 to P75, 000.00 based on prevailing jurisprudence.493[82] In addition to the damages awarded, we also imposed on all the amounts of damages an interest at the legal rate of 6% from this date until fully paid.494[83]

WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 November 2005 in CA-H.C. No. 0046 is hereby AFFIRMED with the following MODIFICATIONS: (1) the special aggravating circumstance of use of unlicensed firearm is hereby considered in the killing of Ernesto; (2) the death penalty imposed on petitioner is hereby reduced to reclusion perpetua without eligibility for parole pursuant to Republic Act No. 9346; (3) the civil indemnity of petitioner is increased from P50,000.00 to P75,000.00; and (4) an interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed. Costs against petitioner. SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

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WE CONCUR:
REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

CONSUELO YNARES-SANTIAGO

Associate Justice
ANGELINA SANDOVAL-GUTIERREZ

Associate Justice ANTONIO T. CARPIO Associate Justice

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA

CANCIO C. GARCIA

Associate Justice

Associate Justice

On leave
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No part

PRESBITERO J. VELASCO, JR.

ANTONIO EDUARDO B. NACHURA Associate Justice

Associate Justice

RUBEN T. REYES Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
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REYNATO S. PUNO

Chief Justice

2. People vs. Obligado Gr. No. 171735; April 16, 2009

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,
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G.R. No. 171735

Appellee, Present:

PUNO, C.J., Chairperson, CARPIO, - versus CORONA, LEONARDO-DE CASTRO and BERSAMIN, JJ.

ALEJO OBLIGADO y MAGDARAOG, Appellant. Promulgated:

April 16, 2009

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

DECISION CORONA, J.:

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Appellant Alejo Obligado y Magdaraog was charged with murder in the Regional Trial Court (RTC) of Iriga, Branch 35495[1] under the following Information:

That on or about 7:45 [p.m.] of March 12, 2000, in Barangay de la Fe, Buhi, Camarines Sur, Philippines, and within the jurisdiction of the Honorable Court, [appellant] did then and there, willfully, unlawfully and feloniously, with intent to kill and with treachery, to [e]nsure execution, attack, assault and use personal violence upon one FELIX OLIVEROS y RAÑADA, that is—while armed with a bolo and coming from behind the victim, who was then unaware and defenseless of the impending attack, [appellant] first held tightly the victim‘s hair and immediately thereafter, suddenly, unexpectedly slashed the victim‘s neck with his bolo, causing [his] death, to the damage and prejudice of [his] heirs. CONTRARY TO LAW.496[2]

Appellant pleaded not guilty upon arraignment.

During trial, the victim‘s cousin and prosecution eye-witness Roberto Bagaporo testified that he and the victim along with several others497[3] were having a

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drinking spree in front of his residence in the evening of March 12, 2000. They were later joined by appellant.

As Bagaporo prepared the videoke machine, he heard the victim call out, ―Pinsan!‖ (Cousin!) He then turned around and saw appellant standing behind the victim. Appellant grabbed the victim‘s hair with his left hand and, with his right, pulled out a bolo from underneath his shirt and slashed the victim‘s neck. He then pushed the victim (who fell face down on the pavement) and walked away.

Senior Police Officer (SPO)4 Jimmy Jose of the Philippine National Police (PNP) Buhi station testified that, around 8:20 p.m. on March 12, 2000, an unidentified barangay kagawad reported a hacking incident in Barangay de la Fe. He, along with several other police officers, immediately went to the area and found the victim lying face-down in front of Bagaporo‘s house.

Dr. Breandovin Saez, municipal health officer of Buhi, testified that he conducted a post-mortem examination of the victim. The victim suffered two incised wounds, one on his right cheek and another on his neck area (extending from the left anterior neck to the right posterior neck). Dr. Saez said that the second wound was
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fatal because it was deep enough to cut the carotid artery and cause massive hemorrhage. Furthermore, based on the size and position of the wound, he opined that the assailant intentionally slashed the victim‘s neck from behind using a small bolo with a length of not more than one foot.

Lastly, the victim‘s widow, Gloria Oliveros testified that her husband earned at least P5,000 per month as a driver. She also presented a receipt from the funeral parlor amounting to P15,000 and an itemized list of expenses incurred during the wake amounting to P12,000.

For his defense, appellant asserted that he accidentally killed the victim. While they were drinking, the victim approached and confided to him that he had a problem but did not say what his problem was. Appellant gave the victim a drink. To his surprise, the victim allegedly pulled out his bolo from its scabbard. Afraid of what could happen, appellant tried to wrest the bolo but the victim resisted. It was while grappling for possession of the bolo that the victim was fatally slashed in the neck.

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Apolinario Manaog corroborated appellant‘s testimony. He basically stated that it was the victim who wielded the bolo and that he (the victim) and appellant wrestled for its possession.

The defense also presented SPO4 David Sarto, police community officer of the PNP Buhi station. According to SPO4 Sarto, he and his fellow police officers were ordered to arrest appellant on March 13, 2000. They met appellant while traversing the lone footpath leading to his residence. Appellant surrendered his person and the bolo.

Based on the size and nature of the victim‘s wounds, the RTC concluded that the killing was intentional. Moreover, because appellant slashed the victim‘s neck from behind, the latter had no opportunity to defend himself. Hence, the trial court appreciated the qualifying circumstance of treachery. In a decision dated February 28, 2001, the RTC found appellant guilty beyond reasonable doubt of the crime of murder: 498[4]

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WHEREFORE, finding [appellant] ALEJO OBLIGADO y MAGDARAOG guilty of murder beyond reasonable doubt as defined and penalized in Article 248 of the Revised Penal Code, he is sentenced to suffer the penalty of reclusion perpetua and to pay indemnity in the amount of P50,000; actual damages of P27,000; moral and exemplary damages of P50,000 and to pay the cost of suit.

On intermediate appellate review,499[5] the Court of Appeals (CA) affirmed the guilt of the appellant but modified the civil liabilities imposed by the RTC. Because SPO4 Sarto testified that appellant intimated a desire to surrender, the appellate court appreciated the mitigating circumstance of voluntary surrender. Thus, it deleted the award of exemplary damages and instead ordered appellant to pay moral damages in the amount of P50,000.500[6] We affirm appellant‘s guilt.

The evidence of the prosecution established beyond reasonable doubt that the appellant intended to kill (and in fact killed) the victim and that he consciously adopted a design which deprived the victim of any opportunity to defend himself,

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or to retaliate. However, the mitigating circumstance of voluntary surrender should not have been considered.

For the mitigating circumstance of voluntary surrender to be appreciated, the defense must prove that:

(a) the offender had not been actually arrested; (b) the offender surrendered himself to a person in authority;

(c) the surrender was spontaneous and voluntary.501[7]

In this case, SPO4 Sarto testified that appellant‘s residence could be accessed only through a footpath where they met appellant. Inasmuch as he was intercepted by the arresting officers there, appellant had no means of evading arrest. His

surrender therefore was neither voluntary nor spontaneous. On the contrary, the aforementioned circumstances revealed that he had no option but to yield to the authorities.

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With respect to the award of damages, to conform with recent jurisprudence, the appellant is ordered to pay P75,000 as civil indemnity ex delicto.502[8]

Both the RTC and CA did not award indemnity for loss of earning capacity despite the testimony of the victim‘s widow that he earned P5,000 per month as a driver. Such indemnity is not awarded in the absence of documentary evidence except where the victim was either self-employed or was a daily wage worker earning less than the minimum wage under current labor laws.503[9] Since it was neither alleged nor proved that the victim was either self-employed or was a daily wage worker, indemnity for loss of earning cannot be awarded to the heirs of the victim.

Settled is the rule that only receipted expenses can be the basis of actual damages arising from funeral expenditures.504[10] All the prosecution presented was a

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receipt from the funeral parlor amounting to P15,000.

Since the receipted

expenses of the victim‘s family was less than P25,000, temperate damages in the said amount can be awarded in lieu of actual damages.505[11] Accordingly, the heirs of the victim are not entitled to actual damages but to temperate damages in the amount of P25,000.

Moreover, inasmuch as moral damages are mandatory in cases of murder (without need to allege and prove such damages), appellant is likewise ordered to indemnify the heirs of the victim P50,000.506[12]

Lastly, since the killing of the victim was attended by treachery, his heirs are entitled to exemplary damages in the amount of P25,000.507[13]

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WHEREFORE, the December 20, 2005 decision of the Court of Appeals in CAG.R. CR-H.C. No. 01608 is hereby AFFIRMED with MODIFICATION. Appellant Alejo Obligado y Magdaraog is found guilty of murder as defined in Article 248 of the Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to indemnify the heirs of the victim Felix Oliveros y Rañada P75,000 as civil indemnity ex delicto, P25,000 as temperate damages, P50,000 as moral damages and P25,000 as exemplary damages.

SO ORDERED.

RENATO C. CORONA Associate Justice WE CONCUR:

REYNATO S. PUNO
Chief Justice Chairperson

ANTONIO T. CARPIO
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TERESITA J. LEONARDO-DE CASTRO

Associate Justice

Associate Justice

LUCAS P. BERSAMIN Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO
Chief Justice

3. People vs. Badriago Gr. No. 183566; May 8, 2009 (Please refer to p.41) PLEA OF GUILTY 1. People vs. Lopit Gr. No. 177742; June 16, 2009

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EN BANC

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 177742

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA*, - versus CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES

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LEONARDO-DE CASTRO, and BRION, JJ. JOSELITO A. LOPIT, Promulgated: Accused-Appellant. December 17, 2008 x-----------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

Before us on automatic review is the Decision508[1] of the Court of Appeals (CA) dated June 30, 2006 in CA-G.R. CR-H.C. No. 01896 which affirmed, with modifications, the decision509[2] of the Regional Trial Court (RTC) of Bulanao, Tabuk, Kalinga, Branch 25, in Criminal Case No. 85-2003, finding herein accused-

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appellant guilty beyond reasonable doubt of the crime of Qualified Rape committed against his own daughter and sentencing him to suffer the extreme penalty of death.

Consistent with People v. Cabalquinto, 510[3] the Court withholds the real name of the rape victim. Instead, fictitious initials of AAA are used to represent her. Also, the personal circumstances of the victim or any other information tending to establish or compromise her identity, as well as those of her immediate family or household members, is not disclosed in this decision.511[4] In this regard, the mother is referred to as BBB.

In three (3) separate Informations512[5] dated September 15, 2003, accusedappellant was charged with three (3) counts of rape committed against his own 14year old daughter AAA on September 5, 7, and 9, 2003. Except for the dates of the commission of the crime, the Informations were identically worded, thus:

CRIM. CASE NO. 85-2003

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The undersigned accuses [accused-appellant], a detention prisoner at the PNP of Tabuk, of the crime of RAPE, defined and penalized under Republic Act Numbered 8353, committed as follows: That on or about September 5, 2003 at San Julian, Tabuk, Kalinga, and within the jurisdiction of this Honorable Court, the accused, through force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of her daughter [AAA], who is a minor, fourteen (14) years of age, against her will. CONTRARY TO LAW.513[6]

On November 4, 2003, accused-appellant, duly assisted by Atty. Marcelino K. Wacas of the Public Attorney‘s Office (PAO), entered a plea of ―not guilty‖ in Criminal Case Nos. 85-2003, 86-2003 and 87-2003. 514[7]

On November 10, 2003, the PAO lawyer verbally moved to be relieved as counsel for accused-appellant and with the latter‘s concurrence, the motion was granted. In his stead, Atty. Daniel Dapeg of the Integrated Bar of the Philippines Legal Aid Pilot Project was appointed as accused-appellant‘s counsel de oficio.515[8]

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During the pre-trial conference held on November 12, 2003, accused-appellant, assisted by counsel, manifested his desire to plea-bargain. In open court, he expressed willingness to plead guilty in Criminal Case No. 85-2003, on the condition that the Informations in Criminal Case Nos. 86-2003 and 87-2003 be withdrawn. Victim AAA, assisted by her mother BBB and the provincial

prosecutor, expressed her conformity thereto.516[9]

Thus, accused-appellant entered a new plea of ―guilty‖ to the crime of rape in Criminal Case No. 85-2003.517[10] This was done with the assistance of counsel de oficio and after the trial court conducted searching inquiry into the voluntariness and full comprehension of the consequences of the accused-appellant‘s plea.

Thereafter, the trial court commenced with the reception of evidence to prove accused-appellant‘s guilt and degree of culpability.

The prosecution presented the victim AAA and her mother BBB as witnesses, while accused-appellant testified on his own defense.

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After trial, the court a quo rendered its Decision on November 28, 2003 imposing upon the accused-appellant the supreme penalty of death thus:
Accordingly, judgment is hereby rendered finding the accused guilty beyond reasonable doubt of the crime of rape attendant the qualifying and aggravating circumstances of minority and relationship, victim [AAA] being 15 years old and daughter of [accusedappellant] and hereby sentences the said accused the supreme penalty of death and to indemnify minor victim P75,000.00, by way of civil indemnity, moral damages in the amount of P100,000.00 and P50,000.00 by way of exemplary damages, plus cost. Transmit the record of the case to the Office of the Clerk of Court, Supreme Court of the Philippines for review. SO ORDERED.518[11]

The records of these cases were forwarded to this Court for automatic review, in view of the death penalty imposed.

In our Resolution519[12] of August 10, 2004, We accepted the appeal and directed the Chief, Judicial Records Office, to send notices to the parties to file their respective briefs and to the Director of the Bureau of Corrections, to confirm the detention of the accused at the National Penitentiary. Accused-appellant filed his Appellant's Brief520[13] on April 11, 2005, while the People, through the Office of the Solicitor General (OSG), filed its Appellee's Brief521[14] on May 31, 2005.

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Conformably with this Court‘s decision in People v. Mateo,522[15] accusedappellant‘s appeal by way of automatic review was transferred to the CA where it was docketed as CA-G.R. CR-H.C. No. 01896.

The prosecution, through the testimonies of the victim (AAA) and witness (BBB), the victim‘s mother, established the following facts:

[AAA], then fourteen (14) years old having been born on October 2, 1988, is the daughter of the [accused-appellant] and BBB, a barangay midwife; they were married on May 10, 1986. On September 5, 2003 at around 2:00 in the afternoon, [AAA], a third year high school student at Tabuk National High School was in their house together with her mentally retarded sister CCC. At that time, their mother [BBB] was in San Julian Elementary School. Suddenly [AAA]‘s father [accused-appellant], a farmer, arrived drunk and forced the victim to have sexual intercourse with him. She struggled but her efforts were in vain since [accused-appellant] was strong. [Accused-appellant] removed his pants and pinned the victim on the bed, pulled down her pants and inserted his penis into her vagina. [AAA] cried. After doing the bestial act, [accused-appellant] left but not before threatening [AAA] that he would kill her, her mother and siblings if she reported the matter. As further testified by the victim, she had been sleeping with her father on the cement floor of their unfinished house for some time and that her father started staying with them only in 2002 since he had been staying in Laguna as a soldier in the Philippine Army. Terrified and disgusted by what happened to her, the victim left home on September 10, 2003. She stayed in the house of Rita Carbonel in San Francisco, Tabuk, Kalinga. On September 11, 2003, [BBB] came looking for her and it was only then that the victim

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revealed the sexual assaults committed by her father. Without delay, [BBB] accompanied her daughter to the police headquarters where the victim‘s statement was taken. [BBB] testified that she and [accused-appellant] were married on May 10, 1986 at Calanasan, Cagayan. Although she did not present any document to prove such assertion nor did she expressly and categorically state that [accused-appellant] was the victim‘s father, the victim repeatedly referred to [accused-appellant] as her father all throughout her testimony. Their relationship was never refuted by the [accused-appellant] who in fact admitted in open court that [AAA] was one of his daughters.

On the other hand, accused-appellant testified on his own version of the events which transpired on September 5, 2003:

For his part, [accused-appellant] testified that on September 5, 2003, he came home drunk and fell asleep naked on the cemented floor; that he was awakened when someone placed a mat and a blanket for him. He thought that his daughter was his wife, so he had sex with her. [Accused-appellant] manifested remorse and declared that he pleaded guilty as he had no money to fight his case also to secure a reduction of the penalty that will be imposed on him.

On June 30, 2006, the CA promulgated the herein challenged decision affirming in most part the decision of the trial court with modification only in the amount of the award of moral and exemplary damages. Pertinently, the CA decision reads in part:

With respect to the civil aspect of the crimes, We sustain the award of civil indemnity in the amount of P75,000.00 since rape was committed in its qualified form. However, the trial court‘s award of P100,000.00 as moral damages and P50,000.00 as exemplary damages must be modified. In line with existing jurisprudence, the award of moral damages should be in the amount of P75,000.00, without need of further proof. Likewise, exemplary damages is reduced to P25,000.00 in line with existing jurisprudence. A final note: Notwithstanding current moves for the abolition of the death penalty, no legislation or rules have yet been promulgated relative thereto as of the time of the writing of his Decision, hence We are constrained to affirm the penalty imposed by the court a quo which We find to be conformable to the facts and existing law.
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WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED with MODIFICATION that the award of moral damages is reduced to P75,000.00 and exemplary damages to P25,000.00 or a total of P175,000.00. Let the record of this case be elevated to the Honorable Supreme Court for review pursuant to Rule 124, Section 13 of the Revised Rules on Criminal Procedure as amended by A.M. No. 00-5-03-SC. SO ORDERED.

On April 23, 2007, the CA forwarded the records of the case to this Court for automatic review.523[16] In the Resolution524[17] dated June 26, 2007, We required the parties to simultaneously submit their respective supplemental briefs. However, the parties filed separate manifestations stating that they were waiving the filing of supplemental briefs and instead opted to stand by their respective briefs filed with the CA. In his Brief, accused-appellant alleged that the trial court gravely erred in imposing on him the supreme penalty of death.

Before delving into the main issue of the case, it is necessary to determine whether the trial court has satisfied the requirement as mandated by Rule 116 of the Rules on Criminal Procedure, which provides:

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SEC. 3. Plea of guilty to capital offense; reception of evidence.- When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence on his behalf.

Explicitly, when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of his culpability. The accused may also present evidence on his behalf. Under the foregoing Rule, three things are enjoined upon the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.525[18] We explained the rationale of the rule in People v. Albert,526[19] thus:

The rationale behind the rule is that courts must proceed with more care where the possible punishment is in its severest form--death--for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty. The primordial purpose then is to avoid improvident pleas of guilt on the part of an accused when grave crimes are involved since he might be admitting his guilt before the court and thus forfeit his life and liberty without having fully understood the meaning, significance and consequences of his plea. Moreover, the requirement of

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taking further evidence would aid the Supreme Court on appellate review in determining the propriety or impropriety of the plea.

It is not enough to inquire as to the voluntariness of the plea; the court must explain fully to the accused that once convicted, he could be meted the death penalty; that death is a single and indivisible penalty and will be imposed regardless of any mitigating circumstance that may have attended the commission of the felony. Thus, the importance of the court‘s obligation cannot be

overemphasized, for one cannot dispel the possibility that the accused may have been led to believe that due to his voluntary plea of guilty, he may be imposed a lesser penalty,527[20] which was precisely what happened here. The trial court proffered the following questions to accused-appellant to determine the voluntariness and full comprehension of his change of plea from ―not guilty‖ to ―guilty,‖ thus:528[21]

COURT Q Mr. Lopit y Abulao you have been arraigned yesterday with the Information for Rape in Criminal Case No. 85-2003, did you confer with your newly designated counsel de oficio regarding your plea? WITNESS A Yes, Your Honor. Q After having been confer (sic) with him that you entered a plea of guilty for the Information of Rape you voluntary done (sic) of your own perception? A Yes, Your Honor.

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Q A

Will you tell us the reason why you have pleaded guilty to the offense? I have no money to fight my case, Your Honor.

Q Is that the reason why you have admitted or because you are repenting for the intention you have committed? A That is the only reason, Your Honor. Q A Are you telling us that you did not rape your daughter? No, Your Honor.

Q If you did not rape your daughter, why did you plead guilty? A Atty. Wagas told me to admit one case in order to reduce the penalty, Your Honor. Q In fact there are three (3) Criminal Cases for Rape allotted against you involving your daughter, is that correct? A Yes, Your Honor. Q A Q A Did you believe that beneficial to you to admit one? Yes, Your Honor. And that is the reason you pleaded guilty? Yes, Your Honor.

Q Is it not therefore the lack of money that to fight a case and prompted you to plea of guilty? A Yes, both Your Honor. Q A So it is the reason? Yes Your Honor.529[22]

Clearly, Section 3, Rule 116 of the 1985 Rules of Criminal Procedure was not satisfactorily complied with. The trial court should have taken the necessary measures to see to it that accused-appellant really and freely comprehended the meaning, full significance and consequences of his plea but it did not. It failed to

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explain to accused-appellant that the penalty imposable for the crime attended by the qualifying circumstance of minority and filiation, as alleged in the Information against him, is death, whether or not he pleads guilty and regardless of the presence of other mitigating circumstances. Accused-appellant‘s justification that he had no money to defend his case and his belief that the penalty would be reduced if he pleaded guilty were not sufficient reasons for the trial court to allow a change of plea from not guilty to one of guilty. It was the duty of the judge to see to it that the accused did not labor under this mistaken impression.

Still, the trial court‘s shortcomings will not necessarily result in accused appellant‘s acquittal. The evidence for the prosecution, independently of accusedappellant‘s plea of guilty, adequately established his guilt beyond reasonable doubt as charged in the Informations. The testimony of the victim AAA is worthy of belief and enough to convict accused-appellant. straightforward and categorical manner. She testified in a candid,

She narrated in open court that on

September 5, 2003, she was ravished by her own father. She recalled thus:

My mother went to San Juan Elementary School at 2: o‘clock he was forcing me but I refused. He was strong and I kicked him and he put my pants down and then he took advantage of me.530[23]

AAA recounted how accused-appellant was able to insert his private organ into hers in the midst of her tears and in full view of her mentally challenged sister who

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was unfortunately oblivious of their father‘s dastardly act.531[24] After satisfying his bestial instinct, accused-appellant left his daughter AAA with a threat: “No agipulong ka, patayen kayo amin.” (If you will report, I will kill you all).532[25] Thus, accused-appellant‘s plea of guilty effectively corroborated and substantiated victim AAA‘s allegation that accused-appellant indeed raped her. In his Brief, accused-appellant does not question his conviction for raping his own daughter. He only assails the imposition of the death penalty by the CA. Accusedappellant contends that while the Information alleged the qualifying circumstances of both his relationship to the victim and the latter‘s minority, the prosecution failed to prove beyond reasonable doubt these qualifying circumstances. The People through the OSG, while maintaining that accused-appellant‘s guilt has been proven beyond reasonable doubt, agrees that accused-appellant should only be convicted of simple rape, as the qualifying circumstances of the vict im‘s minority and her filiation with accused-appellant were not proven beyond reasonable doubt.

We agree. Article 266 of the Revised Penal Code, as amended by RA 7659 and further amended by RA 8353, provides:

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Art. 266-A. Rape. When and how committed. - Rape is committed–

1.) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; Art. 266-B. Penalties.- Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. xxx xxx xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;

In the prosecution of criminal cases, especially those involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established. Qualifying circumstances or special qualifying circumstances must be proved with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the victim‘s minority and her relationship to the accused-appellant must be both alleged and proven beyond reasonable doubt.533[26] Here, the Information alleged the concurrence of the victim‘s minority and her relationship to accused-appellant. However, except for the bare testimony of the victim and her mother as to the former‘s age as well as their filiation to the accused-appellant, no birth certificate or baptismal certificate or school record and

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marriage contract exist on record to prove beyond reasonable doubt the victim‘s age or her minority at the time of the commission of the offense. In People v. Tabanggay,534[27] we held:

Jurisprudence dictates that when the law specifies certain circumstances that will qualify an offense and thus attach to it a greater degree of penalty, such circumstances must be both alleged and proven in order to justify the imposition of the graver penalty. Recent rulings of the Court relative to the rape of minors invariably state that in order to justify the imposition of death, there must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused. A duly certified certificate of live birth accurately showing the complainant's age, or some other official document or record such as a school record, has been recognized as competent evidence. In the instant case, we find insufficient the bare testimony of private complainants and their mother as to their ages as well as their kinship to the appellant. x x x [We] cannot agree with the solicitor general that appellant‘s admission of his relationship with his victims would suffice. Elementary is the doctrine that the prosecution bears the burden of proving all the elements of a crime, including the qualifying circumstances. In sum, the death penalty cannot be imposed.

There is no showing that the victim‘s birth certificate and accused -appellant‘s marriage contract were lost or destroyed or were unavailable without the prosecution‘s fault. Therefore, the prosecution failed to prove beyond reasonable doubt that the alleged special qualifying circumstance of minority attended the commission of the crime of rape. Hence, accused-appellant should be convicted only of simple rape. Simple rape is punishable by a single indivisible penalty of reclusion perpetua. Article 63 of the Revised Penal Code provides that in ―all cases in which the law prescribes a single indivisible penalty, it shall be applied by

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the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.‖ Accordingly, the imposed indemnity and moral damages should be reduced to (P50,000.00) pursuant to our ruling in People v. Gonzales,535[28] that upon a finding of the fact of rape, the award of civil indemnity ex delicto is mandatory. If the death penalty is imposed, the indemnity should be P75,000.00; otherwise, the victim is entitled to P50,000.00. An additional P50,000.00 should be awarded as moral damages. Moral damages are automatically granted in rape cases without need of further proof other than the commission of the crime, because it is assumed that a rape victim has actually suffered moral injuries entitling her to such an award. Finally, the award of exemplary damages in the amount of P25,000.00 is in order. Exemplary damages may be awarded in criminal cases as part of civil liability if the crime was committed with one or more aggravating circumstances. Relationship as an alternative circumstance under Article 15 of the Revised Penal Code is considered aggravating in the crime of rape. In this case, victim AAA was raped by her own father. Accused-appellant admitted the allegation of such

relationship in his direct testimony. Hence, complainant is entitled to the award of exemplary damages in the amount of P25,000.00 in order to deter fathers with perverse tendencies and aberrant sexual behavior from preying upon their young daughters.536[29]

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WHEREFORE, the Decision dated June 30, 2006 of the CA is AFFIRMED with MODIFICATION in that accused-appellant is found GUILTY beyond reasonable doubt of SIMPLE RAPE and is sentenced to suffer the penalty of reclusion perpetua and to pay the victim AAA, indemnity ex delicto of P50,000.00, moral damages of P50,000.00 and exemplary damages of P25,000.00. pronouncement as to costs. SO ORDERED. TERESITA J. LEONARDO-DE CASTRO Associate Justice WE CONCUR: No

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice
(On Official Leave)

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES
Associate Justice

RENATO C. CORONA
Associate Justice

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ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO
Associate Justice

DANTE O. TINGA Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

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REYNATO S. PUNO Chief Justice

ILLNESS 1. People vs. Tampus Gr. No. 181084; June 16, 2009

FIRST DIVISION

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 181084

Present:

PUNO, C.J., Chairperson, versus CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ.

BARTOLOME TAMPUS537[1] and MONTESCLAROS,

IDA Promulgated:

Defendants.

IDA MONTESCLAROS, Appellant. June 16, 2009

X ---------------------------------------------------------------------------------------X

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DECISION

PUNO, C.J.:

On appeal is the decision538[2] of the Court of Appeals, Visayas Station, dated September 29, 2006 in CA-G.R. CR-HC No. 00215. The Court of Appeals affirmed, with modification, the decision539[3] of the Regional Trial Court of Lapu-lapu City in Criminal Case No. 013324-L, finding appellant Ida Montesclaros (Ida) guilty as an accomplice in the commission of rape. The present appeal stems from two criminal cases: (1) Criminal Case No. 013324-L charging Bartolome Tampus (Tampus) and Ida as conspirators in the rape of ABC540[4] on April 1, 1995 at 4:30 p.m.; and (2) Criminal Case No. 013325-L charging Tampus of raping ABC on April 4, 1995 at 1:00 a.m.

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The Information541[5] in each case reads as follows:

CRIM. CASE NO. 013324-L542[6] That on the 1st day of April 1995, at about 4:30 o‘clock [sic] in the afternoon, in Looc, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, accused Bartolome Tampus, taking advantage that [ABC] was in deep slumber due to drunkenness, did then and there willfully, unlawfully and feloniously have carnal knowledge with [sic] the latter, who was at that time thirteen (13) years old, against her will, in conspiracy with the accused Ida Montesclaros who gave permission to Bartolome Tampus to rape [ABC]. CONTRARY TO LAW.

CRIM. CASE NO. 013325-L543[7] That on the 3rd day of April, 1995,544[8] at about 1:00 o‘clock [sic] dawn, in Looc, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, armed with a wooden club (poras), by means of threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with [sic] [ABC], who was at that time thirteen (13) years old, against her will. CONTRARY TO LAW.

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The offended party, ABC, is the daughter of appellant Ida, and was 13 years old at the time of the incident. Ida worked as a waitress in Bayanihan Beer House in Mabini, Cebu City. On February 19, 1995, Ida and ABC started to rent a room in a house owned by Tampus, a barangay tanod. On April 1, 1995, about 4:30 p.m., ABC testified that she was in the house with Ida and Tampus545[9] who were both drinking beer at that time. They forced her to drink beer546[10] and after consuming three and one-half (3 ½) glasses of beer, she became intoxicated and very sleepy.547[11] While ABC was lying on the floor of their room, she overheard Tampus requesting her mother, Ida, that he be allowed to ―remedyo”548[12] or have sexual intercourse with her.549[13] Appellant Ida agreed and instructed Tampus to leave as soon as he finished having sexual intercourse with ABC. Ida then went to work, leaving Tampus alone with ABC. ABC fell asleep and when she woke up, she noticed that the garter of her panties was loose and rolled down to her knees. She suffered pain in her head, thighs, buttocks, groin and vagina, and noticed that her panties and short pants were

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stained with blood which was coming from her vagina.550[14] When her mother arrived home from work the following morning, she kept on crying but appellant Ida ignored her.551[15]

ABC testified that on April 4, 1995 around 1:00 a.m., she was left alone in the room since her mother was at work at the beer house.552[16] Tampus went inside their room and threatened to kill her if she would report the previous sexual assault to anyone.553[17] He then forcibly removed her panties. ABC shouted but Tampus covered her mouth and again threatened to kill her if she shouted.554[18] He undressed himself, spread ABC‘s legs, put saliva on his right hand and he applied this to her vagina; he then inserted his penis into ABC‘s vagina and made a push and pull movement.555[19] After consummating the sexual act, he left the

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house. When ABC told appellant Ida about the incident, the latter again ignored her.556[20]

On May 4, 1995, after being maltreated by her mother, ABC sought the help of her aunt, Nellie Montesclaros (Nellie). She told Nellie about the rape and that her mother sold her.557[21] ABC, together with Nellie and Norma Andales, a traffic enforcer, reported the incident of rape to the police. On May 9, 1995, Nestor A. Sator , M.D. (Dr. Sator), head of the Medico-Legal Branch of the Philippine National Crime Laboratory Services, Regional Unit 7, conducted a physical

examination of ABC and issued a Medico-Legal Report.558[22] Dr. Sator testified that the result of his examination of ABC revealed a deep healed laceration at the seven (7) o‘clock position and a shallow healed laceration at the one (1) o‘clock position on ABC‘s hymen.

On September 22, 1995, ABC filed two Complaints. She accused Tampus of taking advantage of her by having carnal knowledge of her, against her will, while she was intoxicated and sleeping on April 1, 1995 at 4:30 p.m. She declared in her Complaint that this was done in conspiracy with accused Ida who gave permission

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to Tampus to rape her. And again, she stated that on April 3, 1995, she was threatened with a wooden club by Tampus, who then succeeded in having sexual intercourse with her, against her will.

Tampus denied raping ABC on April 1, 1995. He claimed that at 4:00 p.m. of April 1, 1995, he left the house to go to the public market of Lapu-lapu City. When he arrived home at 6:00 p.m., ABC and Ida were not there as they usually go to the beer house at 4:00 p.m. or 5:00 p.m.559[23] He denied forcing ABC to drink beer. He also denied asking Ida to allow him to have sexual intercourse with ABC.560[24] Appellant Ida also testified that she and ABC left for the beer house at 4:00 p.m. of April 1, 1995 and they came back at 6:00 a.m. the following day.561[25] She said that she always brought her daughter to the beer house with her and there was never an instance when she left her daughter alone in the house.562[26] She denied forcing ABC to drink beer at 4:30 p.m. of April 1, 1995,

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and she denied giving permission to Tampus to have sexual intercourse with ABC.563[27]

Tampus also denied raping ABC on April 4, 1995. He testified that he arrived at the Barangay Tanod Headquarters between 7:00 p.m. and 8:00 p.m. of April 3, 1995564[28] and that his actual duty time shift was from midnight to 5:00 a.m. of April 4, 1995. Guillermo Berdin (Berdin), a defense witness, testified that on April 3, 1995, Tampus reported for duty at the police outpost at 8:00 p.m. and left at 5:00 a.m. of April 4, 1995, as reflected in the attendance logbook. However, on cross-examination, Berdin could not tell whether the signature appearing on the logbook really belonged to Tampus. It was noted by the trial court that the handwriting used by Tampus in the logbook entry on April 2, 1995 is different from his handwriting appearing on April 3, 1995.565[29] It was also revealed that the house of Tampus is just 500 meters away or just a three-minute walk from the barangay tanod outpost and that the barangay tanod on duty could leave the outpost unnoticed or without permission.566[30]

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Agustos B. Costas, M.D.567[31] (Dr. Costas), the Head of the Department of Psychiatry of the Vicente Sotto Memorial Medical Center, issued a Medical Certification,568[32] which showed that appellant Ida was treated as an outpatient at the Vicente Sotto Memorial Medical Center Psychiatry Department from November 11, 1994 to January 12, 1995 and was provisionally diagnosed with Schizophrenia, paranoid type. The trial court convicted Tampus of two counts of rape, as principal in Criminal Case No. 013324-L and Criminal Case No. 013325-L. Appellant Ida was found guilty as an accomplice in Criminal Case No. 013324-L. The trial court appreciated in Ida‘s favor the mitigating circumstance of illness which would diminish the exercise of will-power without depriving her of the consciousness of her acts, pursuant to Article 13(9) of the Revised Penal Code.569[33] The dispositive portion of the trial court‘s decision states, viz.:

WHEREFORE, in the light of the foregoing considerations, the Court finds accused Bartolome Tampus GUILTY BEYOND REASONABLE DOUBT of two counts of rape, as principals [sic], in Criminal Case No. 013324-L and Criminal Case

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No. 013325-L and he is hereby sentenced to suffer the penalty of Reclusion Perpetua in each of the aforementioned cases. The Court also finds accused Ida Montesclaros GUILTY BEYOND REASONABLE DOUBT as an accomplice in Criminal Case No. 013324-L, and she is hereby sentenced to suffer the penalty of twelve (12) years and one (1) day to fourteen (14) years, and eight (8) months of Reclusion Temporal. Both accused are hereby ordered, jointly and severally, to indemnify the offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L. With costs against the accused. SO ORDERED. 570[34]

Pending resolution of the appeal before the Court of Appeals, accused Tampus died on November 16, 2000571[35] and his appeal was dismissed by the Third Division of this Court.572[36] Thus, the appeal before the Court of Appeals dealt only with that of appellant Ida. The appellate court gave credence to the testimony of ABC and affirmed the trial court‘s decision with modification. It appreciated the mitigating circumstance of illness in favor of Ida, but found that Ida failed to prove that she was completely deprived of intelligence on April 1, 1995. On the basis of the medical report and the testimony of the attending physician, Ida‘s schizophrenia was determined by both the trial court an d the Court

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of Appeals to have diminished the exercise of her will-power though it did not deprive her of the consciousness of her acts. The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the instant appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with MODIFICATION. Appellant Ida Montesclaros is guilty beyond reasonable doubt as accomplice in the commission of rape and hereby sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum. Further, she is ORDERED to pay moral damages in the amount of fifty thousand pesos (Php 50,000.00) and exemplary damages in the amount of twenty-five thousand pesos (Php 25,000.00).573[37]

We find the findings of the lower courts to be well-taken.

The finding of guilt of Ida as an accomplice in the rape of ABC is dependent on proving the guilt of the principal accused. Upon examination of the records of the case, we agree with the ruling of the trial and appellate courts that the testimony of ABC is clear and straightforward, and is sufficient to conclude that Tampus is guilty beyond reasonable doubt as principal in the rape of ABC, in Criminal Case No. 013324-L, as well as to convict appellant Ida as an accomplice in the same criminal case.

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The findings of the trial courts carry great weight and respect and, generally, appellate courts will not overturn said findings unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case.574[38] The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals.575[39]

The trial court has carefully scrutinized the testimony of complainant ABC and has given full faith and credence to her testimony. Both the trial and appellate courts found that the rape of ABC by Tampus on April 1, 1995 has been established beyond reasonable doubt. Indeed, it is highly inconceivable for a young girl to impute the crime of rape, implicate her own mother in such a vile act, allow an examination of her private parts and subject herself to public trial if she has not been a victim of rape and was impelled to seek justice for the defilement of her person. Testimonies of child-victims are normally given full credit.576[40]

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Tampus was positively identified by ABC as the person who had carnal knowledge of her against her will on April 1, 1995. The denial of Tampus cannot prevail over the positive and direct identification by the victim, ABC. Although ABC was asleep and unconscious at the time the sexual debasement was committed by Tampus, circumstantial evidence established beyond doubt that it is Tampus who raped ABC. Circumstantial evidence is sufficient for conviction if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.577[41] In cases like the one at bar, the Court takes into consideration the events that transpired before and after the victim lost consciousness in order to establish the commission of the act of coitus.578[42]

The trial court correctly determined, thus:

The prosecution has clearly established by its evidence that accused Bartolome Tampus had carnal knowledge of [ABC] on April 1, 1995 under the circumstance set forth in Article 335 (2) of the Revised Penal Code, as amended; that is, when the woman is deprived of reason or otherwise unconscious. xxxx The Court cannot accept accused Bartolome Tampus‘ defense of denial and alibi. His denial pales in effect against the positive evidence given by [ABC] that he ravished her [on] two occasions.

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xxxx It is true that in the first incident on April 1, 1995, [ABC] did not see Tampus lie down with her. What she saw was the aftermath of her deflowering upon waking up. Nevertheless, the Court has taken note of the following circumstances: (1) The drinking session where the complainant was forced to drink beer by both accused; (2) The conversation between the two accused when accused Tampus requested accused Ida Montesclaros, and was granted by the latter, permission to have sexual intercourse with the complainant; (3) Accused Tampus and the complainant were the only persons left in the house when Ida Montesclaros went to work after acceding to the request of Tampus; (4) The bloodstained pants, the pain and blood in complainant‘s vagina and the pain in her head, groin and buttocks; (5) The threat made by accused Tampus on the complainant in the dawn of April 4, 1995 that he would kill her if she would tell about the previous incident on April 1, 1995; and (6) The second incident of rape that immediately ensued. These circumstances form a chain that points to accused Bartolome Tampus as the person who had carnal knowledge of [ABC] when she was asleep in an inebriated condition. 579[43]

After establishing the guilt of Tampus as principal, the trial court then determined the guilt of Ida. Although Ida was charged as a conspirator, the trial court found her liable as an accomplice. The trial court ruled that her act of forcing or intimidating ABC to drink beer and then acceding to the request of co-accused Tampus to be allowed to have sexual intercourse with ABC did not prove their conspiracy.580[44] Hence, it held that, ―[u]ndoubtedly, Ida Montesclaros participated in the commission of the crime by previous acts but her participation,

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not being indispensable, was not that of a principal. She is liable as an accomplice.‖581[45]

In her appeal, appellant Ida argued that it is against human nature for a mother to allow her daughter to be raped. She maintained that there was no instance when she left ABC alone in the house. The Court of Appeals dismissed appellant Ida‘s appeal as it also gave credence to the testimony of ABC.

In her appeal brief filed before this Court, Ida raises the following assignment of errors:
I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BARTOLOME TAMPUS OF THE CRIMES OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II THE TRIAL COURT ERRED IN CONVICTING IDA MONTESCLAROS AS ACCOMPLICE TO THE CRIME OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.582[46]

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We affirm the trial and appellate courts in ruling that Ida is liable as an accomplice in the rape of her daughter, ABC.

Accomplices are persons who, not being included in Article 17 of the Revised Penal Code, cooperate in the execution of the offense by previous or simultaneous acts.583[47] The following requisites must be proved in order that a person can be considered an accomplice:

(a) community of design, i.e., knowing that criminal design of the principal by direct participation, he concurs with the latter in his purpose; (b) he cooperates in the execution of the offense by previous or simultaneous acts; and, (c) there must be a relation between the acts done by the principal and those attributed to the person charged as accomplice.584[48]

The testimony of ABC establishes that Ida cooperated in the execution of the rape by Tampus when prior to the act of rape by Tampus, she forced ABC to drink beer and she agreed to Tampus‘ request for him to have sexual intercourse with ABC. Ida‘s acts show that she had knowledge of and even gave her permission to the plan of Tampus to have sexual intercourse with her daughter.

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During the cross-examination by the defense counsel, Atty. Paulito Cabrera, of witness ABC, she testified that:

Q A

Before this date, April 1, 1995, did you already usually drink beer? No, sir.

Q So, you are telling the Honorable Court that it was only on April 1, 1995 that you first drank beer? A Q A Q A Yes, sir. What did you say, you were forced to drink beer? Yes, sir. Who forced you to drink beer in that afternoon of April 1, 1995? Bartolome Tampus and ―Nanay‖, my mother.585[49] xxxx Q A By the way, your mother proposed to you to drink beer? Yes, sir.

Q Before you concede to her proposition, did you not complain that you had not been used to drinking beer and then, why suddenly, she would let you drink beer at that time? A No, sir.

Q Did you not tell her that, ―I am not used to drinking beer, so, I would not drink beer‖?

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A Q A Q A

Because the beer was mixed with Coke. So, you mean that you also agreed to drink beer at that time? I just agreed to the proposal of my mother. But you never voiced any complaint or any refusal to her at that time? No, sir because I was afraid that she might maltreat me.

Q At that time when she proposed to you to drink beer, was she already threatening to maltreat you if you would not drink that beer? A Not yet.

Q And how were you able to conclude that she might maltreat you if you would not drink that beer that she proposed for you to drink? A Q you? A Because ―Nanay‖ stared at me sharply and she had a wooden stick prepared. Are you sure that she was doing that while she was offering the glass of beer to

Yes, sir.586[50] xxxx

Q While you were drinking beer, your mother and Bartolome went out of the house and you overheard Bartolome asking or proposing to your mother that he would have sexual intercourse with you which you term in the Visayan dialect ―remedyo‖, Bartolome would want to have a ―remedyo‖ with you. When [sic], particular moment did you allegedly hear this statement, while you were drinking beer or after you had finished drinking beer? A When I was already lying on the floor of the room we were renting.587[51] xxxx

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Q And, of course, as you have stated now, it was you, you were quite sure that it was you who was being referred by Bartolome Tampus when he said to your mother in the Visayan dialect that ―gusto siya moremedyo nimo‖, he wants to have sexual intercourse with you? A Q A Yes, sir, but I don‘t know the meaning of ―remedyo‖. At that time, you did not know the meaning of ―remedyo"? Not yet, sir.588[52] xxxx Q A Was that the very first time that you ever heard of the word ―remedyo"? Yes, sir589[53] xxxx Q And when your mother came back from work at about 7:00 o‘clock [sic] in the morning of April 2, 1995, did you not also bother to tell her of what you suspected that something serious or bad had happened to you in the previous day? A Q Because she already knew, sir. How did you know that she already knew?

A Because I heard her telling Omeng,590[54] ―After you have sexual intercourse with her, leave her immediately!‖591[55] xxxx

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Q Considering that you never knew what is the meaning of the word, ―remedyo‖, when your mother arrived in the morning of April 2, 1995, did you not confront your mother, did you not tell her that, ―Is this what you mean by ―remedyo‖, as what you had agreed with Bartolome Tampus that he would do something to my genitals? A No sir, because when she arrived, she kept on laughing.592[56]

All the requisites concur in order to find Ida guilty as an accomplice to Tampus in the rape of ABC. The testimony of ABC shows that there was community of design between Ida and Tampus to commit the rape of ABC. Ida had knowledge of and assented to Tampus‘ intention to have sexual intercourse with her daughter. She forced ABC to drink beer, and when ABC was already drunk, she left ABC alone with Tampus, with the knowledge and even with her express consent to Tampus‘ plan to have sexual intercourse with her daughter.

It is settled jurisprudence that the previous acts of cooperation by the accomplice should not be indispensable to the commission of the crime; otherwise, she would be liable as a principal by indispensable cooperation. The evidence shows that the acts of cooperation by Ida are not indispensable to the commission of rape by Tampus. First, because it was both Ida and Tampus who forced ABC to drink beer, and second because Tampus already had the intention to have sexual intercourse with ABC and he could have consummated the act even without Ida‘s consent.

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The acts of Ida are closely related to the eventual commission of rape by Tampus. They both forced ABC to drink beer; when ABC was already drunk, Tampus asked Ida if he could have sexual intercourse with ABC and Ida gave her consent; and lastly, Ida left ABC alone with Tampus so that he proceed with his plan to rape ABC.

Circumstances affecting the liability of the Appellant as an Accomplice

We agree with both the trial and appellate courts in their appreciation of the mitigating circumstance of illness as would diminish the exercise of willpower of Ida without depriving her of the consciousness of her acts, pursuant to Article 13(9) of the Revised Penal Code.

Dr. Costas testified that Ida was provisionally treated for schizophrenia a few months before the incident, from November 11, 1994 to January 12, 1995. Based on his expert opinion, Ida was not totally deprived of intelligence at the time of the incident; but, she may have poor judgment. On Direct Examination of Dr. Costas by City Prosecutor Celso V. Espinosa, he testified as follows:

Q Doctor, taking into consideration your diagnosis, as you said, is provisional, would you say that the patient [sic] totally deprived of intelligence or reason? A Q Not totally. She will be conscious of her acts?

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A Q A

She may be, that is possible, for certain cause. And there will be loss of intelligence? There could be.

Q Now, Doctor, she is charged her [sic] as one of the principals in the commission of the crime of rape for having given her daughter to be sexually abused by her coaccused, allegedly convinced by her co-accused on the first day of April, 1995. Now, if she was then under treatment, Doctor, from November 11, 1994 to January 12, 1995, would you say, Doctor, that having taken this diagnosis for [sic] schizophrenic patient, at the time, after January 12, 1995, she must have acted with discernment? A It is possible because you are this kind of mental illness even with the treatment, and even without any medication, it may be what we called spontaneous, really it will get back. Q A At that time it will loss the intelligence? [sic] I think because it might be back, the treatment should be yearly.

Q Doctor, in your opinion, since our office is very much concern [sic] on this, if a person is totally deprived of intelligence, he has still discernment, she is unconscious of her act, she or he may be exempted from any criminal liability, please tell, Doctor, in your personal opinion for the purpose of this proceedings she may be acting with discernment and with certain degree of intelligence? A It is possible but I think of a mother feeding her own daughter to somebody, I think there is a motive, she wants to gain financial or material things from the daughter if no material gain, then perhaps it was borne out of her illness. This is my opinion.593[57] xxxx Q Doctor, is this schizophrenic person can distinguish the right or wrong? [sic]

A If they are in the [sic] state of illness, judgment is impaired to discern between right or wrong. Q In the case of this particular accused, what would you say at the state of her ailment? A When she was brought to the hospital, Your Honor, I think, although the mother alleged that the sickness could be more than one year duration, it is in acute stage because

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she was allegedly destroying everything in the house according to the mother, so she was in acute stage.594[58]

On cross-examination by Atty. Paulito Cabrera, Dr. Costas testified thus:
Q Would you say, Doctor, that that particular ailment of Ida Montesclaros affected her sense of judgment? A I think, so.

Q And that being scizophronic [sic] somehow, it has, while in that stage, the patient lost contact with reality? A Yes, that is possible.

Q In your opinion, Doctor, granting, for the sake of argument, the alleged accusation against her is true, being an expert on scizophrania, could you tell the Honorable Court as a mother, who would allegedly do such an offense to her daughter, is it still in her sound mind or proper mental sane [sic]? A I think, as I said, one thing to be considered is the motivation if she want [sic] to gain some material things, if not, it is because of her judgment. Q If she would not gain anything from allowing her daughter allegedly to be rubbished by another person, then there must be something wrong? A A There must be something wrong and it came up from scizpphrania. It is the judgment, in the case of the schizophrenic.595[59]

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We have previously held that Schizophrenia may be considered mitigating under Art. 13(9) if it diminishes the exercise of the willpower of the accused.596[60] In this case, the testimony of Dr. Costas shows that even though Ida was diagnosed with schizophrenia, she was not totally deprived of intelligence but her judgment was affected. Thus, on the basis of the Medical Certification that Ida suffered from and was treated for schizophrenia a few months prior to the incident, and on the testimony of Dr. Costas, Ida‘s schizophrenia could be considered to have diminished the exercise of her willpower although it did not deprive her of the consciousness of her acts.

We note that in the case at bar, the undisputed fact that Ida is the mother of ABC—who was 13 years old at the time of the incident—could have been

considered as a special qualifying circumstance which would have increased the imposable penalty to death, under Article 266-B of the Revised Penal Code, viz.:

ARTICLE 266-B.

Penalties. — xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;

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xxxx

Both the circumstances of the minority and the relationship of the offender to the victim, either as the victim‘s parent, ascendant, step -parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim, must be alleged in the information and proved during the trial in order for them to serve as qualifying circumstances under Article 266-B of the Revised Penal Code.597[61]

In the case at bar, although the victim's minority was alleged and established, her relationship with the accused as the latter's daughter was not properly alleged in the Information, and even though this was proven during trial and not refuted by the accused, it cannot be considered as a special qualifying circumstance that would serve to increase the penalty of the offender. Under the 2000 Rules of Criminal Procedure, which should be given retroactive effect following the rule that statutes governing court proceedings will be construed as applicable to actions pending and undetermined at the time of their passage,598[62] every Information must state the qualifying and the aggravating circumstances attending the commission of the crime for them to be considered in the imposition of the penalty.599[63] Since in

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the case at bar, the Information in Criminal Case No. 013324-L did not state that Ida is the mother of ABC, this circumstance could not be appreciated as a special qualifying circumstance. Ida may only be convicted as an accomplice in the crime of simple rape, which is punishable by reclusion perpetua. In any event, Republic Act No. 9346, entitled an "An Act Prohibiting the Imposition of Death Penalty in the Philippines,‖ which was signed into law on June 24, 2006 prohibits the imposition of the death penalty.

Civil indemnity imposed against the appellant

The dispositive portion of the trial court's decision ordered Tampus and Ida "jointly and severally, to indemnify the offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L."600[64] The Court of Appeals, however, did not award any civil indemnity to ABC, and only awarded moral and exemplary damages. We deem it necessary and proper to award ABC civil indemnity of P50,000.00. Civil indemnity ex delicto is mandatory upon finding of the fact of rape. This is distinct from moral damages awarded upon such finding without need of further proof, because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award.601[65]

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Consistent with prevailing jurisprudence, the victim in simple rape cases is entitled to an award of P50,000.00 as civil indemnity ex delicto and another P50,000.00 as moral damages. 602[66] However, Tampus‘ civil indemnity ex delicto has been extinguished by reason of his death before the final judgment, in accordance with Article 89 of the Revised Penal Code.603[67] Thus, the amount of civil indemnity which remains for accomplice Ida to pay is put at issue.

It becomes relevant to determine the particular amount for which each accused is liable when they have different degrees of responsibility in the commission of the crime and, consequently, differing degrees of liability. When a crime is committed by many, each one has a distinct part in the commission of the crime and though all the persons who took part in the commission of the crime are liable, the liability is not equally shared among them. Hence, an accused may be liable either as principal, accomplice or accessory.

The particular liability that each accused is responsible for depends on the nature and degree of his participation in the commission of the crime. The penalty

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prescribed by the Revised Penal Code for a particular crime is imposed upon the principal in a consummated felony.604[68] The accomplice is only given the penalty next lower in degree than that prescribed by the law for the crime committed605[69] and an accessory is given the penalty lower by two degrees.606[70] However, a felon is not only criminally liable, he is likewise civilly liable. 607[71] Apart from the penalty of imprisonment imposed on him, he is also ordered to indemnify the victim and to make whole the damage caused by his act or omission through the payment of civil indemnity and damages.

Civil liability arising from the crime is shared by all the accused. Although, unlike criminal liability—in which the Revised Penal Code specifically states the corresponding penalty imposed on the principal, accomplice and accessory—the share of each accused in the civil liability is not specified in the Revised Penal Code. The courts have the discretion to determine the apportionment of the civil indemnity which the principal, accomplice and accessory are respectively liable for, without guidelines with respect to the basis of the allotment.

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Article 109 of the Revised Penal Code provides that ―[i]f there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond.‖ Notwithstanding the determination of the respective liability of the principals, accomplices and accessories within their respective class, they shall also be subsidiarily liable for the amount of civil liability adjudged in the other classes. Article 110 of the Revised Penal Code provides that ―[t]he principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiarily for those of the other persons liable.‖608[72]

As courts are given a free hand in determining the apportionment of civil liability, previous decisions dealing with this matter have been grossly inconsistent.

In People v. Galapin,609[73] People v. Continente,610[74] United States v. Lasada,611[75] People v. Mobe,612[76] People v. Irinea,613[77] People v.

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Rillorta,614[78] People v. Cagalingan,615[79] People v. Villanueva,616[80] People v. Magno,617[81] People v. del Rosario,618[82] People v. Yrat,619[83] People v. Saul,620[84] and People v. Tamayo,621[85] the principal and

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accomplice were ordered to pay jointly and severally the entire amount of the civil indemnity awarded to the victim. In People v. Sotto,622[86] the accomplice was ordered to pay half of the amount of civil indemnity imposed by the trial court, while the principal was liable for the other half. In People v. Toring,623[87] the principal, accomplice and the accessory were made jointly and severally liable for the entire amount of the civil indemnity.

In the cases mentioned above, the principal and accomplice were made to pay equal shares of the civil indemnity. This makes the accomplice who had less participation in the commission of the crime equally liable with the principal for the civil indemnity. The degree of their participation in the crime was not taken into account in the apportionment of the amount of the civil indemnity. This is contrary to the principle behind the treble division of persons criminally responsible for felonies, i.e., that the liability must be commensurate with the degree of participation of the accused in the crime committed. In such a situation, the accomplice who just cooperated in the execution of the offense but whose participation is not indispensable to the commission of the crime is made to pay the same amount of civil indemnity as the principal by direct participation who took a direct part in the execution of the criminal act. It is an injustice when the penalty and liability imposed are not commensurate to the actual responsibility of the offender; for criminal responsibility is individual and not collective, and each of

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the participants should be liable only for the acts actually committed by him.624[88] The proportion of this individual liability must be graduated not only according to the nature of the crime committed and the circumstances attending it, but also the degree and nature of participation of the individual offender.

In Garces v. People,625[89] People v. Flores,626[90] People v. Barbosa,627[91] People v. Ragundiaz,628[92] People v. Bato,629[93] and People v. Garalde,630[94] the accomplice was held to be solidarily liable with the principal for only one-half (1/2) of the amount adjudged as civil indemnity. In Garces, the accomplice was held solidarily liable for half of the civil indemnity ex

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delicto but was made to pay the moral damages of P50,000.00 separately from the principal. In Flores, Ragundiaz, Bato, and Garalde, the accomplice was held solidarily liable for half of the combined amounts of the civil indemnity ex delicto and moral damages. In Ragundiaz, the accomplice was also made solidarily liable with the principal for half of the actual damages, and in Garalde the accomplice was also held solidarily liable with the principal for half of the exemplary damages, aside from the civil and moral damages.

In these cases, the accomplice was made jointly and severally liable with the principal for only half of the amount of the civil indemnity and moral damages, only for purposes of the enforcement of the payment of civil indemnity to the offended party. When the liability in solidum has been enforced, as when payment has been made, the person by whom payment has been made shall have a right of action against the other persons liable for the amount of their respective shares.631[95] As against each other, whoever made the payment may claim from his co-debtors only the share that corresponds to each, with interest for the payment already made.632[96] In these cases, therefore, payment is made by either the principal or the accomplice, the one who made the payment to the victim could demand payment of the part of the debt corresponding to his co-debtor. If for example the principal paid the victim the entire amount of the civil indemnity, he could go against the accomplice for one-fourth (1/4) of the total amount of civil

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indemnity and damages. The principal was primarily liable for only one-half (1/2) of the total amount of civil indemnity and he was solidarily liable with the accomplice for the other half. Since the principal paid for the half which the accomplice is solidarily liable with, he could claim one-half (1/2) of that amount from the accomplice. Thus, the principal would have become ultimately liable for three-fourths (3/4) of the total amount of the civil indemnity and damages, while the accomplice would have become liable for one-fourth (1/4) of such amount. In People v. Cortes,633[97] People v. Budol,634[98] People v. Nulla,635[99] and People v. Madali,636[100] the principal was ordered to pay twice the share of the accomplice in the civil indemnity. In Nulla, the Court determined the respective amounts for which the principal, accomplice and accessory were liable for. The principal was ordered to pay P20,000.00, the accomplice was ordered to pay P10,000.00, and the accessory was ordered to pay P2,000.00. Unlike the cases cited above where the principal and accomplice were held solidarily liable for the entire amount of the civil indemnity or half of it, in Nulla, the court particularly determined the amount for which each shall respond. This is consistent with Article 109 and Article 110 of the Revised Penal Code,

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which require that the courts should determine the amount for which the principals, accomplices and accessories must respond to and upon specifying this amount, the principals are solidarily liable within their class for their quota, the accomplices are solidarily liable among themselves for their quota and the accessories are solidarily liable for their quota. If any one of the classes is unable to pay for its respective quota, it becomes subsidiarily liable for the quota of the other classes, which shall be enforced first against the property of the principals; next, against that of the accomplices; and lastly, against that of the accessories.637[101]

There are also cases where the principal was ordered to pay more than double the amount that the accomplice is liable for. In Lumiguis v. People,638[102] the civil liability of P6,000.00 was apportioned as follows: the sole principal was primarily liable for P3,000.00, the four accomplices were primarily liable in solidum among themselves for the other half of the indemnity, or P3,000.00. Thus, each accomplice was answerable for one-fourth (1/4) of P3,000.00 or one-eighth (1/8) of the entire amount of civil indemnity, which is P750.00.

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Similarly in People v. Bantagan,639[103] the principal was required to indemnify the heirs of the deceased in the amount of P500.00. In case of his insolvency, his three accomplices should be jointly and severally liable. The three accomplices were jointly and severally liable for the other P500 and in case of their insolvency the principal was secondarily liable for such amount.

In People v. Castillo,640[104] the accomplice was ordered to pay onefourth (1/4) of the amount of the civil indemnity, while the principal was liable for the remaining three-fourths (3/4).

In People v. Cariaga,641[105] the total amount of indemnity and damages due to the heirs of the victim amounted to P601,000.00. The sole accomplice was ordered to pay P101,000.00 which is roughly one-sixth (1/6) of the entire civil indemnity, while the two principals were ordered to pay the rest of the indemnity and damages amounting to P500,000.00.

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The cases cited above demonstrate the ad hoc method by which the ratio of shares of the civil indemnity and damages among the principal, accomplice and accessory is determined. Though the responsibility to decide the respective shares of persons liable for a felony is left to the courts, this does not mean that this amount can be decided arbitrarily or upon conjecture. The power of the courts to grant indemnity and damages demands factual, legal and equitable justification, and cannot be left to speculation and caprice.

The entire amount of the civil indemnity, together with the moral and actual damages, should be apportioned among the persons who cooperated in the commission of the crime according to the degree of their liability, respective responsibilities and actual participation in the criminal act. Salvador Viada, an authority in criminal law, is of the opinion that there are no fixed rules which are applicable in all cases in order to determine the apportionment of civil liability among two or more persons civilly liable for a felony, either because there are different degrees of culpability of offenders, or because of the inequality of their financial capabilities.642[106] On this note, he states in his commentaries on the 1870 Penal Code of Spain that the law should leave the determination of the amount of respective liabilities to the discretion of the courts.643[107] The courts have the competence to determine the exact participation of the principal, accomplice, and accessory in the commission of the crime relative to the other

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classes because they are able to directly consider the evidence presented and the unique opportunity to observe the witnesses.

We must stress, however, that the courts‘ discretion should not be untrammelled and must be guided by the principle behind differing liabilities for persons with varying roles in the commission of the crime. The person with greater participation in the commission of the crime should have a greater share in the civil liability than those who played a minor role in the crime or those who had no participation in the crime but merely profited from its effects. Each principal should shoulder a greater share in the total amount of indemnity and damages than every accomplice, and each accomplice should also be liable for a greater amount as against every accessory. Care should also be taken in considering the number of principals versus that of accomplices and accessories. If for instance, there are four principals and only one accomplice and the total of the civil indemnity and damages is P6,000.00, the court cannot assign two-thirds (2/3) of the indemnity and damages to the principals and one-third (1/3) to the accomplice. Even though the principals, as a class, have a greater share in the liability as against the accomplice-- since one-third (1/3) of P6,000.00 is P2,000.00, while two-thirds (2/3) of P6,000.00 is P4,000.00-- when the civil liability of every person is

computed, the share of the accomplice ends up to be greater than that of each principal. This is so because the two-thirds (2/3) share of the principals—or P4,000.00—is still divided among all the four principals, and thus every principal is liable for only P1,000.00.

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In the case at bar, the trial court ruled that the accomplice is solidarily liable with the principal for the entire amount of the civil indemnity of P50,000.00. This is an erroneous apportionment of the civil indemnity. First, because it does not take into account the difference in the nature and degree of participation between the principal, Tampus, versus the accomplice, Ida. Ida‘s previous acts of cooperation include her acts of forcing ABC to drink beer and permitting Tampus to have sexual intercourse with her daughter. But even without these acts, Tampus could have still raped ABC. It was Tampus, the principal by direct participation, who should have the greater liability, not only in terms of criminal liability, but also with respect to civil liability. Second, Article 110 of the Revised Penal Code states that the apportionment should provide for a quota amount for every class for which members of such class are solidarily liable within their respective class, and they are only subsidiarily liable for the share of the other classes. The Revised Penal Code does not provide for solidary liability among the different classes, as was held by the trial court in the case at bar.

Thus, taking into consideration the difference in participation of the principal and accomplice, the principal, Tampus, should be liable for two-thirds (2/3) of the total amount of the civil indemnity and moral damages and appellant Ida should be ordered to pay one-third (1/3) of the amount. Civil indemnity for simple rape was correctly set at P50,000.00 and moral damages at P50,000.00. The total amount of damages to be divided between Tampus and Ida is P100,000.00, where Tampus is liable for P66,666.67 (which is two-thirds [2/3] of P100,000.00) and Ida is liable for P33,333.33 (which is one-third [1/3] of P100,000.00). This is broken down into civil indemnity of P16,666.67 and moral damages of P16,666.67. However, since the principal, Tampus, died while the case was
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pending in the Court of Appeals, his liability for civil indemnity ex delicto is extinguished by reason of his death before the final judgment.644[108] His share in the civil indemnity and damages cannot be passed over to the accomplice, Ida, because Tampus‘ share of the civil liability has been extinguished. And even if Tampus were alive upon the promulgation of this decision, Ida would only have been subsidiarily liable for his share of the civil indemnity of P66,666.67. However, since Tampus‘ civil liability ex delicto is extinguished, Ida‘s subsidiary liability with respect to this amount is also eliminated, following the principle that the accessory follows the principal. Tampus‘ obligation to pay P66,666.67 — his quota of the civil indemnity — is the principal obligation, for which Ida is only subsidiarily liable. Upon the extinguishment of the principal obligation, there is no longer any accessory obligation which could attach to it; thus, the subsidiary liability of Ida is also extinguished.

On the matter of exemplary damages, we find that exemplary damages were incorrectly awarded by the Court of Appeals.

In criminal cases, exemplary damages are imposed on the offender as part of the civil liability when the crime was committed with one or more aggravating circumstances.645[109] Also known as "punitive" or "vindictive" damages,

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exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.646[110] Exemplary damages may be awarded only when one or more aggravating circumstances are alleged in the information and proved during the trial.647[111]

In the case at bar, no qualifying or aggravating circumstance was appreciated against Ida. Although, the minority of the victim coupled with the fact that the offender is the parent of the victim could have served to qualify the crime of rape, the presence of these concurring circumstances cannot justify the award of exemplary damages since the relationship of the offender, Ida, to the victim, ABC, was not alleged in the Information.648[112] The minority of the rape victim and her relationship with the offender must both be alleged in the information and proved during the trial in order to be appreciated as an aggravating/qualifying circumstance.649[113] While the information in the instant case alleged that ABC was a minor during the incident, there was no allegation that Ida was her parent.

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Since the relationship between ABC and appellant was not duly established, the award of exemplary damages is not warranted.

IN VIEW WHEREOF, the Decision of the Court of Appeals, Visayas Station, dated September 29, 2006, in CA-G.R. CR-HC No. 00215, finding appellant Ida Montesclaros guilty beyond reasonable doubt as accomplice in the crime of rape and sentencing her to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, is AFFIRMED with

MODIFICATION. Appellant Ida Montesclaros is ORDERED to pay civil indemnity in the amount of sixteen thousand, six hundred sixty-six pesos and sixtyseven centavos (P16,666.67), and moral damages in the amount of sixteen thousand, six hundred sixty-six pesos and sixty-seven centavos (P16,666.67). The award of exemplary damages is DELETED. SO ORDERED.

REYNATO S. PUNO Chief Justice

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WE CONCUR:

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

LUCAS P. BERSAMIN Associate Justice

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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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2. People vs. Banez Gr. No. 125849; January 20, 1999
EN BANC

[G.R. No. 125849. January 20, 1999]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO BAÑEZ y CABAEL, alias ―WILLY,‖ accused-appellant. DECISION MENDOZA, J.: Before the Court for review is the decision,i[1] dated August 9, 1996, of Branch 46 of the Regional Trial Court at Urdaneta, Pangasinan finding accused-appellant Wilfredo C. Bañez guilty beyond reasonable doubt of parricide for the killing of his father, Bernardo P. Bañez, and sentencing him to suffer the penalty of death. In addition, the trial court ordered accusedappellant to indemnify the heirs of his father in the amount of P50,000.00 and to pay the costs. The informationii[2] against accused-appellant, dated October 27, 1994, alleged  That on or about the 14th day of August, 1994 at barangay San Vicente, municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the abovenamed accused with intent to kill and with treachery, did then and there, willfully, unlawfully and feloniously attack, assault and stab several times his father, Bernardo Bañez y Padilla, with the use of a bladed weapon, hitting said victim in the vital parts of his body which caused his instantaneous death and to the damage and prejudice of his heirs. CONTRARY to Art. 246, Revised Penal Code. The facts of the case are as follows: Accused-appellant Wilfredo Bañez was living in his parents‘ house in Barangay San Vicente East, Urdaneta, Pangasinan. On August 14, 1994, his sisters, Elvira Bañez-Bustamante and Emelinda Bañez-Antiado, came to the house because their father, Bernardo P. Bañez, complained that accused-appellant made trouble whenever he was drunk. The elder Bañez wanted to put up accused-appellant in another house or sleeping quarters.iii[3]
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Elvira testified that, in the evening of August 14, 1994, she and her sister Emelinda discussed with their father the latter‘s plan for accused-appellant. After a while, she said, when her father went to his room, accused-appellant, who looked drunk because he was red in the face, ran to the kitchen and got two (2) knives and then went inside their father‘s room. Emelinda followed accused-appellant inside the room. Elvira then heard Emelinda scream. When Elvira went inside the room, she saw accused-appellant stabbing her father saying, ―Pinalalayas mo ako!‖ (―You are sending me away!‖). The elder Bañez fell in a sitting position at a corner of the room. Elvira said she tried to stop accused-appellant from inflicting further injuries on her father, even as she pleaded with him that ―He is our father.‖ But as Elvira tried to take the knives from accused-appellant, the latter lunged at her and stabbed her, hitting her on the right hand, forearm, and buttock. Emelinda tried to stop accused-appellant by throwing a piece of wood at him, but accused-appellant turned to Emelinda and said to her: ―You are also one.‖ Emelinda was so frightened she ran to Elvira‘s house, about 25 meters away from their father‘s house. As accused-appellant chased Emelinda, Elvira locked herself inside her father‘s house and stayed there until three (3) helpers from their poultry farm and their maid arrived. She asked them for help to take her father to the hospital, but accused-appellant came back and threatened them with harm. It was only much later, after accused-appellant had left again, that she was finally able to get help to take her father to the Sacred Heart Hospital in Urdaneta, Pangasinan. By then, however, her father was already dead. Elvira herself was treated for her injuries.iv[4] On cross-examination, Elvira stated that accused-appellant had been staying in their father‘s house for four (4) years after accused-appellant separated from his wife; that in 1988 accusedappellant was confined at the Bicutan Rehabilitation Center in Taguig, Metro Manila for addiction to gasoline; that he had been discharged from the same a long time ago, although she could not remember the year he was discharged; that accused-appellant had not shown any indication that he was crazy although he was also treated at the Baguio General Hospital for addiction to gasoline.v[5] The autopsy reportvi[6] showed that the victim suffered ten (10) stab wounds on various parts of his body, to wit: SIGNIFICANT EXTERNAL FINDINGS: - Stab wound, chest anterior wall, middle sternal area, lunate, 4x1 1/2 x 10 cm. - Stab wound chest anterior wall, left lunate 4x 1/2 x5 1/2 cm. - Stab wound, abdomen left hypochondrium lunate 5x3x9 cm. - Stab wound abdomen left iliac, lunate 4x9x10. - Stab wound chest anterior wall, right lunate, 4x1/2x1/2 cm. - Stab wound chest anterior wall, right lunate 7x1x9 cm. - Stab wound abdomen, right near midline lunate 5x7x10 cm.
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- Stab wound abdomen center lunate 4x1/2x10 cm. - Stab wound right arm, lunate 5x1 1/2 cm. anterior aspect thru and thru to post aspect. - Stab wound right thigh, lunate 4x1/2 x 3 cm. SIGNIFICANT INTERNAL FINDINGS: - 50-75 cc. blood at pericardial sac. - Stab wound, heart. CAUSE OF DEATH: Cardiac tamponade due to stab wound, heart. A plea of insanity was made by the defense in behalf of accused-appellant. Dr. Rico Angelo Gerona III and Marina Cabael-Bañez, the mother of accused-appellant, were presented in support of such plea. Accused-appellant did not testify. Dr. Gerona III, Medical Officer III of the National Center for Mental Health, Mandaluyong City, testified that accused-appellant was admitted to the hospital on September 3, 1994, twenty (20) days after the commission of the crime on August 14, 1994. He said accused-appellant was suffering from schizophrenia, which he described as a mental disorder characterized by thought disturbances, hallucination, suspiciousness, and deterioration in areas of work, social relations, and self-care. He stated that schizophrenia is generally caused by genetic predisposition, use of substances, and stress and that inhaling or sniffing gasoline and alcoholism may also result in this kind of mental illness. He said that in the case of accused-appellant, schizophrenia could have been caused by addiction to gasoline or by family problems. But he could not say whether at the time of the commission of the crime accused-appellant was insane. His diagnosis that accused-appellant was suffering from schizophrenia ―may be 99% correct or 1% wrong.‖vii[7] He also stated that the writing on the notebook made by accused-appellant prior to August 14, 1994 was not conclusive that he was insane at the time of the killing or immediately prior thereto.viii[8] Dr. Gerona III testified that accused-appellant admitted the killing and said this was because his father wanted to throw him out of their house to make room for a new helper. He said that accused-appellant was remorseful and hoped that he would be forgiven.ix[9] On cross-examination,x[10] Dr. Gerona III stated that taking shabu and inhaling gasoline produce the same results as schizophrenia, i.e., hallucination and dilation of the eyes; that it takes at least six (6) months of inhaling gasoline to develop schizophrenia and that a person who suffers from schizophrenia would not remember any violent act he may have committed. Marina Gabel-Bañez, mother of accused-appellant, testified that, long before the incident on August 14, 1994, accused-appellant had been confined for more than a year at the Bicutan
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Rehabilitation Center for addiction to gasoline; that after his release, accused-appellant stayed in his father‘s house where he worked as helper in the poultry farm; that accused-appellant was also treated at the Baguio General Hospital in 1987 although he was not confined there; and that, after killing his father, accused-appellant was confined at the Mandaluyong mental hospital for treatment.xi[11] On cross-examination,xii[12] she told the court that, since 1979, she had been separated from her husband because the latter lived with another woman with whom he has two (2) children; that because of this, she went to Spain in 1979 to work and did not return to the Philippines until 1981; that accused-appellant was addicted to gasoline; that in 1987 she took accused-appellant to the Baguio General Hospital for treatment; that she thought her son had already been cured but not long after, accused-appellant‘s wife, Apolonia Reboalos, left him. According to her, her son blamed his in-laws for his marital troubles. Accused-appellant resorted to gasoline sniffing again to forget his problems. When asked by the trial court whether accused-appellant was a drunkard, she answered, ―No, he drinks liquor only when offered.‖ On August 9, 1996, the trial court rendered a decision finding accused-appellant guilty of parricide with the aggravating circumstances of dwelling and habitual intoxication and sentencing him to suffer the penalty of death. It ruled that the defense of insanity had not been sufficiently proven. Accused-appellant seeks the reversal of the trial court‘s decision on the following grounds:xiii[13] I THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE EXEMPTING CIRCUMSTANCE OF INSANITY INTERPOSED BY THE ACCUSED-APPELLANT. II THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF INTOXICATION AND DWELLING AS ATTENDANT IN THE COMMISSION OF THE CRIME CHARGED. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON THE ACCUSED-APPELLANT INSTEAD OF RECLUSION PERPETUA ON THE ASSUMPTION THAT HE WAS SANE AT THE TIME OF THE KILLING. First. It is contended that accused-appellant was suffering from schizophrenia when he killed his father and, therefore, he should have been held exempt from criminal liability under Art. 12(1) of the Revised Penal Code. The following portion of the report of Dr. Rico Angelo Gerona III of the National Center for Mental Health is cited in support of this contention:

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In view of the foregoing history, observation and examinations on the patient Wilfredo Banez y Cabael, he is found suffering from a mental disorder called psychosis or insanity classified under Schizophrenia. This is a thought disorder characterized by suspiciousness, poor judgment, poor impulse control, perceptual disturbances, self mutilation and deterioration in areas of work, social relation and self-care.xiv[14] In addition, Dr. Gerona‘s testimony is quoted: DR. RICO ANGELO GERONA ON DIRECT EXAMINATION: Q. A. Q. What was your diagnosis of the patient Wilfredo Banez? The patient to be psychotic, he has schizophrenia, sir. In your ordinary language what do you mean by that illness, Doctor?

A. He is mentally disorder suffering in schizophrenia characterized by thought disturbances, hallucination, suspiciousness, deterioration in areas of work, social relation and self-care. Q. Why did you arrive at this diagnosis, Doctor?

A. Since the patient manifested the characteristics of suspiciousness, delusion, hallucination, deterioration of self-care, social relation in work. Q. Can you tell us the causes of this illness schizophrenia, Doctor?

A. Schizophrenia may be caused by many factors such as genetic, predisposition, use of substance and under stress. .... Q. Doctor, were you able to determine when the patient was affected?

A. According to the patient‘s history the accused was sick six (6) years prior to his admission to the Center. Q. A. Q. A. Q. That was your information that you received, is that correct, Doctor? Yes, sir. Who gave you that information, Doctor? I got it from the Chart, sir. Do you know who supplied the information?

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A.

The mother, sir.

Q. From your findings Doctor, can you determine if the patient is (sic) already mentally ill on August 14, 1994? A. Yes, sir.

Q. It appears Doctor that in your report that the patient was admitted 20 days after August 14, 1994? A. Yes, sir.xv[15]

The defense of insanity has no merit. Art. 12 of the Revised Penal Code provides: Art. 12. Circumstances which exempt from criminal liability.  The following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. . . . . In People v. Formigones,xvi[16] it was held: The Supreme Court of Spain held that in order that this exempting circumstance may be taken into account, it is necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts without the least discernment: (Decision of the Supreme Court of Spain of November 21, 1891; 47 Jur. Crim. 413.); that there be a complete absence of the power to discern, or that there be a total deprivation of freedom of the will. For this reason, it was held that the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability. (Decision of the Supreme Court of Spain of April 20, 1911; 86 Jur. Crim. 94, 97.) Elaborating on this ruling, this Court stated in People v. Rafanan, Jr.:xvii[17] A linguistic or grammatical analysis of those standards suggests that Formigones established two (2) distinguishable tests: (a) the test of cognition - ―complete deprivation of intelligence in committing the [criminal] act,‖ and (b) the test of volition - ―or that there be a total deprivation of freedom of the will.‖ But our caselaw shows common reliance on the test of cognition, rather than on a test relating to ―freedom of the will;‖ examination of our caselaw has failed to turn up any case where this Court has exempted an accused on the sole ground that he was totally deprived of ―freedom of the will,‖ i.e., without an accompanying ―complete deprivation of intelligence.‖ This is perhaps to be expected since a person‘s volition naturally reaches out only
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towards that which is presented as desirable by his intelligence, whether that intelligence be diseased or healthy. Accused-appellant must thus prove that he was completely deprived of reason when he killed his father in order to be considered exempt from criminal liability. However, this has not been shown in this case. There is nothing either in the report of Dr. Gerona or in his testimony which indubitably show that accused-appellant was completely without reason on the night of August 14, 1994 when he killed his father because the latter wanted him to leave the house. Although he said that in his opinion accused-appellant was schizophrenic when he committed the crime, and that he was 99% certain of this, he was later less certain when questioned by the trial judge and admitted that accused-appellant was mentally well at least after his discharge from the Bicutan Rehabilitation Center in 1988 and for some time until he was confined at the mental hospital in 1994, after the commission of the crime in this case. Dr. Gerona testified:xviii[18] ATTY. PARAJAS, DEFENSE COUNSEL: Q Doctor, were you able to know if the accused was confined at the Bicutan Rehabilitation Center? A Q A Yes, sir. When? In 1988 sir.

COURT: Q A Q A Q A Q A .... COURT:
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And was released/discharged? Yes sir, two (2) years after he was admitted. What ground was he released or discharged? I do not have the report. But it will be concluded that he was released because he was okay? Yes, sir. So that if he was already okay, he was no longer suffering of mental disorder? Yes, sir.

Q At the time of the killing by the accused of his father, you do not know whether or not he was suffering of such kind of illness but only your presumption? A Q A Yes, sir. You might be correct 99% and wrong 1%? Yes, sir.

Q But it is possible that 1% the accused was not insane at that time of suffering from schizophrenia? A .... ATTY. PARAJAS: Q It is possible Doctor at that time the accused Wilfredo Bañez killed his father on August 14, 1994, it is possible that he was already affected with this disease? A Yes, sir. Yes, sir.

COURT: Q A .... Q A And now he can stand trial? Yes, sir. And it is also possible that he was not? Yes, sir.

Q So that there are times he was suffering such kind of illness and there was some time he was not suffering such kind of illness? A Q A Yes, sir. So that you do not know when it will re-occur? Yes, sir.

ATTY. PARAJAS:

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That will be all, your Honor. When Dr. Gerona was cross-examined, he admitted that accused-appellant was ―apparently in good mental condition‖ when he committed the crime:xix[19] PROS. VILLARIN: (CROSS-EXAMINATION): Q A So from 1991 to 1994 the accused was allowed to associates [sic] with others? Yes, sir.

Q So with that period before he was admitted (to the National Center for Mental Health) he was in good mental condition? A .... COURT: Q From the time he was released from the Bicutan Rehabilitation Center in 1988 up to the time he was brought to your center in 1994 with that span of time he was in normal condition, is that correct? A Yes, sir, apparently. Yes sir, he was apparently in good mental condition.

Indeed, Dr. Gerona III could not have testified on the mental condition of accused-appellant at the time of the commission of the crime considering that he treated accused-appellant only after the latter was confined at the National Center for Mental Health. He was not even the doctor who admitted accused-appellant to the National Center for Mental Health on September 3, 1994 because it was a certain Dr. Garaxx[20] who did. Although accused-appellant was admitted to the mental hospital on September 3, 1994, he was not treated by Dr. Gerona III until February 19, 1996, which was one and a half years after the commission of the crime. Nor were accusedappellant‘s medical records in the Bicutan Rehabilitation Center, where he was allegedly confined from 1988 to 1990, and in the Baguio General Hospital, where he was treated for some mental illness in 1987, submitted in evidence to determine for what illness he was exactly treated. The defense of insanity is in the nature of confession and avoidance. Like the justifying circumstance of self-defense, the burden is on the defense to prove beyond reasonable doubt that accused-appellant was insane immediately before the commission of the crime or at the very moment of its execution.xxi[21] In the instant case, accused-appellant failed to discharge this burden. His evidence merely consisted of the testimony of his own mother that he was confined at the Bicutan Rehabilitation Center in 1988 for the treatment of his addiction to gasoline, not for schizophrenia, and that he was also brought to the Baguio General Hospital for check-up. The

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testimony of Dr. Rico Angelo Gerona III is inconclusive as to whether accused-appellant was insane at the time immediately preceding or at the very moment of the killing. On the other hand, the evidence shows that accused-appellant had a motive for killing his father. The latter wanted to put him up in another house because accused-appellant made trouble whenever he was drunk. His sister Elvira testified that accused-appellant created trouble whenever he was drunk and that was the reason she (Elvira) and Emelinda were in their father‘s house because their father did not want accused-appellant to stay there anymore. It was entirely possible that he killed his father out of resentment and that he only suffered a mental breakdown because of emotional stress arising from the incident. That was the reason he was found suffering from schizophrenia when taken to the National Center for Mental Health on September 3, 1994. Although schizophrenia is not exempting if it does not completely deprive the offender of the consciousness of his acts, it may nevertheless be considered mitigating under Art. 13(9) if it diminishes the exercise of his will power. In this case, however, the defense failed to prove that accused-appellant was suffering from schizophrenia or any mental illness at the time immediately preceding or at the very moment of the commission of the crime that could diminish his will-power. Second. With respect to the contention that the trial court erred in appreciating the aggravating circumstances of dwelling and intoxication in the commission of the crime, we find ourselves to be in agreement with the defense. Dwelling cannot be considered aggravating because accusedappellant and his father were living in the same house where the crime was committed.xxii[22] The rationale for considering dwelling an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime.xxiii[23] This reason is entirely absent in this case. With regard to the alternative circumstance of intoxication, which the trial court treated as aggravating, it has not been shown that it is habitual or that it was intentional as required by Art. 15 of the Revised Penal Code. Elvira Bañez-Bustamante testified that, at the time of the commission of the crime, accused-appellant looked drunk because his face was ―reddish‖xxiv[24] and he smelled of liquor. She further claimed that accused-appellant made trouble whenever he was drunk.xxv[25] On the other hand, accused-appellant‘s mother, Marina Gabel-Bañez, denied that accused-appellant was a drunkard. She declared that he drank only when offered drinks by his friends.xxvi[26] Assuming that accused-appellant was drunk at the time he killed his father, nonetheless, the record does not show that he is a habitual and excessive drinker or that he intentionally got drunk on August 14, 1994 in order to commit the crime. In the absence of clear and positive proof that intoxication was habitual or intentional on the part of accused-appellant, it is improper to consider the same as an aggravating circumstance. Every aggravating circumstance must be proven by the prosecution as fully as the crime itself and any doubt as to its existence must be resolved in favor of the accused.xxvii[27]

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Neither can intoxication be considered mitigating in this case because there is no showing that accused-appellant was so drunk that his will-power was impaired or that he could not comprehend the wrongfulness of his acts.xxviii[28] The result is that accused-appellant‘s intoxication cannot be considered as either aggravating or mitigating: The prosecution failed to prove that it was habitual or intentional, but neither did the defense prove that, as a result of intoxication, his will-power had been impaired such that he did not know what he was doing. Under R.A. No. 7659, the penalty for parricide is reclusion perpetua to death. Since there was neither aggravating circumstance nor mitigating circumstance in this case, the lesser penalty of reclusion perpetua should be imposed on accused-appellant pursuant to Art. 63(2) of the Revised Penal Code. WHEREFORE, the decision of the Regional Trial Court is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. No costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

ARTICLE 14 AGGRAVATING CIRCUMSTANCES 1. People vs. Abdullah Gr. No. 182518, January 20, 2009

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

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PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 182518

Present:

YNARES-SANTIAGO, J., - versus Chairperson AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and LEONARDO-DE CASTRO, JJ.

MUHAMMAD ABDULAH, alias “BONG ABDULAH,” alias “BONG HASAN ZAMAN,” Appellant.

Promulgated:

January 20, 2009

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

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DECISION

NACHURA, J.:

For final review by the Court is the trial court‘s conviction of appellant Abdulah for murder. In the July 17, 2007 Decision650[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00023, the appellate court, on intermediate review, affirmed in toto the August 24, 2000 Decision651[2] of the Regional Trial Court (RTC), Branch 158 of Pasig City in Criminal Cases Nos. 98124, 98125 and 98126.

It was six in the evening more than a decade and a half ago, or on November 6, 1992, when the events leading to this case began to unfold. One of the victims, Evelyn Aguirre, was then visiting in the house of the other victim, her daughter Romelyn Diolago, at Victoria St., Intramuros, Manila. With her in the house were her other daughters, Leny and Jovy Aguirre (another victim), and her

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granddaughter, Cristy-Lyn. At that time, Romelyn was at a night club working. Appellant Mohamad ―Bong‖ Abdulah, Romelyn‘s brother-in-law, and a companion, entered the house and asked for the latter.652[3]

Informed of Romelyn‘s whereabouts, Bong decided to fetch Romelyn at the club. He dragged Evelyn from the house, out of the alley leading to the house, and to a black car. His companion, Latip Mangsungayan, poked a .38 caliber gun at Jovy, dragged her and pushed her inside the car. Three other companions of Bong were already in the car, a certain Racid alias Lumang Kulog, Bagyo alias Muhammad, and Dhats Kamama. Bong then belted out to the neighbors who got curious over the commotion, ―Kung ano‘ng nakikita ninyo, walang magsasalita, totodasin ko lahat, walang makikialam, totodasin ko kayong lahat!‖ (You must not interfere with us, and keep silent over what you are witnessing right now; otherwise, I will kill all of you!). Bong then drove the car and sped off.653[4] Evelyn and Jovy never returned to the house. That was the last time they were seen alive.654[5]

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The following day, November 7, 1992, three female dead bodies were found by the police at the grassy area of the apartment road in Maharlika Village, Taguig, Metro Manila [now, the City of Taguig]. The bodies had stab wounds, and the necks had ligature marks. The cadavers were then brought to the Philippine National Police (PNP) Crime Laboratory for autopsy.655[6] On November 15, 1992, prompted by a news report, the relatives of the victims went to Taguig, and there identified the dead bodies as those of Evelyn, Romelyn and Jovy.656[7]

The police theorized that appellant killed the victims to avenge the death of his brother Rex, Romelyn‘s live-in partner. The police further believed that appellant must have been convinced of the family‘s involvement in the death of Rex, considering that Rex‘s killer was the former boyfriend of Romelyn and hailed from the same hometown as the family.657[8]

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On March 24, 1993, three separate Informations658[9] for murder were filed against appellant with the RTC of Pasig City. The accusatory portions thereof read:

Criminal Case No. 98124 The undersigned Assistant Prosecutor accuses BONG ABDULAH @ BONG HASAN ZAMAN of the crime of Murder, committed as follows: That on or about the 6th day of November 1992, in the Municipality of Tagig (sic), Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a deadly weapon, with intent to kill, by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab Jovy Aguirre on her body, thereby inflicting upon the latter stab wounds which directly caused her death. CONTRARY TO LAW.

Criminal Case No. 98125 The undersigned Assistant Prosecutor accuses BONG ABDULAH @ BONG HASAN ZAMAN of the crime of Murder, committed as follows: That on or about the 6th day of November 1992, in the Municipality of Tagig (sic), Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a deadly weapon, with intent to kill, by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab Romelyn D. Diolago on her body, thereby inflicting upon the latter stab wounds which directly caused her death. CONTRARY TO LAW.

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Criminal Case No. 98126 The undersigned Assistant Prosecutor accuses BONG ABDULAH @ BONG HASAN ZAMAN of the crime of Murder, committed as follows: That on or about the 6th day of November 1992, in the Municipality of Tagig (sic), Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a deadly weapon, with intent to kill, by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab Evelyn Aguirre on her body, thereby inflicting upon the latter stab wounds which directly caused her death. CONTRARY TO LAW.659[10]

Appellant and his cohorts remained at large for several years.660[11] In 1998, appellamt was finally brought to trial in these murder cases, following his apprehension and detention for violation of Presidential Decree (P.D.) No. 1866, of the elections gun ban, and of Republic Act (R.A.) No. 6425.661[12] arraignment, he pleaded not guilty to the murder charges.662[13] On

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In his defense, appellant asserted that he was mistakenly identified as ―Muhammad Abdulah,‖ because he is ―Musa Dalamban.‖ He was arrested not for the murder of the victims but for violation of special laws. He further denied knowing any of the victims,663[14] claiming that, at the time the murder happened, he was in Cotabato City working as a helper of Guapal Saliling in the latter‘s wood business.664[15]

On August 24, 2000, the trial court rendered its Decision665[16] finding the appellant guilty beyond reasonable doubt of three counts of murder. dispositive portion thereof reads: The

WHEREFORE, accused Muhammad Abdulah, also known as ―Bong Abdullah‖, ―Bong Hasan Zaman‖ is found guilty beyond reasonable doubt of having committed three (3) counts of Murder under Article 248 of the Revised Penal Code in Criminal Cases Nos. 98124, 98125 and 98126 and is sentence (sic) to suffer in prison the penalty of Reclusion Perpetua for each count. He is also ordered to indemnify the private complainant Romeo Dindero the amount of (sic) P150,000.00 and to pay another P150,000.00 as moral damages plus the cost of suit. SO ORDERED.666[17]

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On direct appeal to this Court in G.R. Nos. 145306-08, we referred the cases to the appellate court for intermediate review following the doctrine in People v. Mateo.667[18] In its July 17, 2007 Decision,668[19] the CA, as aforesaid, affirmed in toto the decision of the trial court. Thus, we now finally review the trial and the appellate courts‘ uniform findings.

We affirm with modifications. The Court notes that the basis of the trial and the appellate courts in convicting the appellant of three counts of murder is circumstantial evidence, given the absence of any direct evidence as to who actually killed the victims. Section 4, Rule 133 of the Rules of Court provides that, for the same to be sufficient for conviction, there must be more than one circumstance; the facts from which the inferences are derived are proven; and the combination of all circumstances is such as to produce a conviction beyond reasonable doubt.669[20] A judgment of conviction based on circumstantial

evidence can be upheld only if the circumstances proven constitute an unbroken chain leading to one fair and reasonable conclusion that the defendants are guilty,

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to the exclusion of any other conclusion.670[21] The circumstances proved must be concordant with each other, consistent with the hypothesis that the accused is guilty and, at the same time, inconsistent with any hypothesis other than that of guilt. As a corollary to the constitutional precept that the accused is presumed innocent until the contrary is proved, a conviction based on circumstantial evidence must exclude each and every hypothesis consistent with his innocence.671[22]

Here, the circumstances proven during the trial are that (1) appellant and several companions went to the house of Romelyn in Intramuros, Manila; (2) on arrival, appellant asked for the whereabouts of Romelyn; (3) appellant then forcibly dragged the victims Evelyn and Jovy from Romelyn‘s house to the alley leading to the house and pushed them inside a parked black car; (4) one of appellant‘s companions poked a gun at Jovy; (5) appellant then warned the onlookers to not interfere with them and to be silent over what was happening; (6) appellant drove the car and sped off; (7) the day after Evelyn and Jovy were taken, their dead bodies, together with that of Romelyn, were recovered in Taguig, Metro Manila; and (8) their bodies had stab wounds, and the necks had ligature marks.

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Appellant was also positively identified by the prosecution witnesses, Leny Aguirre, Evelyn‘s daughter, who was in the house when appellant arrived, and Sabina Badilla, a neighbor, who saw the commotion. Thus, Leny, on direct examination, related:

Q: Now, when you, together with your sister Juliet, mother and niece were at the house of Ate Romelyn in Intramuros, was there any person who arrived in the said house? A: Yes, Sir. Q: A: Who was that person who arrived? Bong and one companion.

Q: And do you know why Bong and his companion arrived at the house of your Ate Romelyn? A: Yes, Sir. Q: A: Q: A: Q: A: Why? They are looking for Ate Cristy. When you said Ate Cristy, are you also referring to your Ate Romelyn? Yes, Sir. By the way, who was able to talk to Bong Abdulah in your house? My mother.

Q: At that time, what time did Bong Abdulah was able to talk to your mother looking for your Ate Romelyn? A: 6:00 in the afternoon. Q: Now, what was the reply of your mother, if any, when Bong was looking for your Ate Romelyn? A: She said that she is going to fetch my sister Romelyn at the club.

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Q: And what happened next when you (sic) mother told Bong that she will just pick up your Ate Romelyn at the club? A: My mother Evelyn accompanied Bong at the club to fetch my sister Romelyn or Cristy. Q: Aside from your mother Evelyn, who else went with Bong Abdulah to fetch your Ate Romelyn? A: Ate Jovy. Q: A: And when you said Jovy, are you referring to Jovy Aguirre? Aguirre-Bolandos.

Q: Now when your mother Evelyn Bolandos and your sister Jovy Aguirre-Bolandos went out with Bong Abdulah to fetch your Ate Romelyn, were they able to return? A: No more. Q: A: What happened to your mother and sister? From that time, we did not hear anything about them.

Q: And when for the first time did you come to know that something tragic happened to your mother and sisters? A: On November 8, 1992. Q: A: And what happened to your mother and sisters? We have heard that there was a massacre and they are the victims.

Q: Now, by the way, when you learned that your mother and sisters were killed, where did you and your other sister and niece went? A: In Taguig. Q: A: Q: A: And where in Taguig? In (sic) the Municipal Hall of Taguig. And what happened when you arrived at the Municipal Hall of Taguig? I got afraid when I learned about it.

Q: Why? A: I got afraid when the pictures were shown to me and it was true that my mother and my sisters were massacred. Q: Now, you said that it was Bong Abdulah who fetched your mother and sisters. Will you be able to identify Bong Abdulah if you will see him again? A: Yes, sir. Q: If he is inside this courtroom, please point out to him?

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(Witness pointing to the man in yellow T-shirt with RPJ leverage who identified himself as Musa Ed Dalamban).672[23]

Sabina Badilla further testified as follows:

Q Now, when you were then infront (sic) of your house in Victoria St., Intramuros, Manila on November 6, 1992 at around 6:00 in the evening, will you please tell us if there was any unusual incident if any that you noticed? A Yes, Sir.

Q Will you please tell this Hon. Court, what was that unusual incident? A What I saw at that time when I was infront of my house was that Muhammad Bong Abdulah Mangsungayan was dragging Evelyn Bolandos and also they were poking a .38 caliber gun then this Latip Mangsungayan was the one whose (sic) holding Jovy then, they dragged them. Muhammad told us that ―kung anong nakikita ninyo walang magsasalita, totodasin ko lahat walang makikialam totodasin ko kayong lahat.‖ Q Now, when you saw Bong Abdulah alias Muhammad Mangsungayan and Latip Mangsungayan forcibly dragging Evelyn Aguirre and Jovy, what did you do, if any? A I was not able to do anything because they were threatening us, then what Bong and Latip did they dragged Evelyn and Jovy out from the alley, I can see the black car outside and that is where they‘re riding and also there were three other persons there waiting at the car. Q What happened next, if any, after Bong Abdulah and Latip Mangsungayan dragged Evelyn and Jovy towards that parked black car? A The next thing that happened was that the door of the black car was opened and Jovy and Evelyn were forcibly pushed inside the car and I saw Racid alias Lumang Kulog and Bagyo alias Muhammad twin brother of the accused Muhammad and also Dhats Kamama, they were five all in all siksikan na sila sa kotse because they pushed Evelyn and Jovy inside. That makes them seven all in all inside the car. Q What happened next when you saw Evelyn and Jovy pushed inside that car? A After I saw Evelyn and Jovy pushed inside the car and all of them were already inside then the one who drove the car was Muhammad alias Bong Abdulah then they sped off then I did not know anymore what else happened.

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Q: By the way, if you will see again this Bong Abdulah alias Muhammad Mangsungayan, will you be able to identify him? A: Yes sir, I can identify him because before I used to talk to him but now it seems he doesn‘t know me anymore because my hair was long before and also I wore a Bombay dress because my husband is a Bombay. Q: A: If he is present inside this courtroom please point to him? Him beside the woman wearing Turban.

Interpreter: Witness pointed to a man wearing yellow T-shirt and when asked what‘s his name identified himself as Musa Dalamdam. A: No, it‘s not his true name he‘s telling a lie.673[24]

The circumstantial evidence presented in this case and the positive identification of appellant as the person who abducted the victims, Evelyn and Jovy, are sufficient to render the conviction of the former for the killing of the latter. In the two cases of People v. Delim,674[25] with similar factual milieu as the one at bar, where the victim was abducted and was consequently found dead, we held the accused liable for the killing.

Appellant‘s defenses of denial and alibi in this case are not worthy of belief, given that he failed to show that it was physically impossible for him to be present at the time and place of the crime.675[26] Established is the rule that denial and alibi, if

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not substantiated by clear and convincing proof, are negative and self-serving evidence undeserving of weight in law.676[27]

In this case, nevertheless, we find appellant liable only for the death of Evelyn and Jovy, there being no evidence to show that he also abducted Romelyn. While the prosecution witnesses testified that appellant intended to proceed to the club where Romelyn worked, no evidence was produced that he, in fact, reached the club and fetched Romelyn from there.

As in Delim,677[28] we also find, in this case, appellant guilty only of homicide defined and penalized by Article 249678[29] of the Revised Penal Code (RPC). Treachery and evident premeditation, the circumstances alleged in the informations, cannot be appreciated to qualify the killing to murder, considering that these were not proven during the trial. It is an ancient but revered doctrine that qualifying and aggravating circumstances before being taken into consideration, for the purpose of increasing the penalty to be imposed, must be proved with equal certainty as those which establish the commission of the criminal offense. It is not

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only the central fact of a killing that must be shown beyond reasonable doubt; every qualifying or aggravating circumstance alleged to have been present and to have attended such killing must similarly be shown by the same degree of proof.679[30]

Considering the absence of any modifying circumstance in the commission of homicide, the indeterminate penalty to be imposed for each of the two counts should be within the range of prisión mayor, as minimum, to reclusión temporal in its medium period, as maximum.

Following current jurisprudence, appellant is ordered to pay the heirs of the victims, for each of the two counts of homicide, civil indemnity of P50,000.00 and moral damages of P50,000.00.680[31]

WHEREFORE, premises considered, the appeal is PARTIALLY GRANTED. The July 17, 2007 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00023, and the August 24, 2000 Decision of the Regional Trial Court, Branch 158

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of Pasig City in Criminal Cases Nos. 98124, 98125 and 98126 are AFFIRMED WITH THE FOLLOWING MODIFICATIONS:

(1) appellant is found guilty beyond reasonable doubt of two (2) counts of homicide defined and penalized under Article 249 of the Revised Penal Code;

(2) for each count, he is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prisión mayor in its maximum period, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusión temporal in its medium period, as maximum.

(3) for each count, appellant is ordered to pay the heirs of the victims civil indemnity of P50,000.00 and moral damages of P50,000.00.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

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WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ATTESTATION

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I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

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2. People vs. Jumawid Gr. No. 184756; June 5, 2009

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 184756
Present:

YNARES-SANTIAGO, J., - versus Chairperson,

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CARPIO,* CORONA,** NACHURA, and PERALTA, JJ. JOVEN JUMAWID, Appellant. Promulgated:

June 5, 2009

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

DECISION

NACHURA, J.:

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We review the March 12, 2008 Decision681[1] of the Court of Appeals (CA), Mindanao Station, which affirmed the guilty verdict rendered by the Regional Trial Court (RTC), Branch 18, Cagayan de Oro City,682[2] promulgated on September 12, 2002 against appellant Joven Barbillas Jumawid (Jumawid), with modification on the amount of civil indemnity and exemplary damages to be paid to his victim, AAA. This review is made pursuant to the pertinent provisions of Sections 3 and 10 of Rule 122 and Section 13 of Rule 124 of the Revised Rules on Criminal Procedure, as amended by A.M. 00-5-03-SC.

The factual findings of both courts show that on August 26, 2001, at about 9 o‘clock in the evening, 18-year-old AAA was with her 2-year-old brother inside their parents‘ house at 123 St., XYZ in Cagayan de Oro City. She was cooking dinner when appellant Joven Jumawid, a neighbor for 10 years, entered their house reeking with liquor and carrying a knife. When appellant inquired where her father was, she replied that he had not arrived yet. Appellant then went behind her, choked her neck with his left hand, and pointed the knife at her neck using his right hand. She shouted for help, but because of the loud sound coming from the karaoke in appellant‘s house, nobody came to her aid.683[3]

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Appellant dragged her to the bedroom and told her to undress or he would kill her. When she refused, appellant proceeded to remove her short-pants and underwear with the knife pointed at her waist. He instructed her to lie on the floor. Again she refused, so he pushed her, mounted her and removed her clothes. Appellant kissed and bit her lips and left breast and, while on top of her, inserted his penis into her vagina. AAA moved her buttocks to prevent appellant‘s organ from penetrating her vagina, but she still felt a portion of his penis enter her.684[4] Appellant shouted that she should let his penis fully enter her vagina; otherwise, he would kill her.685[5] Because appellant was not able to fully insert his penis, he bit her lips and vagina, and continued to insert his penis.686[6]

At this point, AAA‘s father, BBB, arrived and called for her. Appellant hurriedly put on his clothes, warned AAA not to tell anybody else or he would kill her, and went out. When AAA‘s 8-year-old brother, CCC, went inside the house, she told him to immediately tell their mother that she was raped by appellant.687[7]

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Meanwhile, BBB decided to run to the police station in XYZ to ask for help because he knew appellant to have been previously imprisoned for stabbing a person.688[8] When he passed by his wife‘s mango stall, she told him that AAA told CCC that she was raped.689[9] Meanwhile, Jumawid went back to AAA‘s house, still with a knife, and called for her.

At the police station, Senior Police Officer (SPO)3 Josefino Mercado Balili (Balili) was on duty at around 9:30 p.m. on August 26, 2001. He testified that BBB arrived at the station and asked for police assistance in arresting the person he saw in his house and claimed that his daughter was raped. He, BBB, and a certain SPO1 Caburatan, immediately proceeded to the house where they saw AAA, frightened and moaning. They found Jumawid crouching at the back door. When Balili was about to handcuff Jumawid, the latter dropped the knife he was holding. They then brought Jumawid, together with AAA, to the police station. Subsequently, they accompanied AAA for medial examination at the Northern Mindanao Medical Center.690[10]

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The following day, an Information691[11] charging appellant Jumawid with the crime of rape was filed by the Assistant City Prosecutor. At his arraignment on October 2, 2001, Jumawid entered a plea of ―not guilty.‖692[12]

During the trial, Dr. Soraya Munti of the Department of OB-GYNE at the Northern Mindanao Medical Center testified that, while on duty on August 26, 2001, she examined AAA. She found bite marks on the left upper areola of AAA. She also found that AAA‘s genitalia bore lacerations consisting of 1 centimeter (cm.), at the left labia majus mid 1/3rd; laceration 0.7 cm., right labia majora, mid 1/3rd; abrasion, 0.5 cm. at posterior fourchette; and multiple abrasion 1 cm. around the vulva.693[13] She, however, found AAA‘s hymen to be apparently intact.694[14]

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Dr. Rolando Galeon of the Department of EENT of the said hospital also testified that when he examined the victim on August 26, 2001, he noted a contusion on her lower lip, a superficial puncture on the inner lip, an abrasion on the infralabial area, and a superficial punctured wound also on the infralabial area.695[15]

Appellant interposed an entirely different version of the incident. He maintained that he and AAA were sweethearts. They had been neighbors since their childhood days, but their romantic relationship began in 1997 and even continued while AAA stayed with her aunt in Manila at the time when he was also working in Manila as a security guard. He said that on the night of August 26, 2002, he and AAA‘s relatives were drinking liquor at AAA‘s house. AAA‘s cousin, DDD, instructed him to go upstairs and get some food. When he went inside, he saw AAA cooking dinner. They talked about their relationship, appellant kissed AAA and she kissed him back. When he placed his hand on AAA‘s private parts, she resisted and reminded him that she was still going to school. Then, he heard AAA‘s father, BBB, call for AAA. He went downstairs and gave his respects. He and BBB drank some liquor, and thereafter left the house together and walked towards the mango stall of BBB‘s wife.696[16]

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Later that night, another of AAA‘s cousins, EEE, instructed appellant to return to AAA‘s house to discuss something. Upon reaching the house, AAA‘s grandmother asked appellant if it was true that BBB saw him and AAA kissing at the stairway; he denied the allegation. BBB subsequently arrived, accompanied by policemen, who arrested appellant at the stairway of the house.697[17]

On September 12, 2002, the RTC found Jumawid guilty of the crime of rape. Pertinent portion of the fallo reads:

WHEREFORE, in view of the foregoing, the Court finds accused JOVEN JUMAWID y BARBILLAS GUILTY beyond reasonable doubt of the crime of rape, punishable under Article 266-A and B of the Revised Penal Code, as amended by R.A. 8353, attended by a qualifying aggravating circumstance with the use of a deadly weapon, plus a generic aggravating [circumstance] of nocturnity, and there being no mitigating circumstance, accused JOVEN JUMAWID y BARBILLAS is hereby sentenced and SO ORDERED to suffer the supreme penalty of death by lethal injection, including its accessory penalties. He is also directed to indemnify the victim the sum of P75,000.00, as compensatory damages, plus moral damages in the amount of P50,000.00. xxxx SO ORDERED. Cagayan de Oro City, September 12, 2002.698[18]

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Upon review, the CA agreed with the RTC in rejecting Jumawid‘s sweetheart theory and found sufficient basis to conclude that sexual intercourse did take place.699[19] The CA also sustained the RTC‘s finding that the rape was qualified by the use of a deadly weapon, but favored appellant‘s contention that the prosecution failed to establish that he took advantage of the darkness of the night or that such circumstance facilitated his commission of the crime. The dispositive portion of the CA decision states:

WHEREFORE, the Decision a quo is AFFIRMED with MODIFICATIONS. Appellant is found GUILTY of the crime of Rape, and is hereby sentenced to suffer the penalty of reclusion perpetua. The appellant is also DIRECTED to pay the victim, [AAA], the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity, Twenty Five Thousand Pesos (P25,000.00) as exemplary damages, and Fifty Thousand Pesos (P50,000.00) as moral damages. SO ORDERED.700[20]

On review, we rule in favor of the People.

The law is clear. Under the first paragraph of Article 266-A of the Revised Penal Code, it is provided:

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ART. 266-A. Rape, When and How Committed. – Rape is committed – 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a. Through force, threat or intimidation; b. When the offended party is deprived of reason or is otherwise unconscious; c. By means of fraudulent machination or grave abuse of authority; d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above [are] present.

The factual findings of the RTC, as affirmed by the CA, indubitably prove that appellant consummated his dastardly objective even if there was no full penetration of the female genital organ. In People v. Boromeo,701[21] we explained that proof of hymenal laceration is not an element of rape so long as there is enough proof of entry of the male organ into the labia of the pudendum of the female organ. Penetration of the penis by entry into the lips of the vagina, even without laceration or rupture of the hymen, and even with the briefest contact, consummates the crime of rape.702[22]

In this case, AAA was consistent in her testimony that appellant was able to penetrate her despite her efforts of moving her buttocks to prevent the latter from

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fully inserting his penis inside her vagina. The medical examination conducted by Dr. Munti confirms that there was indeed partial penetration of the victim‘s vagina.

As to the appreciation of the qualifying circumstance of use of a deadly weapon, we sustain the CA‘s conclusion that the Information explicitly contained such allegation. There is no need for the allegation to be preceded by the words ―qualifying/aggravating, qualifying, or qualified by‖ in order that such circumstance may be appreciated as such,703[23] more so when it is the law itself which provides for the qualification of the crime.

Article 266-B of the Revised Penal Code is explicit:

ART. 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. xxx

The use of a deadly weapon, having been specifically averred in the Information and duly proven during the trial qualifies the rape committed by the

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appellant.704[24]

Under 266-B of the Revised Penal Code, the penalty for However, since the

qualified rape should be reclusion perpetua to death.

prosecution failed to prove that appellant took advantage of the night or that such circumstance facilitated the commission of the crime, the lesser penalty of reclusion perpetua is hereby imposed.705[25]

As to the variation between the monetrary awards imposed by the RTC and CA, we rule that the appropriate civil indemnity should be P50,000.00 in light of prevailing jurisprudence regarding civil indemnity for qualified rape.706[26] Such award partakes the nature of actual or compensatory damages and is mandatory upon a conviction for qualified rape.707[27]

The presence of a qualifying circumstance in the commission of rape not only increases the penalty but justifies the award for exemplary or corrective damages as well, the purpose being to impose a harsher penalty on account the offender‘s

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greater perversity.

Hence, we sustain the award of P30,000.00 as exemplary

damages in favor of the victim. We, likewise, affirm the award of P50,000.00 as moral damages.

WHEREFORE, premises considered, the Decision708[28] of the Court of Appeals in CA G.R. CR-HC No. 00201 dated March 12, 2009 is hereby AFFIRMED with the modification that exemplary damages is increased to P30,000.00.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:

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CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

DIOSDADO M. PERALTA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

CONSUELO YNARES-SANTIAGO Associate Justice
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Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

DWELLING 1. People vs. Gayeta Gr. 171654; December 17, 2008

EN BANC

THE PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 171654

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Present:

PUNO, C.J., QUISUMBING, - versus YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, EDWIN GAYETA y ROBLO alias ―FREDDIE,‖ Appellant. AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO DE CASTRO, and BRION, JJ.

Promulgated:

December 17, 2008
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x-------------------------------------------------------------------------------- x

DECISION

TINGA, J.:

Before us on automatic review is the Court of Appeals‘ decision709[1] dated 25 November 2005 in CA-G.R. C.R.- H.C. No. 00111 which affirmed with modifications the judgment710[2] of the Regional Trial Court (RTC) finding Edwin Gayeta (appellant) guilty of the crime of robbery with rape in Criminal Case No. P-5420 and of the crime of robbery in Criminal Case No. P-5422.

Appellant, together with a co-accused, was charged in two separate informations filed before the RTC of Pinamalayan, Oriental Mindoro, to wit:

CRIMINAL CASE NO. P-5422

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That on or about the 24th day of [July 1995] at 9:00 o‘clock in the evening, more or less, in [B]arangay [xxx],711[3] [P]rovince of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and acting in common accord, while armed with a firearm, then and there willfully, unlawfully and feloniously and by means of violence and intimidation by hitting with fistic blows one BENJAMIN NICER and thereafter, with intent to gain, took and carried away cash money in the amount of TWO THOUSAND FIVE HUNDRED (P2,500.00) PESOS, more or less, from Conchita Nicer, to the damage and prejudice of the Offended Party in the aforementioned amount. CONTRARY TO LAW.712[4]

CRIMINAL CASE NO. 5420 That on or about the 24th day of [July 1995] at 9:00 o‘clock in the evening, more or less, in [B]arangay [xxx], province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and acting in common accord, while armed with a firearm, then and there willfully, unlawfully and feloniously and by means of violence and intimidation, and with intent of gain, took and carried away cash money, wrist watch and ring with a total value of TEN THOUSAND (P10,000.00) PESOS from Spouses [AAA] and [BBB]713[5] to the damage and prejudice of the latter; that on the occasion of said robbery, the herein accused Freddie Gayeta in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously and with lewd and unchaste design, have carnal knowledge of [AAA] against her will, to the damage and [prejudice of] the latter. That in the commission of the crime, the aggravating circumstances of [evident premeditation], abuse of superior strength, dwelling and nocturnity are attendant.

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CONTRARY TO [ART. 294], AS AMENDED [by] R.A. 7659.714[6]

The factual antecedents, as summarized by the prosecution, are as follows:

On 24 July 1995, at around 8:00 p.m., spouses Benjamin (Benjamin) and Conchita (Conchita) Nicer were drinking tuba when two armed men barged into their house. One of the armed men, later identified as Arnaldo Reano (Reano), was wearing a bonnet while the other, identified as appellant, was wearing a hat. The duo announced a hold-up and ordered the spouses to lie down on the floor. Conchita initially refused to lie down until appellant who incidentally had a bayonet in his other hand, poked a gun at her neck. Reano meanwhile kicked and boxed Benjamin until the latter bled and eventually lost consciousness. Appellant then ordered Conchita to hand over their money. Conchita went up to the room to get P2,500.00 and gave it to appellant. When the duo fled, the Nicer couple reported the incident to the barangay officials who immediately sought police assistance. Meanwhile, spouses BBB and AAA were watching television in their living room when two armed men, also later identified as Reano and appellant, entered their house. They likewise ordered the spouses to lie down and asked them to produce their money. BBB asked AAA to get the money from their store, which

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was located some twenty (20) meters away from their house. Appellant accompanied AAA to the store while Reano stayed with BBB.715[7]

Upon reaching the store, AAA took P5,000.00 and gave it to appellant. While in the act of getting the money, appellant inserted one of his hands inside AAA‘s short pants. Afterwards, appellant ordered her to undress and lie down on the floor. Appellant also removed his pants, lay on top of AAA, and forcibly had sexual intercourse with her. They went back to the house where appellant also forced AAA to hand over several pieces of jewelry. AAA immediately told BBB that appellant had sexually abused her.716[8]

The duo fled but came back a few minutes later. Upon seeing them, BBB took the bayonet and tried to stab appellant, but it was deflected by a hard object and fell on the floor. BBB then tried to grab appellant‘s gun and they grappled for its possession. The gun fired, hitting BBB on his shoulder but he managed to successfully take possession of the gun and fired it twice in appellant‘s direction. He missed, however. BBB ran after appellant and saw the responding

policemen.717[9] The two managed to escape.

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SPO2 Mario Matining and SPO3 Ronaldo Morada had been conducting an investigation inside the house of the Nicers when they received a report that a robbery was then taking place at the house of Spouses AAA and BBB.718[10] They rushed to the other crime scene but failed to apprehend the suspects.719[11] They recovered a scabbard with a ―JR‖ marking and a bonnet with red stripes. SPO2 Matining identified the scabbard as owned by Reano, whose nickname was ―Junior,‖ having known and worked with the latter for some time.720[12]

The policemen conducted a pursuit operation in the early morning of 25 July 1995; they arrested Reano and appellant in their respective houses.

Spouses AAA and BBB, on the other hand, went to a hospital where they were subjected to a physical examination. Dr. Preciosa M. Soller examined AAA and issued the following findings in her medico-legal report:

1. scanty pubic hair

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2. old healed complete laceration of hymen at 3 o‘clock, 5 o‘clock, 8 o‘clock and 11 o‘clock 3. multiparous [vagina] but rugae still present 4. 1-1/2 of thick mucoid, starchy discharge which upon microscopic exams were positive for epithelial and pus cells but no motile sperms were found 5. other parts of body unremarkable.721[13]

Likewise, upon examination, BBB was found to have sustained a gunshot wound.722[14]

For his defense, appellant claimed that he was conducting surveillance and patrol activities as a member of the Brigada Lakas in his barangay from 9:00 p.m. of 24 July 1995 to 5:00 a.m. of 25 July 1995 in Putatan, Muntinlupa City.723[15] He presented a record book containing his signature and the date and time he rendered community service. He pointed out that it was physically impossible for him to be in two different places at the same time.

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Reano denied the charges against him and maintained that he was at home with his family in Barangay Tianin, Villapag-asa, Bansud, Oriental Mindoro the whole day of 24 July 1995.724[16]

After joint trial, the RTC found appellant guilty of robbery with rape while Reano was found guilty of robbery. The dispositive portion of the judgment states:

ACCORDINGLY, in view of the foregoing, judgment is hereby rendered as follows: In Criminal Case No. P-5422, the Court finds accused Edwin Gayeta alias ―Freddie‖ GUILTY beyond reasonable doubt as principal of the crime of ROBBERY, defined and penalized under Art. 294 (5) of the Revised Penal Code with the aggravating circumstances of night time and in the dwelling of the offended party, without any mitigating circumstance, and hereby sentences him to an imprisonment of FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY OF PRISION CORRECCIONAL AS MINIMUM to TEN (10) YEARS AND ONE (1) DAY OF PRISION MAYOR as MAXIMUM, and to pay Sps. Benjamin and Conchita Nicer, in the amount of P2,500.00 as reparation for the stolen cash money. Accused Arnaldo Reano, Jr. is hereby found NOT GUILTY in said criminal case, his [guilt] not having been proven beyond reasonable doubt and he is hereby ACQUITTED, with cost de oficio. In Criminal Case No. P-5420, accused Arnaldo Reano, Jr., in conspiracy with Edwin Gayeta alias ―Freddie‖ is found GUILTY beyond reasonable doubt as principal of the crime of ROBBERY only, defined and penalized under Art. 294 (4) of the Revised Penal Code with the aggravating circumstances of night time and in the dwelling of the offended party without mitigating circumstance and hereby sentences him to suffer an indeterminate penalty of TEN (10) YEARS, ONE (1) DAY of PRISION MAYOR as MINIMUM to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL as MAXIMUM.

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Accused Edwin Gayeta alias ―Freddie‖ is found GUILTY beyond reasonable doubt as principal of the special complex crime of ROBBERY with RAPE defined and penalized under Art. 294 (2) as amended by R.A. No. 7659 with the aggravating circumstance of dwelling and there being no mitigating circumstance, hereby sentences him to suffer the most severe penalty of DEATH, together with the accessory penalty provided by law, and to indemnify the victim, [AAA], the amount of P50,000.00 without subsidiary imprisonment in case of insolvency. In addition, accused Arnaldo Reano, Jr. and Edwin Gayeta alias ―Freddie‖ is ordered to pay Sps. [AAA] and [BBB], jointly and severally, the total amount of P10,000.00 as reparation for the stolen cash money, wrist watch and ring, and to pay the cost of the suit. In Criminal Case No. P-5421, accused Arnaldo Reano, Jr. is hereby found GUILTY beyond reasonable doubt as principal of the crime of illegal possession of firearm. Considering that R.A. No. 8294 is favorable to the accused, he is hereby sentenced to an imprisonment of SIX (6) YEARS of PRISION CORRECCIONAL period and a fine of not less than FIFTEEN THOUSAND (P15,000.00) PESOS.

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Accused shall be credited with the full term of his preventive imprisonment, if he [has] any to his credit pursuant to the provisions of [Art. 29 of the Revised Penal Code] as amended by R.A. No. 6127 and B.P. Blg. 85, provided that he shall have agreed to abide with the disciplinary rules imposed upon convicted prisoners, otherwise, he shall be entitled to only FOUR FIFTHS of said preventive imprisonment. SO ORDERED.725[17]

In finding appellants guilty, the trial court relied mainly on the testimonies of the prosecution witnesses. It rejected appellants‘ respective alibis in the light of the positive identification made by prosecution witnesses.

As to the co-accused, Reano, Jr., who did not appeal his conviction by the lower court, its judgment must be deemed final and executory. On the other hand, the cases of appellant (Criminal Cases No. 5420 and 5422) were directly elevated to this Court for automatic review in view of the penalty imposed. However, in a resolution dated 24 August 2004, the Court resolved to transfer the case to the Court of Appeals pursuant to our decision in People v. Mateo.726[18]

On 25 November 2005, the Court of Appeals affirmed the decision of the RTC. The decretal portion of the decision reads:

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WHEREFORE, in view of the foregoing, we hereby AFFIRM the Regional Trial Court‘s decision convicting appellant Edwin Gayeta alias ―Freddie‖ of the crime of robbery with rape in Criminal Case No. P-5420 and of the crime of robbery in Criminal Case No. P5422, with the following MODIFICATIONS:

A. Criminal Case No. P-5420

1. The appellant shall additionally pay the victim, [AAA], the sum of Fifty Thousand Pesos (P50,000.00) as moral damages and Twenty-Five Thousand Pesos (P25,000.00)[,] as exemplary damages.

2. The reparation for the stolen properties that the trial court ordered is reduced from Ten Thousand Pesos (P10,000.00) to Six Thousand and Five Hundred Pesos (P6,500.00).

B. Criminal Case No. P-5422

1. In lieu of the imprisonment the trial court imposed, the appellant is sentenced to suffer the indeterminate penalty of four years (4) years and two (2) months of prision correccional as minimum to eight (8) years and twenty-one (21) days of prision mayor as maximum. SO ORDERED.727[19]

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Giving full faith and credence to the identification of appellant by prosecution witnesses, the Court of Appeals affirmed the trial court‘s decision finding appellant guilty of the crime of robbery, as well as the complex crime of robbery with rape. Debunking the presence of nighttime as an aggravating circumstance in robbery, the appellate court modified the penalty in Criminal Case No. P-5422 from a maximum imprisonment of ten (10) years and one (1) day of prision mayor to eight (8) years and twenty-one (21) days of prision mayor.

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On 28 March 2006, the Court required appellant and the Office of the Solicitor General (OSG) to simultaneously submit their respective supplemental briefs if they so desired.728[20] Both parties manifested that they were adopting their respective briefs filed before the appellate court.729[21] Thereafter, the case was deemed submitted for decision.

Appellant harps on the apparent inconsistencies in the testimonies of the witnesses regarding his identification as the perpetrator. He anchors his alibi on the claim that he was at Putatan in Muntinlupa City, which is nine hours away by land trip from Bansud, Oriental Mindoro where the incident occurred. Finally, appellant proffers that the alleged rape victim‘s account of the rape was not credible.730[22]

The OSG, in its Brief, maintains that appellant‘s alibi cannot prevail over the victim‘s positive identification of appellant as one of the robbers and the person who had raped AAA.731[23]

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Appellant was charged with and convicted of one count of robbery in Criminal Case No. P-5420 and one count of robbery with rape in Criminal Case No. P-5422.

In most criminal cases, the issue boils down to the credibility of witnesses. Time and again, we adhere to the principle that the evaluation of the witnesses‘ credibility is a matter best left to the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.732[24]

The trial court, as affirmed by the Court of Appeals, found the victims‘ testimonies credible. Indeed, the victims positively identified appellant as the one who broke into the house of the former, and who robbed and ravished the latter.

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In Criminal Case No. P-5420, Conchita positively identified the appellant as the one who poked a gun and a bayonet at her neck and ordered her to get money. She gave the money to appellant who, before leaving, even threatened her against reporting the incident to the police.733[25]

The crime of robbery as defined under Article 293 of the Revised Penal Code has the following elements: (1) intent to gain; (2) unlawful taking; (3) personal property belonging to another; and (4)

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violence against or intimidation of person or force upon things. All these elements were sufficiently established through Conchita‘s testimony. Clearly, robbery was consummated when appellant took the money belonging to Conchita by means of intimidation.

In Criminal Case No. P-5422, AAA testified that she and her husband were watching television in the living room when a man, whom she identified as appellant, barged into the house and ordered them to produce money.734[26] It was the same man who ordered her to undress and raped her.735[27] All throughout the ordeal, appellant‘s face was vividly exposed in the well -lighted house, as well as in the store, leading to his easy identification.

Under paragraph 2, Section 294 of the Revised Penal Code, the elements necessary to sustain a conviction for the complex crime of robbery with rape are: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is done with animo lucrandi; and (4) the robbery is accompanied by rape. All these

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elements were established. First, appellant employed violence against and intimidation on the person of AAA by threatening her with a gun to compel her to give him money. Second, after taking the money of the victim, he raped her.

The Court of Appeals correctly dismissed the inconsistencies in prosecution witness‘ statements for being trivial and for not having the effect of impairing her credibility as a witness. Inconsistencies as to minor details and peripheral or collateral matters do not affect the credibility of witnesses or the probative weight of their testimonies. Such minor inconsistencies may even serve to strengthen their credibility, as they negate any suspicion that their testimonies are fabricated or rehearsed.736[28]

Appellant also assails AAA‘s narration of the rape incident and insinuates that she should have fought off her attacker, given the numerous opportunities presented to her, such as failing to use the bayonet or the bottles that were within her reach to fight off the attacker. Suffice it to say that tenacious resistance against rape is not

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required; neither is a determined or a persistent physical struggle on the part of the victim necessary.737[29] As aptly pointed out by the Court of Appeals:

x x x To be sure, the lack of active resistance cannot be equated to consent. [XXX] might have failed to actively resist Edwin‘s advances but her failure need not be a manifestation of voluntary submission under the circumstances of the case; she had a gun to her head before, during and after the rape. Force or intimidation fully explains a woman‘s failure to offer active resistance. Jurisprudence holds in a long line of cases that active physical resistance need not be established in rape when

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intimidation is exercised upon the victim and the latter submits to the rapist‘s advances because of fear for her life and personal safety. Thus, the law does not impose the burden of active physical resistance on the rape victim when there is attendant force or intimidation.738[30]

Anent appellant‘s alibi, it is inherently weak and cannot prevail over a positive identification from a witness found credible by the trial court.739[31] Appellant avers that he was doing his rounds as a member of the Voluntary Lakas Brigade in Muntinlupa, which is nine (9) hours away from Oriental Mindoro, making it physically impossible for him to be at the crime scene. He presented the barangay logbook to support his alibi. The OSG correctly countered that this document was neither authenticated nor identified by the persons who supposedly issued them.740[32]

All told, the guilt of appellant has been established beyond reasonable doubt.

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Under Article 294(1) of the Revised Penal Code, the penalty of reclusion perpetua to death shall be imposed upon any person guilty of robbery with rape. The Court of Appeals correctly appreciated the aggravating circumstance of dwelling. When the crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance.741[33] Applying Article 63(1) of the Revised Penal Code, the penalty of death is rightfully imposed in Criminal Case No. P-5420. However, pursuant to Republic Act (R.A.) No. 9346,742[34] the penalty of death should be commuted to reclusion perpetua with no eligibility for parole.

Likewise, the award of moral and exemplary damages by the appellate court, as well as the order of reparation in the amount of P6,500.00, is affirmed.

In Criminal Case No. P-5422, the Court of Appeals properly appreciated the aggravating circumstance of dwelling for the same reason as in Criminal Case No. P-5420. The appellate court also correctly ruled out nighttime as an aggravating circumstance, there being no evidence to show that the accused purposely sought nighttime to facilitate the commission of the offense. We thus concur with the Court of Appeals‘ decision in applying the Indeterminate Sentence Law and imposing the penalty of four (4) years and two (2) months of prision correccional

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as minimum to eight (8) years and twenty-one (21) days of prision mayor as maximum.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R C.R.-H.C. No. 00111 affirming with modification the Decision dated 12 March 1999 of the Regional Trial Court, Branch 42, Oriental Mindoro, finding appellant Edwin Gayeta y Roblo guilty beyond reasonable doubt of the crime of robbery in Criminal Case No. P-5420 and robbery with rape in Criminal Case No. P-5422, as well as awarding damages to the victim, is AFFIRMED with the MODIFICATION that the penalty of death therein imposed is reduced to reclusion perpetua with no eligibility for parole.

SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

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LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

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PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

TERESITA J. LEONARDO DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
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REYNATO S. PUNO Chief Justice

2. People vs. Feliciano Gr. No. 102078; May 15, 1996

SECOND DIVISION [G.R. No. 102078. May 15, 1996] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO FELICIANO y AGUSTIN, JOHN DOE and PETER DOE accused. ROLANDO FELICIANO y AGUSTIN, accusedappellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE OF ANY IMPROPER MOTIVE TO IMPLICATE THE ACCUSED ENTITLES THE TESTIMONY OF THE WITNESS TO FULL FAITH AND CREDIT. - Like the court a quo, we find Nelia Basilio's testimony cogent, straightforward and convincing. Considering that this witness was very close to the victim and the assailant, that witness was previously acquainted with appellant, and the absence of any improper motive to implicate the appellant, the Court is convinced that Nelia Basilio's narration of events and identification of appellant are candid and constitute the true version of what actually transpired. It is not necessary for the name of an accused to be specifically stated by a witness in an affidavit or testimony. Victims of crime cannot always identify by name their assailants. It is imperative, however, that the attacker be pointed out and unequivocally identified during trial in court as the same person who committed the crime. In the case at bar, Nelia Basilio's casual acquaintance with the Feliciano brothers facilitated the arrest and identification of appellant Feliciano. 2. CRIMINAL LAW; ROBBERY WITH HOMICIDE; THE WORD "HOMICIDE" IS USED IN ITS GENERIC SENSE AS IT INCLUDES MURDER AND ABSORBS SERIOUS PHYSICAL INJURIES COMMITTED DURING THE ROBBERY. - The crime committed was Robbery with Homicide, a single indivisible crime punishable by Article 294, number 1 of the Revised Penal Code. It is a special complex crime with the specific penalty provided for in the law. Despite the physical injuries sustained by Marciano Fariñas, the crime is still Robbery with Homicide. The word "homicide" is used in its generic sense as it includes murder and absorbs serious physical injuries committed during the robbery.

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3. ID.; ID.; DEFENSE OF ALIBI; MUST NECESSARILY FAIL WITH THE POSITIVE IDENTIFICATION OF THE ACCUSED. - Appellant claims he was at home from ten in the morning to twelve noon. His wife claims he was out buying a banca. A neighbor claims she saw him only at 2:15 in the afternoon, coming home, riding a banca. The discrepancies in their testimonies sow confusion as to the exact whereabouts of appellant at the time of the crime. It is, therefore, not surprising that the trial court found appellant's excuse of alibi incredulous. More importantly, with the positive identification of appellant Rolando Feliciano, his alibi must necessarily fail. 4. ID.;AGGRAVATING CIRCUMSTANCES; DWELLING; PRESENT IN CASE AT BAR. - The Court also finds that the aggravating circumstance of dwelling is present in the case at bar. When the crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance. Here, the crime was committed inside the house of Rosario Fariñas, the deceased victim. Dwelling can be considered aggravating in robbery with homicide because this kind of robbery can be committed without the necessity of transgressing the sanctity of the house. The offender's deliberate invasion of the tranquility of one's domicile shows greater perversity. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Eufemio Law Office for accused-appellant. DECISION ROMERO, J.: Rolando Feliciano alias "Ato" appeals from a decision of the Regional Trial Court, Branch 104 of Quezon City finding him guilty beyond reasonable doubt of the crime of Robbery with Homicide.xxix[1] On May 30, 1988, Rolando Feliciano, his brother Rogelio Feliciano and John Doe, were at the house of 68-year old Rosario Fariñas at 99 K-6 Street, Quezon City. They claimed to be waiting for Ben Junio, Rosario Fariñas' son-in-law.xxx[2] Along with Rosario Fariñas, a thirteen-year old helper, Nelia Basilio, was also around. When Rosario's brother, Marciano Fariñas, arrived at about ten thirty in the morning, the three men were already inside the house. In keeping with Filipino custom, the three guests were invited to lunch even if Ben Junio had not yet arrived. Upon entering the dining room, Rolando Feliciano immediately poked a knife at Rosario Fariñas. Rogelio Feliciano, alias "Kiting" pointed a gun at Marciano Fariñas and the third man pointed a knife at Nelia Basilio. Without warning or provocation, Rolando Feliciano stabbed Rosario Fariñas three times in the chest. The first wound was fatal as it punctured the heart. Marciano Fariñas was brought to the second floor to get money for the robbers. All told, P1000.00 and $200.00 were taken from Marciano. The young helper was also forced to divulge that there was money in Rosario's room on the ground floor. After ransacking the room, the men
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found and carried away an undetermined amount of U.S. dollars. Upon returning to the ground floor, Marciano Fariñas was asked to give more money. When he declined to give any, Rolando Feliciano, upon Rogelio Feliciano's instructions, stabbed Marciano Fariñas several times. This last victim screamed for help, causing the robbers to panic and hurriedly scamper away after firing at Marciano. The latter did not get shot and survived after undergoing hospital treatment for twenty-three days. The findings of Dr. Alberto M. Reyes, medico legal officer of the NBI, established that Rosario Fariñas died of severe hemorrhage secondary to stab wounds in the chest.xxxi[3] On December 5, 1990, a team of policemen from Cardona, Rizal, led by Pfc. Crispin Gondra, arrested Rolando Feliciano after wounding him in his attempt to escape. Rogelio Feliciano and John Doe eluded arrest and have not been apprehended. Rolando Feliciano was charged with the crime of Robbery with Homicide in an information which reads: "That on or about the 30th day of May, 1988, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to gain and by means of violence and intimidation against person, did then and there wilfully, unlawfully and feloniously rob ROSARIO FARIÑAS Y TOLENTINO and MARCIANO T. FARIÑAS in the following manner to wit: on the date and place aforementioned, accused pursuant to their conspiracy, armed with knives and guns, robbed ROSARIO FARIÑAS Y TOLENTINO and MARCIANO T. FARIÑAS at their residence located at No. 99 K-6th, Kamias, this City, and divested them of the ff.: 1. MARCIANO T. FARIÑAS – P1,000.00 and $200.00 US Dollar 2. ROSARIO FARIÑAS Y TOLENTINO - Undetermined amount of U.S. Dollars and that on the occasion of the said Robbery, said accused with intent to kill and without any justifiable cause did then and there, wilfully, unlawfully and feloniously, stabbed (stab) them on the different parts of their bodies, thereby inflicting upon ROSARIO FARIÑAS Y TOLENTLNO serious and mortal wounds which was (were) the direct and immediate cause of her untimely death and physical injuries to said MARCIANO T. FARIÑAS which have required him medical attendance and/or incapacitated him from performing his customary labor for a period of more than nine (9) days but less than thirty (30) days, to the damage and prejudice of the heirs of said ROSARIO FARIÑAS Y TOLENTINO and to said MARCIANO FARIÑAS in such amount as may be awarded to them under the provisions of the New Civil Code of the Philippines. CONTRARY TO LAW." (Corrections in parenthesis supplied)

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After arraignment, trial ensued. Prosecution evidence was mainly based on the eyewitness accounts of Nelia Basilio and Marciano Fariñas. The defense proffered alibi, with the accusedappellant Rolando Feliciano, his wife and a neighbor testifying. The trial court convicted Rolando Feliciano of Robbery with Homicide on September 5, 1991 in a decision with the following dispositive portion: "WHEREFORE, finding the accused ROLANDO FELICIANO Y AGUSTIN guilty beyond reasonable doubt of the crime of Robbery with Homicide, as penalized under Art. 294, Revised Penal Code, he is hereby sentenced to DEATH, but because of the constitutional mandate prohibiting the imposition of death penalty, he is hereby ordered to suffer the penalty of RECLUSION PERPETUA only, plus all the accessory penalties provided by law; to pay the heirs of the deceased Rosario Fariñas the sum of P50,000.00, and to pay also Marciano T. Fariñas P1,000.00 and $200.00 US dollars, without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED." In this appeal, accused-appellant Rolando Feliciano contends that the trial court failed to prove his guilt and participation in the crime charged. He is not the third unidentified robber as stated by Nelia Basilio whose testimony is perjured and who never mentioned Rolando Feliciano in the first affidavit she gave before the police. Accused-appellant likewise faults the trial court for not giving credence to his defense of alibi. According to appellant, Nelia Basilio's failure to identify him in her first affidavit, given on the evening of May 30, 1988,xxxii[4] is fatal to the case and disproves Rolando Feliciano's culpability. More particularly, the name of appellant Rolando Feliciano is not mentioned in this affidavit, which reads in part: "06. T - Kilala mo ba kung sino ang pumatay sa amo mo? S - Yung isa po si ROGELIO FELICIANO na kilala ko po sa pangalang KITENG at yung isa na si ROGEL ang pangalan yung isang lalaki ay hindi ko alam ang pangalan ngunit alam at tanda ko lahat ang mukha nila." While it is true that appellant's name does not appear in this first affidavit, which was taken a few hours after the crime, still, his responsibility for the crime cannot be doubted. On December 9, 1990, witness Nelia Basilio executed another affidavit before Pfc. Reynaldo Medina, Jr. at the Rizal Medical Center in Pasig, Metro Manila. In this second statement, she categorically identified Rolando Feliciano, then lying on Bed No. 26 of the hospital's surgical ward, as the person who stabbed Rosario Fariñas on May 30, 1988.xxxiii[5] More significantly, appellant's guilt is certain in view of the following testimony: "DIRECT EXAMINATION OF NELIA BASILIO Q What did you do after cooking lunch?

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A Q

I called them, sir. You used the word "them" "sila" to whom are you referring?

A Rolando Feliciano and Rogelio Feliciano, sir, and others whom I do not know and I cannot identify: xxx Q A xxx xxx

And did these three persons acceded (sic) to your invitation to join you for lunch? No, they entered the dining room and immediately poked (sic) at us, sir.

Q You mentioned, you stated that the moment or as soon as these three persons entered the dining room they immediately poked (sic) at you and your lolo and lola, who in particular of the three persons poked (sic) at you? A Q A The one whom I cannot identify. What did he used (sic) in poking at you? A gun, sir.

Q How about your lola Rosario Fariñas you said that another person, one of the three poked something to (sic) her, could you identify the person who poked something at her? A Q A Rolando Feliciano, sir. If you will see Rolando Feliciano again, would you be able to identify him? Yes, sir.

Q Will you please stand up and look around and point to us Rolando Feliciano if he is inside the court room? A Yes, sir, (witness goes down the witness stand and point to a person who when asked gave his name as Rolando Feliciano).xxxiv[6] xxx xxx xxx

Q You mentioned that as soon as the accused and these two other companions who are at large Rolando poked a knife to your lola by the name of Rosario Fariñas y Tolentino, what happened next after the accused poked a knife to (sic) her? A He stabbed her, sir.

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Q A

How many times did accused Rolando Feliciano stabbed (sic) your lola Rosario? Three (3) times, sir."xxxv[7]

On cross-examination, Nelia Basilio testified: "ATTY.CEREZO: Q And in fact, you know the person of Rolando Feliciano because he was your barrio mate at Bayambang, Pangasinan? A Yes, sir.

COURT: This accused present, Rolando Feliciano, is your barrio mate? WITNESS: Yes, your honor."xxxvi[8] From the aforequoted transcript of Nelia Basilio's testimony, appellant Rolando Feliciano's complicity in the crime as Rosario Fariñas' attacker and one of the three robbers who held them up on May 30, 1988, is clearly established. Like the court a quo, we find Nelia Basilio's testimony cogent, straightforward and convincing. Considering that this witness was very close to the victim and the assailant,xxxvii[9] that witness was previously acquainted with appellant,xxxviii[10] and the absence of any improper motive to implicate the appellant, the Court is convinced that Nelia Basilio's narration of events and identification of appellant are candid and constitute the true version of what actually transpired. It is not necessary for the name of an accused to be specifically stated by a witness in an affidavit or testimony. Victims of crimes cannot always identify by name their assailants. It is imperative, however, that the attacker be pointed out and unequivocally identified during trial in court as the same person who committed the crime. In the case at bar, Nelia Basilio's casual acquaintance with the Feliciano brothers facilitated the arrest and identification of appellant Rolando Feliciano. The Court also finds that the trial court committed no error in not accepting appellant's defense of alibi. The court below correctly held: ―x x x Accused's wife cannot even ascertain to (sic) the fact that on the day of the crime, accused Feliciano was actually at Tayuman, Angono, Rizal allegedly buying a banca. Not even defense witness Lolita Padrid, a neighbor, was able to corroborate to (sic) the presence of accused all these time she stayed at Feliciano's house on the day of the crime. x x x"xxxix[11]

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Appellant Rolando Feliciano recounted that he was at home at the time of the crime. DIRECT EXAMINATION BY ATTY. CEREZO: "Q According to one of the prosecution witnesses by the name of Nelia Basilio, this Rosario Fariñas resided at No. 99 K-6 Kamias, Quezon City prior to her death, do you know this place? A Q A No, sir. On May 30, 1988, have you been to this place? No, sir.

Q On said date, do you still recall where you were particularly at around 10:00 to 12:00 o'clock in the morning? A Q A I was at home, sir. By the way, why do you still recall that date, May 30, 1988? Because we have a calendar at home, sir."xl[12]

The defense panel also presented Lolita Padrid, a neighbor of appellant, as witness. "ATTY.CEREZO: Q Did I get it right from you that from 9:00 o'clock up to 2:00 o'clock, you were in the house of the brother of Rolando Feliciano? A Yes, sir. Because I was waiting for my husband.

Q Now, from that time from 8:00 o'clock to 12:00 o'clock, were you able to see Rolando Feliciano? PROSECUTOR BELTRAN: Where Your honor? ATTY.CEREZO: In the vicinity near his house. A Q I saw him in the afternoon at around 2:15. Where did you see him at that time?

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A

He was on board a banca, sir, on his way home."xli[13]

Appellant's wife, Betty Feliciano, was the last witness who similarly tried to re-enforce the assailant's excuse of alibi. "ATTY.CEREZO: Q Now, do you still recall where your husband was from 10:00 o'clock in the morning of May 30, 1988? A Q A He went out and bought a banca. Where? At Tayuman, sir.

COURT: Where is that Tayuman? A Tayuman, Rizal.

PROSECUTOR BELTRAN: What town? A It was a barrio in Angono, Rizal.

COURT: Q So from 10:00 in the morning to 12:00 noon, your husband was out of your house because he was at Tayuman, Angono, Rizal to buy banca, is that true? A Yes, sir."xlii[14]

Appellant claims he was at home from ten in the morning to twelve noon. His wife claims he was out buying a banca. A neighbor claims she saw him only at 2:15 in the afternoon, coming home, riding a banca. The discrepancies in their testimonies sow confusion as to the exact whereabouts of appellant at the time of the crime. It is, therefore, not surprising that the trial court found appellant's excuse of alibi incredulous. More importantly, with the positive identification of appellant Rolando Feliciano, his alibi must necessarily fail.xliii[15] The crime committed was Robbery with Homicide, a single indivisible crime punishable by Article 294, number 1 of the Revised Penal Code.xliv[16] It is a special complex crime with the
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specific penalty provided for in the law.xlv[17] Despite the physical injuries sustained by Marciano Fariñas, the crime is still Robbery with Homicide. The word "homicide" is used in its generic sense as it includes murder and absorbs serious physical injuries committed during the robbery.xlvi[18] The Court also finds that the aggravating circumstance of dwelling is present in the case at bar. When the crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance.xlvii[19] Here, the crime was committed inside the house of Rosario Fariñas, the deceased victim. Dwelling can be considered aggravating in robbery with homicide because this kind of robbery can be committed without the necessity of transgressing the sanctity of the house.xlviii[20] The offender's deliberate invasion of the tranquility of one's domicile shows greater perversity.xlix[21] Since the crime was committed in 1988, the provisions of the Revised Penal Code then existing are applicable. Article 294, number 1 reads: "Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed. xxx xxx x x x"

With the constitutional prohibition of the imposition of the death penalty,l[22] the crime of robbery with homicide effectively became punishable by the single and indivisible penalty of reclusion perpetua. As such, said penalty must be imposed regardless of the presence of mitigating or aggravating circumstances.li[23] Hence, even with the presence of the aggravating circumstance of dwelling, the penalty imposable for the crime of robbery with homicide remains reclusion perpetua. WHEREFORE, the appealed decision of the trial court is hereby AFFIRMED in toto. SO ORDERED. Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

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3. People vs. Montesa Gr. No. 181899; November 27, 2008

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 181899

Present:

YNARES-SANTIAGO, J., Chairperson, - versus AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

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ROLLY MONTESA y LUMIRAN, Accused-Appellant. Promulgated:

November 27, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR HC No. 00314, dated 22 December 2006,743[1] affirming with modifications the Decision of the Regional Trial Court (RTC), Branch 61, of Kabankalan City, Negros Occidental, in Criminal Case Nos. 98-2035 and 98-2036,744[2] finding accusedappellant Rolly Montesa y Lumiran guilty of rape and imposing upon him the supreme penalty of death in each of the cases.

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The records of the case generate the following facts:

On 29 December 1997, two separate informations745[3] were filed with the RTC charging appellant with rape, thus:

In Criminal Case No. 98-2035 That on the 19th day of September, 1997, in the Municipality of XXX, Province of XXX, Philippines, and within the jurisdiction of this Honorable Court, the above-name accused, armed with a bladed weapon, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge of and/or sexual intercourse with AAA,746[4] 12 years old, against her will, and in her own house. In Criminal Case No. 98-2036 That on the 21st day of September, 1997, in the Municipality of XXX, Province of XXX, Philippines, and within the jurisdiction of this Honorable Court, the above-name accused, by means of force, violence and intimidation, armed with a bladed weapon, did then and there, willfully, unlawfully and feloniously have carnal knowledge of and/or sexual intercourse with AAA, 12 years old, against her will, and in her own house.747[5]

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Subsequently, these cases were consolidated for joint trial. When arraigned on 29 April 1998, appellant, assisted by his counsel de oficio, pleaded ―Not guilty‖ to the charges.748[6] Trial on the merits thereafter followed.

The prosecution presented as witnesses AAA, BBB, Dr. Roena C. Abilla (Dr. Abilla), Felicito D. Patricio (Felicito), Police Officer 1 Jose Dennis T. Santes (PO1 Santes), and Pepito Bonilla (Pepito). Their testimonies are summarized as follows:

AAA, herein victim, testified that she and her mother, BBB, had been residents of XXX. Their house had two floors with two rooms at the ground floor and four rooms at the second floor. She and BBB occupied one of the rooms on the ground floor while the other room was rented by a certain Monalyn who operated a small eatery thereat. The second floor was leased to several tenants.749[7]

On 15 September 1997, BBB left the house and went to Barangay (Brgy.) Damutan, Hinoba-an, Negros Occidental.

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On the evening of 19 September 1997, AAA went out of the house and watched a ―Betamax‖ movie in the house of a certain Emmy. She saw appellant and several other persons also watching it. After the show, she went home arriving therein at around 10:00 p.m. She was alone in the room of their house because BBB was still in Brgy. Damutan. While she was about to sleep, she saw appellant beside her bed. Appellant was naked from the waist down to the feet and armed with a 14-inch jagged knife. She also noticed that the cover of the room‘s window was removed. Thereupon, appellant took the room‘s kerosene lamp and blew out the light. Appellant approached her, pointed the knife to her neck, and warned her not to shout. Appellant soaked his penis with his saliva, removed AAA‘s shorts and panty, and placed himself on top of her. Appellant inserted his penis into her vagina and made a push and pull movement. AAA felt pain in her vagina. She could not shout for help because appellant pointed the knife to her neck and threatened to stab her. She tried to free herself but appellant pinned her down strongly. Later, she felt a fluid in her vagina. Appellant rested for a while beside her. Thereafter, appellant again placed himself on top of her, inserted his penis into her vagina and made a pumping motion. Appellant then stood up, wiped his penis, and warned her not to tell anyone of what happened or he would kill her. Appellant left her and passed through the room‘s window.750[8]

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On the morning of 20 September 1997, Monalyn confronted AAA and asked if appellant went to her room the night before and touched her private parts. Afraid of appellant‘s threat to kill her, she replied that appellant merely kissed her.751[9]

On 21 September 1997, at about 10:00 p.m., AAA was again sleeping alone in the room of their house. Later, appellant entered her room through the room‘s window. Appellant had no underwear and pants and was armed with a knife. Appellant took the kerosene lamp and blew out the light. She could not shout because appellant pointed the knife to her. Appellant approached her, wet his penis with his saliva, and placed himself on top of her. She resisted but appellant overpowered her. Appellant then inserted his penis into her vagina. She felt pain in her vagina. As appellant stood up, she saw liquid on appellant‘s penis. Appellant warned her not to tell BBB of what happened or he would kill her. Appellant took her panty and left the room through the window.752[10]

On the morning of 22 September 1997, AAA took a shower and left the house. She went to the house of her classmate named Maricel and stayed there for six days because she was afraid that appellant would rape her again. On 27 September 1997, BBB arrived at Maricel‘s house to fetch her. AAA embraced

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BBB and cried. She told BBB that appellant raped her. Thereafter, she and BBB went to the police to report the incidents and later on to Dr. Abilla for physical examination.753[11]

AAA declared that she knew appellant because she always saw him then in the canteen of Monalyn. She also stated that appellant stayed in the house of a certain Bong Lupega which was fifty (50) meters away from her house.754[12]

BBB, a widow, narrated that AAA is her fifth and youngest child. Since her four other offspring were all married and had families of their own, only AAA remained in her custody and care. She and AAA were residents of XXX from 1989 to 1998. Their house had two floors with two rooms at the ground floor and four rooms at the second floor. She and AAA occupied one of the rooms on the ground floor while the other room was rented by Monalyn who operated a small canteen thereat. The second floor was leased to several tenants.755[13]

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On 15 September 1997, BBB left the house and went to Brgy. Damutan, Hinoba-an, Negros Occidental. She harvested rice in her farm located in the said barangay. Afterwards, she plowed the field of a certain Junior Bonilla which was also situated in the same barangay for which she was paid P100.00 a day.756[14]

On 27 September 1997, BBB went home. Upon arriving at the house, she noticed that AAA was not around. She went out of the house to look for AAA. She found AAA in the house of Maricel. Thereupon, AAA embraced her and cried. AAA told her that she was raped by appellant. She and AAA reported the incidents to the police and lodged a criminal complaint for rape against appellant. The police referred them to Dr. Abilla for AAA‘s physical examination. Subsequently, Dr. Abilla conducted a physical examination on AAA.757[15]

BBB averred that she had known appellant because she always saw him eating in the canteen of Monalyn. She also averred that appellant stayed in the house of Bong Lupega which was 50 meters away from her house.758[16]

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Dr. Abilla, Municipal Health Officer of Hinoba-an, Negros Occidental, declared that she conducted a physical and vaginal examination on AAA on 27 September 1997 and on 7 October 1997. During the 27 September 1997 examination, she observed that AAA‘s vagina was protruding and stretched out. She also noted healed hymenal tear in the 6:00 o‘clock and 9:00 o‘clock positions on AAA‘s vagina. Further, the fourchette759[17] was not anymore in an acute angle but already rounded. According to her, the foregoing findings indicated that AAA‘ vagina was penetrated.760[18]

With respect to the 7 October 1997 examination, Dr. Abilla disclosed that when she inserted a small-size speculum into AAA‘s vagina with ease, there were moderate purulent discharges manifested on the vaginal canal. She explained that purulent discharges referred to a yellowish substance or “na-na” in layman‘s term. She concluded that AAA was infected with gonorrhea, a sexually transmitted disease.761[19] She issued an official medical report on her foregoing findings,762[20] to wit:

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27 September 1997: To: Officer-on-Duty PNP – Hinoba-an

Physical examination of AAA showed signs of entry into the vagina.763[21]

10 October 1997:

Physical Exam : Vaginal Exam :

Findings: No pubic hair Labia minora are protruding and stretched out. Healed hymenal tear at 6 and 9 o‘clock position. Fourchette is rounded, no longer in acute angle.

Speculum Exam:

(done on October 7, 1997, 4:00 pm)

A small size speculum was inserted into the vagina with ease and vaginal canal showed moderate purulent discharges. No hematomas, lacerations, contusions, abrasions, on other parts of the body. Conclusion : Physical examination shows sign of entry on vagina. Presence of moderate amount of

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purulent discharges in the vaginal canal indicates infection, most likely gonorrhea.764[22]

SPO1 Santes, desk officer of the Hinoba-an Police Station, testified that on 27 September 1997, AAA and BBB arrived at the said station and reported the incidents. Thereafter, an information was received by the station that appellant was staying in a house at Tabuk Suba, Brgy. 1, Hinoba-an, Negros Occidental. Upon the order of his superior, SPO1 Santes proceeded to the said place and found appellant. He invited appellant to the station to which the latter acceded. When he and appellant arrived at the station, AAA pointed to appellant as the one who raped her.765[23]

Felicito, a longtime resident and Sitio Leader of XXX in the year 1997, recounted that he had known appellant because he always saw him buying something in her daughter‘s store at XXX; that he frequently saw appellant in the house of BBB; that appellant used to work as a machine operator in Philex Mining Corporation (Philex) located at Brgy. Damutan; that appellant used to sleep in Bong Lupega‘s house which was around 50 meters away from his house at XXX; that he had known BBB because the latter‘s house was about 50 meters away from

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his house; and that during the period of September 1997, he saw appellant in XXX.766[24]

Pepito, a retired member of the Hinoba-an Police Station and resident of XXX, testified that he retired as policeman on 20 November 1998; that he was the Intelligence Division Head of the Hinoba-an Police Station prior to his retirement; that on 27 September 1997, AAA and BBB went to the Hinoba-an Police Station and reported the incidents; that he instructed SPO1 Santes to make a report as regards the incidents; and that AAA pointed to appellant as her rapist.767[25]

The prosecution also proffered documentary evidence to bolster the testimonies of its witnesses, to wit: (1) medical certificate of AAA dated 10 October 1997 issued by Dr. Abilla (Exhibit A);768[26] (2) written report on the physical examination of AAA dated 28 September 1997 signed by Dr. Abilla (Exhibit B);769[27] (3) sworn statement of BBB (Exhibit C);770[28] (4) sworn

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statement of AAA (Exhibit D);771[29] (5) blotter of the Hinoba-an Police Station regarding the incidents (Exhibit E);772[30] and (6) criminal complaint for rape against appellant signed by BBB and filed before the Municipal Trial Court of Hinoba-an (Exhibit F).773[31]

For its part, the defense presented the testimonies of appellant, Randy Katindig (Katindig), and Dr. Eriberto Layda (Dr. Layda) to refute the foregoing accusations. Appellant denied any liability and interposed the defenses of alibi and frame-up.

Appellant, a resident of Barangay 2, Poblacion, Hinoba-an, Negros Occidental, testified that he was hired by Philex in 1994 as a worker on its site at Brgy. Damutan, Hinoba-an, Negros Occidental. On 15 April 1997, Philex

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dismissed him for robbery. Thereafter, he frequently went to Basay, Negros Occidental, to solicit help from friends.774[32]

On 19 September 1997, appellant left his house and went to Basay, arriving there at 10:30 a.m. He met his friend, Katindig, at about 4:20 p.m. Subsequently, he and Katindig proceeded to the house of a certain Polly at Bal-os, Negros Occidental. Polly was the younger brother of appellant‘s friend and a former coemployee named Junior. Appellant stayed in Polly‘s house from 19 September 1997 up to 22 September 1997. He never left Polly‘s house during the said period.775[33]

Appellant denied knowing AAA and BBB and having stayed in the house of Bong Lupega. He claimed he never went to XXX. Also, AAA and BBB were merely instigated by Junior Bonilla to file the instant cases since the latter was terminated from work in Philex because of him.776[34]

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Katindig, a resident of Brgy. 2, Poblacion, Hinoba-an, Negros Occidental, narrated that he came to know appellant in January 1997. On 19 September 1997, Katindig left his residence and went to Basay, arriving there at 4:00 p.m. He proceeded to the house of a certain Diego to meet a certain Major Balodo. He met appellant in Diego‘s house. Appellant invited him to Polly‘s house at Bal -os to which he acceded. Upon their arrival at Polly‘s house, appellant and Polly talked. Subsequently, Katindig left Polly‘s house and returned to Basay to meet Major Balodo. The former returned to Polly‘s house that evening and joined the latter and appellant in a drinking spree. Thereafter, the three of them slept in Polly‘s house at about 9:00 p.m. Katindig woke up the following morning of 20 September 1997 and left Polly‘s house. He went back to the latter‘s house at about 5:00 p.m. of the same day and had a drinking session with him and appellant. They all slept in Polly‘s house that evening.777[35]

On the morning of 21 September 1997, Katindig left Polly‘s house and proceeded to Basay. He returned to the latter‘s house in the afternoon of the same day and talked with him and appellant. They slept in Polly‘s house that evening. On 22 September 1997, at around 2:00 p.m., he left the house and proceeded to Dumaguete. Later, his wife told him that appellant was arrested for rape. Appellant told him that he was a victim of a frame-up.778[36]

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Dr. Layda, Laboratory Department Head of the Corazon Locsin Montelibano Memorial Hospital, testified that he conducted a Clinical Microscopic Examination on appellant on 16 June 1998. The result thereof showed that appellant was not suffering from any sexually transmitted disease.779[37]

The defense likewise adduced the said medical/laboratory report (Exhibit 1) on appellant signed by Dr. Layda as its sole documentary evidence.780[38]

After trial, the RTC rendered a Decision convicting appellant of rape.781[39] Appellant was sentenced to suffer capital punishment in each of the cases. He was also ordered to pay AAA in each of the cases the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages. The fallo of the RTC Decision reads:

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WHEREFORE, the Court finds the accused Rolly Montesa y Lumiran guilty beyond reasonable doubt of the crime of rape defined and punished under Article 335, paragraph 1 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659 and Republic Act No. 8353 and conformably sentences him to suffer the supreme penalty of death in each case. He is likewise ordered to indemnify the complainant (AAA) in the amount of Seventy Five Thousand Pesos (P75,000.00) as civil indemnity and Fifty Thousand Pesos (P50,000.00) as moral damages in each case.782[40]

In view of the death penalty imposed on appellant, the instant cases were elevated to this Court for automatic review. However, pursuant to our ruling in People v. Mateo,783[41] we remanded the cases to the Court of Appeals for disposition.

On 22 December 2006, the Court of Appeals promulgated its Decision affirming with modifications the RTC Decision.784[42] The appellate court downgraded the death penalty to reclusion perpetua pursuant to Republic Act No. 9346. It also awarded AAA the amount of P30,000.00 as exemplary damages. Thus:

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WHEREFORE, the assailed Decision of the Regional Trial Court, Branch 61, City of Kabankalan, Negros Occidental, in Criminal Cases Nos. 98-2035 and 98-2036, finding accused-appellant ROLLY MONTESA guilty beyond reasonable doubt of rape is hereby AFFIRMED with MODIFICATION. Rolly Montesa is hereby meted the penalty of reclusion perpetua, and ordered to indemnify the victim, (AAA) in the amount of Seventy Five Thousand Pesos (P75,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages in each case, and considering that the crime of rape was committed inside the dwelling of the victim, by way of exemplary damages, Thirty Thousand Pesos (P30,000.00).

Appellant filed a Notice of Appeal on 16 January 2007.785[43]

Before us, appellant assigned the following errors:

I.

THE LOWER COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II. ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT COMMITTED THE CRIMES CHARGED, THE LOWER COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF DWELLING THEREBY IMPOSING THE SUPREME PENALTY OF DEATH.786[44]

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In reviewing rape cases, this Court is guided by three principles, to wit: (1) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defense.787[45]

The credibility, thus, of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things, the accused may be convicted solely on the basis thereof.788[46]

We have carefully examined AAA‘s court testimony and found it to be credible and trustworthy. Her positive identification of appellant as the one who ravished her on 19 and 21 of September 1997, as well as her direct account of the heinous acts, is clear and consistent, viz:

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Q

When you were already prepared to sleep at about 10:00 o‘clock in the evening of September 19, 1997, what happened, if any? There was something which happened, Sir. What was that? I saw Rolly Montesa already near my bed, no longer wearing his pants and brief, and when I looked at the window the cover was already removed. How did you recognize that it was Rolly beside your bed as it was nighttime?

A Q A

Q

WITNESS A Because there was a light coming from the kerosene lamp, Sir.

PROSECUTOR GARDE – Q Aside from seeing Rolly Montesa beside your bed without any pants and brief anymore, what else did you notice in him, if any? I saw him holding a knife when he was transferring the kerosene lamp and blew it off. Will you please describe that knife you saw being held by Rolly Montesa when he was beside your bed? The length is about this, Sir.

A

Q

A

INTERPRETER – About one and one-half (1-1/2) feet COURT – About fourteen (14) inches – PROCEED. PROSECUTOR GARDE – Q
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How about the knife, please describe to us the knife?

WITNESS A Q It was a jagged knife, Sir. After Rolly Montesa had blown off the kerosene lamp, what else did he do? After he blew off the kerosene lamp he approached me, removed my shorts and panty, placed himself on top of me, wet his penis with his saliva and inserted his penis inside my vagina. All the time when Rolly Montesa was taking off your underwear and came near you, what did you do, if any – did you not shout? No, Sir. Why did you not shout? Because he warned me that if I will shout, he will stab me, Sir. What about that knife which he was holding when he was telling you that, what did he do with it?

A

Q

A Q A Q

WITNESS A He was pointing it towards my neck, Sir.

PROSECUTOR GARDE Q A Q Was he able to have his penis inserted into your vagina? Yes, Sir. Did you not do anything in order that he would not be able to insert his penis inside your vagina? I was struggling, Sir, to free myself from his hold. Was there anything he was doing in counter-action to your struggle to free yourself from him? He was pinning me down strongly, Sir. Will you please tell this Honorable Court for how long was Rolly Montesa on top of you and his penis inside your vagina, if you can recall?

A Q

A Q

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WITNESS – A Quite sometime, Sir.

PROSECUTOR GARDE – Q What did you feel when he was doing this – while he was inserting his penis inside you vagina? I felt that there was some fluid on my private part. How about your body? I felt his heavy weight above me as well as the pain. How about your vagina? I also felt the pain in my vagina, Sir. After you have felt something oozing from his penis, what else did you feel? I felt pain in my vagina, Sir. After that what happened? After that he took a rest beside me by lying beside me, and afterwards he repeated the sexual act.

A Q A Q A Q

A Q A

PROSECUTOR GARDE – Q When you said repeated, you mean to say he inserted his penis again inside your vagina?

WITNESS – A Q A Q
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Yes, Sir. Then, after the second sexual intercourse, what else happened? He continued holding the knife, pointing it toward my neck. And after that what happened?

A Q A

He continued pinning me down, pushing himself up and down, Sir. After that second act, what else did he do? After the second act, he stood up and wiped his penis where there was a secretion coming out, and warned me that if I tell somebody he will kill me. Then, afterwards, what did he do? He left, Sir. And when he left, where did he pass?

Q A Q

WITNESS – A He passed thru the window where he entered.

xxxx

Q Will you please tell the Honorable Court what was that unusual incident which happened in the evening of September 21, 1997 in your room? A Q A Q He again passed in the window, Sir. To whom are you referring when you said ―he‖? Rolly Montesa, Sir. You mean the person who entered your room in the evening of September 19, 1997? Yes, Sir. When he entered your room in the evening of September 21, 1997 what happened? Again, he blew off the kerosene lamp when he was already naked, without pants and brief, Sir.

A Q

A

PROSECUTOR GARDE –

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Q

And what happened after you saw him inside your room naked already?

WITNESS A Q A Q A Q A I did not make any noise because I was afraid as he was holding a knife. Was it the same knife which he used on September 19, 1997? Yes, Sir. Was there anything which he did to you that night? Yes, Sir. What did he do to you as he was already naked and holding a knife? The same thing happened, Sir. After putting off the kerosene lamp, he approached me, lubricated his penis with his saliva and inserted his penis inside my vagina. Was he able to insert his penis inside your vagina?

Q

WITNESS – A Yes, Sir.

PROSECUTOR GARDE Q A xxxx Q How about you, when he was on top of your body and his penis was inside your vagina, what were you doing? I kept on moving, Sir. What was the reason why you said you kept on moving? Because I felt pain when his penis was inside my vagina, and there was something oozing from his penis, Sir. How did you know that his penis was already inside your vagina? I felt pain in my vagina after he inserted his penis inside my vagina.

A Q A

PROSECUTOR GARDE –

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Q

Where did that substance come from?

WITNESS A Q A From the penis of Rolly Montesa, Sir. After he was through, what happened? After that he stood up and warned me not to tell my mother or else he will kill me, and then went out of the window.789[47]

Well-entrenched is the rule that the testimony of a minor rape victim, such as AAA, is given full weight and credence, considering that no young woman would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her. Youth and immaturity are badges of truth.790[48]

It is also significant to note that the RTC gave full credence to the testimony of AAA as she relayed her painful ordeal in a candid manner. It found the testimonies of AAA to be credible and sincere. Jurisprudence instructs that when the credibility of a witness is of primordial consideration, as in this case, the findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on

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said findings, are accorded respect if not conclusive effect. This is because the trial court has had the unique opportunity to observe the demeanor of the witnesses and was in the best position to discern whether they were telling the truth. When the trial court‘s findings have been affirmed by the appellate court, as in the present case, said findings are generally binding upon this Court.791[49]

In addition to the aforesaid testimony of AAA, her physician, Dr. Abilla, corroborated AAA‘s testimony on material and relevant points. Her medico-legal report regarding AAA was also offered by the prosecution as its documentary evidence.

Appellant, however, maintained in his first assigned error that the foregoing testimony of AAA was unbelievable based on the following reasons: (1) it was impossible for him to have raped AAA in the latter‘s room because there were tenants in the room closely adjacent to that of AAA and in the rooms on the second floor of the house during the incidents; (2) when Monalyn asked AAA if appellant went to her room on the night of 19 September 1997 and touched her private parts, AAA replied that appellant merely kissed her; (3) AAA did not seek her neighbor‘s assistance with regard to the incidents; and (4) AAA acted normally and did her usual chores after the incidents.792[50]

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It was not impossible for appellant to have raped AAA in the latter‘s room despite the presence of tenants in the room closely adjacent to that of AAA and in the rooms on the second floor of the house. We have held that lust is no respecter of time and place.793[51] Thus, rape can be committed even in places where people congregate, in parks, along the roadsides, in school premises, in a house where there are other occupants and even in places which, to many, would appear unlikely and high-risk venues for its commission.794[52] The presence of people nearby does not deter rapists from committing their odious act.795[53] Besides, there is no rule that rape can be committed only in seclusion.796[54]

True, AAA testified that when Monalyn asked her if appellant went to her room on the night of 19 September 1997 and touched her private parts, she replied that appellant merely kissed her. Also, AAA did not seek assistance from her other neighbors with regard to the incidents. Nevertheless, these cannot be taken against

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AAA. A rape victim is oftentimes overwhelmed by fear rather than by reason.797[55] Hence, it is not uncommon for a young rape victim to conceal for some time the assault on her virtue because of a rapist‘s threat on her life.798[56] AAA testified that appellant repeatedly threatened to kill her if she would divulge the incidents to others. This was the reason why AAA hesitated from revealing the incidents to Monalyn and to her other neighbors. AAA‘s fear of appellant‘s threat was reasonable, considering that appellant frequently stayed in XXX.

The fact that AAA acted normally and did her usual chores after the incidents does not negate rape. How the rape victim comported herself after the incident was not significant, as it had nothing to do with the elements of the crime of rape.799[57] Further, AAA was barely 12 years old at the time of the incidents. At such a young age, AAA cannot be reasonably expected to act the way mature individuals would when placed in such a situation.800[58] Not all rape victims can be expected to act conformably to the usual expectations of everyone. People react differently to a given situation, and there is no standard form of human

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behavioral response when one is confronted with a strange, startling or frightful experience. In People v. Luzorata,801[59] we held:

This Court indeed has not laid down any rule on how a rape victim should behave immediately after she has been abused. This experience is relative and may be dealt with in any way by the victim depending on the circumstances, but her credibility should not be tainted with any modicum of doubt x x x.

Denial is inherently a weak defense, as it is negative and self-serving. It cannot prevail over the positive identification and testimony of credible witnesses who testify on affirmative matters.802[60]

Appellant testified that he was sleeping in Polly‘s house at Bal-os during the incidents. Katindig claimed that he and appellant went to sleep at around 9:00 p.m. of 19 September 1997; that he woke up at 6:00 a.m. of 20 September 1997 and saw appellant in Polly‘s house; that he and appellant went to sleep at around 9:00 p.m. of 21 September 1997; and that he woke up at 6:00 a.m. of 22 September 1997 and saw appellant in Polly‘s house. Be that as it may, Katindig did not testify that he saw appellant in Polly‘s house at about or past 10:00 p.m. up to midnight of the dates of the incidents. Katindig merely stated he and appellant slept at around 9:00 p.m. and when he woke up at 6 a.m. the following morning, he saw appellant in

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Polly‘s house. Thus, it was highly possible that since Katindig was sleeping at 9:00 p.m., he did not notice appellant‘s departure from Polly‘s house a little after 9:00 p.m. Appellant then proceeded to the house of AAA at XXX where he raped AAA. It is also highly probable that Katindig did not notice appellant‘s subsequent return to Polly‘s house from the crime scene before 6:00 a.m., because he was still sleeping. The foregoing view is buttressed by the records showing that XXX can be reached in an hour from Bal-os.803[61] There was, therefore, a huge possibility that appellant was present at the scene of the crime when it was committed at about 10:00 p.m. of 19 and 21 September 1997. Thus, the defense failed to prove that it was physically impossible for appellant to be at or near the crime scene when the incidents transpired. Besides, we have held that an alibi becomes less plausible as a defense when it is corroborated only by relatives or friends of the accused.804[62]

Alibi is the weakest of all defenses, for it is easy to contrive and difficult to prove.805[63] Alibi must be proved by the accused with clear and convincing evidence.806[64] For alibi to prosper, it is not enough for the accused to prove

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that he was somewhere else when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.807[65]

Appellant concludes that he was a victim of a frame-up; that Junior Bonilla and Pepito were brothers; and that AAA and BBB were merely instigated by Junior Bonilla and Pepito to file the instant cases because he (appellant) was the reason why Junior Bonilla was terminated from his previous job in Philex.

The defense of frame-up, like alibi, has been invariably viewed by this Court with disfavor, for it can easily be concocted but is difficult to prove.808[66] In order to prosper, the defense of frame-up must be proved by the accused with clear and convincing evidence.809[67]

In the cases under consideration, appellant failed to present any clear and convincing proof that AAA and BBB were induced by Junior Bonilla and Pepito to

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file the instant cases. Further, Pepito clarified in his testimony that he did not know, nor had he met, appellant prior to the reporting of the incidents by AAA and BBB.810[68] Pepito also testified that SPO1 Santes was the investigator in charge of the cases, and that the chief of the Hinoba-an Police Station was the one who filed the instant cases.811[69] Thus, appellant‘s bare allegation of frame-up must fail.

Appellant also asserted that he could not have been the rapist of AAA because Dr. Layda testified that he was not suffering from gonorrhea. He cited the finding of prosecution witness Dr. Abilla that AAA was infected with gonorrhea at the time of the latter‘s examination.

Although Dr. Layda confirmed that appellant was not suffering from gonorrhea at the time of appellant‘s examination on 16 June 1998, this did not, however, conclusively show that appellant did not have gonorrhea at the time of the incidents on 19 and 21 September 1997. Dr. Layda admitted that gonorrhea could be cured by a daily intake of antibiotics for two weeks.812[70] Dr. Layda

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also stated that antibiotics could be easily bought in drugstores.813[71] It could be then that after raping AAA on 19 and 21 September 1997, appellant took antibiotics and was thereafter cured of gonorrhea. This readily explains why Dr. Layda found in his examination conducted on 16 June 1998 that appellant was not infected with gonorrhea. Dr. Layda testified as follows:

PROSECUTOR GARDE – Q Doctor, will you please tell us if this sexually transmitted disease like gonorrhea, is curable or not?

WITNESS – A Q A Q It is a curable disease, sir. Are the drugs used to cure this kind of disease very easy to procure? The drugs are available in the drugstores, with prescriptions, sir. If gonorrhea is treated immediately, how much time will it take to cure this disease? After taking the drugs, may be in two (2) weeks time, sir. Can you give us the names of the drugs for this kind of disease? Antibiotics like amoxicillin – there are many drugs in the market for curing that type of disease, sir.

A Q A

PROSECUTOR GARDE Q When you examined the patient on June 16, 1998, can we safely assume that if the patient had contacted gonorrhea sometime ago, he was already cured?

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WITNESS A Yes, sir – he can go to a physician for proper treatment.814[72]

In his second assigned error, appellant argued that the RTC erred in appreciating the aggravating circumstance of dwelling and in imposing the death penalty.815[73]

As the rapes were committed on 19 and 21 of September 1997, the applicable law is Section 11 of Republic Act No. 7659, otherwise known as the Death Penalty Law, which took effect on 31 December 1993. The said provision states that if rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. Since the informations alleged that appellant used a jagged knife in raping AAA and such fact was proven during the trial, the penalty imposable on appellant is reclusion perpetua to death.

Republic Act No. 7659 also provides that the death penalty shall be imposed if the rape victim was a minor and the offender was her parent, ascendant or relative. The information alleged that AAA was a minor (12 years old) during the incidents. Nevertheless, there was no allegation and proof that appellant was

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AAA‘s parent, ascendant, or relative. As such, AAA‘s minority cannot qualify the penalty to death. The penalty imposable on appellant, therefore, remains to be reclusion perpetua to death.

The information also alleged that appellant raped AAA in the latter‘s dwelling and such circumstance was duly proven during the trial. Under Article 14(3) of the Revised Penal Code, dwelling is an aggravating circumstance where the crime is committed in the dwelling of the offended party and the latter has not given provocation. Hence, we have steadfastly held that dwelling is an aggravating circumstance in the crime of rape.816[74] Dwelling is considered as an aggravating circumstance primarily because of the sanctity of privacy the law accords to human abode.817[75]

Article 63 of the Revised Penal Code provides that if the penalty is composed of two indivisible penalties, as in this case, and there is one aggravating circumstance, the greater penalty shall be applied. Since the aggravating circumstance of dwelling was present in these cases, the penalty of death should be imposed on appellant. Nonetheless, with the effectivity of Republic Act No. 9346818[76] entitled ―An Act Prohibiting the Imposition of Death Penalty in the

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Philippines,‖ the imposition of the capital punishment of death has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted out to appellant shall be reclusion perpetua. Said section reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed: a) b) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides:

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Having determined the guilt of appellant for rape and the proper prison term imposable on him, we shall now assess the propriety of the damages awarded to AAA.

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The RTC and the Court of Appeals were correct in awarding civil indemnity to AAA in each of the cases, since the grant of this damage is mandatory upon a finding of rape.819[77] Both courts also acted properly in fixing the amount thereof at P75,000.00. In People v. Quiachon,820[78] we explained that even if the penalty of death is not to be imposed on accused because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper, as the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. In the present cases, appellant raped AAA in the latter‘s dwelling. This circumstance was alleged in the informations and proven during the trial.

The award of moral damages in each of the cases is proper because AAA is assumed to have suffered moral injuries.821[79] However, the amount of P50,000.00 imposed as moral damages should be increased to P75,000.00 based on prevailing jurisprudence.822[80]

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The Court of Appeals acted accordingly in granting exemplary damages to AAA in each of the cases because the rapes were attended by the aggravating circumstance of dwelling.823[81] Nevertheless, the amount of P30,000.00 imposed as exemplary damages should be reduced to P25,000.00 in conformity with our latest decisions.824[82]

WHEREFORE, after due deliberation, the Decision of the Court in CAG.R. CR HC No. 00314, dated 22 December 2006, is hereby AFFIRMED with the following MODIFICATIONS: (1) the award for moral damages is increased from P50,000.00 to P75,000.00 in each case; and (2) that for exemplary damages is reduced from P30,000.00 to P25,000.00 in each case.

SO ORDERED.

MINITA V. CHICO-NAZARIO

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Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ

ANTONIO EDUARDO B. NACHURA

Associate Justice

Associate Justice

RUBEN T. REYES Associate Justice

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ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson‘s Attestation, it is hereby certified that the conclusions in the above
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Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court‘s Division.

REYNATO S. PUNO Chief Justice

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