rRepublic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 132547
September 20, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SPO1 ERNESTO ULEP, accused-appellant.
DECISION
BELLOSILLO, J.:
In the aftermath of an incident where a certain Buenaventura Wapili 1 went
berserk at Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early
morning of 22 December 1995, Police Officer Ernesto Ulep was found guilty of
murder and sentenced to death by the trial court for killing Wapili. Ulep was also
ordered to indemnify the heirs of the victim in the amount of P50,000.00 and to
pay the costs.2
The evidence shows that at around two o' clock in the morning of 22 December
1995 Buenaventura Wapili was having a high fever and was heard talking
insensibly to himself in his room. His brother-in-law, Dario Leydan, convinced him
to come out of his room and talk to him, but Wapili told Leydan that he could not
really understand himself. After a while, Wapili went back to his room and turned
off the lights. Moments later, the lights went on again and Leydan heard a
disturbance inside the room, as if Wapili was smashing the furniture. 3 Unable to
pacify Wapili, Leydan called Pastor Bonid of the Alliance Church of Kidapawan to
help him "pray over" Wapili, but they could not enter the latter's room as he
became wild and violent. Suddenly, Wapili bolted out of his room naked and
chased Leydan. Thereafter, Leydan with the aid of two (2) of his neighbors
attempted to tie Wapili with a rope but was unsuccessful as Wapili was much
bigger in built and stronger than anyone of them. 4 Wapili, who appeared to have
completely gone crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and
asked for assistance. As Wapili passed by the house of Plando, he banged
Plando's vehicle parked outside. Using a hand-held radio, Plando then contacted
SPO1 Ernesto Ulep, SPO1 Edilberto Espadera and SPO2 Crispin Pillo, all
members of the PNP assigned to secure the premises of the nearby Roman
Catholic Church of Kidapawan.5
At around four o'clock in the morning of the same day, SPO1 Ulep together with
SPO1 Espadera and SPO2 Pillo arrived at the scene on board an Anfra police
service jeep. The three (3) police officers, all armed with M-16 rifles, alighted from

the jeep when they saw the naked Wapili approaching them. The kind of weapon
Wapili was armed with is disputed. The police claimed that he was armed with a
bolo and a rattan stool, while Wapili's relatives and neighbors said he had no
bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his
weapons or they would shoot him. But Wapili retorted "pusila!" ("fire!") and
continued advancing towards the police officers. When Wapili was only about two
(2) to three (3) meters away from them, SPO1 Ulep shot the victim with his M-16
rifle, hitting him in various parts of his body. As the victim slumped to the ground,
SPO1 Ulep came closer and pumped another bullet into his head and literally
blew his brains out.6
The post mortem examination of the body conducted by Dr. Roberto A.
Omandac, Municipal Health Officer of Kidapawan, showed that Wapili sustained
five (5) gunshot wounds: one (1) on the right portion of the head, one (1) on the
right cheek, one (1) on the abdomen and two (2) on the right thigh: SHEENT gunshot wound on the right parietal area with fractures of the right
temporoparietal bones with evisceration of brain tissues, right zygomatic bone
and right mandible, lateral aspect; CHEST AND BACK - with powder burns on the
right posterior chest; ABDOMEN - gunshot wound on the right upper quadrant
measuring 0.5 cm. in diameter (point of entry) with multiple powder burns around
the wound and on the right lumbar area (point of exit). Gunshot wound on the
suprapubic area (point of entry); EXTREMETIES - with gunshot wounds on the
right thigh, upper third, anterior aspect measuring 0.5 cm. in diameter with
powder burns (point of entry) and right buttocks measuring 0.5 cm. in diameter
(point of exit); gunshot wound on the right thigh, upper third, posterolateral
aspect; CAUSE OF DEATH - multiple gunshot wounds. 7
Dr. Omandac concluded that the shots were fired at close range, perhaps within
twenty-four (24) inches, judging from the powder burns found around some of the
wounds in the body of the victim, 8 and that the wound in the head, which caused
the victim's instantaneous death, was inflicted while "the victim was in a lying
position."9
The Office of the Ombudsman for the Military filed an Information for murder
against SPO1 Ulep.1wphi1 The accused pleaded not guilty to the charge on
arraignment, and insisted during the trial that he acted in self-defense. However,
on 28 October 1997, the trial court rendered judgment convicting the accused of
murder and sentencing him to death The means employed by the accused to prevent or repel the alleged aggression
is not reasonable because the victim, Buenaventura Wapili, was already on the
ground, therefore, there was no necessity for the accused to pump another shot

on the back portion of the victim's head. Clearly the gravity of the wounds
sustained by the victim belies the pretension of the accused that he acted in selfdefense. It indicates his determined effort to kill the victim. It is established that
accused (sic) was already in the ground that would no longer imperil the
accused's life. The most logical option open to the accused was to inflict on the
victim such injury that would prevent the victim from further harming him. The
court is not persuaded by the accused's version because if it is true that the
victim attacked him and his life was endangered - yet his two (2) companions
SPO1 Espadera and SPO2 Pillo did not do anything to help him but just witness
the incident - which is unbelievable and unnatural behavior of police officers x x x
x
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered
finding the accused Ernesto Ulep guilty beyond reasonable doubt of the crime of
Murder, the accused is hereby sentenced to suffer the extreme penalty of Death,
to indemnify the heirs of Buenaventura Wapili the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency and to pay the costs.
Death penalty having been imposed by the trial court, the case is now before us
on automatic review. Accused-appellant prays for his acquittal mainly on the
basis of his claim that the killing of the victim was in the course of the
performance of his official duty as a police officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accused-appellant assumed
the burden of proving legal justification therefor. He must establish clearly and
convincingly how he acted in fulfillment of his official duty and/or in complete selfdefense, as claimed by him; otherwise, he must suffer all the consequences of
his malefaction. He has to rely on the quantitative and qualitative strength of his
own evidence, not on the weakness of the prosecution; for even if it were weak it
could not be disbelieved after he had admitted the killing. 10
Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of
The Revised Penal Code may be successfully invoked, the accused must prove
the presence of two (2) requisites, namely, that he acted in the performance of a
duty or in the lawful exercise of a right or an office, and that the injury caused or
the offense committed be the necessary consequence of the due performance of
duty or the lawful exercise of such right or office. The second requisite is lacking
in the instant case.
Accused-appellant and the other police officers involved originally set out to
perform a legal duty: to render police assistance, and restore peace and order at
Mundog Subdivision where the victim was then running amuck. There were two
(2) stages of the incident at Mundog Subdivision. During the first stage, the victim
threatened the safety of the police officers by menacingly advancing towards

them, notwithstanding accused-appellant's previous warning shot and verbal

admonition to the victim to lay down his weapon or he would be shot. As a police
officer, it is to be expected that accused-appellant would stand his ground. Up to
that point, his decision to respond with a barrage of gunfire to halt the victim's
further advance was justified under the circumstances. After all, a police officer is
not required to afford the victim the opportunity to fight back. Neither is he
expected - when hard pressed and in the heat of such an encounter at close
quarters - to pause for a long moment and reflect coolly at his peril, or to wait
after each blow to determine the effects thereof.
However, while accused-appellant is to be commended for promptly responding
to the call of duty when he stopped the victim from his potentially violent conduct
and aggressive behavior, he cannot be exonerated from overdoing his duty
during the second stage of the incident - when he fatally shot the victim in the
head, perhaps in his desire to take no chances, even after the latter slumped to
the ground due to multiple gunshot wounds sustained while charging at the police
officers. Sound discretion and restraint dictated that accused-appellant, a veteran
policeman,11 should have ceased firing at the victim the moment he saw the latter
fall to the ground. The victim at that point no longer posed a threat and was
already incapable of mounting an aggression against the police officers. Shooting
him in the head was obviously unnecessary. As succinctly observed by the trial
court Once he saw the victim he fired a warning shot then shot the victim hitting him on
the different parts of the body causing him to fall to the ground and in that
position the accused shot the victim again hitting the back portion of the victim's
head causing the brain to scatter on the ground x x x x the victim, Buenaventura
Wapili, was already on the ground. Therefore, there was no necessity for the
accused to pump another shot on the back portion of the victim's head.
It cannot therefore be said that the fatal wound in the head of the victim was a
necessary consequence of accused-appellant's due performance of a duty or the
lawful exercise of a right or office.
Likewise, the evidence at hand does not favor his claim of self-defense. The
elements in order for self-defense to be appreciated are: (a) unlawful aggression
on the part of the person injured or killed by the accused; (b) reasonable
necessity of the means employed to prevent or repel it; and, (c) lack of sufficient
provocation on the part of the person defending himself. 12
The presence of unlawful aggression is a condition sine qua non. There can be
no self-defense, complete or incomplete, unless the victim has committed an
unlawful aggression against the person defending himself. 13 In the present case,
the records show that the victim was lying in a prone position on the ground -

bleeding from the bullet wounds he sustained, and possibly unconscious - when
accused-appellant shot him in the head. The aggression that was initially begun
by the victim already ceased when accused-appellant attacked him. From that
moment, there was no longer any danger to his life.
This Court disagrees with the conclusion of the court a quo that the killing of
Wapili by accused-appellant was attended by treachery, thus qualifying the
offense to murder. We discern nothing from the evidence that the assault was so
sudden and unexpected and that accused-appellant deliberately adopted a mode
of attack intended to insure the killing of Wapili, without the victim having the
opportunity to defend himself.
On the contrary, the victim could not have been taken by surprise as he was
given more than sufficient warning by accused-appellant before he was shot, i.e.,
accused-appellant fired a warning shot in the air, and specifically ordered him to
lower his weapons or he would be shot. The killing of Wapili was not sought on
purpose. Accused-appellant went to the scene in pursuance of his official duty as
a police officer after having been summoned for assistance. The situation that the
victim, at the time accused-appellant shot him in the head, was prostrate on the
ground is of no moment when considering the presence of treachery. The
decision to kill was made in an instant and the victim's helpless position was
merely incidental to his having been previously shot by accused-appellant in the
performance of his official duty.
There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. 14 Considering the rule that
treachery cannot be inferred but must be proved as fully and convincingly as the
crime itself, any doubt as to its existence must be resolved in favor of accusedappellant. Accordingly, for failure of the prosecution to prove treachery to qualify
the killing to murder, accused-appellant may only be convicted of homicide.
Indeed, to hold him criminally liable for murder and sentence him to death under
the circumstances would certainly have the effect of demoralizing other police
officers who may be called upon to discharge official functions under similar or
identical conditions. We would then have a dispirited police force who may be
half-hearted, if not totally unwilling, to perform their assigned duties for fear that
they would suffer the same fate as that of accused-appellant.
This brings us to the imposition of the proper penalty.
We find in favor of accused-appellant the incomplete justifying circumstance of
fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised
Penal Code, "a penalty lower by one or two degrees than that prescribed by law

shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in Arts. 11 and 12, provided that the
majority of such conditions be present. The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking."
Incomplete justification is a special or privileged mitigating circumstance, which,
not only cannot be offset by aggravating circumstances but also reduces the
penalty by one or two degrees than that prescribed by law. 15 Undoubtedly, the
instant case would have fallen under Art. 11, par. 5 of The Revised Penal Code
had the two (2) conditions therefor concurred which, to reiterate: first, that the
accused acted in the performance of a duty or the lawful exercise of a right or
office; and second, that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise of such
right or office. But here, only the first condition was fulfilled. Hence, Art. 69 is
applicable, although its "that the majority of such conditions be present," is
immaterial since there are only two (2) conditions that may be taken into account
under Art. 11, par. 5. Article 69 is obviously in favor of the accused as it provides
for a penalty lower than that prescribed by law when the crime committed is not
wholly justifiable. The intention of the legislature, obviously, is to mitigate the
penalty by reason of the diminution of either freedom of action, intelligence, or
intent, or of the lesser perversity of the offender.16
We likewise credit in favor of accused-appellant the mitigating circumstance of
voluntary surrender. The police blotter of Kidapawan Municipal Police Station
shows that immediately after killing Wapili, accused-appellant reported to the
police headquarters and voluntarily surrendered himself. 17
Article 249 of The Revised Penal Code prescribes for the crime of homicide the
penalty of reclusion temporal, the range of which is twelve (12) years and one (1)
day to twenty (20) years. There being an incomplete justifying circumstance of
fulfillment of a duty, the penalty should be one (1) degree lower, i.e., from
reclusion temporal to prision mayor, pursuant to Art. 69, in relation to Art. 61, par.
2, and Art. 71, of the Code, to be imposed in its minimum period since accusedappellant voluntarily surrendered to the authorities and there was no aggravating
circumstance to offset this mitigating circumstance. Applying the Indeterminate
Sentence Law, the maximum of the penalty shall be taken from the minimum
period of prision mayor, the range of which is six (6) years and one (1) day to
eight (8) years, while the minimum shall be taken from the penalty next lower in
degree which is prision correccional, in any of its periods, the range of which is
six (6) months and one (1) day to six (6) years.

The right to kill an offender is not absolute, and may be used only as a last resort,
and under circumstances indicating that the offender cannot otherwise be taken
without bloodshed. The law does not clothe police officers with authority to
arbitrarily judge the necessity to kill. 18 It may be true that police officers
sometimes find themselves in a dilemma when pressured by a situation where an
immediate and decisive, but legal, action is needed. However, it must be stressed
that the judgment and discretion of police officers in the performance of their
duties must be exercised neither capriciously nor oppressively, but within
reasonable limits. In the absence of a clear and legal provision to the contrary,
they must act in conformity with the dictates of a sound discretion, and within the
spirit and purpose of the law.19 We cannot countenance trigger-happy law
enforcement officers who indiscriminately employ force and violence upon the
persons they are apprehending. They must always bear in mind that although
they are dealing with criminal elements against whom society must be protected,
these criminals are also human beings with human rights.
WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1
ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is
sentenced to an indeterminate prison term of four (4) years, two (2) months and
ten (10) days of prision correccional medium as minimum, to six (6) years, four
(4) months and twenty (20) days of prision mayor minimum as maximum. He is
further ordered to indemnify the heirs of Buenaventura Wapili in the amount of
P50,000.00, and to pay the costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ.,
concur.
Ynares-Santiago, J., on leave.
Footnotes
1
Sometimes spelled "Wapille."
2
Decision penned by Judge Rodolfo M. Serrano, RTC-Br. 17, Kidapawan,
Cotabato, prom. 28 October 1997.
3
TSN, 14 January 1997, pp. 7-9
4
Id., p. 20.
5
TSN, 9 September 1997, pp. 7-8.
6
TSN, 12 February 1997, p. 11.
7
Records, pp. 59-60.
8
TSN, 6 June 1997, p. 18.
9
Id., p. 37.

10

People v. Cario, G.R. No. 123325, 31 March 1998, 288 SCRA 404.
Appellant has been in the service for 18 years and has several commendations.
12
People v. Sazon, G.R. No. 89684, 18 September 1990, 189 SCRA 700.
13
Ibid.
14
People v. Villegas, G.R. No. 118653, September 23, 1996, 262 SCRA 314.
15
See Lacanilao v. Court of Appeals, No. L-34940, June 27, 1988, 162 SCRA
563.
16
Ibid.
17
Records, p. 413; Exh. "E."
18
64 C.J.S. 49.
19
See People v. Pinto, G.R. No. 39519, 21 November 1991, 204 SCRA 9.
11

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 153287
June 30, 2008
NOEL GUILLERMO y BASILIANO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
BRION, J.:
For our review is the petition1 filed by the petitioner Noel Guillermo y Basiliano
(petitioner) against the decision2 dated November 15, 2001 and the resolution 3
dated April 5, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 24181. The
challenged decision4 affirmed the decision of the Regional Trial Court (RTC),
Branch 18, Roxas City convicting and penalizing the petitioner for the crime of
homicide with an indeterminate sentence of six (6) years of prision correccional,
as minimum, to ten (10) years of prision mayor, as maximum. The assailed
resolution, on the other hand, denied the petitioners motion for reconsideration.
BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo
Socias,5 Joemar Palma, and the petitioner with the crime of homicide under an
Information that states:
xxx
That at or about 5:40 oclock in the afternoon, on or about July 21, 1996, at Brgy.
Poblacion Takas, Municipality of Cuartero, Province of Capiz, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating[,] and mutually helping one another, armed with knives
and with intent to kill, did then and there willfully, unlawfully and feloniously
assault, attack and stab one WINNIE ALON y BILLANES, hitting the latter and
inflicting multiple stab wounds on the different parts of his body, which injuries
caused his death shortly thereafter.
That due to the untimely death of Winnie Alon y Billanes[,] his heirs are entitled to
death indemnity in the amount of P50,000.00 and other damages pursuant to the
provisions of the Civil Code of the Philippines.
ACTS CONTRARY TO LAW.6
The petitioner and his co-accused were arraigned and pleaded not guilty to the
offense charged with the assistance of their counsel de parte. The prosecution
presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as witnesses in the
trial that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby Lou Felipe (Baby Lou),
and the three accused the petitioner, Arnaldo Socias, and Joemar Palma took

the witness stand for the defense.

The material points in the testimony of Vicente were summarized by the trial court
in its decision7 as follows:
Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie Alon,
Wilfredo Cabison, Eddie Roque, and him [sic] were at the public market of
Cuartero, at [sic] the restaurant of Melecio Heyres to eat. 8 Noel Guillermo, Arnel
Socias, and Joemar Palma were at the restaurant drinking beer. Noel Guillermo
and Arnel Socias are known to him since childhood since they come from the
same barangay.9 Joemar Palma is known to him only recently in that incident. 10
While sitting at the table inside the restaurant, an altercation between Arnel
Socias and Winnie Alon regarding the cutting of wood by a chain saw [sic]
transpired. Noel Guillermo suddenly took hold of Winnie Alon and stabbed the
latter at the neck three (3) times. 11 Joemar Palma went to the kitchen and got a
knife. Arnel Socias hit him with a bottle of beer by [sic] the head. He fell down and
lost consciousness.12 [Footnotes referring to the pertinent parts of the record
supplied]
Significantly, Vicente admitted on cross-examination that he and Winnie were
already drunk even before they went to the restaurant where the stabbing took
place.13
Eddie corroborated the testimony of Vicente on material points, particularly on the
state of their intoxication even before going to the scene of the stabbing. His
testimony on what transpired at the restaurant was summarized in the RTC
decision14 as follows:
Eddie Roque alleged that at around 5:40 oclock in the afternoon of July 21,
1996, he, together with Winnie Alon, Vicente Alon and Wilfredo Cabison, were
[sic] inside the restaurant of Mrs. Heyres at Cuartero Public Market to leave their
tools of the chain saw [sic] and to eat and drink. 15 Noel Guillermo, Arnel Socias,
and Joemer Palma were ahead of them to [sic] the restaurant and were drinking
beer. They invited them and they joined them. 16 Before each of them could fully
consume a bottle served upon each of them, Winnie Alon and Arnel Socias
argued about the cutting of wood by means of a chain saw [sic]. The argument
was so heated that each of the protagonists stood up and Arnel Socias took 2
bottles which were thrown to Vicente Alon who was hit on the forehead. 17
Noel Guillermo hugged or embraced Winnie Alon and stabbed him three times (3)
on [sic] the neck with a Batangueo knife. Arnel Socias went around, then
behind, and stabbed Winnie Alon once, on the left side of his body, just below his
left armpit, with a pointed object, but he could not determine what weapon was
used. Joemar Palma also helped in stabbing Winnie Alon once, hitting him at the
right side of his body.18

Winnie Alon resisted trying to struggle [sic], but could not move because he was
ganged up by the three.19 [Footnotes referring to the pertinent parts of the record
supplied]
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness
stand that he conducted on July 22, 1996 a postmortem examination on the body
of Winnie20 and made the following findings:
POSTMORTEM EXAMINATION
The postmortem examination is done on the remains of Winnie Alon, 31 years
old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at about 5:40
P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining the following
injuries:
1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of 5 th rib
mid clavicular area.
2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the sternum.
3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.
The most probable cause of death was massive [H]emorrhage secondary to
multiple stab wounds.21
According to Dr. Betita, the cause of death was massive hemorrhage due to
multiple stab wounds.22 He added that the three (3) stab wounds were probably
caused by a sharp-bladed instrument like a knife. 23
The petitioner gave a different version of the events, summarized in the RTC
decision as follows:
Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he was in
Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes Heyres,
together with Arnel Socias and Joemar Palma drinking beer, consuming only
about half a bottle, when Winnie Alon, Eddie Roque, Vicente Alon, and Wilfredo
Cabison arrived and ordered beer from Babylou Felipe. Winnie Alon came to him
and requested to join them in their table which he affirmatively answered. Winnie
Alon then had an altercation with Arnel Socias regarding "labtik" (string used in
marking wood to be cut).24
Winnie Alon challenged Arnel Socias to a contest on clean or straight cutting of
wood. Arnel declined the challenge claiming that he is only an assistant to his
brother-in-law. Winnie Alon got angry and told him that he has long been in [the]
chain saw [sic] business but "youre stupid" ("gago ka!"). Arnel responded: "If the
wood is crooked and you would deviate from line, youre stupid." 25
Winnie Alon suddenly stood up and said to Arnel: "Dont ever call me stupid,"
pointing his finger to Arnel. He told them to settle the matter peacefully as they
are friend [sic], but Winnie Alon was so furious and grabbed Arnel Socias by the
collar. Arnel tried to release the hold of Winnie from his collar. While he was

pacifying the two telling them to settle the matter peacefully, Winnie Alon turned
to him and said: "you also," then struck him with a beer bottle. He was hit at the
right top of his head thrice. He stood up and boxed Winnie who again picked up a
bottle break [sic] it against the wall, and struck him with the broken bottle. He
stepped back, pulled his knife, and stabbed him three (3) times but cannot
remember what part of his body was hit by his successive stabs. 26 x x x
[Footnotes referring to the pertinent parts of the record supplied]
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the
afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar,
arrived at the restaurant and ordered beer.27 A few minutes later, Vicente, Eddie,
Winnie, and Wilfredo Cabison arrived and also ordered beer. She then saw the
group of Winnie transfer to the table occupied by the petitioner and his
companions. Thereafter, the group had a heated argument among themselves
regarding "labtik."28 In the course of the exchange, she saw Winnie strike the
petitioner on the head with a bottle. Winnie and the petitioner then grappled with
each other. At that point, she hid behind the refrigerator and did not see what
happened next. Afterwards, she saw the bloodied body of Winnie lying outside
the restaurant.29 She likewise saw the petitioner outside the restaurant; his shirt
was splattered with blood.30
Dr. Betita, this time testifying as defense witness, stated, among others, that the
contusion hematoma suffered by the petitioner could have been caused by a
hard object like a beer bottle, while the linear abrasion could have been caused
by a fingernail.31
Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and
Joemar, was drinking beer at the restaurant of Melecio Heyres 32 when Winnie
stood up and asked if they (Winnies group) could join them at their table. Arnaldo
and his companions agreed. Winnies group then transferred to the table of
Arnaldos group.33
The discussion took a bad turn when the matter of cutting by chainsaw was
raised. Winnie challenged Arnaldo to a contest to determine who could do the
cleanest cut. He declined and claimed he does not know how to operate a
chainsaw. To this, Winnie retorted, "You are already old in that business, but your
finished product is still crooked. You are all dumb." He countered, "If the wood
itself is crooked, you cannot have a straight lumber. You are dumb if you insist
you can." At that point, Winnie stood up and grabbed him by the collar. The
petitioner intervened and told them to settle their differences peacefully. Winnie
then grabbed a bottle and struck the petitioner on the head three times. 34 Arnaldo
added that he did not see who stabbed Winnie, because while the petitioner and
Winnie were grappling, he was busy fighting with Vicente. 35

Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner,
Arnaldo, and he were drinking beer at the restaurant of Mr. Heyres when four
persons, who appeared to be drunk (later identified as Vicente, Eddie, Winnie,
and Wilfredo Cabison), entered the restaurant and ordered beer. 36 After the latter
group joined them at their table, Winnie and Arnaldo had a heated discussion
regarding expertise in operating a chainsaw. Winnie grabbed the shirt collar of
Arnaldo in the course of the heated exchange. 37 The petitioner advised them to
calm down, but Winnie struck him (petitioner) on the head with a beer bottle three
times. Vicente also tried to strike Arnaldo, but the latter managed to duck and so
he (Joemar) took the hit instead. Thereafter, he and Arnaldo engaged Vicente. 38
The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime
of homicide, but acquitted Arnaldo and Joemar. The dispositive portion of the
decision reads:
WHEREFORE, the evidence on record having established the guilt of Noel
Guillermo as principal in the crime of homicide for stabbing three (3) times Winnie
Alon which caused the latters death, attended by a special or privileged
mitigating circumstance of incomplete justification, and without any aggravating
or mitigating circumstances attendant, he is imposed an indeterminate sentence
of six (6) years of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, with the corresponding accessory penalties, and to pay
death indemnity of P50,000.00 to the heirs of Winnie Alon, in the service of his
sentence he shall be credited the period that he undergone [sic] preventive
imprisonment, conformably with Art. 29 of the Code.
Costs against the accused.
For insufficiency of evidence, the accused Arnaldo Socias and Joemar Palma are
acquitted of the crime charged. The bail bond for their provisional liberty is
CANCELLED AND DISCHARGED.
SO ORDERED.39 [Emphasis in the original]
The petitioner appealed to the CA whose decision is now assailed in the present
petition. The petitioner essentially claims that the RTC and the CA erred in failing
to recognize the existence of all the elements of self-defense.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
Plea of Self-Defense
We note at the outset that the petitioner does not deny that he killed Winnie. He
expressly made this admission in his testimony of July 15, 1999:
ATTY. VILLAREAL:
Q: And what did you do when he struck you with the bottle?
NOEL GUILLERMO:

A: I was able to move backward and I realized that I have a knife on [sic] the back
of my waist.
Q: And what did you do with your knife?
A: I then stabbed him.
Q: How many times?
A: About three times as far as I can remember.40 [Emphasis supplied]
The petitioner justifies the stabbing as an act of self-defense.
As the lower courts did, we do not recognize that the petitioner fully acted in selfdefense.
As a rule, the prosecution bears the burden of establishing the guilt of the
accused beyond reasonable doubt. However, when the accused admits the killing
and, by way of justification, pleads self-defense, the burden of evidence shifts; he
must then show by clear and convincing evidence that he indeed acted in selfdefense. For that purpose, he must rely on the strength of his own evidence and
not on the weakness of the prosecutions evidence.41
The elements that the accused must establish by clear and convincing evidence
to successfully plead self-defense are enumerated under Article 11(1) of the
Revised Penal Code:
ART. 11. Justifying circumstances. The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
As a justifying circumstance, self-defense may be complete or incomplete. It is
complete when all the three essential requisites are present; it is incomplete
when the mandatory element of unlawful aggression by the victim is present, plus
any one of the two essential requisites.42
In the present case, we find it beyond dispute that the victim Winnie started the
fight that ended in his death; he struck the petitioner on the head when the latter
intervened to pacify the quarrel between Winnie and Arnaldo. In short, the victim
was the unlawful aggressor while the petitioner was in the lawful act of pacifying
the quarreling parties; thus, the latter has in his favor the element of unlawful
aggression by the victim.
We consider it also established that the petitioner did not provoke the fight that
ensued; he was a third party to the quarrel between the original protagonists

Winnie and Arnaldo and did not at all initiate any provocation to ignite the
quarrel. Thus, the petitioner also has the element of lack of sufficient
provocation in his favor.
The third element the reasonableness of the means to repel the aggression is
the critical element that the lower courts found lacking in the petitioners case.
Generally, reasonableness is a function of the nature or severity of the attack or
aggression confronting the accused, the means employed to repel this attack, the
surrounding circumstances of the attack such as its place and occasion, the
weapons used, and the physical condition of the parties which, when viewed as
material considerations, must show rational equivalence between the attack and
the defense.43 In People v. Escarlos,44 this Court held that the means employed
by a person invoking self-defense must be reasonably commensurate to the
nature and the extent of the attack sought to be averted. In Sienes v. People,45
we considered the nature and number of wounds inflicted on the victim as
important indicia material to a plea for self-defense.
In the present case, the attack on the petitioner came as he intervened in a
quarrel between the victim and another party. As we concluded above, we deem
it established that the victim was the unlawful aggressor who attacked the
petitioner. Physical evidence shows that indeed the petitioner suffered the
following injuries:
1. Contusion Hematoma 2 x 3 left parital area just above the left ear.
2. Linear abrasion 3 4 cm left hand medial side.
3. Linear abrasion 2 3 cm left head ulnar side.46
The weapons that caused these injuries were a beer bottle and, quite possibly,
fingernails as the victim and the appellant grappled with each other.47 In contrast,
the victim suffered three stab wounds: at the neck, at the abdomen and in the
chest. The weapon used was a Batangas knife that admittedly belonged to the
petitioner. Thus, the physical evidence in the case stands.
The petitioner claims self-defense on the position that Winnie, after hitting him on
the head three times with an empty bottle, grabbed another bottle, broke it
against the wall, and thrust it towards him. It was at this point that the petitioner
used his knife to inflict Winnies fatal wounds. Clearly, the petitioner wants to
impress upon us that his response to Winnies attack was reasonable; he used a
knife to repel an attacker armed with a broken beer bottle.
Several reasons militate against our acceptance of the petitioners version and
interpretation of events.
First, there is intrinsic disproportion between a Batangas knife and a broken beer
bottle. Although this disproportion is not conclusive and may yield a contrary
conclusion depending on the circumstances, we mention this disproportionality

because we do not believe that the circumstances of the case dictate a contrary
conclusion.
Second, physical evidence shows that the petitioner suffered only one contusion
hematoma at the parietal area above the left ear. Unless the three (3) beer bottle
blows that the petitioner alleged all landed on the same site a situation that
could have incapacitated the petitioner the more plausible conclusion from the
physical evidence is that the petitioner received only one blow, not three as he
claimed. Contrary to what the petitioner wishes to imply, he could not have been
a defender reeling from successive head blows inflicted by the victim.
Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the
restaurant before the fatal fight. This state of intoxication, while not critically
material to the stabbing that transpired, is still material for purposes of defining its
surrounding circumstances, particularly the fact that a broken beer bottle might
not have been a potent weapon in the hands of a drunk wielder.
Fourth, and as the CA aptly observed as well, the knife wounds were all aimed at
vital parts of the body, thus pointing against a conclusion that the petitioner was
simply warding off broken beer bottle thrusts and used his knife as a means
commensurate to the thrusts he avoided. To be precise, the petitioner inflicted on
the victim: one stab wound at the chest, 6-8 cms. deep, at the 5th rib clavicular
area, or in plainer terms, in the area of the victims heart; another was at the
neck, 5 cms. deep, just above the breastbone; and a last one was in the
abdominal area, 3-5 cms. deep. The depth of these wounds shows the force
exerted in the petitioners thrusts while the locations are indicative that the thrusts
were all meant to kill, not merely to disable the victim and thereby avoid his
drunken thrusts.
Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to
disbelieve the petitioners allegation of complete self-defense, as reflected in the
CAs further cogent observations that:
(b) If, indeed the deceased picked up another bottle of beer, hit the same against
the wall, resulting in the breakage of the bottle, and with it, hit the Appellant anew,
it behooved the Appellant to have rushed posthaste to the police station and
report the stabbing, with the request that a policeman be dispatched to the locus
criminis and confirm the presence of broken pieces of beer bottle in the
restaurant. The Appellant did not. He and his companions, Arnaldo and Joemar,
fled from the scene, via the back door, and escaped on board a motorcycle.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the Appellant
that, after the Appellant boxed Winnie, who lost his hold of the bottle of beer, he
picked up another bottle and struck the bottle of beer against the wall and hit the
Appellant with the bottle. The appellant relied solely on is own testimony to

buttress his defense.

majority of such conditions be present. The courts shall impose the penalty in the
(d) The Municipal Trial Court conducted a preliminary investigation of the
period which may be deemed proper, in view of the number and nature of the
"Criminal Complaint" filed against the
conditions of exemption present
Appellant, Arnaldo, and Joemar. However,
or lacking.
LEONARDO A. QUISUMBING
the Appellant did not submit any "CounterSince the petitioners plea of selfAssociate Justice
Affidavit" claiming that he was impelled to
defense lacks only the element
Chairperson
stab Winnie three (3) successive times on
of "reasonable means," the
mortal parts of his body and killing [sic] him
petitioner is, therefore, entitled to
CONCHITA CARPIO MORALES
DANTE O. TINGA
because Winnie picked up a bottle, hit the
the
privileged
mitigating
Associate Justice
Associate Justice
same against a wall and hit the Appellant
circumstance of incomplete selfPRESBITERO J. VELASCO, JR.
anew
with
the
broken
bottle. 48
defense.
Consequently,
the
Associate Justice
[Underscoring in the original]
penalty for homicide may be
We see no reason to disturb these findings
lowered by one or two degrees,
as they are based on existing evidence, and the conclusions drawn therefrom are
at the discretion of the court.
patently reasonable. We have time and again held that the findings of facts of the
The penalty which the RTC imposed and which the CA affirmed lowered the
trial court, its assessment of the credibility of witnesses and the probative weight
penalty of reclusion temporal by one degree, which yields the penalty of prision
of their testimonies, and the conclusions based on the these factual findings are
mayor. From this penalty, the maximum of the indeterminate penalty is
to be given the highest respect; the trial court enjoys the unique advantage of
determined by taking into account the attendant modifying circumstances,
being able to observe, at close range, the conduct and deportment of witnesses
applying Article 64 of the Revised Penal Code. 51 Since no aggravating nor
as they testify. These factual findings, when adopted and confirmed by the CA,
mitigating circumstance intervened, the maximum of the indeterminate penalty
are final and conclusive and need not be reviewed on the appeal to us. We are
shall be prision mayor in its medium period whose range is from 8 years and 1
not a trier of facts; as a rule, we do not weigh anew the evidence already passed
day to 10 years.
49
on by the trial court and affirmed by the CA. Only after a showing that the courts
To determine the minimum of the indeterminate penalty, prision mayor has to be
below ignored, overlooked, misinterpreted, or misconstrued cogent facts and
reduced by one degree without taking into account the attendant modifying
circumstances of substance that would alter the outcome of the case, are we
circumstances. The penalty lower by one degree is prision correccional whose
justified in undertaking a factual review. No such exceptional grounds obtain in
range is from 6 months and 1 day to 6 years. The trial court is given the widest
this case.
discretion to fix the minimum of the indeterminate penalty provided that such
In sum, we rule that there was no rational equivalence between the means of
penalty is within the range of prision correccional.
the attack and the means of defense sufficient to characterize the latter as
The CA affirmed the indeterminate penalty of six (6) years prision correccional, as
reasonable.
minimum, to ten (10) years of prision mayor, as maximum, as imposed by the
The Proper Penalty
RTC on petitioner. We affirm this to be the legally correct and proper penalty to
The imposable penalty for homicide under Article 249 of the Revised Penal Code
be imposed upon petitioner.
50
is reclusion temporal in its full range. Article 69 of the Code however provides
We also affirm the P50,000.00 death indemnity awarded to Winnies heirs, in
that:
accordance with prevailing jurisprudence.52
ART. 69. Penalty to be imposed when the crime committed is not wholly
We add that moral damages should be awarded as they are mandatory in murder
excusable. A penalty lower by one or two degrees than that prescribed by law
and homicide cases without need of allegation and proof other than the death of
shall be imposed if the deed is not wholly excusable by reason of the lack of
the victim.53 The award of P50,000.00 as moral damages is, therefore, in order.
some of the conditions required to justify the same or to exempt from criminal
WHEREFORE, in light of all the foregoing, we DENY the petition. The assailed
liability in the several cases mentioned in Articles 11 and 12, provided that the
decision and resolution of the CA dated November 15, 2001 and April 5, 2002,

respectively, in CA-G.R. CR No. 24181 are AFFIRMED with the MODIFICATION

that the petitioner is ordered to pay the heirs of Winnie Alon the amount of
P50,000.00 as moral damages. Costs against the petitioner.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
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
Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons 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 Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court.
2
Penned by Associate Justice (now retired Supreme Court Justice) Romeo J.
Callejo, Sr. and concurred in by Associate Justice Remedios Salazar-Fernando
and Associate Justice Josefina Guevarra-Salonga; rollo, pp. 21-30.
4
Penned by Judge Charlito F. Fantilanan; id., pp. 31-46.
5
In some parts of the record, he is also referred to as Arnold or Arnel Socias.
7
Dated January 8, 2000; rollo, pp. 31-46.
8
TSN, June 23, 1998, p. 3.
41
People v. Santillana, G.R. No. 127815, June 9, 1999, 308 SCRA 104.
42
Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 703.
43
See People v. Encomienda, G.R. No. L-26750, August 18, 1972, 46 SCRA 522;
Eslabon v. People, G.R. No. L-66202, February 24, 1984, 127 SCRA 785.

44

G.R. No. 148912, September 10, 2003, 410 SCRA 463.

G.R. No. 132925, December 13, 2006, 511 SCRA 13.
46
Exhibit "1," records, p. 347.
48
Annex "A," rollo, p. 29.
49
Chua v. People, G.R. Nos. 150926 and 30, March 6, 2006, 484 SCRA 161,
167.
50
Article 249. Homicide. Any person who, not falling within the provisions of
article 246, shall kill another, without the attendance of any of the circumstances
enumerated in the next preceding article, shall be deemed guilty of homicide and
be punished by reclusion temporal.
51
Article 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:
1. When there are neither aggravating nor mitigating circumstances, they shall
impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the act,
they shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission of the
act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court
shall reasonably offset those of one class against the other according to their
relative weight.
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.
6. Whatever may be the number and nature of the aggravating circumstances,
the courts shall not impose a greater penalty than that prescribed by law, in its
maximum period.
7. Within the limits of each period, the courts shall determine the extent of the
penalty according to the number and nature of the aggravating and mitigating
circumstances and the greater or lesser extent of the evil produced by the crime.
52
See People v. Tabuelog, G.R. No. 178059, January 22, 2008; Licyayo v.
People, G.R. No. 169425, March 4, 2008.
53
People v. Rodas, G.R. No. 175881, August 28, 2007, 531 SCRA 554, 573,
citing People v. Bajar, 414 SCRA 494, 510 (2003).
45

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30801 March 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General
Antonio A. Torres and Solicitor Vicente P. Evangelista for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.
AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente
G. Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of
murder, sentencing him to reclusion perpetua, and ordering him to indemnify the
heirs of Felix Napola in the sum of twelve thousand pesos and to pay the costs
(Criminal Case No. 3280).
The judgment of conviction was based on the testimony of Brigido Alberto, a
twenty-six year old former detention prisoner in Buug, Zamboanga del Sur. He
had been accused of murder and then set at liberty on June 9, 1966 after posting
bail. He went to Barrio Camongo, Dumalinao where his father resided. On July
31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but
night overtook him in the town. He decided to sleep in the Buug municipal
building where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he witnessed an
extraordinary occurrence. He saw Policeman Ural (with whom he was already
acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola.
As a consequence of the fistic blows, Napola collapsed on the floor. Ural, the
tormentor, stepped on his prostrate body.
Ural went out of the cell. After a short interval, he returned with a bottle. He
poured its contents on Napola's recumbent body. Then, he ignited it with a match
and left the cell. Napola screamed in agony. He shouted for help. Nobody came
to succor him.
Much perturbed by the barbarity which he had just seen, Alberto left the municipal

building. Before his departure, Ural cautioned him: "You better keep quiet of what
I have done" (sic). Alberto did not sleep anymore that night. From the municipal
building, he went to the crossing, where the cargo trucks passed. He hitchhiked
in a truck hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year
old victim, whom she treated twice, sustained second-degree burns on the arms,
neck, left side of the face and one-half of the body including the back (Exh. A).
She testified that his dermis and epidermis were burned. If the burns were not
properly treated, death would unsue from toxemia and tetanus infection. "Without
any medical intervention", the burns would cause death", she said. She explained
that, because there was water in the burnt area, secondary infection would set in,
or there would be complications.
Napola died on August 25, 1966. The sanitary inspector issued a certificate of
death indicating "burn" as the cause of death (Exh. B).
The trial court fittingly deplored the half-hearted manner in which the prosecution
(represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled
the case. It bewailed the prosecution's failure to present as witnesses Juanito de
la Serna and Ernesto Ogoc, the detention prisoners who saw the burning of
Napola. They had executed a joint affidavit which was one of the bases of the
information for murder. 1
It noted that Rufina Paler, the victim's widow, who was present in court, was a
vital witness who should have been presented as a witness to prove the victim's
dying declaration or his statements which were part of the res gestae. 2
In this appeal appellant's three assignment of error may be condensed into the
issue of credibility or the sufficiency of the prosecution's evidence to prove his
guilt beyond reasonable doubt.
His story is that at around nine o'clock in the evening of July 31, 1966 he was in
the municipal jail on guard duty. He heard a scream for help from Napola. He
entered the cell and found Napola's shirt in flames. With the assistance of
Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did not
summon a doctor because, according to Napola, the burns were not serious.
Besides, he (Ural) was alone in the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a
complete liar", testified that she heard Napola's scream for help. She saw that
Napola's shirt was burning but she did not know how it happened to be burned.
She said that Ural and Siton removed the shirt of Napola and put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at
eight-thirty in the evening of July 31st. Matugas denied that Alberio was in the
municipal building at eight o'clock.

The trial court held that Ural's denials cannot prevail over the positive testimony
of Alberio. It observed that Ural's alleged act of removing Napola's burning shirt
was at most an indication that he was "belatedly alarmed by the consequence of
his evil act" but would not mean that he was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in assailing the
credibility of Alberio, pointed out that he was not listed as a prosecution witness
and that he was convicted of murder.
Those circumstances would not preclude Alberio from being a credible witness. It
should be noted that the accused was a policeman. Ordinarily, a crime should be
investigated by the police. In this case, there was no police investigation. The
crime was investigated by a special counsel of the fiscal's office. That might
explain why it was not immediately discovered that Alberio was an eyewitness of
the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman
Matugas are compatible with the prosecution's theory that Ural burned Napola's
shirt. Ultimately, the factual issue is: who should be given credence, Alberio or
Ural? As already stated, the trial court which had the advantage of seeing their
demeanor and behavior on the witness stand, chose to believe Alberio. This
Court, after a searching scrutiny of the whole record, does not find any
justification for disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which provides that
"criminal liability shall be incurred by any person committing a felony (delito)
although the wrongful act done be different from that which he intended". The
presumption is "that a person intends the ordinary consequences of his voluntary
act" (Sec. 5[c], Rule 131, Rules of Court).
The rationale of the rule in article 4 is found in the doctrine that "el que es causa
de la causa es causa del mal causado" (he who is the cause of the cause is the
cause of the evil caused)."Conforme a dicha doctrina no alteran la relacion de
causalidad las condiciones preexistentes (como las condiciones patologicasdel
lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni
las condiciones sobrevenidas (como el tetanos, la pulmonia, o la gangrena
sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo Penal, 12th
Ed., 1968, p. 335-336).
The similar rule in American jurisprudence is that "if the act of the accused was
the cause of the cause of death, no more is required" (40 C.J.S. 854). So, where
during a quarrel, the accused struck the victim with a lighted lamp, which broke
and fell to the floor, causing the oil to ignite and set fire to the rug, and, in the
course of the scuffle, which ensued on the floor, the victim's clothes caught fire,
resulting in burns from which he died, there was a sufficient causal relation

between the death and the acts of the accused to warrant a conviction of
homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).
There is a rule that "an individual who unlawfully inflicts wounds upon another
person, which result in the death of the latter, is guilty of the crime of homicide,
and the fact that the injured person did not receive proper medical attendance
does not affect the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the
Escalona case, the victim was wounded on the wrist. It would not have caused
death had it been properly treated. The victim died sixty days after the infliction of
the wound. It was held that lack of medical care could not be attributed to the
wounded man. The person who inflicted the wound was responsible for the result
thereof.
The crime committed by appellant Ural was murder by means of fire (incendio)
(Par. 3, Art. 248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs.
Burns, 41 Phil. 418, 432, 440). 3
The trial court correctly held that the accused took advantage of his public
position (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated
Napola if he was not a policeman on guard duty. Because of his position, he had
access to the cell where Napola was confined. The prisoner was under his
custody. "The policeman, who taking advantage of his public position maltreats a
private citizen, merits no judicial leniency. The methods sanctioned by medieval
practice are surely not appropriate for an enlightened democratic civilization.
While the law protects the police officer in the proper discharge of his duties, it
must at the same time just as effectively protect the individual from the abuse of
the police." U.S. vs. Pabalan, 37 Phil. 352).
But the trial court failed to appreciate the mitigating circumstance "that the
offender had no intention to commit so grave a wrong as that committed" (Par. 3,
Art. 13, Revised Penal Code). It is manifest from the proven facts that appellant
Ural had no intent to kill Napola. His design was only to maltreat him may be
because in his drunken condition he was making a nuisance of himself inside the
detention cell. When Ural realized the fearful consequences of his felonious act,
he allowed Napola to secure medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic aggravating,
circumstance of abuse of his official position. The trial court properly imposed the
penalty of reclusion perpetua which is the medium period of the penalty for
murder (Arts. 64[4] and 248, Revised Penal Code).
Finding no error in the trial court's judgment, the same is affirmed with costs
against the appellant.
So ordered.
Zaldivar (Chairman) and Fernandez, JJ., concur.

Antonio, J., took no part.

When Felix Napola was already suffering much from the burns he sustained, Ural
became frightened and he and Anisio Siton helped put out the fire.
Affiants further sayeth none.

Separate Opinions
BARREDO, J., concurring:
Except for the unnecessary reference to the supposed statement of the deceased
to his wife and the joint affidavit of Ogoc and De la Serna, all of which were not
properly presented in evidence, hence it is preferable not to mention them in
order to avoid any suspicion that our judgment has been influenced by factors
other than evidence duly presented in court, I concur.
Fernando, J., concurs.
Footnotes
1 Republic of the Philippines ...
Province of Zamboanga del Sur ...)
Municipality of Pagadian
JOINT-AFFIDAVIT
WE, ERNESTO OGOC married, and JUANITO DE LA CERNA, single, both of
legal age, farmers, residents of Lakewood, Lapuyan, Zamboanga del Sur and at
Buug Zamboanga del Sur, respectively, after having been duly sworn to in
accordance with law hereby depose and say:
That both of us were confined inside the municipal jail of Buug Zamboanga del
Sur on July 31, 1966 for offenses allegedly committed by us and on same date
our companions inside the said jail were Anisio Siton and Felix Napola, the latter
being confined for being drunk;
That at about 8:00 o'clock in the evening, more or less on July 31, 1966, our
policeman guard by the name of Domingo Ural entered the jail and called for
Felix Napola. He called for him and told him that Felix Napola is aggressive.
When Felix Napola went near Domingo Ural, the latter boxed him at his lower
chin and he fell to the cement floor of the jail. He kicked him also at the same
spot after Felix Napola fell to the floor. Because Felix Napola cannot stand
anymore, Domingo Ural got a bottle and poured the contents of said bottle to the
dress of Felix Napola. Domingo Ural lighted a match and burned the spot where
the substance in the bottle was poured in the dress of Felix Napola. The dress of
Felix Napola got burned and Felix Napola got burned. He was forced to stand up
and asked mercy from Domingo Ural. Instead Domingo Ural locked the jail and
went out and Domingo Ural threatened us not to talk about the burning of Felix
Napola to anybody or else he will burn us also.

(SGD.) Ernesto Ogoc (SGD.) Juanito de la Cerna

ERNESTO OGOC JUANITO DE LA CERNA
(Affiant) (Affiant)
SUBSCRIBED AND SWORN to before me this 19th day of September, 1966 here
at Pagadian, Zamboanga del Sur.
(SGD.) Basilio T. Roque
BASILIO T. ROQUE
Special Counsel
2 Mrs. Napola (Mapola) testified at the preliminary investigation conducted by
Basilio T. Roque, a special counsel, that she learned from a neighbor that her
husband suffered burns in the municipal jail in the evening of July 31, 1966. Her
husband told her that Policeman Ural had burned him. Ural allowed her to bring
Napola to the dispensary where he was treated. Because of the injuries on his
mouth and his swollen gums, he could not eat and move his head. He was
confined in jail due to drunkenness. He was burned from the waist up to the neck
and on the back and right arm. She reported the case to the mayor. That
functionary said that he would not take any hand in the case. Mrs. Napola was
cross-examined by Ural's counsel.
At the same preliminary investigation the witnesses, Ernesto Ogoc and Juanita
de la Serna, testified and were cross-examined by Ural's counsel. The accused
presented evidence at the preliminary investigation.
3 "Un sujeto, despues de cohabitar con una prostituta, encendio un mixto que
aplico a uno de los latones de petroleo que habia proximos a la cama en que
yacieron, inflamandose el contenido de aquel y cayendo el liquido sobre la
prostituta, que fallecio a consequencia de las quemaduras.
El Tribunal Supreme declara:
Que segun el articulo 418 del Codigo penal, es reo de asesinato el que por
medio de incendio mata a persona que no le este ligada por alguno de los
vinculos familiares senalados en el art. 417, entendiendose empleado el incendio
en este concepto juridico cuando se mata o intenta matar por medio de fuego
aplicado directa o immediamente sobre la persona objeto de la accion criminal,
siempreque lo sea con riesgo de propagacion a cosas distintas, en cualquiera de
las condiciones previstas en el capitulo 7, titulo 13 del libro 2. del Codigo penal;

cuyo medio de ejecucion de aquel delito, principal en la intencion del culpable

estima la ley con el grave caracter que atribuye tambien a la inundacion y al
empleo del veneno, no solo por los peligros que implica, sino igualmente por la
notoria malicia, semejante a la alevosia, que revela la accion que para su exito
no se detiene ante el respeto de otros derechos que pone en inminente riesgo o
quebranta y lesion a impulso de decidia resolucion.
Que todas estas consideraciones aparecen manifiestas en el acto ejecutado por
el procesado, puesto que voluntariamente empleo el petroleo inflamado para
lesionar a la interfecta, poniendo el fuego, que por su natural poder se propago al
local en que se cometio el delito, al servicio de su proposito punible;
constituyendo por esto el incendio, elemento integrante del delito de
asesinato, ... (Sentencia de 29 de Noviembre de 1887, 11 Hidalgo, Codigo Penal,
175).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 139542
June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
INOCENCIO GONZALEZ, JR., accused-appellant.
DISSENTING OPINION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the improvident use of a
firearm did not exacerbate a simple altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman was shot to
death in the course of her husbands altercation with the accused-appellant and
his son along the Garden of Remembrance within the Loyola Memorial Park in
Marikina. The trial court found the accused guilty of the complex crime of murder
and two counts of frustrated murder and accordingly sentenced him to death.
This case is before us on automatic review.
The details of what actually transpired in the few seconds immediately preceding
the shooting are controverted by both parties but the events leading to this
tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the
private complainant Noel Andres and that of the accused-appellant Inocencio
Gonzalez were on their way to the exit of the Loyola Memorial Park. The
appellant was driving a white Isuzu Esteem with his grandson and three
housemaids, while the private complainant was driving a maroon Toyota FX with
his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew
Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of
Remembrance, while the accused-appellant Gonzalez was turning left towards
the exit and the complainant Noel Andres was headed straight along the road to
the exit their two vehicles almost collided. Noel Andres was able to timely step on
the brakes. The appellant continued driving along his way while Noel Andres
drove behind the appellants vehicle for some time and cut him off when he found
the opportunity to do so. 1 Noel Andres then got out of his vehicle and knocked on
the appellants car window.2 This is as far as their versions of the incident
coincide.
The prosecutions version of the incident is that Noel Andres calmly told the
appellant to be careful with his driving and informed the latter that he, Andres, is
with his family and to this Gonzalez allegedly replied, "Accidents are accidents,
whats your problem." Andres stated that he saw the appellant turning red in
anger so he decided to go back to his vehicle when he was blocked by the

appellants son who said, "Anong problema mo sa erpat ko." Andres testified that
he felt threatened and so he immediately boarded his vehicle, sat at the drivers
seat, closed the door, and partially opened the car window just wide enough to
talk back to appellants son, Dino. Suddenly, one of his passengers said "Binaril
kami". He turned to his wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son Kenneth and nephew Kevin
were also wounded. Andres admitted in court that he and Dino were shouting at
each other so that he did not hear the shot. Andres then got out of his vehicle to
warn the appellant not to flee. He then took the wounded members of his family
to the exit where there was an ambulance standing by. The three were then taken
to the Sta. Monica Hospital and were later transferred to the Quezon City Medical
Center.
The defenses version of the incident is that Andres cut the appellants path by
positioning his FX obliquely along the appellants lane from the latters left side.
Andres then got out of his vehicle, stood beside the appellants car window, and
repeatedly cursed the appellant, "Putang ina mo, ang tanda-tanda mo na hindi ka
pa marunong magmaneho. Ang bobo-bobo mo." 3 The appellant stayed inside his
car and allegedly replied, "Pasensiya ka na hindi kita nakita, nasilaw ako.
Aksidente lang." The appellant Gonzalez and another witness for the defense,
Quidic, testified that Noel Andres went back to his vehicle to move it in such a
way that it is straight in front of the appellants car. Andres allegedly got out of his
vehicle again and continued shouting and cursing at the appellant. 4 Dino, the
appellants son, who rode in another vehicle decided to go back when he did not
see his fathers car behind him. When Dino arrived at the scene he confronted
Andres and the two had an altercation. Both Dino and the appellant stated that
Andres remained outside his vehicle during the altercation with Dino. When
Andres suddenly reached for something inside his vehicle, Dino froze on the spot
where he stood. This prompted the appellant to get his gun from the glove
compartment and feeling that his son was threatened he got out of his car ready
to shoot. When he saw that Andres did not have a weapon he put down his hand
holding the gun. This is when the appellants daughter Trisha who was riding in
Dinos car arrived at the scene, walked past Dino and Andres, and pushed the
appellant away. She hugged her father and in the process held his hand holding
the gun. The appellant tried to free his hand and with Trishas substantial body
weight pushing against him the appellant lost his balance and the gun
accidentally fired. The accused stated that he did not know he shot somebody
until the private complainants sister-in-law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims that the appellant did not try to
flee and even told the complainants sister-in-law to take the wounded to the
hospital.
On November 4, 1998 an Information for the complex crime of Murder, Double
Frustrated Murder and Attempted Murder was filed against herein accusedappellant:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named

accused, did then and there willfully, unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by means of treachery and abuse
of superior strength upon the person of Noel Andres y Tomas, by then and there
shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y
Ordoo, on the left back portion of her head, thereby inflicting upon her serious
and mortal wound which directly caused her death, as well as hitting John
Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a consequence,
but nevertheless did not produce it by reason of some cause or causes,
independent of their will, that is, the timely and able medical assistance rendered
to John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage
and prejudice as well as to the damage and prejudice of the heirs of Feliber
Andres y Ordoo."
On arraignment the accused-appellant pleaded "not guilty" to the crimes charged.
The case records show that Feliber Andres, the wife of Noel Andres did not die
instantaneously. She lived to give birth to a baby girl 5 by caesarian section and
died the following morning on November 1, 1998. The Autopsy Report 6 states:
"FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem
lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions
were noted at left tempero-parietal region. Surgical incisions is also noted at the
abdominal region secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1
by 0.9 cm, 9 cm from the anterior midline, with a uniform abraided collar
measuring 0.2 cm., directed posteriorwards, slightly downwards, and
medialwards, fracturing the frontal, and left temporal bones, lacerating the left
cerebral hemisphere, with a deformed slug fragment embedded and recovered at
the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital
region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are
subdural and subarachnoidal hemorrages. Stomach contains 1 glassful of
partially digested food particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head."
Kenneth and Kevin were treated for extraction of metallic fragments on their
faces. They were discharged from the hospital six days later or on November 6,
1998.
On June 25, 1999 the trial court rendered judgement finding that the shooting
was attended by the qualifying circumstance of treachery and held the appellant
guilty of the complex crime of murder for the death of Feliber Andres and for two
counts of frustrated murder for the injuries sustained by Kenneth Andres and
Kevin Valdez and sentenced the appellant to the maximum of the imposable
penalty which is death. The trial court held:
"Beforehand, the Court takes note of the judicial admissions on the verbal
declarations of the accused that the court a quo has jurisdiction over the case;
that he owns the black Gluck 9 mm. automatic pistol; that the said gun will never
fire even if he drops it; that only one bullet was fired from his gun; and that the

victim Feliber Andres is already dead. With this exegesis and the declarations in
open court of the eyewitness of both the prosecution and some of the defense,
there is no real dispute on the antecedent facts showing that the accused fired on
Noel Andres but instead hit and caused the fatal injuries to the victims John
Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death
of the latter. The court takes further judicial admissions of the accused made in
their memorandum demonstrating the existence of five (5) sequences of events
leading to the death of Feliber Andres and the wounding of John Kenneth Andres
and Kevin Valdez which are as follows: First is when Noel Andres overtook the
car driven of the accused and cut cross his path; Second is when Noel Andres
alighted from his vehicle and confronted Inocencio; Third is when Noel had an
argument with Dino Gonzalez, the son of the accused; Forth is when, Inocencio
seeing his son having confrontation with Noel, got his gun to protect Dino; and
Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who
tried to reach for the gun and as a result of which Inocencio lost his balance and
as he was falling backward to his side, his right arm holding the gun hit the rear
window of the Tamaraw FX van and the gun accidentally went off hitting the
victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic pistol used
in this case which is capable of unquestionable demonstration or ought to be
known to judges because of their judicial functions. Practically, the stages before
an automatic firearm would be capable of firing are as follows: 1) the loading of a
bullet into the chamber of the gun; 2) the cocking of the hammer, if uncocked; 3)
the releasing of the safety pin; 4) the pressing of the trigger to unleash the
hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the
target. Realistically, it demonstrates that a gun will not fire even if the bullet is
loaded in its chamber if the hammer is uncocked; or even if cocked if the safety
pin is engaged; or even if the safety pin is disengaged if the trigger will not be
pressed. However, even if the gun is fired if it is not aimed and leveled to the
target, the purpose of firing it shall not be achieved. Contrarily, once a gun is
drawn against a person, the means methods and forms employed for its
execution is already conceived. And once it is tended directly and specifically to
insure its execution, it consequently produces the conscious and deliberate
intention. Finally if all the acts of execution had been effectively done without risk
on the part of the offender arising from any defense coming from the offended
party, treachery results. In brief, there is treachery when the offender commits
any crime against persons, employing means, methods and forms in the
execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from any defense which the offended party might make
(People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No.
112445, March 7, 1996). To appreciate treachery two (2) conditions must be
present, to wit: 1) the employment of means of execution that give the person
attacked no opportunity to defend himself or retaliate; and 2) the means of
execution were deliberately or consciously adopted. (People vs. Azugue, 268
SCRA 711; People vs. Pea, G. R. No. 116022, July 1, 1998, p. 1)

In the case at bar and guided with the above-quoted doctrinal cases, logically, the
accused is positive of the crime charged against him. When he alighted with a
drawn gun to protect his son and released all the safety measures of his gun as
he fired and missed at Noel who was then unarmed, but instead hit Kevin Valdez,
John Kenneth Andres and Feliber Andres which resulted to the death of the latter,
demonstrate that the accused has executed the two (2) conditions to generate
treachery enough to qualify the crime committed to murder."
XXXX
XXXXX
XXXX
"WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder and Attempted Murder
penalized under Art. 248, as amended by Republic Act No. 7659 in relation to
Article 48 of the Revised Penal Code and is sentenced to suffer the maximum
penalty of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of
the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred for the
injuries sustained by the deceased Feliber Andres and the amount of P23,622.58
representing the expenses for the untimely delivery of the child Ma. Clarisse
Andres;
e) the amount of P51,566.00 representing the hospitalization expenses for the
injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the untimely death
of his wife Feliber Andres and for the injuries caused to his son John Kenneth
Andres;
g) the amount of P50,000.00 as and by way of attorneys fees and a fee of
P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained by the
victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
SO ORDERED."
In his appeal, Gonzalez submits the following assignments of error:
"1. The trial court committed reversible error when it found that treachery was
present.
2. The trial court committed reversible error when it presumed that there was
treachery by taking judicial notice of the feature of the automatic pistol involved in
this case.
3. The trial court committed reversible error when it violated the constitutional
right of the accused-appellant to due process when it took judicial notice of the

feature of the automatic pistol involved in this case without notice.

4. The trial court committed reversible error when it found Accused-Appellant
guilty beyond reasonable doubt of the complex crime of Murder with Double
Frustrated Murder.
5. The trial court committed reversible error when it failed to appreciate the
mitigating circumstances of passion or obfuscation, lack of intention to commit so
grave a wrong, provocation or threat on the part of the offended party
immediately preceded the act, incomplete defense of relative, and voluntary
surrender.
6. The trial court committed reversible error when it failed to find that the shooting
incident was accidental.
7. The trial court committed reversible error when it gave credence to the
testimonies of prosecution witnesses Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when it disregarded the basic
principle that the accused is presumed innocent and his guilt must be proven
beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-Appellant to
pay for the civil liabilities."
The appellant seeks a reversal and prays that judgment be rendered exempting
him from criminal and civil liabilities. Appellant declared that he had no intention
to shoot Noel Andres much less his wife nor the children. He lost his balance
when his daughter Trisha approached and pushed him backwards to stop him
from joining Dino and Noel Andres but the appellant tried to free his right hand
holding the gun and it accidentally fired. The single bullet fired hit the last window
on the left side of the Tamaraw FX. The appellant claims that he did not see the
passengers inside the vehicle at the time of the shooting. This is corroborated by
the testimony of two witnesses for the prosecution who testified that the windows
of Andres vehicle are heavily tinted so that a person outside the vehicle would
not be able to see if there are people inside. It is also argued that had the
appellant intended to shoot Noel Andres he could have simply done so by
shooting at him directly. The defense asserts that the evidence for the
prosecution failed to establish the attendance of treachery and without the
attendance of the said qualifying circumstance the crime committed is homicide,
not murder.
The appellant also points out that the trial court made the factual finding that the
shooting happened in a matter of seconds and that it was preceded by a heated
argument between the parties. Such being the case, it is argued that the shooting
could not have been attended by treachery. There was no time for the appellant
to consciously and deliberately employ the mode of attack against Noel Andres,
nor against any one of the actual victims, to insure its execution and at the same
time to eliminate any form of retaliation from the alleged intended victim. And yet,
the trial court, contrary to the evidence on record, held that the loading of the
bullet into the chamber of the gun, the cocking of the hammer, the release of the
safety pin and the pulling of the trigger by the appellant of his automatic pistol
constitute conscious and deliberate effort to employ the gun as a means of

committing the crime and resultantly, qualified its commission by treachery. Such
a finding presupposes that the appellant loaded the gun to shoot Noel Andres
only that very moment when his son Dino and Noel Andres were arguing. This
conclusion has no basis on record. The appellant testified that his gun was
loaded before he left the house and two witnesses for prosecution stated in court
that a few seconds after Noel Andres and Dino started shouting at each other, the
appellant got out of his car and shot at the last window on the left side of the
complainants vehicle. Further, the appellant assigns as error the procedure
adopted by the trial court in taking judicial notice that the gun used by the
appellant is an automatic pistol and as such, it will not fire unless aimed at the
intended target. The procedure taken by the trial court is contrary to Section 3,
Rule 129 of the Rules of Court.7 The trial court should have given both parties the
opportunity to present evidence, expert evidence, if necessary, to inform the court
on the subject matter. The appellant argues that the factual finding borne by such
erroneous procedure is equally erroneous. The gun used by the appellant is a
semi-automatic and not an automatic pistol which means that the pistol used has
no external safety pin to be released and that the hammer need not be cocked.
The pulling of the trigger, intentional or not, will fire the gun. The use of a semiautomatic pistol does not necessarily imply treachery.
Appellant also argues that the testimonies of prosecution witnesses Castro and
Ramos were improperly given credence by the trial court. The appellant contends
that a reading of their testimonies would show that their narration of the incident
is rather absurd and would show that they did not witness the actual shooting.
Defense witnesses, Gonzalez and his daughter, Trisha, on the other hand,
testified that Castro and Ramos arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that
considering that there was no intent to kill and that they stayed in the hospital
only for six days, the crime committed is physical injuries. It is argued that the trial
court erred in awarding damages. The bunch of receipts allegedly representing
the medical expenses incurred for the injuries sustained by the victims was
erroneously admitted in evidence, without first requiring the prosecution to
establish the authenticity of the receipts. The appellant also points out that the
award for loss of earning capacity has no basis as the deceased was
unemployed at the time of the incident.
Finally, the appellant assigns as error the trial courts rejection of the mitigating
circumstances pleaded by the defense which allegedly attended the commission
of the crime, i.e., lack of intent to commit so grave a wrong, passion and
obfuscation, incomplete defense of a relative and voluntary surrender. The
appellant asserts that these mitigating circumstances were duly proven during the
trial and are supported by the evidence on record. The private complainant Noel
Andres testified that he saw the appellant getting red in anger after they, Andres
and the appellant, had a heated argument immediately prior to the shooting.
These admitted circumstances show that the appellant was not in his proper state
of mind at the time of the shooting. First, he was angered by Andres abusive
language and later he got out of his car with a loaded gun to protect his son from

a perceived danger. The appellant clams that his willingness to help the injured
and his voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not attended
by the qualifying circumstance of treachery and hence the crime committed by
the appellant for the death of Feliber Andres is homicide, not murder. The
appellee takes into consideration that the shooting was preceded by a heated
argument and that the supposed victim was placed on guard that attack was
imminent. It also appears that the shooting was done impulsively. There is no
evidence that the appellant deliberately employed the means of attack to insure
execution of the crime and at the same time eliminate the risk of retaliation from
the private complainant. The appellee also agrees with the appellant that the trial
court erred in equating the use of an automatic pistol with treachery. The trial
court made the factual finding that the appellants automatic pistol would not fire
unless aimed and the trigger is deliberately pulled and hence treachery attended
the shooting. The appellee submits that if we follow the reasoning of the trial
court it would appear that the appellant intended to shoot at the complainants
vehicle only as the shot was fired at the last window on the left side of the FX
away from where Andres was allegedly seated. The fact that the gun was drawn
and fired does not mean that the mode of attack was consciously and deliberately
employed.
However, with respect to the injuries sustained by Kevin and Kenneth, the
appellee disagrees with the contention that the appellant is liable only for slight
physical injuries. The injuries sustained by both children are head injuries and
could have caused their death if not for the immediate medical attention given
them. The number of days spent in the hospital is not determinative of the
severity of the wounds. Their nature and location should instead be considered.
The appellant cannot escape liability for frustrated homicide for the injuries of the
two children on the ground that he fired a single shot at the vehicle of Noel
Andres. He is liable for all the consequences of his unlawful act even if the crime
committed is different from that intended.
As regards the pleaded mitigating circumstances, appellee asserts that none can
be considered in favor of the appellant. There is evidence on record that the
appellant did not voluntarily surrender to the police and it appears from the
testimonies of witnesses that he entertained the possibility of flight but his car
was stuck in traffic along the exit of the memorial park. His pretense of
incomplete defense of a relative is belied by his own admission that when he saw
that Noel Andres did not have a gun he lowered his hand holding the gun. There
was allegedly no threat on the life of his son at the time of the shooting, no
uncontrollable fear nor irresistible force that would mitigate the commission of the
offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted by the
trial court. The appellee alleges that it is not denied by the appellant that Feliber
Andres was a 38 year old registered nurse at the time of the shooting. Although
she was then unemployed on account of her pregnancy, she still had earning

capacity and the trial court properly applied the salary of a government nurse
under the salary standardization scheme in the computation of damages for the
loss of earning capacity. The receipts presented in evidence by the prosecution to
establish hospitalization and other medical expenses incurred by the private
complainants by reason of the injuries suffered by the victims were duly
authenticated by the prosecution witnesses and there is no dispute that they are
exact copies of the original receipts presented in court. The objections raised by
the appellant in this regard were duly met by the evidence presented by the
private complainants.
In sum, the appellee asserts that considering that the appellant fired a single shot
and in the process committed four offenses the appellant should be held liable for
the complex crime of homicide for the death of Feliber Andres, double frustrated
homicide against Kevin and Kenneth and attempted homicide against Noel
Andres. Under the rules on complex crimes the penalty for the gravest offense,
i.e., reclusion temporal for homicide, should be imposed in its maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the
deliberate employment of means, methods or forms in the execution of a crime
against persons which tend directly and specially to insure its execution, without
risk to the offender arising from the defense which the intended victim might
raise. For treachery to be appreciated two elements must concur: 1) the
employment of means of execution that would insure the safety of the accused
from retaliatory acts of the intended victim and leaving the latter without an
opportunity to defend himself and 2) the means employed were deliberately or
consciously adopted by the offender.8 The suddenness of the attack, the infliction
of the wound from behind the victim, the vulnerable position of the victim at the
time the attack was made or the fact that the victim was unarmed do not by
themselves render the attack as treacherous. 9 This is of particular significance in
a case of an instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally fell and was
rendered defenseless.10 The means employed for the commission of the crime or
the mode of attack must be shown to have been consciously or deliberately
adopted by the accused to insure the consummation of the crime and at the
same time eliminate or reduce the risk of retaliation from the intended victim. 11
Accordingly, it has been consistently held by this court that chance encounters,
impulse killing or crimes committed at the spur of the moment or that were
preceded by heated altercations are generally not attended by treachery for lack
of opportunity of the accused to deliberately employ a treacherous mode of
attack.12 Thus, the sudden attack made by the accused due to his infuriation by
reason of the victims provocation was held to be without treachery. Sudden
attacks made by the accused preceded by curses and insults by the victim or
acts taunting the accused to retaliate or the rebellious or aggressive behavior of
the victim were held to be without treachery as the victim was sufficiently
forewarned of reprisal.13 For the rules on treachery to apply the sudden attack
must have been preconceived by the accused, unexpected by the victim and

without provocation on the part of the latter.14

This Court has also had occasion to state that whether or not the attack succeeds
against its intended victim or injures another or whether the crime committed is
graver than that intended is immaterial, as long as it is shown that the attack is
attended by treachery, the said qualifying circumstance may still be considered
by the court.15 Thus, the determining factor on whether or not the commission of a
crime is attended by treachery is not the resulting crime committed but the mode
of attack employed in its execution.16
Treachery is never presumed. It is required that the manner of attack must be
shown to have been attended by treachery as conclusively as the crime itself. 17
We affirm the recommendation of the Solicitor-General that the shooting was not
attended by treachery and accordingly the crime committed for the death of
Feliber Andres is homicide and not murder.
The encounter between Noel Andres and the appellant was a chance encounter.
They were total strangers before their vehicles almost collided at an intersection
inside the memorial park. Unfortunately, heated exchange of remarks that
followed the near collision was fanned by a short temper, which in the case of the
appellant, was augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses, it would
appear that Noel Andres, who had his pregnant wife and child with him, among
others, on board the Tamaraw FX provoked the altercation. After the near
collision of his vehicle with that of the appellant, he tailed behind the latters car
towards the exit until he had the chance to cut him off to scold him for his failure
to observe traffic rules.18 Andres stated in court that he calmly told the appellant
to be careful with his driving and denied that he was angry when he alighted from
his vehicle to confront the appellant.19 His statement is belied by the witnesses,
two prosecution witnesses included, who uniformly testified that Andres quarreled
with or shouted and cursed at the appellant for the latters recklessness at the
intersection.20 The appellant narrated in court that Andres repeatedly shouted at
him, "Putang ina mo, ang tanda-tanda mo na gago ka pa". 21 Andres hostile
behavior towards the appellant is evident from his statement in court that he
noticed the appellant turning red in anger.22 It is highly improbable for Gonzalez to
have turned red in anger had Andres been polite, as he claims he was, in
scolding Gonzalez. Andres could have simply communicated to the appellant his
disgust for the latters bad driving when he overtook the appellants car near the
scene of the shooting but instead he chose to block the appellants path, insult
and virtually provoke the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez infuriation he immediately
walked towards his vehicle, because according to him the altercation was over.
On his way to his FX he met another man, whom he later found out to be the
appellants son, Dino. It appears that the altercation was far from over because
again Andres had a shouting match this time with Dino. 23 In a matter of seconds,
the appellant alighted from his car and fired a single shot at the last window on
the left side of Andres vehicle at an angle away from Noel Andres. The single
bullet fired hit Feliber Andres on the forehead near the temporal region above the

left eye and the two children with metallic fragments of the bullet on their faces,
one at the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating arrangement of
the victims inside the vehicle; suffice it to say, that an examination of the pictures
of the vehicle24 one of which shows a mass of blood stains on the left side
(towards the drivers seat) of the white seat cover below the head rest 25, would
show that the deceased Feliber must have been seated at the front passengers
seat and the children at the middle row behind the drivers seat. 26 Another picture
shows a bullet hole on the last window on the left side of the vehicle 27 and
another shows that the front windshield appears undamaged. 28 A ballistics expert
appeared in court for the prosecution and testified that the bullet fired at the FX
came from the appellants gun, which fact was admitted by the defense. The
prosecution did not inquire from the ballistics expert regarding the trajectory of
the bullet or the approximate distance of the appellant from the FX when he fired
his gun to establish whether or not the appellant aimed for Noel or Feliber or
simply fired indiscriminately at the latters vehicle.29
At first blush it would seem that the shooting of Feliber Andres was attended by
treachery as she was inside the FX witnessing her husbands altercation, first,
with the appellant then with the appellants son, totally defenseless from the shot
that came suddenly from her left side. Public outrage over the death of Feliber
was heightened by the fact that she was then pregnant with her second child and
her death left a new born baby girl and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive finding of
treachery and any doubt must be resolved, like the fact of the commission of an
offense, in favor of the accused. The pictures indicate that Gonzalez fired at the
FX at an angle away from Noel Andres and that Gonzalez was not aiming at
anybody in particular. It is not disputed that the appellants car was directly
behind the complainants FX and that Gonzalez who was then seated at the
drivers seat alighted from his car, took a few steps then fired at the left side of
the FX. Whether Noel Andres was seated at the drivers seat inside his vehicle
when Gonzalez fired at the FX, as the prosecution asserts, or was standing by
the door of the drivers seat outside his vehicle, as the defense submits, it is clear
that the shot was fired away from Noel Andres. The bullet hit Feliber near her
temple above the left eye indicating that she was facing left towards her husband
when the shot was fired.30 The direct hit on Felibers head shows that the angle of
the shot was indeed away from Noel Andres. Even the eyewitness for the
prosecution testified that had the appellant intended to kill Noel Andres he could
have shot directly at him, considering that Noel Andres was just a few steps away
from him31 and that Noel Andres was visible from the outside because his window
was partially open.32 The pictures show that the bullet hole was on the third
window on the left side of the Tamaraw FX 33 belying any attempt to shoot Noel
Andres. Two prosecution witnesses Ramos and Castro unequivocally declared
that "nothing or no one" prevented Gonzalez from shooting directly at Noel
Andres and that Gonzalez could have simply done so if he wanted to. But after
alighting from his car, Gonzalez took a few steps and shot at the left side window

of the FX.34
The fact that the appellant fired his gun from behind the victim does not by itself
amount to treachery. There is no evidence on record that the appellant
deliberately positioned himself behind the victim to gain advantage over him
when he fired the shot. On the contrary, the evidence before us reveals that the
position of the appellants car was not of his own doing but it became so when
Noel Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently towards Noel Andres
even after the latter cut off the appellants path. Andres stated in court that the
appellant did not alight from his car nor opened his window until he, Andres,
tapped on it.35 For his part Gonzalez categorically stated in court that he did not
point his gun nor threatened Andres during their short spat. 36 Gonzalez, although
he had his gun in his car, did not react to Andres cursing until the latter was
having an altercation with the appellants son, Dino. Gonzalez claimed that he
perceived that his son was in imminent danger.37 Whether he overreacted or he
shot at Andres vehicle out of rage over Andres aggressive behavior, one thing
appears clear to us, that the shooting was not done in cold blood. It is undisputed
that the windows of the FX are heavily or darkly tinted so that a person outside
would not see if anybody was inside. 38 The pictures of the FX 39 on record confirm
the testimonies of both prosecution and defense witnesses that the other
passengers of the FX were not visible from the outside. Gonzalez admitted in
court that Noel Andres mentioned that he has passengers with him while he was
shouting and cursing at Gonzalez but there is no indication that Gonzalez had
any opportunity to see the passengers when he fired the shot. The totality of the
evidence on record fails to support a conclusion that Gonzalez deliberately
employed the mode of attack to gain undue advantage over the intended nor the
actual victim. Without any decisive evidence to the contrary, treachery cannot be
considered; thus the crime committed is homicide.40
The trial courts finding that the loading of the gun, the cocking of the hammer
and finally the pulling of the trigger constitute a deliberate effort on the part of
appellant to use the gun as a means of a treacherous attack is patently
erroneous. A single and continuous attack cannot be divided into stages to make
it appear that treachery was involved. 41 The entire incident happened in a matter
of minutes, as testified to by witnesses, and as noted by the trial court. 42 It was
error to our mind for the trial court to divide the assault in stages to arrive at the
conclusion that the mode of attack was consciously employed by the appellant.
Contrary to the finding of the trial court that the appellant prepared the gun before
getting out of his car, the appellant testified that he loaded his gun before he left
the house and that it was ready to fire when he alighted his car. There was no
time for him to reflect on the mode of attack since he just picked up his gun and
alighted from his car and shot at the FX a few seconds after Dino and Noel
Andres started shouting at each other.43 We note further that the trial court
pointed out that from the fact that the appellant prepared his gun to shoot, this
was an indication of the deliberate employment of the gun as a means to kill; i.e.
that the use of an automatic pistol shows that the shooting was attended by

treachery.
We do not agree that the weapon used, by itself, is determinative of treachery,
unless it is shown, and it is not herein shown, that the appellant deliberately used
the gun to insure the commission of the crime and to render the unarmed victim
defenseless. As discussed above, the encounter between the appellant and the
Andresses was a chance encounter and the appellants gun was in the glove
compartment of his car even before he left his house. The shooting was clearly a
spur of the moment or impulsive decision made by the appellant preceded by a
heated altercation at the instance of the private complainant. Jurisprudence
teaches us that under the circumstances, treachery is not obtaining. In the case
of People vs. Valles,44 the accused, a security guard, fired his Armalite and
mortally wounded the victim when the latter approached the accused four times
insisting on entering the workplace wearing improper uniform, then cursed and
insulted and challenged the accused to a fight. We held that the shooting was not
attended by treachery as the shooting was preceded by a heated altercation at
the instance of the victim. It is to be noted that the kind of weapon used against
an unarmed victim was not taken into consideration in determining the
attendance of treachery; it is the mode of attack employed by the accused under
the particular circumstances of a case that determines its attendance in the
commission of a crime. We find that the prosecution has not discharged its
burden to show that the shooting was attended by treachery and we are
convinced that the crime committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that the crime
committed are two counts of slight physical injuries. The intent to kill determines
whether the crime committed is physical injuries or homicide and such intent is
made manifest by the acts of the accused which are undoubtedly intended to kill
the victim.45 In a case wherein the accused did not know that a person was hiding
behind a table who was hit by a stray bullet causing superficial injuries requiring
treatment for three days, the crime committed is slight physical injuries. 46 In case
of doubt as to the homicidal intent of the accused, he should be convicted of the
lesser offense of physical injuries. 47 We have earlier pointed out that the intent to
kill is absent in this case. It was also found that one small metallic fragment was
extracted from Kenneth below his left eye while another fragment was extracted
from Kevin "immediately below the level of his skin before the cheek bone". 48 An
examination of the testimonies of the attending physicians, showed that the
wounds sustained by the two children from the metallic fragments are not in
themselves fatal but may cause death if left untreated. One of the attending
physician testified in court that the fragments themselves "will not cause
complication, it is the entry of the fragment" or the open wound that is susceptible
to infection.49 Two small fragments were no longer extracted from the face of
Kevin Valdez, as the doctor deemed it to be without danger of complication. 50 We
note that the various sizes of the metallic fragments were not established, at least
to give an indication of the severity of the wounds sustained. Both children were
discharged after six days of treatment and there is no showing that they required
subsequent treatment or that they were immobilized for a greater number of days

by reason of the injuries sustained. Considering the nature and location of their
injuries and the number of days required for their treatment, we find that the
crime committed for the injuries sustained by the children are two counts of slight
physical injuries under Art. 266 of the Revised Penal Code which imposes a
penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained
that has incapacitated the victim for one to nine days or required medical
attendance for the same period. For evident lack of criminal intent to kill the
complainant, Noel Andres, as above stated, the information for attempted
homicide must fail.
The mitigating circumstances of voluntary surrender, passion and obfuscation,
incomplete defense of a relative and lack of intent to commit so grave a wrong,
pleaded by the defense, were not convincingly proved and none can be
considered in the imposition of penalties. The testimony of prosecution witness
contradicts the appellants pretense of voluntary surrender. Witness Ramos
testified that the appellant drove away towards the gate of the memorial park
while he was questioning him after the shooting and had not Noel Andres and
onlookers blocked his path the appellant could have fled the scene of the crime. 51
The mitigating circumstance of passion and obfuscation is also not obtaining. For
this mitigating circumstance to be considered, it must be shown that (1) an
unlawful act sufficient to produce passion and obfuscation was committed by the
intended victim; (2) that the crime was committed within a reasonable length of
time from the commission of the unlawful act that produced the obfuscation in the
accuseds mind; and that (3) "the passion and obfuscation arose from lawful
sentiments and not from a spirit of lawlessness or revenge". 52 Noel Andres act of
shouting at the appellants son, who was then a nurse and of legal age, is not
sufficient to produce passion and obfuscation as it is claimed by the accused.
Besides, the appellants son, Dino was shouting back at Noel Andres. It was not a
case wherein the appellants son appeared helpless and oppressed that the
appellant lost his reason and shot at the FX of Noel Andres. The same holds true
for the appellants claim of provocation on the part of Noel Andres. Provocation
must be sufficient to excite a person to commit the wrong committed and that the
provocation must be commensurate to the crime committed. The sufficiency of
provocation varies according to the circumstances of the case. 53 The aggressive
behavior of Noel Andres towards the appellant and his son may be demeaning or
humiliating but it is not sufficient provocation to shoot at the complainants
vehicle.
The plea for the appreciation of the mitigating circumstance of incomplete
defense of a relative is also unmeritorious since the act of Andres in cursing and
shouting at the appellant and his son do not amount to an unlawful aggression
against them, Dino Gonzalez. Finally, the plea for the appreciation of the
mitigating circumstance of lack of intent to commit so grave a wrong is likewise
devoid of merit. This mitigating circumstance is obtaining when there is a notable
disparity between the means employed by the accused to commit a wrong and
the resulting crime committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used, the mode of attack

employed and the injury sustained by the victim. 54 The appellants use of a gun,
although not deliberately sought nor employed in the shooting, should have
reasonably placed the appellant on guard of the possible consequences of his
act. The use of a gun is sufficient to produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any mitigating
circumstance, the appellant is hereby sentenced to an indeterminate sentence of
8 years and 1 day of prision mayor, in its medium period, as minimum to 14 years
8 months and 1 day of reclusion temporal in its medium period, as maximum. For
each count of the slight physical injuries committed against Kenneth Andres and
Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor in
its medium period.
The rules on the imposition of penalties for complex crimes under Art. 48 of the
Revised Penal Code are not applicable in this case. Art. 48 applies if a single act
constitutes two or more grave and less grave felonies or when an offense is a
necessary means of committing another; in such a case, the penalty for the most
serious offense shall be imposed in its maximum period. Art. 9 of the Revised
Penal Code in relation to Art. 25 defines grave felonies as those to which the law
attaches the capital punishment or afflictive penalties from reclusion perpetua to
prision mayor; less grave felonies are those to which the law attaches a penalty
which in its maximum period falls under correctional penalties; and light felonies
are those punishable by arresto menor or fine not exceeding two hundred pesos.
Considering that the offenses committed by the act of the appellant of firing a
single shot are one count of homicide, a grave felony, and two counts of slight
physical injuries, a light felony, the rules on the imposition of penalties for
complex crimes, which requires two or more grave and/or less grave felonies, will
not apply.
The pecuniary award granted by the trial court for actual damages was duly
established by the testimonies of the prosecution witnesses as supported by the
original receipts for hospitalization and other medical expenses presented in
evidence by the prosecution. The award for loss of earning capacity is likewise
sustained for the reason that while Feliber Andres was pregnant and was
unemployed at the time of death, it is not disputed that she was a registered
nurse and had earning capacity. Noel Andres also testified that he and his wife
had plans to go back to Saudi Arabia to work after Feliber had given birth to their
second baby. While there is no evidence as to Felibers actual income at the time
of her death, in view of her temporary separation from work because of her
pregnancy, we do not consider it reversible error for the trial court to peg her
earning capacity to that of the salary of a government nurse under the salary
standardization law, as a fair estimate or reasonable assessment of her earning
capacity at the time of her death. It would be grossly inequitous to deny her
spouse and her minor children damages for the support that they would have
received, considering clear evidence on record that she did have earning
capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres and for the injuries
sustained by the two children, which under the circumstances are reasonable,

are likewise sustained.

WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant
is hereby found guilty of homicide for the death of Feliber Andres and is
sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor in
its medium period, as minimum, to 14 years 8 months and 1 day of reclusion
temporal in its medium period, as maximum. For each count of the slight physical
injuries committed against Kenneth Andres and Kevin Valdez, the appellant is
hereby sentenced to 20 days of arresto menor.
The pecuniary awards granted by the trial court are hereby sustained.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing, Buena, YnaresSantiago, De Leon, Jr., Sandoval-Gutierrez, JJ., concur.
Pardo, J., dissenting opinion.
Puno, Kapunan, Panganiban, JJ., joins the dissenting opinion of J. Pardo.
Footnote
1
Andres, tsn., March 16, 1999, pp. 14-18; Gonzales, tsn., May 25, 1999, pp.1522.
2
Andres, ibid., p. 26.
3
Amaba, tsn., May 11, 1999, p. 26.
4
Gonzalez, tsn., ibid., pp. 23-33; Quidic, tsn., March 22, 1999, pp. 8; 18-22.
5
named Ma. Clarisse.
6
Exh. "B", p. 2, Folder of Exhibits.
7
"Sec. 3. Judicial notice, when hearing necessary. -During the trial, the court, on
its own initiative, or on request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter to be
heard thereon if such matter is decisive of a material issue in this case."
8
People vs. Cabodoc, 263 SCRA 187; People vs. Malabago, 265 SCRA 198.
9
Reyes, Revised Penal Code, vol I, 1998 ed., pp. 409-410.
10
People vs. Caday, 2 SCRA 388; People vs. Ardisa, 55 SCRA 245; People vs.
Genial, 228 SCRA 283.
11
Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal
Code, vol. II, 1997 ed., p. 573.
12
People vs. de Jesus, 118 SCRA 516; People vs. Magadattu, 124 SCRA 594.
13
People vs. Manlapaz, 55 SCRA 598; People vs. Valles, 267 SCRA 103; People
vs. Real, 242 SCRA 671.
14
Sison vs. People, 250 SCRA 58, citing, People vs. Abapo, 239 SCRA 469.
15
U.S. vs. Mabug-at, 51 Phil. 967; People vs. Cagoco, 58 Phil 524.
16
Aquino, Revised Penal Code, 1997 ed., vol.2, pp. 575-576.
17
People vs. Manalo, 148 SCRA 98.
18
Andres, tsn., March 16, 1999, pp. 16-19, Gonzales, tsn. May 25, 1999, p. 1723.
19
Ibid., p. 66.

20

Ramos, tsn., March 15, 1999, pp. 64-65; Castro, tsn., March 15, 1999, p. 134.
Gonzales, tsn., May 25, 1999, pp. 36-39.
22
Andres, ibid., p. 79.
23
Ibid., tsn., pp. 87-88.
24
Exhibit P and its submarkings, pp. 79-81, Folder of Exhibits.
25
Exh. "PP-5", p. 80, folder of Exhibits.
26
See also, Andres, tsn., March 16, 1999, pp. 32-33.
27
Exh. "PP", p. 79, Folder of Exhibits.
28
Exh. "PP-3", ibid.
29
Insp Salamat, tsn., April 14, 1999, pp. 7-8.
30
Autopsy Report, supra.
31
Ramos, tsn., March 15, 1999, p. 23.
32
Andres, tsn., March 16, 1999, p. 85.
33
See Exh. "PP-7", p. 81, Folder of Exhibits.
34
Ramos, ibid., p. 122; Castro, tsn, March 15, 1999, pp. 176-177.
35
Andres, tsn, March 16, 1999, p. 26; Ramos, ibid., p. 13.
36
Andres, tsn., March 16, 1999, p. 76; Gonzales, tsn., ibid., pp. 39-41.
37
Gonzales, ibid., p. 43.
38
Ramos, tsn., p. 71; Castro, tsn., pp. 174-175.
39
Exh. "PP to PP-2", p. 79, Folder of Exhibits.
40
Aquino, Revised Penal Code, 1997 ed., vol. 1, p. 401.
41
Aquino, ibid., 1997 ed., vol 1 , p. 426.
42
Ramos, tsn., March 15, 1999, p. 77; Amaba, tsn., May 11. 1999, p.39; RTC
Decision, p. 82.
43
Ramos, ibid.
44
267 SCRA 103.
45
People vs. Listerio, G.R No. 122099, July 5, 2000.
46
People vs. Violin, 266 SCRA 224.
47
Aquino, Revised Penal Code, vol 2, 1997 ed., pp. 627-628.
48
Dr. Lyndon Ong, tsn., February 23, 1999, pp. 73-77, 81; Dr. Antonio Chua, tsn.,
February 23, 1999, pp. 33-45; 59-60.
49
Dr. Chua, tsn., February 23, 1999, pp. 61-64.
21

EN BANC
G.R. No. 139542
June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
INOCENCIO GONZALEZ, JR. y ESQUIVEL, accused-appellant.
DISSENTING OPINION
PARDO, J.:
We agree that there are indeed many unfortunate tragedies that have happened
because of the improvident use of a firearm to exacerbate a simple altercation
over traffic. One was the Rolito Go case. He shot in cold blood a college graduate
of De La Salle University1 after their cars nearly collided in a one-way street,
snuffing the young life of the victim. He was convicted of murder. This case is

another such senseless killing.

This case occurred on the eve of All Saints Day 1998, along the Garden of
Remembrance within Loyola Memorial Park, Marikina City, Metro Manila. The
trial court convicted the accused of murder and sentenced him to death. The
case is now before us on automatic review. The majority would convict the
accused only of homicide, not of murder. I regret that I cannot give my
concurrence.
In the afternoon of October 31, 1998, at about 2:30, both the family of
complainant Noel Andres and that of accused Inocencio Gonzales were on their
way to the exit of the Loyola Memorial Park, Marikina. The accused was driving a
white Isuzu Esteem van with his grandson and three housemaids, while the
complainant was driving a maroon Toyota FX with his pregnant wife Feliber
Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law,
Francar Valdez. At the intersection near the Garden of Remembrance, the
accused Gonzalez was turning left toward the exit while the complainant Noel
Andres was headed straight along the road to the exit; their two vehicles almost
collided. Noel Andres was able to step timely on the brakes. The accused
continued driving along his way while Noel Andres drove behind accuseds
vehicle for some time and cut him off when he found the opportunity to do so. 2
Noel Andres got out of his vehicle and knocked on the accused cars window.3
According to complainant Noel Andres, he calmly told the accused to be careful
with his driving and informed the latter that he was with his family. To this,
accused replied "Accidents are accidents, whats your problem." Andres saw the
accused turning red in anger, so he decided to go back to his vehicle when he
was blocked by accuseds son who said "Anong problema mo sa erpat ko."
Feeling threatened, Andres immediately boarded his vehicle, sat at the drivers
seat, closed the door and partially opened the car window just wide enough to
talk back to accuseds son. Suddenly, one of his passengers said "Binaril kami."
He turned to his wife Feliber Andres and saw her bloodied and unconscious. He
turned around and saw his son Kenneth and nephew Kevin also wounded. Noel
Andres did not hear the shot. He got out of his vehicle to warn the accused not to
flee. He then took the wounded members of his family to the exit where there was
an ambulance standing by and the three injured were boarded in the ambulance
to be brought to the Sta. Monica Hospital and later transferred to the Quezon City
Medical Center.
According to the accused, complainant Andres got out of his vehicle and
repeatedly cursed the accused while he stood beside the accused cars window.
The accused stayed inside his car and replied. "Pasensiya ka na hindi kita nakita,
nasilaw ako. Aksidente lang." The complainant would not stop shouting and
cursing at him. Dino, the accuseds son, who rode in another vehicle arrived at
the scene, confronted complainant Andres and the two had an altercation.
Complainant Andres remained outside his vehicle during the altercation with
Dino. When complainant Andres tried to reached for something inside his vehicle,
Dino froze where he stood. This prompted the accused to get his gun from the
glove compartment and feeling that his son was threatened, got out of his car

ready to shoot the complainant. When he saw that complainant Andres was not
armed, he put down his gun. At this point, accuseds daughter Trisha arrived at
the scene, walked past Andres and pushed her father, the accused, away. She
hugged him and in the process he fired the gun accidentally. The accused did not
know that he hit somebody until the complainants sister-in-law, Francar Valdez
got out of the vehicle carrying a bloodied small boy. The accused claimed that he
did not try to flee and even pharisaically told the complainants sister-in-law to
bring the wounded to the hospital. Perhaps he meant the cemetery.
On November 4, 1998, the prosecution filed with the Regional Trial Court,
Marikina City, an Information charging the accused with the complex crime of
murder, double frustrated murder and attempted murder, as follows:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by means of treachery and abuse
of superior strength upon the person of Noel Andres y Tomas, by then and there
shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y
Ordoo, on the left back portion of her head, thereby inflicting upon her serious
and mortal wound which directly caused her death, as well as hitting John
Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a consequence,
but nevertheless did not produce it by reason of some cause or causes,
independent of their will, that is, the timely and able medical assistance rendered
to John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage
and prejudice as well as to the damage and prejudice of the heirs of Feliber
Andres y Ordoo."
On arraignment, the accused pleaded "not guilty" to the charges. Trial ensued.
Feliber Andres, wife of complainant Noel Andres did not die instantaneously. She
lived to give birth to a baby girl4 by caesarian section and died the following
morning on November 1, 1998. Cause of death was a gunshot wound on the
head.5
Doctors treated Kenneth and Kevin for extraction of metallic fragments on their
faces. They were discharged from the hospital six days later on November 6,
1998.
After due trial, on June 25, 1999, the trial court rendered a decision finding that
the killing was attended by the qualifying circumstance of treachery and holding
the accused guilty of the complex crime of murder for the killing of Feliber Andres
and for two counts of frustrated murder for the injuries sustained by Kenneth
Andres and Kevin Valdez and sentenced the accused to death. The dispositive
portion of the decision reads as follows:
"WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder and Attempted Murder
penalized under Art. 248, as amended by Republic Act No. 7659 in relation to

Article 48 of the Revised Penal Code and is sentenced to suffer the maximum
penalty of Death by lethal injection.
"The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of
the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred for the
injuries sustained by the deceased Feliber Andres and the amount of P23,622.58
representing the expenses for the untimely delivery of the child Ma. Clarisse
Andres;
e) the amount of P51,566.00 representing the hospitalization expenses for the
injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the untimely death
of his wife Feliber Andres and for the injuries caused to his son John Kenneth
Andres;
g) the amount of P50,000.00 as and by way of attorneys fees and a fee of
P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained by the
victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
"SO ORDERED."
In this review, the accused claimed that the shooting was purely accidental. This
is another of his false pretensions. He declared that he had no intention to shoot
Noel Andres much less his wife nor the children. He lost his balance when his
daughter Trisha pushed him backward to stop him from joining the confrontation
between Dino and Noel Andres. He tried to free his right hand holding the gun
and it accidentally fired hitting the rear window of the left side of the Tamaraw FX.
He claimed that he did not see the passengers inside the vehicle at the time of
the shooting. The accused asserted that the prosecution failed to establish the
attendance of treachery and without said qualifying circumstance, the crime
committed was homicide, not murder. We find such pretenses to be utterly false
and bigoted. The evidence plainly shows that he directly aimed his pre-loaded
pistol with multi-missile bullets, released its safety trigger and deliberately pulled
the trigger aiming the gun at complainant Andres. What a poor shot he was. The
bullet hit the innocent pregnant wife of complainant. She did not die instantly,
although she could have. Divine intervention enabled her to give light to a baby
girl born the next day.
The trial court held that the accuseds act of loading the bullet into the chamber of
the gun and the cocking of the trigger of his automatic pistol constitute conscious
and deliberate effort to employ the gun as a means of committing the crime and
resultantly, treachery qualified its commission. The accused testified that his gun

was loaded before he left the house and he got out of his car and shot at the rear
window on the left side of the complainants vehicle. This testimony could not be
true, unless the accused was an instinctive killer who envisioned that he would
use his gun to kill someone as he left his house to go to the cemetery. The
accused also argued that the gun he used was a semi-automatic, not an
automatic pistol which meant that the pistol used had no external safety pin to be
released and that the hammer need not be cocked. The pulling of the trigger,
intentional or not, would fire the gun. This is another prevarication. Even a semi
automatic pistol has to be cocked to chamber load the same with a bullet and
activate the trigger-hammer. In the Glock semi-automatic 9mm pistol as the one
accused used, the trigger has a built-in safety lever and must be cocked and the
trigger purposely pulled to fire the gun.
Accused argued that the trial court improperly gave credence to the testimonies
of prosecution witnesses Castro and Ramos. Their narration of the incident was
rather absurd and would show that they did not witness the actual shooting.
Defense witnesses, on the other hand, testified that Castro and Ramos arrived at
the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, the accused argued that
there was no intent to kill and that they stayed in the hospital only for six days,
the crimes committed were two counts of slight physical injuries. The trial court
erred in awarding damages and in admitting in evidence the bunch of receipts
representing the medical expenses incurred for the injuries sustained by the
victims, without first requiring the prosecution to establish the authenticity of the
receipts. The accused also pointed out that the award for loss of earning capacity
had no basis as the deceased was unemployed at the time of the incident.
Finally, the accused submitted that the trial court erred in rejecting the mitigating
circumstances pleaded by the defense which attended the commission of the
crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation,
incomplete defense of a relative and voluntary surrender. The accused asserted
that the mitigation circumstances were duly proven and supported by the
evidence. The complainant Noel Andres testified that he saw the accused getting
red in anger after they had a heated argument immediately prior to the shooting.
These circumstances showed that the accused was not in his proper state of
mind at the time of the shooting. He was angered by Andres abusive language
directed at him and he got out of his car with a loaded gun to protect his son from
a perceived danger. The accused claimed that his willingness to help the injured
and his voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of the penalties.
The Solicitor General agreed with the accused that the crime was not attended by
treachery, and hence, the killing of Feliber Andres was homicide, not murder. The
Solicitor General was of the view that the shooting was preceded by a heated
argument and that the victim was placed on guard that attack was imminent.
There was no evidence that the accused deliberately employed the means of
attack to insure execution wit out danger of retaliation from the victim. However,
with respect to the injuries sustained by Kevin and Kenneth, the Solicitor General

disagreed with the accused that he was liable only for slight physical injuries. The
injuries sustained by both children were head injuries and could have caused
their death if not for the immediate medical attention given them. The number of
days they spent in the hospital is not determinative of the severity of the wounds.
The accused is liable for frustrated homicide for the injuries of the two small
children because he fired the shot at Noel Andres that hit instead his pregnant
wife and two small children. He is liable for all the consequences of his unlawful
act even if the crime committed is different from that intended (aberratio ictus).
As regards the mitigating circumstances, the Solicitor General asserted that none
can be considered in favor of the accused. The accused did not voluntarily
surrender to the police and he even entertained the possibility of flight but his car
was stuck in traffic along the exit of the memorial park. His claim of incomplete
defense of relative was belied by his own admission that complainant Noel
Andres did not have a gun and there was no unlawful aggression on his part.
There was no threat to his life or the life of his son at the time of the shooting, no
uncontrollable fear nor irresistible force that would mitigate the commission of the
offense.
The Solicitor General also agreed with the pecuniary awards the trial court
granted. He agreed that the late Feliber Andres was a 38-year old registered
nurse at the time of the killing. Although she was then not employed because she
was pregnant, she still had earning capacity and the trial court properly applied
the salary of a government nurse under the salary standardization scheme in the
computation of damages for the loss of earning capacity. The receipts presented
in evidence by the prosecution to establish hospitalization and other medical
expenses incurred by the complainant by reason of the injuries suffered by the
victims were duly authenticated by the prosecution witnesses and there is no
dispute that they are exact copies of the original receipts presented in court.
In sum, the Solicitor General asserted that the accused fired a single shot but
because of the multiple missile bullet that he used committed four offenses. He is
liable for the complex crime of homicide for the death of Feliber Andres, double
frustrated homicide against Kevin and Kenneth and attempted homicide against
Noel Andres, and that the penalty for the gravest offense, that is, homicide, shall
be imposed, in its maximum period, which is seventeen (17) years, four (4)
months and one (1) day to twenty (20) years reclusion temporal.
We find the appeal without merit. We do not agree with the views of the Solicitor
General.
Treachery under Article 14, paragraph 6 of the Revised Penal Code is defined as
the deliberate employment of means, methods or forms in the execution of a
crime against persons which tend directly and specially to insure its execution
without risk to the offender arising from the defense which the intended victim
might raise.6 For treachery to be appreciated, two elements must concur: (1) the
employment of means of execution that would insure the safety of the accused
from retaliatory acts of the intended victim and leaving the latter without an
opportunity to defend himself or retaliate; and (2) the means of execution
employed were deliberately or consciously adopted by the offender.7 The means

employed for the commission of the crime or the mode of attack must be shown
to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of
retaliation by the victim.8 At the time of the shooting, the complainant was having
a tiff with accuseds son. He knew that the complainant was not armed and there
was no imminent and grave danger to the life of his son. His conscious use of a
firearm with pre-loaded multiple missile bullets against a defenseless man who
was totally unaware of the danger to his life, as the events moved fast and he did
not even hear the shot constitutes treachery. Accused insured the success of the
crime without risk to himself arising from defense or retaliation. The complainant
could not defend himself from such firepower, much less retaliate. He was without
any firearm. Even if the attack was frontal, it was sudden and the victim was
unarmed.
Whether or not the attack succeeds against its intended victim or injures another,
or whether the crime committed is graver than that intended is immaterial, as long
as it is shown that the attack is attended by treachery, the qualifying circumstance
may still be considered.
We can not agree with the accused or the view of the Solicitor General that the
shooting was not attended by treachery. Noel Andres, who had his pregnant wife
and child with him in his Tamaraw FX could have provoked the situation but was
not an aggressor. Initially he touted the accused for his failure to observe traffic
rules.
However, after the altercation, complainant Andres walked toward his vehicle
because the altercation was over. On his way to the Tamaraw FX, he met another
man, who was the accuseds son. It appears that Andres had another shouting
match with accuseds son. Without ado, accused got his already pre-loaded
pistol, alighted from his car and fired a single shot at complainant Noel Andres.
He was a poor shot. The single bullet hit instead Feliber Andres on the forehead
near the temporal region above the left eye and the splitting metallic shrapnels hit
two innocent children on their faces, one on the cheek and the other below the
left eye. The intent to kill Noel Andres was evident when accused fired away at
him. Accused knew that his son was not physically threatened. Whether Noel
Andres was seated at the drivers seat inside his vehicle when accused Gonzales
fired, as the prosecution contends or was standing by the door of the drivers seat
outside his vehicle, as the defense submits, there is no question that the shot
was directed at complainant Noel Andres. However, as heretofore stated, the
accused was a poor shot. He made up by arming himself with a semi-automatic
pistol loaded with multi-missile bullet that splintered like a shotgun bullet. His son
was not in danger. He knew that complainant could easily be pacified without
resorting to shooting. Whether accused over-reacted or he shot at Andres out of
rage, one thing appears clear to us: the accused deliberately shot complainant
Noel Andres treacherously in cold blood. However, it was his wife who was fatally
hit in the head (aberratio ictus) and shrapnels hit two young innocent children. By
an act of God, she delivered a baby girl alive but gave her life to Him. The
shooting was a deliberate act of the accused. We are convinced that the shooting

was attended by treachery that qualified the crime of murder aggravated by the
use of a semi-automatic pistol specifically fitted with murderous missile. The
crime committed for the killing of Feliber Andres was murder, qualified by
treachery and aggravated by the use of firearm.
As regards the injuries suffered by the two children, we agree with the Solicitor
General that the crime committed was two counts of frustrated homicide. The
intent to kill was evident with the use of deadly weapon specially loaded with
multi-missile bullets and such intent was clearly made manifest by the acts of the
accused undoubtedly intended to kill the victims.
An examination of the testimonies of the attending physicians showed that the
wounds sustained by the two children from the metallic fragments may cause
death if left untreated. One of the attending physicians testified that the fragments
themselves will not cause complications; however, it is the entry of the fragments
or the open wound that is susceptible to infection. Two small fragments were no
longer extracted from the face of Kevin Valdez as the doctors deemed it to be
without danger of complication, but this could still be life threatening.
None of the mitigating circumstances pleaded by the accused was convincingly
proved to be attendant and none may be considered in the imposition of the
penalties.
IN VIEW WHEREOF, I vote to affirm the decision of the trial Court finding
accused guilty of MURDER, qualified by treachery and aggravated by the use of
firearm for the killing of Feliber Andres and sentencing him to reclusion perpetua,
with the accessory penalties of the law.
For each count of frustrated homicide committed against Kenneth Andres and
Kevin Valdez, the accused must be sentenced to the indeterminate penalty of ten
(10) years and one (1) day of prison mayor, as minimum, to seventeen (17) years
and four (4) months of reclusion temporal, as maximum; to indemnify the
offended parties Kenneth Andres and Kevin Valdez in the amount of P20,000.00
each.
Footnote
1
Rolito Go v. Court of Appeals, 206 SCRA 138 [1992].
2
TSN, March 16, 1999, pp. 14-18; TSN, ibid., pp. 20-23.
4
Named Ma. Clarisse.
5
Exhibit "B", Autopsy Report, Folder of Exhibits, p. 2. mkii
6
People v. Basco, 318 SCRA 615 [1999]; People v. Mangahas, 311 SCRA 384
[1999]; People v. Mallari, 310 SCRA 621 [1999]; People v. Sumalpon, 284 SCRA
464 [1998].
7
People v. Cabodoc, 263 SCRA 187 [1999]; People v. Malabago, 265 SCRA 198
[1990; People v. Villablanca, 316 SCRA 13 [1999]; People v. Marcelino, 316
SCRA 104 [1999]; People v. Bernas, 309 SCRA 741 [1999]; People v.
Penaflorida, 313 SCRA 563 [1999]; People v. Bautista, 312 SCRA 475 [1999];
People v. Molina, 312 SCRA 130 [1999]; People v. Bumer, 319 SCRA 539 [1999].
8
Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal
Code, Vol. II, 1997 ed. p. 573.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-32040 October 25, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO,
defendants-appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista
and Solicitor Leonardo L. Cruz for appellee.
Ciriaco Lopez, Jr. for appellants.
CONCEPCION, JR. J.:
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the
accused, Pedro Pagal y Marcelino and Jose Torcelino y Torazo were charged
with the crime of robbery with homicide, committed as follows:
That on or about December 26, 1969, in the City of Manila, Philippines,
the said accused, conspiring and confederating together and mutually
helping each other, did then and there wilfully, unlawfully and feloniously,
with intent to gain, and by means of violence, take away from the person
of one Gau Guan, cash amounting Pl,281.00. Philippine currency, to the
damage and prejudice of the said Gau Guan in the said sum of
Pl,281.00; that on the occasion of the said robbery and for the purpose of
enabling them to take, steal and carry away the said amount of
P1,281.00, the herein accused, in pursuance of their conspiracy, did then
and there wilfully, unlawfully and feloniously, with intent to kill and taking
advantage of their superior strength, treacherously attack, assault and
use personal violence upon the said Gau Guan, by then and there
stabbing him with an icepick and clubbing him with an iron pipe on
different parts of his body, thereby inflicting upon him mortal wounds
which were the direct and immediate cause of his death thereafter.
Contrary to law, and with the generic aggravating circumstances of (1)
nightime purposely sought to better accomplish their criminal design; (2)
evident premeditation; (3) in disregard of the respect due the offended
party; and (4) with abuse of confidence, the accused being then
employees of the offended party. 1
When the case was called for affaigmnent, counsel de oficio for the accused
infomred said court of their intention to enter a plea of guilty provided that they be
allowed afterwards to prove the mitigating circumstances of sufficient provocation
or threat on the part of the offended party immediately preceding the act, and that
of having acted upon an impulse so powerful as to produce passion and
obfuscation. 2 Therafter, the trial judge propounded to them the questions and the
accused gave the answers quoted hereunder: +.wph!1

Court:
Your lawyer here has manifested your desire to enter a plea of
guilty to the offense charged, robbery with homicide. Do you
know that by agreeing to that manifestation of your lawyer, you
will be admitting the commission of the crime charged?
Accused:
We agree, your honor, to what our lawyer said, but we would like
to explain something.
Court:
Your lawyer here has stated that you will still prove mitigating
circumstances. Is that what you like to explain?
Accused:
Yes, your honor.
Court:
If that is the case, I will give you a chance.
Accused:
Yes, your honor.
Court:
Do you know that by agreeing to that manifestation, you will be
admitting the commission of the crime charged, robbery wit,.
homicide?
Accused:
Yes, your honor.
Court:
And for which this court might sentence you to death or life
imprisonment?
Accused:
Yes, your honor.
Court:
And notwithstanding what is explained to you, you still insist in
your desire to enter a plea of guilty to the offense charged?
Accused:
Yes, your honor.
Court:
Q Notwithstanding again the warning of the court that the
maximum penalty impossable is death?
A Yes, your honor.
Court:
Arraign the accused.
(At this stage, both accused were arraigned and both pleaded guilty to
the offense charged). 3
Thereafter, the accused presented evidence to prove the mitigating
circumstances of sufficient provocation on the part of the victim immediately
preceding the act and acting upon an impulse so powerful as to produce passion
and obfuscation. After the accused had rested their case, the prosecution

presented the statements 4 of the accused, and other pertinent documents

regarding the investigation of the case. 5
After the trial, the court a quo rendered its decision, the dispositive portion of
which reads as follows: +.wph!1
WHEREFORE, both accused are hereby found guilty beyond
reasaonable doubt as principals of the crime of robbery with homicide
and there being proven the aggravating circumstances of nighttime,
evident premeditation and disregard of respect due the offended party
offset only by the mitigating circumstance of their plea of guilty,
sentences each one of them to DEATH, jointly and severally indemnify
the heirs of the deceased Gau Guan; P15,000.00 for moral damages;
P15,000.00 for exemplary damages, all amounts to bear interest until
they shall have been fully paid; the sum of P1,281.00 represnting the
amount taken from the victim; and to pay proportionately the costs. 6
The case is now before this Court for mandatory review on account of the death
penalty imposed upon the accused.
The appellant Pedro Pagal contends that the trial court erred in convicting him of
the crime of robbery with homicide instead of declaring him liable only for his
individual acts, claiming that the record is bereft of any proof or evidence that he
and his co-appellant Jose Torcelino conspired to commit the crime of robbery with
homicide.
The appellant's position is not well-taken. His denial of conspiracy with his coappellant Jose Torcelino cannot be given credence in view of the clear and
convincing confession of his guilt in his statement 7 signed by him before the
police investigators several hours after the commission of the crime. Besides,
when he pleaded guilty to the charge, he is deemed to have admitted all the
material facts alleged in the information. 8 By his plea, the appellant admitted not
only the commission of the crime but also the circumstances surrounding its
commission, including the allegations of conspiracy. A plea of guilty when formally
entered on arraignment, is sufficient to sustain a conviction even for a capital
offense without the introduction of further evidence, 9 the requisite proofs having
been supplied by the accused himself. 10 We find, therefore, that the trial court did
not commit any error in convicting the appellant Pedro pagal of the crime of
robbery with homicide.
The appellants further assail the trial court in not appreciating in their favor the
mitigating circumstances of sufficient provocation, and passion or obfuscation.
Again, the appeflants'contention is devoid of merit. Firstly, since the alleged
provocation which caused the obfuscation of the appellants arose from the same
incident, that is, the alleged maltreatment and/or ill-treatment of the appellants by
the deceased, these two mitigating circumstances cannot be considered as two
distinct and separate circumstances but should be treated as one. 11 Secondly,
the circumstance of passion and obfuscation cannot be mitigating in a crime
which as in the case at bar is planned and calmly meditated before its
execution. Thus, in People vs. Daos, 12 a case of robbery with homicide, this
Court rejected the claim of the appellants therein that passion and obfuscation

should have been estimated in their favor, because the death of the victim therein
took place on the occasion of a robbery, which, before its execut,.on, had been
planned and calmly meditated by the appellants. Thirdly, the maltreatment that
appellants claim the victim to have committed against them occurred much earlier
than the date of the commission of the crime. Provocation in order to be a
mitigating circumstance must be sufficient and immediately proceeding the act.
We hold that the trial court did not commit any error in not appreciating the said
mitigating circumstances in favor of the appellants.
Finally, the appellants claim that the trial court erred in considering the
aggravating circumstances of nighttime, evident premeditation, and disregard of
the respect due the offended party on account of his rank and age.
Although the trial court correctly considered the aggravating circumstance of
nocturnity because the same was purposely and deliberately sought by the
a,)pellants to facilitate the commission of the crime, nevertheless, We disagree
with its conclusion that evident premeditation and disregard of the respect due
the offended party were present in the commission of the crime.
Evident premeditation is inherent in the crime of robbery. 13 However, in the crime
of robbery with homicide, if there is evident premeditation to kill besides stealing,
it is considered as an aggravating circumstance. 14 In other words, evident
premeditation will only be aggravating in a complex crime of robbery with
homicide if it is proved that the plan is not only to rob, but also to kill. 15 In the
case at bar, a perusal of the written statements 16 of the appellants before the
police investigators show that their original plan was only to rob, and that, they
killed the deceased only when the latter refused to open the "kaha de yero", and
fought with them. The trial court, therefore, erred in taking into consideration the
aggravating circumstance of evident premeditation.
The aggravating circumstance that the crime was committed with insult or in
disregard of the respect due the offended party on account of his rank, age or sex
may be taken into account only in crimes against persons or honor, when in the
commission of the crime there is some insult or disrespect shown to rank, age, or
sex. 17 lt is not proper to consider this aggravating circumstance in crimes against
property. 18 Robbery with homicide is primarily a crime against property and not
against persons. Homicide is a mere incident of the robbery, the latter being the
main purpose and object of the criminal. 19 The trial court erred in taking into
account this aggravating circumstance.
It results that in the commission of the crime, there is only generic aggravating
circumstance, i.e., nighttime or nocturnity.
Robbery with homicide is punished by reclusion perpetua to death. 20 Since the
aggravating circumstance of nighttime is offset by the mitigating circumstance of
plea of guilty, the lesser penalty, which is reclusion perpetua, should be imposed
upon the appellants. 21
ACCORDINGLY, the judgment of the trial court is modified and the appellnts
Pedro Pagal y Marcelino and Jose Torcefino y Torazo are hereby sentenced to
suffer each the penalty of reclusion perpetua. In all other respects, the judgment
of the trial court is affirmed. With costs against the appellants.

SO ORDERED.
Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and Guerrero, JJ.,
concur.1wph1.t
Teehankee and Makasiar, JJ., concur in the result.
Antonio, J., took no part.
Separate Opinions
MUOZ PALMA, J., concuring:
I would state however that the rulings in People vs. Parete and People vs.
Santos, et al., cited in page 7 of the Opinion must be taken in conjunction with
recent jurisprudence that extra solicitous care is required in the admission of a
plea of guilty and that the taking of testimony and other evidence notwithstanding
a plea of guilty is the prudent and proper course to follow by trial judges. (People
vs. Villafuerte, March 28, 1974, citing numerous cases; People vs. Hondolero,
August 25, 1976). These safeguards appear to have been taken in the instant
case.
BARREDO, J., concurring:
While I am not fully satisfied that appellants were entirely aware of the meaning
of their plea of guilty, I find that the rebuttal evidence of the prosecution proved
their guilt, which evidence the appellants did not dispute.
Footnotes
1 p. 2, Record.
2 p. 3, t.s.n., January 8, 1970.
3 pp. 3-4, t.s.n., January 8, 1970.
4 Exhibits "A" & "B", pp. 4, 7, Record.
5 Exhibits "C", "D", "E", "F" and "F1", pp. 9, 10, 11, 14, 15, Record.
6 pp. 26-27, Record.
7 Exhibit "B", supra.
8 People vs. Roldan, L-22030, May 29, 1968, 23 SCRA 907; People vs. Arpa, L26789, April 25, 1969, 29 SCRA 1037.
9 People vs. Perete, 1 SCRA 1290.
10 People vs. Santos and Vicente, 103 Phil. 40.
11 People vs. Reyes, L-33154, February 27, 1976, 69 SCRA 474.
12 60 Phil. 143.
13 U.S. vs. Blanco, 10 Phil. 298; People vs. Daos, 60 Phil. 143; People vs.
Pulido, 85 Phil. 695; People vs. Valeriano, 90 phil. 15.
14 People vs. Nabual, L-127758, July 14, 1969, 28 SCRA 747.
15 People vs. Atencio, L-22513, Jan. 17, 1968, 22 SCRA 88.
16 Exhibits "A" and "B", pp. 4, 7, Record.
17 Albert, Revised Penal Code, 1946 Ed., p. 109; Reyes, Revised Penal Code,
1974 Ed., Vol. I, p. 297.
18 Aquino, Revised Penal Code, 1976 Ed., Vol. I, p. 286, citing U.S. vs. Samonte,
8 Phil. 286.

19 Ibid, Vol. III, 1976 Ed., p. 1434, citing U.S. vs. Ipil, 27 Phil. 530, 535.
20 Article 294, par 1 revised Penal Code.
21 Article 63, (4) and (2), Revised Penal Code.

CONTRARY to Article 249 of the Revised Penal Code.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182750
January 20, 2009
RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
This petition for review under Rule 45 seeks to reverse and set aside the
Decision1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR
No. 25371 which affirmed with modification the April 30, 2001 Decision 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
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.

Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties
waiver of pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecutions 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
Tomeldens 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 Tomeldens nose to bleed and
rendered him unconscious.
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."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 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
"cardio-respiratory 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 latters death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as
charged. The fallo of the RTCs 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.
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.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 accused-appellant
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.5
The appellate court held that the commission by petitioner of the crime of
homicide, as defined and penalized under Article 249 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 Tomeldens 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 petitioners motion for reconsideration, per the CA

Resolution7 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.
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.8
The Courts Ruling
The petition is partly meritorious.
Homicide Duly Proved
It is petitioners threshold posture that the fistic injury Tomelden sustained was
not "the main underlying cause of his death." 9 In this regard, petitioner draws
attention to the fact that the fist fight in question happened on September 28,
1993. Tomelden, 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 suffering from malignant hypertension and that this circumstance greatly
engenders doubt as to the proximate cause of the victims death. Petitioner, thus,
contends that he could only be adjudged guilty of physical injuries. 10
We are not persuaded.
The prosecution witness, Salazar, testified about petitioners lucky punch hitting
Tomelden right smack on the face. And even if Tomeldens 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 Tomeldens head could have shaken his brain which caused the
cerebral concussion; and that the cause of the victims death was "cardiorespiratory arrest 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 husbands post September 28, 1993
severe head pain, clearly establish beyond cavil the cause of Tomeldens 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 [Tomeldens] 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. 11 x x x
Petitioners 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 petitioners 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.
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; 12 it
is not enough that the provocative act be unreasonable or annoying; 13 the
provocation must be sufficient to excite one to commit the wrongful act 14 and
should immediately precede the act. 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. 16
In the instant case, Tomeldens 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.
Petitioners 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 goats 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.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled
insults at him, calling him "sipsip" just to maintain his employment as Navarros
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 latters 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 They exchanged angry words, sir.
Q What were these words?
A Rodel Urbano said, "When youre already drunk, you keep on insulting
me."
Q And what was the reply if any?
A Akina tua lanti".
PROS. CHIONG
Q Who said that?
WITNESS
A It was Brigido Tomelden, sir.
Q And what transpired next?
A After that they exchange words, sir. " If you like we will have a fist fight" he said.

Q Who said that?

A Brigido Tomelden said.
Q At that time, were you already inside the compound of the LIWAD?
A Yes, sir.
Q After the victim allegedly told the accused, "If you want a fist fight," what
transpired next?
A Rodel Urbano said, "if it is a fist fight we fight." 17
Q And when you were already in the compound of LIWAD Office, Brigido
Tomelden was challenging the accused for a fist fight?
A Yes, sir.
Q And the accused refused to accept the challenge?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel
Urbano. He is stouter than the accused.
Q But finally the fist fight took place?
A Yes, sir.18
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?
A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he
was much aggressive than the accused,
sir.
CONCHITA CARPIO MORALES
Q You mean that although it was the victim
Associate Justice
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?
A He tried to parry the blows of the late Brigido Tomelden, sir.
Q Because he tried to parry the blow of the Brigido Tomelden, when the accused
throw punches, the punch was directed to the victim but most of them did not hit
the victim, is that what you saw?
A Yes, sir.19 (Emphasis added.)
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 petitioners lucky punch found its mark. In People
v. Macaso,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,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 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 LIWADs 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 Tomeldens 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.
DANTE O. TINGA
In cases in which the penalties
Associate Justice
prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different penalties,
each one of which forms a period in accordance with the provisions of Articles 76
and 77, the courts shall observe for the application of the penalty the following
rules, according to whether there are or are no mitigating or aggravating
circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the
number and nature of such circumstances.
The prescribed penalty for homicide under Art. 249 of the RPC is reclusion
temporal or from 12 years and one day to 20 years. With the appreciation of two
mitigating circumstances of no intention to commit so grave a wrong as that
committed and of sufficient provocation from the victim, and the application of
par. 5 of Art. 64, RPC, the imposable penalty would, thus, be the next lower
penalty prescribed for homicide and this should be prision mayor or from six
years and one day to 12 years. Consequently, with the application of the
Indeterminate Sentence Law, petitioner ought to be incarcerated from prision
correccional as minimum and prision mayor as maximum. In view of the
circumstances of the case, considering that the petitioner never meant or
intended to kill the victim, a prison term of eight (8) years and one (1) day of

prision mayor as maximum period is proper while the period of two (2) years and
four (4) months of prision correccional as minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral damages.
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
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
ARTURO D. BRION
Associate Justice
AT T E S TAT I O N
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
Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons 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 Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Rollo, pp. 86-101. Penned by Associate Justice Apolinario D. Bruselas, Jr. and
concurred in by Associate Justices Bienvenido L. Reyes and Monina Arevalo
Zenarosa.
2
Id. at 51-60. Penned by Judge Dionisio C. Sison.
3
Id. at 89.
4
Supra note 2, at 59-60.
5
Supra note 1, at 100.

Art. 249. Homicide.Any person who, not falling within the provisions of Art.
246, shall kill another without the attendance of any of the circumstances
enumerated in the next preceding article, shall be deemed guilty of homicide and
be punished by reclusion temporal.
7
Rollo, p. 110.
8
Id. at 17.
9
Id. at 18.
10
Id. at 19.
11
Supra note 1, at 96-97.
12
Navarro v. Court of Appeals, G.R. No. 121087, August 26, 1999, 313 SCRA
153, 166; citing Pepito v. CA, G.R. No. 119942, July 8, 1999, 310 SCRA 128.
13
Cano v. People, G.R. No. 155258, October 7, 2003, 413 SCRA 92, 105; citing 1
Aquino, Revised Penal Code 116 (1997).
14
Navarro, supra; citing People v. Nabora, 73 Phil. 434 (1941).
15
Id.; citing People v. Paga, No. L-32040, October 25, 1977, 79 SCRA 570.
16
Cano, supra note 13; citing 1 L.B. Reyes, The Revised Penal Code 179-180
(14th revised ed., 1998).
17
TSN, November 25, 1998, pp. 6-7.
18
TSN, December 1, 1998, p. 4.
19
TSN, January 31, 2000, pp. 21-22.
20
No. L-30489, June 30, 1975, 64 SCRA 659.
21
Supra note 12.

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-32042 December 17, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION
AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila
after he pleaded guilty to the charge of murder for having shot with a .22 caliber
revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was qualified by
treachery and aggravated by premeditation and disregard of rank. It was
mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of
February 13, 1975 affirmed the judgment of conviction. It appreciated in Benito's
favor the mitigating circumstance of voluntary surrender. The penalty was
reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the
mitigating circumstance of immediate vindication of a grave offense and that the
aggravating circumstances of disregard of rank should not be appreciated against
him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about
five hours after the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz,
Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of
the tragic incident in this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission
sa kalye P. Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa
Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil
Service magmula pa noong November, 1965 ng ako ay nasuspende sa
aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at
nasuspende ako ng 60 days at nabalik ako sa trabaho noong January
1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC
FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC
DOCUMENT at dinimanda din ako ng Civil Service ng Administrative
case ng "DISHONESTY" at dinismiss na ako sa trabaho ni
Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong
kinargo nila sa akin na sinabi ko sa inyo ay "fabricated" lang ang mga
evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si
PEDRO MONCAYO JR. Y RAMOS at naka pending pa ngayon sa City
Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang "dismissal

order" ni Commissioner Subido ay inapela ko sa Civil Service Board of

Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated"
charges ay naghirap na ko sa aking buhay at nahihiya ako sa mga
kaibigan ko. Ako ay assign(ed) sa collecting department noon at
nagagalit sa akin ang mga empleyado ng Civil Service dahil mahigpit ako
sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta
sa Civil Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr.
at kinausap ko siya at tinanong ko siya na iyong kaso ko ay matagal na
at hindi pa natatapos at baka matulungan niya ako at ang sagot niya ay
"UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT
BAKA IPAYARI KITA DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO
MONCAYO Jr. sa loob ng compound ng Civil Service at sa harapan ng
maraming tao sinabi niya na "NAGIISTAMBAY PALA DITO ANG
MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre
12, 1969, nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong
kotse niya sa kalye P. Paredes sa tapat ng Civil Service, sinundan ko
siya at pagliko ng kotse niya sa kanto ng P. Paredes at Lepanto,
Sampaloc, Maynila, ay binaril ko siya ng walong beses at tinamaan siya
at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para
sumurender at kayo nga ang dumating kasama ninyo iyong mga kasama
ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with
the eight empty shells of the bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing
(Exh. B):
According to the suspect, he was a former employee of the Civil Service
Commission at its main office located at P. Paredes, Sampaloc. Mla., and
was assigned as Clerk 2 in the Administrative Division from Nov. 1963
continuously up to Nov. 1965 when he was suspended for
"DISHONESTY".
After two months, he was reinstated but was criminally charged for
QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and
FALSIFICATION OF PUBLIC DOCUMENTS and administratively
charged for "DISHONESTY" culminating in his dismissal from the Civil
Service on February 1966.
The aforecited criminal charges against the suspect was allegedly
investigated by Asst. Fiscal MAGAT. Records from the CRID, MPD,
reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla.
issued a Warrant No. E-316758 for the arrest of the suspect for the crime
of ESTAFA.

On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued
an order No. OA-87409 for the arrest of the suspect for the crime of
MALVERSATION OF PUBLIC FUNDS. According to the suspect, the
aforecited criminal and administrative charges filed him were allegedly
instigated and contrived by the victim and since the time of his dismissal,
he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st.
and requested the victim to help him in his cases but the former allegedly
uttered to the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI
PA SA IYO AT BAKA IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec.
12, 1969, and when they met again, the victim allegedly remarked in the
presence of many people, "NAGIISTAMBAY PALA DITO ANG
MAGNANAKAW". The suspect who was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was
armed with an unlicensed Cal. 22 black revolver (w/ SN - P-5317,
Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA.
P.I.) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited for the
victim outside the Civil Service compound at P. Paredes st. Sampaloc,
Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate
No. L-10578 Mla. 69) along P. Paredes st. The suspect with evident
premeditation, surreptitiously followed the victim and when the latter's car
was at a full stop at the corner of Lepanto and P. Paredes sts. due to
heavy traffic of motor vehicles, the suspect without any warning or
provocation, suddenly and treacherously shot the victim eight (8) times
on the head and different parts of the body at closer range which
consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red
private car (w/ Plate No. L-55117) by his co-employees (composed of
VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to
the FEU Hospital. Unfortunately, the victim was pronounced DOA by Dr.
P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant
Chief of the Personnel Transactions Division and Acting Chief, Administrative
Division of the Civil Service Commission (Exh. E to E-2). The accused was a
clerk in the cash section, Administrative Division of the Commission, receiving
P1,884 per annum (Exh. D). He started working in the Commission on November
7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the
Commissioner of Civil Service that Benito admitted having malversed an amount
between P4,000 and P5,000 from his sales of examination fee stamps.
Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner

Through Proper Channels

This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the
Administrative Division of this Commission, who, as had previously been
reported, malversed public funds in the amount of approximately
P5,000.00 out of his collections from the sale of examination fee stamps.
I wish to state that this matter came to my attention on the evening of
March 1, 1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to
me that fifty (50) money orders at P2.00 each with a total vlaue of
P100.00 were missing from a bundle of money orders received from the
Provincial Treasurer of Cotabato, which were kept by him in one of the
cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito
stole the missing money orders. His suspicion arose from the fact that he
found several money orders marked "Cotabato" as their place of issue
among the cash receipts turned over to him by Mr. Benito that afternoon
as his collection from the sale of examination fee stamps. Mr. Abarquez
showed to me the said money orders issued in Cotabato which were
turned over to him by Mr. Benito and after checking their serial numbers
with the records of list of remittances on file, we were able to establish
definitely the fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the
Cash Section and one of his duties was to sell examination fee stamps to
applicants for examinations. It was then the practice of the cashier to
issue to Mr. Benito in the morning examination fee stamps to be sold
during the day and in the afternoon he turned over to the Cashier the
proceeds from the sale of stamps including the unsold stamps issued to
him. After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00 by
substituting equivalent amount of money orders in the place of the cash
extracted by him from his daily collections from the sale of examination
fee stamps when he clears his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr.
Abarquez and ask him whether he had something to do with the loss of
the fifty (50) money orders at P2.00 each. At first he denied, but when I
asked him where he obtained the money orders issued in Cotabato
which were included in his collections the day preceding, he admitted
having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started
committing the said irregularity and how much in all did he actually
malversed out of his daily collections from the time that he started the
anomaly. He stated in the presence of Mr. Abarquez that he started in
January, 1965 and that although he did not know exactly the total amount
malversed by him, he believed the amount to be between P4,000.00 to
P5,000.00. He also confessed that he used the money orders remitted by
the Provincial Treasurer of Negros Occidental in the amount of P3,436.00

in substituting various amounts extracted by him from his daily cash

collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering the
money orders received from the Provincial Treasurer of Negros
Occidental was duly receipted by Mr. Benito. He was supposed to issue
an Official Receipt therefor in favor of the said Provincial Treasurer and
then turn over to the Cashier the amount involved for deposit to the
National Treasurer. The said List of Remittances, duly signed by Mr.
Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the
Commissioner. However, he pleaded that he be given first an opportunity
to restore the amount before I make my report in order that the penalty
that may be imposed upon him may be lessened to a certain degree. As I
thought it wise in the interest of the service to recover the amount
involved, I allowed him to go and see his parents in Naga City to raise
the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an
application for a loan with the Government Service Insurance System
and that the proceeds of the said loan which he intended to use in
restoring the amount malversed by him were expected to be released
during the last week of May, 1965. However, when the month of May,
1965 elapsed without the amount involved having been restored, I
conferred with Mr. del Prado, my immediate superior and asked him
whether we should wait further for the release of the said loan in order
that the amount involved may be recovered. Mr. Prado consented to
giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end
of June, 1965, I got hold of him on July 5, 1965 and together with
Messrs. del Prado, Abarquez and Gatchalian, also of this Commission,
brought him before Deputy Commissioner A. L. Buenaventura and
reported the entire matter to the Deputy Commissioner. In the presence
of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito
admitted readily and voluntarily before the Deputy Commissioner the
commission of the offense of malversation of public funds as stated
above.
In view of the foregoing, it is recommended that Mr. Benito be charged
formally and that he be suspended from office immediately considering
the gravity of the offense committed by him.
(Sgd.) PEDRO R. MONCAYO Administrative Officer II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner
Alipio Buenaventura that he had misappropriated his collections and spent the
amount in nightclubs and pleasure spots and for personal purposes. The decision
dismissing him from the service reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash

Section, Administrative Division of this Office, for dishonesty.

The following excerpts from the letter dated October 22, 1965 of the
Commissioner of Civil Service connect respondent with the alleged
misappropriation of public funds representing his collection from the sale
of examination fee stamps and constitute the basis of the instant case
against him:
An investigation made by this Commission shows that you
malversed public funds in the amount of P3,536.00 out of your
collections from the sale of examination fee stamps while in the
performance of your official duties as Clerk II in the Cash
Section, Administrative Division of this Office. It appears that you
succeeded in malversing the above-stated amount from your
cash collections by substituting in lieu thereof money orders
worth P3,436.00 remitted to this Commission by the Provincial
Treasurer of Negros Occidental which were duly receipted for by
you. It also appears that you extracted from a bundle of money
orders remitted by the Provincial Treasurer of Cotabato the
amount of P100.00 in money orders which were kept in one of
the cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money
orders were always kept in the Cashier's safe and he had no access to
them. Although he admitted having received money orders amounting to
P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and
another remittance of the Provincial Treasurer of Cotabato he, however,
disclaimed having substituted the same for cash collections in his sale of
examination fee stamps. He reasoned out further that he could not be
charged with malversation of public funds inasmuch as he was not then
an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs,
among other duties, the selling of examination fee stamps, receiving
payments therefor, and receiving remittances in form of cash and/or
money orders from provincial treasurers in connection with examinations
held in the provinces. It was also his duty to issue official receipts for said
remittances. In the course of the performance of his duties, he received
said remittances from the Provincial Treasurers of Negros Occidental and
Cotabato, but no official receipts were issued by him, as shown by the
reply telegrams pertaining thereto. While records disclose that
remittances from the province of Cotabato were submitted to the Cashier
of the Civil Service Commission, there is no evidence showing that
remittances from Negros Occidental were likewise submitted.
Investigation further reveals that 50 money orders were discovered
missing from the remittances of Cotabato Provincial Treasurer which
were kept in the cabinet of the Cashier. On or about March 2, 1965, the
Cashier of the Commission noticed that 15 money orders turned over by
respondent as part of his collections in the sale of examination fee

stamps were among the missing money orders. This triggered off the
filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy
Commissioner Alipio Buenaventura having misappropriated an aggregate
amount ranging from P3,000 to P7,000, which he spent in night clubs,
pleasure spots and other personal benefits. Despite the testimonies of
several witnesses regarding his confession, including that of the then
Deputy Commissioner himself, respondent, when asked to take the
stand, denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil
Service Commission, when examined by representatives of the Auditor's
Office, did not indicate any shortage and therefore there was no
irregularity involved. This argument is not well taken. Inasmuch as the
remittances received by respondent from said Provincial Treasurers of
Negros Occidental and Cotabato were not in turn given corresponding
official receipts, naturally, the same were not reflected on the Cashier's
cash book.
The weakness of respondent's defense lies not so much on its failure to
establish convincingly his innocence as its irreconciliability with
established facts. Obviously, none of the circumstances in this case is
consistent with his claim of innocence. On the contrary, all of them put
together produce reasonable assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito
guilty as charged. Wherefore, he is dismissed from the service effective
upon his receipt of this decision.
In the interest of the service this decision is executed also on the date of
his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's
decision dismissing him. The appeal was pending at the time when he
assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which
the victim, Moncayo, allegedly made upon seeing Benito in the compound of the
Civil Service Commission near the canteen at eleven o'clock in the morning of
December 12, 1969 (about six hours before the shooting): "Nagiistambay pala
dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi
ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn
December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito
contends that Moncayo insulted him when he (Moncayo) remarked that a thief
was loitering in the premises of the Civil Service Commission. Benito argues that
that remark "was tantamount to kicking a man already down and to rubbing salt
into a raw wound" and that, as it was made publicly and in a loud voice, he was
exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco
dated January 16, 1975, acquitting him of the charge of malversation in

connection with his alleged misappropriation of the fees collected from the
examinees of the 1974 patrolman examination. That same decision makes
reference to Benito's exoneration from the administrative charge. The court's
decision reads as follows:
The accused is charged with malversation under the following
information:
That on or about and during the period comprised between
October 17, 1964, to February, 1965, inclusive, in the City of
Manila Philippines, the said accused being then employed as
Clerk I of the Civil Service Commission, a branch of the
government of the Republic of the Philippines, among whose
duties were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and by reason of
his said position received the total amount of P3,536.00, with the
duty to turn over and/or account for his collections to the cashier
of the Civil Service Commission immediately or upon demand
but the said accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated demands
made upon him to turn over and to account for the same, did
then and there willfully, unlawfully and feloniously misappropriate,
misapply and convert and malverse the said amount to his own
personal use and benefit, to the detriment of public interest and
to the damage and prejudice of the said Civil Service
Commission in the said amount of P3,536.00, Philippine
currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the
Civil Service Commission from May 27, 1964, as clerk I, range 23 from
June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1,
A-2). He had the duty, among others, of selling Civil Service examinationfee stamps and to receive payment therefor, as well as to receive
remittances of money orders and checks from the provincial treasurers
for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the
period alleged in the information, testified in his direct examination that
Benito was working in his office; that one of the duties that he assigned
to him was to sell examination fee stamps; that it was customary for him
to give stamps to Benito at the start of office hours in the morning and
that Benito turned over to him the proceeds of the sale, as well as the
unsold stamps, at the close of office hours in the afternoon; that one
afternoon he noticed that Benito turned over to him 50 money orders
from Cotabato, together with some cash, as proceeds of the sale of
stamps for that day; that he remembered that he was missing money
orders from one of his cabinets where he kept them; that when he
discovered that the 50 money orders were those which were missing, he

reported the matter to Pedro Moncayo, the chief administrative officer; on

March 1, 1965; that the money orders were for P2.00 each, and were
payments of the examination fees from Cotabato (Exhibit F); that he
discovered the loss of the 50 money orders on February 28, 1965 and
reported it to Moncayo on March 1, 1965, together with the list of missing
orders (Exhibit M); that after receiving the report, Moncayo called Benito
to the office of Abarquez where he admitted taking the missing money
orders; that Moncayo submitted a memorandum to the Commissioner,
dated October 21, 1965, after giving Benito a chance to refund the value
of the money orders (Exhibit O). Alipio Buenaventura, acting Deputy
Commissioner at the time, and Eliseo S. Gatchalian, budget officer,
testified that when Benito was confronted with the report of Moncayo and
Abarquez, he admitted that he misappropriated about P3,000.00
because of bad company and that he asked for a chance to refund the
money.
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of
the sale of stamps for that particular day, he kept the sum of P100.00 and
replaced it with the 50 money orders that he had taken from the cashier's
office to cover up the money that he had pocketed. When he was asked
when he discovered that Benito substituted the 50 money orders from
Cotabato, he answered that he checked them the following night (March
2, 1965) with the list of money orders remitted by the Provincial treasurer
(Exhibits F, F-1); but when he was confronted with his affidavit which he
executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he
had only verified 15 money orders missing as of April 18, 1966 and that
he did not keep any record of the money and the money orders given to
him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an
unlocked drawer was also occupied by two other persons, and that this
was the first time that he had not followed the usual procedure of keeping
them in the safe. He further admitted that, although regular examinations
were conducted during the period of October 1, 1964 to February 28,
1965 by the examiners of the Civil Service Commission and the auditors
of the General Auditing Office, they did not find any shortage in the
accounts of Benito.
Finally, when the Court asked him what happened to the 50 money
orders, at first he hinted that they were not deposited with the Bureau of
Treasury because they were reported missing; but when pressed further,
he said that he deposited them, but did not issue any official receipt for
them. When asked if he had any evidence to show that they were
actually deposited, he admitted that he could not even remember when
he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built
its case, is too weak and shaky to sustain a finding of guilt because of his

glaring inconsistencies, contradictions and gaps in memory. The

prosecution has failed to present convincing evidence that the 50 money
orders were even lost: According to Abarquez he had only verified the
loss of 15 on April 18, 1966, although he testified earlier that he
determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the
General Auditing Office did not find any irregularity in the cash
accountability of Benito, according to Abarquez. This was corroborated
by Romeo Jarabelo, auditor of the Commission on Audit and Miguel
Games, auditing examiner assigned to the Civil Service Commission,
who testified for the accused. Benito was in fact exonorated the
administrative charge filed against him for the time same transaction
(Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has
not issued any official receipt for the 50 money orders and his inability to
prove that he deposited them with the bureau of Treasury gives rise to
the suspicion that other persons, not the accused, may have stolen the
50 missing money orders. Even without taking into account the testimony
of the accused, who denied the testimonies of the witnesses for the
prosecution, the court believes that the prosecution has failed to prove
the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with
costs de oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo
cannot give rise to the mitigating circumstance of vindication of a grave offense
because it was not specifically directed at Benito. The prosecution notes that the
remark was uttered by Moncayo at eleven o'clock in the morning. According to
Benito's testimony (not consistent with his confession), he saw Moncayo three
hours later or at two o'clock in the afternoon and inquired from him about his case
and Moncayo said that he had already submitted his report and he could not do
anything more about Benito's case (26 tan). As already stated, the assassination
was perpetrated at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification
under the circumstances recited above for changing our prior opinion that the
mitigating circumstance of "haber ejecutado el hecho en vindicacion proxima de
una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's
favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than
sufficient time to suppress his emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal
Supremo (de Espaa) no ha apreciado la proximidad ... cuando la ofensa se
realizo por la maana y el delito tuvo lugar por la tarde (Sentencia de 11
noviembre 1921); por regla general no es proxima cuando transcurre tiempo
suficiente para la razon recobre su imperio sobreponiendose a la pasion
(Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta
el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950).

Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello

Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta
circunstancia atenuante en favor del autor de un homicidio cometido 'algunas
horas despues de haberle invitado el interfecto a renir y golpeado en el pecho
con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue
suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908,
Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo
against Benito and the assassination was more than sufficient to enable Benito to
recover his serenity. But instead of using that time to regain his composure, he
evolved the plan of liquidating Moncayo after office hours. Benito literally
ambushed Moncayo just a few minutes after the victim had left the office. He
acted with treachery and evident premeditation in perpetrating the cold-blooded
murder.
The facts of the case strongly suggest that what really impelled Benito to
assassinate Moncayo was not the latter's alleged defamatory remark that the
Civil Service Commission compound was a hangout for a thief or for thieves but
the refusal of Moncayo to change his report so as to favor Benito. Benito did not
act primarily to vindicate an alleged grave offense to himself but mainly to
chastise Moncayo for having exposed the alleged anomalies or defraudation
committed by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard
of rank should not be considered against him because there was no evidence
that he "deliberately intended to offend or insult the rank" of Moncayo. That
contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service
Commission and that the killer was a clerk in the same office who resented the
victim's condemnatory report against him. In that situation, the existence of the
aggravating circumstance of "desprecio del respeto que por la dignidad
mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division
killed his superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the
killing of the acting Spanish consul by his subordinate, the chancellor of the
consulate, who had misappropriated the funds of the consulate, which
misappropriation was discovered by the victim (People vs. Martinez Godinez, 106
Phil, 597, 606). In these two cases the murder was aggravated by disregard of
rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
Teehankee, Makasiar, Antonio, Concepcion, Jr. and Martin, JJ., concur.
Castro, C. J., Fernando and Muoz Palma, JJ., concur in the result.

Separate Opinions
BARREDO, J., concurring:
Upon a review of the record, I am now convinced appellant cannot be credited
with the mitigating circumstance of indication of a grave offense.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 149372
September 11, 2007
RICARDO BACABAC, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CARPIO MORALES, J.:
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a
dance hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio
(Eduardo) and Melchor Selibio (Melchor). And so were Jonathan Bacabac
(Jonathan) and Edzel Talanquines (Edzel). 1
Jonathan and Edzel left the dance hall. Not long after, the victim and his
companions also left and on their way home, they encountered Jonathan and
Edzel. It appears that the two groups then and there figured in a
misunderstanding.
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall,
noticed a commotion. He soon saw that Melchor was "hugging" Edzel, and later
"tying" Jonathan "with his hands." Still later, he saw the victim hit Edzel with a
"stick."2 He thus told the victim and his companions that Edzel is the son of
Councilor Jose Talanquines, Jr. (Jose), whereupon Eduardo3 told him (Jesus) to
go away for they might shoot him. Jesus thus left and proceeded to Edzel's
residence to report to his father what he had witnessed. In the meantime, Edzel
and Jonathan managed to flee.
The victim and his companions thereafter headed for home in the course of which
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and
Jonathan who are his nephews, and Edzel's father, Jose, his mother, and two
sisters at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and
Jose were carrying M-16 armalites, while Jonathan and Edzel were carrying a
piece of wood and a revolver, respectively.
Jesus thereupon pointed to the victim and his companions as the ones who had
manhandled Jonathan and Edzel. The victim apologized, explaining that he and
his companions mistook Jonathan and Edzel for other persons. Jesus blurted out,
however, "You are just bragging that you are brave. You are only bullying small
children."4 Petitioner, at that instant, fired his armalite into the air, while Jose fired
his armalite ("as if spraying his rifle from right to left") at the victim and Eduardo,
even hitting Jonathan in the thigh as he (Jonathan) "was on the move to strike
[the victim] with a piece of wood." Eduardo fell. And so did the victim who was in
a kneeling position, and as he was raising his hands in surrender, Jose shot him
again.
Meanwhile, Melchor escaped.5
The victim, Eduardo, and Jonathan were brought to the hospital. The victim was

pronounced dead on arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in
the thoraco-abdominal regions and one bullet wound in the extremities, and that
he died due to "maceration of the internal organs due to bullet wounds." 6 Eduardo
sustained two bullet wounds in the thoraco-abdominal region, and died of
"hemorrhage due to gunshot wounds."7
Two Informations for Murder were filed with the Regional Trial Court (RTC) of
Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The
accusatory portion of the first Information, docketed as Criminal Case No. 35783,
reads:
That on or about the 23rd day of December, 1990, in the Municipality of
San Joaquin, Province of Ilo-ilo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another to better realize their
purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickelplated revolver of unknown make and caliber, with deliberate intent and
decided purpose to kill, with treachery and evident premeditation and
without any justifiable cause or motive, did then and there willfully,
unlawfully and feloniously assault, attack and shoot one HERNANI
QUIDATO with the firearms they were then provided, inflicting upon the
latter gunshot wounds on the different parts of his body which caused the
immediate and instantaneous death of said Hernani Quidato.
CONTRARY TO LAW.8
The accusatory portion of the second Information, docketed as Criminal Case No.
35784, reads:
That on or about the 23rd day of December, 1990, in the Municipality of
San Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another to better realize their
purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickelplated revolver of unknown make and caliber, with deliberate intent and
decided purpose to kill, with treachery and evident premeditation and
without any justifiable cause or motive, did then and willfully, unlawfully
and feloniously assault, attack and shoot one EDUARDO SELIBIO with
the firearms they were then provided inflicting upon the latter gunshot
wounds on the different parts of his body which caused the immediate
and instantaneous death of said Eduardo Selibio.
CONTRARY TO LAW.9
The cases were jointly tried.
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of
conspiracy among petitioner and his co-accused,10 convicted them of murder
qualified by treachery.11 The dispositive portion of the decision of the trial court
reads:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines,
Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and
Jesus Delfin Rosadio are hereby found guilty beyond reasonable doubt
of the crime of murder and there being no aggravating circumstances
with one mitigating circumstance [immediate vindication for Jose and
Jesus; voluntary surrender for Pat. Ricardo Bacabac12], and applying the
indeterminate sentence law, accused Jose Talanquines, Jr., Ricardo
Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer
imprisonment for a period of 10 years and 1 day, as minimum, to 17
years, 4 months and 1 day as maximum; while accused Edzel
Talanquines and Jonathan Bacabac who are entitled to the privileged
mitigating circumstance of minority and the ordinary mitigating
circumstance of immediate vindication of a grave offense are hereby
sentenced each to suffer imprisonment for a period of four (4) years, 2
months, and 1 day, as minimum, to 10 years and 1 day as maximum. All
the accused are ordered to pay jointly and severally the heirs of the
deceased Hernani Quidato, the amount of P50,000.00 for his wrongful
death; P20,000.00 for moral damages; P10,000.00 for attorneys fees;
and the costs of the suit. (Underscoring supplied)
In Criminal Case No. 35784, judgment is hereby rendered as follows:
All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines,
Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin Rosadio are
hereby found guilty of the crime of Murder and there being no
aggravating circumstance with one mitigating circumstance, accused
Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are
hereby sentenced each to suffer imprisonment for a period of 10 years
and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum;
while accused Edzel Talanquines and Jonathan Bacabac who are
entitled to the privileged mitigating circumstance of minority and the
ordinary mitigating circumstance of immediate vindication of a grave
offense, are hereby sentenced to suffer imprisonment for a period of 4
years, 2 months and 1 day, as minimum to 10 years and 1 day as
maximum. All the accused are ordered to pay jointly and severally the
heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for
his wrongful death; P20,000.00 for moral damages; P10,000.00 for
attorney's fees; and the costs of the suit. (Underscoring supplied)
Accused Jesus Delfin Rosadio, who is detained, is hereby credited with
the number of days he spent under detention, if he is qualified.
SO ORDERED.13
While petitioner and his co-accused filed a Notice of Appeal 14 which was given
due course,15 only petitioner filed a Brief, albeit beyond the extensions granted to
him, drawing the Court of Appeals to dismiss his appeal. 16 The conviction of
petitioner's co-accused had thus become final and executory.
Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having
been denied,18 he filed a Petition for Review with this Court which, by Resolution

of October 22, 1997, directed the Court of Appeals to reinstate petitioner's

appeal.19
By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's
decision. Entry of final judgment was made by the Court of Appeals on July 22,
1999.21
The trial court thereafter issued a February 7, 2000 Order directing the issuance
of warrants for the arrest of the accused.22 Except petitioner, all were arrested.23
On February 24, 2000, petitioner filed before the appellate court a Petition for
Relief from Judgment, Order, and/or Denial of Appeal24 which was granted,25
hence, the Entry of Judgment issued by the appellate court on July 22, 1999 was
set aside. He thereafter filed a Motion for Reconsideration 26 of the appellate
court's June 28, 1999 Decision which was denied by Resolution of August 8,
2001;27 hence, the present Petition for Review on Certiorari. 28
Petitioner assails the Court of Appeals' decision as follows:
First: Contrary to its conclusion on the basis of the facts of the case,
Petitioner may not be deemed to be in conspiracy with the other
Accused.
Second: Contrary to its conclusion, there was no treachery.
Third: Contrary to its conclusion, Petitioner, assuming in gratis
argumenti the correctness of the pronouncement of guilt, should have
been credited with the mitigating circumstance of immediate
vindication of a grave offense, in the same manner that the other
Accused were so credited.
Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been
proved beyond reasonable doubt; hence, by the equipoise rule, should
have been acquitted.
Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29
(Emphasis in the original)
The Court notes that the first, second, and fifth arguments of petitioner were, in
the main, raised before the appellate court.30
During the pendency of the present petition, petitioner, through counsel, filed
before the trial court an "Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo
Bacabac's Motion for Reconsideration and/or to Vacate the Order dated February
7, 2000 [directing the arrest of the accused] and to Recall the Warrant of Arrest
Dated the Same Date in so far as the Accused Pat. Ricardo Bacabac Only is
Concerned)."31 The trial court denied32 the motion as it did deny33 petitioner's
motion for reconsideration,34 drawing petitioner to file before this Court on
October 5, 2006 a "Motion to Vacate Order for the Arrest of the Accused and the
Warrant of Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City." 35
In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of
Arrest Issued by the Regional Trial Court . . . ," petitioner argues that
[T]he basis of the RTC's Order of February 7, 2000 was the
Entry of Judgment by the Court of Appeals dated 25 November
1999.36 BUT THE SAID ENTRY OF JUDGMENT was ALREADY
VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON

ITS RESOLUTION DATED 13 DECEMBER 2000. Therefore, the RTC's

Order of 7 February 2000 was ipso facto vacated.37 (Emphasis in the
original)
and that
[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited
by the Order of 13 July 2006 does not apply to the case at bench
because the main case on the merits which originated in the RTC as
Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R.
No. 16348 and is now pending in the Supreme Court (Third Division) as
G.R. No. 149372 because of the Petition for Review On Certiorari filed by
Movant herein x x x. THE MAIN CASE IS NO LONGER PENDING IN
THIS HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO
JURISDICTION TO REITERATE AND EXECUTE THE ORDER OF 7
FEBRUARY 2000.38 (Emphasis in the original)
As this Court hereby affirms petitioner's conviction, resolution of his "Motion to
Vacate . . ." is rendered unnecessary.
Petitioner, denying the presence of conspiracy on his part, argues:
[The petitioner] affirms that he was at the scene of the incident and
merely fired a warning shot into the air to respond to a public
disturbance, and his firing a warning shot into the air was intended to
avert further acts of violence; both circumstances, therefore, being
merely and solely in pursuance to his avowed duty to keep peace and
order in the community and clearly not to be part of any alleged
community of design to kill the victims.
xxxx
Another indication that there was no unity of purpose and of execution
in so far as the Petitioner is concerned is his conduct after Jose
Talanquines, Jr. shot the victims. Eyewitness accounts state that after
that lone warning shot, closely followed by Jose Talanquines, Jr. firing at
the victims, the petitioner merely stood there and did nothing and said
nothing. This is obviously because he was himself stunned by the fast
happening of events. The investigating police officer, PO3 NESTOR
SANTACERA, on rebuttal, likewise, admitted to the facts that ten (10)
minutes after the incident, they (the police) responded and upon arrival
thereat, learned that the Petitioner already reported the incident to their
station and that it was the Petitioner who first reported the shooting
incident officially to their office. The aforedescribed proven conduct of
the Petitioner during and immediately after the incident in question are,
Petitioner respectfully submits, inconsistent with what a coconspirators is [sic] wont to do under the circumstances. It is submitted
instead that his conduct on the contrary underscores the lack or want of
community of purpose and interest in the killing incident to make him
criminally liable under the conspiracy theory.
Finally, in connection with the conspiracy theory and anent the finding
below that the Petitioner and his Co-Accused waited for the victims'

arrival at the corner of St. Domingo and M.H. del Pilar Streets, it is
asserted that the same runs counter to the natural and ordinary
experience of things and event [sic], and raises a cloud of doubt over
the correctness of the lower Courts decision which are based on the
Prosecution's version of the incident. Since, according to the prosecution,
the Petitioner and the other Accused were armed with high-powered
firearms (armalite rifles and revolver); they waited at the stated street
corner for thirty (30) minutes; the stated street corner was well lighted;
accompanying them were the wife and two (2) young daughters of
Jose Talanquines, Jr; and they stood there conversing with the group of
Elston Saquian [a prosecution witness who testified that he saw the
petitioner and his co-accused waiting for the victims 39 and admitting that
they were waiting for certain persons who mauled Edzel Talanquines and
Jonathan Bacabac.
In other words, the lower Courts gave credence to an improbable
scenario painting the Petitioner, known to the place as a police officer,
and co-accused to have recklessly and uncaringly displayed, for all and
sundry to see, their alleged criminal intentions. It would indeed be the
height of foolishness for them to be by a well lighted street corner,
perhaps even well traversed, conspicuously fully armed, waiting for
persons who were not even sure would pass by such place, and
apparently willing to admit to other passers-by that they were indeed
waiting for the persons who mauled Edzel and Jonathan, and
consequently give out the impression that they were intending to retaliate
which is what the lower Courts regrettably observed.
xxxx
Likewise, the presence of the wife and two (2) young daughters of
the accused Jose Talanquines, Jr. at the scene of the alleged crimes,
as testified to by the prosecution witnesses and believed by the lower
Courts, assumes importance in the matter of determining which version
of the incident is correct.
The Prosecution places the wife and the daughters with the alleged fully
armed Petitioner and Co-Accused at Sto. Domingo Streets, also waiting
during the same length of time as the men for the (probable) arrival of the
group of the victims. But such a scenario is, likewise, unnatural.
Because, will the male relatives unhesitatingly expose their
defenseless womenfolk to imminent danger? 40 (Citations omitted,
emphasis in the original, and underscoring supplied)
Petitioner's argument that it is improbable for him and his co-accused to have
waited for the victims at a well-lighted street corner does not persuade. Crimes
are known to have been brazenly committed by perpetrators, undeterred by the
presence of onlookers or even of peace officers, completely impervious of the
inevitability of criminal prosecution and conviction. 41
From the mode and manner in which the crimes were perpetrated, the conduct of
petitioner before, during, and after their commission, 42 and the conditions

attendant thereto,43 conspiracy, which need not be proved by direct evidence, is

deduced.44 Petitioner's firing of his armalite could not have amounted to none
other than lending moral assistance to his co-accused, thereby indicating the
presence of conspiracy.45
As the appellate court observed which is quoted with approval:
In the present recourse, when informed that Jonathan and Edzel were being
manhandled and assaulted by male persons, Appellant armed himself with an
M-16 armalite. Jose Talanquines, Jr., the father of Edzel, followed suit and armed
himself with an M-16 armalite gun. Jesus armed himself with a revolver while
Jonathan armed himself with a piece of wood. Jonathan and Edzel were
nephews of the Appellant who resided in the house of Jose Talanquines, Jr. All
the Accused including the Appellant then proceeded posthaste to the
corner of M.H. del Pilar corner Sto. Domingo Streets where the culprits
would pass by and waited for the advent of the culprits. Even as Hernani
apologized for his and his companions' assault of Edzel and Jonathan,
Jesus berated Hernani and his companions. Almost simultaneously, the
Appellant fired his gun into the air as Jonathan lunged at Hernani and his
companions to hit them with the piece of wood. Almost simultaneously, Jose
Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them and, in the
process, hitting his nephew, Jonathan Bacabac. The Appellant did not lift a
finger when Jose fired at and shot Hernani and Eduardo. He stood by as
Jose shot Hernani anew when the latter on bended knees, raised his two (2)
hands, in surrender. The Appellant and the other Accused then fled from
the scene, with their respective firearms and weapons. The overt act of the
Accused and the Appellant in conjunto, constitute proof of conspiracy.
The Appellant and Jose were armed with high-powered guns. Jesus was
armed with a revolver. The nature of the weapons of the Accused evinced a
common desire to do away with the culprits, not merely to scare them.
What is outrageous is that the Appellant was a policeman. He could very
well have just arrested the culprits as they sauntered by and brought them
to the police station for the requisite investigation and the institution of
criminal complaints, if warranted. He could have dissuaded Jose and Jesus
and assured them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16 armalite x x
x. [T]he three (3) positioned themselves at the corner of M.H. del Pilar and Sto.
Domingo Streets for the culprits to arrive. Hernani and his companions were
doomed. It may be true that the Appellant did not aim his gun at the deceased but
the same is peu de chose. By his overt acts, in unison with the other Accused
and his kinship with Jonathan and Edzel, We are convinced that he conspired
with Jose Talanquines, Jr. and the other Accused to achieve a common purpose
to kill Hernani and Eduardo.46 (Emphasis and underscoring supplied)
Petitioner's failure to assist the victims after the shooting reinforces this Court's
appreciation of community of design between him and his co-accused to harm
the victims. That it was he who first officially reported the shooting to the police
station47 does not make him any less a conspirator. Voluntary surrender and non-

flight do not conclusively prove innocence.48 Besides, a conspirator who wants to

extricate himself from criminal liability usually performs an overt act to dissociate
or detach himself from the unlawful plan to commit the felony while the
commission of the felony is in progress.49 In petitioner's case, he reported the
shooting incident after it had already taken place. In legal contemplation, there
was no longer a conspiracy to be repudiated since it had already materialized. 50
Contrary to petitioner's assertion,51 the appellate court did not err in appreciating
the presence of conspiracy despite its finding that there was no evident
premeditation. This Court's pronouncement that conspiracy presupposes the
existence of evident premeditation 52 does not necessarily imply that the converse
that evident premeditation presupposes the existence of a conspiracy is true.
In any event, a link between conspiracy and evident premeditation is presumed
only where the conspiracy is directly established and not where conspiracy is
only implied, as in the present case.53
Neither did the appellate court err in finding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present "when the
offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the
offended party might make."
What is decisive in treachery is that "the attack was executed in such a manner
as to make it impossible for the victim to retaliate." 54 In the case at bar, petitioner,
a policeman, and his co-accused were armed with two M-16 armalites and a
revolver. The victim and his companions were not armed. 55 The attack was
sudden and unexpected,56 and the victim was already kneeling in surrender when
he was shot the second time. Clearly, the victim and his companion Eduardo had
no chance to defend themselves or retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical
nor legal to hold him guilty of treachery.57 This argument falls in the face of the
settled doctrine that once conspiracy is established, the act of one is the act of all
even if not all actually hit and killed the victim. 58
As for petitioner's invocation of the mitigating circumstance of "immediate
vindication of a grave offense," it fails. For such mitigating circumstance to be
credited, the act should be, following Article 13, paragraph 5 of the Revised Penal
Code, "committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives by affinity
within the same degree."59 The offense committed on Edzel was "hitting" his ear
with a stick60 (according to Jesus), a bamboo pole (according to Edzel).61 By
Edzel's own clarification, "[he] was hit at [his] ear, not on [his] head." 62 That act
would certainly not be classified as "grave offense." And Edzel is petitioner's
nephew, hence, not a relative by affinity "within the same degree" contemplated
in Article 13, paragraph 5 of the Revised Penal Code.
WHEREFORE, the petition is DISMISSED and the appellate court's decision is
AFFIRMED.

Costs against petitioner.

SO ORDERED.
Puno*,C.J., Carpio*** , Tinga, Velasco, Jr., JJ., concur.
Quisumbing**, J., on leave.
Footnotes
*
Designated member pursuant to Administrative Circular No. 75-2007.
**
On Leave.
***
Acting Chairperson.
1
TSN, December 2, 1991, p. 8; TSN, December 3, 1991, pp. 5, 36-37; Records,
Folder 1, pp. 366, 426, 457-458.
2
TSN, December 3, 1991, p. 39; Records, Folder 1, p. 460.
3
TSN, December 2, 1991, p. 16; id. at 374.
4
TSN, August 19, 1991, p. 10; id. at 128.
5
TSN, August 26, 1991, pp. 9-10; id. at 21, 205-206.
6
Records, Folder 2, p. 24.
7
Records, Folder 1, p. 24.
8
Id. at 1.
9
Records, Folder 2, p. 1.
10
Records, Folder 1, pp. 702-706.
11
Id. at 707.
12
Id. at 12, 708.
13
Id. at 709-711.
14
Id. at 713-714.
15
Id. at 715.
16
CA rollo, pp. 139-140.
17
Id. at 142-159.
18
Id. at 178-179.
19
Id. at 203-209.
20
Penned by then Court of Appeals Associate Justice Romeo J. Callejo, Sr., with
the concurrence of Court of Appeals Associate Justices Quirino D. Abad Santos,
Jr. and Mariano M. Umali. Id. at 259-275.
21
Records, Folder 1, p. 763.
22
Id. at 764-768.
23
Id. at 769-773.
24
CA rollo, pp. 279-298.
25
Id. at 335.
26
Id. at 339-355.
27
Id. at 372.
28
Rollo, pp. 11-32.
29
Id. at 14-15.
30
Decision, CA rollo, pp. 266-267.
31
Rollo, pp. 282-285.
32
Id. at 286-288.
33
Id. at 293.

34

Id. at 289-292.
Id. at 269-278.
36
The judgment was recorded in the Book of Entries of Judgments on July 22,
1999 but the certification of such entry is dated November 25, 1999. Vide
records, Folder 1, p. 763.
37
Id. at 275.
38
Ibid.
39
TSN, August 19, 1991, pp. 3-7; id. at 121-125.
40
Rollo, pp. 18-19, 24-26.
41
Vide People v. Chua, G.R. No. 149538, July 26, 2004, 435 SCRA 192, 202.
42
Vide People v. Rojas, G.R. Nos. L-46960-62, January 8, 1987, 147 SCRA 169,
176.
43
Vide People v. Arroyo, G.R. No. 99258, September 13, 1991, 201 SCRA 616,
629.
44
Vide Orodio v. Court of Appeals, G.R. No. L-57519, September 13, 1988, 165
SCRA 316, 323.
45
Vide People v. Luayon, 329 Phil. 560, 576 (1996).
46
CA rollo, pp. 272-273.
47
Rollo, p. 24.
48
Vide People v. Quijada, 328 Phil. 505, 532 (1996).
49
Vide People v. De los Reyes,
50
Ibid.
51
Rollo, p. 27.
52
People v. Regalario, G.R. No. 101451, March 23, 1993, 220 SCRA 368, 387.
53
Vide People v. Herbias, 333 Phil. 422, 431-432 (1996).
54
People v. Hingan, 311 Phil. 108, 120 (1995).
55
Records, Folder 1, p. 707.
56
Ibid.
57
Rollo, p. 224.
58
Vide People v. Ambrocio, G.R. No. 140267, June 29, 2004, 434 SCRA 67, 83.
59
Emphasis and underscoring supplied.
60
TSN, December 3, 1991, p. 39; Records, Folder 1, p. 460.
61
TSN, December 2, 1991, p. 12; id. at 370.
62
Id. at 38; id. at 396.
35

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 4971
September 23, 1909
THE UNITED STATES, plaintiff,
vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff. Jose Robles Lahesa for
defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus Hicks,
an Afro-American, and Agustina Sola, a Christian Moro woman, illicitly lived
together in the municipality of Parang, Cotabato, Moro Province, until trouble
arising between them in the last-mentioned month of 1907, Agustina quitted
Hick's house, and, separation from him, went to live with her brother-in-law, Luis
Corrales. A few days later she contracted new relations with another negro
named Wallace Current, a corporal in the Army who then went to live in the said
house.
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together
with a soldier named Lloyd Nickens called at said house, and from the sala called
out to his old mistress who was in her room with Corporal Current, and after
conversing with her in the Moro dialect for a few minutes, asked the corporal to
come out of said room; in response thereto the corporal appeared at the door of
the room, and after a short conversation, Current approached Hicks and they
shook hands, when Hicks asked him the following question: "Did I not tell you to
leave this woman alone?," to which Current replied: "That is all right, she told me
that she did not want to live with you any longer, but if she wishes, she may quit
me, and you can live with her." The accused then replied: "God damn, I have
made up my mind;" and as Corporal Current saw that Hicks, when, he said this,
was drawing a revolver from his trousers' pocket, he caught him by the hand, but
the latter, snatching his hand roughly away, said: "Don't do that," whereupon
Current jumped into the room, hiding himself behind the partition, just as Hicks
drew his revolver and fired at Agustina Sola who was close by in the sala of the
house. The bullet struck her in the left side of the breast; she fell to the ground,
and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to
render assistance and wrested the weapon from the hand of the accused. The
latter immediately fled from the house and gave himself up to the chief of police
of the town, H. L. Martin, asking him to lock him up in jail; and, when a few
minutes later a policeman came running in and reported that Hicks had fired a
shot at Agustina, the said chief of police caused Hicks to be arrested. The latter,
when once in jail, threw eight revolver cartridges out of the window; these were
picked up by a policeman who reported the occurrence and delivered the

cartridges to his chief.

In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a
complaint with the Court of First Instance of said province charging Augustus
Hicks with the crime of murder. Proceedings were instituted, the trial court, after
hearing the evidence adduced, entered judgment on the 10th of September of the
same year, sentencing the accused to the penalty of death, to be executed
according to the law, to indemnify the heirs of the deceased in the sum of P1,000,
and to pay the costs. The case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case,
constitute the crime of murder, defined and punished by article 403 of the Penal
Code, in that the woman Agustina Sola met a violent death, with the qualifying
circumstance of treachery (alevosia), she being suddenly and roughly attacked
and unexpectedly fired upon with a 45-caliber revolver, at close, if not point blank
range, while the injured woman was unarmed and unprepared, and at a time
when she was listening to a conversation, in which she was concerned, between
her aggressor and third person, and after usual and customary words had passed
between her and her aggressor. From all of the foregoing it is logically inferred
that means, manners, and forms were employed in attack that directly and
specially insured the consummation of the crime without such risk to the author
thereof as might have been offered by the victim who, owing to the suddenness
of the attack, was doubtless unable to flee from the place where she was
standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his
exculpatory allegations which were certainly not borne out at the trial, the
evidence in the case is absolutely at variance therewith and conclusively
establishes, beyond peradventure of doubt, his culpability as the sole fully
convicted author of the violent and treacherous death of his former mistress,
Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of Current,
who had seized him, he fell backward but managed to support himself on his two
hands, and when he got up again the said corporal threatened him with a
revolver thrust into his face; whereupon he also drew his revolver, just as Edward
Robinson caught him from behind, when his revolver went off, the bullet striking
the deceased.
This allegation appears to be at variance with the testimony of the witnesses
Wallace Current, Edward Robinson, Luis Corrales, and Lloyd Nickens in their
respective declaration, especially with that of the second and third, who
witnessed the actual firing of the shot by the aggressor at the deceased, as
shown by the fact that Robinson immediately approached the accused in order to
take his weapon away from him which he succeeded in doing after a brief
struggle, whereupon the aggressor ran out of the house. Thus, the shot that
struck the deceased in the breast and caused her death was not due to an
accident but to a willful and premeditated act on the part of the aggressor with
intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the

presence of other aggravating circumstances, such as premeditation, and the fact

that the crime was committed in the dwelling of the deceased should be taken
into consideration. The last-mentioned circumstances appears proven from the
testimony of several witnesses who were examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as
committed with treachery, the circumstance of premeditation should only be
considered as a merely generic one. Premeditation is, however, manifest and
evident by reason of the open acts executed by the accused. According to the
testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave from
the former to be absent from the canteen where he was working on the morning
of the day when the affray occurred, alleging that his mind was unsettled and that
he feared getting into trouble. It is also shown by the fact that Whited, who was in
Hicks' house about noon upon the latter's invitation, and while both where
drinking gin, and while the revolver, the instrument of the crime, was lying on the
table on which were also several loaded cartridges, heard the accused
repeatedly say, referring to the deceased, that her time had come, adding that he
would rather see her dead than in the arms of another man, and when the
accused went to bed apparently very much worried, and refusing to answer when
called, the witness left him. On the day after the crime the police found on a table
in the cuprit's house several loaded cartridges, a bottle of oil and a piece of cloth
used undoubtedly for cleaning the revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately
and after due reflection had resolved to kill the woman who had left him for
another man, and in order to accomplish his perverse intention with safety,
notwithstanding the fact that he was already provided with a clean and wellprepared weapon and carried other loaded cartridges besides those already in
his revolver, he entered the house, greeting everyone courteously and conversed
with his victim, in what appeared to be a proper manner, disguising his intention
and claiming her by his apparent repose and tranquility, doubtless in order to
successfully accomplish his criminal design, behaving himself properly as he had
planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating
circumstances is present, not even that mentioned in paragraph 7 of article 9 of
the Penal Code, to wit loss of reason and self-control produced by jealousy as
alleged by the defense, inasmuch as the only causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral passions.
From the foregoing considerations, and as the judgment appealed from is in
accordance with the law, it is our opinion that the same should be affirmed, as we
do hereby affirm it with costs, provided, however, that the death penalty shall be
executed according to the law in force, and that in the event of a pardon being
granted, the culprit shall suffer the accessory penalties of article 53 of the Penal
Code unless the same be expressly remitted in the pardon. So ordered.
Arellano, C. J., Johnson, Carson, and Moreland, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-7094
March 29, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant. Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was
convicted in the court below is conclusively established by the evidenced of
record.
The trial court was of opinion that its commission was not marked by either
aggravating or extenuating circumstances, and sentenced the convict to fourteen
years eight months and one day of reclusion temporal, the medium degree of the
penalty prescribed by the code. Burt we are of opinion that the extenuating
circumstance set out in subsection 7 of article 9 should have been taken into
consideration, and that the prescribed penalty should have been imposed in its
minimum degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx
xxx
xxx
That of having acted upon an impulse so powerful as naturally to have produced
passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the
deceased, who had theretofore been his querida (concubine or lover) upon
discovering her in flagrante in carnal communication with a mutual acquaintance.
We think that under the circumstances the convict was entitled to have this fact
taken into consideration in extenuation of his offense under the provisions of the
above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set
forth in its sentence of July 4, 1892, which is summarized by Viada (p. 69, in
question 19, art. 9 of vol. 6) as follows:
Shall he who kills a woman with whom he is living in concubinage for having
caught her in her underclothes with another party and afterwards shoots himself,
inflicting a serious wound, be responsible for that crime with the extenuating
circumstance of having acted with violent passion and obfuscation? The
Audiencia of Santiago de Cuba did not so hold and its judgment was reversed by
the supreme court for the improper disregard of article 9, number 8, of the Penal
Code for Cuba and Puerto Rico: "The facts held to be true by the trial court, and
which were the immediate cause of the crime by producing in the accused strong
emotion which impelled him to the criminal act and even to attempt his own life,
were a sufficient impulse in the natural and ordinary course to produce the violent
passion and obfuscation which the law regards as a special reason for
extenuation, and as the judgment did not take into consideration the 8th

circumstance of article 9 of the code, the Audiencia rendering it seems to have

violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the
"causes which mitigate the criminal responsibility for the loss of self-control are
such as originate from legitimate feelings, not those which arise from vicious,
unworthy, and immoral passions," and declined to give the benefit of the
provisions of this article to the convict in that case on the ground that the alleged
causes for his loss of self-control did not "originate from legitimate feelings." But
in that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately
and after due reflection had resolved to kill the woman who had left him for
another man, and in order to accomplish his perverse intention with safety,
notwithstanding the fact that he was already provided with a clean and wellprepared weapon and carried other loaded cartridges besides those already in
his revolver, he entered the house, greeting everyone courteously and conversed
with his victim, in what appeared to be in a proper manner, disguising his
intention and calming her by his apparent repose and tranquility, doubtless in
order to successfully accomplish his criminal design, behaving himself properly
as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor
was the convict's vexation, disappointment and deliberate anger engendered by
the refusal of the woman to continue to live in illicit relations with him, which she
had a perfect right to do; his reason for killing her being merely that he had
elected to leave him and with his full knowledge to go and live with another man.
In the present case however, the impulse upon which defendant acted and which
naturally "produced passion and obfuscation" was not that the woman declined to
have illicit relations with him, but the sudden revelation that she was untrue to
him, and his discovery of her in flagrante in the arms of another. As said by the
supreme court of Spain in the above-cited decision, this was a "sufficient
impulse" in the ordinary and natural course of things to produce the passion and
obfuscation which the law declares to be one of the extenuating circumstances to
be taken into consideration by the court.
Modified by a finding that the commission of the crime was marked with the
extenuating circumstance set out in subsection 7 of article 9, and by the reduction
of the penalty of fourteen years eight months and one day of reclusion temporal
to twelve years and one day of reclusion temporal, the judgment of conviction
and the sentence imposed by the trial court should be and are hereby affirmed,
with the costs of this instance against the appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
I agree except as to the application of the extenuating circumstance presented by
paragraph 7, article 9, Penal Code. In my judgment it is not warranted by the
facts or the law.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 95357 June 9, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO GELAVER, accused-appellant.
The Solicitor General for plaintiff-appellee.
Joffrey L. Montefrio for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch 26,
Surallah, South Cotabato, finding Eduardo Gelaver, guilty beyond reasonable
doubt of Parricide (Art. 246, Revised Penal Code) and sentencing him to "suffer
the penalty of reclusion perpetua and to indemnify the heirs of his wife, Victoria
Pacinabao, in the amount of P30,000.00." (Decision, p. 7; Rollo, p. 28)
In the Information filed with the trial court and docketed as Criminal Case No.
643, Eduardo Gelaver, was charged with Parricide committed as follows:
That on or about the 24th day of March, 1988 at 7:00 o'clock in the morning,
more or less, in Barangay Poblacion, Municipality of Sto. Nio, Province of South
Cotabato, Philippines, and within the jurisdiction of this Honorable Court, said
accused with intent to kill and being then armed with a knife did then and there
wilfully, unlawfully and feloniously attack, assault and stab one VICTORIA
GELAVER Y PACINABAO, his lawfully wedded wife, with the use of the said knife
hitting her and wounding her on the different parts of her body and as a result
thereof said Victoria Gelaver y Pacinabao died instantly. (Rollo, p. 7)
At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on
the merits ensued.
The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of
March 24, 1988, he heard shouts coming from the house of Tessie Lampedario in
Barangay Poblacion, Municipality of Sto. Nio, South Cotabato. He saw the
appellant and a woman having a heated argument. Thereafter, appellant held the
neck of the victim, dragged her and with a knife on his right hand, stabbed the
latter three times on the breast. Appellant then went out of the gate and fled in the
direction of the public market of Sto Nio. (TSN, June 27, 1988, pp. 7-10)
Eduardo Gelaver admitted killing his wife but claimed that he did so after catching
her having carnal act with her paramour.
Appellant testified that he was married to Victoria Pacinabao, with whom he
begot four children. (TSN, December 19, 1988, p. 9) They lived together at their
conjugal home until July 3, l987 when she abandoned her family to live with her
paramour. (TSN, December 19, 1988, pp. 10-11) He did not know the name of his
wife's paramour nor the name of the owner of the house where his wife and her
paramour had lived together.

Appellant further testified that on March 24, 1988, after he was informed by his
daughter that his wife and paramour were living at a house in front of the Sto.
Nio Catholic Church, appellant immediately repaired to that place. Upon
entering the house, he saw his wife lying on her back and her paramour on top of
her, having sexual intercourse.
Appellants version of the killing was that when his wife saw him, she pushed her
paramour aside. Her paramour immediately stood up, took a knife placed on top
of the bedside table and attacked appellant. The latter was able to wrest
possession of the knife and then used it against the paramour, who evaded the
thrusts of the appellant by hiding behind the victim. Thus, it was the victim who
received the stab intended for the paramour.
As to why he continued to stab his wife, appellant said that his mind had been
"dimmed" or overpowered by passion and obfuscation by the sight of his wife
having carnal act with her paramour.
Appellant faults the trial court in imposing the penalty of reclusion perpetua for
the crime of parricide, instead of the penalty of destierro for killing under
exceptional circumstances pursuant to Article 247 of the Revised Penal Code.
(Appellant's Brief, p. 1)
Appellant's contention is bereft of merit.
Before Article 247 of the Revised Penal Code can be operative, the following
requisites must be compresent:
1. That a legally married person or a parent surprises his spouse or his daughter,
the latter under 18 years of age and living with him, in the act of committing
sexual intercourse with another person.
2. That he or she kills any or both of them or inflicts upon any or both of them any
serious physical injury in the act or immediately thereafter.
3. That he has not promoted or facilitated the prostitution of his wife or daughter,
or that he or she has not consented to the infidelity of the other spouse. (II Reyes,
The Revised Penal Code, 12th Ed., pp. 452-53; Emphasis supplied)
These requisites must be established by the defense.
Implicit in this exceptional circumstance is that the death caused must be the
proximate result of the outrage overwhelming the accused after chancing upon
his spouse in the act of infidelity (People v. Abarca, 153 SCRA 735 [1987]). In this
case, appellant wants this Court to believe that he caught his wife and her
paramour in sexual intercourse. However, his testimony is tainted with
inconsistencies which leads Us to believe otherwise.
Appellant's failure to inform the police that he killed his wife when he saw her
having sexual intercourse with her paramour, devastated in one fell swoop
whatever credibility could possibly be accorded to his version of the incident. As
noted by the Solicitor General, the natural thing for a person to do under the
circumstances was to report to the police the reason for killing his wife.
(Appellee's Brief, p. 8; Rollo, p. 76) Appellant's contention that he thought that
only the killing itself should be blottered, reserving the details to the defense
lawyer, sounded like a spoonfed afterthought.
If there was a naked man with the victim, he would have had no time to get

dressed because he was then under attack by appellant. There would then have
been the spectacle of a man in the nude running in the streets.
The trial court noted several contradictions in appellant's testimony. Appellant
claimed that he chased the paramour but was unable to overtake him and at the
same time, he testified that the paramour stayed in the room and used the victim
as a shield against appellant's attack with the knife. Appellant also claimed that
upon entering the gate of the fence, he saw his wife and her paramour having
carnal act and at the same breath, he testified that he saw his wife and her
paramour only when he opened the main door of the house.
The trial court found as contrary to human nature appellant's claims that he went
to confront the paramour of his wife unarmed and that he never learned the name
of the paramour inspite of the fact that his wife, allegedly, had been living with the
paramour in the same town for almost a year before the incident.
Absent any substantial proof that the trial court's decision was based on
speculation, the same must be accorded full consideration (People v. Martinada,
194 SCRA 36 [1991) and should not be disturbed on appeal (Mercury Drug v.
CIR, 56 SCRA 694 [1974]).
Appellant's claim that on the day prior to his killing of the victim, his daughter
Sheryl had confided to him that her mother was living with a paramour at the
house in front of the Sto. Nio Catholic Church was belied by Sheryl herself. In
her testimony, she stated that she did not know the house where the crime was
committed and she had not gone to that place. She further testified that she had
not seen her mother in any other house except that of her grandfather's. (TSN,
January 17, 1989, p. 5)
The trial court was correct in finding the presence of the mitigating circumstance
of voluntary surrender to the authorities. Appellant, immediately after committing
the offense, voluntarily placed himself at the disposal of the police authorities as
evidenced by the entry in the official police blotter.
(Exh. "1")
However, the trial court erred in finding the presence of the mitigating
circumstance of passion or obfuscation "as a result of his (appellant's) wife
leaving their home and their children." (Rollo, p. 28) Before this circumstance
may be taken into consideration, it is necessary to establish the existence of an
unlawful act sufficient to produce such a condition of mind. The act producing the
obfuscation must not be far removed from the commission of the crime by a
considerable length of time, during which the accused might have recovered his
equanimity. (I Revised Penal Code, Aquino, 1987 ed., p. 267) The crime was
committed almost a year after the victim had abandoned the conjugal dwelling.
WHEREFORE, the Judgment appealed from is AFFIRMED except with the
MODIFICATION that the indemnity, be increased to P50,000.00 (People v. Sison,
189 700 [1990]).
SO ORDERED.
Cruz, Grio Aquino and Bellosillo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18792
February 28, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO BELLO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.Ferdinand E. Marcos for
defendant-appellant.
REYES, J.B.L., J.:
Appeal from a judgment of the Court of First Instance of Quezon in its Criminal
Case No. 592-G, for murder.
The information filed against the accused alleged four (4) aggravating
circumstances, namely: treachery, evident premeditation, nighttime, and superior
strength. The trial court made a finding of "treachery, evident premeditation and in
cold blood and without any provocation"; however, the dispositive portion of the
appealed decision states as follows:
... the Court finds the accused Guillermo Bello guilty beyond reasonable
doubt of the crime of murder defined an punished by Article 248 of the
Revised Penal Code with the aggravating circumstances of (1) nighttime,
(2) abuse of confidence and obvious ungratefulness, (3) superior
strength offset only by his surrender to the authorities and hereby
sentence him to DIE by electrocution in the manner provided by law
ordering his heirs, after his death, to indemnify the heirs o the deceased
Alicia Cervantes in the sum of P3,000.00, wit costs.
The record bears out, the Office of the Solicitor General does not challenge, and
the counsel de oficio agree with, and adopts, the following findings of fact of the
trial court:
From the evidence adduced at the hearing of the case, it has been
established to the satisfaction of the Court (1) that on September 17,
1954, the accused Guillermo Bello, a widower who at that time was about
54 years of age, took a young peasant lady named Alicia Cervantes,
about 24 years old his common-law wife; (2) that from that day they lived
together apparently in blissful harmony as man and wife without the
benefit of marriage bearing, however, no child, ...; (3) that on May 15,
1958, the accused who had no means of substantial livelihood except
that of making "kaingin" and who apparently was then in financial straits
induced Alicia Cervantes to accept an employment as entertainer in a bar
and restaurant establishment known as Maring's Place situated the
corner of Aguinaldo and Bonifacio Streets, Gumaca, Quezon (4) that
Alicia Cervantes entered the service of Maring's Place on that day as a
public hostess; (5) that the accused being infatuated with his young bride
used to watch her movements in Maring's Place everyday; (6) that on

May 16 he saw Alicia enter the Gumaca theater in Gumaca with a man
whom the accused found later was caressing his common-law wife inside
the movie house; (7) that being in love with her he took her out from the
movie and warned her to be more discreet in her personal conduct in
Gumaca; (8) that Alicia Cervantes continued to serve at Maring's Place
as a public hostess; (9) that on May 20, 1958, at 3:00 p.m. the accused
went to Maring's Place to ask for some money from Alicia; (10) that
Maring, the owner of the place, and Alicia refused to give money, Maring
telling him to forget Alicia completely because he was already an old
man, an invalid besides and should stop bothering Alicia; (11) that having
failed to obtain financial assistance from his paramour, accused left the
place somewhat despondent and went home passing Bonifacio Street;
(12) that on his way home he met the brothers Justo Marasigan and Luis
Marasigan who greeted the accused, Luis saying to his brother Justo the
following: "So this is the man whose wife is being used by Maring for
white slave trade"; (13) that these remarks of Luis Marasigan naturally
brought grief to the accused, to drown which he sought Paty's place in
Gumaca where he drank 5 glasses of tuba; (14) that from Paty's place he
went to Realistic Studio which is in front of Maring's Place and from there
watched the movements of Alicia; (15) that at about 9:00 o'clock that
night he entered Maring's Place and without much ado held Alicia from
behind with his left hand in the manner of a boa strangulating its prey and
with his right hand stabbed Alicia several times with a balisong; (16) that
seeing Alicia fallen on the ground and believing her to be mortally
wounded, he fled and went to the municipal building and there
surrendered himself to the police of Gumaca.
Both the prosecution and the defense also agree that the crime committed is not
murder but only homicide, but they disagree in the qualifying or aggravating and
mitigating circumstances. The prosecution holds that the crime is homicide,
aggravated by abuse of superior strength, but offset by voluntary surrender. On
the other hand, the defense maintains that the accused is entitled to the
additional mitigating circumstance of passion and obfuscation. The trial court held
a different conclusion, as earlier stated.
While it cannot be denied that Alicia was stabbed at the back, the wound was but
a part and continuation of the aggression. The four (4) stab wounds (the 3 others
were in the breast, hypogastric region, and in the left wrist as shown in the
certificate of the Municipal Health Officer) were inflicted indiscriminately, without
regard as to which portion of her body was the subject of attack. The trial court
itself found that the stab in the back was inflicted as Alicia was running away. For
this reason, treachery cannot be imputed (People v. Caete, 44 Phil. 478).
Evident premeditation was, likewise, not established. The accused had been
carrying a balisong with him for a long time as a precaution against drunkards,
and without any present plan or intent to use it against his common-law wife. That
he watched her movements daily manifest his jealous character, but there is no
evidence that from this jealousy sprouted a plan to snuff out her life.1wph1.t

The evidence does not show, either, any superior strength on the part of the
accused, and, not possessing it, he could not take advantage of it. True that he
was armed with a balisong, but he was old and baldado (invalid), while Alicia was
in the prime of her youth, and not infirm. The facts are not sufficient to draw a
comparison of their relative strength. Possession of a balisong gives an
aggressor a formidable advantage over the unarmed victim, but the physique of
the aggressor ought also to be considered. At any rate, taking into account the
emotional excitement of the accused, it is not clearly shown that there was
"intencion deliberada de prevalerse de la superioridad o aprovecharse
intencionadamente de la misma" (Sent. TS. 5 Oct. 1906), i.e., deliberate intent to
take advantage of superior strength.
The crime was committed at nighttime, but the accused did not seek or take
advantage of it the better to accomplish his purpose. In fact, Maring's Place was
bright and well-lighted; hence, the circumstance did not aggravate the crime.
(U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs. Bonete, 40 Phil. 958.)
We can not understand how the trial court came to couple the crime with the
aggravating circumstance of abuse of confidence and obvious ungratefulness.
There is nothing to show that the assailant and his common-law wife reposed in
one another any special confidence that could be abused, or any gratitude owed
by one to the other that ought to be respected, and which would bear any
relation, or connection, with the crime committed. None is inferable from the fact
that the accused was much older than his victim, or that he was penniless while
she was able to earn a living and occasionally gave him money, since both lived
together as husband and wife. Neither is it shown that the accused took
advantage of any such special confidence in order to carry out the crime.
Since the aggravating circumstances of treachery, evident premeditation, and
abuse of superior strength, which could have qualified the crime as murder, were
not present, and since the generic aggravating circumstances of nighttime and
abuse of confidence and obvious ungratefulness have not been established, the
accused can only be liable for homicide.
Both defense and prosecution agree that the accused-appellant is entitled to the
benefit of the mitigating circumstances of voluntary surrender to the authorities.
The remaining area of conflict is reduced to whether the accused may lay claim
to a second mitigating circumstance, that of having acted on a provocation
sufficiently strong to cause passion and obfuscation. The defense submits that
accused is so entitled, because the deceased's flat rejection of petitioner's
entreaties for her to quit her calling as a hostess and return to their former
relation, aggravated by her sneering statement that the accused was penniless
and invalid (baldado), provoked the appellant, as he testified, into losing his head
and stabbing the deceased. The state disputes the claim primarily on the strength
of the rule that passion and obfuscation can not be considered when "arising
from vicious, unworthy, and immoral passions" (U.S. vs. Hicks, 14 Phil. 217).
We are inclined to agree with the defense, having due regard to the
circumstances disclosed by the record. It will be recalled that the lower court
found that the accused had previously reproved the deceased for allowing herself

to be caressed by a stranger. Her loose conduct was forcibly driven home to the
accused by Marasigan's remark on the very day of the crime that the accused
was the husband "whose wife was being used by Maring for purposes of
prostitution," a remark that so deeply wounded the appellant's feelings that he
was driven to consume a large amount of wine (tuba) before visiting Alicia (the
deceased) to plead with her to leave her work. Alicia's insulting refusal to renew
her liaison with the accused, therefore, was not motivated by any desire to lead a
chaste life henceforth, but showed her determination to pursue a lucrative
profession that permitted her to distribute her favors indiscriminately. We can not
see how the accused's insistence that she live with him again, and his rage at her
rejection of the proposal, can be properly qualified as arising from immoral and
unworthy passions. Even without benefit of wedlock, a monogamous liaison
appears morally of a higher level than gainful promiscuity.
WHEREFORE, the appealed decision should be, and hereby is, modified. This
Court finds the accused-appellant, Guillermo Bello, guilty beyond reasonable
doubt of the crime of homicide, attended by two (2) mitigating circumstances: (a)
passion and obfuscation, and (b) voluntary surrender, and, therefore, imposes
upon him an indeterminate sentence ranging from a minimum of six (6) years and
one (1) day of prision mayor to a maximum of ten (10) years of prision mayor;
orders him also to personally indemnify the heirs of Alicia Cervantes in the
amount of P6,000.00, and to pay the costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
Paredes, Dizon, Regala and Makalintal, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 54344-45 January 10, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused.
WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Sixto P. Demaisip for accused-appellants.
BELLOSILLO, J.:
The coup de main on the Oro brood sent two brothers to the mortuary and a third
to medical care. The bloodbath resulted in the brothers Willie, Gildo and Celso,
all surnamed Amaguin, being charged with the murder of the Oro brothers
Pacifico and Diosdado. Willie and Gildo went through trial while Celso to this date
remains a fugitive.
The culpability of the Amaguin brothers was recounted by Hernando Oro, a
younger brother of Pacifico and Diosdado. Hernando narrated that in the
afternoon of 24 May 1977, he and his brothers Diosdado and Danilo, brother-inlaw Rafael Candelaria, an first cousin Sergio Argonzola were invited by their
eldest brother Pacifico to the latter's house in the interior of Divinagracia Street,
La Paz, Iloilo City, for a small gathering to celebrate the town fiesta. 1 At about five
o'clock in the afternoon, after partaking of the meager preparations put together
by Pacifico, he (Hernando) and his companions decided to leave. They were
accompanied by their host to the plaza where they could get a ride.
On their way, while traversing Divinagracia Street, Pacifico was called by
accused Celso Amaguin : "Pare, come here." But Pacifico answered : "Pare, not
yet because I have to conduct my guests first." Immediately, Celso, with a
butcher's knife in hand, rushed towards Pacifico. Gildo, Celso's younger brother,
with a knife tucked to his waist, followed with a slingshot known as "Indian pana"
or "Indian target". While Gildo aimed the dart from his slingshot at Danilo, which
hit the latter on the chest, Celso hacked Pacifico. Gildo then stabbed Diosdado
with a knife. Thereafter, Willie, the eldest of the Amaguin brothers, appeared with
a handgun and successively shot the brothers Pacifico, Diosdado and the fleeing
Danilo. Diosdado, own kneeling, gasping for breath and pleading for his life, was
again shot by Willie who next fired anew at Pacifico. Meanwhile, Gildo and Celso
repeatedly stabbed Pacifico who already lying prostrate and defenseless. 2
Danilo Oro, the youngest of the Oros, likewise testified. He said that at around
five o'clock in the afternoon of 24 May 1977, while walking along Divinagracia
Street on their way to the plaza for ride home with his three brothers and two
others, they were waylaid by Celso, Willie and Gildo, their cousin Danny, all
surnamed Amaguin, and several others. Celso placed an arm on the shoulder of
Pacifico and stabbed him with a knife. 3 Then there was a clash between the two

groups. In a split second, he (Danilo) was hit on the left chest by a dart from the
slingshot of Gildo whom he saw aiming at him. He (Danilo) pulled the dart from
his chest and ran away but was hit on the lips by a bullet. Then he was pushed
by Hernando to seek cover. 4
Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His
version was that while he, his brothers-in-law and one Sergio Argonzola were
walking along Divinagracia Street that afternoon, two men approached them.
Without any provocation, one suddenly stabbed him. After being hit on the left
arm, he immediately fled to the plaza where he flagged down a passing cab to
take him to the hospital. He did not see what happened next to his companions. 5
The defense however maintains that it was the Oro brothers who started the fight.
Accused Gildo Amaguin recounted that on 24 May 1977, at about five o'clock in
the afternoon, Pacifico with five others went to their house in Divinagracia Street,
La Paz, Iloilo City, and approached his brother Celso, who was waiting for his
wife at the foot of the stairs. While Pacifico was talking to Celso, a companion of
Pacifico came forward, held Celso by the shoulder and said : "This is the bravest
man in Divinagracia Street, the Amaguin." Meanwhile, another companion of
Pacifico gave Celso a flying kick that sent him reeling. Gildo then went down the
house shouting : "Don't fight." However, the attackers drew their knives and
slingshots. In return, Celso pulled out his knife. Since one of the companions of
Pacifico lunged at him, Gildo retreated to the other side of the road and threw
stones at his attackers.
Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot.
But later Danny himself was stabbed from behind by one of Pacifico's
companions. Then Ernie Ortigas, a guest of Celso, emerged from the Amaguin
residence holding a revolver. Ernie initially fired three warning shots, after which
he successively shot Pacifico and a person who tried to stab the former as well
as an identified companion of Pacifico. Later, both Ernie Ortigas and Celso
Amaguin escaped towards the railway tracks. 6 The following day, he was brought
by his uncle to the PC authorities in Fort San Pedro for "safe-keeping" and turned
over to the local police after a week.
The story of Gildo was confirmed by Vicente Belicano 7 and Nilda Tagnong, 8 longtime residents of Divinagracia Street, and Nenita Amaguin, mother of the accused
brothers, who even affirmed that her son Celso was indeed troublesome, 9 but
added that Willie "never had any brush with the
law." 10
On his part, Willie related that he was in the house of his uncle along
Divinagracia Street that afternoon drinking with some friends. He left the group
after hearing some explosions coming from the direction of his mother's house
and then seeing his cousin Danny, with a stab wound at the back, being taken by
two policemen, and his wounded brother Gildo running towards the plaza. Thus,
he went to his mother's residence to find out what happened. But when he got
there, the incident had already ended. As a consequence, he was told by his
mother to look for his two brothers who were wounded in the fight and to take
them to the hospital. 11 He turned himself in after five days, upon learning that law

enforcers were looking for him.

Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused
Willie only left their gathering after the explosions were heard, and only after
seeing his wounded brother Gildo and his cousin Danny, who was in the
company of two policemen, pass by.
Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that
after hearing six explosions, she saw an unidentified man with a revolver running
away from the scene of the crime, followed by accused Celso who was holding a
knife. She was certain that the unidentified man was not accused Willie as the
latter was very well known to her, she being a former neighbor of the Amaguins.
12

Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District

Command, INP, conducted an autopsy on Pacifico and Diosdado. He declared
that out of the 15 stab wounds and one gunshot wound Pacifico sustained, five of
the stab wounds were fatal. With regard to Diosdado, four (4) stab wounds, out of
the ten (10), and the lone bullet he had sustained were considered fatal. 13
After a joint trial, and finding the version of the prosecution to be more credible,
the then Court of First Instance of Iloilo, Br. II, 14 found the accused Gildo
Amaguin, also known as "Tigib," guilty beyond reasonable doubt of the crime of
Murder, and . . . sentenced (him) to Reclusion Perpetua, both in Criminal Cases
Nos. 8041 and 8042, together with all the accessory penalties, and to pay the
costs."
As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as
accomplice in both Criminal Cases 8041 and 8042, and . . . sentenced (him) to
an indeterminate penalty of Seventeen (17) Years, Four (4) Months, and One (1)
Day to Twenty (20) Years each in said cases together with all the accessory
penalties, and to pay the costs."
Both accused were "further sentenced to indemnify the heirs of the late Pacifico
Oro and Diosdado Oro, jointly and severally in the total sum of P24,000.00 as
death compensation; P20,000.00 (as) moral damages; P10,000.00 (as)
exemplary damages; and P5,000.00 for burial expenses, in both Criminal cases
nos. 8041 and 8042."
In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a
quo erred: (a) in categorizing the offense/s as murder; (b) in finding Willie
Amaguin to be the person involved in the incident; (c) in holding that there was
conspiracy between the brothers Gildo and Celso Amaguin (the latter is at large);
(d) in finding Gildo Amaguin to be armed with a knife and an Indian target when
he was only armed with stones; and, (e) even assuming the accused to be guilty,
in not holding them responsible for their individual acts, and in not appreciating
the mitigating circumstance of voluntary surrender. 15
Before disposing of the other issues raised by appellants, we resolve the second
and fourth assigned errors first to determine which of the two conflicting versions
of the incident deserves credence. Their resolution rests upon the credibility of
the witnesses who have come forward, a matter addressed to the sound
judgment of the trial court which is in a better position to decide them, it having

heard the witnesses and observed their deportment and manner of testifying
during the trial. Consequently, the assessment of the trial judge is usually
received with respect, if not conclusiveness, on appeal unless there is a showing
of arbitrariness. Always, this has been the familiar rule. 16
In the instant case, the trial court has accepted as credible the testimonies of
Hernando and Danilo Oro who positively identified accused Celso and Gildo
Amaguin as having started the assault on the Oro brothers with the use of a knife
and an "Indian pana," and accused Willie Amaguin as the gunwielder who shot
the brothers Pacifico, Diosdado and Danilo during the fray. We see no reason to
disregard the assessment. We simply cannot set aside the factual findings of the
trial court absent any showing of capriciousness on its part.
The defense belittles the testimony of Hernando Oro pointing to accused Willie
Amaguin as the gunman as it stands "singly and alone," in contrast to the
declaration of the defense witnesses exonerating Willie and Gildo. While the
defense may have presented a number of witnesses who, as the trial court puts
it, "virtually 'sang' in a chorus that the killers (Celso and Danny Amaguin and a
certain Ernie Ortigas) not the two accused herein (Willie and Gildo
Amaguin)," 17 still the trial judge had the opportunity, as well as the right and
responsibility, to assess their credibility just like all other witnesses. After all,
there is no law which requires that the testimony of a single witness needs
corroboration except when the law so expressly requires. As it is often said,
witnesses are to be weighed, not numbered. If credible and positive, the
testimony of a single witness is sufficient to convict. 18 Indeed the determination of
the credibility of witnesses is the trial court's domain, hence, we respect its
factual findings.
For, even the respective defenses of the accused, i.e., accused Willie Amaguin's
alibi that he did not participate in the fray and that he was in the nearby house of
his uncle drinking with his friends, and accused Gildo Amaguin's denial that he
was unarmed but later forced to hurl stones to defend himself, are without sound
basis. Alibi is one of the weakest defenses that can be resorted to especially
where there is direct testimony of an eyewitness, not only because it is inherently
weak and unreliable but also because of the ease of its fabrication and the
difficulty of checking and rebutting it. 19 Besides, alibi to be believed must be
supported by the physical impossibility of the accused to have been at the scene
of the crime. 20 And as in an alibi, a denial, if unsubstantiated by clear and
convincing evidence, is a negative and self-serving evidence which deserves no
weight in law and cannot be given greater evidentiary value over the testimony of
credible witnesses who testify on affirmative matters. 21 Thus, as between a mere
denial of the accused and the positive identification and detailed declarations of
the prosecution witnesses, the trial court committed no error in according heavier
weight to the latter. 22
Hence, this version of the prosecution prevails: Celso and Gildo, together with
others, attacked the Oros. During the fray, Gildo was armed with a knife and an
"Indian target." And just as they were about to finish off the Oro brothers, Willie,
the eldest of the Amaguins, appeared with a revolver and delivered the coup de

grace.
The factual setting having been settled, we now go to the first assigned error ,
i.e., thwt the lower court erred in categorizing the offense as murder there being
no treachery since "the combatants were face to face" and "[c]onfronting each
other frontally . . . that each will know each other's next move." 23 Except for
appellants' premise, the argument has merit. The killing of Pacifico and Diosdado
cannot be qualified by treachery.
While we have already ruled that even a frontal attack can be treacherous, as
when it is sudden and unexpected and the victim is unarmed, 24 here, it appears
that the aggressors did not employ means tending directly and specially to
ensure the execution of the crime without risk to themselves arising from the
defense which the offended parties might take.
It must be noted that the assailants attacked a group of six (6) individuals who
could have been armed.
It is highly probable that at least one of those attacked could offer resistance and
could put the lives of the aggressors in danger, as what indeed happened when
accused-appellant Gildo Amaguin and his cousin Danny suffered injuries as a
result of the fight which, from all indications, ended in a free-for-all. That Pacifico
sustained 15 stab wounds and a gunshot wound, and Diosdado, ten stab wounds
and a bullet wound, does not necessarily mean that treachery attended the
killings. As already adverted to, for treachery to be appreciated, the offender must
employ means, methods, or forms in the commission of the crime which tend
directly and specially to insure its execution without risk to himself arising from
the defense which the offended party might take. 25 Here, there is serious doubt.
On the third assigned error, i.e., that there was conspiracy between Gildo and
Celso, who remains at large, the evidence shows how Celso and Gildo
simultanously assaulted the Oro brothers. While Celso lunged at Pacifico, Gildo
aimed his slingshot at Danilo who was hit by its dart, and immediately
attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo
and Celso acted in unison and cooperated with each other toward the
accomplishment of a common felonious objective. Certainly, there was
conspiracy between the brothers Gildo and Celso, and it was not necessary to
prove a previous agreement to commit the crime since from their overt acts, it
was clear that they acted in concert in the pursuit of their unlawful design.
However, it was error to rule that accused Willie was an accomplice to his
brothers. There being no sufficient evidence to link him to the conspiracy, he
should be liable for the natural and logical consequence of his own felonious
acts. Hence, we take exception to the conclusion of the trial court that Pacifico
and Diosdado did not die due to the gunshot wounds inflicted by Willie.
Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico
and Diosdado, testified that while the gunshot wound sustained by Pacifico was
not fatal, that suffered by Diosdado was fatal. 26
Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he
should be liable for homicide. And, since Diosdado was already on bended knees
and pleading for his life when fatally shot, the aggravating circumstance of the

abuse of superior strength, although not alleged in the information but proven
during the trial, may be considered as a generic aggravating circumstance. 27
In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already
with numerous fatal stab wounds, Willie should be liable for frustrated homicide it
appearing that the gunshot wound was not fatal although his intent to kill was
evident. Likewise, the aggravating circumstance of abuse of superior strength
may be appreciated as a generic aggravating circumstance.
Finally, we agree with accused-appellants' view that voluntary surrender should
be appreciated in their favor. While it may have taken both Willie and Gildo a
week before turning themselves in, the fact is, they voluntarily surrendered to the
police authorities before arrest could be effected. For voluntary surrender to be
appreciated as a mitigating circumstance, the following elements must be
present: (a) the offender has not been actually arrested; (b) the offender
surrendered himself to a person in authority; and (c) the surrender must be
voluntary. 28 All these requisites appear to have attended their surrender.
Now, we turn to the penalties.
In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate
crimes of homicide for the death of Diosdado and Pacifico, respectively. The
penalty prescribed by law for homicide is reclusiontemporal. 29 Applying the
Indeterminate Sentence Law, and appreciating the mitigating circumstance of
voluntary surrender with no aggravating circumstance, the maximum penalty to
be imposed on accused Gildo Amaguin for each of the homicide he has
committed, which he must serve successively, should be taken from the minimum
of the imposable penalty, which is reclusion temporal the range of the minimum
period of which is twelve (12) years and one (1) day to fourteen (14) years and
eight (8) months, while the minimum should be taken from the penalty next lower
in degree, which is prision mayor the full range of which is six (6) years and one
(1) day to twelve (12) years, in any of its periods.
In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse
of superior strength but offset by the mitigating circumstance of voluntary
surrender, and in Crim. Case No. 8042, he is guilty of frustrated homicide likewise
aggravated by abuse of superior strength but offset by voluntary surrender. For
the homicide, applying the Indeterminate Sentence Law and taking into account
the mitigating circumstance of voluntary surrender which, as earlier mentioned,
offsets the aggravating circumstance of abuse of superior strength, the maximum
penalty should be taken from the medium of the imposable penalty, which is
reclusion temporal the range of the medium period of which is fourteen (14) years
eight (8) months and one (1) day to seventeen (17) years and four (4) months,
while the minimum should be taken from the penalty next lower in degree which
is prision mayor in any of its periods.
For the frustrated homicide, the imposable penalty is one degree lower than the
penalty prescribed by law for the consummated offense, and one degree lower
than reclusion temporal is prision mayor. Applying the Indeterminate Sentence
Law and the attending circumstances which offset each other, the maximum
penalty to be imposed should be taken from the medium of the imposable

penalty, which is prision mayor the range of the medium period of which is eight
(8) years and one (1) day to ten (10) years, while the minimum should be taken
from the penalty next lower in degree, which is prision correccional the full range
of which is six (6) months and one (1) day to six (6) years, in any of its periods.
WHEREFORE, the decision of the court a quo finding the accused-appellants
WILLIE AMAGUIN and GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and
8042 is MODIFIED as follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim.
Case No. 8041 and is sentenced to six (6) years, two (2) months and one (1) day
of prision mayor minimum as minimum, to fourteen (14) years, eight (8) months
and twenty (20) days of reclusion temporal medium as maximum, and of
FRUSTRATED HOMICIDE in Crim. Case No. 8042 and is sentenced to six (6)
months and twenty (20) days of prision correccional minimum as minimum, to
eight (8) years, four (4) months and ten (10) days of prision mayor as maximum,
to be served successively;.
(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate
crimes of HOMICIDE in Crim. Cases Nos. 8041 and 8042 and is sentenced to six
(6) years two (2) months and one (1) day of prision mayor minimum as minimum,
to twelve (12) years, six (6) months and ten (10) days of reclusion temporal
minimum as maximum, for each homicide, to be served successively;
(c) in Crim. Case No. 8041, accused-appellants WILLIE AMAGUIN and GILDO
AMAGUIN are declared jointly and severally liable to the heirs of Diosdado Oro
for P50,000.00 as civil indemnity consistent with prevailing jurisprudence; and,
(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the
heirs of Pacifico Oro for P50,000.00 as civil indemnity.
Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in
both cases.
SO ORDERED.
Cruz, Davide, Jr. and Quiason, JJ., concur.
#Footnotes
1 TSN, 16 January 1978, pp. 36-37.
2 Id., pp. 38-41.
3 Id., 17 October 1977, pp. 4-6, 27.
4 Id., pp. 8-11, 28-34.
5 Id., 23 February 1978, pp. 59-60.
6 Id., 14 September 1978, pp. 99-105.
7 Id., 22 August 1978, pp. 23-27.
8 Id., pp. 39-43.
9 Id., 23 October 1978, p. 120.
10 Id., p. 121.
11 Id., 15 January 1979, pp. 5-7.
12 Id., 22 August 1978, pp. 35-37.
13 Id., 6 December 1977, pp. 2-6; Exhs. "A" and "B".
14 Judge Midpantao L. Adil, presiding.

15 Brief for Accused-Appellants, p. 1.

16 People vs. Deuna, G.R. No. 87555, 16 November 1993; People vs. Clapano,
G.R. No. 106525, 8 November 1993; People vs. Ramilla, G.R. No. 101435,
8 November 1993; People vs. Remollo, G.R. No. 104498, 22 October 1993;
People vs. Sencil, G.R. Nos. 105959-60, 12 October 1993; People vs. Salamat,
G.R. No. 103295, 20 August 1993.
17 Decision of the trial court, p. 7.
18 People vs. Nimo, G.R. No. 92533, 5 October 1993, citing People vs.
Villalobos, G.R. No. 71526, 27 May 1992; 209 SCRA 304, 315.
19 People vs. Amador, G.R. Nos. 100456-59, 10 September 1993; People vs.
Cortes, G.R. No. 105010, 3 September 1993.
20 Id.; People vs. Remollo, G.R. No. 104498, 22 October 1993.
21 People vs. Sencil, G.R. Nos. 105959-60, 12 October 1993.
22 People vs. Gerona, G.R. No. 100230, 8 November 1993.
23 Brief for Accused-Appellants, p. 42.
24 People vs. Javar, G.R. No. 82769, 6 September 1993, citing People vs. Cruz,
G.R. No. 94375, 4 September 1992; 213 SCRA 1992.
25 Art. 14, par. 16, Revised Penal Code.
26 See Note 13.
27 See People vs. Amato, No. L-28273, 18 January 1982; 111 SCRA 39.
28 People vs. Canamo, G.R. No. 62043, 13 August 1985; 138 SCRA 141.
29 Art. 249, Revised Penal Code.

Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-45284 December 29, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FRANCISCO DE LA CRUZ, ET AL., defendants.
FRANCISCO DE LA CRUZ, appellant.
Marciano Sayoc for appellant.Undersecretary of Justice Melencio for appellee.
SYLLABUS
1. CRIMINAL LAW; ROBBERY; PENALTY. The facts charged constitute
the crime of robbery defined in article 294 of the Revised Penal Code
and punished by prision correccional to prision mayor in its medium
period.
2. ID.; ID.; HABITUAL DELINQUENCY AND RECIDIVISM. The
allegations of the information with respect to the appellant F. de la C.,
are not sufficient to consider him a habitual delinquent (People v.
Venus, p. 435, ante). However, the facts alleged in this respect
constitute the aggravating circumstance of recidivism.
3. ID.; ID.; CONFESSION OF GUILT. The appellants plea of guilty
does not constitute a mitigating circumstance under article 13, subsection 7, of the Revised Penal Code, which requires that this plea be
spontaneous and that it be made prior to the presentation of evidence
by the prosecution.
4. ID.; ID.; ID. The confession of guilt, although subsequent to the
consummation of the crime and entirely alien to its development,
constitutes a cause for the mitigation of the penalty because, as an act
of repentance and respect for the law, it indicates a moral disposition
in the accused favorable to his reform. These benefits are not deserved
by the accused who submits to the law only after the presentation of
some evidence for the prosecution, believing that in the end the trial
will result in his conviction by virtue thereof.
AVANCEA, C.J. :
This case was prosecuted upon the following information:
"That on or about the 30th day of May, 1936, in the City of Manila,
Philippine Islands, the said accused Francisco de la Cruz, Fernando

Legaspi and three other persons whose identities are still unknown,
confederating together and helping one another, did then and there
wilfully, unlawfully and feloniously, and with intent of gain, attack,
assault and use personal violence upon one Yu Wan, by then and there
giving him blows with his fist on the face and other parts of the body,
thereby inflicting upon him physical injuries which have required and
will require medical attendance for a period of more than one but less
than nine days and have prevented and will prevent the said Yu Wan
from engaging in his customary labor for the same period of time; and
afterwards took, stole and carried away with him without the consent
of the owner thereof the following personal property, to wit:chanrob1es
virtual 1aw library
Twenty-six (P26) pesos in cash, consisting of
different denominations P26.00
belonging to said Yu Wan, to the damage and prejudice of the said
owner in the said sum of P26, Philippine currency.
"That the said accused Francisco de la Cruz is a habitual delinquent
under the provisions of the Revised Penal Code, he having been
previously convicted once of the crime of theft and twice of the crime
of estafa, by virtue of final judgments rendered by competent courts,
having been last convicted on July 24, 1933."cralaw virtua1aw library
Upon arraignment, the accused pleaded not guilty.
During the trial and after two witnesses for the prosecution had
testified, the accused withdrew for the prosecution had testified, the
accused withdrew their plea of not guilty, substituting it by that of
guilty. The court sentenced Francisco de la Cruz to six months and one
day of prision correccional and, considering him a habitual delinquent,
sentenced him furthermore to the additional penalty of six years and
one day of prision mayor. The other accused Fernando Legaspi was
sentenced to ten months of prision correccional. Francisco de la Cruz
appealed from this sentence.
The facts charged constitute the crime of robbery defined in article 294
of the Revised Penal Code and punished by the penalty of prision
correccional to prision mayor in its medium period.
The allegations of the information with respect to the appellant

Francisco de la Cruz are not sufficient to consider him a habitual

delinquent (People v. Venus, p. 435, ante). However, the facts alleged
in this respect constitute the aggravating circumstance of recidivism.

by the accused who submits to the law only after the presentation of
some evidence for the prosecution, believing that in the end the trial
will result in his conviction by virtue thereof.

On the other hand, the appellants plea of guilty does not constitute a
mitigating circumstance under article 13, subsection 7, of the Revised
Penal Code, which requires that this plea be spontaneous and that it be
made prior to the presentation of evidence by the prosecution. The
confession of guilt, although subsequent to the consummation of the
crime and entirely alien to its development, constitutes a cause for the
mitigation of the penalty, not because it is a circumstance modifying
criminal responsibility already incurred and in the evolution of which it
has not intervened absolutely, but because, as an act of repentance
and respect for the law, it indicates a moral disposition in the accused
favorable to his reform. It is clear that these benefits are not deserved

Wherefore, eliminating the additional penalty by reason of habitual

delinquency, considering the presence of an aggravating circumstance
in the commission of the crime without any mitigating circumstance,
and applying the Indeterminate Sentence Law, the appellant is
sentenced to the penalty of from six months of arresto mayor, as
minimum, to six years, ten months and one day of prision mayor, as
maximum, affirming the appealed sentence in all other respects, with
the costs. So ordered.
Villa-Real, Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ.,
concur.