CASE DIGEST ON PEOPLE v.

ESTEPANO [307 SCRA 707 (1999)] Nature: Appeal from a decision of the RTC of Himamaylan, Negros Occidental w/c found the defendants guilty of the crime of MURDER Facts: Enrique Balinas was stabbed & hacked to death for w/c Dominador, Rodrigo, Ruben, Rodney, Dante & Rene, all surnamed Estepano were charged w/ murder. Rodrigo died during the trial & before judgment could be rendered. Dante was never apprehended hence, as against him, the case was never archived. After trial, Dominador was acquitted on reasonable doubt. Only Ruben, Rodney & Rene were found guilty. Accordingly, the 3 were sentenced to reclusion perpetua & ordered to indemnify the heirs of Enrique Balinas in the amount of P100K for moral damages & P9.5K for actual damages w/o subsidiary imprisonment in case of insolvency. As to the crime: The case was woven mainly on the testimony of Florencio Tayco, that on April 16, 1991 at around 10 pm, he was on his way home in Barangay IV Himamaylan with Lopito Gaudia and Enrique Balinas. En route, they met Dominador at the BM Trucking compound. Lopito than talked to Dominador while he and Estepano stood nearby. Suddenly, Rodrigo appeared without any provocation stabbed Enrique in the stomach with a guinunting (fighting bolo). Ruben armed with a cane cutter and Rodney, Dante and Rene, each armed with a bolo followed suit in hacking Enrique. While this was happening, Dominador told his companions You better kill him! Lopito confirmed the testimony of Florencio. Dominadors version: That on April 16 1991 at 10pm, he was at home w/ his wife & son Roberto. They were about to eat supper when he heard Enrique Balinas call out for his son Rodrigo to come down. He peeped through the window & saw Rodrigo hacking Enrique. When Enrique fell to the ground, Rodrigo fled. Robert Hautea & Luz Cuepas, both residents of Barangay IV corroborated the testimony of Dominador. Accused Ruben, Rene & Rodney invoked alibi. Ruben claimed that he was at the provincial hospital attending to his wife who earlier underwent a caesarian operation. Rene & Rodney, sons of Rodrigo, claimed that they were at home sleeping when the killing occurred. Rene, who was only 13 then, testified that he came to know about the incident that same night when his mother awakened him. Rodney on the other hand, was awakened by shouts that his father killed Enrique Balinas. Issues 1. WON the lower court erred in giving credence to the testimony of prosecution witness Florencio Tayco Findings of the TC is binding & conclusive on the appellate court unless some facts or circumstances of weight & substance have been overlooked, misapprehended or misinterpreted, w/c isnt true in the present case. Florencios testimony is clear & convincing, as he was only 2 arms length away from the victim as well as from the assailants. Alibi of appellants were not supported by any pieces of evidence & thus were not sufficient to outweigh their positive identification by 1 of the prosecution witnesses. 2. WON conspiracy had taken place Conspiracy may be deduced from the mode and manner in w/c the offense was committed and concerted acts of the accused to obtain a common criminal objective signifies conspiracy. 3. WON the appellants are guilty of murder (particularly Rene, who was 13) With respect to accused-appellant Rene Estepano, the records show that he was only 13 years of age at the time of the commission of the offense. Under A12. par. 3 of the RPC, a person over 9 years of age & under 15 is exempt from criminal liability unless it is shown that he acted with DISCERNMENT. Scrutiny of records show that prosecution failed to prove that Rene acted w/ discernment, what was only established was his presence & his supposed participation in the killing. * Damages of P100K were also modified and reduced to P50,000, considering that the purpose of such award is not to enrich the heirs but to compensate them for the injuries to their feelings. Wherefore, the decision appealed from is modified and accused-appellants Ruben and Rodney are found guilty beyond reasonable doubt, Rene Estepano is ACQUITTED. 1

SECOND DIVISION

[G.R. No. 126283. May 28, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN ESTEPANO, RODNEY ESTEPANO and RENE ESTEPANO, accused-appellants. DECISION BELLOSILLO, J.: ENRIQUE BALINAS was stabbed and hacked to death for which Dominador, Rodrigo, Ruben, Rodney, Dante and Rene, all surnamed Estepano, were charged with murder. Rodrigo died during the trial and before judgment could be rendered. Dante was never apprehended hence, as against him, the case was archived. After trial, Dominador was acquitted on reasonable doubt. Only Ruben, Rodney and Rene were found guilty. Accordingly, the three (3) were sentenced to reclusion perpetua and ordered to indemnify the heirs of Enrique Balinas in the amount of P100,000.00 for moral damages and P9,500.00 for actual damages, without subsidiary imprisonment in case of insolvency.[1] The case for the prosecution is woven mainly on the testimony of Florencio Tayco. He narrated that on 16 April 1991, at around ten oclock in the evening, he was on his way home in Barangay IV, Himamaylan, Negros Occidental, with Lopito Gaudia and Enrique Balinas. Enroute, they met Dominador Estepano at the BM Trucking compound. At this juncture, according to Florencio, Lopito started to talk to Dominador while he and Enrique stood nearby. Suddenly, Rodrigo appeared and without any provocation stabbed Enrique in the stomach with a guinunting. [2] Ruben who was armed with a cane cutter and Rodney, Dante and Rene, each armed with a bolo, followed suit in hacking Enrique. While this was happening, Dominador told his companions, You better kill him![3] Lopito Gaudia confirmed that on 16 April 1991, at around ten oclock in the evening, while he was walking home with Enrique Balinas and Florencio Tayco, they saw Dominador Estepano at the BM Trucking compound near the house of Junior Vasquez. While he was talking to Dominador he saw two (2) persons, both naked from the waist up, pass by. He recognized one of them to be Rodrigo Estepano. Soon after, he heard a couple of splashing sounds and a ring, which made him turn around. As he did, he saw Rodrigo withdrawing his bolo from the neck of Enrique. He also saw another person, who was armed with a cane cutter, standing near the fallen Enrique. He asked Dominador why Rodrigo hacked Enrique and Dominador replied that that was the result of intense hatred. He then hurriedly left for home. On the way he met some military men and told them about the incident. The military men assured him that they would report the matter to the police authorities.[4] Dominador Estepano gave his own version of the incident. According to him, on 16 April 1991, at around ten oclock in the evening, he was at home with his wife and son Roberto. They were about to eat supper when he heard Enrique Balinas call out for his son Rodrigo to come down. He peeped through the window and saw Rodrigo hacking Enrique. When Enrique fell to the ground Rodrigo hastily fled. There was no other person in the vicinity. He then went down his house where the victim was and saw the latters firearm. He picked it up and when Chief of Police Balquin arrived, he turned over the firearm to him.[5] Robert Hautea[6] and Luz Cuepas,[7] both residents of Barangay IV, corroborated the testimony of Dominador. Accused Ruben, Rene and Rodney invoked alibi. Ruben claimed that on 16 April 1991, at around ten oclock in the evening, he was at the provincial hospital in Bacolod City attending to his wife who earlier underwent a caesarian operation. [8] Rene and Rodney, sons of Rodrigo, claimed that they were at home sleeping when the killing occurred. Rene, who was only thirteen (13) years of age then, testified that he came to know about the incident that same night 2

when his mother awakened him to inform him about it. [9] Rodney, on the other hand, was awakened by shouts that his father killed Enrique Balinas.[10] The crux of this appeal of Ruben, Rodney and Rene is that the trial court erred: (a) in giving credence to the testimony of prosecution witness Florencio Tayco; (b) in finding the existence of conspiracy in the commission of the crime charged; and, (c) in finding them guilty of murder.[11] On the first assigned error, accused-appellants argue that the trial court accorded too much credence to the testimony of Florencio Tayco notwithstanding that some substantial points of his testimony were not corroborated by Lopito Gaudia who was also present at the crime scene. Florencio maintained that aside from Rodrigo, the other Estepanos, Dante, Rodney, Ruben and Rene, also attacked Enrique. Lopito, on the other hand, asserted that he saw Rodrigo with only one companion at the time of the incident.[12] The assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, who of the witnesses to disbelieve or whose testimonies to accept. Verily, findings of the trial court on such matters are binding and conclusive on the appellate court unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted,[13] which is not true in the present case. The clear and convincing testimony of Florencio Tayco positively points to accusedappellants as the killers of Enrique Balinas. Florencio testified that he was only two arms length away from the victim[14] as well as from the assailants. [15] Thus, it was unlikely that he could not have recognized the latter considering that he was a resident of the place and thus familiar more or less with the faces of its townsfolk. He was positive in identifying Rodrigo as the person who first stabbed Enrique in the stomach with a bolo, [16] followed by Ruben, Dante, Rodney and Rene, each hacking the victim one after the other while the victim was already lying down. [17] He was also positive in identifying the respective weapons used by the malefactors. [18] As there was no indication that Florencio was moved by any improper motive, the presumption is that he was not so moved and his testimony must be given full faith and credence.[19] Florencios account, in a way, was bolstered by the testimony of Dr. Quintin Napoles, the physician who made a post mortem examination on the body of the victim. His findings revealed: Multiple hack wounds left face and neck with fracture of cervical vertebrae; stab wound left anterior chest and right posterior lumbar region, non-penetrating. Dead on arrival.[20] On the basis of his medical findings, Dr. Napoles opined that there could have been more than one kind of weapon used in killing the victim - one sharp pointed and another sharp bladed.
[21]

It is undisputed that both Florencio Tayco and Lopito Gaudia were present at the crime scene when the incident happened. However, as clearly shown by their testimonies, it was only Florencio who saw the entire incident. What Lopito witnessed was only that which transpired when he turned around upon hearing some noise. Naturally, their impressions on the incident would vary. In other words, the alleged conflicting testimonies between the two eyewitnesses as claimed by accused-appellants are more imagined than real.[22] With respect to the defense of alibi, we agree with the trial court that it must fall. Well entrenched is the rule that alibi and denial are inherently weak and have always been viewed with disfavor by the courts due to the facility with which they can be concocted. They warrant the least credibility or none at all and cannot prevail over the positive identification of the accused by the prosecution witness.[23] Appellant Ruben Estepano would impress us that in the evening of 16 April 1991 he was at the provincial hospital attending to his wife who had a caesarean operation, and never left the hospital until the following day. However, he did not introduce evidence that his wife was actually admitted in the hospital and that she was discharged therefrom only on 17 April 1991 to 3

prove that he was not at the scene of the crime when the incident happened. [24] The other appellants, Rodney and Rene, on their part, testified that they were asleep when the incident happened. These testimonies are not sufficient to outweigh their positive identification by one of the prosecution witnesses. For alibi to prosper, it is not enough for accused-appellants to prove that they were somewhere else when the crime was committed. They must likewise demonstrate that they were so far away that they could not have been present at the place of the commission of the offense or its immediate vicinity at the time of its commission. [25] They were not able to prove that it was physically impossible for them to be at the locus criminisconsidering the proximity of the places where they alleged to be and the place where the victim was murdered. For alibi to be believed, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable.[26] On the second issue, accused-appellants contend that there was no solid ground to establish conspiracy among them because their identities as authors of the crime were not proved by clear and convincing evidence, and that their participation in the crime was not sufficiently established in the light of conflicting testimonies of the prosecution witnesses.[27] We do not agree. The factual findings of the trial court, through the credible testimony of prosecution witness Florencio Tayco, clearly established their identities as the assailants as well as the participation of each of them, not to mention the weapons used for the attack. Conspiracy may be deduced from the mode and manner in which the offense was committed,[28] and the concerted acts of the accused to obtain a common criminal objective signify conspiracy.[29] In the case at bar, the overt acts of accused-appellants in taking turns in hacking Enrique Balinas clearly and adequately established conspiracy. It can be inferred therefrom that they acted in unison in the pursuit of their common criminal design which was to kill the victim Enrique Balinas.[30] The trial court was correct in finding accused-appellants Ruben Estepano and Rodney Estepano guilty of murder as the killing was attended by treachery. The evidence shows that they suddenly and unexpectedly attacked the victim while the latter was waiting for Lopito Gaudia who was talking to Dominador Estepano. There was treachery because the following requisites concurred: (a) the culprits employed means, methods or forms of execution which tended directly and specially to insure their safety from any defensive or retaliatory act on the part of the offended party, which meant that no opportunity was given the latter to do so; and, (b) that such means, method or manner of execution was deliberately or consciously chosen. [31] The penalty of reclusion perpetua was correctly imposed on them in the absence of any mitigating or aggravating circumstances.[32] With respect to accused-appellant Rene Estepano, the records show that he was only thirteen (13) years of age at the time of the commission of the offense. Under Art. 12, par. (3), of The Revised Penal Code, a person over nine (9) years of age and under fifteen (15) is exempt from criminal liability unless it is shown that he acted with discernment. The minor referred to here is presumed to have acted without discernment. Thus, it is incumbent upon the prosecution to prove that such minor acted otherwise.[33] A scrutiny of the records shows that the prosecution failed to prove that accused-appellant Rene Estepano acted with discernment. The testimony of prosecution witness Florencio Tayco only attempted to establish, as it did, Renes presence at the crime scene and his supposed participation in the killing of Enrique Balinas. Thus Q: Aside from Ruben Estepano alias Texas and Dante Estepano who helped in attacking Enrique Balinas, were there other persons involved or helped aside from these two? A: Yes, sir. Q: How many more (who) helped? A: Rodney Estepano and Rene Estepano. x x x x Q: What is (sic) the weapon used by Texas (Ruben)? A: Cane cutter (espading). x x x x 4

Q: How about Rene? A: Bolo.[34] Clearly, the prosecution did not endeavor to establish Renes mental capacity to fully appreciate the consequences of his unlawful act. Moreover, its cross-examination of Rene did not in any way attempt to show his discernment. He was merely asked about what he knew of the incident that transpired on 16 April 1991 and whether he participated therein. [35] Accordingly, even if he was indeed a co-conspirator, he would still be exempt from criminal liability as the prosecution failed to rebut the presumption of non-discernment on his part by virtue of his age. [36] The cross-examination of Rene could have provided the prosecution a good occasion to extract from him positive indicators of his capacity to discern. But, in this regard, the government miserably squandered the opportunity to incriminate him. The damages awarded by the trial court to the heirs of the victim must be modified. The P100,000.00 granted by the trial court for moral damages must be REDUCED to P50,000.00 considering that the purpose for such award is not to enrich the heirs but to compensate them for the injuries to their feelings. Conformably with prevailing jurisprudence, an additional award of P50,000.00 as indemnity for the death of Enrique Balinas must also be given.[37] Finally, the heirs are likewise entitled to damages for the loss of earning capacity of the deceased, and the absence of documentary evidence to support a claim therefor does not prevent recovery of such damages.[38]The testimony of Marietta Balinas, the victims wife, on the earning capacity of her husband is enough to establish the basis for the award. The formula for determining the life expectancy of Enrique Balinas applying the American Expectancy Table of Mortality is as follows: 2/3 multiplied by (80 minus the age of the deceased). [39] Since Enrique was 34 years of age at the time of his death,[40] then his life expectancy was 30.66 years. At the time of his death, Enrique was earning P2,000.00 a month as househelper of a certain Dr. Sancho[41] so that his annual income was P24,000.00. From this amount, 50% should be deducted as reasonable and necessary living expenses to arrive at his net earnings. Prescinding from the foregoing, we deduce that his net earning capacity was P367,920.00 computed as follows: net earning life capacity (x) = expectancy expenses x = 2 (80 - 34) 3 = = 30.66 P367,920.00 x x [24,000.00 12,000.00 12,000.00] x gross annual less income & reasonable necessary living

WHEREFORE, the decision appealed from is MODIFIED. Accused-appellants RUBEN ESTEPANO and RODNEY ESTEPANO are found GUILTY beyond reasonable doubt of Murder and are accordingly sentenced each to reclusion perpetua. They are ordered to jointly and severally indemnify the heirs of their victim Enrique Balinas y Gran the amount of P50,000.00 as indemnity for death, P50,000.00 as moral damages,P9,500.00 as actual damages and P367,920.00 for loss of earning capacity. Accused-appellant RENE ESTEPANO is ACQUITTED in the absence of proof that he acted with discernment; consequently, his immediate RELEASE from confinement is ORDERED unless he is detained for some other lawful cause. The Director of Prisons is DIRECTED to implement this Decision and to report to this Court immediately the action taken hereon within five (5) days from receipt hereof. SO ORDERED. Puno, Mendoza, Quisumbing, and Buena, JJ., concur. 5

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 132166 May 19, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN LOTOC, JOEL DURAN, JULITO GOLONG and "BAUL," accused, GLENN LOTOC, appellant.

PANGANIBAN, J.: The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction for murder. The trial court's assessment of the credibility of witnesses and their testimonies is binding on appellate courts, absent any fact or circumstance of weight and substance that may have been overlooked, misapprehended or misapplied. Delay in the filing of a criminal complaint, if properly explained, will not necessarily taint the prosecution of a crime. The Case The foregoing principles were used by this Court in reviewing the November 12, 1997 Decision 1 in Criminal Case No. 4276, promulgated by the Regional Trial Court of Catbalogan, Samar (Branch 29), which convicted Appellant Glenn Lotoc of murder and sentenced him to reclusion perpetua. In an Information dated August 13, 1996, Glenn Lotoc, Joel Duran, Julito Golong and a person identified only as "Baul" 2 were charged by Provincial Prosecutor Juan C. Latorre Jr. with murder, allegedly committed as follows: That on or about the 17th day of March, 1996, at nighttime which was purposely sought, at Barangay 7, Ubanon District, Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating together and mutually helping and aiding one another, with deliberate intent to kill, with treachery and evident premeditation, and with abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, hold and stab one Benedicto Mabulac with the use of a bladed weapon with which the said accused had conveniently provided themselves for the purpose, thereby hitting and inflicting upon said Benedicto Mabulac multiple stab wounds in the different parts of his body, which wounds directly caused his instantaneous death. 3 At his arraignment on October 3, 1996, 4 Appellant Glenn Lotoc, duly assisted by Counsel de Oficio Edgardo C. Leonido of the Public Attorney's Office, pleaded not guilty. The three other accused were and have remained at large. Trial in due course proceeded against Appellant Lotoc only. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, the court finds the accused Glenn Lotoc guilty beyond reasonable doubt of the crime of murder qualified by treachery and there being no mitigating or aggravating circumstances to consider[,] he is hereby sentenced to reclusion perpetua, to indemnify the heirs of Benedicto Mabulac, represented by Mrs. Rosario C. Mabulac, in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. 5 In view of the penalty imposed, the appeal was filed directly with this Court. 6 The Facts Evidence for the Prosecution

In the Appellee's Brief, 7 the Office of the Solicitor General, on behalf of the People, presented the following narration of the facts: On March 17, 1996, around 7:00 p.m., Glenn Lotoc (herein appellant), together with the three other accused, went to the house of Mrs. Trinidad Java, sister of Benedicto Mabulac (victim), and invited him to go out with them for a drinking session. All together, the four (4) accused, along with Benedicto, left for an unknown place (TSN, March 13, 1997, pp. 3-4; April 3, 1997, pp. 8-9). Around 9:00 p.m. of the same day, while on his way home from the house of Mrs. Trinidad Java where he offered to sell his pig to her husband Ramil, Cecilio Mabingnay (prosecution witness) saw Glenn Lotoc (appellant) in front of the Perez residence near the Samar National High School holding both hands of Benedicto behind his back (TSN, Feb. 24, 1997, p. 5). Thinking that they were only drunk, Mabingnay walked on but a few seconds later, he saw the three other accused from across the street coming towards Benedicto, with Joel Duran first stabbing Benedicto with a knife, followed by Julito Golong who also delivered a stabbing blow. Glenn Lotoc then released Benedicto. Thereupon, Benedicto ran but he was chased by Baul. When Benedicto fell, the four culprits disappeared in the dark (Ibid., Feb. 24, 1997, pp. 6-9; 14-17). Afraid that he might as well be stabbed, [sic] Mabingnay immediately left the place and informed the people at the Samar Memorial Chapel about the incident. He immediately left the place when the people ignored and just laughed at him (Ibid., Feb. 24, 1997, p. 9). Benedicto was brought by an unidentified tricycle driver to the Samar Provincial Hospital in Catbalogan, Samar where he died three hours later (TSN, Dec. 4, 1996, pp. 3-4, 13). 8 Evidence for the Defense In his Brief, 9 appellant raises the defense of denial, claiming that he went to Pier I to refrigerate fish on the night of the murder. On his way home, he was allegedly asked by Cesar Doroja, a tricycle driver, to help him load a wounded person into his tricycle, which would transport him to a nearby hospital. Appellant states: Evidence for the defense tends to show that in the evening of March 17, 1996, accused Glenn Lotoc was ordered by his father to go to Pier I to refrigerate the fish to be sold the next day in Borongan, Eastern Samar. On his way home, his assistance was requested by Cesar Doroja, a tricycle driver, to lift aboard the tricycle a wounded person lying down at the corner of Lincoln Avenue and San Bartolome Street. A few moments [later], [W]itness Rodrigo Ybuhay also came/passed by, and himself assisted in lifting the wounded man whom they recognized as Benedicto Mabulac. They then brought him to the Samar Provincial Hospital. Ygbuhay and Doroja soon left while Lotoc stayed for a while in the hospital as no relative was around to care for the victim. He went home at about 10:00 o'clock that evening and because he was sleepy, he was not able to tell the relatives of Benedicto that they rushed him to the hospital. Early the following morning, he told Leslie Ann Java, Benedicto's niece, about the stabbing incident involving her uncle. Ruling of the Trial Court In convicting appellant of murder, the trial court relied mainly on the testimony of Cecilio Mabingnay. This witness claimed that he saw three persons stab the victim while his hands were being held behind his back by appellant. The trial court rejected appellant's claim that Mabingnay was unreliable because he failed to immediately report to the police what he had witnessed. It explained that the credibility of a witness was not impaired if such delay was 8

sufficiently explained, as in the present case. "Fear of involvement in a case is a valid excuse for [a prosecution witness'] silence or reluctance to testify . . ." 10 The trial court ruled that the crime committed was murder qualified by treachery while the victim was being held by appellant, the latter's companions were able to stab him repeatedly without risk to themselves and with no opportunity for the victim to defend himself. Assignment of Errors Appellant assigns to the trial court these alleged errors: I GIVING FULL FAITH AND CREDENCE TO THE EVIDENCE OF THE PROSECUTION WHICH IS INCOMPATIBLE WITH HUMAN NATURE AND EXPERIENCE. II DISREGARDING THE THEORY OF THE DEFENSE WHICH IS MORE CREDIBLE AND IN ACCORD WITH REALITY. III . . . FINDING APPELLANT GLENN LOTOC GUILTY OF THE CRIME OF MURDER WHEN NO EVIDENCE OF THE EXISTENCE OF A CONSPIRACY AMONG THE ACCUSED WAS ADDUCED NOR WAS THERE ANY FINDING OF CONSPIRACY IN THE DECISION OF THE TRIAL COURT. 11 In sum, the appellant attacks (1) the credibility of the prosecution witnesses, and (2) the finding of conspiracy. The Court's Ruling The appeal is devoid of merit. First Issue: Credibility of Witnesses Appellant contests the credibility of the lone prosecution eyewitness, Cecilio Mabingnay, arguing that the latter's account of the circumstances surrounding the incident are unpersuasive and not in accord with human experience. Appellant also points out that the long delay in reporting the crime may be because "private complainants spent time looking for a professional witness who can testify convincingly in court." 12 Further, he argues that his version is more credible than that of the prosecution. Appellant's contentions are without merit. Time and again this Court has declared that "the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted." 13 The defense has given us no convincing reason to overturn the trial court's ruling that Mabingnay's testimony was credible. Mabingnay clearly narrated how he saw the victim being held by Glenn Lotoc and repeatedly stabbed by Joel Duran, Julito Golong and a certain Baul. Q: On March 17, 1996[,] at about 9:00 o'clock in the evening[,] where were you? 9

A: I came from the cockpit and I went to the house of Ramil Jaba for the purpose of disposing my pig and when I returned[,] that was the time I saw them holding Benedicto and at the same time being stabbed. xxx xxx xxx Q: Who was holding Benedicto at that time when you saw them on March 17, 1996 at about 9:00 o'clock? A: Glenn Lotoc. Q: Would you kindly tell the Honorable Court how he was being held by Glenn Lotoc? A: (Witness [demonstrates] by putting both his arms behind his body.) xxx xxx xxx Q: While Benedicto Mabulac was being held by Glenn Lotoc, do you know if there were other persons around? A: There were only five of them, Benedicto Mabulac, Glenn Lotoc, Joel Duran, [and] Julito Golong . . . alias Baol. Q: And while Benedicto was being held what transpired? A: Joel approached and stabbed Benedicto. Q: Now, in relation to Benedicto[,] where was Joel? A: Joel was facing Benedicto when he approached. xxx xxx xxx Q: Now, Mr. Mabingnay, that was 9:00 o'clock in the evening[;] how were you able to recognize Benedicto Mabulac, Joel Duran, Julito Golong and Glenn Lotoc? A: Because it was bright as there was a lamp at the street light at the corner of the house of the Perez family. Q: From where Benedicto Mabulac was being held by Glenn Lotoc[,] how far was the lamp you [were] referring to from here? A: From here to that table. (Again witness [indicates] a distance [of] about six (6) meters.) Q: What kind of lamp was that? A: Mercury fluorescent bulb. Q: After Benedicto Mabulac was stabbed by Joel Duran what else transpired? A: Julito Golong followed and he also stabbed Benedicto. Q: What did he do? 10

A: He also stabbed Benedicto. Q: Do you know what instrument was used in stabbing Benedicto? A: I do not know exactly because I was at a distance but I could see because it glittered. Q: Where was he hit? A: He was hit in his body. Q: Now, coming back to Joel Duran, you said that Joel Duran was the first one who stabbed Benedicto[;] what happened to Benedicto when the stab blow was delivered to him? A: He remained standing because he was being held. Q: Did Benedicto say anything when that stab blow was delivered? A: I did not hear any. Q: When Julito Golong delivered [another] stab blow, what happened to Benedicto? A: When he was released by Glenn Lotoc[,] he ran away but in a short distance he fell down [as] he was being chased by alias Baol. 14 Indeed, the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of conviction, even in a charge of murder. 15 Appellant places undue emphasis on the fact that Mabingnay was merely a "substitute" who was presented because Rodrigo Ygbuhay, the-first person contacted by the victim's parents to testify, refused to do so. 16 But aside from mere insinuations that Mabingnay was motivated to testify falsely, appellant did not present any clear or convincing evidence to substantiate such claims. As earlier stated, the trial court's ruling on the credibility of a witness is generally binding on appellate courts. Proof, rather than innuendo, is needed to overturn the trial court's assessment. The alleged delay of four months in the filing of the criminal Complaint was sufficiently explained by the victim's mother, who testified that she became ill shortly after the death of her son. Q: Is it not a fact that the reason why you filed this case four (4) months after the death of your son was because you [had] a hard time . . . look[ing] for [a] witness to testify in your case? Fiscal: That is argumentative, Your Honor. Court: Answer. A: The reason is, although I already had a witness in the person of Cecilio Mabingnay[,] I could not file the case immediately because I was busy attending to the death of my son and besides I became ill. 17 Likewise, Cecilio Mabingnay sufficiently explained his initial reluctance to report the incident to the policeman whom he saw near the scene of the crime and, later, to testify. He stated that he did not want to be involved in the case, and that it might affect his job as a mechanic which 11

required him to go to other places. In countless cases, the Court has recognized the natural reticence of most people and their abhorrence to get involved in a criminal case. For instance, in People v. Vias, 18 it was held that "[t]he natural reluctance of a witness to get involved in a criminal case, as well as to give information to the authorities is a matter of judicial notice." Appellant argues that, contrary to human experience, the people laughed and ignored Mabingnay when he told them about the stabbing incident. We are not persuaded. Such reaction was not unlikely because, at the time, the assailants had fled and the victim had been taken to a hospital. Possibly, they thought that Mabingnay was merely joking. In any event, this is a trivial circumstance that does not affect the substantial parts of Mabingnay's testimony that appellant participated in killing the victim. Court decisions are based on facts and reasoned arguments, not on surveys of popular sentiments. Appellant also anchors his innocence on his claim that he helped bring the victim to the hospital. Appellant's contention is misplaced. His act, assuming it to be true, does not by itself prove his innocence, for it could have been motivated by feelings other than a genuine desire for the victim to recover. Furthermore, when the tricycle driver saw him and asked for his help, his refusal would have aroused more suspicion. In any event, appellant's act, even if true, was not enough to overturn the positive identification by the witness Cecilio Mabingnay, whose testimony was found by the trial court to be both truthful and reliable. Notably, Mrs. Rosario Mabulac and Leslie Ann Jaba established that early in the evening of March 17, the four accused went to Jaba's house to invite him to a drinking spree. These prosecution witnesses thus refuted the claim of appellant that he had gone out to ice some fish on the night of the murder. Second Issue: Conspiracy Appellant argues that conspiracy between him and the other three accused was not sufficiently proven, because his act of holding the victim was separate from the stabs perpetrated by the three other accused. Appellant's argument is unacceptable. "Conspiracy may be inferred from the acts of the accused before, during, and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest." 19 In the present case, the acts of the four accused demonstrate that there was conspiracy among them. The victim, while being held by Glenn Lotoc, was stabbed by Joel Duran. Afterwards, he was stabbed again by Julito Golong. If the appellant's act of holding the victim was indeed separate from the stabbing, then his natural reaction should have been to immediately let go of the deceased and flee the area as soon as the first stab was inflicted. Instead, he continued restraining the victim, thus enabling Jolito Golong to complete his attack. Crime and Punishment We agree with the trial court that the killing was qualified by treachery. There is treachery when one commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution, without risk to oneself arising from the defense which the offended party might make. 20 In the present case, the appellant's act of holding the hands of the victim enabled the other conspirators to stab him repeatedly without risk to themselves. As correctly stated by the trial court, the prosecution failed to prove any other aggravating circumstance that would warrant the imposition of the death penalty. Evident premeditation, which was alleged in the Information, was not established. For this circumstance to be appreciated, the following elements must be proven as clearly as the killing itself: (1) the time when the offender determined to commit the crime, (2) an act manifestly indicating that he clung to his determination, and (3) a sufficient lapse of time between the determination and the execution to allow the offender time to reflect upon the consequences of the act. 21 None of these elements was proven. Abuse of superior strength, on the other hand, cannot be appreciated, for it is deemed absorbed by treachery. 22 Consistent with current jurisprudence, 23 we affirm the award of P50,000 as indemnity ex delicto. We disagree with the position of the solicitor general, based on People v. Victor, 24 that the 12

amount should be increased to P75,000. In that case, the Court held that "starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00." That ruling involving rape and imposing the death penalty cannot apply to the present case. WHEREFORE, the Decision of the Regional Trial Court is hereby AFFIRMED. Costs against appellant.1wphi1.nt SO ORDERED. Romero, Vitug and Gonzaga-Reyes, JJ., concur. Purisima, J., did not participate in the deliberations.

People versus Lotoc SYNOPSIS Relying on the testimony of one witness who claimed that he saw the stabbing of the deceased whose hands were being held behind his back by herein appellant at the time, the trial court convicted appellant of the crime of murder qualified by treachery. Here in question is the credibility of the prosecution witness and the finding of conspiracy. The assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, and they are generally binding and conclusive on the appellate court. Here, the sole witness clearly narrated how he saw the deceased being held by appellant and repeatedly stabbed by appellants companions. Indeed, the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of conviction, even in a charge of murder. Further, conspiracy is present because while being held by appellant, the deceased was stabbed twice. Appellant did not let go of the deceased but instead continued restraining the latter enabling his companions to complete the attack. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS OF TRIAL COURT, RESPECTED. The assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted. The defense has given us no convincing reason to overturn the trial courts ruling that Mabingnays testimony was credible. 2. ID.; ID.; TESTIMONY OF WITNESSES; WHEN SUFFICIENT TO SUSTAIN A CONVICTION. Mabingnay clearly narrated how he saw the victim being held by Glenn Lotoc and repeatedly stabbed by Joel Duran, Julito Golong and a certain Baul. Indeed, the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of conviction, even in a charge of murder. 3. ID.; ID.; WITNESSES; CREDIBILITY; NOT AFFECTED BY DELAY IN REPORTING THE CRIME. The alleged delay of four months in the filing of the criminal complaint was sufficiently explained by the victims mother, who testified that she became ill shortly after the death of her son. Likewise, Cecilio Mabingnay sufficiently explained his initial reluctance to report the incident to the policeman whom he saw near the scene of the crime and, later, to testify. He stated that he did not want to be involved in the case, and that it might affect his job as a mechanic which required him to go to other places. In countless cases, the Court has recognized the natural reticence of most people and their abhorrence to get involved in a criminal case. 4. ID.; ID.; ID.; ID.; NOT AFFECTED BY SENTIMENTS . Appellant argued that, the people laughed and ignored Mabingnay when he told them about the stabbing incident. This is a trivial circumstance that does not affect the substantial parts of Mabingnays testimony that 13

appellant participated in killing the victim. Court decisions are based on facts and reasoned arguments, not on surveys of popular sentiments. 5. ID.; ID.; PROOF OF GUILT; ACT OF HELPING THE VICTIM IS NOT AN INDICATION OF INNOCENCE. Appellant also anchors his innocence on his claim that he helped bring the victim to the hospital. Appellants contention is misplaced. His act, assuming it to be true, does not by itself prove his innocence, for it could have been motivated by feelings other than a genuine desire for the victim to recover. It was not enough to overturn the positive identification by the witness Cecilio Mabingnay, whose testimony was found by the trial court to be both truthful and reliable. 6. CRIMINAL LAW; CONSPIRACY; APPRECIATED. Conspiracy may be inferred from the acts of the accused before, during, and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest. In the present case, the acts of the four accused demonstrate that there was conspiracy among them. The victim, while being held by Glenn Lotoc, was stabbed by Joel Duran. Afterwards, he was stabbed again by Julito Golong. If the appellants act of holding the victim was indeed separate from the stabbing, then his natural reaction should have been to immediately let go of the deceased and flee the area as soon as the first stab was inflicted. Instead, he continued restraining the victim, thus enabling Julito Golong to complete his attack. 7. ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; APPRECIATED. There is treachery when one commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution, without risk to oneself arising from the defense which the offended party might make. In the present case, the appellants act of holding the hands of the victim enabled the other conspirators to stab him repeatedly without risk to themselves. 8. ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; ELEMENTS; NOT ESTABLISHED. Evident premeditation, which was alleged in the Information, was not established. For this circumstance to be appreciated, the following elements must be proven as clearly as the killing itself: (1) the time when the offender determined to commit the crims, (2) an act manifestly indicating that he clung to his determination, and (3) a sufficient lapse of time between the determination and the execution to allow the offender time to reflect upon the consequences of the act. None of these elements was proven. 9. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; ABSORBED IN TREACHERY. Abuse of superior strength, on the other hand, cannot be appreciated, for it is deemed absorbed by treachery. 10. ID.; MURDER; PROPER CIVIL INDEMNITY. Consistent with current jurisprudence, we affirm the award of P50,000 as indemnity ex delicto. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Public Attorneys Office for accused-appellant.

SECOND DIVISION

[G.R. No. 118311. February 19, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE ANTONIO, MANUEL ANTONIO, and ROMEO ANTONIO, accused. VICENTE ANTONIO and MANUEL ANTONIO, accused-appellants. 14

DECISION MENDOZA, J.: This is an appeal from the decision of the Regional Trial Court of Nueva Vizcaya, Branch 30, finding accused-appellants Vicente Antonio and Manuel Antonio, together with Romeo Antonio, guilty of murder in connection with the killing of Edgardo F. Hernandez on December 26, 1989 and sentencing them to suffer the penalty of reclusion perpetua and to pay the heirs of Hernandez damages and attorneys fees. The other accused, Romeo Antonio, was also convicted but he escaped before the promulgation of the sentence and has remained at large. The information in this case alleged That at around 8:00 oclock in the evening of December 26, 1989, at Sitio Alindayo, Almaguer North, Bambang, Nueva Viscaya, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with evident premeditation and abuse of superior strength and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon Edgardo F. Hernandez, inflicting upon him mortal wounds which directly caused his death, to the damage and prejudice of his heirs. The commission of the offense was attended by the aggravating circumstance of nighttime. CONTRARY TO LAW.[1] Named as accused in the information were Vicente Antonio, Romeo Antonio, Manuel Antonio, and T/Sgt. Wilfredo Bala, a member of the Philippine Army. However, as the prosecution failed to secure Presidential waiver of military jurisdiction over T/Sgt. Bala, he was eventually dropped as accused before the Regional Trial Court. Three witnesses for the prosecution claimed to have seen the killing. The first was Zacarias Hernandez, who testified that at around 8 oclock in the evening of December 26, 1989, in Almaguer North, Bambang, Nueva Vizcaya, while on his way home from a birthday party, he met the victim, Edgardo Hernandez. After stopping by a store to buy cigarettes, he and Edgardo proceeded home. After a while, Zacarias said that he heard a gunshot and when he looked around to determine where it came from, he saw T/Sgt. Wilfredo Bala, with a rifle pointed at them, who cursed them saying, vulva of your mother. Frightened, Zacarias said he ran to his brothers house, for which reason Vicente, Manuel, and Romeo pelted him with stones, one of which hit him on the head.[2] The second witness was Rosalinda Reyes, who was in Zacarias house at the time of the incident. She heard the gunshot[3] and ran towards the direction of the sound. She saw accused-appellant Manuel and accused Romeo take turns in boxing and kicking the victim while accused-appellant Vicente Antonio was strangling the latter. [4] She heard the victim shouting in Ilocano, I will not fight you, Manong Enteng, referring to accused-appellant Vicente Antonio, [5] but all three men did not relent. She wanted to help him but Sgt. Bala pointed his rifle at her. [6] Rosalinda said she later learned that Edgardo had died that same evening.[7] The third witness was Feliciana Napao, also a resident of Almaguer North. She said that she went outside her house because she heard a gunshot. [8] She claimed she heard another shot and Edgardo Hernandez saying, I will not fight you Manong Enteng, Romeo and Manuel Antonio.[9] Feliciana said her daughter, Rosalinda Reyes, ran towards Edgardo, who asked her to help him. Antonio Lucas, a police officer at Bambang, Nueva Vizcaya, testified that he and other members of the Philippine National Police found the victim lifeless on the ground some 15 meters away from an electric post near the place where the mauling was committed. [10] He also noticed 3 pairs of sandals and 1 sandal (without its pair) near the scene of the crime.[11] The death certificate prepared by the Municipal Health Office of Bambang gave asphyxia due to strangulation and suffocation as the victims cause of death.[12] Accused-appellant Vicente Antonio claimed he acted in self-defense. He said that, on the night in question, he was on his way to irrigate his ricefield when he met the victim and Zacarias 15

Hernandez, who blocked his way.[13] Vicente told them, I think you are under the influence of liquor, to which statement the two replied, Even if we are under the influence of liquor, do you have any complain[t]?[14] Vicente demanded to know, Why are you so arrogant?[15] Thereafter, according to accused-appellant, Edgardo tried to hit him with a bolo, but he was able to parry the blow with his shovel. As the victim tried to charge him, Vicente tried to hit him with the shovel but missed. Edgardo then jumped to the ricefield.[16] According to accused-appellant, Zacarias attempted to pick up a stone but when Zacarias saw he had a shovel, he ran away. [17] Vicente picked up some stones and hurled them at Zacarias, although he did not actually see which part of the latters body was hit. [18] Just then, according to accused-appellant, Edgardo tried to strike him with a wooden club, but Edgardo missed him. As he turned to Edgardo, shovel in hand, Edgardo stepped back pleading, I will not fight you Manong.[19] According to accused-appellant, he, therefore, ordered Edgardo to drop the wooden club to the ground and to raise his arms so that he could frisk him.[20] But, accused-appellant claimed, as he was about to do so, the victim pounced on him and so they wrestled. Edgardo tried to pick up the wooden club but accused-appellant tackled him and succeeded in getting the club. As Edgardo embraced him, accused-appellant clubbed him. Accused-appellant claimed that the victim grabbed his genitals causing him to loosen his grip on the club.[21] As the victim bit accused-appellants fingers, he plastered the victims mouth and nose with mud.[22] Then accused-appellant said he heard something in the victims throat break and he thought to himself, I think, I have really killed someone.[23] Accused-appellant Manuel Antonio interposed alibi. He claimed that he was at home in the evening of December 26, 1989, and that he had no part in the killing of Edgardo Hernandez. After trial, the lower court found accused-appellants guilty. The dispositive portion of its decision, dated August 3, 1994, reads: WHEREFORE, finding the accused, VICENTE, ROMEO and MANUEL, all surnamed ANTONIO guilty beyond reasonable doubt of the crime of Murder, they are hereby sentenced to suffer the penalty of RECLUSION PERPETUA with all the accessories imposed by law and to indemnify the heirs of the deceased jointly and severally the sum of P50,000.00 as actual damages; P20,000.00 as moral damages; P10,000.00 as attorneys fees and to pay costs. The accused, VICENTE ANTONIO, being a detention prisoner and having signed the agreement required of detention prisoners under Art. 29 of the Revised Penal Code as amended by R.A. 6127, is credited with the whole period of his preventive suspension in the service of his sentence. SO ORDERED.[24] Hence, this appeal by Vicente Antonio and Manuel Antonio. Accused-appellants contend that: I. THE LOWER COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF ZACARIAS HERNANDEZ, FELICIANA NAPAO AND DAUGHTER ROSALINDA HERNANDEZ; THE LOWER COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE THREE ACCUSED-APPELLANTS IN CAUSING THE VICTIMS DEATH BY STRANGULATION; THE LOWER COURT ERRED IN FINDING THAT THERE WAS TAKING ADVANTAGE OF SUPERIOR STRENGTH BY THE ACCUSEDAPPELLANTS TO QUALIFY THE CRIME TO MURDER; THE LOWER COURT ERRED IN NOT ACQUITTING VICENTE ANTONIO ON THE GROUND OF SELF-DEFENSE; THE LOWER COURT ERRED IN CONVICTING THE OTHER TWO APPELLANTS, MANUEL AND ROMEO ANTONIO OF THE CRIME OF MURDER ON THE ERRONEOUS FINDING THAT THEY CONSPIRED WITH CO-ACCUSED VICENTE ANTONIO IN CAUSING THE VICTIMS DEATH BY STRANGULATION; 16

II.

III.

IV. V.

VI.

THE LOWER COURT ERRED IN CONVICTING APPELLANTS MANUEL AND ROMEO ANTONIO. AS TO THEM, THERE IS ABSENT THAT QUANTUM OF PROOF NECESSARY OR SUFFICIENT TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE; THE LOWER COURT ERRED IN FAILING TO APPRECIATE THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF APPELLANT VICENTE ANTONIO; ASSUMING WITHOUT ADMITTING THAT APPELLANTS MANUEL AND ROMEO ANTONIO ALSO BOXED AND KICKED THE VICTIM WHILE APPELLANT VICENTE ANTONIO WAS STRANGULATING THE VICTIM ON THE GROUND, THE LOWER COURT ERRED IN NOT HOLDING THEM RESPONSIBLE ONLY FOR THEIR INDIVIDUAL ACT OR PARTICIPATION (BOXING AND KICKING).

VII.

VIII.

These contentions are without merit. First. Accused-appellants contend that prosecution witness Zacarias did not say (1) whether T/Sgt. Bala alone or all of the accused-appellants attacked the victim; (2) whether several stones were thrown at him or only one stone hit him while he was running away from them; (3) whether T/Sgt. Bala (who was ten meters away from accused-appellants) actually joined accused-appellants in mauling the victim. They further contend that Zacarias could not remember whether he left the victim behind with T/Sgt. Bala when he ran, or the victim himself ran to the ricefield. The trial court correctly found that Zacarias Hernandez positively identified accusedappellants, accused Romeo Antonio, and T/Sgt. Bala as the persons who attacked him and the victim on the night of December 26, 1989. In a forthright manner, this witness told the court: Q: A: Q: A: Q: A: Q: Do you know who stoned you? Yes, sir. Who threw stones to you? Those three persons (Witness pointing to those 3 persons whom he tapped their shoulders [a] while ago). How do you know that these 3 persons whom you just mentioned or just identified [a] while ago were the one[s] who threw stones at you? I recognized their faces because there was a light, sir. When you ran away towards the house of your brother, were there other persons or person left with Edgar Hernandez aside from Wily Bala and the 3 persons whom you just identified? No more, sir. Are you telling the Court that it was only these people, these 3 people, and Willy Bala were left behind with Edgar Hernandez? Yes, sir.[25]

A: Q: A:

It is true that Zacarias was uncertain whether one or several stones were thrown at him and whether accused-appellants were actually joined by T/Sgt. Bala later on in attacking Edgardo Hernandez. This fact does not detract from his testimony positively identifying accusedappellants as their assailants, which is corroborated by the testimonies of the other prosecution witnesses, Rosalinda Reyes and Feliciana Napao. As the Solicitor General says: . . . Fear gripped his person when Sgt. Bala aimed a gun at them and when appellants started pelting them with stones causing him to run for his life. As a result, he did not see every detail that the defense wanted him to narrate. A confused and agitated mind cannot be expected to pay attention to every detail that was happening. Saving ones life is [a] primal human instinct that takes precedence over all other concerns. But suffice to reiterate here that in his testimony, Hernandez is clear and positive in pointing to appellants and Sgt. Bala as the persons who attacked them. 17

The fact that appellants were ten (10) meters away from Sgt. Bala at the start does not negate the fact that they were together in attacking the victim later on. Ten (10) meters is not a great distance to preclude appellants participation in the murder of the victim, considering that it was established that the victim ran to the ricefield while being pursued by appellants. The testimony made by Hernandez that the victim was left behind when he ran away is not inconsistent with the established fact that the victim later ran towards the ricefields...[26] Nor did the trial court err in giving credence to the testimonies of Rosalinda Reyes and Feliciana Napao. That the victim was a boarder of Napaos son, Rodrigo Reyes, and the owner of the land being tilled by the latter are not sufficient reasons not to believe this witness. Time and again we have said that mere relationship of a witness to a party, without more, cannot impair the witness credibility.[27] No reason or motive has been shown for us to doubt the truthfulness of Rosalinda Reyes and Feliciana Napao. They positively identified accused-appellants, together with T/Sgt. Bala, as the perpetrators of the crime. Like Zacarias Hernandez, they pointed to accused-appellants as the persons who attacked Edgardo Hernandez and they were positive they were the assailants because they know them, they being their neighbors. Rosalinda Reyes testified: Q A Q A Q A Q. How do you know that the persons whom you mentioned maltreated Edgar Hernandez? Yes, because they were the ones whom I saw. sir. Why were you able to see the maltreatment being done to Edgar Hernandez, where were you when the maltreating was taking place? When I heard the gun shot I went outside and I went near them, sir. .... And you said that Edgar Hernandez is being maltreated by Manuel Antonio, Vicente Antonio, Romeo Antonio and Sgt. Bala is that correct? Yes, sir. Who among the four did you see maltreating Edgar Hernandez? Three among the four? A Q A Q A Q A Q A Q A Romeo Antonio, Vicente Antonio and Manuel Antonio, sir. The incident happened at night time isnt it? Yes, sir. How were you able to identify those persons maltreating Edgar Hernandez when it was night time? Because there was a light on the post at that time sir. .... You said that Edgard Hernandez was maltreated by Manuel Antonio, Vicente Antonio and Romeo Antonio, if you will see these persons will you be able to identify them? Yes, sir. Will you kindly look around the court premises and find out if there are those persons whom you mentioned and try to point to them if they are present? They are in Court, sir. Will [you] kindly point to them? The three of them, sir. You state the attire of those persons pointed out. 18

COURT:

COURT:

That one wearing a stripe[d] T-Shirt is Manuel Antonio, the one wearing a white T-shirt is Vicente Antonio and the third person wearing a stripe[d] polo is Romeo Antonio, sir. You now connect the identity of those persons.

COURT: FISCAL: May I pray that the persons pointed to by the prosecution witness stand and state their names. COURT: Ask their names. COURT INTERPRETER: The person described by the witness to be wearing a stripe[d] T-shirt who when asked by the Court to identify himself state his name as Manuel Antonio, the same Manuel Antonio who is one of the accused. Same is true with the second person described by the witness whose attire is to be the same with Vicente Antonio and who when asked by the Court to identify himself state that he is Vicente Antonio same person who is one of the accused, and the third person is Romeo Antonio and who when asked by the Court identified himself as no other than Romeo Antonio who is the third accused in this case. [28] While Feliciana Napao stated: PRIVATE PROSECUTOR: Q A Q A Q A Q A Q A When you saw Edgar Hernandez lying down, did you see other persons near Edgar Hernandez? Those who were mauling him. Who were these persons whom you saw mauling Edgar Hernandez? VICENTE, ROMEO & MANUEL all surnamed Antonio. Do you know these persons, Manuel, Romeo and Vicente Antonio personally? Yes, sir. Why do you know these persons, Vicente, Romeo and Manuel Antonio? Because they are my neighbor[s]. You stated that they were mauling Edgar Hernandez, who, among these 3 persons was mauling Edgar Hernandez? The three (3) of them, sir.[29]

It has been held: . . . [I]f there is nothing in the record to show that the prosecution witnesses were moved by any improper motive to accuse falsely the appellants of so grave a crime as murder, then the findings of the trial court as to the credibility must be respected.[30] Absent any indication of a sinister scheme to prevaricate, the affirmative statements uttered by the Peoples witnesses showing accused-appellants culpability must be respected inasmuch as positive declarations subordinate disclaimers emanating from the defense.[31] Nor was there anything shown that would have impaired the power of observation of these witnesses. That there were bushes and trees near the electric post did not necessarily mean that the place was dark. There is no proof that because of these, identification of the protagonists was impossible. In the absence of evidence to this effect, the factual findings and conclusions of the trial court must be given great weight. In a number of cases, this Court generally accords the highest respect to the evaluation of the testimonies of eyewitnesses by the trial court. 19

Long settled in criminal jurisprudence is the rule that when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court. This rule is justified by the fact that the trial court is in a better position to decide the question. Having the advantage of directly observing witnesses, the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict.[32] Second. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. [33] Proof of a previous agreement to commit a felony is not necessary to establish conspiracy, it being sufficient that the acts of the accused, before, during, and after the commission of the felony, demonstrate its existence. In the case at bar, the overwhelming evidence is to the effect that accused-appellants ganged up on the victim. While Vicente strangled the victim,[34] Manuel and Romeo boxed and kicked him.[35] All the while, T/Sgt. Wilfredo Bala stood guard, rifle in hand, ready to shoot anyone who tried to come to the rescue of the victim. [36] Clearly, the acts of accused-appellants showed a unity of the criminal design to kill Edgardo Hernandez. Manuel cannot be held liable solely for his individual acts of boxing and kicking the victim without negating the existence of the conspiracy. The act of one is the act of all.[37] Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals.[38] Third. As already stated, Vicente Antonio claims that he acted in self-defense. The claim has no merit. Vicente Antonio, together with accused-appellant Manuel, was the aggressor in the case at bar. Absent an unlawful aggression, no self-defense may be successfully pleaded, whether complete or incomplete. On the other hand, Manuel interposes the defense of alibi. This defense cannot prevail over the positive identification of accused-appellant by the prosecution witnesses.[39] Moreover, accused-appellant has not shown that his house, in which he was allegedly sleeping at the time of the incident, was so far away from the place where the crime was committed as to make it impossible for him to be physically present at the place where and time when the crime was committed. The fact remains that his home was in the same barangay (Almaguer North). The essential requisites in order that the defense of alibi may be appreciated are: (a) to prove his presence at another place at the time of the perpetration of the offense and (b) to demonstrate that it would thus be physically impossible for him to be at the scene of the crime. The rule is likewise settled that for the defense of alibi to prosper, the requirement of time and place must be strictly met.[40] Fourth. The crime, as correctly found by the trial court, is murder. While it appears that there was no evident premeditation, there being no evidence of the planning and preparation to kill Edgardo Hernandez,[41] we find that the killing was qualified by abuse of superior strength because the attackers cooperated in such a way as to secure advantage of their combined strength to perpetrate the crime with impunity.[42] As the trial court found: . . . There were three of them, all able-bodied against one, all three accused doing their thing with impunity against the victim because their safety is guaranteed by Sgt. Wily Bala pointing his gun at anyone who dares approach and extend assistance.[43] Accused-appellant Vicente Antonio contends that he should be given the benefit of the mitigating circumstance of voluntary surrender. The contention has no merit. This circumstance is considered if the following elements concur: (a) the offender has not been 20

actually arrested; (b) he surrenders himself to a person in authority; and, (c) the surrender is voluntary.[44] In the case at bar, it appears that on December 27, 1989, the police authorities went to the house of Sgt. Bala looking for accused-appellant Vicente Antonio and were told by Sgt. Bala that Vicente was inside the house although he was going to be surrendered to the authorities by Bala.[45] It would thus appear that accused-appellant was arrested before he could be surrendered. The mere intention to surrender is insufficient to claim the benefit of the mitigating circumstance of voluntary surrender. This case is similar to People v. Umadhay, in which this Court denied the claim of voluntary surrender of the accused: The record shows that after Cecilia Jaranilla had pinpointed appellants as the assailants to the police, the latter and the barangay captain went to appellants house to invite them for investigation. Appellants did not go to the police or to the barangay captain to surrender. As appellant Edgar himself admitted, he had the intention to surrender to the authorities at their house but such intention was never realized because the police arrested him and his brothers at their house. Such intention was therefore never implemented by appellant Edgars own volition.
[46]

WHEREFORE, the decision of the Regional Trial Court is hereby AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur. People versus Antonio SYNOPSIS Appellants, together with Romeo Antonio and T/Sgt. Bala, were charged with murder before the Regional Trial Court of Nueva Vizcaya in connection with the killing of Edgardo F. Hernandez on December 26, 1989. However, T/Sgt Bala was eventually dropped as accused, as the prosecution failed to secure Presidential waiver of military jurisdiction over him. Appellant Vicente Antonio claimed he acted in self-defense, while appellant Manuel Antonio interposed alibi. The prosecution presented three witnesses who claimed to have seen the killing. Witnesses Zacarias Hernandez, Rosalinda Reyes and Feliciana Napao positively identified the appellants, accused Romeo Antonio and T/Sgt. Bala as the persons who attacked the victim. The RTC, disregarding appellants defense, convicted appellants of the crime charged and sentenced them accordingly. Accused Romeo Antonio escaped before the promulgation of the sentence and had remained at large. Hence, this appeal. Appellants contended that the lower court erred in finding that there was conspiracy and taking advantage of superior strength by appellants. Moreover, appellants claimed that the lower court erred in failing to appreciate the mitigating circumstance of voluntary surrender in favor of appellant Vicente Antonio. The Supreme Court affirmed the decision of the trial court. No reason or motive had been shown to the Court to doubt the truthfulness of the testimonies of the prosecution witnesses. They were positive that the appellants were the assailants because they know them, they being their neighbors. As the issue of conspiracy, the Court found that the acts of appellants showed a unity of criminal design to kill the victim. Appellant Manuel cannot be held liable solely for his individual acts of boxing and kicking the victim without negating the existence of the conspiracy. Where conspiracy is established, the act of one is the act of all. Appellant Vicentes claim that he acted in self-defense was found to be without merit. He, together with appellant Manuel, was the aggressor. Absent an unlawful aggression, no self-defense may be successfully pleaded, whether complete or incomplete. The Court also found that the killing was qualified by abuse of superior strength because the attackers cooperated in such a way as to secure advantage of their combined strength to perpetrate the crime with impunity. The Court denied appellant Vicentes claim of voluntary surrender. He was arrested before he could be surrendered. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT IMPAIRED BY MERE RELATIONSHIP OF A WITNESS TO A PARTY-LITIGANT; ACCUSED POSITIVELY IDENTIFIED BY WITNESSES IN CASE AT BAR. - The trial court correctly found that Zacarias Hernandez positively identified accused-appellants, accused Romeo Antonio, and 21

T/Sgt. Bala as the persons who attacked him and the victim on the night of December 26, 1989. It is true that Zacarias was uncertain whether one or several stones were thrown at him and whether accused-appellants were actually joined by T/Sgt. Bala later on in attacking Edgardo Hernandez. This fact does not detract from his testimony positively identifying accused-appellants as their assailants, which is corroborated by the testimonies of the other prosecution witnesses, Rosalinda Reyes and Feliciana Napao. . . Nor did the trial court err in giving credence to the testimonies of Rosalinda Reyes and Feliciana Napao. That the victim was a boarder of Napao's son, Rodrigo Reyes, and the owner of the land being tilled by the latter are not sufficient reasons not to believe this witness. Time and again we have said that mere relationship of a witness to a party, without more, cannot impair the witness' credibility. No reason or motive has been shown for us to doubt the truthfulness of Rosalinda Reyes and Feliciana Napao. They positively identified accusedappellants, together with T/Sgt. Bala, as the perpetrators of the crime. Like Zacarias Hernandez, they pointed to accused-appellants as the persons who attacked Edgardo Hernandez and they were positive they were the assailants because they know them, they being their neighbors. 2. ID.; ID.; ID.; FACTUAL FINDINGS AND CONCLUSIONS OF THE TRIAL COURT, GIVEN GREAT WEIGHT. - Nor was there anything shown that would have impaired the power of observation of these witnesses. That there were bushes and trees near the electric post did not necessarily mean that the place was dark. There is no proof that because of these, identification of the protagonists was impossible. In the absence of evidence to this effect, the factual findings and conclusions of the trial court must be given great weight. In a number of cases, this Court generally accords the highest respect to the evaluation of the testimonies of eyewitnesses by the trial court. 3. ID.; ID.; CONSPIRACY; WHEN IT EXISTS; PROOF OF PREVIOUS AGREEMENT TO COMMIT A FELONY, NOT NECESSARY. - Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of a previous agreement to commit a felony is not necessary to establish conspiracy, it being sufficient that the acts of the accused, before, during, and after the commission of the felony, demonstrate its existence. 4. ID.; ID.; ID.; PRESENT IN CASE AT BAR. - In the case at bar, the overwhelming evidence is to the effect that accused-appellants ganged up on the victim. While Vicente strangled the victim, Manuel and Romeo boxed and kicked him. All the while, T/Sgt. Wilfredo Bala stood guard, rifle in hand, ready to shoot anyone who tried to come to the rescue of the victim. Clearly, the acts of accused-appellants showed a unity of the criminal design to kill Edgardo Hernandez. Manuel cannot be held liable solely for his individual acts of boxing and kicking the victim without negating the existence of the conspiracy. The act of one is the act of all. Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals. 5. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED BY THE WITNESSES. - Manuel interposes the defense of alibi. This defense cannot prevail over the positive identification of accused-appellant by the prosecution witnesses. Moreover, accused-appellant has not shown that his house, in which he was allegedly sleeping at the time of the incident, was so far away from the place where the crime was committed as to make it impossible for him to be physically present at the place where and time when the crime was committed. The fact remains that his home was in the same barangay (Almaguer North). 6. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; MAY NOT BE SUCCESSFULLY PLEADED IN THE ABSENCE OF UNLAWFUL AGGRESSION. - Vicente Antonio claims that he acted in self-defense. The claim has no merit. Vicente Antonio, together with accused-appellant Manuel, was the aggressor in the case at bar. Absent an unlawful aggression, no self-defense may be successfully pleaded, whether complete or incomplete. 7. ID.; AGGRAVATING CIRCUMSTANCE; ABUSE OF SUPERIOR STRENGTH; QUALIFIES THE KILLING TO MURDER IN CASE AT BAR. - The crime, as correctly found by the trial court, is murder. While it appears that there was no evident premeditation, there being no evidence of the planning and preparation to kill Edgardo Hernandez, we find that the killing was qualified by abuse of superior strength because the attackers cooperated in such a 22

way as to secure advantage of their combined strength to perpetrate the crime with impunity. 8. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; ELEMENTS THEREOF; NOT APPRECIATED IN CASE AT BAR.- Accused-appellant Vicente Antonio contends that he should be given the benefit of the mitigating circumstance of voluntary surrender. The contention has no merit. This circumstance is considered if the following elements concur: (a) the offender has not been actually arrested; (b) he surrenders himself to a person in authority; and, (c) the surrender is voluntary. In the case at bar, it appears that on December 27, 1989, the police authorities went to the house of Sgt. Bala looking for accused-appellant Vicente Antonio and were told by Sgt. Bala that Vicente was inside the house although he was going to be surrendered to the authorities by Bala. It would thus appear that accused-appellant was arrested before he could be surrendered. The mere intention to surrender is insufficient to claim the benefit of the mitigating circumstance of voluntary surrender. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Basilio R. Rupisan for accused-appellants.

SECOND DIVISION

[G.R. No. 118423. June 16, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESARIO SANCHEZ @ SATUR, REMEGIO JOSE @ OSING, RODRIGO ABAYAN @ LUDRING, FEDERICO ROBIOS @ RICO, GAUDENCIO CONTAWE @ GODING, accused-appellants. DECISION QUISUMBING, J.: This is an appeal from the Decision [1] dated September 29, 1994, of the Regional Trial Court of Villasis, Pangasinan, Branch 50, in Criminal Case No. V-0092 finding appellants Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robios, and Gaudencio Contawe guilty of the crime of Murder and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the heirs of the victim Hilario Miranda jointly and severally, the sum of P50,000.00 as indemnity, the amount of P38,000.00 as actual damages, the amount of 23

P100,000.00 as moral damages, and attorneys fees (for the private prosecutor) in the amount of P10,000.00. The five (5) appellants, Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robios, and Gaudencio Contawe, are all farmers and residents of Villasis, Pangasinan. They are townmates of the victim, Hilario Miranda, who was the incumbent barangay captain at the time of the stabbing incident. The prosecutions evidence reveals that on November 23, 1986, Hilario Miranda, together with Rene Alegre, Jessie Pajimola, Romulo Marquez, Freddie Miranda, Eladio Miranda and several others, went to his fishpond to celebrate the birthday of his daughter, Grace. At around 5:00 oclock in the afternoon, Hilario Miranda and his companions headed home to Barangay Villanueva, Bautista, Pangasinan.[2] When the group reached the provincial road at Barangay Villanueva, appellant Sanchez blocked the middle of the road[3] while the other appellants Jose, Contawe, Abayan, Robios, and Callo were some twenty (20) to twenty-five (25) meters behind him.[4] Contawe, Robios, and Callo were holding their bolos; Jose had his bolo sheathed on his shoulder, while Abayan was holding two (2) fist-size stones. [5] Appellant Sanchez confronted Hilario Miranda about his accusation that Sanchez was stealing ipil-ipil wood and fish. [6] Thereafter, an argument ensued. Prosecution witness Marquez testified on said incident as follows:[7] CROSS-EXAMINATION OF PROSECUTION WITNESS ROMULO T. MARQUEZ BY ATTY. BENJAMIN RAFAEL Q: A: What was the argument about? As far as I could recall, the barangay captain have (sic) known that Cesario Sanchez was stealing firewoods and fish during nighttime and when Cesario Sanchez met the barangay captain what I heard was that, in Ilocano: Apay ngay, Capitan ta pabpabasolennak nga agtaktakaw ti ipil-ipil yo ken lames? (Why is it, Captain, that you are blaming me of stealing ipil-ipil firewood and fish?) Were those the first words uttered by Cesario Sanchez when he met the Barangay Captain? Yes, Your Honor. What was the reaction of the barangay captain when Cesario Sanchez said those words? There was an immediate argument, Your Honor. What did he (victim) say? The barangay captain answered, Agpaypayso met nga agtaktakaw ka ti ipil-ipil ken agtiltiliw ka ti lames. (It is also true that you are stealing ipil-ipil woods and you are catching fish.)

Q: A: Q: A: Q: A:

Renato Alegre, Mirandas son-in-law, tried to pacify Miranda by saying that is enough, Manong.[8] As the argument between Sanchez and Miranda heated up, Sanchez moved back towards his companions Jose, Callo, Robios, Contawe and Abayan, who then encircled the group of the victim in such a way that nobody could move. [9] Freddie Miranda, the victims son, asked Abayan who was then holding two stones[10] [w]hy are you stoning us?.[11] Abayan replied, You from the east are boastful.[12] Jose went near one of the victims companions (Jessie Pajimola) and told her in the Ilocano dialect Saan kayo nga makiramraman (Dont interfere).[13] Jose passed by the back of Hilario Miranda and nodded at Sanchez. Upon seeing the signal, appellant Sanchez pulled a knife from the sleeve in his left arm [14] and stabbed the victim in the stomach.[15]Freddie Miranda, the son of the victim, tried to chase Sanchez but he (Freddie) was blocked by appellant Jose who was holding his bolo in a striking position and who told him Saan mo nga itultuloy ta sica ti sumaruno (Dont continue or else you will be the next).[16] The other appellants were also holding their bolos in a striking position. [17] Hence, Freddie had no choice but to return to his father who was badly hurt but valiantly trying to remain standing. Freddie pulled out the weapon from his fathers stomach. The weapon was later turned over to Pfc. Rodolfo Tagulao, Jr., member of the Integrated National Police of Bautista, Pangasinan.[18] Freddie Miranda and Renato Alegre hailed a passing tricycle and brought the victim to the hospital. Unfortunately, the victim died along the way. 24

On September 1, 1987, 3rd Assistant Provincial Fiscal Jaime V. Veniegas charged Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robios, Eugenio Contawe, and Basilio Callo with the crime of Murder under the following Information:[19] The undersigned hereby accuses REMEGIO JOSE @ GODING, RODRIGO ABAYAN @ LUDRING, FEDERICO ROBIOS @ RICO, GAUDENCIO CONTAWE @ GODING of the crime of MURDER committed as follows: That on or about the 23rd day of November 1986, in the afternoon, at Barangay Villanueva, Municipality of Bautista, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with CESARIO SANCHEZ @ SATUR and BASILIO CALLO who are still at-large, conspiring, confederating and mutually helping one another, did then and there with intent to kill and with treachery and evident premeditation, wilfully, unlawfully and feloniously attack, assault and strike HILARIO MIRANDA thereby inflicting upon him the following wounds: xxx - Stabbed wound, about 3.5 cm., bleeding, midaxillary line, left, subcostal border, 19 cm. deep. xxx which wounds directly caused the death of said Hilario Miranda. Contrary to Art. 248 of the Revised Penal Code. Villasis, Pangasinan, September 1, 1987. Of the six (6) accused, only four (4) were initially arrested and brought to trial, namely Rodrigo Abayan, Gaudencio Contawe, Federico Robios, and Remegio Jose. Accused Basilio Callo eluded arrest and remains at-large up to present. Before promulgation of sentence, appellant Cesario Sanchez was arrested on March 26, 1991. The trial court suspended promulgation of sentence pending trial of appellant Cesario Sanchez. Upon arraignment, the four (4) appellants Abayan, Contawe, Robios and Jose, duly assisted by respective counsels, entered a plea of not guilty. Appellant Sanchez later entered a plea of not guilty. During trial, the prosecution presented six (6) witnesses: (1) Dr. Nestor C. Pascual, Municipal Health Officer of Bautista, Pangasinan; (2) Cpl. Abdiel Agustin of the INP of Bautista, Pangasinan; (3) Freddie C. Miranda, the victims son; (4) Romulo T. Marquez; (5) Jessie C. Pajimola; and (6) Mrs. Rufina C. Miranda, the victims widow. Dr. Nestor C. Pascual, the Municipal Health Officer of Bautista, Pangasinan, testified that he performed a post-mortem examination on the cadaver of Hilario Miranda and found the cause of death to be cardiorespiratory failure due to hypovolemic shock resulting from the bleeding wound due to the stab wound.[20] Cpl. Abdiel Agustin testified that he conducted the investigation of the death of Hilario Miranda upon a report given by OIC Police Corporal Amado Santiago. [21] He identified the weapon (Exhibit F) which was submitted on the night of November 23, 1986 to Patrolman Rodolfo Tagulao Jr., another member of the INP-Bautista, Pangasinan. He testified that he attempted to contact the suspects (appellants Sanchez, Jose, Contawe, Abayan, Robios and Callo), but despite diligent efforts, he could not locate them. He left word with their respective wives to come to the office (police station) for their statements, but they did not report to him. An informer later told him that appellants were all in hiding.[22] Romulo T. Marquez, one of the companions of the victim, testified that appellant Sanchez confronted the victim regarding the theft of some wood and fish, and thereafter, a heated argument ensued. Appellants surrounded their group and Sanchez stabbed the victim in the stomach. He drew a sketch of the relative positions of the assailants and the victim. [23] His testimony was corroborated by the testimonies of Freddie Miranda and Jessie Pajimola. 25

Rufina C. Miranda testified that her husband was earning an income of P100,000.00 per annum derived from the fishpond, agricultural land holdings and employment with National Irrigation Authority (NIA), and that she spent a total of P38,000.00 as funeral expenses.[24] On the other hand, the defense presented Alberto Parcasio and Pedro Soriano as common witnesses. The four (4) appellants, Abayan, Robios, Contawe and Jose testified on their behalf, while appellant Sanchez likewise took the stand on his behalf. Alberto Parcasio testified that while he was taking care of his granddaughter in his yard (some 15 meters from the incident), he saw Sanchez stab the victim and then run away. He claimed that he did not see appellants Abayan, Robios and Contawe within the vicinity of the crime but only saw them after the victim was already loaded in the tricycle. He only saw appellant Jose half an hour after the incident.[25] Pedro Soriano, a bystander, testified that while he was in the yard of appellant Contawe, he saw Hilario Miranda assault Sanchez after which Sanchez stabbed the victim. Soriano then entered his house because he became afraid of what was happening.[26] Appellants Abayan, Robios and Contawe, testifying on their behalf, claimed that they were mere bystanders in the affray and that they were included in the complaint for the sole reason that they belonged to the Liberal Party, while the victim belonged to the rival Nationalista Party.
[27]

Appellant Abayan testified that while he was on the provincial road on the way to get his cow, from a distance of some 30 meters away, he saw Sanchez stab the victim on the stomach and then run away. He saw Freddie Miranda chase Sanchez while some people called for a tricycle. He denied holding two stones and attempting to throw them at the victim. He denied surrounding the group of the victim and claimed that he never saw Romulo T. Marquez in the vicinity of the crime. He further denied going into hiding after the incident.[28] Appellant Robios testified that while he was pumping water in front of his house some thirty (30) meters from the incident, he saw Sanchez stab the victim in the stomach. He was afraid to get near because Freddie Miranda was holding the knife and might run amuck. He claims he was included in the complaint because he failed to support the victims candidacy during the previous elections.[29] Appellant Contawe testified he was with Pedro Soriano, watching over his grandchildren in his house some fifteen (15) meters away from the incident when he saw Sanchez stab the victim in the stomach.[30] Then he saw Sanchez run to his (Sanchez) house some twenty (20) meters away.[31] He claimed that he was included in the complaint because he refused to support the candidacy of the victim in the previous elections.[32] Appellant Jose testified that while he was cooking in the kitchen, he heard a womans voice saying Ay Natayen (Somebody died). He went out and saw the victim being held by the latters son-in-law. He asked Freddie Miranda what happened, and the latter told him to get a ride. After the victim was loaded on the tricycle, he then returned to his cooking. He denied the testimonies of Freddie Miranda, Jessie Pajimola and Romulo Marquez that he was one of those who surrounded the victim and his companions and that he was the one who gave the signal to Sanchez to stab the victim.[33] The prosecution presented Cpl. Rodolfo Tagulao of the INP-Bautista, Pangasinan, and Romulo T. Marquez as rebuttal witnesses. Cpl. Rodolfo Tagulao, warrant officer of the INP-Bautista, Pangasinan, testified that he attempted to serve the warrant of arrest on appellants by going to their respective residences four times but he failed to apprehend any of the appellants. When an alias warrant of arrest was issued by the Regional Trial Court, appellants appeared before him and informed him that they had already posted their respective bail bonds.[34] On May 4, 1989, the prosecution filed its Formal Offer of Evidence which was duly admitted by the court. On March 26, 1991, appellant Sanchez was arrested by the police. Trial as to him commenced, and he called prosecution witness Dr. Nestor Pascual and defense witness Alberto Parcasio as his witnesses, who reiterated their earlier testimonies. Appellant Sanchez, testifying on his behalf, admitted that he stabbed Miranda, but claimed that it was in selfdefense. He testified that while he was on his way to Obillo to thresh palay, he was met by the 26

victim and his companions who were drunk. The victim commanded his companions to maul him because he (Sanchez) voted for Cory (Aquino) in the last presidential elections. He tried to evade them but somebody met him and the victims group surrounded him. [35] The victim boxed him three times and ordered his (the victims) son to get the gun. It was then that he turned around and stabbed the victim with his bolo.[36]He then ran away and spent the night in the ricefields.[37] He claimed that he did not see any of his co-accused at the locus criminis.[38] On September 29, 1994, the trial court rendered a decision [39] finding all appellants, except Callo who remains at-large, guilty of Murder. The dispositive portion of the decision states: WHEREFORE, this Court finds the accused Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robios and Eugenio Contawe a.k.a. Gaudencio guilty beyond reasonable doubt of the crime of murder and hereby sentences each of the said accused to suffer the penalty of imprisonment of reclusion perpetua and to pay to the heirs of Hilario Miranda, jointly and severally, the sum of P50,000.00 as indemnity for the life of said Hilario Miranda; the amount of P38,800.00 as actual damages; the amount of P100,000.00 as moral damages, and attorneys fees (for the private prosecutor) in the amount of P10,000.00. Costs against all the accused jointly and severally. SO ORDERED. Hence, appellants now interpose their respective appeals. Appellants Jose and Contawe assign the following errors: I. THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED CONSPIRED IN CAUSING THE DEATH OF HILARIO MIRANDA. II. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF MURDER. III. THE LOWER COURT ERRED IN GIVING CREDENCE TO TESTIMONY OF THE PROSECUTION WITNESS, ROMULO MARQUEZ, FREDDIE MIRANDA AND JESSIE PAJENIDA (sic). Appellants Abayan and Robios claim that I. THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES OF THE PROSECUTION WITNESSES AS THESE WERE NOT OFFERED IN THE MANNER REQUIRED BY THE RULES. II. THE TRIAL COURT ERRED IN CONVICTING APPELLANTS BASED ON A FINDING OF CONSPIRACY. III. THE TRIAL COURT ERRED IN FINDING AND DECLARING THAT THE APPELLANTS ACTED IN UNITY TO ACHIEVE A COMMON DESIGN TO ELIMINATE AND KILL HILARIO MIRANDA. IV.

27

THE TRIAL COURT ERRED IN NOT ACQUITTING THE APPELLANTS RODRIGO ABAYAN AND FEDERICO ROBIOS OF THE CRIME OF MURDER. For his part, appellant Sanchez assigns the following errors: I. THE LOWER COURT ERRED IN NOT APPRECIATING THE ACCUSED (sic) EVIDENCE SHOWING SELF-DEFENSE. II. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED CESARIO SANCHEZ AND IMPOSING UPON HIM THE PENALTY OF RECLUSION PERPETUA. In sum, appellants raise the following pertinent issues: first, whether or not the trial court erred in giving credence to the testimony of prosecution witnesses Romulo Marquez, Freddie Miranda and Jessie Pajimola. Second, even assuming that these witnesses are credible, whether or not the trial court erred in considering their testimonies as these were not offered in the manner required by the Rules of Court. Third, whether or not the lower court erred in finding that conspiracy existed among accused-appellants. Fourth, whether or not appellant Cesario Sanchez acted in self-defense. Appellants Jose and Contawe contend that the uniformity of the testimonies of the prosecution witnesses Romulo T. Marquez and Freddie C. Miranda indicate that their testimonies were coached and should be disbelieved. On the contrary, however, we find the testimonies of these witnesses straightforward, credible, and replete with details of the commission of the crime, as shown in several sketches of the respective positions of the assailants at the time of the incident. [40] These witnesses never wavered in the face of rigorous cross-examination by the respective counsels of the appellants. Furthermore, the material points in their testimonies, particularly the identities of the assailants, were corroborated by the testimony of prosecution witness Jessie Pajimola. Appellants Jose and Contawe contend that since the judge who rendered the decision was not the one who heard the testimonies of the witnesses, said judge was not in a position to observe the demeanor of the witnesses and their manner of testifying and therefore, not in a position to gauge their credibility. Appellants then proceeded to invoke our ruling in People v. Bautista, 236 SCRA 102, 106-107 (1994), wherein we held that: It is obvious that these are factual conclusions of the trial court which are ordinarily respected on appeal owing to the position of the trial judge who personally saw and heard the witnesses testify. This rule, however, need not apply in its full rigor to the case at bench, where two judges conducted the trial and the decision was eventually written by a third. However, appellants conveniently overlooked the succeeding paragraph of the same decision wherein we affirmed the factual findings of the lower court, stating thus: Still, Judge Dizon-Capulong, while recognizing this handicap, concluded that the trial was properly conducted by her predecessors and that the prosecution was able to sufficiently establish the culpability of the accused-appellant. Indeed, while the incumbent judge of the trial court did not hear Romulo Marquez, Freddie Miranda and Jessie Pajimola testify, there is nothing in their testimonies as recorded in the transcript of stenographic notes which would render their testimonies suspicious and unbelievable. On the other hand, we find their testimonies to be consistent with, and corroborate, each other in respect of the main incident and the identities of all the accused. A thorough and careful review of the entire records of the case has not convinced us to depart from the factual findings of the lower court. Further, the defenses of appellants consist of denial and alibi. The prevailing rule is that alibi, being the weakest of all defenses as it is easy to fabricate and difficult to disprove, cannot prevail over and is worthless in the face of the positive identification by the accused. [41] The established doctrine requires the accused to prove not only that he was at some other place at 28

the time of the commission of the crime, but that it was physically impossible for him to have been present at the locus criminis or its immediate vicinity.[42] This, appellants miserably failed to do. In fact, all of them admitted to being within a thirty-meter radius from the locus criminiswhen the killing occurred, hence it was not physically impossible for them to have participated in the commission of the crime, and thereafter dispersed in order to avoid any further entanglement in the case. Appellants Abayan and Robios further contend that the trial court should have disregarded the testimonies of the prosecution witnesses since these were not offered at the time when the witnesses were called to testify, as required by Section 34 of Rule 132 of the Revised Rules of Court which provides: SEC. 34. Offer of evidence. -The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Section 35 of the same Rule further requires that the offer must be made at the time the witness is called to testify. Thus SEC. 35. When to make offer. -As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a partys testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. Appellants contend that the testimonies of the prosecution witnesses were not formally offered as required by the Rules, and therefore should not have been considered by the trial court. Indeed, a perusal of the transcript of stenographic notes will show that no formal offer of testimonial evidence was made prior to or after the testimonies of the prosecution witnesses. However, the transcripts also reveal that in spite of the lack of formal offer of the testimonial evidence, appellants failed to object to the presentation of such evidence, and even subjected the prosecution witnesses to a rigorous cross-examination. [43] Thus, in People v. Cadocio, 228 SCRA 602, 609 (1993) and People v. Java, 227 SCRA 668, 679-680 (1993), we had occasion to rule that: Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. This is necessary because a judge has to rest his findings of fact and his judgment only upon the evidence formally offered by the parties at the trial. (People v. Pecardal, G.R. No. 71381 [1986]). Under the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the invocation, the court is put on notice whether the witness to be presented is a material witness and should be heard, or a witness who would be testifying on irrelevant matter or on facts already testified to by other witnesses and should therefore, be stopped from testifying further. In the case at bar, we note that Pastor Valdez was not one of the witnesses originally intended to be presented by the prosecution. He was merely called to the witness stand at the latter part of the presentation of the prosecutions evidence. There was no mention why his testimony was being presented. However, notwithstanding that his testimony was not formally offered, its presentation was not objected to either. Section 36 of the aforementioned Rule requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefore shall become reasonably apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered. (Asombra v. Dorado, 36 Phil. 883). (italics supplied) Thus, the failure of the defense to interpose a timely objection to the presentation of the prosecutions testimonial evidence results in the waiver of any objection to the admissibility thereof. Appellants belated invocation of the strict interpretation of the Rules of Evidence to suit their purposes is clearly misplaced. 29

Appellants were convicted of murder on the theory of conspiracy. It is well-settled that conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. [44] Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design to kill the victim. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed. [45] The proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances.[46] Thus, we find that the following facts, pieced together, indubitably prove the existence of conspiracy: (1) The presence of appellants on the provincial road at the north end of Barangay Villanueva, armed with bolos and stones. Abayan was holding two fist size stones, while the Contawe, Jose and Remigio were holding their bolos in a striking position; (2) The act of appellant Sanchez in confronting the victim while Abayan, Contawe, Jose and Remigio were surrounding the victims companions indicates concert of actions of the appellants; (3) The act of Jose during the confrontation in moving from one side of the road to the other while, and while passing at the back of the victim, giving the go-signal to appellant Sanchez, who after seeing the signal, stabbed the victim; (4) The act of Jose in blocking the way of Freddie Miranda in chasing Cesario Sanchez; (5) The fact that all the accused fled town after the incident without satisfactory explanation for their absence. As can be gleaned from the above circumstances, appellants acted together with one purpose and design to kill Hilario Miranda. While only one of them dealt the fatal stab wound, all of them are liable for the killing of the victim. It is true that conspiracy, like the crime itself, must be proven beyond reasonable doubt and ones mere presence in the crime scene does not make an accused a conspirator. However, the co-accused were not merely present in the crime scene, they directly participated in the criminal design of appellant Sanchez by their concerted acts. Indeed, for collective responsibility among the herein accused to be established it is not necessary or essential that there be a previous plan or agreement to commit the assault; it is sufficient that at the time of the aggression all the accused by their acts manifested a common intent or desire to attack the victim, so that the act of one accused became the act of all.[47] As to appellant Sanchez claim of self defense, it is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself.[48] The justifying circumstance of self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. [49] Where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon the appellant, in order to avoid criminal liability, to prove this justifying circumstance (self-defense) claimed by him, to the satisfaction of the court. To do so, he must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing.[50] And more so when his co-appellants themselves categorically testified that they saw appellant Sanchez stab the victim, without corroborating his claim of selfdefense. In addition, the prosecution witnesses, in clear and concise language, positively and steadfastly maintained that appellant together with his five companions, armed with bolos in a striking position, surrounded the victim and his companions, whereupon Sanchez stabbed the victim in the stomach. Moreover, the conduct of the appellant Sanchez is not consistent with one who killed in self-defense. The accuseds flight from the scene of the crime is a strong indication of guilt.[51] Flight is a badge of guilt when it is done to escape from the authorities or to escape prosecution.[52] In this case, appellant Sanchez himself testified that after the killing, he 30

ran away and hid in a banana plantation for three (3) hours. [53] Then when it was dark, he went home but he found that his wife and child had already left because their house was stoned by some persons. Appellant Sanchez then spent the night in the ricefield because he was afraid of persons roaming around.[54] While appellant claims that he then stayed in his house for three days and even sent Rodolfo Doctor to the police station to tell them of his intention to surrender, and that said person came back and advised him to go away because he would be salvaged, [55] such testimony is unbelievable in the light of the testimony of Cpl. Abdiel Agustin that he went to the houses of all appellants four times but could not locate them.[56] As correctly pointed out by the trial court, the evidence on record does not show unlawful aggression on the part of the victim. Rather, it was appellant Sanchez who was the unlawful aggressor. He confronted the victim on the provincial road wherein, after a heated argument, he stabbed the victim. Even if the response of the victim to the query of Sanchez regarding the theft of fish and wood might have hurt the pride of Sanchez, the trial court correctly observed that such petty question of pride does not justify the wounding and killing of Hilario Miranda. Hence, the invocation of self-defense by Sanchez must fail. We also find that the killing of the victim was attended with treachery since the stabbing was sudden and unexpected, and the victim was not only unarmed, but was unable to defend himself. To sustain a finding of treachery, two 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.[57] These conditions were amply demonstrated in the instant case. We also hold that the appellants in assaulting and eventually killing the victim, took advantage of their superior strength. They were six (6), armed with bolos and stones, as against the victim, who was without means of defending himself. However, when treachery qualifies the crime of Murder, the generic aggravating circumstance of abuse of superior strength is necessarily included in the former.[58] At the time of the commission of the crime on November 23, 1986, the penalty for Murder under Article 248 of the Revised Penal Code was then reclusion temporal in its maximum period to death. Under Article 64 of the Revised Penal Code, when there is no aggravating or mitigating circumstance, the penalty shall be imposed in its medium period, which is reclusion perpetua. As to the award of damages, the Court affirms the award of P50,000.00 as indemnity for the death of Hilario V. Miranda. However, the award of P38,000.00 as actual damages must be reduced, as the duly documented receipt for the funeral services is only P13,000.00 (Exh. P2). We have held that only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. [59] The award of actual damages cannot be based on the allegation of a witness without any tangible document to support such claim.[60] The Court finds the award of moral damages recoverable under Article 2219(1), in relation to Article 2206 of the Civil Code in the amount of P100,000.00 to be excessive. As moral damages are not intended to enrich the prevailing party [61] an award of P50,000.00 as moral damages would be keeping with the purpose of the law. The award of P10,000.00 as attorneys fees appears to be reasonable and is therefore sustained. WHEREFORE, the decision of the Regional Trial Court of Villasis, Pangasinan, Branch 50, in Criminal Case No. V-0092 finding accused-appellants Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robio and Gaudencio Contawe guilty beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code is hereby AFFIRMED, with modification as to the award of damages as follows: accusedappellants are jointly and severally held liable for and hereby ordered to pay the heirs of the victim the amount of P50,000.00 as indemnity for the death of Hilario V. Miranda, P13,000.00 as actual damages, P50,000.00 as moral damages, and P10,000.00 as attorneys fees. Costs against accused-appellants. SO ORDERED. Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur. Puno, J., no part. On official leave.

31

People versus Sanchez SYNOPSIS This is an appeal from the decision dated September 29, 1994 of the Regional Trial Court of Villasis, Pangasinan in Criminal Case No. V-0092 finding appellants Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robios and Gaudencio Contawe guilty of the crime of murder and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the heirs of the victim jointly and severally the sum of P50,000.00 as indemnity, the amount of P38,000.00 actual damages, the amount of P100,000.00 as moral damages and attorneys fees. Accused-appellants contended that the trial court erred in giving credence to the testimony of prosecution witnesses and in finding that conspiracy existed among accusedappellants. The Court found the appeal devoid of merit. The Court ruled that while the incumbent judge of the trial court did not hear the prosecution witnesses testify, there is nothing in their testimonies as recorded in the transcript of stenographic notes that would render their testimonies suspicious and unbelievable. In fact, their testimonies were consistent with and corroborate each other in respect of the main incident and the identities of all the accused. Anent the issue of conspiracy, the Court found that the records clearly showed that appellants acted together with one purpose and design to kill the victim Hilario Miranda. While only one of them dealt the fatal stab wound, all of them are liable for the killing of the victim. Accordingly, the Court affirmed the decision of the Regional Trial Court finding the accused-appellants guilty beyond reasonable doubt of the crime of murder as defined and penalized under Article 248 of the Revised Penal Code. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; ALIBI; THE WEAKEST OF ALL DEFENSES AS IT IS EASY TO FABRICATE AND DIFFICULT TO DISPROVE, CANNOT PREVAIL OVER AND IS WORTHLESS IN THE FACE OF THE POSITIVE IDENTIFICATION BY THE ACCUSED. The prevailing rule is that alibi, being the weakest of all defenses as it is easy to fabricate and difficult to disprove, cannot prevail over and is worthless in the face of the positive identification by the accused. The established doctrine requires the accused to prove not only that he was at some other place at the time of the commission of the crime, but that it was physically impossible for him to have been present at the locus criminis or its immediate vicinity. This, appellants miserably failed to do. In fact, all of them admitted to being within a thirty-meter radius from the locus criminis when the killing occurred, hence it was not physically impossible for them to have participated in the commission of the crime, and thereafter dispersed in order to avoid any further entanglement in the case. 2. ID.; ID.; OFFER OF EVIDENCE; THE FAILURE OF THE DEFENSE TO INTERPOSE A TIMELY OBJECTION TO THE PRESENTATION OF THE PROSECUTIONS TESTIMONIAL EVIDENCE RESULTS IN THE WAIVER OF ANY OBJECTION TO THE ADMISSIBILITY THEREOF. Appellants contend that the testimonies of the prosecution witnesses were not formally offered as required by the Rules, and therefore should not have been considered by the trial court. Indeed, a perusal of the transcript of stenographic notes will show that no formal offer of testimonial evidence was made prior to or after the testimonies of the prosecution witnesses. However, the transcripts also reveal that in spite of the lack of formal offer of the testimonial evidence, appellants failed to object to the presentation of such evidence, and even subjected the prosecution witnesses to a rigorous cross-examination. Thus, in People v. Cadocio, 228 SCRA 602, 609 (1993) andPeople v. Java, 227 SCRA 668, 679-680 (1993), we had occasion to rule that: Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. This is necessary because a judge has to rest his findings of fact and his judgment only upon the evidence formally offered by the parties at the trial. (People v. Pecardal, G.R. No. 71381 [1986]). Under the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the invocation, the court is put on notice whether the witness to be presented is a material witness and would be heard, or a witness who would be testifying on irrelevant matter or on facts already testified to by other witnesses and should therefore, be stopped from testifying further. In the case at bar, we note that 32

Pastor Valdez was not one of the witnesses originally intended to be presented by the prosecution. He was merely called to the witness stand at the latter part of the presentation of the prosecutions evidence. There was no mention why his testimony was being presented. However, notwithstanding that his testimony was not formally offered, its presentation was not objected to either. Section 36 of the aforementioned Rule requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefore shall become reasonably apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered. (Asombra v. Dorado, 36 Phil. 883). The failure of the defense to interpose a timely objection to the presentation of the prosecutions testimonial evidence results in the waiver of any objection to the admissibility thereof. Appellants belated invocation of the strict interpretation of the Rules of Evidence to suit their purposes is clearly misplaced. 3. CRIMINAL LAW; REVISED PENAL CODE; CONSPIRACY; EXISTS WHEN TWO OR MORE PERSONS COME TO AN AGREEMENT CONCERNING THE COMMISSION OF A CRIME AND DECIDE TO COMMIT IT.- Appellants were convicted of murder on the theory of conspiracy. It is well-settled that conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design to kill the victim. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed. The proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances. Thus, we find that the following facts, pieced together, indubitably prove the existence of conspiracy: (1) The presence of appellants on the provincial road at the north end of Barangay Villanueva, armed with bolos and stones. Abayan was holding two fist size stones, while Contawe, Jose and Remigio were holding their bolos in a striking position; (2) The act of appellant Sanchez in confronting the victim while Abayan, Contawe, Jose and Remigio were surrounding the victims companions indicates concert of actions of the appellants; (3) The act of Jose during the confrontation in moving from one side of the road to the other, and while passing at the back of the victim, giving the go-signal to appellant Sanchez, who after seeing the signal, stabbed the victim; (4) The act of Jose in blocking the way of Freddie Miranda in chasing Cesario Sanchez; (5) The fact that all the accused fled town after the incident without satisfactory explanation for their absence. As can be gleaned from the above circumstances, appellants acted together with one purpose and design to kill Hilario Miranda. While only one of them dealt the fatal stab wound, all of them are liable for the killing of the victim. 4. ID.; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; REQUISITES THEREOF; THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE IS AN AFFIRMATIVE ALLEGATION THAT MUST BE PROVEN WITH CERTAINTY BY SUFFICIENT SATISFACTORY AND CONVINCING EVIDENCE THAT EXCLUDES ANY VESTIGE OF CRIMINAL AGGRESSION ON THE PART OF THE PERSON INVOKING IT.-As to appellant Sanchez claim of self-defense, it is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself. The justifying circumstance of self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. Where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon the appellant, in order to avoid criminal liability, to prove this justifying circumstance (self-defense) claimed by him, to the satisfaction of the court. To do so, he must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing. And more so when his co-appellants themselves categorically testified that they saw appellant Sanchez stab the victim, without corroborating his claim of self-defense. In addition, the prosecution witnesses, in clear and concise language, positively and steadfastly maintained that appellant together with his five 33

companions, armed with bolos in a striking position, surrounded the victim and his companions, whereupon Sanchez stabbed the victim in the stomach. Moreover, the conduct of the appellant Sanchez is not consistent with one who killed in self-defense. The accuseds flight from the scene of the crime is a strong indication of guilt. Flight is a badge of guilt when it is done to escape from the authorities or to escape prosecution. In this case, appellant Sanchez himself testified that after the killing, he ran away and hid in a banana plantation for three (3) hours. Then when it was dark, he went home but he found that his wife and child had already left because their house was stoned by some persons. Appellant Sanchez then spent the night in the ricefield because he was afraid of persons roaming around. While appellant claims that he then stayed in his house for three days and even sent Rodolfo Doctor to the police station to tell them of his intention to surrender, and that said person came back and advised him to go away because he would be salvaged, such testimony is unbelievable in the light of the testimony of Cpl. Abdiel Agustin that he went to the houses of all appellants four times but could not locate them. As correctly pointed out by the trial court, the evidence on record does not show unlawful aggression on the part of the victim. Rather, it was appellant Sanchez who was the unlawful aggressor. He confronted the victim on the provincial road wherein, after a heated argument, he stabbed the victim. Even if the response of the victim to the query of Sanchez regarding the theft of fish and wood might have hurt the pride of Sanchez, the trial court correctly observed that such petty question of pride does not justify the wounding and killing of Hilario Miranda. Hence, the invocation of self-defense by Sanchez must fail. 5. ID.; ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY AND SUPERIOR STRENGTH; AMPLY PROVEN.-We also find that the killing of the victim was attended with treachery since the stabbing was sudden and unexpected, and the victim was not only unarmed, but was unable to defend himself. To sustain a finding of treachery, two 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. These conditions were amply demonstrated in the instant case. We also hold that the appellants in assaulting and eventually killing the victim, took advantage of their superior strength. They were six (6), armed with bolos and stones, as against the victim, who was without means of defending himself. However, when treachery qualifies the crime of Murder, the generic aggravating circumstance of abuse of superior strength is necessarily included in the former. 6. ID.; ID.; ID.; ACTUAL DAMAGES; AWARD CANNOT BE BASED ON THE ALLEGATION OF A WITNESS WITHOUT ANY TANGIBLE DOCUMENT TO SUPPORT SUCH CLAIM.- As to the award of damages, the Court affirms the award of P50,000.00 as indemnity for the death of Hilario V. Miranda. However, the award of P38,000.00 as actual damages must be reduced, as the duly documented receipt for the funeral services is only P13,000.00. We have held that only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. The award of actual damages cannot be based on the allegation of a witness without any tangible document to support such claim. 7. ID.; ID.; ID.; MORAL DAMAGES; NOT INTENDED TO ENRICH THE PREVAILING PARTY.- The Court finds the award of moral damages recoverable under Article 2219(1), in relation to Article 2206 of the Civil Code in the amount of P100,000.00 to be excessive. As moral damages are not intended to enrich the prevailing party an award of P50,000.00 as moral damages would be keeping with the purpose of the law. The award of P10,000.00 as attorneys fees appears to be reasonable and is therefore sustained. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee.

34

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 129304 September 27, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AVA MA. VICTORIA CARIQUEZ y CRUZ, and LEEZEL FRANCO y SAMSON, accusedappellants.

DAVIDE, JR., C.J.: This is an appeal from the decision 1 of 19 March 1997, of the Regional Trial Court of Pasig City, Branch 163, in Criminal Case No. 110410 convicting accused-appellants Ava Ma. Victoria Cariquez y Cruz (hereafter AVA) and Leezel Franco y Samson (hereafter LEEZEL) of the crime of parricide and homicide, respectively. In an Information 2 dated 30 May 1996, AVA and LEEZEL were initially charged with serious physical injuries under Section 10, Article VI of R.A. No. 7610. 3 However, on 31 May 1996 the victim, Mariel Cariquez y Cruz (hereafter ETHEL) died. On 30 August 1996 the information was amended to charge AVA and LEEZEL with the crime of parricide. The Amended Information 4 reads: The undersigned State Prosecutor of the Department of Justice, accuses AVA MA. VICTORIA CARIQUEZ Y CRUZ and LEEZEL FRANCO Y SAMSON of the crime of Parricide defined and penalized under Article 246 of the Revised Penal Code, as amended by Sec. 5 of R.A. 7659 committed in the manner herein narrated as follows: 35

That on or about the 27th day of May 1996, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, accused AVA MA. VICTORIA Y CARIQUEZ, being then the mother of a 2 1/2 years old child, MARIEL CARIQUEZ Y CRUZ, conspiring and confederating together with Leezel Franco Y Samson, and mutually helping and aiding one another, with intent to kill, evident premeditation, taking advantage of superior strength and treachery, did then and there, willfully, unlawfully and feloniously, beat and maul said MARIEL CARIQUEZ Y CRUZ in the different parts of her body, thereby inflicting upon her mortal wounds which directly caused her death. CONTRARY TO LAW. The witnesses presented by the prosecution were Lilia Gojul, Michelle Torrente, Theresa Castillo, Dr. Antonio Vertido, Dr. Jose Joey Bienvenida, SPO3 Adonis Bacarra, Dr. Arsenio Pascual, and Benilda Almario. Lilia Gojul is AVA's sister. The relevant and material facts established by their testimonies are faithfully summarized in the Appellee's Brief, as follows: Mariel Cariquez y Cruz, fondly called Ethel, was two and a-half years old when she and her mother, Ava Cariquez, moved in sometime in January 1996 to No. 116 Royal Townhomes, San Rafael Mandaluyong City. Ava's sister, Lilia C. Gojul moved in with them (TSN, October 16, 1996, pp. 5-6, 32). She slept with the little girl in one of the two bedrooms on the house (TSN, Ibid., p. 12). Ava had a housemaid named Elizabeth Patao, who also watched over Mariel or Ethel (TSN, October 16, 1996, pp. 6,8). At the time, Ava had a live-in partner, Leezel Franco (TSN, October 16, 1996, pp. 5-6, 49). He was not the father of Ethel, however (TSN, ibid., p. 51). Ava's household was not at all peaceful because almost everyday, Ava and Leezel quarreled, "nagbubugbugan" (TSN, October 16, 1996, pp. 9, 11; October 29, 1996, pp. 29, 40-41). Ava and Leezel were then taking or using drugs (TSN, October 16, 1996, p. 39). In the middle of March 1996, Lilia Gojul left Ava's household and went to live in her home at Urduja Village, Novaliches, Quezon City (TSN, October 16, 1996, p. 6). In the meantime, the little girl caught the attention of their neighbors as she was cute and friendly. While the neighbors became fond of "Ethel," they however found Ava and Leezel aloof and snobbish (October 29, 1996, pp. 9, 30, 21). On April 14, 1996, Lilia visited Ava and her niece at the Royal townhomes but she was shocked to see Ethel's appearance; her hair was shaven, her face was full of contusions, her neck had faded cigarette burns while her arms and legs had traces of pinching and maltreatment. She also had marks of "black-eye" on both eyes. Lilia also noticed Ethel's knees with contusions due to prolonged kneeling. (TSN, October 16, 1996, pp. 12, 13). When Lilia asked the little girl to identify who inflicted the injuries on her body, Ethel tearfully pointed to Ava and Leezel (TSN, October 16, 1996, p. 14). Lilia confronted Ava about her and Leezel's treatment of Ethel (Ibid., p. 13). Neighbors were hearing the little girl crying everyday, morning, noon, evening, and even at 1:00 o'clock or 2:00 o'clock in the morning (TSN, October 29, 1996, p. 8, 29-30). Sometime in April, Michelle Torrente, an occupant of Unit 114, was aghast to see her shaven, with bruises all over her body and wounds in her arms and legs (TSN, ibid., pp. 10, 130. Ethel also had cigarette burns, and when Michelle asked what happened, Ethel replied: "pinaso po ako." When Michelle further asked who burned her and caused her bruises, Ethel said, "Papa ko po," referring to Leezel Franco (TSN, ibid., pp. 11-13). 36

The little girl's shaven head and bruises were also noticed by Theresa Castillo, an occupant of unit 115, adjacent to Ava's residence. When she asked Ethel's "yaya" why this was done to the little girl, the "yaya" answered, "parusa" (TSN, October 16, 1996, p. 150). The next time that Lilia visited Ava and her daughter was on May 12, 1996. At the time, Ava's housemaid has already left the household. On that occasion, Lilia observed that Ethel was sickly and had even more contusions than the last time she saw her in April. Out of pity for the little girl, Lilia tried to persuade Ava that she take custody of Ethel (TSN, October 16, 1996, p. 15). Ava agreed to her suggestion and wrote a note where she passed on to Lilia Gojul the guardianship of Ethel Cariquez (TSN, ibid., pp. 16, 19; Exhibit A). However, on May 14, 1996, Lilia had to leave Ava's household without bringing Ethel with her (TSN, October 16, 1996, p. 21). Ethel cried silently when Lilia left (TSN,ibid., pp. 22, 36). Lilia heard nothing from them after that.1wphi1.nt On May 27, 1996, around 3:00 or 4:00 o'clock in the afternoon, Ethel was brought in an ambulance from the Mandaluyong Medical Center to the Cardinal Santos Memorial Hospital at Greenhills, San Juan (TSN, November 14, 1996, pp. 8; 29). At the time, she was unconscious and was assisted by an ambu bag, unable to breathe on her own. Her body was limp and she had prominent bruises on the forehead and the right cheek (TSN, ibid., pp. 8, 16). Dr. Jose Joey Bienvenida attended to her and in the course of taking her medical history, he interviewed the mother, Ava Cariquez. Ava at first told the doctor that it was her brother, the patient's uncle, who mauled the child and inflicted upon her serious injuries. Ava later changed her story, saying that the little girl actually fell from the stairs (TSN, ibid., pp. 9-10, 25-27). A CT-scan was taken of the child and the results showed a combination of chronic and acute subdural hematoma on the left frontotemporoparietal (front side and apex) convexity of the brain. Massive edema and musk effect in the left cerebral hemisphere and right fronte-parietal lobe were noted. A fracture was also noted on the left frontal bone (TSN, ibid., p. 11). Blood clot was found in almost the entire cerebral hemisphere. He also found soft tissue injuries, i.e., hematoma and abrasions, in other parts of the body (TSN, ibid., p. 42). Dr. Bienvenida noted that the injury on the head was a "confluent injury," which means that it was sustained on different dates (TSN, ibid. p. 40); one portion of the injury was "resolving hematoma" which was at least two (2) years old, while the more acute injury was sustained within 24 hours from his examination (TSN, ibid. p. 41). Ethel was thereafter confined at the Intensive Care Unit of the hospital, attached to a respirator (TSN, ibid., p. 16). She was classified as a "brain-dead" patient (Ibid., p. 18). Ethel's condition however grew worse and she eventually died on May 31, 1996 at about 10:20 in the morning. After her death, the life support system was removed (TSN, ibid., p. 18; Exhibit E). The cause of death was "cardio respiratory arrest secondary to multiple organ system failure, severe massive crania-cerebral trauma" (TSN, ibid. p. 23; Exhibit C-2). Dr. Antonio Vertido, NBI Medico-Legal Officer, conducted an autopsy on the little girl's body (TSN, November 7, 1996, p. 4). The doctor made the following significant findings: fracture linear, right middle cranial fosse; abrasion, right forehead; contusion, right leg; contusion-abrasion left face; hematoma, forehead right and hematoma, scalp, right fronto-parietal (Exhibit D). In his autopsy report, Dr. Vertido concluded that the cause of death was Traumatic Head Injury, Severe (Exhibit D-2). 5 AVA and LEEZEL were the witnesses presented by the defense.

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According to AVA, during their breakfast at about 7:30 a.m. on 27 1996, she talked with LEEZEL about their up-coming concert on 1 June 1996 at Subic. Then, she went out of the house to make a telephone call. When she left the house, her daughter ETHEL was eating while LEEZEL was playing the guitar. When she returned she saw ETHEL playing with the food. She told ETHEL to hurry up as she was going with her to the office, but ETHEL stubbornly looked at her and continued to play with her food. She again told ETHEL to hurry up and finish her food. ETHEL still said "No." To her repeated order to do so, ETHEL also repeatedly said, "No." AVA then got a plastic belt and hit ETHEL with it on the buttocks a number of times, which made ETHEL cry. Since ETHEL continued to be hard-headed, AVA held her on the shoulder. ETHEL struggled and slipped AVA's hold, got out of balance, and fell. ETHEL hit the sofa and when she bounced back her head hit the edge of the cemented stairs. AVA got shocked and noticed LEEZEL stop playing his guitar and shout: "Ava yoong anak mo." AVA then held ETHEL and gave her mouth-to-mouth resuscitation. Seeing ETHEL's serious condition, LEEZEL suggested to AVA to bring ETHEL to the hospital, which they did, at first to the Mandaluyong City Hospital and because the hospital cannot provide the best medical care, to the Cardinal Santos Memorial Hospital, where she was brought to and confined at the hospital's Intensive Care Unit (ICU). Early on the morning of 28 May 1996, AVA went to the Mandaluyong Police Station to get her car and to find out the reason why her car was impounded. She was not able to get the car. Instead, she was detained at about 8:00 p.m. of 28 May 1996. AVA came to know that the police found drugs in her car, for which reason she was detained. 6 Three (3) days after her detention, Lilia Gojul, her sister, went to jail and asked her to sign some papers and asked her permission to take off the respirator of ETHEL in the hospital. She did not give her permission. 7 On cross-examination, AVA declared that the cigarette burns on ETHEL's body were caused by sprinkling oil while their maid was cooking; LEEZEL had nothing to do with any of the child's bruises or injuries; when Lilia Gojul, her sister visited her in jail, the former told her that she should point to LEEZEL as the one responsible for ETHEL's death, otherwise, she will do something to her; and that she has no personal relation with LEEZEL. However, in her affidavit, 8 dated 1 June 1996, and in her reply-affidavit, 9 AVA pointed to LEEZEL as the one responsible for ETHEL's injuries, stating that when she returned home after making a phone call from outside the house, she found LEEZEL hit ETHEL with the buckle of a belt at the back and front of her head. She tried to stop him but he pushed her. As LEEZEL continued to hit ETHEL with the belt, what she did was to get the antenna of the TV and hit LEEZEL with it at his hand causing him to release the same. She then got hold of ETHEL but because LEEZEL pushed her she fell to the floor with her daughter. This was repeated several times. When she noticed ETHEL was having difficulty in breathing, she ran to the comfort room in order to give ETHEL a shower to revive her, at the same time applying mouth to mouth resuscitation to her. She went out of the bathroom to bring ETHEL to the hospital. 10 In her reply-affidavit AVA declared that when she returned home after making a telephone call, she found LEEZEL hit ETHEL with the buckle of his belt. That was not the first time that she saw him hit ETHEL; he used to hit her whenever he is high on drugs and ETHEL was noisy playing. On those occasions LEEZEL use to hit AVA and they end up fighting because AVA always tried to protect ETHEL from harm. AVA tried to diminish the value of these admissions in her affidavit and reply-affidavit by testifying that she did not read them before signing and she signed under a state of shock. 11 LEEZEL offered two versions for his defense. In his counter-affidavit 12 of 11 June 1996, he declared that during breakfast in the morning of 27 May 1996, he and AVA talked about the band and their concert in Subic. Thereafter, AVA told him that she was going to make a phone call outside of the house. Before leaving, she ordered ETHEL to hurry up with her food because she was to go with AVA to the latter's office. However, when AVA returned, ETHEL had not finished eating. AVA hit ETHEL very hard, whipped her with a belt, held her by the arms and pushed her, sending ETHEL to hit the corner of the sofa and then to bounce, causing her head to hit the end of the cemented stairs and to fall to the floor. ETHEL was on the verge of death. AVA was shocked. Seeing this, LEEZEL picked up ETHEL and brought her to the comfort room where he poured water on her. Thereafter, he and AVA brought ETHEL to the hospital. 13 But, in his testimony in court LEEZEL declared that his statement in his counter-affidavit that AVA pushed ETHEL, causing the latter to fall and to hit the cemented stairs was only narrated 38

to him by AVA and that he never witnessed the incident. 14 He further declared that he had nothing to do with ETHEL's injuries and the testimony of Lilia Gojul is not true. Lilia had an ulterior motive against him because on one occasion he prevented Catherine, Lilia's daughter from entering AVA's house and because of that Lilia, her husband and her sons Caesar and Julius kicked him and hit him with a chair. Finally, LEEZEL claimed that he had no idea as to what happened to ETHEL; all that he saw was the child lying on the floor, and he then helped AVA bring the child to the hospital. In the hospital, he was asked by the police to go with them to the Complaints and Investigation Division of the Mandaluyong City Police, where he stayed for more than four hours. Since the police conducted no formal investigation on him, he left for home. 15 In its decision 16 of 19 March 1997, the trial court found AVA and LEEZEL guilty of parricide and homicide, respectively. It decreed as follows: WHEREFORE, premises considered, this Court finds accused AVA Ma. Victoria Cariquez y Cruz and Leezel Franco y Samson guilty beyond reasonable doubt as principal for the crime of Parricide and homicide respectively and considering the mitigating circumstance that they did not intend to commit so grave a wrong as that committed and there being no aggravating circumstances on record, imposes upon a) Ava Ma. Victoria Cariquez the penalty of reclusion perpetua, b) Leezel Franco the indeterminate penalty of eight (8) years and one (1) day of prision mayor a minimum to fourteen (14) years eight (8) months and one () day of reclusion temporal as maximum; c) To pay the costs. Any detention service rendered by the accused should be credited in their favor computed pursuant to Batas Pambansa Blg. 85. AVA and LEEZEL appealed to us from the decision. In their Appellants' Brief, AVA and LEEZEL interpose this lone assignment of error: THE LOWER COURT GRAVELY ERRED IN CONVICTING BOTH ACCUSED WITHOUT SUFFICIENT EVIDENCE FOR CONVICTION. In support thereof, they argue that the prosecution's principal witness Lilia Gojul, as well as the other witnesses never saw how ETHEL sustained the injuries inflicted on her; Lilia never testified that during her stay in AVA's house the child was the object of their quarrel; the prosecution's evidence is purely hearsay, conjectural and fails to show any conspiracy that they maltreated and caused ETHEL's death; her death was purely accidental; only circumstantial evidence is on record against them there was no evil motive on their part to kill ETHEL. They characterized the report of ETHEL to Lilia Gojul as to the former's shaven head and injuries as hearsay and cannot be considered an exception to the hearsay rule because it was not made on an impending death or with the thought of an impending death and was related to Lilia many days before the incident. LEEZEL further asserts that only AVA was formally charged, hence there is no case against him. The trial court convicted AVA and LEEZEL on the basis of circumstantial evidence. Circumstantial evidence is sufficient to convict provided the following requisites are present, namely: (1) there is more than one circumstance; (2) the facts from which the inferences are derived from are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 17 The circumstantial evidence must constitute an 39

unbroken chain of events so as to lead to a fair and reasonable conclusion that points to the guilt of the accused. 18 In the Appellee's Brief, the Office of the Solicitor General enumerates seven (7) circumstantial evidence which the trial court took into account and relied upon as bases for its finding that AVA and LEEZEL, were criminally responsible for the death of ETHEL, to wit: 1. In 14 April 1996, prosecution principal witness, Lilia Gujol, saw Ethel shaven, with many contusions on her face, black eyes, cigarette burns on her arms and neck, and several marks of maltreatment on her legs and both knees as well as traces of pinching all over her body. When asked who caused her those injuries, the 2 year old girl pointed to her own mother, Ava, and her mother's live in partner, Leezel Franco; 2. When Lilia next saw Ethel on 12 May 1996, Ethel had even graver injuries and was sickly. Again, Ethel pointed to appellants Ava and Leezel as the ones who caused her the injuries. 3. Michelle Torrente, a resident of the unit adjacent to the townhouse unit occupied by Ava Cariquez, Leezel Franco and Ethel Cariquez, testified that she used to hear Ethel crying between 1:00 to 2:00 in the morning. She further testified that one day she saw Ethel with bruises and cigarettes burns and when asked what happened to her, Ethel replied, "pinaso po ako;" Ethel pointed to her Papa Leezel as the one who did it to her. 4. Theresa Castillo, another occupant of an adjacent unit, also testified that she often saw Ethel bruised and crying and sometime in April, saw her head shaven. When she asked the "yaya" why Ethel's hair was shaved, the "yaya" answered "parusa." 5. Dr. Jose Joey Bienvenida, the doctor who attended to Ethel at the Cardinal Santos Memorial Hospital, opined that the injuries found on the head of Ethel were inflicted on different dates. 6. Dr. Bienvenida further testified that in the course of taking the medical history of the child, he interviewed the mother, Ava Cariquez, who gave conflicting accounts as to how the child got injuries: while the mother initially said that her daughter was mauled by her uncle (AVA's brother), she later changed her story by claiming that the child fell from the stairs. 7. Dr. Vertido testified that the cause of death was traumatic Head Injury, Severe Aside from the foregoing circumstantial evidence, the trial court also took into account AVA's affidavit (Exhibit "R"), reply-affidavit (Exhibit "S"), and LEEZEL's counter-affidavit (Exhibit "T"), as well as the circumstances of the apprehension of the two by authorities for illegal possession of "shabu" and AVA's judicial admission that ETHEL slipped from her hold, fell and her head hit the cemented floor. We are fully convinced from the evidence on record of the culpability of AVA and LEEZEL for ETHEL's maltreatment. The testimony of Lilia Gojul, Michelle Torrente and Theresa Castillo ineluctably show that AVA and LEEZEL tormented ETHEL. Where ETHEL dwelt was not a home; it was not even a house. It was hell. AVA and LEEZEL considered ETHEL not as a child with human dignity and an object of love as children should be, but an unwanted object against whom they could vent everything from frustrations to anger and hate. What Lilia saw on ETHEL was truly shocking an innocent child with shaven hair; with a face full of contusions; a neck with faded cigarettes burns; arms and legs with traces of pinching and maltreatment; "blackeyed" eyes; and contused knees due to prolonged kneeling. 19 When Lilia asked the little girl to 40

identify who inflicted the injuries on her body, ETHEL tearfully pointed to AVA and LEEZEL. 20 Lilia confronted AVA about her and LEEZEL's maltreatment of the child. 21 In April 1996 Michelle Torrente was aghast to see ETHEL's head shaven, with bruises all over her body and wounds in her arms and legs, 22 as well as cigarette burns. When she asked what happened, ETHEL replied: "pinaso po ako." When she further asked her who burned her and caused her bruises, ETHEL said, "Papa ko po," referring to LEEZEL. 23 Theresa Castillo also noticed ETHEL's shaven head and body bruises. When she asked ETHEL's yaya why this was done to the child, the yaya answered, "parusa". 24 The declarations of Lilia, Michelle and Theresa as to what they observed on ETHEL were not hearsay. They saw her and personally noticed the injuries and telltale marks of torture. While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay because ETHEL could not be confronted on that, yet it was part of theres gestae and, therefore, an exception to the hearsay rule pursuant to Section 42 of Rule 130 of the Rules of Court, which reads: Sec. 42. Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequently thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. There are three requisites to the admission of evidence as constituting part of the res gestae. (1) that the principal act, the res gestae, be a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and (3) that the statements must concern the occurrence in question and its immediately attending circumstances. 25 In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed between the infliction of the injuries and the disclosure, it must however, be pointed out that there has been no uniformity as to the interval of time that should separate the occurrence of the startling event from the making of the declarations. What is necessary is that the injuries sustained by ETHEL prior to the incident on 27 May 1996 were inflicted by AVA and LEEZEL. These acts are covered by and punished under R.A. No. 7610, under which they were originally prosecuted. However, the then Information was amended to charge them with parricide under Article 246 of the Revised Penal Code. The evidence on the prior incidents cannot legally justify a conviction for the physical injuries inflicted before 27 May 1996. The issue then that must be resolved is who was or were responsible for the act on 27 May 1996, which caused or resulted in the death of ETHEL? On this the prosecution failed to offer any direct evidence. The circumstantial evidence the trial court appreciated related to acts or events which happened before 27 May 1996. Yet, these prior acts are inseparable from that which happened on 27 May 1996. The latter was the coup de grace. Fortunately, for the prosecution, AVA offered two versions. The first was that she offered at the witness stand in open court, i.e., ETHEL's death was due to an accident. The second was narrated in her affidavit (Exhibit "R") and reply-affidavit (Exhibit "S"), where she pointed to LEEZEL as the culprit. We cannot allow her to disown her affidavit and reply-affidavit as the explanation given for that is very flimsy and incredible, and clearly concocted to exculpate LEEZEL and at the same to absolve herself under a claim of accident. Her affidavit and reply-affidavit were prepared at her instance long before she took the witness stand. In a manner of speaking they were given voluntarily and spontaneously long before the prospect of a court trial became imminent and the dismissal of the cases against her was her goal. That she told the truth in her affidavit and reply-affidavit cannot escape the verdict of rational minds. AVA's story of "accident" cannot, likewise, work in her favor. Accident is an exempting circumstance under Article 12 of the Revised Penal Code, In order that accident may exempt an accused from criminal liability, it must be shown that the accused 41

was performing a lawful act with due care; the resulting injury was caused by mere accident; and there must be no fault or intent to cause the injury on the part of the accused. 26 The defense of accident shifted to AVA the burden of the evidence and it was incumbent upon them to prove that they were exempt from criminal liability. It is at once evident from the story foisted to the trial court by AVA while she was on the witness stand that the requisites of accident as an exempting circumstance were not proven. On the contrary, the totality of her story proved beyond reasonable doubt that ETHEL was maltreated and pushed hard driving her head to the cemented stairs and causing the injuries which were the proximate cause of her death. We agree with the trial court's appreciation of conspiracy against AVA and LEEZEL. The rule is well settled that in conspiracy the act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other conspirators. 27 Proof of conspiracy need not be direct but may be inferred from proof of facts and circumstances. 28 If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object each doing a part so that their acts, though apparently independent were in fact connected, indicating a closeness of formal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. 29 The facts and circumstances proven in this case unerringly lead us to a conclusion that AVA and LEEZEL conspired to maltreat, injure, inflict pain, torture ETHEL and they were united in that purpose and intention. The totality of their evil deeds demonstrated beyond doubt their resolve to pursue with persistence their common objective, which eventually resulted in the death of ETHEL. As amply demonstrated by the evidence, ETHEL's injuries, particularly that on the head, in addition to those on the body, were sustained not only on the date of the fateful incident but on dates before the day of the incident. Thus, Bienvenida testified that: he noted that the injury on the head was a "confluent injury," which means that it was sustained on different dates; 30 one portion of the injury was "resolving hematoma" which was at least (2) days old, while the more acute injury was sustained within 24 hours from his examination. 31 Likewise, the result of the CT-Scan which was taken on the child showed a combination of chronic and acute subdural hematoma on the left fronto-temporoparietal (front side and apex) convexity of the brain. Massive edema and musk effect in the left cerebral hemisphere and right fronto-parietal lobe were noted. A fracture was also noted on the left frontal bone. Blood clot was found in almost the entire cerebral hemisphere. Also found were soft tissue injuries, i.e., hematoma and abrasions, in other parts of the body. 32 In the autopsy conducted by Dr. Vertido of the NBI, the doctor concluded as the cause of Ethel's death: "Traumatic Head Injury." 33 Indisputably, AVA committed the crime of parricide under Article 246 of the Revised Penal Code, as amended by R.A. No. 7659, which is punished by reclusion perpetua to death. Considering that no modifying circumstances were proven, then pursuant to Article 63 of the Revised Penal Code, the lesser of the penalty, i.e., reclusion perpetua, was correctly imposed by the trial court on AVA. LEEZEL was correctly held liable for the crime of homicide only as he was a stranger to the victim, ETHEL. Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child below twelve (12) years of age is reclusion perpetua. The second paragraph of Section 10 of Article VI of R.A. 7610 provides, as follows: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional multilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age . . . . (Emphasis supplied) Accordingly, the penalty of reclusion perpetua should be imposed upon LEEZEL. His claim that he was not charged in the amended information is absolutely wanting in basis. He was, although for parricide, but, he could legally be convicted of homicide, which is necessarily included in that charged.

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WHEREFORE, the decision, dated 19 March 1997 of the Regional Trial Court of Pasig City, Branch 163, in Criminal Case No. 110410 finding accused-appellant Ava Ma. Victoria Cariquez y Cruz and Leezel Franco y Samson guilty beyond reasonable doubt as principal of the crime of Parricide and Homicide, as defined and penalized under Article 246 and Article 249 of the Revised Penal Code, respectively, and imposing, with respect to appellant Ava Cariquez, the penalty of reclusion perpetua, is hereby AFFIRMED, but MODIFIED as to the penalty for Leezel Franco y Samson and as so modified, he is hereby sentenced to suffer the penalty of reclusion perpetua. The decision is further MODIFIED by directing accused-appellants Ava Carinquez and Leezel Franco y Samson to pay jointly and severally the heirs of ETHEL Cariquez, except accused-appellant Ava Cariquez, the death indemnity in the amount of P50,000.00. Costs against accused-appellants.1wphi1.nt SO ORDERED. Puno, Kapunan, Pardo and Santiago, JJ., concur

PEOPLE VERSUS CARIQUEZ SYNOPSIS Appellants Ava Cariquez and Leezel Franco, were charged with parricide and homicide, respectively, for the death of Ethel, Avas two and a half year old daughter, whose cause of death was traumatic head injury. Both pleaded not guilty, claiming that Ethels cause of death was due to an accident when she slipped and fell hitting the edge of the cemented stairs which was the proximate cause of her death. This was contrary to her affidavit executed before the trial wherein she pointed to Leezel as the person who inflicted the injuries on her daughter, Ethel. Three prosecution witnesses, Lilia, Avas sister, and neighbors, Michelle and Theresa, testified that Ethel, whom they often see with bruises, contusions and cigarette burns on her neck, was maltreated by Ava and Leezel. This was revealed to them by Ethel herself whom they also saw with shaven head, with black eyes on both eyes and contusions on her knees due to prolonged kneeling. Dr. Bienvenida who examined the body of Ethel testified that the injury on her head was a confluent injury, which means that it was sustained on different dates. The trial court rendered judgment of conviction. The decision was based on circumstantial evidence. Hence, this appeal questioning the sufficiency of the prosecutions evidence claiming that such was purely hearsay. The Supreme Court held that the totality of the circumstantial evidence adduced at the trial was sufficient to convict; that the testimonies of witnesses on what they saw and personally noticed regarding the injuries and telltale marks of torture were not hearsay; that the answer of ETHEL as to who inflicted the injuries on her was part of the res gestae and, therefore, an exception to the hearsay rule pursuant to Section 42 of Rule 130 of the Rules of Court; that the burden of the evidence was on appellants which they miserably failed to overthrow; and that conspiracy which need not be proved by direct evidence was inferred from the combined acts of appellants in maltreating ETHEL. People versus Cariquez SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITES.- Circumstantial evidence is sufficient to convict provided the following requisites are present, namely: (1) there is more than one circumstance; (2) the facts from which the inferences are derived from are proven; and (3)the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstantial evidence must constitute an unbroken chain of events so as to lead to a fair and reasonable conclusion that points to the guilt of the accused. 2. ID.; ID.; PART OF THE RES GESTAE; REQUISITES.- There are three requisites to the admission of evidence as constituting part of the res gestae. (1) that the principal act, the res gestae, be a startling occurrence; 2) the statements were made before the declarant 43

had time to contrive or devise; and (3) that the statements must concern the occurrence in question and its immediately attending circumstances. 3. ID.; ID.; ID.; CASE AT BAR.- In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed between the infliction of the injuries and the disclosure, it must however, be pointed out that there has been no uniformity as to the interval of time that should separate the occurrence of the startling event from the making of the declarations. What is necessary is that the injuries sustained by ETHEL prior to the incident on 27 May 1996 were inflicted by AVA and LEEZEL. These acts are covered by and punished under R.A. No. 7610, under which they were originally prosecuted. However, the then Information was amended to charge them with parricide under Article 246 of the Revised Penal Code. The evidence on the prior incidents cannot legally justify a conviction for the physical injuries inflicted before 27 May 1996. 4. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; ACCIDENT; CONSTRUED.- Accident is an exempting circumstance under Article 12 of the Revised Penal Code. In order that accident may exempt an accused from criminal liability, it must be shown that the accused was performing a lawful act with due care; the resulting injury was caused by mere accident; and there must be no fault or intent to cause the injury on the part of the accused. 5. ID.; ID.; ID.; NEGATED BY MALTREATMENT OF VICTIM.- The defense of accident shifted to AVA the burden of the evidence and it was incumbent upon them to prove that they were exempt from criminal liability. It is at once evident from the story foisted to the trial court by AVA while she was on the witness stand that the requisites of accident as an exempting circumstance were not proven. On the contrary, the totality of her story proved beyond reasonable doubt that ETHEL was maltreated and pushed hard driving her head to the cemented stairs and causing the injuries which were the proximate cause of her death. 6. ID.; CONSPIRACY; LIABILITY OF CONSPIRATORS.- We agree with the trial courts appreciation of conspiracy against AVA and LEEZEL. The rule is well settled that in conspiracy the act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other conspirators. 7. ID.; ID.; MAY BE INFERRED FROM CONCERTED ACTS OF BOTH ACCUSED.- Proof of conspiracy need not be direct but may be inferred from proof of facts and circumstances. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object each doing a part so that their acts, though apparently independent were in fact connected, indicating a closeness of formal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. 8. ID.; ID.; ID.; CASE AT BAR .- The facts and circumstances proven in this case unerringly lead us to a conclusion that AVA and LEEZEL conspired to maltreat, injure, inflict pain, torture ETHEL and they were united in that purpose and intention. The totality of their evil deeds demonstrated beyond doubt their resolve to pursue with persistence their common objective. which eventually resulted in the death of ETHEL. As amply demonstrated by the evidence. ETHELs injuries, particularly that on the head, in addition to those on the body, were sustained not only on the date of the fateful incident but on dates before the day of the incident. 9. ID.; PARRICIDE; PENALTY.- Indisputably, AVA committed the crime of parricide under Article 246 of the Revised Penal Code, as amended by R.A. No. 7659, which is punished by reclusion perpetua to death. Considering that no modifying circumstances were proven, then pursuant to Article 63 of the Revised Penal Code, the lesser of the penalty, i.e., reclusion perpetua, was correctly imposed by the trial court on AVA. 10. ID.; HOMICIDE; PENALTY WHERE VICTIM IS BELOW 12 YEARS OLD.- LEEZEL was correctly held liable for the crime of homicide only as he was a stranger to the victim, ETHEL. Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child below twelve (12) years of age is reclusion perpetua. Accordingly, the penalty of reclusion perpetua should be imposed upon LEEZEL. 44

11. ID.; ID.; NECESSARILY INCLUDED IN PARRICIDE.- His claim that he was not charged in the amended information is absolutely wanting in basis. He was, although for parricide, but, he could legally be convicted of homicide, which is necessarily included in that charged.

FIRST DIVISION

[G.R. No. 122248. February 11, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER DORADO, accusedappellant. DECISION DAVIDE, JR., C.J.: Accused-appellant Roger Dorado (hereafter ROGER) appeals from the decision [1] of the Regional Trial Court (RTC), Branch 18, Roxas City, in Criminal Case No. C-4588, which convicted him of murder and accordingly sentenced him to serve the penalty of reclusion perpetua and to pay the heirs of the victim, Isidro Bui, P50,085.50 as actual damages and P50,000.00 as civil indemnity. The criminal complaint accusing ROGER of murder was based on the sworn statements of the victims widow, Nelly Bui, and three eyewitnesses, Danilo Tapayan, Adorico Sarcino, and Gigger Besana.[2] ROGER, who was on bail, waived presentation of evidence in the preliminary investigation. On 30 June 1994, an information[3] was filed with the RTC of Roxas City charging ROGER with the crime of murder; thus: That on or about 2:00 oclock in the morning of January 23, 1994, at Sitio Tico, Brgy. Tabuc, Pontevedra, Capiz, and within the jurisdiction of this Court, the said accused did then and there, and with deliberate intent to take the life of ISIDRO BUI, wilfully, feloniously and treacherously stab the latter [ ] inflicting upon him a mortal wound on the stomach thereby causing the untimely death of said victim. CONTRARY TO LAW and with the qualifying circumstance of treachery. The prosecution presented the following witnesses: Gigger Besana, Dr. Gervacio Diaz, and Nelly Bui. Besana knew ROGER, whose wife was his (Besanas) cousin. He testified that in the early morning of 23 January 1994 he was in a benefit dance. His companions included Danilo Tapayan and the victim, Isidro Bui. At that time, ROGER was some three meters away from Isidro, who was conversing with Danilo and facing the dance hall. He saw ROGER approach 45

Isidro from behind, place his hand on Isidros shoulder, and stab him in his stomach. Besana was just one-and-a-half meters away. He was certain of what he saw because the place was well lit. He described the weapon as a small long knife and twice demonstrated how ROGER stabbed Isidro. He also claimed that Isidro had no opportunity to defend himself. He knew no reason for the attack, since no altercation between the two took place. After the incident, ROGER fled the scene. Besana then approached Isidro, who was slumped on the ground. Seeing the gravity of Isidros injury, he and several men brought Isidro to the hospital. Isidro eventually died.[4] Dr. Gervacio Diaz was the doctor who examined Isidro in the hospital. He immediately operated on him, but Isidro expired some hours later due to profuse bleeding. He then issued a medical certificate,[5] which described the single stab wound inflicted on Isidro. He opined that the wound was caused by a long, sharp bladed instrument. He also issued a death certificate, [6] which indicated that the proximate cause of death was hemorrhage due to a stab wound.[7] Nelly Bui, the widow of Isidro, testified that in the dawn of 23 January 1994 she was fetched from her boarding house and brought to the hospital where her husband was. While in the surgical ward, her husband managed to converse with her. When asked who could have stabbed him, her husband replied that he failed to see the assailant because the latter came from behind. Her husband died that afternoon. She incurred expenses for the hospitalization and funeral services in the amounts of P11,085.50 and P15,000.00, respectively. Both were covered by official receipts.[8] She separately paid Dr. Diaz P9,000.00 as professional fee; however, no receipt was issued. She estimated that funeral expenses amounted to P30,000.00, since her husband lay in state for one month. The interment was delayed because the family awaited the arrival of her brother, who was a seaman.[9] As might be expected, the defense had a different version. Carlos Borbon testified that in the evening of 22 January 1994 he could not sleep at home because of the blaring music coming from the benefit dance. He left home to watch the affair from outside the dance hall. [10]He claimed that an altercation between ROGER and the victim, Isidro Bui, occurred that evening. It involved the bidding of a basket of goods held in the benefit dance. The emcee of the benefit dance declared that Isidro was buying the basket at P200. Part of the prize was the honor to dance with the lady who held the basket. Isidro got to dance with the lady. Thereafter, the emcee again inquired who would like to dance next with the lady. ROGER volunteered and declared that he also wanted to buy the basket at P250. The emcee thus took the basket from Isidro and handed it to ROGER, who also danced with the lady. After the dance, ROGER returned to his seat. Isidro accosted him, thrusted his fingers on ROGERs face, and demanded why ROGER bought the basket which was already his. Isidro then kicked ROGERs foot. ROGER stood up, and Isidro immediately brandished a knife from his waist. Before Isidro could harm ROGER, the latter was able to get the knife from the former by twisting Isidros hand. Isidro tried to grapple the knife. In the process, ROGER stabbed Isidro once. Thereafter, ROGER ran out of the dance hall.[11] Borbon also claimed that he was testifying on his own volition because the killing of Isidro was indeed done by ROGER in self-defense. He did not immediately report the matter to the police because no one bothered to ask him. He also knew that after the incident the police was searching for ROGER, who was hiding in the place of his in-laws. He agreed to testify upon the request of ROGERs wife.[12] ROGER invoked self-defense in his testimony. He declared that he arrived at the benefit dance at around 11:00 p.m. of 22 January 1994. The dance continued until the following morning. During the affair, a bidding of a basket of goods took place. A certain Isidro Bui gave a bid of P200, and he was able to dance with the lady who held the basket of goods. Thereafter, ROGER decided to also bid for the basket at P250. The emcee led the lady to him, and he likewise danced with her. While they were dancing another person gave a higher bid of P300. The lady was taken from him and offered to the next bidder. He thus returned to his seat. Isidro followed him to his seat and thrusted his fingers towards him. Isidro claimed that the basket was already his and demanded why he, ROGER, had to dance with the lady. Isidro appeared drunk and angry. When ROGER stood up, Isidro kicked him and pulled a knife from his waist. Roger managed to grab the knife from Isidro, but the latter tried to wrest it from the former. Instead, he lunged the knife once into Isidros waist. He was afraid that should Isidro take possession of the knife the latter would stab him.[13] 46

ROGER fled the scene because Isidro had several companions. He proceeded to the house of his in-laws and stayed there for three days. He did not surrender since no complaint was filed against him. He remained in hiding because he was afraid of Isidros family, which was powerful. He also admitted that he only surfaced when his bail bond was ready, which was almost four months after the incident.[14] The prosecution presented rebuttal evidence through the testimonies of Amable Bertuso and Jose Belvis. Bertuso was the master of ceremonies of the benefit dance. He arrived at about 10:00 p.m. of 22 January 1994. There were five baskets of goods for bidding. He testified that ROGER neither danced nor bidded for a basket. The last basket to be sold was initially bidded by Gigger Besana at P250. The bid was upped by Isidro at P300. The basket was eventually awarded to Isidro. At the time the stabbing incident happened, he was nowhere in the dance hall; he had gone home. His testimony was obtained through the invitation of ROGERs brother-in-law. [15] Jose Belvis testified that he knew Carlos Borbon, who married his (Joses) cousin. He claimed that ROGER and Carlos were related by affinity; ROGER married the niece of Carlos wife.[16] In its decision of 21 July 1995, the trial court convicted ROGER. It rejected the theory of self-defense and, instead, gave credence to the version of the witnesses for the prosecution. It cited inconsistencies in the testimony of ROGERs witness, Carlos Borbon. It also declared that ROGERs flight from the scene of the crime was indicative of his guilt. It appreciated treachery because the accused, without any provocation, suddenly attacked the victim from behind without giving the latter an opportunity to defend himself. ROGER appealed the decision, contending that the trial court erred in (1) declaring that treachery attended the killing of Isidro Bui; (2) convicting him of the crime of murder; and (3) rejecting his plea of self-defense. According to ROGER, it does not necessarily follow that treachery exists when the attack was sudden and unexpected. For treachery to be considered as a qualifying circumstance, it should be shown that the offender consciously and deliberately adopted particular means to ensure the execution of the crime without risk to himself. The testimony of Gigger Besana that ROGER came from behind the victim and stabbed the latter with one hand while the other hand was placed on the victims shoulder does not establish treachery. ROGER further maintains that the killing of Isidro Bui was an act of self-defense. The testimony of his witness, Carlos Borbon, was truthful and credible. The inconsistencies pointed out by the trial court did not pertain to the act of killing, but rather to minor matters such as his relationship by affinity with ROGER. Finally, ROGER asserts that his flight should not be taken against him. The reason he immediately fled the scene after the incident was that he was taken by fear - the family of the deceased was powerful and that night the deceased had several companions. He emphasizes that he immediately surrendered upon securing his bail bond. The Office of the Solicitor General (OSG) refutes the errors raised in this appeal. It contends that treachery was evident because there was no prior altercation that might have put the victim on guard. The attack was swift and sudden, coming from the victims back, therefore, unabling the victim to defend himself. The OSG further argues that the theory of self-defense is weak. The testimony of the defense witness, Carlos Borbon, was rehearsed and incredible. His belated disclosure of what he allegedly witnessed casts doubt on his credibility and his presence in the scene of the crime. It can only be concluded that Borbon was a biased witness, and the prosecution dutifully exposed his relationship by affinity with the accused. Finally, the OSG notes that ROGERs behavior after the incident runs contrary to his proclaimed innocence. His flight and failure to immediately report the matter to the police negate self-defense. Also, the fact that he waived his right to present evidence in the preliminary investigation strongly suggests that he did not act in self-defense. We sustain ROGERs conviction. 47

The first issue to settle is whether the killing of Isidro Bui was an act of self-defense. Selfdefense as a justifying circumstance must satisfy the following requirements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to repel the aggression; and (3) lack of sufficient provocation on the part of the accused. [17] The burden of proving by clear and convincing evidence that the killing was justified is on the accused. In doing so, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution.[18] ROGER insists that he acted in self-defense. He asserts that there was a prior altercation between him and the deceased. The latter assaulted him and then brought out a knife. He feared for his life and tried to wrest the knife away. In taking possession thereof he stabbed the victim. We are not persuaded. Immediately after the stabbing, ROGER fled. He also admitted that he was in hiding. He remained in hiding until his bail bond was ready four months after the incident. His explanation for not surrendering earlier was that the victims family was powerful and on that fateful night, the victim had several companions. Yet on cross-examination, he admitted that he hid because at that time he had no bail bond.[19] These admissions that he fled, hid for four months, and surfaced only when his bail was ready -- taken with his failure to invoke self-defense at the outset and his waiver of his right to present evidence in the preliminary investigation -- strongly contradict the actions of an innocent man. These acts can only be attributed to a guilty conscience, for an innocent man will readily surrender and clear his name. ROGERs flight evidences guilt.[20]His alleged fear of the deceaseds companions and powerful family deserves scant consideration. We can only conclude that the defenses version was contrived to exculpate ROGER of his crime. We, therefore, uphold the version of the prosecution. The testimonies of the witnesses are in accord with the sworn statements executed by the eyewitnesses immediately after the stabbing incident. Well-settled is the rule that where the credibility of witnesses is in issue, the appellate courts will generally not disturb the findings of the trial court, which is an a better position to determine the issue, having the advantage of hearing and witnessing the deportment of the witnesses during trial. While this rule admits of exceptions, this Court sees no reason to apply any to the instant appeal.[21] The next issue to settle is whether the crime is homicide or murder. The prosecution clearly established that the killing was attended with treachery. This is culled from the testimonies of eyewitness Gigger Besana and the victims widow, Nelly Bui. Besana declared that the attack was sudden, swift, and without any provocation, thus leaving the victim totally defenseless. [22] Nelly Bui testified that when she inquired from her husband who could have attacked him, his reply was that he was unable to see his assailant because the latter came from behind.[23] For treachery to be considered a qualifying circumstance, two elements must concur: (1) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution is deliberately or consciously adopted.[24] Jurisprudence has consistently held that an unprovoked, sudden, and unexpected attack by the accused towards the back of an unarmed victim, unabling the victim to defend himself, is an attack done in a manner which directly and specifically insures the execution thereof without any risk to the accused which may arise from the defense the victim may make. [25] In such instances, the qualifying circumstance of treachery, as properly alleged in the information and proved in court, is present. WHEREFORE, the appeal is DISMISSED. The decision of the Regional Trial Court, Branch 18, Roxas City, in Criminal Case No. C-4588 finding accused-appellant Roger Dorado guilty beyond reasonable doubt, as principal, of murder and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of the victim P50,085.50 as actual damages and P50,000.00 as civil indemnity is hereby AFFIRMED in toto. Costs against the accused-appellant. SO ORDERED. Melo, Kapunan, and Pardo, JJ., concur. People versus Dorado 48

SYNOPSIS Accused-appellant Roger Dorado was convicted by the trial court of murder. In convicting accused-appellant, the trial court gave credence to the testimonies of the prosecution witnesses. In his appeal before the Supreme Court, accused-appellant reiterated his plea of self-defense. He also negated the existence of treachery in the commission of the crime. The Supreme Court was not persuaded by accused-appellants contentions. It ruled that accused-appellants admissions that he fled, hid for four months and surfaced only when his bail was ready taken with his failure to invoke self-defense at the outset and his waiver of his right to present evidence in the preliminary investigation strongly contradict the actions of an innocent man. These acts can only be attributed to a guilty conscience, for an innocent man will readily surrender and clear his name. ROGERs flight evidences guilt. His alleged fear of the deceaseds companions and powerful family deserves scant consideration. SYLLABUS 1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; REQUISITES. -- Self-defense as a justifying circumstance must satisfy the following requirements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to repel the aggression; and (3) lack of sufficient provocation on the part of the accused. The burden of proving by clear and convincing evidence that the killing was justified is on the accused. In doing so, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution. 2. ID.; ID.; ID.; NEGATED BY ADMISSIONS OF FLIGHT. -- Immediately after the stabbing, ROGER fled. He also admitted that he was in hiding. He remained in hiding until his bail bond was ready four months after the incident. His explanation for not surrendering earlier was that the victim's family was powerful and on that fateful night, the victim had several companions. Yet on cross-examination, he admitted that he hid because at that time he had no bail bond. These admissions that he fled, hid for four months, and surfaced only when his bail was ready -- taken with his failure to invoke self-defense at the outset and his waiver of his right to present evidence in the preliminary investigation -- strongly contradict the actions of an innocent man. These acts can only be attributed to a guilty conscience, for an innocent man will readily surrender and clear his name. ROGER's flight evidences guilt. His alleged fear of the deceased's companions and powerful family deserves scant consideration. We can only conclude that the defense's version was contrived to exculpate ROGER of his crime. 3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; APPELLATE COURTS WILL GENERALLY NOT DISTURB FINDINGS OF TRIAL COURTS; EXCEPTIONS NOT APPLICABLE IN CASE AT BAR. -- The testimonies of the witnesses are in accord with the sworn statements executed by the eyewitnesses immediately after the stabbing incident. Well-settled is the rule that where the credibility of witnesses is in issue, the appellate courts will generally not disturb the findings of the trial court, which is an a better position to determine the issue, having the advantage of hearing and witnessing the deportment of the witnesses during trial. While this rule admits of exceptions, this Court sees no reason to apply any to the instant appeal. 4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; APPRECIATED IN CASE AT BAR. -- The prosecution clearly established that the killing was attended with treachery. This is culled from the testimonies of eyewitness Gigger Besana and the victim's widow, Nelly Bui. Besana declared that the attack was sudden, swift, and without any provocation, thus leaving the victim totally defenseless. Nelly Bui testified that when she inquired from her husband who could have attacked him, his reply was that he was unable to see his assailant because the latter came from behind. Jurisprudence has consistently held that an unprovoked, sudden, and unexpected attack by the accused towards the back of an unarmed victim, unabling the victim to defend himself, is an attack done in a manner which directly and specifically insures the execution thereof without any risk to the accused which may arise from the defense the victim may make. In such instances, the qualifying circumstance of treachery, as properly alleged in the information and proved in court, is present. 5. ID.; ID.; ID.; ELEMENTS. -- For treachery to be considered a qualifying circumstance, two elements must concur: (1) the employment of means of execution which gives the person 49

attacked no opportunity to defend himself or retaliate; and (2) the means of execution is deliberately or consciously adopted. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Nicanor G. Nuevas for accused-appellant

SECOND DIVISION

[G.R. No. 91999. February 25, 1999]

THE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, PIAMONTE, accused-appellant. DECISION

vs. ANTONIO

MENDOZA, J.: This is an appeal from the decision,[1] dated December 26, 1989, of the Regional Trial Court (Branch 47) in Puerto Princesa City, Palawan, finding accused-appellant Antonio Piamonte guilty of murder and sentencing him to reclusion perpetua and to pay the heirs of the victim Benjamin Sarmiento P30,000.00 as civil indemnity and the costs. The information alleged That on or about the 17th day of September, 1988, at Barangay Pagkakaisa, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, and while armed with a bladed weapon, did then and there wilfully, unlawfully and feloniously assault, attack and stab therewith one BENJAMIN SARMIENTO, hitting him on the different parts of his body, thereby inflicting upon him multiple stab wounds, which were the direct and immediate cause of his death. CONTRARY TO LAW.[2] Two alleged eyewitnesses and the doctor who performed the autopsy on the deceased were presented by the prosecution in support of its case. First to testify was David Morte, first cousin of the deceased Benjamin Sarmiento. [3] Morte testified that he is a resident of Barangay Pagkakaisa, Cuyito, Puerto Princesa City; that in the evening of September 17, 1988, he asked the deceased to accompany him to the latters cumpadre, Conrado Aryo, who owned a fishing boat; that between 8:30 and 9:00 that evening, while he, the deceased, and a certain Antonio were on their way to the house of Aryo, accused-appellant Antonio Piamonte suddenly appeared and attacked the deceased, stabbing him on the chest with a one-foot knife; that they were so shocked by what they saw that he and Antonio ran; that although it was somewhat dark, he was able to see the stabbing because of the light coming from the place they were going to; that he had known both accused-appellant and the deceased for a long time; that accused-appellant was alone when he stabbed the deceased; and that he did not know of any quarrel between the deceased and accusedappellant.[4] On cross-examination, Morte said that his brother, Elino Morte, had been convicted of killing the brother of accused-appellant, although he claimed he bore accused-appellant and the latters family no ill will.[5] 50

On re-direct examination, Morte said that at the time of the incident, he and his companions were on their way to the house of the deceaseds cumpadre, Conrado Aryo, when accusedappellant suddenly appeared on the bridge coming from the house. [6] On re-cross,[7] Morte testified that when he and his companions saw accused-appellant for the first time, the latter was not yet actually holding the knife.[8] The other prosecution witness, Antonio Nito, claimed that in the evening of September 17, 1988, he and David Morte went to see the deceased to ask him to recommend them to Aryo for a job as a pumpboat operator; that they were not able to reach Aryos house because on their way Benjamin Sarmiento was stabbed; that while he saw the assailant, he did not recognize him because it was dark and the deceased did not call out the name of accused-appellant; and that in his sworn statement (Exh. A)[9] he identified accused-appellant as the assailant based on the shape of his body.[10] On cross-examination, Antonio Nito testified that he did not report the incident to the police [b]ecause I have my work to do [food processing of marine products]; that the stabbing took place at an alley between two houses with no light from the houses; and that he did not know accused-appellants motive in stabbing the deceased.[11] Dr. Rudolph Baladad, Medical Officer II of the Puerto Princesa City Health Department, also testified. He said he performed an autopsy on the deceased on September 18, 1988 and found that he had suffered two fatal stab wounds, one of which penetrated the lungs and the other, the spleen; and that in his opinion, both wounds were inflicted by the assailant while facing the deceased. He explained that there was only one knife used judging from the fact that the two wounds had the same measurement and clean edges and that the knife must be a doublebladed one because the edges of the wounds were cleancut, and that it must be two inches wide, and at least more than five inches long because it was able to penetrate the abdominal wall and anterior chest.[12] The autopsy report (Exh. B) prepared by him described the fatal wounds, thus: POST MORTEM FINDINGS 1. STAB WOUND, Clean-Cut Edges Measuring, about 2 inches located over the 4th intercostal space right, anterior chest wall, parallel to right nipple. 2. STAB WOUND, Measuring about 2 inches, located over the left abdomen, between the right hypochondriac region and umbilicus.[13] Dr. Baladad issued a death certificate (Exh. C) stating the cause of death to be Shock 2 o to Hemorrhage due to Multiple Stab wounds.[14] Accused-appellant Antonio Piamonte testified in his defense. He admitted stabbing the deceased twice but claimed that it was the deceased Benjamin Sarmiento and his two companions who attacked him and he merely acted in self-defense after wresting the knife from the deceased. Accused-appellant claimed that at around six in the evening of September 17, 1988, while he was home in Barangay Pagkakaisa making arrows, Benjamin Sarmiento, David Morte, and another man whose name he did not know, came and beat him up; that the three were drunk; that the deceased warned him, Hindi kita patatagalin, papatayin kita (I wont let you live long, Ill kill you); and that the three then left, but, at around nine that evening, they returned and called on him to come out; that as he refused, they dragged him out of his house and beat him, while telling him that he had only until midnight to live. Then, according to accused-appellant, the deceased drew his knife and lunged at him, but he was able to avoid the thrust and seize the knife from the deceased, and to stab the latter. Accused-appellant said he was not able to surrender the knife to the police because he threw it away. As he felt dizzy, he did not notice where he had thrown it and that he could no longer find [the knife] because there are many seaweeds in the sea where [he] threw it.[15] Accused-appellant admitted that bad blood existed between his family and that of the deceased as a result of the killing of his (accused-appellants) brother by David Mortes brother, a first cousin of the deceased. He claimed he was not able to file a case against David Morte for the alleged attack on him because he had been put in jail. On cross-examination, accused-appellant testified that David Morte, though shorter, was bigger than he, and that the third man was also bigger; that when the three men first attacked him, Benjamin Sarmiento did not have a knife but when they returned, Sarmiento already had a knife which he tried to use against him (accused-appellant). Accused-appellant claimed he was 51

able to get the knife from the deceased and that he only used it against the latter because he had already been badly hurt. Accused-appellant admitted, however, that he did not report the incident to the authorities or tell the inquest fiscal that he killed the deceased in selfdefense. He said he did not run when the deceased and his companions returned because [t]hats already my house.[16] Accused-appellants testimony was corroborated by Juanito Araneta, whose house is just two arm lengths from that of the deceased. [17] He testified that in the evening of September 17, 1988, just after supper, he heard a commotion outside his house; that when he checked, he saw accused-appellant being attacked by the deceased, David Morte, and another person whom he did not know but whose face was familiar; that he shouted at the assailants to stop but was told to shut up and mind his own business (Huwag kang makialam dito); that the three then went away only to come back later and call on accused-appellant to come out; that when accusedappellant came out from his house he was again beaten up; that he then saw the deceased pull out a five-inch knife, but accused-appellant was able to wrest it from the deceased; that after seeing accused-appellant get the knife, he (the witness) was not interested anymore in seeing what would happen next and so he went inside his house and slept; that the place where the incident took place was a walk or a bridge; and that while there were people in the neighborhood, they were asleep and it was only he who saw the incident.[18] On cross-examination, Juanito Araneta said that the first attack preceded the stabbing incident by three hours; that each of the men who assaulted accused-appellant was bigger than he; that despite this and the fact that one was holding accused-appellant while the others were boxing him, accused-appellant was nevertheless able to wrest the knife from the deceased; that he (Juanito Araneta) volunteered to testify in accused-appellants behalf; and that accusedappellant was badly hurt in the first attack.[19] Dr. Rudolph Baladad, who testified for the prosecution, also testified for the defense. He treated accused-appellant on September 20, 1988 for the following injuries stated in the medical certificate (Exh. 1) he issued: 1. Abrasion, right madibular region 2. Pain & tenderness, neck, right side 3. Pain & tenderness Hypogastric region and testicular region.[20] Dr. Baladad opined that the injuries could have been caused by a fall, by a mauling incident, or by a vehicular accident; that he noticed no external injuries, hematoma, successive blows on the body of accused-appellant but just pain and tenderness and abrasion or a scratch; that the said abrasion could be caused by one or two persons; and that accusedappellant was not limping when he came to see him.[21] On the basis of the foregoing testimonies, the trial court held that, initially, the deceased and his companions were the aggressors. One of them subjected him to fist blows, as shown by an abrasion on his neck and tenderness in other parts of his body. In retaliation for what had been done to him, he waited for the group to pass by his house again. When he saw them three hours later, accused-appellant attacked Benjamin Sarmiento with a knife. Hence, the trial court found accused-appellant guilty of murder qualified by evident premeditation and treachery. Its analysis of the testimonies of the witnesses is as follows: It appears to the Court that there is more truth to the version that the accused was first boxed or mauled by the victim or by one of his companions at about 6:00 oclock that afternoon of September 17, 1998, and that explains why he suffered mere abrasions in his neck which, according to Dr. Rudolph V. Baladad, Sr. could have been caused by falling, or he could have been mauled by a person. Three persons mauling him would have been too much; he could have suffered extensive and more serious bodily injuries than mere abrasions. The defense exaggerated and blew up his defense clearly beyond believable proportion. To the mind of the Court, the accused had entertained ill-feeling and grudge against the victim when the latter assaulted him earlier that day, or at about 6:00 oclock in the afternoon of September 17, 1988, evidenced by his Medical Certificate (Exhibits 1 and 1-A) which conclusively proves that he was indeed hurt. With the injury and wounded feelings he nursed, he decided and planned to retaliate, so he armed himself with a sharp-bladed weapon and 52

prepared for an occasion where he could vent his ire and hit back at the victim, for he could not tackle him in a frontal or face-to-face fist fight. Since he has an impelling motive to revenge and as premeditated and perfected laid out by him, which is in accord with the testimonies of the prosecution eyewitnesses, the accused waited for the victim to pass by his house that same night or any day thereafter and when the opportunity presented itself, he grabbed it by treacherously, deliberately, suddenly and unexpectedly stabbing the victim in his chest and abdomen. He hit the delicate parts of the victims body to insure that he gets killed without being able to defend him from the assault. The accused really intended to kill the victim as shown by the deadly weapon he used, the fatal area he hit and the repetition by which he struck him.[22] Accordingly, the trial court held: WHEREFORE, viewed from the foregoing facts, reasons and considerations and with the accuseds voluntary admission that he stabbed the victim, Benjamin Sarmiento in the manner and method hereinabove described that caused his death, the Court holds and finds the herein accused, Antonio Piamonte, guilty beyond reasonable doubt of the crime of Murder charged against him by the prosecution as defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA: to pay the family or heirs of the victim civil indemnity amounting to P30,000.00; and to pay the costs.[23] Hence, this appeal. Accused-appellant contends: I. THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLANT ACTED IN LAWFUL SELF-DEFENSE. II. THE LOWER COURT ERRED IN DECLARING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND BY IMPOSING HIM TO SUFFER AN IMPRISONMENT OF RECLUSION PERPETUA.[24] Accused-appellants contentions are without merit. I. Having admitted killing the deceased, accused-appellant has the burden of proving that he acted in self-defense by showing (1) unlawful aggression on the part of the deceased; (2) reasonable necessity of the means employed by him to prevent or repel the aggression; and (3) lack of sufficient provocation on his part in defending himself. Accused-appellant has failed to discharge this burden. A. His version of how he was able to wrest the knife from the deceased is incredible. He alleges that he fought three men, all of whom were bigger than he, with one (the deceased Benjamin Sarmiento) even armed with a knife. How despite these odds he was able to parry the knife thrust of the deceased and eventually wrest the knife from him is hard to understand. How he was able to wound his adversary not just once but twice, hitting him in vital portions of the body, although he was allegedly down,[25] is even harder to fathom. The location and the nature of the wounds (deep with clean edges) suggest that accused-appellant was not just defending himself but was actually attacking his victim with intent to kill. [26] Moreover, as held in People v. Jotoy,[27] the fact that he threw the knife away instead of surrendering it to the authorities and reporting the incident negates the claim of self-defense. B. The defense presented a witness, Juanito Araneta, whose testimony was, if not contradictory, ridiculous. His testimony raises serious doubts as to whether he really saw the incident. Accused-appellant claims that the deceased and his companions came back at around nine in the evening in order to carry out their earlier threat to kill him [28] and dragged him out of his house because he refused to come out. Juanito Aranetas version is that the deceased and his companions told Antonio Piamonte to come down and when he went down, they again helped each [other] in mauling [him].[29] In his attempt to show that accused-appellant was the victim, not the aggressor, Araneta only succeeded in making his testimony incredible. Araneta testified that after seeing accusedappellant succeed in wresting the knife from the deceased he (Araneta) lost further interest in watching the fight and so went inside his house and slept.[30] Later, on cross-examination,[31] he testified that he did not go to sleep; he actually went fishing. 53

Araneta also claimed he saw the incident because he had been drawn to it by a commotion. Yet, only he heard the commotion and went out of the house to see what was going on. His neighbors, according to him, were all asleep. [32] How could only he, and not his neighbors, have heard the commotion? Thus, having failed to show that he acted in self-defense, accused-appellant must be adjudged guilty of the killing of Benjamin Sarmiento. II. As already stated, the trial court found that accused-appellant had been beaten up by Benjamin Sarmiento and his group and that, in revenge, he waited for the group to pass by his house again and, upon seeing them, he assaulted Sarmiento and stabbed him twice. On the basis of this finding, the trial court held the killing to be murder, qualified by evident premeditation and treachery. It is now settled that qualifying and aggravating circumstances, which are taken into consideration for the purpose of increasing the degree of penalty to be imposed, must be proven with equal certainty as the commission of the act charged as criminal offense.[33] With respect to the qualifying circumstance of evident premeditation, the following must be shown: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[34] In this case, evident premeditation cannot be appreciated because there is no direct proof showing when accused-appellant conceived the plan to kill the deceased, that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. In People v. Sol,[35] it was held that a finding of evident premeditation cannot be based on mere lapse of time. In People v. Timblor,[36] where the accused had a fistfight with the victim and after an hour, he came back with a bolo and killed his adversary, it was held that proof that after the fistfight the accused came back with a bolo cannot be considered proof that he had determined to kill his adversary. Nor could it be inferred from this circumstance that the accused had sought revenge. All that the evidence showed was that he sought his antagonist after their earlier fight. The Court reiterated earlier rulings that a qualifying circumstance like evident premeditation must be clearly shown just as the crime itself. Every element of the qualifying circumstance must be shown beyond reasonable doubt and cannot be left to speculation. On the other hand, treachery requires proof of the following: (1) the employment of means of execution which gives the person attacked no opportunity to defend or to retaliate; and (2) that said means of execution were deliberately or consciously adopted.[37] In this case, while the main prosecution witness David Morte testified during his direct examination that accused-appellant suddenly appeared and suddenly stabbed the deceased, on cross-examination he admitted that they saw accused-appellant when they were still very far although they did not then recognize him. We are not prepared to say that the stabbing of the deceased was sudden, unexpected, and unforeseen.[38] Nor is there proof that he employed such means as would ensure the commission of the crime without risk to himself since he knew that the deceased had two companions with him, both of whom were bigger than he (accusedappellant) while all he had was a knife. There was thus no qualifying circumstance, so that the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was no modifying circumstance (either aggravating or mitigating), the penalty should be fixed in its medium period. In accordance with current jurisprudence, the death indemnity should be raised from P30,000 to P50,000.00.[39] WHEREFORE, the decision of the Regional Trial Court of Puerto Princesa City (Branch 47) is MODIFIED and accused-appellant Antonio Piamonte is hereby found guilty of homicide and sentenced to suffer a prison term of 10 years of prision mayor, as minimum, to 17 years and 4 54

months of reclusion temporal, as maximum, and to pay the heirs of the victim Benjamin Sarmiento P50,000.00 as death indemnity and the costs. SO ORDERED. People versus Piamonte SYNOPSIS In this appeal, Antonio Piamonte was found guilty of murder qualified by evident premeditation and treachery for the killing of Benjamin Sarmiento. From the testimonies, the trial court held that, initially, the deceased and his companions were the aggressors. In retaliation appellant waited for the group to pass by his house and when he saw them, appellant attacked Sarmiento with a knife. Appellant did not deny stabbing the victim but he maintained it was in self-defense. Having admitted killing the deceased, appellant has the burden of proving that he acted in self-defense, but he failed to discharge this burden. Appellants allegation that he fought three men, all bigger than he and one armed with a knife, but still he was able to wrest the knife from Sarmiento and fatally wound him twice is hard to believe. Further, the location and nature of the wounds of the deceased suggest that appellant was actually attacking his victim with intent to kill. However, evident premeditation cannot be appreciated because there was no direct proof showing when appellant conceived the plan to kill the deceased, that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. Then also, treachery cannot be appreciated because there was no proof that appellant employed such means as would ensure the commission of the crime without risk to himself since he knew that the deceased had two companions with him. Since there was no qualifying circumstance the crime committed was homicide. SYLLABUS 1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; ELEMENTS. -- Having admitted killing the deceased, accused-appellant has the burden of proving that he acted in self-defense by showing (1) unlawful aggression on the part of the deceased; (2) reasonable necessity of the means employed by him to prevent or repel the aggression; and (3) lack of sufficient provocation on his part in defending himself. Accusedappellant has failed to discharge this burden.

2. ID.; ID.; ID.; NEGATED IN CASE AT BAR. -- Appellant's version of how he was able to wrest the knife from the deceased is incredible. And, the location and the nature of the wounds (deep with clean edges) suggest that accused-appellant was not just defending himself but was actually attacking his victim with intent to kill. Moreover, as held in People v. Jotoy, the fact that he threw the knife away instead of surrendering it to the authorities and reporting the incident negates the claim of self-defense. 3. ID.; QUALIFYING AND AGGRAVATING CIRCUMSTANCES; PROOF REQUIRED. -- Qualifying and aggravating circumstances, which are taken into consideration for the purpose of increasing the degree of penalty to be imposed, must be proven with equal certainty as the commission of the act charged as criminal offense. Every element of the qualifying circumstance must be shown beyond reasonable doubt and cannot be left to speculation.

4. ID.; QUALIFYING CIRCUMSTANCES; EVIDENT PREMEDITATION; ELEMENTS. -- With respect to the qualifying circumstance of evident premeditation, the following must be shown: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act. In this case, evident premeditation cannot be appreciated because there is no direct proof of the said elements. 5. ID.; ID.; TREACHERY; ELEMENTS. -- Treachery requires proof of the following: (1) the employment of means of execution which gives the person attacked no opportunity to defend or to retaliate; and (2) that said means of execution were deliberately or consciously adopted. 55

6. ID.; ID.; ID.; NOT APPRECIATED. -- While the main prosecution witness testified that accused-appellant suddenly appeared and suddenly stabbed the deceased he also admitted that they saw accused-appellant when they were still very far although they did not then recognize him. We are not prepared to say that the stabbing of the deceased was sudden, unexpected, and unforeseen. Nor is there proof that he employed such means as would ensure the commission of the crime without risk to himself since he knew that the deceased had two companions with him, both of whom were bigger than he (accusedappellant) while all he had was a knife. 7. ID.; HOMICIDE; PROPER PENALTY IN CASE AT BAR. -- There was thus no qualifying circumstance, so that the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was no modifying circumstance (either aggravating or mitigating), the penalty should be fixed in its medium period. And in accordance with current jurisprudence, the death indemnity should be P50,000.00.

56

Case Digest on People v. Emberga G.R. 116616 Nov. 26, 1999 The victim supposedly attacked the Emberga brothers with a knife. The accused then threw rocks at the victim causing the latter to drop his knife. The accused then grabbed the knife and stabbed the victim 25 times. They were then charged with murder aggravated by treachery & cruelty. Accused plead defense of a relative and self defense. Held: Both were guilty of homicide only. Treachery cannot be presumed but must be proven which was not done here. As for the aggravating circumstance of cruelty, such is unavailing. The mere fact that the wounds were in excess of what was indispensably necessary does not imply cruelty. Self defense and defense of a relative may not be availed of. The alleged unlawful aggression on the part of the victim was not proven by clear & convincing evidence. Assuming there was an attack, the means used to repel the attack were not reasonably necessary since the victim already dropped the knife after the accused threw rocks and could no longer threaten the accused. THIRD DIVISION

[G.R. No. 116616. November 26, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO EMBERGA y MIGUEL and ROMEO EMBERGA y MIGUEL, accused-appellants. DECISION GONZAGA-REYES, J.: Accused-appellants Ricardo Emberga and Romeo Emberga were charged with murder in an Information[1] that reads as follows: That on or about the 28th and 29th of October, 1991 in Kalookan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, and without justifiable cause, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack and stab one RAFAELITO NOLASCO Y SARMIENTO with a bladed instrument on the different parts of the body, thereby inflicting upon the latter serious physical injuries, which injuries directly caused the victims death. CONTRARY TO LAW. In a Decision dated March 3, 1994, the Regional Trial Court of Caloocan City [2] convicted accused-appellants of the crime of murder. The dispositive part of the decision states: WHEREFORE, the prosecution evidence having established the guilt of the accused, ROMEO EMBERGA and RICARDO EMBERGA, beyond reasonable doubt for the crime of Murder, with one aggravating circumstance and without any mitigating circumstance, the Court hereby imposes a penalty of reclusion perpetua for each of the said accused and for each of them to indemnify the heirs the sum of Fifty Thousand (P50,000.00) Pesos and the sum of Seventeen Thousand Five Hundred (P17,500.00) Pesos for actual or compensatory damages, and to pay the costs. The prosecution presented four witnesses, namely: Milagros Resulta, sister-in-law of the victim and eyewitness to the crime; Dr. Ricardo Ibarrola, medico-legal officer of the National Bureau of Investigation who conducted an autopsy of the victims body; Erlinda Resulta Nolasco, wife of the victim who testified on the claim of the victims family for actual damages; and Vivencio Gamboa, the police officer who investigated this case. 57

Milagros Resulta testified that she came home from work at around 11:00 in the evening of October 28, 1991, and was resting in her house at 155 Socorro Street, Caloocan City when she heard a commotion outside. She looked out of her window and saw accused-appellants and their father chasing her brother-in-law, Rafaelito Nolasco. The place was well-lit by a bulb outside the store in front of her house. She heard her brother-in-law shout, Bino, awatin mo ang mga anak mo. Resulta said that she felt afraid and sat on her bed. When she looked out the window again, she saw Rafaelito Nolasco lying on the ground, being stabbed by the accused-appellants. She sat on her bed again, and after a while, someone knocked on her door and told her that Rafaelito Nolasco was stabbed. She then went to her sisters house in Dalisay Street, also in Caloocan City, and informed her of the stabbing of her husband. That same night, she went to the Caloocan police station and reported that she witnessed the stabbing incident. Milagros also stated that it was only on that fateful night that she saw both accusedappellants for the first time, and that she came to know of their names only in court. Dr. Ricardo Ibarrola testified that there were 25 stab wounds found on the victims body, caused by one double-bladed weapon and one single-bladed weapon. The wounds inflicted by the double-bladed weapon were found on the left side of the head behind the ear, the upper left side of the chest, the abdomen, the left buttock, the right arm, and the left forearm. The singlebladed instrument was used to inflict stab wounds on the right middle aspect of the back. Dr. Ibarrola observed that there were about the same number of wounds on the front and back of the victims body. The wounds on the back, caused by the single-bladed instrument, were nonpenetrating and non-fatal, while the wounds inflicted by the double-bladed instrument and located on the front part of the body were fatal. [3] Vital organs were hit, such as the diaphragm, left kidney, large intestine, spleen and pancreas. [4] The cause of death, as pointed out by Dr. Ibarrola, was massive loss of blood due to multiple stab wounds.[5] Dr. Ibarrola further observed that the presence of wounds on the victims arms, which he called defensive wounds, as well as an incise wound on the left side of the neck[6], were indicative of a struggle between the assailants and the victim. Vivencio Gamboa testified that he was the police officer who went to the scene of the crime at about 12:00 to 1:30 in the morning of October 29, 1991 to investigate the stabbing incident. He interrogated the people milling around the area and found out from a certain SPO3 Ibe that the suspected perpetrators were the Emberga brothers. After trying, without success, to locate the Emberga brothers, he went back to the police station to prepare his report and found Milagros Resulta, who claimed to be a witness to the incident, at the station. He said that he interviewed Milagros Resulta but was unable to put her statement in writing because there was a brownout after the interrogation. Thus, he sent Resulta home. On November 13, 1991, on reporting to duty, he learned that accused-appellants were surrendered by their parents to the Pasay police station, and were later on taken to the Caloocan police headquarters. Gamboa testified that he was the one who interrogated accused-appellants and prepared their statements on the incident. On testimony, he declared that accused-appellants admitted their guilt to him. On the same day, he also took the statements of Gary Robinas and Danilo Ablaza, two alleged eyewitnesses to the incident who later testified in the trial as defense witnesses. He was also the same officer who prepared the statement of Erlinda Nolasco, the wife of the victim.[7] Erlinda Nolasco testified to the amount of actual damages, corresponding to lost income and burial expenses, suffered by the family of Rafaelito Nolasco as a result of his death. She stated that she and the victim had five children, aged 19, 18, 16, 14 and 8 years, respectively. She estimated the income of her late husband, who was a vendor, at P200.00 a day. She declared the following funeral expenses: P10,000.00 for the casket, P1,000.00 per day for wake expenses which lasted five days, and P500.00 per day for funeral parlor services. Meanwhile, the defense had four witnesses: accused-appellants Ricardo and Romeo Emberga, Gary Robinas and Danilo Ablaza. Accused-appellant Romeo Emberga admits to the killing of the victim, but he claims that he did so in defense of his brother, accused-appellant Ricardo Emberga. He recounted that at around 12:00 midnight on October 29, 1991, he and his brother Ricardo were walking home from the peryahan with two co-workers, Gary Robinas and Danilo Ablaza, when they passed by the victim, Rafaelito Nolasco, at Silangan Street. Allegedly, the victim attacked Ricardo Emberga unexpectedly and without warning, cursed him and stabbed him with a veinte y nueve knife. Ricardo Emberga ran away, while Romeo Emberga picked up a stone and a sharp piece of steel from the sidewalk and threw the 58

stone at the victim, hitting him on the head. They ran towards Socorro Street and as the victim faced him he picked up another stone and threw it at the victim, this time hitting him on the chest. This caused the victim to drop the veinte y nueve knife that he was holding. Romeo Emberga lunged for the knife, and thrust it into the victims body. Nagdilim ang aking pag-iisip was how he described his mental state during the incident, and he said that he could no longer remember how many times he stabbed the victim.[8] On re-cross examination, however, Romeo Emberga departed from the above story and said that when he got hold of the victims knife, the victim tried to grab the knife from him, and attacked him and punched him successively. It was at that point that he stabbed the victim.[9] Accused-appellant Ricardo Emberga corroborated the above testimony by saying that he ran away as soon as Rafaelito Nolasco stabbed him. He said that he went home and had his wounds treated by his mother, and claims no further knowledge in respect of the killing of Rafaelito Nolasco that night. Ricardo Emberga further stated that he sustained two wounds by virtue of the incident: one on the left side of his chest and another on his back. On testimony, he showed to the trial court two scars, on the left side of his chest and on his back, as proof of his injuries. [10] No medical certificate was presented, and Ricardo Emberga admitted that he did not submit himself to medical treatment, as the wounds were only gasgas, or abrasions. [11] Neither did he report the matter to the police.[12] In his testimony, Romeo Emberga said that he fled to the province after the stabbing incident, and that his brother Ricardo followed him there a day after, upon instructions of their father to fetch him and for the two of them to surrender to the police. [13] Ricardo Emberga, however, denies having gone to the province, and insisted that he remained in Caloocan City after the incident.[14] Gary Robinas and Danilo Ablaza are co-workers of accused-appellants in the local peryahan. During the investigation of the case, they executed sworn statements to the effect that they witnessed the killing of Rafaelito Nolasco by accused-appellants. [15] In their affidavits, they also stated that it was Ricardo Emberga who stabbed Rafaelito Nolasco in Silangan Street, contrary to the declarations of both accused-appellants that it was Nolasco who initially attacked Ricardo Emberga.[16] During the trial, however, Gary Robinas and Danilo Ablaza appeared as witnesses for the defense, and the testimonies they rendered were in direct contravention of their earlier affidavits. Robinas testified that on October 29, 1991 at around 12:30 in the morning, he, Ablaza, and accused-appellants were walking along Silangan Street on their way home when Rafaelito Nolasco suddenly stabbed Ricardo Emberga.[17] After stabbing Ricardo Emberga, Nolasco fled and Romeo Emberga ran after him.[18] Robinas then said that he saw nothing else because at that point, he went home.[19] Danilo Ablaza also stated that he saw Rafaelito Nolasco stab Ricardo Emberga, after which Ricardo Emberga ran away and Romeo Emberga faced Nolasco. [20] Ablaza then left to look for a barangay tanod. When he could not find one, he went back to the scene of the crime and saw that several persons have arrived and were standing about. He then decided to go home.[21] Robinas and Ablaza swear by the truth of their testimonies, and alleged that their accounts in the affidavits dated November 13, 1991 were vitiated and rendered under duress. They also said that they did not voluntarily go to the police station to give their statements on the incident, but were arrested by the police. According to Robinas, a policeman made him state in his sworn statement that it was the Emberga brothers, and not Romeo Emberga alone, who stabbed the victim.[22] Robinas, however, could not identify this policeman who allegedly threatened him.[23] Ablaza also said that he was merely threatened by the victims brother-in-law, Rolly Manalo, into signing his affidavit [24], and that the allegations in his affidavit were merely copied by the investigating officer from the affidavit of Robinas.[25] The trial court meted out its judgment of conviction on the basis of Milagros Resultas positive identification of both accused-appellants as the perpetrators of the crime. It also accorded great weight to the autopsy findings, respecting the number and location of the stab wounds, in arriving at the conclusion that the stabbing of the victim could have only been inflicted by two assailants in concerted action.[26] It likewise found implausible accused-appellant Romeo Embergas theories of self-defense and defense of relative. Accused-appellants flight to the province was also read by the trial court as indicative of their consciousness of guilt. 59

Before us, accused-appellants assign the following errors: I The trial court erred in giving credence to the conflicting, unreliable and incredible testimony of the prosecution witness Milagros Resulta. II The trial court erred in convicting Ricardo Emberga despite clear and convincing evidence presented by the defense that he was no longer present when his co-accused, Romeo Emberga, stabbed and killed Rafaelito Nolasco. III Despite clear and convincing evidence presented by the defense, the trial court failed to consider the exempting circumstance of self-defense in favor of the accused-appellants. Anent the first assignment of error, the defense questions the credibility of Milagros Resultas testimony of her behavior upon witnessing the killing of her brother-in-law. The records bear out that upon seeing her brother-in-law being chased by three men, she felt afraid and sat on her bed, and when she peeped out of the window again and saw the victim being stabbed by accused-appellants, she sat on her bed again and rose only when someone knocked on her door.[27] The defense argues that a person under the same circumstances would have shouted for help, instead of just looking helplessly at the victim being stabbed by the two men.[28] This Court has repeatedly held that there is no standard form of behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react.[29] That Milagros Resultas reaction upon witnessing the killing of her brother-in-law does not conform with the expectations of the defense does not in any way undermine her credibility, or destroy the essential integrity of her testimony. Besides, to our mind, there is nothing unusual or suspect about her claim to have been reduced to a fearful and confused silence upon witnessing the chase and killing, especially since the incident took place a mere ten meters away from her and victimized a member of her family. Moreover, Milagros Resultas credibility is bolstered by her forthrightness in volunteering her knowledge on the killing to the authorities a few hours after the incident. That in the succeeding investigation, her statement was not taken down in writing and sworn to before an officer authorized to administer oath does not impede her being subsequently presented as a prosecution witness. There is no law which requires that the testimony of a prospective witness should be reduced into writing in order that his or her declaration in court may be believed.[30] Next, the defense contends that the trial court erred in convicting accused-appellant Romeo Emberga inspite of clear and convincing evidence that he was no longer present when his fellow accused-appellant Ricardo Emberga stabbed and killed the victim. The evidence submitted by the defense anent this matter consisted of the testimonies of the two accused-appellants, and the corroborating testimonies of Gary Robinas and Danilo Ablaza. The supposition that Romeo Emberga had no participation in the subsequent killing of Nolasco, having come from Romeo Emberga himself and from his brother and fellow accusedappellant, Ricardo Emberga, amounts to nothing more than a denial which is self-serving and cannot prevail over the positive identification of a credible witness, Milagros Resulta.[31] Neither may the testimonies of Gary Robinas and Danilo Ablaza defeat the positive identification by Milagros Resulta of Ricardo Emberga. Robinas and Ablaza could have had no personal knowledge of the stabbing and killing of Rafaelito Nolasco because, as they respectively declared, after seeing the victim stab Ricardo Emberga, Robinas went home and Ablaza left to find a barangay tanod. Robinass later declaration on cross-examination that he witnessed Romeo Emberga, alone, kill Nolasco [32] is totally in conflict with his story on direct examination that after seeing Nolasco stab Ricardo Emberga, he went straight home. Posthaste, he attempted to cover the inconsistency by saying that he saw Romeo Emberga kill the victim from outside his house, which is too incredible because Robinas lived in Silangan Street while the killing took place in Socorro Street. 60

It is axiomatic that appellate courts accord the highest respect to the assessment of witnesses credibility by the trial court.[33] The opinion of the trial court as to who among the witnesses should be believed is entitled to great respect, the latter having had the unequalled opportunity to directly observe the witnesses and to determine by their demeanor on the stand the probative value of their testimonies. [34] In this light, we see no reason to contest the trial courts appreciation of the incredibility of the testimonies of Robinas and Ablaza. It is also worth noting that Gary Robinas and Danilo Ablaza earlier executed affidavits stating that it was Ricardo Emberga who attacked and stabbed Rafaelito Nolasco in Silangan Street. In his affidavit, Robinas went on to describe how both accused-appellants, Ricardo Emberga and Romeo Emberga, pursued Nolasco to Socorro Street upon whence they eventually caught up with him, stabbed him successively and slit his neck.[35] Accused-appellants also assign error on the trial courts refusing to give credence to their theory of defense of relative and self-defense. In order that defense of relative may apply, the following requisites must concur: (1) unlawful aggression, (2) reasonable necessity of the means employed to repel or prevent it, and (3) in case the provocation was given by the person attacked, the one making the defense had no part therein.[36] Based on accused-appellants version of the incident, it was Rafaelito Nolasco who attacked Ricardo Emberga in Silangan Street and stabbed him twice, after which Romeo Emberga pursued Nolasco to Socorro Street and there fought with him and killed him. The trial court, in ruling out the possibility of defense of relative, considered the following dearth in the evidence of the defense: (1) no medical certificate was submitted to prove that Ricardo Emberga was stabbed on the chest and on his back; and (2) the mother of Ricardo Emberga, who was said to have treated Ricardos wounds after the alleged stabbing incident, was not presented as a witness. It was also hard put to believe that: (1) the victim would have dared to stab Ricardo Emberga in the presence of his brother and their two other companions, Gary Robinas and Danilo Ablaza; and (2) the long-bladed instrument used to inflict wounds on the victims back allegedly produced only abrasions when used by the victim on Ricardo Emberga. We agree with the trial court that accused-appellants failed to satisfactorily prove the first and basic element of unlawful aggression. Other than their self-serving testimonies and the testimonies of Robinas and Ablaza, there is nothing to anchor the supposition that Rafaelito Nolasco first attacked and stabbed Ricardo Emberga. As a matter of fact, in the affidavits of Robinas and Ablaza, they declared that it was Rafaelito Nolasco who stabbed Ricardo Emberga in Silangan Street.[37] We are also not persuaded by accused-appellant Ricardo Embergas attempt to prove the fact that he was attacked first by Rafaelito Nolasco by showing in open court two small scars on his body --- one on the left side of his chest and another on his back. To our mind, the defense was unable to establish a logical nexus between these scars and the alleged stabbing of him by Nolasco. In other words, the showing of these scars in open court still leaves unresolved the question of whether the wounds which caused those scars were in fact inflicted by an unlawful attack by Rafaelito Nolasco on the early morning of November 28, 1991. Why we require clear and convincing evidence to support a claim of defense of relative is clearly because the invocation of a justifying circumstance, by its nature, correspondingly occasions admission of the slaying of the victim. Having owned up to the killing of Rafaelito Nolasco, accused-appellant Romeo Emberga stands criminally liable unless he is able to convince the Court that he acted in legitimate defense of his brother. [38] In this light, we cannot accommodate accused-appellants theory of defense of relative solely on the basis of the scars shown by Ricardo Emberga, there being no independent and credible evidence that the aggression which led to the infliction of these wounds was instigated by Rafaelito Nolasco. On the matter of self-defense also being invoked by Romeo Emberga, it is required that there be: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means used to prevent or repel the attack; and (3) lack of sufficient provocation on the part of the person defending himself.[39] Earlier in our discussion we have emphasized that unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Unlawful aggression presupposes an actual, sudden and unexpected attack, or an imminent danger thereof, and not merely a threatening or intimidating attitude.[40] 61

It is clear even from Romeo Embergas testimony alone that when he threw a stone at Rafaelito Nolasco, causing the latter to drop the knife he was holding, there was no longer any imminent risk or danger to his life. Thus, when Romeo Emberga went on to lunge for the victims knife on the ground and thrust it for an untold number of times into the victims body, he was not acting to repel an attack or to protect himself from the aggression of the victim. It strains credulity to accept the version of the defense that despite dropping the knife, the victim still faced Romeo Emberga in a menacing manner and with the intention of killing him. Furthermore, the nature, number and location of the wounds sustained by the victim are indicative of a determined effort to kill and not just to defend. [41] The presence of defensive wounds on the forearms of the victim only serves to reinforce the impression that the victim was clearly overpowered and could not, under the circumstances, have been the aggressor. The 25 stab wounds on the front and back of the victims body, found to have been caused by two different weapons, leave us convinced that the slaying was committed by more than one person. More so, the categorical and uncontroverted testimony of Milagros Resulta leaves no doubt on the identity of the perpetrators as being the herein accused-appellants. We cannot, however, affirm the holding of the trial court that the killing is qualified to murder by the attendance of treachery. The settled rule is that treachery cannot be presumed but must be proved by clear and convincing evidence, or as conclusively as the killing itself. [42] For treachery to lie, the following conditions must concur: (1) the accused employed means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) said means of execution was deliberately and consciously adopted.[43] In cases of continuous aggression, the circumstance of treachery must be shown present at the inception of the attack in order for it to be appreciated as a qualifying or generic aggravating circumstance.[44] In the instant case, we find that the prosecution failed to satisfactorily prove that accusedappellants purposely adopted treacherous means to ensure the killing of Rafaelito Nolasco. It must be remembered that before the slaying witnessed by Milagros Resulta in Socorro Street, the victim was first pursued by accused-appellants from nearby Silangan Street, where the aggression presumably originated. The circumstances surrounding the inception of the attack, particularly, who provoked the fight and whether the victim and accused-appellants were initially armed, are essential to the determination of the attendance of treachery. That the final fatal blows may have in truth been delivered under conditions exhibiting some features of treachery, as in this case where the victim was said to have dropped his knife and was thus attacked by accused-appellants who were both armed, does not remedy the fact that the prosecution failed to prove the existence of treachery at the onset of the attack.[45] We also cannot appreciate cruelty as an aggravating circumstance. For cruelty to be taken into consideration, it is essential for the prosecution to have proved that the multiple wounds found on the body of the victim were inflicted unnecessarily while he was still alive in order to prolong his physical suffering.[46] The mere fact that the wounds were in excess of what was indispensably necessary to cause death does not necessarily imply that they were inflicted with cruelty.[47] Thus, what the prosecution had established beyond reasonable doubt is the guilt of the accused for the crime of homicide only, not murder, for which the Revised Penal Code imposes the penalty of reclusion temporal. In the absence of aggravating or mitigating circumstances and applying in his favor the Indeterminate Sentence Law, the accused may thus be sentenced with an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties prescribed by law.[48] Lastly, on the matter of actual damages, we note from the records that private complainants have not substantiated, in terms of commercial receipts, income tax receipts, or similar documents, the actual damages, equivalent to burial expenses and lost income, incurred as a consequence of the victims death. While we cannot grant the claim for lost income for not having been duly proved, we award the claim for P17,500.00, corresponding to funeral and wake costs, based on the testimony of the victims wife, Erlinda Nolasco. WHEREFORE, the decision appealed from is hereby MODIFIED, and accused-appellants Ricardo Emberga y Miguel and Romeo Emberga y Miguel are found guilty beyond reasonable doubt of the crime of Homicide and sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months and one 62

(1) day of reclusion temporal, as maximum. They are further ordered to pay the heirs of the victim P50,000.00 as civil indemnity and P17,500.00 as actual damages. SO ORDERED.

THIRD DIVISION

63

[G.R. No. 125185. May 5, 1999]

THE

PEOPLE OF THE PHILIPPINES, plaintiff BORREROS, defendant and appellant. DECISION

and

appellee,

vs. VIRGILIO

PURISIMA, J: At bar is an appeal by accused Virgilio Borreros from the Decision [1] dated May 13, 1996 of Branch 225 of the Regional Trial Court of Quezon City in Criminal Case No. Q-91-21890, finding him guilty of the crime of Murder, and sentencing him thus: WHEREFORE, premises considered, the Court hereby finds the accused Virgilio Borreros GUILTY beyond reasonable doubt of the crime of Murder qualified by treachery for the killing of FEDERICO G. MEDINA. Considering that the death penalty was proscribed at the time said accused committed the crime, he is hereby sentenced to suffer the penalty of reclusion perpetua and to pay P50,000.00 as civil indemnity for the death of the said victim. Furthermore, the Court likewise finds the said accused GUILTY beyond reasonable doubt of the crime of Homicide for the killing of DANILO E. ALMARIO there being no mitigating circumstance and applying the provisions of the Indeterminate Sentence Law, the said accused is hereby sentenced to suffer an indeterminate penalty of from ten (10) years of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum and to pay P50,000.00 as civil indemnity for the death of the said victim. SO ORDERED. Filed on June 26, 1991, by Assistant City Prosecutor[2] Mercedes D. Penamora, the Information[3] indicting appellant of the offense charged, alleges: That on or about the 8th day of February 1990, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, did then and there willfully and feloniously, with intent to kill, qualified by evident premeditation and treachery, attack, assault and employ personal violence upon the persons of FEDERICO G. MEDINA and DANILO E. ALMARIO, by then and there shooting them with a handgun, hitting said Federico G. Medina and Danilo E. Almario on the different parts of their bodies, thereby causing serious and mortal wounds which were the direct and immediate cause of their death, to the damage and prejudice of the heirs of the above offended parties, in such an amount as may be awarded to them under the provisions of the Civil Code. CONTRARY TO LAW. With the accused entering a negative plea,[4] upon arraignment on May 11, 1994, with the assistance of counsel,[5] trial ensued with the prosecution presenting Arturo Ibarrientos, Faustino Varona, Dr. Dario Gajardo and Dr. Maximo Reyes, as its witnesses. Synthesized in the Counterstatement of Facts submitted by the Office of the Solicitor General, the Peoples version runs as follows: At about 7:00 p. m. of February 8, 1990, Arturo Ibarrientos, a tricycle driver, was about to park his tricycle along the 'talipapa' (market) in Old Balara, Quezon City. On his way, he saw appellant and Floro Dunayre walk toward the mahjongan. He noticed that appellant was carrying a gun. He followed appellant. At that time, several persons, including Federico Medina and Danilo Almario, the two unfortunate victims in this case were watching mahjong game. The victims were watching from outside the window. When appellant reached the mahjongan, he raised his gun and shot Federico at the forehead. Appellant was about one arm length from Federico when he shot him.[6] xxx 64

The shooting triggered a fracas among the people present in the mahjongan. xxx Faustino Varona, one of the 'mahjong' players who saw appellant shoot Federico dropped to the floor and hid under the mahjong table. For his part, Arturo Ibarrientos hid behind a door. Seconds later, three to four consecutive shots were heard. When the shooting stopped, Arturo peeped through the opening of the door to see the outcome of the shooting. He saw appellant and heard him say 'come on pare, he is already dead.' Arturo saw the bodies of Federico and Danilo lying on the ground. Arturo immediately left the place to ask help from the bystanders. [7] xxx The body of Federico was brought to the PNP Crime Laboratory, Quezon City for autopsy. Dr. Dario Gajardo, the head of the autopsy team found that Federico suffered two gunshot, one in the head and the other in the left forearm. xxx Upon the written request of Danilos wife, xxx Dr. Maximo Reyes conducted the autopsy on the body of Danilo. The autopsy report showed that Danilo suffered four gunshot wounds located at the left side of the back below the scapula, the right forearm, the left thigh and the lower left femur.[8] xxx After the prosecution rested, the defense placed on the witness stand Nita Labadia, Aurora Zapanta and the accused Virgilio Borreros, who testified on the theory of the defense, thus: Accused-appellant Virgilio Borreros who was a golf caddie from 1988 to 1990, testified that at around 6:00 p. m. of February 8, 1990, he passed by the mahjungan house on his way home from the Capitol City (where the Capitol Golf Course is located), where he saw Federico G. Medina alias Eric and Danilo Almario. Medina who was his childhood friend, called out to him, so he approached him. He stated that Medina 'prodded me with the rattan stick he was holding' and was about to strike him so he ran away. Medina who was drunk, chased him until the bridge. When he got home, he rested, and at about 7:00 p. m., he went back to the mahjongan to get the golf balls he left behind. He again saw Medina and Almario and was about to retreat when he was seen by them. Medina collared him and he warded off Medinas hands which angered the latter, who cursed him saying: "Putang ina, lalaban ka". He also cursed Medina who then drew his gun. He, however, managed to grab the gun and he moved back, but Medina was attacking him so he shot Medina. Almario, who was at the back of Medina was about to get a pamalo, so he shot him at the feet to warn him. Almario, however, faced him with the pamalo and attacked him, so he shot him again in the thigh. Almario continued on attacking him, so he shot him again.[9] xxx "Borreros further stated that Medina must have harbored ill feelings against him when he rejected the proposition of the latter to sell guns for a commission and was threatened if his proposition is known by other persons.[10] xxx "Nita Labadia testified that on February 8, 1990, there was a mahjong session in her house which started at about 2:00 p. m. She knew Federico G. Medina from whom she burrowed money with 5/6 interest and Danilo Almario who was a toughie in their place. Virgilio Borreros, Medina and Almario were kibitzers. She heard Medina and Almario who were armed with a batuta annoying Borreros who left. At about past 7:00 p. m. Borreros came back to get the golf balls he left hanging on the side of the wall of her house, but he was accosted by Medina who held him by his shirt. Borreros parried the hand of Medina and the latter drew his gun but Borreros was able to grab the gun. Medina kept on attacking Borreros so the latter shot the former. The foregoing testimony of Labadia materially and substantially corroborated the testimony of Borreros that he was being attacked. xxx She also refuted the testimony of Arturo Ibarrientos that he saw the shooting, and stated that 'Ibarrientos was not there. He was not present at that time'. xxx Labadia further testified that Medina is about the same height as Borreros but stouter, and that she noticed the bulge on the waist of Medina. She added that Almario, who was just behind Medina, and who had a batuta, kept on attacking Borreros and that Almario and Medina were both drunk.[11] xxx On the basis of the testimonial and documentary evidence on record, the trial court handed down the judgment of conviction above alluded to. Therefrom, the accused appealed to this Court, contending that: I 65

THE COURT A QUO ERRED IN NOT CONSIDERING THE JUSTIFYING CIRCUMSTANCE OF SELF DEFENSE IN FAVOR OF ACCUSED-APPELLANT VIRGILIO BORREROS. II THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF FEDERICO G. MEDINA. III THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO PAY P50,000.00 EACH FOR THE DEATH OF VICTIMS FEDERICO G. MEDINA AND DANILO ALMARIO. After a careful examination of the evidence and study of the records on hand, the Court finds no merit in the appeal. To begin with, the trial court cannot be faulted for rejecting appellant's theory of self defense. When appellant theorized upon self defense he, in effect, assumed the onus probandi to substantiate the same. It became his inescapable burden to prove clearly and convincingly the elements of unlawful aggression on the part of the victim, reasonable necessity of the means employed to prevent or repel the aggression, and lack of sufficient provocation on the part of the person defending himself.[12] Appellant failed to discharge said burden. Unlawful aggression, a condition sine qua non to a successful invocation of self-defense, was not established. [13] On the witness stand, appellant narrated that earlier in the day, when the victims met their intimely death, Federico Medina tried to strike him with a batuta. When he was able to break away, Federico Medina chased him from the mahjongan up to the bridge where he eventually escaped. He then went to rest in his house but after an hour, he returned to the mahjongan to get the golf balls which he had left. The said version runs counter to human experience and behavior, taking into account the great probability that the victims might still be in the vicinity of the "mahjongan". As aptly elucidated upon by the trial court, it was very unlikely for appellant to leave the safety of his house and to go back to the mahjongan to expose himself to the danger awaiting him thereat. In fact, appellants tale that he went back to the place just to recover some golf balls was contradicted by his own admissions. On direct examination, he testified that while walking towards Federico Medina, the latter jabbed him with a batuta [14], and aimed to strike him with it until he ran away.[15] His narration of facts and what happened made no mention of the golf balls he supposedly hanged on the wall at the mahjongan, immediately upon approaching Federico. Then under cross examination, he belatedly stated that he hanged the golf balls when he approached Federico. Under further examination, he confirmed that he did not enter the mahjong house at all.[16] Then too, according to appellant, he was trying to ward off Federico Medinas hands from his collar, when the latter said Putang Ina, lalaban ka, to which remark he answered and cursed him back, prompting Federico to go for his gun which was tucked in his waist. But while Federico was about to draw the gun, appellant was able to grab and take possession of the same.[17] Thereupon, appellant claims to have stepped back about seven (7) feet from Federico Medina.[18] From the aforestated facts and circumstances, no unlawful aggression could be gleaned. It bears stressing that for unlawful aggression to be attendant, there must be a real danger to life or personal safety.[19] Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude. [20] Here, the act of the deceased Federico Medina of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant.[21] Even assuming for the sake of argument that there was really unlawful aggression by Federico on appellants person, it can be deduced from the latters own declaration during the trial that the unlawful aggression had ceased the moment Federico was dispossessed of the gun. Unlawful aggression refers to an actually materialized attack, or at the very least, clearly imminent attack. It cannot consist of oral threats or a mere threatening posture.[22] After disarming Federico Medina, appellant became the aggressor, when he shot Federico. 66

As testified to by appellant, he was able to easily grab the gun from the deceased, Federico Medina, because the latter was allegedly drunk. He recounted that even at a distance of seven (7) feet, he failed to warn Eric of his intention to shoot because Federico Medina was about to attack him with fist-blows. From the aforesaid facts, it can be unerringly concluded that not only had agreession by Federico ceased at that point, there was no reasonable necessity on the part of appellant to shoot Federico. Evidence is wanting to demonstrate that the appellant had endeavored to move farther from Federico by stepping back some more or by simply running away, as he had done during their previous confrontation or encounter. Besides, if as alleged by appellant, Federico was in a state of intoxication, he (appellant) could have easily opted to run away instead of shooting the victims. Neither did the trial court err in rejecting appellants theory of self defense considering the nature and number of gunshot wounds of the victims. The deceased Danilo Almario suffered four (4) gunshot wounds on the left side of his back below the scapula, on the right forearm, on the left thigh and on the lower left femur, all fired by the assailant from behind. The deceased, Federico Medina, suffered two (2) gunshot wounds, one on the head and another on the left forearm. Verily, the nature, location and number of the wounds sustained by the victims make appellants theory of self-defense implausible. [23] As held in People vs. Guarin,[24] the presence of several gunshot wounds on the body of the deceased is physical evidence that strongly militates against appellant's stance. If appellant shot the victims just to defend himself, it defies reason why he had to inflict several wounds on them. Irrefutably, the multiple and serious injuries sustained by the victims evinced a determined effort on the part of appellant to kill them.
[25]

Indeed, appellant's failure to discharge his burden of giving evidentiary support to his invocation of self-defense is abundantly clear. Evidence for the defense is of doubtful veracity and weight. It is neither clear nor convincing. To top it all, appellant took flight immediately after the incident and went into hiding for three (3) long years before he was arrested and brought to court to face his accusers. Appellants flight negates his plea of self-defense. [26] As repeatedly held by this Court, flight evidence of consciousness of guilt and betrays the existence of a guilty conscience.[27] With respect to the second assigned error, the Court believes that the prosecution has established the qualifying cirsumstance of treachery. For treachery to be a qualifying circumstance, it must be shown as convincingly as the crime itself, that the malefactor employed such means, method or manner of execution to ensure his safety from the victim's defensive or retaliatory acts; and such means, method or manner of execution were deliberately adopted. [28] In the case under scrutiny, the concurrence of the said conditions is firmly anchored on the declarations of the prosecution witnesses, Arturo Ibarrientos and Faustino Varona, whose testimonies are consistent with the autopsy findings of Drs. Gajardo and Reyes. Both Ibarrientos and Varona witnessed the start of the aggression insofar as the deceased, Federico Medina, was concerned. Ibarrientos narrated that upon seeing the appellant carrying a gun, he followed him closely until they reached the mahjongan. Thereat, the appellant called out pare to Federico Medina whose attention was then on the mahjong. When the latter turned his face around, appellant shot him on the forehead. This testimony of Arturo Ibarrientos was corroborated by Faustino Varona on the witness stand who testified that he was seated about two (2)arms length from the victims who were watching mahjong, when appellant suddenly shouted pare to Federico Medina, even as he aimed and fired the gun at him. The sudden and unanticipated killing of Federico Medina reinforces the trial court's finding of treachery, notwithstanding the fact that the assailant and the victims were face to face at the start of the attack. As consistently held by this Court, an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutesalevosia.[29] That the attack was frontal does not preclude the presence of treachery as the same rendered the attack no less unexpected and sudden.[30] The essence of treachery is that the attack is deliberate and without warning -- done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.[31] In contrast, the killing of Danilo Almario cannot be adjudged as perpetrated with treachery. As correctly found by the trial court, in view of the absence of proof as to the manner the victim was attacked, the killing could not be considered as qualified by treachery. [32] Where no particulars are known as to the manner the aggression was made or how the act resulting to the death of the victim, began and developed, it could not be established by mere suppositions that 67

the accused perpetrated the killing with treachery.[33] To repeat, being a qualifying circumstance, treachery must be proved as convincingly as the crime itself. Here, witnesses Ibarrientos and Varona failed to convince the lower court that the appellant employed such means, method or manner in the killing of Danilo which insured its commission sans any risk to assailant coming from any defense which the victim could have put up. Both witnesses admitted that immediately after Federico Medina was shot, they took cover and only heard a few more gunshots from where they were hiding. The People, represented by the Office of the Solicitor General, [34] maintain that inasmuch as Danilo was shot from at the back, treachery qualified the killing to murder. This contention is untenable. While the evidence shows that Danilo was shot from behind, [35] such circumstance is not conclusive of the attendance of treachery insofar as the deceased Danilo was concerned, absent a showing how the latter's wounds were inflicted. Settled is the rule that treachery cannot be presumed. It must be proved by clear and convincing evidence, as conclusively as the killing itself.[36] The presence of treachery may not be simply assumed from the mere fact that the fatal wounds were found at the back of the deceased.[37] The third and final assignment of errors does not need extended disquisition. Suffice it to state that following prevailing jurisprudence and in line with the policy of the Court, for the death of each victim an award ofP50,000.00, as civil indemnity or compensatory damages, without any need of proof of damages, is proper.[38] WHEREFORE, the judgment appealed from is hereby AFFIRMED. Costs against the appellant. SO ORDERED. People versus Borreros SYNOPSIS Accused-appellant was convicted by the Regional Trial Court of Quezon City of murder and homicide. In the present appeal, appellant contended that the trial court erred in not considering the justifying circumstance of self-defense in his favor and in ruling that treachery attended the killing qualifying the same to murder. The Supreme Court affirmed the decision of the trial court. The Court stressed that for unlawful aggression to be attendant, there must be a real danger to life or personal safety. In the case at bar, the act of the deceased of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant. Unlawful aggression refers to an actually materialized attack or at the very least, clearly imminent attack. It cannot consist of oral threats or mere threatening posture. The Court also held that the presence of several gunshot wounds on the victim is physical evidence that strongly militates against appellants stance of selfdefense. The Court also upheld the trial courts finding of treachery. The sudden and unanticipated killing of the victim, Federico Medina, notwithstanding the fact that assailant and the victims were face to face at the start of the attack clearly indicates the presence of treachery. The killing of the victim, Danilo Almario, however, cannot be adjudged as perpetrated with treachery in view of the absence of proof as to the manner the victim was attacked. Treachery as a qualifying circumstance must be proved convincingly as the crime itself. The trial court was correct in convicting him of simple homicide. SYLLABUS 1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; ELEMENT OF UNLAWFUL AGGRESSION; THE ACT OF THE DECEASED OF ALLEGEDLY DRAWING A GUN FROM HIS WAIST CANNOT BE CATEGORIZED AS AN UNLAWFUL AGGRESSION; SAID ACT DID NOT PUT IN REAL PERIL THE PERSONAL LIFE OR PERSONAL SAFETY OF THE APPELLANT. From the facts and circumstances of the present case, no unlawful aggression could be gleaned. It bears stressing that for unlawful aggression to be attendant, there must be a real danger to life or personal safety. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude. Here, the act of the deceased Federico Medina of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant. Even assuming for the sake of argument that there was really unlawful 68

aggression by Federico on appellants person, it can be deduced from the latters own declaration during the trial that such unlawful aggression had ceased the moment Federico was dispossessed of the gun. Unlawful aggression refers to an actually materialized attack or at the very least, clearly imminent attack. It cannot consist of oral threats or mere threatening posture. After disarming Federico Medina, appellant became the aggressor, when he shot Federico. 2. ID.; ID.; ID.; ACCUSED-APPELLANTS THEORY OF SELF-DEFENSE IS NEGATED BY THE NATURE, NUMBER AND LOCATION OF THE GUNSHOT WOUNDS SUSTAINED BY THE VICTIM. Neither did the trial court err in rejecting appellants theory of selfdefense considering the nature and number of gunshot wounds of the victims. The deceased Danilo Almario suffered four (4) gunshot wounds on the left side of his back below the scapula, on the right forearm, on the left thigh and on the lower left femur, all fired by the assailant from behind. The deceased, Federico Medina, suffered two (2) gunshot wounds, one on the head and another on the left forearm. Verily, the nature, location and number of the wounds sustained by the victims make appellants theory of selfdefense implausible. As held in People vs. Guarin, the presence of several gunshot wounds on the body of the deceased is physical evidence that strongly militates against appellants stance. If appellant shot the victims just to defend himself, it defies reason why he had to inflict several wounds on them. Irrefutably, the multiple and serious injuries sustained by the victims evinced determined effort on the part of appellant to kill them. 3. ID.; ID.; ID.; ACCUSED-APPELLANTS FLIGHT ALSO NEGATES HIS PLEA OF SELFDEFENSE. Appellants failure to discharge his burden of giving evidentiary support to his invocation of self-defense is abundantly clear. Evidence for the defense is of doubtful veracity and weight. It is neither clear nor convincing. To top it all, appellant took flight immediately after the incident and went into hiding for three (3) long years before he was arrested and brought to court to face his accusers. Appellants flight negates his plea of self-defense. As repeatedly held by this Court, flight is evidence of consciousness of guilt and betrays the existence of a guilty conscience. 4. ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT WHERE THE KILLING WAS SUDDEN AND UNANTICIPATED NOTWITHSTANDING THE FACT THAT THE ASSAILANT AND THE VICTIM WERE FACE TO FACE AT THE START OF THE ATTACK. The sudden and unanticipated killing of Federico Medina reinforces the trial courts finding of treachery, notwithstanding the fact that the assailant and the victims were face to face at the start of the attack. As consistently held by this Court, an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutes alevosia. That the attack was frontal does not preclude the presence of treachery as the same rendered the attack no less unexpected and sudden. The essence of treachery is that the attack is deliberate and without warning done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape. 5. ID.; ID.; ID.; ID.; THE PRESENCE OF TREACHERY MAY NOT BE SIMPLY ASSUMED FROM THE MERE FACT THAT THE FATAL WOUNDS WERE FOUND AT THE BACK OF THE DECEASED. The People, represented by the Office of the Solicitor General, maintain that inasmuch as Danilo was shot from at the back, treachery qualified the killing to murder. This contention is untenable. While the evidence shows that Danilo was shot from behind, such circumstance is not conclusive of the attendance of treachery insofar as the deceased Danilo was concerned, absent a showing how the latters wounds were inflicted. Settled is the rule that treachery cannot be presumed. It must be proved by clear and convincing evidence, as Conclusively as the killing itself. The presence of treachery may not be simply assumed from the mere fact that the fatal wounds were found at the back of the deceased.

CASE DIGEST ON PEOPLE v. BAEZ [301 SCRA 248 (1999)] Nature: Appeal from a decision of the RTC of Urdaneta, Pangasinan Facts: ? Wilfredo Baez was found by the RTC to be guilty beyond reasonable doubt of parricide for the killing of his father, Bernardo Baez, and sentenced him to suffer the penalty of death. 69

? Accused was living with in his parents house. On August 14, 1994, his sisters, Elvira Baez-Bustamante and Emelinda Baez-Antiado came to the house because their father complained that the accused made trouble whenever drunk. ? They were discussing the plan for putting up the accused in another house or sleeping quarters. Afterwards, the accused, who looked drunk because he was red in the face, ran into the kitchen, got 2 knives, went into his fathers room and stabbed him. Elvira tried to take away the knives but he lunged at her and stabbed he. Emelinda also tried to stop him. He chased her while Elvira locked herself in their fathers room. After the accused had left, she rushed their father to the hospital but he was already dead. ? The accused entered a plea of insanity. ? Elvira testified that the accused had been staying in their fathers house for 4 years after the accused separated from his wife; that he was confined at the Bicutan Rehabilitation Center for addiction to gasoline and was discharged; that he was also treated at the Baguio General Hospital for addiction to gasoline, and; that he had not shown any indication that he was crazy. Dr. Gerona III of the NCMH (National center for Mental Health) testified that accused was admitted to the NCMH 20 days after the crime; that the accused was suffering from schizophrenia, described as a mental disorder characterized by thought disturbances, hallucination, suspiciousness, and deterioration in areas of work, social relations and self-care; that schizophrenia can be caused by use of substances (inhaling gasoline and alcoholism); that he could not say whether the accused was insane at the time he committed the crime. ? Marina Gabel-Banez, mother of the accused, testified that he had been confined for more than a year at the Bicutan rehab Center; that he was also treated at the Baguio General hospital; that after killing his father, he was confined at the Mandaluyong mental hospital for treatment; that his wife left him and he blamed his in-laws for his marital troubles; that he resorted to gasoline to forget his problems, and; that he was not a drunkard. ? The trial court found him guilty of parricide with the aggravating circumstance of dwelling and habitual intoxication and sentenced him to suffer the penalty of death Issues: 1. WON he was insane at the time of the commission of the crime and should be exempt from criminal liability under Art. 12 of the RPC. ? NO. Accused must prove that he was completely deprived of reason when he killed his father in order to be considered exempt from criminal liability ? In People vs. Formigones: it is necessary that there be a complete deprivation of intelligence in committing the act; that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts without the least discernment; that there be a complete absence of power to discerninsanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability. People vs. Rafanan, Jr: Formigoens established 2 distinguishable tests: (a) the test of cognitionand (b) the test of volition..But our caselaw shows common reliance on the test of cognition, rather than on a test relating to freedom of the will. ? Burden to prove his insanity at the time of the commission of the act rests on the defense. But he was not able to prove beyond reasonable doubt his insanity at the time immediately preceding the killing or at the very moment of the killing. Evidence merely consisted of the testimony of his mother regarding his treatments. The testimony of Dr. Gerona III is inconclusive as to whether the accused was insane at the time immediately preceding the killing or at the very moment of the killing. He could not have testified to this effect, considering that he treated the accused after the accused was confine at the NCMH. 2. WON there exists the aggravating circumstances of intoxication and dwelling in the commission of the crime ? NO. Dwelling cannot be considered aggravating because accused and his father were living in the same house where the crime was committed. The rationale for considering dwelling as an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit the crime. The reason is entirely absent in this case. Regarding the aggravating circumstance of intoxication, it has not been shown that it is habitual or intentional as required by Art 15 of the RPC. Even assuming that the accused was drunk at the time he committed the crime, it was not shown that he is a habitual and excessive drinker or that he intentionally got drunk. Neither can intoxication be mitigating because there is no showing that he accused was so drunk that his will power was impaired or that he could not comprehend the wrongfulness of his acts. 3. WON the trial court gravely erred in imposing the death penalty upon the accused instead of reclusion perpetua on the assumption that he was sane at the time of killing. 70

NO. Under RA 7659, the penalty for parricide is reclusion perpetua to death. Since in this case there was neither aggravating nor mitigating circumstances, the lesser penalty of reclusion perpetua should be imposed. Judgment: the decision of the RTC is AFFIRMED with the MODIFICATION that the accusedappellant is sentenced to suffer the penalty of reclusion perpetua EN BANC

[G.R. No. 125849. January 20, 1999]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO BAEZ y CABAEL, alias WILLY, accused-appellant. DECISION MENDOZA, J.: Before the Court for review is the decision, [1] dated August 9, 1996, of Branch 46 of the Regional Trial Court at Urdaneta, Pangasinan finding accused-appellant Wilfredo C. Baez guilty beyond reasonable doubt of parricide for the killing of his father, Bernardo P. Baez, and sentencing him to suffer the penalty of death. In addition, the trial court ordered accusedappellant to indemnify the heirs of his father in the amount of P50,000.00 and to pay the costs. The information[2] against accused-appellant, dated October 27, 1994, alleged That on or about the 14th day of August, 1994 at barangay San Vicente, municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the abovenamed accused with intent to kill and with treachery, did then and there, willfully, unlawfully and feloniously attack, assault and stab several times his father, Bernardo Baez y Padilla, with the use of a bladed weapon, hitting said victim in the vital parts of his body which caused his instantaneous death and to the damage and prejudice of his heirs. CONTRARY to Art. 246, Revised Penal Code. The facts of the case are as follows: Accused-appellant Wilfredo Baez was living in his parents house in Barangay San Vicente East, Urdaneta, Pangasinan. On August 14, 1994, his sisters, Elvira Baez-Bustamante and Emelinda Baez-Antiado, came to the house because their father, Bernardo P. Baez, complained that accused-appellant made trouble whenever he was drunk. The elder Baez wanted to put up accused-appellant in another house or sleeping quarters.[3] Elvira testified that, in the evening of August 14, 1994, she and her sister Emelinda discussed with their father the latters plan for accused-appellant. After a while, she said, when her father went to his room, accused-appellant, who looked drunk because he was red in the face, ran to the kitchen and got two (2) knives and then went inside their fathers room. Emelinda followed accused-appellant inside the room. Elvira then heard Emelinda scream. When Elvira went inside the room, she saw accused-appellant stabbing her father saying, Pinalalayas mo ako! (You are sending me away!). The elder Baez fell in a sitting position at a corner of the room. Elvira said she tried to stop accused-appellant from inflicting further injuries on her father, even as she pleaded with him that He is our father. But as Elvira tried to take the knives from accused-appellant, the latter lunged at her and stabbed her, hitting her on the right hand, forearm, and buttock. Emelinda tried to stop accused-appellant by throwing a piece of wood at him, but accused-appellant turned to Emelinda and said to her: You are also one. Emelinda was so frightened she ran to Elviras house, about 25 meters away from their fathers house. As accused-appellant chased Emelinda, Elvira locked herself inside her fathers house and stayed there until three (3) helpers from their poultry farm and their maid arrived. She asked them for help to take her father to the hospital, but accused-appellant came back and threatened them with harm. It was only much later, after accused-appellant had left 71

again, that she was finally able to get help to take her father to the Sacred Heart Hospital in Urdaneta, Pangasinan. By then, however, her father was already dead. Elvira herself was treated for her injuries.[4] On cross-examination, Elvira stated that accused-appellant had been staying in their fathers house for four (4) years after accused-appellant separated from his wife; that in 1988 accused-appellant was confined at the Bicutan Rehabilitation Center in Taguig, Metro Manila for addiction to gasoline; that he had been discharged from the same a long time ago, although she could not remember the year he was discharged; that accused-appellant had not shown any indication that he was crazy although he was also treated at the Baguio General Hospital for addiction to gasoline.[5] The autopsy report[6] showed that the victim suffered ten (10) stab wounds on various parts of his body, to wit: SIGNIFICANT EXTERNAL FINDINGS: - Stab wound, chest anterior wall, middle sternal area, lunate, 4x1 1/2 x 10 cm. - Stab wound chest anterior wall, left lunate 4x 1/2 x5 1/2 cm. - Stab wound, abdomen left hypochondrium lunate 5x3x9 cm. - Stab wound abdomen left iliac, lunate 4x9x10. - Stab wound chest anterior wall, right lunate, 4x1/2x1/2 cm. - Stab wound chest anterior wall, right lunate 7x1x9 cm. - Stab wound abdomen, right near midline lunate 5x7x10 cm. - Stab wound abdomen center lunate 4x1/2x10 cm. - Stab wound right arm, lunate 5x1 1/2 cm. anterior aspect thru and thru to post aspect. - Stab wound right thigh, lunate 4x1/2 x 3 cm. SIGNIFICANT INTERNAL FINDINGS: - 50-75 cc. blood at pericardial sac. - Stab wound, heart. CAUSE OF DEATH: Cardiac tamponade due to stab wound, heart. A plea of insanity was made by the defense in behalf of accused-appellant. Dr. Rico Angelo Gerona III and Marina Cabael-Baez, the mother of accused-appellant, were presented in support of such plea. Accused-appellant did not testify. Dr. Gerona III, Medical Officer III of the National Center for Mental Health, Mandaluyong City, testified that accused-appellant was admitted to the hospital on September 3, 1994, twenty (20) days after the commission of the crime on August 14, 1994. He said accused-appellant was suffering from schizophrenia, which he described as a mental disorder characterized by thought disturbances, hallucination, suspiciousness, and deterioration in areas of work, social relations, and self-care. He stated that schizophrenia is generally caused by genetic predisposition, use of substances, and stress and that inhaling or sniffing gasoline and alcoholism may also result in this kind of mental illness. He said that in the case of accusedappellant, schizophrenia could have been caused by addiction to gasoline or by family problems. But he could not say whether at the time of the commission of the crime accused72

appellant was insane. His diagnosis that accused-appellant was suffering from schizophrenia may be 99% correct or 1% wrong. [7] He also stated that the writing on the notebook made by accused-appellant prior to August 14, 1994 was not conclusive that he was insane at the time of the killing or immediately prior thereto.[8] Dr. Gerona III testified that accused-appellant admitted the killing and said this was because his father wanted to throw him out of their house to make room for a new helper. He said that accused-appellant was remorseful and hoped that he would be forgiven.[9] On cross-examination,[10] Dr. Gerona III stated that taking shabu and inhaling gasoline produce the same results as schizophrenia, i.e., hallucination and dilation of the eyes; that it takes at least six (6) months of inhaling gasoline to develop schizophrenia and that a person who suffers from schizophrenia would not remember any violent act he may have committed. Marina Gabel-Baez, mother of accused-appellant, testified that, long before the incident on August 14, 1994, accused-appellant had been confined for more than a year at the Bicutan Rehabilitation Center for addiction to gasoline; that after his release, accused-appellant stayed in his fathers house where he worked as helper in the poultry farm; that accused-appellant was also treated at the Baguio General Hospital in 1987 although he was not confined there; and that, after killing his father, accused-appellant was confined at the Mandaluyong mental hospital for treatment.[11] On cross-examination,[12] she told the court that, since 1979, she had been separated from her husband because the latter lived with another woman with whom he has two (2) children; that because of this, she went to Spain in 1979 to work and did not return to the Philippines until 1981; that accused-appellant was addicted to gasoline; that in 1987 she took accused-appellant to the Baguio General Hospital for treatment; that she thought her son had already been cured but not long after, accused-appellants wife, Apolonia Reboalos, left him. According to her, her son blamed his in-laws for his marital troubles. Accused-appellant resorted to gasoline sniffing again to forget his problems. When asked by the trial court whether accused-appellant was a drunkard, she answered, No, he drinks liquor only when offered. On August 9, 1996, the trial court rendered a decision finding accused-appellant guilty of parricide with the aggravating circumstances of dwelling and habitual intoxication and sentencing him to suffer the penalty of death. It ruled that the defense of insanity had not been sufficiently proven. Accused-appellant seeks the reversal of the trial courts decision on the following grounds:
[13]

I THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE EXEMPTING CIRCUMSTANCE OF INSANITY INTERPOSED BY THE ACCUSED-APPELLANT. II THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF INTOXICATION AND DWELLING AS ATTENDANT IN THE COMMISSION OF THE CRIME CHARGED. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON THE ACCUSED-APPELLANT INSTEAD OF RECLUSION PERPETUA ON THE ASSUMPTION THAT HE WAS SANE AT THE TIME OF THE KILLING. First. It is contended that accused-appellant was suffering from schizophrenia when he killed his father and, therefore, he should have been held exempt from criminal liability under Art. 12(1) of the Revised Penal Code. The following portion of the report of Dr. Rico Angelo Gerona III of the National Center for Mental Health is cited in support of this contention: In view of the foregoing history, observation and examinations on the patient Wilfredo Banez y Cabael, he is found suffering from a mental disorder called psychosis or insanity classified 73

under Schizophrenia. This is a thought disorder characterized by suspiciousness, poor judgment, poor impulse control, perceptual disturbances, self mutilation and deterioration in areas of work, social relation and self-care.[14] In addition, Dr. Geronas testimony is quoted: DR. RICO ANGELO GERONA ON DIRECT EXAMINATION: Q. A. Q. A. What was your diagnosis of the patient Wilfredo Banez? The patient to be psychotic, he has schizophrenia, sir. In your ordinary language what do you mean by that illness, Doctor? He is mentally disorder suffering in schizophrenia characterized by thought disturbances, hallucination, suspiciousness, deterioration in areas of work, social relation and self-care. Why did you arrive at this diagnosis, Doctor? Since the patient manifested the characteristics of suspiciousness, delusion, hallucination, deterioration of self-care, social relation in work. Can you tell us the causes of this illness schizophrenia, Doctor? Schizophrenia may be caused by many factors such as genetic, predisposition, use of substance and under stress. Doctor, were you able to determine when the patient was affected? According to the patients history the accused was sick six (6) years prior to his admission to the Center. That was your information that you received, is that correct, Doctor? Yes, sir. Who gave you that information, Doctor? I got it from the Chart, sir. Do you know who supplied the information? The mother, sir. From your findings Doctor, can you determine if the patient is (sic) already mentally ill on August 14, 1994? Yes, sir. It appears Doctor that in your report that the patient was admitted 20 days after August 14, 1994? Yes, sir.[15]

Q. A. Q. A. .... Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.

The defense of insanity has no merit. Art. 12 of the Revised Penal Code provides: Art. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. . . . . In People v. Formigones,[16] it was held: The Supreme Court of Spain held that in order that this exempting circumstance may be taken into account, it is necessary that there be a complete deprivation of intelligence in committing 74

the act, that is, that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts without the least discernment: (Decision of the Supreme Court of Spain of November 21, 1891; 47 Jur. Crim. 413.); that there be a complete absence of the power to discern, or that there be a total deprivation of freedom of the will. For this reason, it was held that the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability. (Decision of the Supreme Court of Spain of April 20, 1911; 86 Jur. Crim. 94, 97.) Elaborating on this ruling, this Court stated in People v. Rafanan, Jr.:[17] A linguistic or grammatical analysis of those standards suggests that Formigones established two (2) distinguishable tests: (a) the test of cognition complete deprivation of intelligence in committing the [criminal] act, and (b) the test of volition - or that there be a total deprivation of freedom of the will. But our caselaw shows common reliance on the test of cognition, rather than on a test relating to freedom of the will; examination of our caselaw has failed to turn up any case where this Court has exempted an accused on the sole ground that he was totally deprived of freedom of the will, i.e., without an accompanying complete deprivation of intelligence. This is perhaps to be expected since a persons volition naturally reaches out only towards that which is presented as desirable by his intelligence, whether that intelligence be diseased or healthy. Accused-appellant must thus prove that he was completely deprived of reason when he killed his father in order to be considered exempt from criminal liability. However, this has not been shown in this case. There is nothing either in the report of Dr. Gerona or in his testimony which indubitably show that accused-appellant was completely without reason on the night of August 14, 1994 when he killed his father because the latter wanted him to leave the house. Although he said that in his opinion accused-appellant was schizophrenic when he committed the crime, and that he was 99% certain of this, he was later less certain when questioned by the trial judge and admitted that accused-appellant was mentally well at least after his discharge from the Bicutan Rehabilitation Center in 1988 and for some time until he was confined at the mental hospital in 1994, after the commission of the crime in this case. Dr. Gerona testified:[18] ATTY. PARAJAS, DEFENSE COUNSEL: Q A Q A Q A Q A Q A Q A .... COURT: Q At the time of the killing by the accused of his father, you do not know whether or not he was suffering of such kind of illness but only your presumption? 75 Doctor, were you able to know if the accused was confined at the Bicutan Rehabilitation Center? Yes, sir. When? In 1988 sir. And was released/discharged? Yes sir, two (2) years after he was admitted. What ground was he released or discharged? I do not have the report. But it will be concluded that he was released because he was okay? Yes, sir. So that if he was already okay, he was no longer suffering of mental disorder? Yes, sir.

COURT:

A Q A Q A ....

Yes, sir. You might be correct 99% and wrong 1%? Yes, sir. But it is possible that 1% the accused was not insane at that time of suffering from schizophrenia? Yes, sir.

ATTY. PARAJAS: Q A Q A .... Q A Q A Q A And now he can stand trial? Yes, sir. So that there are times he was suffering such kind of illness and there was some time he was not suffering such kind of illness? Yes, sir. So that you do not know when it will re-occur? Yes, sir. That will be all, your Honor. When Dr. Gerona was cross-examined, he admitted that accused-appellant was apparently in good mental condition when he committed the crime:[19] PROS. VILLARIN: (CROSS-EXAMINATION): Q A Q A .... COURT: Q From the time he was released from the Bicutan Rehabilitation Center in 1988 up to the time he was brought to your center in 1994 with that span of time he was in normal condition, is that correct? Yes, sir, apparently. So from 1991 to 1994 the accused was allowed to associates [sic] with others? Yes, sir. So with that period before he was admitted (to the National Center for Mental Health) he was in good mental condition? Yes sir, he was apparently in good mental condition. It is possible Doctor at that time the accused Wilfredo Baez killed his father on August 14, 1994, it is possible that he was already affected with this disease? Yes, sir. And it is also possible that he was not? Yes, sir.

COURT:

ATTY. PARAJAS:

Indeed, Dr. Gerona III could not have testified on the mental condition of accused-appellant at the time of the commission of the crime considering that he treated accused-appellant only after the latter was confined at the National Center for Mental Health. He was not even the doctor who admitted accused-appellant to the National Center for Mental Health on September 3, 1994 because it was a certain Dr. Gara[20] who did. Although accused-appellant was admitted to the mental hospital on September 3, 1994, he was not treated by Dr. Gerona III until February 76

19, 1996, which was one and a half years after the commission of the crime. Nor were accusedappellants medical records in the Bicutan Rehabilitation Center, where he was allegedly confined from 1988 to 1990, and in the Baguio General Hospital, where he was treated for some mental illness in 1987, submitted in evidence to determine for what illness he was exactly treated. The defense of insanity is in the nature of confession and avoidance. Like the justifying circumstance of self-defense, the burden is on the defense to prove beyond reasonable doubt that accused-appellant was insane immediately before the commission of the crime or at the very moment of its execution.[21] In the instant case, accused-appellant failed to discharge this burden. His evidence merely consisted of the testimony of his own mother that he was confined at the Bicutan Rehabilitation Center in 1988 for the treatment of his addiction to gasoline, not for schizophrenia, and that he was also brought to the Baguio General Hospital for check-up. The testimony of Dr. Rico Angelo Gerona III is inconclusive as to whether accused-appellant was insane at the time immediately preceding or at the very moment of the killing. On the other hand, the evidence shows that accused-appellant had a motive for killing his father. The latter wanted to put him up in another house because accused-appellant made trouble whenever he was drunk. His sister Elvira testified that accused-appellant created trouble whenever he was drunk and that was the reason she (Elvira) and Emelinda were in their fathers house because their father did not want accused-appellant to stay there anymore. It was entirely possible that he killed his father out of resentment and that he only suffered a mental breakdown because of emotional stress arising from the incident. That was the reason he was found suffering from schizophrenia when taken to the National Center for Mental Health on September 3, 1994. Although schizophrenia is not exempting if it does not completely deprive the offender of the consciousness of his acts, it may nevertheless be considered mitigating under Art. 13(9) if it diminishes the exercise of his will power. In this case, however, the defense failed to prove that accused-appellant was suffering from schizophrenia or any mental illness at the time immediately preceding or at the very moment of the commission of the crime that could diminish his will-power. Second. With respect to the contention that the trial court erred in appreciating the aggravating circumstances of dwelling and intoxication in the commission of the crime, we find ourselves to be in agreement with the defense. Dwelling cannot be considered aggravating because accused-appellant and his father were living in the same house where the crime was committed.[22] The rationale for considering dwelling an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime.[23] This reason is entirely absent in this case. With regard to the alternative circumstance of intoxication, which the trial court treated as aggravating, it has not been shown that it is habitual or that it was intentional as required by Art. 15 of the Revised Penal Code. Elvira Baez-Bustamante testified that, at the time of the commission of the crime, accused-appellant looked drunk because his face was reddish [24] and he smelled of liquor. She further claimed that accused-appellant made trouble whenever he was drunk.[25] On the other hand, accused-appellants mother, Marina Gabel-Baez, denied that accused-appellant was a drunkard. She declared that he drank only when offered drinks by his friends.[26] Assuming that accused-appellant was drunk at the time he killed his father, nonetheless, the record does not show that he is a habitual and excessive drinker or that he intentionally got drunk on August 14, 1994 in order to commit the crime. In the absence of clear and positive proof that intoxication was habitual or intentional on the part of accused-appellant, it is improper to consider the same as an aggravating circumstance. Every aggravating circumstance must be proven by the prosecution as fully as the crime itself and any doubt as to its existence must be resolved in favor of the accused.[27] Neither can intoxication be considered mitigating in this case because there is no showing that accused-appellant was so drunk that his will-power was impaired or that he could not comprehend the wrongfulness of his acts.[28] The result is that accused-appellants intoxication cannot be considered as either aggravating or mitigating: The prosecution failed to prove that it was habitual or intentional, but neither did the defense prove that, as a result of intoxication, his will-power had been impaired such that he did not know what he was doing. 77

Under R.A. No. 7659, the penalty for parricide is reclusion perpetua to death. Since there was neither aggravating circumstance nor mitigating circumstance in this case, the lesser penalty of reclusion perpetuashould be imposed on accused-appellant pursuant to Art. 63(2) of the Revised Penal Code. WHEREFORE, the decision of the Regional Trial Court is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. No costs. SO ORDERED.

People versus BAEZ SYNOPSIS Accused Wilfredo Baez was convicted as charged for the crime of parricide and was sentenced to suffer the penalty of death. The conviction was based on the testimonies of witnesses Elvira Baez-Bustamante and Emelinda Baez-Antiado, the sisters of the accused that their father complained to them that the accused made trouble whenever he got drunk. In the evening of August 14, 1994, they went to the house of their father and discussed with him his plan to transfer the accused to another house or sleeping quarters. Later, when their father went to his room, the accused looked drunk ran to the kitchen, got two knives, followed their father inside his room and stabbed him several times which resulted to death. On the other hand, the defense interposed the plea of insanity claiming that the accused is suffering schizophrenia as testified upon by the doctor and his mother. The Court ruled that the defense of insanity is in the nature of confession and avoidance. Like the justifying circumstance of self-defense, the burden is on the defense to prove beyond reasonable doubt that accused-appellant was insane immediately before the commission of the crime or at the very moment of its execution. In the instant case, accused-appellant failed to discharged this burden. His evidence merely consisted of the testimony of his own mother that he was confined at the Bicutan Rehabilitation Center in 1988 for the treatment of his addiction to gasoline, not for schizophrenia and that he was also brought to the Baguio General Hospital for check-up. The testimony of Dr. Rico Angelo Gerona III is inconclusive as to whether accusedappellant was insane at the time immediately preceding or at the very moment of the killing. Under R.A. 7659, the penalty for parricide is reclusion perpetua to death. Since there was neither aggravating circumstance nor mitigating circumstance in this case, the lesser penalty ofreclusion perpetua should be imposed on accused-appellant pursuant to Art. 63 (2) of the Revised Penal Code. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; BURDEN OF PROOF; DEFENSE OF INSANITY LIES WITH ACCUSED-APELLANT. The defense of insanity is in the nature of confession and avoidance. Like the justifying circumstance of self-defense, the burden is on the defense to prove beyond reasonable doubt that accused-appellant was insane immediately before the commission of the crime or at the very moment of its execution. 2. ID.; ID.; ID.; BURDEN NOT DISCHARGED IN CASE AT BAR. In the instant case, accused-appellant failed to discharge this burden. His evidence merely consisted of the testimony of his own mother that he was confined at the Bicutan Rehabilitation Center in 1988 for the treatment of his addiction to gasoline, not for schizophrenia, and that he was also brought to the Baguio General Hospital for check-up. The testimony of Dr. Rico Angelo Gerona III is inconclusive as to whether accused-appellant was insane at the time immediately preceding or at the very moment of the killing. On the other hand, the evidence shows that accused-appellant had a motive for killing his father. The latter wanted to put him up in another house because accused-appellant made trouble whenever he was drunk. His sister Elvira testified that accused-appellant created trouble whenever he was drunk and that was the reason she (Elvira) and Emelinda were in their fathers house because their father did not want accused-appellant to stay there anymore. It was entirely possible that he killed his father out of resentment and that he only suffered a mental breakdown because of emotional stress arising from the incident. That was the 78

reason he was found suffering from schizophrenia when taken to the National Center for Mental Health on September 3, 1994. 3. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; SCHIZOPHRENIA; MUST DIMINISH EXERCISE AT WILL POWER.- Although schizophrenia is not exempting if it does not completely deprive the offender of the consciousness of his acts, it may nevertheless be considered mitigating under Art. 13(9) of the Revised Penal Code if it diminishes the exercise of his will power. In this case, however, the defense failed to prove that accusedappellant was suffering from schizophrenia or any mental illness at the time immediately preceeding or at the very moment of the commission of the crime that could diminish his will-power. 4. ID.; AGGRAVATING CIRCUMSTANCES; DWELLING; NOT APPRECIATED WHERE ASSAILANT AND VICTIM LIVE IN SAME HOUSE. Dwelling cannot be considered aggravating because accused-appellant and his father were living in the same house where the crime was committed. The rationale for considering dwelling an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime. This reason is entirely absent in this case. 5. ID.; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; NOT AGGRAVATING WHEN NOT HABITUAL NOR EXCESSIVE. With regard to the alternative circumstance of intoxication, which the trial court treated as aggravating, it has not been shown that it is habitual or that it was intentional as required by Art. 15 of the Revised Penal Code. Elvira Baez-Bustamante testified that, at the time of the commission of the crime, accusedappellant looked drunk because his face was reddish and he smelled of liquor. She further claimed that accused-appellant made trouble whenever he was drunk. On the other hand, accused-appellants mother, Marina Gabel-Baez, denied that accused-appellant was a drunkard. She declared that he drank only when offered drinks by his friends. Assuming that accused-appellant was drunk at the time he killed his father, nonetheless, the record does not show that he is a habitual and excessive drinker or that he intentionally got drunk on August 14, 1994 in order to commit the crime. In the absence of clear and positive proof that intoxication was habitual or intentional on the part of accused-appellant, it is improper to consider the same as an aggravating circumstance. Every aggravating circumstance must be proven by the prosecution as fully as the crime itself and any doubt as to its existence must be resolved in favor of the accused. 6. ID.; ID.; ID.; NOT MITIGATING WHERE ACCUSED-APPELLANTS WILL POWER WAS NOT IMPAIRED. Neither can intoxication be considered mitigating in this case because there is no showing that accused-appellant was so drunk that his will-power was impaired or that he could not comprehend the wrongfulness of his acts. The result is that accusedappellants intoxication cannot be considered as either aggravating or mitigating. The prosecution failed to prove that it was habitual or intentional, but neither did the defense prove that, as a result of intoxication, his will-power had been impaired such that he did not know what he was doing. 7. ID.; PARRICIDE; PENALTY. Under R.A. No. 7659, the penalty for parricide is reclusion perpetua to death. Since there was neither aggravating circumstance nor mitigating circumstance in this case, the lesser penalty of reclusion perpetua should be imposed on accused-appellant pursuant to Art. 63(2) of the Revised Penal Code. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Public Attorneys Office for accused-appellant.

CASE DIGEST ON PEOPLE v. CAETA [309 SCRA 199 (1999)] Nature: Appeal of the decision of the RTC, Manila, Br. 49, convicting Edwin Caeta & Antonio Abes of the special complex crime of robbery w/ homicide & sentencing each of them to reclusion perpetua, pay the heirs of the deceased the amount of P30K, as moral & exemplary damages, and P17.2K, as actual damages & to return to Muoz Surpresa Grande P50K. This is a consolidation of 2 separate criminal cases filed against Edwin & Antonio for the crime committed against Teodorico Muoz 79

Facts: Oct. 21, 1981 Teodorico went to work as the delivery man of a door-to-door service of cash money of the firm Munoz Surpresa Grande. He had with him P50K to be delivered to clients, but he was held up by two men, later identified as Edwin and Antonio. Edwin stabbed him while Antonio grabbed the bag with the cash inside. The two ran in opposite directions. Edwin was caught by the mob while Antonio escaped, but he was positively identified by two witnesses. Both plead not guilty to the charges against them. In the trial, Edwin averred that he be examined by experts of the National Center for Mental Health to determine whether he was mentally fit to undergo the rigors of trial. The trial court granted the motion and ordered the suspension of trial pending submission by the Director, National Center for Mental Health, of his report, which said that he was mentally fit. The defense was that Edwin was suffering from drug psychosis, therefore he should be exempted from the criminal liability. But the TC convicted both as principals of the crime committed and sentenced them (see above nature). Issues: 1. WON Edwin was insane at the time of the crime ? No, he wasnt. The report of the National Center for Mental Health and the testimony of Dr. Perfecto D. Chua Cheng III do not prove insanity of accused-appellant Edwin Caneta. The burden of proof lies on the defense, but they were not able to prove the insanity of Edwin. The defense of insanity requires that the accused suffered from a complete deprivation of reason in committing the act. There must be no consciousness of responsibility for his acts, or that there be complete absence of the power to discern. The defense of insanity or imbecility must be clearly proved. The law presumes every man to be sane. 2. WON the testimony of witness Evangeline, who identified Antonio Abes as one of the assailants called Tony Gil, should be given credence ? Yes. He was positively identified by eyewitness Evangeline Mico. The positive identification of a malefactor may not be disregarded just because his name was not known to the witness. For the eyewitness account is premised on the fact that the witness saw the accused commit the crime, and not because the witness knew his name. The TC, which had the opportunity to observe the demeanor of Evangeline was convinced of her trustworthiness. The time-tested doctrine is that a TCs assessment of the credibility of a witness is entitled to great weight even conclusive and binding on the Court, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. Decision: Judgment affirmed, with the MODIFICATION that the indemnity is raised to P50,000.00, in line with current rulings.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 110855 June 28, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN CAETA y VILLAPANDO, and ANTONIO ABES y GALLEGO, accused-appellants.

PARDO, J.: What is before the Court on appeal is the decision 1 of the Regional Trial Court, Manila, Branch 49, convicting accused-appellants of the special complex crime of robbery with homicide and sentencing each of them to reclusion perpetua, with the accessory penalties of the law, to pay the heirs of the deceased the amount of P30,000.00, as moral and exemplary damages, and P17,200,00, as actual damages and to return to Muoz Surpresa Grande P50,000.00. 80

The prosecution initially filed two separate informations against accused-appellants with the Regional Trial Court, Manila, charging them with the special complex crime of robbery with homicide, as follows: Criminal Case No. 88-67358 On October 17, 1988, Assistant Prosecutor Jacinto A. Delos Reyes, Jr. of Manila filed with the Regional Trial Court, Branch 49, Manila, an information charging EDWIN CAETA y VILLAPANDO with robbery with homicide, which reads: That on or about October 12, 1988, in the City of Manila, Philippines, the said accused, conspiring and confederating with one, whose true name, identity and present whereabouts are still unknown, and mutually helping each other, with intent to gain and by means of force, violence and intimidation, to wit: by then and there placing his arms around the shoulder of one TEODORICO MUOZ Y BALLESTEROS, poking the bladed weapon at him and then stabbing him with the same when the latter resisted, did then and there willfully, unlawfully and feloniously take, rob and carry away a clutch bag containing cash money in of P50,000.00, belonging to the said Teodorico Muoz y Ballesteros, against his will, to the damage and prejudice of the said owner in the aforesaid amount of P50,000.00, Philippine Currency. That on the occasion of the said robbery and for the purpose of enabling the said accused to take, rob and carry away the cash amount of P50,000.00, the said accused, in pursuance of their conspiracy, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of said Teodorico Munoz y Ballesteros, by then and there stabbing him several times with bladed weapon, hitting him on the vital parts of his body, thereby inflicting upon him fatal and mortal stabwounds which were the direct and immediate cause of his death thereafter. Contrary to law. 2 Criminal Case No. 88-68270 On November 18, 1988, Assistant Prosecutor Christopher O. Lock of Manila filed with the Regional Trial Court, Branch 28, Manila, an information charging ANTONIO ABES y GALLEGO with robbery with homicide, which reads: That on or about October 12, 1988, in the City of Manila, Philippines, the said accused conspiring and confederating with EDWIN CAETA Y VILLAPANDO who was already charged in a separate information before the Regional Trial Court of Manila in Crim. Case No. 88-67358 and mutually helping each other, with intent to gain and by means of force, violence and intimidation, to wit: by then and there placing his arms around the shoulder of one TEODORICO MUOZ Y BALLESTEROS, poking the bladed weapon at him and then stabbing him with the same when the latter resisted, did then and there willfully, unlawfully and feloniously take, rob and carry away a clutch bag containing cash money in the sum of P50,000.00 belonging to the said Teodorico Muoz y Ballesteros, against his will, to the damage and prejudice of the said owner in the aforesaid amount P50,000.00 Philippine Currency. That on the occasion of the said robbery and for the purpose of enabling the said accused to take, rob and carry away the cash amount of P50,000.00 the said accused in pursuance of their conspiracy, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of said Teodorico Muoz y Ballesteros, by then and there stabbing him several times with a bladed weapon, hitting him on the vital parts of his body, thereby inflicting upon him fatal and mortal stabwounds which were the direct and immediate cause of his death thereafter. 81

Contrary to law. 3 Upon arraignment, accused-appellants pleaded not guilty to each of the informations. Upon agreement of the prosecution and the defense, the two cases were consolidated and tried jointly. During the trial, counsel of accused Edwin Caeta moved that he be examined by experts of the National Center for Mental Health to determine whether he was mentally fit to undergo the rigors of trial. The trial court granted the motion and ordered the suspension of trial pending submission by the Director, National Center for Mental Health, of his report. The evidence established that Teodorico Muoz was employed as a delivery man of the Muoz Surpresa Grande, a firm engaged in the door-to-door delivery of cash money from Honolulu, Hawaii, U.S.A. to various recipients in the Philippines. In the morning of October 12, 1981, Tedorico Muoz reported for work and left the office with P50,000.00 in his custody to be delivered to various recipients in Kalookan City and Paraaque, Metro Manila. At around 10:00 in the morning of that day, while Muoz was in the vicinity of Remigio St. and Rizal Ave. in Sta. Cruz, Manila, two persons held him up, who were later identified as accused-appellants Edwin Caeta and Antonio Abes. Caeta stabbed Munoz with a balisong while Abes grabbed the bag containing P50,000.00 cash. Then accused ran in different directions. 4 Witness Maria Manalac was at G & M Kitchenette located at the corner of Remigio Street and Avenida Rizal, Manila, on October 12, 1988, at about 10:00 in the morning. When she alighted from her car, she heard at a distance of about ten (10) meters, a man shouting "habulin ninyo, habulin ninyo". She asked the man why and he said that his bag was snatched. She saw blood oozing from all over the front portion of his body. He pointed to a person, who at that time, was fifty (50) meters away, running away towards an alley going out of Tomas Mapua Street, Sta. Cruz, Manila. The person pointed to was wearing a rust-colored t-shirt and was carrying an object which, at that distance, Maria Manalac could not discern. Another person was also running away from the scene. She brought Teodorico Muoz to the Jose Reyes Memorial Hospital. The surgeon on duty pronounced Teodorico Muoz dead on arrival at 10:15 in the morning of that day. 5 Pfc. Danilo Ongtengco proceeded to the crime scene and found that accused Edwin Caeta was collared by an irate mob along Tomas Mapua Street near corner T. Remigio, Manila. He was turned over to operatives of the police and a fan knife (balisong) with broken handle. 6 Edwin Caeta confessed to stabbing the victim and also stated that Tony Gil was his companion. 7 Another prosecution eyewitness Evangeline Mico who was present during the startling occurrence, positively identified accused-appellant Antonio Abes as one of the two (2) assailants of the victim. Dr. Marcial Ceido, Medico-legal Officer of the Western Police District, Metropolitan Police Force, conducted an autopsy of the body of Teodorico Muoz and submitted his findings in a Medico-Legal Report, Exhibit "B". His findings revealed the following: EXTERNAL INJURIES AND EXTENSION EXTERNALLY: 1. Penetrating stab wound, right lower anterior thorax, 7cm. From the anterior midline, measuring 1.5 cm. x 10.5 cm. In depth, directed obliquely backwards, upwards and towards the midline thru the 6th right intercostal space and piercing the right ventricle of the heart; 2. Non-penetrating stab wound, right lateral thorax above the level of the right nipple, just posterior to the midaxillary line, measuring 2 cm. x 0.6 cm x 6.2 cm. in depth, directed obliquely backwards, 82

downwards and every slightly towards the midline coursing thru the muscle tissue; 3. Penetrating stab wound, right anterior abdomen about the level of the umbiculus, 9 cm.from the anterior midline, measuring 3.2 cm. x 0.7 cm. x 11 cm. in depth, directed obliquely backwards, very slightly upwards and towards the lateral piercing the ascending colon and right kidney; 4. Penetrating stab wound, left upper anterior thorax, 2.5 cm. from the anterior midline, measuring 1.5 cm. x 0.5 cm, x 11 cm. in depth, directed obliquely backwards, slightly upwards and towards the lateral piercing the upper lobe of the left lung; 5. Stab wound, thru and thru, right arm, middle 3rd, posterior, point of entry at the lateral half measuring 1.7 cm. x 0.5 cm., directed very slightly forwards, very slightly upwards and towards the midline thru the subcutaneous tissue and exiting at the postero-medial surface and which measures 1.5 cm. x 0.3 cm.; and 6. Stab wound, posterior proximal 3rd of the right forearm, measuring 1.3 cm. x 0.3 cm. x 3.5 cm. in depth, directed obliquely forwards, upwards and towards the lateral thru the muscle tissue. INTERNAL FINDINGS: 1. Stab wounds of the internal organs and tissues indicated under the internal extensions of the external wounds with massive hemopericardium, and recovered blood of about 1,000 cc from the thoracic and abdominal cavities; and 2. Recovered from the stomach about a glassful of liquid and without alcoholic odor. CAUSE OF DEATH Multiple stab wounds. On April 7, 1989, the National Center for Mental Health submitted a report to the trial court on the mental examination of accused Edwin Caeta. The report disclosed that the accused was mentally and physically competent to stand the rigors of a court trial. Then the prosecution and the counsel for accused Edwin Caeta stipulated that, to abbreviate proceedings, whatever evidence, testimonial and documentary, adduced by the prosecution during the trial of "People versus Antonio Abes" would constitute evidence of the prosecution in the case against Edwin Caeta. The defense presented as its lone witness Dr. Perfecto D. Chua Cheng III. He testified that he examined accused Edwin Caeta and found him suffering from drug psychosis. Drug psychosis occurs when a patient is heavily under the influence of prohibited drugs and alcoholic beverages, so that he manifested some psychotic behavior. The accused is also suffering from auditory hallucination. These are sounds or voices a person hears without any stimulous. 8 On April 2, 1990, the trial court rendered judgment convicting accused-appellants, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in the following cases; as follows:

83

1. In "People versus Edwin Caeta," Criminal Case No. 88-67358, judgment is hereby rendered finding the Accused Edwin Caeta guilty beyond reasonable doubt, as principal, for the crime of "Robbery with Homicide" defined in and penalized by Article 294 of the Revised Penal Code and hereby metes him the penalty of Reclusion Perpetua, with all the accessory penalties of the law, and hereby condemns him to pay, jointly and severally with the Accused Antonio Abes, to the heirs of the deceased the amount of P30,000.00 as moral and compensatory damages and P 17,200.00 as actual damages and to return to the Muoz Surpresa Grande the P50,000.00; 2. In "People versus Antonio Abes," Criminal Case No. 88-68270, judgment is hereby rendered finding the Accused Antonio Abes guilty beyond reasonable doubt, as principal, for the crime of "Robbery with Homicide" and hereby metes on him the penalty ofReclusion Perpetua with all the accessory. 3. Penalties of the law, and hereby condemns him to pay to the heirs of the deceased, jointly and severally with the Accused Edwin Caeta, the amount, of P30,000.00 by way of moral and compensatory damages and P17,200.00 as actual damages and to reimburse to Muoz Surpresa Grande the P50,000.00. xxx xxx xxx SO ORDERED. ROMEO J. CALLEJO Judge 9 From this judgment, accused-appellants interposed the instant appeal. The basic issues raised are: (1) whether accused-appellant Edwin Caneta was mentally ill (insane) at the time he committed the offense charged, hence he is exempt from criminal liability; (2) whether the testimony of witness Evangeline Mico y Nual should be given credence; (3) whether Antonio Abes y Callego and "Tony Gil" are one and the same person. We find no reversible error impelling a reversal of the trial court's decision. The report of the National Center for Mental Health and the testimony of Dr. Perfecto D. Chua Cheng III do not prove insanity of accused-appellant Edwin Caeta. The defense of insanity requires that the accused suffered from a complete deprivation of reason in committing the act. The accused must be completely deprived of reason. There must be no consciousness of responsibility for his acts, or that there be complete absence of the power to discern.10 The defense of insanity or imbecility must be clearly proved. 11 The law presumes every man to be sane. 12 A person accused of a crime who pleads the exempting circumstance of insanity has the burden of proving it. In order that insanity may be an exempting circumstance, there must be complete deprivation of reason in the commission of the act, or that the accused acted without discernment. Mere abnormality of his mental faculties does not preclude imputability. 13 Accused-appellant Edwin Caeta has failed to prove insanity to be exempted from criminal liability. As to accused-appellant Antonio Abes, he was positively identified bye eyewitness Evangeline Mico. The positive identification of a malefactor may not be disregarded just because his name was not known to the witness. For the eyewitness account is premised on the fact that the witness saw the accused commit the crime, and not because the witness knew his name. 84

The trial court, which had the opportunity to observe the demeanor of witness Evangeline Mico was convinced of her trustworthiness. "The time-tested doctrine is that a trial court's assessment of the credibility of a witness is entitled to great weight-even conclusive and binding on this Court, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence." 14 WHEREFORE, the Court hereby AFFIRMS the appealed decision, with the MODIFICATION that the indemnity which the accused shall jointly and severally pay to the heirs of the victim is raised to P50,000.00, in line with current rulings. Costs against accused-appellants.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Melo, Kapunan and Ynares-Santiago, JJ., concur.

EN BANC [G.R. No. 127755. April 14, 1999] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSELITO DEL ROSARIO y PASCUAL, accused-appellant. DECISION BELLOSILLO, J.: ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with Homicide and sentencing him to death and to pay the heirs of the victim Virginia Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary damages.[1 Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio Santos alias Boy Santos and John Doe alias Dodong were charged with special complex crime of Robbery with Homicide for having robbed Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry and on the occasion thereof shot and killed her.[2 While accused Joselito del Rosario pleaded not guilty,[3 Virgilio Boy Santos and John Doe alias Dodong remained at large. Ernesto Jun Marquez was killed in a police encounter. Only Joselito del Rosario was tried. These facts were established by the prosecution from the eyewitness account of tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle by the side of Nitas Drugstore, General Luna St., Cabanatuan City, when three women flagged him. Parked at a distance of about one and a-half (1) meters in front of him was a tricycle driven by accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for possession of a bag. After taking hold of the bag one of the two men armed with a gun started chasing a man who was trying to help the woman, while the other snatcher kicked the woman sending her to the ground. Soon after, the armed man returned and while the woman was still on the ground he shot her on the head. The bag taken by the man was brought to the tricycle of accused del Rosario where someone inside received the bag. The armed man then sat behind the driver while his companion entered the sidecar. When the tricycle sped away Alonzo gave chase and was able to get the plate number of the tricycle. He also recognized the driver, after which he went to the nearest police headquarters and reported the incident.[4 85

Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the afternoon he was hired for P120.00[5 by a certain Boy Santos,[6 his co-accused. Their original agreement was that he would drive him to cockpit at the Blas Edward Coliseum.[7However, despite their earlier arrangement boy Santos directed him to proceed to the market place to fetch Jun Marquez and Dodong Bisaya. He (del Rosario) acceded.[8 Marquez and Bisaya boarded in front of the parking lot of Merced Drugstore at the public market.[9Subsequently, he was asked to proceed and stop at the corner of Burgos and General Luna Sts. where Bisaya alighted on the pretest of buying a cigarette. The latter then accosted the victim Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez alighted from the tricycle to help Dodong Bisaya.[10 Accused del Rosario tried to leave and seek help but Boy Santos who stayed inside the tricycle prevented him from leaving and threatened in fact to shoot him. Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but before boarding the tricycle Jun Marquez mercilessly shot the victim on the head while she was lying prone on the ground. After the shooting, Dodong Bisaya boarded the sidecar of the tricycle while Jun Marquez rode behind del Rosario and ordered him to start the engine and drive towards Dicarma. While inside his tricycle, del Rosario overheard his passengers saying that they would throw the bag at Zulueta St. where there were cogon grasses.[11 Upon arriving at Dicarma, the three (3) men alighted and warned del Rosario not to inform the police authorities about the incident otherwise he and his family would be harmed.[12 Del Rosario then went home.[13 Because of the threat, however, he did not report the matter to the owner of the tricycle nor to the barangay captain and the police.[14 As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and sentenced him to death. He now contends in this automatic review that the court a quo erred in: (1) Not finding the presence of threat and irresistible force employed upon him by his coaccused Virgilio Boy Santos, Ernesto Jun Marquez and Dodong Bisaya; (2) Not considering his defense that he was not part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not considering the violations on his constitutional rights as an accused; and, (4) Not considering that there was no lawful warrantless arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court.[15 The conviction of del Rosario must be set aside. His claim for exemption from criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must be sustained. He was then unarmed and unable to protect himself when he was prevented at gunpoint by his co-accused from leaving the crime scene during the perpetration of the robbery and killing, and was only forced to help them escape after the commission of the crime.[16 But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not be considered uncontrollable; and that a gun pointed at him did not constitute irresistible force because it fell short of the test required by law and jurisprudence.[17 We disagree. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat.[18 As a rule, it is natural for people to be seized by fear when threatened with weapons, even those less powerful that a gun, such as knives and clubs. People will normally, usually and probably do what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a stranger. A person under the same circumstances would be more concerned with his personal welfare and security rather than the safety of a person whom he only saw for the first time that day.[19 86

Corollary with defense of del Rosario, we hold that the trial court erred when it said that it was Boy Santos who left the tricycle to chase the companion of the victim and then shot the victim on the head, instantly killing her.[20 A careful and meticulous scrutiny of the transcripts and records of the case, particularly the testimonies of the witness Alonzo and del Rosario himself, reveals that it was Jun Marquez who ran after the victims helper and fired at the victim. Witness Alonzo testified on direct examination Q: What was that unusual incident that transpired in that place at that time? A: I saw two men and a lady grappling for the possession of a bag, sir x x x x Q: What happened after the bag of the lady was grabbed by the two men? A: One helper of the lady was chased by the other man, sir. Q: Who was that man who chased the helper of the lady? A: He was the one holding the gun, sir x x x x Q: What happened when the bag of the woman was already taken by the two men who grappled the same from her? A: The man who chased the helper of the lady returned to the scene while the other man was then kicking the lady who in turn fell to the ground, sir. Q: What happened to the lady who to the ground? A: The man who chased the helper of the lady returned and then shot the woman who was then lying on the ground, sir x x x x Q: What about the bag, what happened to the bag? A: The bag was taken to a motorcycle, sir. Q: Will you please state before the Court what you noticed from the tricycle which was at a distance of about one and a half meter? A: There was a passenger inside the tricycle, sir x x x x Q: What happened to that woman that was shot by the man who grappled for the possession of the bag? A: She was no longer moving and lying down, sir. Q: After the shooting by one of the two men of the woman what else happened? A: They went away, sir x x x x Q: Will you please tell the Court in what portion of the tricycle did these men sit in the tricycle? A: The man who was holding the gun sat himself behind the driver while the other man entered the sidecar, sir.[21 On the continuation of his direct examination, after an ocular inspection on the crime scene conducted by the trial court, witness Alonzo categorically stated Q: Will you please tell us where in particular did you see the accused who was then holding the gun fired at the victim? 87

A: At the time one man was kicking the victim it was then his other companion holding the gun chased the helper of the deceased going towards Burgos Avenue, sir. Q: What happen (sic) afterwards? A: The man with the gun returned and then while the victim was lying down in this spot the man holding the gun shot the victim, sir.[22 On cross-examination, the same witness further clarified Q: So, you saw the two other accused returned back to the tricycle? A: Yes, sir. Q: And one of their companion was already inside the tricycle? xxxx Court: There was somebody inside the tricycle where the handbag was given. xxxx A: Yes, sir. Q: And the one who sat at the back of the tricycle driver was the person with the gun? A: Yes, sir.[23 On the other hand, accused Del Rosario declared during the direct examination that Q: x x x x On the evening of May 13, 1996 you were the driver of the tricycle as testified to by Eduardo Nalagon? A: Yes, sir. Q: Now, you also heard that there was a shoot out near the Cathedral and the Nitas Drugstore at Gen. Tinio St.? A: Yes, sir. xxxx Court: At that time you were seated at the tricycle, which tricycle was used by the assailants? A: Yes, sir. Q: Then what did you do? A: I tried to escape, sir, but I was stopped by them. Q: When you said they to whom are you referring? A: Boy Santos and Jun Marquez, sir. Q: And at that time where was Boy Santos? A: He was inside the tricycle, sir. Q: And what about Jun Marquez? 88

A: He alighted from the tricycle and helped him grabbed (sic) the bag of the victim . Q: And was the bag grabbed and by whom? A: Yes, sir, by Dodong Visaya was able to grab the bag. Q: And after that what happened? A: Both of them rode inside my tricycle, sir. Court: Did you not see any shooting? A: There was, sir. Q: Who was shot? A: Jun Marquez shot the woman, sir x x x x Q: When the bag of the woman was being grabbed you know that what was transpiring was wrong and illegal? A: Yes, sir. Q: But you did not try to leave? A: I tried to leave but Boy Santos who was inside my tricycle prevented me. Q: During that time before you leave (sic) how many firearms did you see? A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez and one in the possession of Boy Santos x x x x Q: And at the time when the shooting took place where was Boy Santos? A: He was still inside my tricycle, sir. Q: And during the shooting when Boy Santos was inside the tricycle and when you tried to escape that was the time when Boy Santos threatened you if you will escape something will happen to your family? A: Yes, sir. Q: After the shooting who first boarded the tricycle, Boy (Jun?) Marquez or Dodong Visaya? A: Dodong Visaya, sir. Q: And immediately thereafter Jun Marquez boarded your tricycle sitting at your back? A: Yes, sir.[24 On cross-examination, accused further stated Q: After shopping in that place for one minute what else happened? A: I saw Dodong Bisaya grabbing the bag of the woman, sir. Q: How about your two companions, what are (sic) they doing while Dodong Bisaya was grabbing the bag of the woman? 89

A: Jun Marquez was helping Dodong Bisaya, sir. Q: What happened after Jun Marquez helped Dodong Bisaya? A: I heard a gunshot and I saw the woman lying down x x x x Q: You could have ran away to seek the help of the police or any private persons? A: I was not able to ask for help because Boy Santos pointed his gun to me, sir. Q: Was the gun being carried by Boy Santos, is the one that is used in shooting the old woman? A: No, sir x x x x. Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez were grappling for the possession of the handbag? A: He was then inside the tricycle, sir x x x x[25 Q: Mr. Witness, you testified that the reason why you just cannot leave the area where the incident occurred is because a gun was pointed to you by Boy Santos and he was telling you that you should not do anything against their will, they will kill you and your family will be killed also, is that correct? A: Yes, sir. Q: Now, is it not a fact that at the time you stop (sic) your tricycle which was loaded by your other three co-accused in this case, all of them alighted and that Boy Santos ran after a helper of the victim going towards the public market along Burgos Street? A: He did not alight from the tricycle, sir. Court: Are you quite sure of that? A: Yes, sir.[26 Del Rosario maintains that Boy Santos never left the tricycle and that the latter pointed his gun at him and threatened to shoot if he tried to escape. He also asserted that it was Jun Marquez who shot the victim and sat behind him in the tricycle. From the narration of witness Alonzo, these events stood out: that after the bag of the victim was grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and shot the victim and then sat behind the driver of the tricycle; and, the bag was given to a person who was inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the testimony of del Rosario, it can be deduced that Jun Marquez was the person witness Alonzo was referring to when he mentioned that a helper of the lady was chased by the other man and that this other man could not be Boy Santos who stayed inside the tricycle and to whom the bag was handed over. This conclusion gives credence to the claim of del Rosario that Boy Santos never left the tricycle, and to his allegation that Boy Santos stayed inside the tricycle precisely to threaten him with violence and prevent him from fleeing; that there could have been no other plausible reason for Boy Santos to stay in the tricycle if the accused was indeed a conspirator; that Boy Santos could have just left the tricycle and helped in the commission of the crime, particularly when he saw the victim grappling with Dodong Bisaya and resisting the attempts to grab her bag; and, that Boy Santos opted to remain inside the tricycle to fulfill his preordained role of threatening del Rosario and insuring that he would not escape and leave them behind.[27 Even if the tricycle of del Rosario was only parked one meter and a half (1) in front of the tricycle of witness Alonzo, the latter still could not have totally seen and was not privy to events that 90

were transpiring inside the vehicle, i.e., the pointing of the gun by Boy Santos at del Rosario simultaneously with the robbing and shooting of the victim. From the exhibits submitted by the prosecution panel the back of the sidecar of del Rosario tricycle was not transparent.[28 There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos, making him for the moment of automaton without a will of his own. In other words, in effect, he could not be any more than a mere instrument acting involuntarily an against his will. He is therefore exempt from criminal liability since by reason of fear of bodily harm he was compelled against his will to transport his co-accused away from the crime scene. On the issue of conspiracy, the trial court anchored del Rosarios conviction on his participation in the orchestrated acts of Boy Santos, Jun Marquez and Dodong Bisaya. According to the trial court, del Rosario facilitated the escape of the other malefactors from the crime scene and conspiracy between accused and his passengers was evident because while the grappling of the bag, the chasing of the helper of the victim and the shooting that led to the death of Virginia Bernas were happening, accused Joselito del Rosario was riding on his tricycle and the engine of the motor was running;[29 that the accused did not deny that the tricycle driven by him and under his control was hired and used by his co-accused in the commission of the crime; neither did he deny his failure to report to the authorities the incident of robbery, killing and fleeing away from the scene of the crime.[30 We disagree with the trial court. A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The objective of the conspirators is to perform an act or omission punishable by law. That must be their intent. There is need for concurrence of wills or unity of action and purpose or for common and joint purpose and design. Its manifestation could be shown by united and concerted action.[31 Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy.[32 Nevertheless, mere knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. In fact, the same degree of proof necessary to establish the crime is required to support a finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt.[33 In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he had no inkling of the malevolent design of his co-accused to rob and kill since he was not given any briefing thereof. He was merely hired by Boy Santos to drive to an agreed destination and he was prevented at gunpoint from leaving the scene of the crime since he was ordered to help them escape. In this case, the trial court stated that "there is no evidence that the accused came to an agreement concerning the commission of the felony and decided to commit the same."[34 Therefore, in order to convict the accused, the presence of an implied conspiracy is required to be proved beyond reasonable doubt. However, the fact that del Rosario was with the other accused when the crime was committed is insufficient proof to show cabal. Mere companionship does not establish conspiracy.[35 The only incriminating evidence against del Rosario is that he was at the scene of the crime but he has amply explained the reason for his presence and the same has not been successfully refuted by the prosecution. As stated earlier, 91

he feared for his safety and security because of the threat made by his co-accused that he would, be killed should he shout for help. No complicity can be deduced where there is absolutely no showing that the accused directly participated in the overt act of robbing and shooting although he was with the persons who robbed and killed the victim.[36 That del Rosario did not disclose what he knew about the incident to the authorities, to his employer or to the barangay captain does not affect his credibility. The natural hesitance of most people to get involved in a criminal case is of judicial notice.[37 It must be recalled that del Rosario was merely a tricycle driver with a family to look after. Given his quite limited means, del Rosario understandably did not want to get involved in the case so he chose to keep his silence. Besides, he was threatened with physical harm should he squeal. Del Rosario further contends that there was violation of his right to remain silent, right to have competent and independent counsel preferably of his own choice, and right to be informed of these rights as enshrined and guaranteed in the Bill of Rights.[38 As testified to by SP04 Geronimo de Leon, the prosecution witness who was the team leader of the policemen who investigated the 13 May incident, during his cross-examination Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan in the house of the barangay captain where the owner of the tricycle was summoned and who in turn revealed the driver's name and was invited for interview. The driver was accused Joselito del Rosario who volunteered to name his passengers on May 13, 1996. On the way to the police station, accused informed them of the bag and lunch kit's location and the place where the holduppers may be found and they reported these findings to their officers, Capt. Biag and Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma composed of 15 armed men where a shootout transpired that lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they went inside the house where they found Marquez dead holding a magazine and a gun. While all of these were happening, accused del Rosario was at the back of the school, after which they went back to the police station. The investigator took the statement of the accused on May 14,1996, and was only subscribed on May 22,1996. All the while, he was detained in the police station as ordered by the Fiscal. His statements were only signed on May 16, 1996. He also executed a waiver of his detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge Talavera.[39 A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del Rosario was handcuffed by the police because allegedly they had already gathered enough evidence against him and they were afraid that he might attempt to escape.[40 Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-settled that it encompasses any question initiated by law enforcers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [41 This concept of custodial investigation has been broadened by RA 7438[42 to include "the Practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed." Section 2 of the same Act further provides that x x x x Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known and understood by him of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. From the foregoing, it is clear that del Rosario was deprived of his rights during custodial investigation. From the time he was "invited" for questioning at the house of the barangay captain, he was already under effective custodial investigation, but he was not apprised nor made aware thereof by the investigating officers. The police already knew the name of the tricycle driver and the latter was already a suspect in the robbing and senseless slaying of Virginia Bernas. Since the prosecution failed to establish that del Rosario had waived his right to 92

remain silent, his verbal admissions on his participation in the crime even before his actual arrest were inadmissible against him, as the same transgressed the safeguards provided by law and the Bill of Rights. Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section 5, Rule 113 of the Rules of Court provides:[43 Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c) When the person to be arrested is a prisoner who has escaped from penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs Sucro[44 we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day following the commission of the robbery with homicide. On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence, there must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest must have personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime.[45 Again, the arrest of del Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after the consummation of the crime and not immediately thereafter. As such, the crime had not been "just committed" at the time the accused was arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to be arrested had committed the offense since they were not present and were not actual eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway tricycle only during the custodial investigation. However the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the person arrested submits to arraignment without any objection, as in this case.[46 A transgression of the law has occurred. Unfortunately, an innocent person lost her life and property in the process. Someone therefore must be held accountable, but it will not be accused Joselito del Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim who was forcibly used by other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense of "irresistible force" has been substantiated by clear and convincing evidence. On the other hand, conspiracy between him and his co-accused was not proved beyond a whimper of a doubt by the prosecution, thus clearing del Rosario of any complicity in the crime charged. WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death, is REVERSED and SET ASIDE, and the accused is ACQUITTED of the crime charged. His immediate RELEASE from confinement is ordered unless held for some other lawful cause. In this regard, the Director of Prisons is directed to report to the Court his compliance herewith within five (5) days from receipt hereof. 93

SO ORDERED.

94