AN ACT REVISING THE PENAL CODE AND OTHER PENAL LAWS (December 8, 1930) Preliminary Article This law

w shall be known as "The Revised Penal Code." BOOK ONE GENERAL PROVISIONS REGARDING THE DATE OF ENFORCEMENT AND APPLICATION OF THE PROVISIONS OF THIS CODE, AND REGARDING THE OFFENSES, THE PERSONS LIABLE AND THE PENALTIES Preliminary Title DATE OF EFFECTIVENESS AND APPLICATION OF THE PROVISIONS OF THIS CODE Article 1. Time when Act takes effect. This Code shall take effect on the first day of January, nineteen hundred and thirty-two.chanrobles virtual law library Art. 2. Application of its provisions. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; chan robles virtual law library 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.chanrobles virtual law library Title One FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY Chapter One FELONIES

Art. 3. Definitions. Acts and omissions punishable by law are felonies (delitos).chanrobles virtual law library

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).chanrobles virtual law library There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.chanrobles virtual law library Art. 4. Criminal liability. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.chanrobles virtual law library 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.chanrobles virtual law library Art. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties.chanrobles virtual law library Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation.chanrobles virtual law library In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.chanrobles virtual law library Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are frustrated and attempted, are punishable.chanrobles virtual law library A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.chanrobles virtual law library There is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.chanrobles virtual law library Art. 7. When light felonies are punishable. Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property.chanrobles virtual law library chan robles virtual law library

Art. 8. Conspiracy and proposal to commit felony. Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor.chanrobles virtual law library A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.chanrobles virtual law library There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons.chanrobles virtual law library Art. 9. Grave felonies, less grave felonies and light felonies. Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of this Code.chanrobles virtual law library Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned Art..chanrobles virtual law library Light felonies are those infractions of law for the commission of which a penalty of arrest menor or a fine not exceeding 200 pesos or both; is provided.chanrobles virtual law library Art. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.chanrobles virtual law library

Chapter Two JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY

Art. 11. Justifying circumstances. The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression.chanrobles virtual law library Second. Reasonable necessity of the means employed to prevent or repel it.chanrobles virtual law library Third. Lack of sufficient provocation on the part of the person defending himself.chanrobles virtual law library

2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the revocation was given by the person attacked, that the one making defense had no part therein.chanrobles virtual law library 3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this Art. are present and that the person defending be not induced by revenge, resentment, or other evil motive.chanrobles virtual law library 4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present;

First. That the evil sought to be avoided actually exists; Second. That the injury feared be greater than that done to avoid it; Third. That there be no other practical and less harmful means of preventing it.chanrobles virtual law library 5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.chanrobles virtual law library 6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.chanrobles virtual law library 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.chanrobles virtual law library When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.chanrobles virtual law library 2. A person under nine years of age.chanrobles virtual law library 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this Code.chanrobles virtual law library

When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in said Art. 80.chanrobles virtual law library 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.chanrobles virtual law library 5. Any person who act under the compulsion of irresistible force.chanrobles virtual law library 6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.chanrobles virtual law library 7. Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause.chanrobles virtual law library Chapter Three CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Art. 13. Mitigating circumstances. The following are mitigating circumstances; 1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to exempt from criminal liability in the respective cases are not attendant.chanrobles virtual law library 2. That the offender is under eighteen year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80.chanrobles virtual law library 3. That the offender had no intention to commit so grave a wrong as that committed.chanrobles virtual law library 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.chanrobles virtual law library 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees.chanrobles virtual law library 6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.chanrobles virtual law library 7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution;

8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense, or communications with his fellow beings.chanrobles virtual law library 9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts.chanrobles virtual law library chan robles virtual law library 10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned.chanrobles virtual law library Chapter Four CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Art. 14. Aggravating circumstances. The following are aggravating circumstances: 1. That advantage be taken by the offender of his public position.chanrobles virtual law library 2. That the crime be committed in contempt or with insult to the public authorities.chanrobles virtual law library 3. That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the latter has not given provocation.chanrobles virtual law library 4. That the act be committed with abuse of confidence or obvious ungratefulness.chanrobles virtual law library 5. That the crime be committed in the palace of the Chief Executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.chanrobles virtual law library 6. That the crime be committed in the night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense.chanrobles virtual law library Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.chanrobles virtual law library 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.chanrobles virtual law library 8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.chanrobles virtual law library 9. That the accused is a recidivist.chanrobles virtual law library

A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code.chanrobles virtual law library 10. That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.chanrobles virtual law library 11. That the crime be committed in consideration of a price, reward, or promise.chanrobles virtual law library 12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin.chanrobles virtual law library 13. That the act be committed with evidence premeditation.chanrobles virtual law library 14. That the craft, fraud or disguise be employed.chanrobles virtual law library 15. That advantage be taken of superior strength, or means be employed to weaken the defense.chanrobles virtual law library 16. That the act be committed with treachery (alevosia).chanrobles virtual law library There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.chanrobles virtual law library 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act.chanrobles virtual law library 18. That the crime be committed after an unlawful entry.chanrobles virtual law library There is an unlawful entry when an entrance of a crime a wall, roof, floor, door, or window be broken.chanrobles virtual law library 20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means. (As amended by RA 5438). 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commissions.chanrobles virtual law library

US VS. AH CHONG
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant. Gibb & Gale, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a

robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. Article 8 of the Penal Code provides that The following are not delinquent and are therefore exempt from criminal liability: xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.) Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language: It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of

the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took

the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily." Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-inlaw, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without

sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with

blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland and Elliott, JJ., concur. Arellano, C.J., and Mapa, J., dissent. Separate Opinions TORRES, J., dissenting: The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

PEOPLE VS. OANIS

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further

inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus

corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the

victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance ofalevosia. There is, however, a mitigating circumstance of weight consisting in the

incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur. Separate Opinions PARAS, J., dissenting: Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed. In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger. The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned. The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life. In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious. The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive. The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio. HONTIVEROS, J., dissenting: According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows: Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870. Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope. The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870 which is the source of Article 69 of our Code says: Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de nueve aos; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley no exige multiples condiciones. It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of

some of the conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites concur in the present case if we consider the intimate connection between the order given to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with Irene, and the statement made by Capt. Monsod after the shooting. If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F and O, the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be stated that no bullet fired by Galanta did ever hit or

kill Serapio Tecson and therefore there is no reason why he should be declared criminally responsible for said death.

PEOPLE VS. MARTINEZ

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 137519 March 16, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. ANGELITO MARTINEZ and DEXTER TAGLE, appellants. DECISION PER CURIAM: For automatic review is the decision1 of Branch 259 of the Regional Trial Court in Paraaque City finding appellants guilty beyond reasonable doubt of the crime of kidnapping for ransom and serious illegal detention as defined and penalized under Article 267 of the Revised Penal Code (RPC), as amended by RA 7659, and imposing upon them the death penalty and moral damages of P1,000,000. This case is now before us on automatic review. In an amended information filed with the Regional Trial Court of Paraaque City, appellants Angelito Martinez and Dexter Tagle, together with accused Rosita Yu, Genaro de Jesus, Rigor Aguilar, Rico Basa and Dennis Rivera, were charged with kidnapping for ransom: That at about 10:30 oclock in the evening of 4 August 1996 along Quirino Avenue, Paraaque City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another together with some other persons whose liabilities are still being determined in a preliminary investigation, did then and there, by force and intimidation, willfully, unlawfully and feloniously take, carry away and kidnap ATTY. AQUILES LOPEZ against his will, and thereafter detain him, thereby depriving ATTY. AQUILES LOPEZ of his liberty for the purpose of extorting ransom for his release. Records show that on August 2, 1996, appellants Martinez and Tagle met with accused Aguilar, Rivera and Basa at the Emilio Aguinaldo College along Taft Avenue, Manila. The group conjured up a plan to kidnap any person for ransom on August 5, 1996. On August 4, 1996 at around 6:00 p.m., on board a red Toyota Corolla with tinted windows and bearing a California plate, appellant Tagle and accused Aguilar and Rivera first proceeded to appellant Martinez house in Valenzuela City. Wearing military and police uniforms, they then went to SM Mega Mall in Ortigas where they planned to intercept classy cars violating traffic rules as a prelude to spotting a suitable kidnap victim. Unable to find one, the group drove to Paraaque City. At around 10:30 p.m., the

group spotted a black Honda Accord with plate no. TPA-762 along Quirino Avenue, Paraaque City. The driver of said car was later identified as the kidnap victim, Atty. Aquiles Lopez. Overtaking Lopez on the left (drivers side), appellant Martinez who was occupying the front seat, brandished a long firearm at him. Lopez tried to speed away but the red car succeeded in blocking his path. As Lopez brought his car to a stop, the group alighted from the red car and introduced themselves as members of the police Narcotics Command. He was able to see their faces clearly because the headlights of his car were on. Accused Aguilar approached him and demanded to see his car registration papers while appellant Tagle searched the trunk of his car. Realizing that Lopez was the president of a company, appellant Martinez ordered appellant Tagle and accused Aguilar to transfer him to the backseat of the black Honda Accord where he was handcuffed and blindfolded. The group drove to the North Expressway with appellant Tagle at the wheel of the black Honda. Accused Basa was seated at the front seat while appellant Martinez, victim Lopez and accused Aguilar were at the back. Accused Rivera drove the kidnappers red Toyota Corolla. Upon reaching the Sta. Rita exit, Lopez was transferred to the red car. They proceeded to appellant Martinez house where the victim was hold captive for four nights and three days. During his detention, Lopez conveyed to his daughter Rosalinda Lopez Medina his abductors demand for ransom of P10,000,000 which was later reduced to P2,000,000. In the meantime, on August 5, 1996, the family of Lopez reported his disappearance to the Presidential Anti-Crime Commission (PACC) after his daughter received several phone calls early in the morning informing her of her fathers kidnapping. After receiving the report, Senior Supt. Roberto Calinisan, head of the Task Force Habagat, immediately dispatched his men to ascertain the whereabouts of Lopez. On August 6, 1996, the monitoring team assigned to the northern sector of the metropolis spotted the black Honda Accord with plate no. TPA-762 parked inside a residence in Yakal Street, Fortune Village, Valenzuela, Metro Manila. At around 11:00 p.m. the next day, August 7, 1996, after surveillance operations confirmed that the victim was indeed being detained inside one of the rooms of the house, operatives of the PACC Task Force Habagat raided the said residence and successfully rescued Lopez. While the PACC agents were still inside the house, about three persons outside and on board a red Toyota Corolla traded shots with perimeter security personnel of the PACC Task Force. The occupants of the red car were able to elude arrest but appellant Martinez and accused Yu and de Jesus were arrested during the raid. Several items were recovered from the scene.2 In a subsequent report by the members of the Valenzuela Police, the same red Toyota Corolla with California plates was found abandoned inside Fortune Village Subdivision. Several items were likewise recovered inside the abandoned vehicle.3 On August 9, 1996, accused Aguilar and, on August 10, 1996, appellant Tagle surrendered to the authorities after learning that they were being implicated in the kidnapping of Lopez. Appellant Tagle even accompanied the operatives of the PNP-CIU in a follow-up operation at Fortune 7, Parada St., Valenzuela. The operation resulted as well in the recovery of some items.4

On arraignment and with the assistance of their respective counsels, appellants Martinez and Tagle, accused Yu, de Jesus and Aguilar all pleaded not guilty to the charge against them while accused Rivera and Basa remained at large. Pre-trial was terminated and trial proceeded accordingly. The prosecution presented eight witnesses: kidnap victim Atty. Aquiles Lopez, the kidnap victims daughter Rosalinda Lopez Medina, Sr. Insp. Narciso Ouano, Jr., SPO Jesus C. Sagisi, PNP member Romeo Biete, Chief Insp. Gilbert Cruz, Sr. Insp. Ronaldo Mendoza, and accused turned state witness Rigor Aguilar. For the defense, appellant Martinez testified in his behalf and presented as witnesses Felicidad Condino, Perla Condino and co-accused Rosita Yu. Appellant Tagle, on the other hand, testified in his own behalf and presented his mother, Manuela Tagle, as his other witness. Accused Yu and de Jesus did not present any witnesses but relied solely on their own respective testimonies. On April 29, 1997, the prosecution filed a motion to discharge accused Aguilar from the information for utilization as state witness. The trial court granted the motion despite opposition from the accused and also denied their joint motion for reconsideration. On July 1, 1997, appellant Martinez and accused de Jesus filed in the Court of Appeals a petition for certiorari and prohibition with prayers for the issuance of a writ of preliminary injunction and temporary restraining order, to nullify the trial courts order discharging accused Aguilar as state witness and denying their joint motion for reconsideration. After their petition was denied, a petition for review under Rule 45 was filed with this Court. We denied said petition. On December 7, 1998, the trial court rendered its decision: WHEREFORE, PREMISES CONSIDERED, finding accused Angelito Martinez and Dexter Tagle GUILTY beyond reasonable doubt [of] the crime of Kidnapping for Ransom and Serious Illegal Detention as defined and penalized under Article 267 of the Revised Penal Code as amended by RA 7659, both accused Martinez and Tagle are hereby sentenced to the supreme penalty of death by lethal injection and to suffer the accessory penalties provided by law specifically Article 40 of the Revised Penal Code. They are also ordered to pay moral damages in the amount of P1,000,000.00 each. As earlier pronounced, accused Rosita Yu and Genaro de Jesus are declared NOT GUILTY for insufficiency of evidence while the case against Dennis Rivera and Rico Basa is ordered archived pending their apprehension. Rigor Aguilar, having been discharged to testify as a witness for the prosecution, is hereby set free pursuant to Section[s] 9 and 11 of Rule 119 of the Rules of Court and towards this end, the PACC is directed to immediately release him from custody unless there by (sic) some other reasons for his further detention. The Jail Warden of Paraaque is also ordered to release Rosita Yu and Genaro de Jesus unless there be some reasons also for their further detention. The Clerk of Court of this Court is directed to prepare the MITTIMUS for the immediate transfer of Angelito Martinez and Dexter Tagle to the Bureau of Corrections in Muntinlupa City and finally forward

all the records of the case to the Supreme Court for automatic review in accordance with Section 8 Rule 122 of the Rules of Court and Article 47 of the Revised Penal Code as amended by Section 22 of RA 7659.5 In his brief,6 appellant Tagle raises the following errors: THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF KIDNAPPING FOR RANSOM NOTWITHSTANDING THE INADMISSIBILITY OF THE EVIDENCE ADDUCED BY THE PROSECUTION. THE TRIAL COURT ERRED IN UPHOLDING THE DISCHARGE OF STATE WITNESS RIGOR AGUILAR FROM THE INFORMATION IN ACCORDANCE WITH SECTION 9 [now Section 17], RULE 119 OF THE RULES OF COURT DESPITE HIS INADMISSIBLE AND INCONSISTENT STATEMENTS. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DEXTER TAGLE DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE EXISTENCE OF CONSPIRACY AMONG THE PERPETRATORS WITH CLEAR AND CONVINCING PROOF. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT DEXTER TAGLE ON THE BASIS OF THE POSITIVE IDENTIFICATION BY THE VICTIM DESPITE THE FACT THAT HE WAS NOT ASSISTED BY COUNSEL DURING THE POLICE LINE-UP WHEN IDENTIFIED. Appellant Martinez, on the other hand, assigns the following errors:7 THE TRIAL COURT ERRED IN FINDING MARTINEZ GUILTY OF THE CRIME OF KIDNAPPING. THE TRIAL COURT ERRED IN RULING THAT ACCUSED-APPELLANT MARTINEZ WAS POSITIVELY IDENTIFIED BY THE (SIC) LOPEZ, THE KIDNAP VICTIM. (THE) TRIAL COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE STATE WITNESS, RIGOR AGUILAR. THE TRIAL COURT ERRED IN DISREGARDING ACCUSED APPELLANTS DEFENSE OF ALIBI. The issue in this case boils down to ascertaining whether or not the guilt of both appellants Martinez and Tagle was proven beyond reasonable doubt. The defense stresses that, due to the doubtful identification and description by Lopez, there was a lack of ample evidence positively pinpointing appellants as the abductors. Appellant Martinez alleges that it was impossible for Lopez to clearly see his abductors and therefore his description of his kidnappers was too general and vague. On the other hand, appellant Tagle claims that the identification made by the victim during the police line-up was inadmissible because he stood there without the assistance of counsel. We disagree. Lopez described the man who brandished a rifle at his left as "tall, well-built, slightly dark and wearing a police uniform," while the man who opened the trunk of his car "was wearing a white tshirt, not very tall, fair complexioned but pretty well-built," and the man who ordered the others to put

him at the back seat of the car "was tall, well-built, husky and wearing a camouflage uniform." The description given by the victim was acceptable as it sufficiently identified his abductors. In addition, Lopez stated in open court that he could recognize his kidnappers if he saw them again. Thus, even if the description he gave was allegedly general in character, recognition and description are two different processes that do not necessarily jibe. Description presupposes a facility of communication that many persons do not possess.8 The most important evidence was the positive testimony of Lopez recognizing appellants as his abductors. Common human experience tells us that when extraordinary circumstances take place, it is natural for persons to remember many of the important details. This Court has held that the most natural reaction of victims of criminal violence is to strive to see the features and faces of their assailants and observe the manner in which the crime is committed. Lopez positively identified appellant Martinez as one of his captors. He testified that he saw the faces of his abductors because the headlights of his car were focused on them when they alighted from their car. This enabled him to clearly see their faces. All too often, the face of the assailant and his body movements create a lasting impression on the victim's mind and cannot thus be easily erased from his memory. On the allegation of appellant Tagle that his identification by the victim during the line-up without his counsel violated his constitutional right (to counsel), suffice it to say that such right attaches only upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information, confession or admission from the accused. In this case, when appellant Tagle was identified by Lopez in the police line-up, he had not yet been held to answer for the criminal offense for which he has since been charged and convicted. Thus, appellant Tagles right to counsel could not have been violated as the confrontation between the State and the accused had not yet begun. This Court has consistently held that the prohibition against custodial investigation conducted without the assistance of counsel does not extend to a person in a police line-up. This particular stage of an investigation where a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it as yet involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an identification without the presence of counsel at a police line-up does not preclude the admissibility of an in-court identification.9 Appellant Tagle claims that, when the police line-up was conducted, he was already indicted for the offense charged and thus had the right to counsel. This is not correct for it has been ruled that a persons right to counsel while under custodial investigation cannot be invoked until such time as the police investigators start questioning, interrogating or exacting a confession from the person under investigation.10 During the police line-up, appellant Tagle was not interrogated at all and no statement or confession was extracted from him. Therefore, there was no deprivation of his right to counsel because the accusatory process had not yet begun nor had the police, at that stage, exacted a confession from him. Moreover, the appellants have not shown any ill-motive on the part of the victim to fabricate charges against them. It is well-settled that when there is no evidence to show that the prosecution witness is

actuated by an improper motive, identification of the appellants as the offenders should be given full faith and credit.11 Furthermore, appellant Tagle avers that the prosecution failed to prove the existence of conspiracy. On this point, we have time and again held that conspiracy need not be established by direct proof of prior agreement by the parties to commit a crime but that it may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to a joint purpose, concerted action and community of interest.12The conspiracy in this case was clear from the overt acts of the accused which facilitated the kidnapping of Lopez. The group of Tagle, masterminded by appellant Martinez, armed with high-powered weapons and simulating public authority, carried out their plan to commit kidnapping for ransom. Contrary to appellant Tagles contention, his complicity in the kidnapping was established not only by the testimony of state witness Rigor Aguilar but also by the testimony of victim Lopez himself. Both Aguilar and Lopez positively identified him. It is well-settled that the trial courts evaluation of the credibility of witnesses must be accorded great respect owing to its opportunity to observe and examine the witnesses conduct and demeanor on the witness stand.13 In this case, the trial court found the testimonies of Aguilar and Lopez totally credible.14 This Court finds no reason to depart from the findings of the court a quo. The appellants also fault the trial court for not giving credence to their defense of alibi, claiming that where the evidence of the prosecution is weak, the defense of alibi assumes importance and bears looking into. This contention, however, must fail in the face of the positive identification of the appellants as the perpetrators of the crime by the victim himself and state witness Aguilar. Tagle averred that on August 4, 1996, he was at home helping his mother prepare for the death anniversary of his father. He accompanied her to Divisoria and later, at around 7:00 p.m., he went to the house of accused Rivera who wanted to borrow his car. Thereafter, he visited to his girlfriend and went home at around 11:00 p.m. His mother, Manuela Tagle, corroborated his story. On the other hand, appellant Martinez stated that on August 2, 1996, he was at the Ninoy Aquino International Airport in Paraaque to fetch one Perla Condino. Perla and her mother, Felicidad Condino, attested that Martinez accompanied Felicidad in fetching Perla from the airport. Further, appellant Martinez alleged that, in the evening of August 4, 1996, he was with his girlfriend, accused Rosita Yu, in Valenzuela. He was awakened when the group of accused Aguilar arrived at around 1:00 a.m. on August 5, 1996 and asked to spend the night in his house. Both appellants failed to establish that it was impossible for them to be at the scene of the crime. In the case of Tagle, the fact that he accompanied and helped his mother prepare for his fathers death anniversary was of no moment for he admitted that he left their house in the evening of August 4, 1996. It was therefore not impossible for him to join the other accused to commit the crime and still be back home immediately thereafter. In the case of Martinez, his claim that he was then sleeping at home in Valenzuela at the time the crime was committed deserves scant consideration. Since both Ortigas and Paraaque City are no more than a few hours drive from Valenzuela, it was not impossible for Martinez to be physically present at the crime scene at the time of its commission.

The alibis proffered by the appellants cannot prevail over the unequivocal testimony of the victim categorically and positively pointing to them as his abductors. The defense of alibi, to be given full credit, must be clearly established and must not leave room for doubt. The contention of both appellants that the discharge of Aguilar as state witness was erroneous as it allegedly failed to comply with the conditions set forth under Rule 119, Section 17 of the Rules of Court15 lacks merit. The discharge of an accused as a state witness is at the discretion of the court. The prosecution can only propose such discharge and the court can refuse it if the objective of the prosecution will not be served thereby. Absolute certainty is not required in the determination of whether the conditions for discharge are present since the trial court has perforce to rely in large part on the representations of the prosecution. In this case, there was no other direct evidence available to prove the conspiracy to commit kidnapping and to establish the circumstances leading to Lopez abduction. Hence, the necessity of discharging Aguilar as state witness. In any event, Aguilars testimony was substantially corroborated by those of the other prosecution witnesses. Furthermore, Aguilar did not appear to be the most guilty among the accused since it was clear that he was not the leader of the group. In addition, there was no showing that Aguilar had ever been previously convicted of any offense involving moral turpitude. Appellant Tagle likewise contends that Rule 119, Section 9 of the Rules on Criminal Procedure (now Section 17 of the Revised Rules, as amended on October 3, 2000) requires that the sworn statement of the accused intended to be discharged must be presented in court. Since Aguilars sworn statement was obtained without the assistance of an independent counsel (he secured the services of the assisting lawyer in the execution of his sworn statement), it was made in violation of his constitutional rights. Hence, it was inadmissible and could not be made the basis of his discharge as state witness. It can be gleaned, however, from the sworn statement of Aguilar that he was the one who obtained the services of the lawyer who assisted him in the execution of his sworn statement. It was also significant that Aguilar was duly informed of his constitutional rights. He was warned that any statement he made could be used against him and that he was entitled to be assisted by a lawyer of his choice. At this point, Aguilar, on his own accord, chose the assisting counsel to act as his lawyer. Considering the foregoing circumstances, this Court is of the view that Aguilars admissions in his sworn statement, voluntarily made and later confirmed by him in open court during the trial, negated the challenge now interposed as to the admissibility of such sworn statement. Furthermore, appellant Tagle alleges that since the pieces of evidence presented were inadmissible for having been obtained without a search warrant, his conviction based thereon was erroneous. This argument does not hold water either. The extraordinary circumstances leading to the rescue of Lopez did not require a search warrant. The PACC had reasonable grounds to believe that a crime was then being committed. Its agents conducted a series of surveillance operations to confirm and ascertain that the victim was indeed being detained inside one of the rooms in the house where the Black Honda Accord was parked.

There was consequently more than sufficient probable cause to warrant the action they undertook. In such an urgent situation, a search warrant could lawfully be dispensed with. Furthermore, appellant Tagles conviction was based not solely on the items recovered during the raid but also on the testimony and positive identification by victim Lopez and state witness Aguilar. Also, in his futile attempt to secure exculpation, appellant Martinez would have us believe that the testimonies of Lopez and state witness Aguilar on the manner the abduction was carried out conflicted with each other. Lopez allegedly testified that a firearm was poked at him to make him stop but Aguilar mentioned that a siren blast was used to make him stop. He further alleged that Lopez tried to speed away while Aguilar testified that Lopez slowed down. Furthermore, the victim stated that three armed men alighted from the red car while Aguilar testified that all five of them get down therefrom. In addition, appellant Martinez averred that the testimonies of Lopez and Aguilar contradicted each other as to the roles the accused played, the clothes they wore and the abductors seating arrangement inside the black Honda car. Appellants attempts to destroy the prosecution witnesses testimonies are futile. The inconsistencies cited refer to minor details. The rule is that inconsistencies in the testimonies of prosecution witnesses on minor details and collateral matters do not affect the substance of their declaration, their veracity or the weight of their testimonies. The inconsistencies and discrepancies pointed out by appellant Martinez are not of such nature as would warrant the reversal of the decision appealed from. Appellants were charged with and convicted by the trial court of the crime of kidnapping for ransom and serious illegal detention under Article 267 of the RPC as amended by RA 7659.16 To warrant the imposition of the death penalty for the crime of kidnapping for ransom and serious illegal detention, the prosecution must prove beyond reasonable doubt: (a) the intent of the accused to deprive the victim of his liberty; (b) the actual deprivation of the victim of his liberty and (c) the motive of the accused to exact ransom for the release of the victim. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proved by words or overt acts before, during or after the kidnapping and detention of the victim.17 Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.18 Based on the evidence on record, the following facts were indisputably established: (1) Lopez was abducted on August 4, 1996 by five men including appellants Martinez and Tagle; (2) the victim was detained in the house of appellant Martinez against his will and was deprived of his liberty, and (3) the kidnappers demanded payment of ransom, initially in the amount of P10,000,000, for the release of the victim. After several negotiations, it was reduced to P2,000,000. The daughter of Lopez testified that she received several phone calls demanding the aforesaid amounts for the release of her father. Clearly, all the elements and qualifying circumstance to warrant conviction for the crime of kidnapping for ransom and serious illegal detention were established beyond reasonable doubt. As provided in Article 267 of the RPC, the penalty of death is imposable where the detention is committed for the purpose of extorting ransom.

The award by the trial court of P1,000,000 as moral damages should be modified. Under Article 2219, paragraph 5 of the Civil Code, moral damages may be awarded to a victim of illegal detention or arrest. The appellants brandished a firearm at the victim, blindfolded him and took him captive in Valenzuela. The victim suffered mental, physical and psychological trauma. Under the circumstances, there is sufficient basis for an award of moral damages in the amount of P300,000.19 We also note that an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to exemplary damages within the meaning of Article 2230 of the Civil Code.20 This requisite has been met in this case. A band of five men, using a motor vehicle, abducted the victim and demanded ransom for his liberty. Article 2234 of the Civil Code provides that, while the amount of the exemplary damages need not be proved, the Court may impose exemplary damages in addition to moral damages. In this case, we have already awarded the latter. In order to serve as a deterrent against socially deleterious acts, we hold that the victim is entitled to exemplary damages in the amount of P100,000 by way of example or correction, in addition to the moral damages herein awarded.21 In the light of these premises, the Court finds no reversible error in the decision of the trial court. Consequently, it is left with no alternative but to sustain the imposition of the death penalty on the appellants. Three members of the Court maintain their position that RA 7659, insofar as it prescribes the death penalty is unconstitutional. Nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. WHEREFORE, the decision of the Regional Trial Court, Branch 259 of the Regional Trial Court in Paraaque City in Criminal Case No. 96-739 finding appellants Angelito Martinez and Dexter Tagle guilty beyond reasonable doubt of the crime of kidnapping for ransom and serious illegal detention and imposing upon them the death penalty is hereby AFFIRMED with the MODIFICATION that they shall pay the victim in solidum the amount of P300,000 as moral damages and an additional amount of P100,000 as exemplary damages. In accordance with Section 25 of RA 7659 amending Section 83 of the Revised Penal Code, let the records of this case be forthwith forwarded, upon finality of this decision, to the Office of the President for possible exercise of the pardoning power. Costs against appellants. SO ORDERED. Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, and Panganiban, JJ., on leave.

PEOPLE VS RAMOS
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 135204 April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. NARCISO RAMOS y MATIAS, RAMON SAN ROQUE y DELA CRUZ, EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias LALING, WILLIAM RAMOS alias WILFREDO RAMOS, (provisionally dismissed), and three (3) other John Does, accused. EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias "LALING", appellant. DECISION SANDOVAL-GUTIERREZ, J.: Appeal by Eulalia San Roque de Francisco y dela Cruz from the Decision1 dated April 24, 1998 of the Regional Trial Court, Branch 122, Caloocan City, in Criminal Case No. C-46010, declaring her guilty beyond reasonable doubt of the crime of murder and sentencing her to suffer the penalty of reclusion perpetua. She was also adjudged to pay the heirs of the victim, P50,000.00 as civil indemnity. The Information[2] dated December 14, 1993 filed against appellant and her co-accused Narciso Ramos y Matias alias "Narcing", Ramon San Roque y dela Cruz, Wilfredo Ramos and three (3) other John Does is quoted as follows: "That on or about the 11th day of February 1993 in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above named accused, with deliberate intent to kill, conspiring together and mutually helping one another, with treachery, evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and feloniously tie up on a santol tree, stab, shoot and burn one WILLIAM LOMIDA, resulting to the death of the latter." "CONTRARY TO LAW." Upon arraignment on December 15, 1994, appellant, assisted by counsel, pleaded not guilty to the crime charged. The case against Wilfredo Ramos was provisionally dismissed. The other accused, Narciso Ramos and Ramon San Roque, have remained at large.

During the trial, the prosecution presented the following witnesses: Bernie Ambal, Saturnino Rivera, Mariano Lomida and NBI Special Investigator Laurence M. Nidera. Their testimonies, woven together, established the following facts: On February 11, 1993 at around 7:00 oclock in the evening, Bernie Ambal was standing outside his store at 168 De Paro St., Caloocan City. Narciso Ramos, Ramon San Roque and three (3) others passed by. They proceeded to the house of William Lomida and appellant, who were then live-in partners. Narciso and Ramon stood by the door, while one of their companions, holding an armalite, positioned himself behind Narciso. Their other companion, armed with a pistol, stayed on the street, and the third one, also armed with a pistol, went to the backyard. At a distance of ten (10) meters away, Ambal saw Narciso pulling out his .45 caliber pistol and knocking at the door. Appellant then opened the door and Ramon went inside. Soon thereafter, William and appellant, accompanied by Narciso, Ramon, and three (3) others left the house. As they were passing by the store, Ramon stopped and borrowed Ambals jacket. At that instance, William suddenly held his arm and whispered, "Samahan mo naman ako, baka kung ano ang gawin sa akin ng mga ito, tutal barkada mo naman si Ramon." But Ambal was scared and hesitant. William then requested him to look for Saturnino Rivera. The group headed to Narcisos house, about kilometer away from Ambals store. Unknown to them, Ambal trailed behind. Hiding himself behind a tree fifteen meters away, Ambal saw one of their companions poking his armalite at William. Then, they tied William to a santol tree. He was pleading to appellant, but she simply turned her back. Ramon stabbed William twice at the stomach with a 29" bladed knife. Then Narciso shot William five to seven times with his .45 caliber pistol. When William was already dead, Ramon and Wilfredo Ramos untied his body and brought it to a dumpsite (of used tires) twenty five meters away. There they placed Williams body atop a pile of rubber tires. Ramon poured gasoline on his body and set it on fire. Appellant and the others were closely watching. After thirty minutes, appellant and the men left. Ambal immediately reported the incident to Saturnino Rivera. They proceeded to the dumpsite where they saw the charred body. According to Ambal, Ramon, appellant and Narcisos sister are brother and sisters. Saturnino Rivera declared on the witness stand that he considered William his best friend. William and appellant frequently quarreled and sometimes, he maltreated her. Saturnino corroborated Ambals testimony that they went to the scene of the crime and saw the charred body of William; and that they reported the gruesome incident to the NBI. Mariano Lomida testified that on February 19, 1993, or eight days after the incident, appellant suddenly arrived in Atimonan, Quezon looking for William. She told Mariano that William left their house on February 9, 1993 without her knowledge. She borrowed P3,000.00 from him (Mariano) with a promise to pay on March 27, 1993. But since then, he never saw her again. Mariano further testified that due to the death of his son, he suffered wounded feelings. Special Investigator Laurence M. Nidera of the NBI Anti-Organized Crime Division conducted the investigation. He took the statements of Bernie Ambal, Saturnino Rivera and Mariano Lomida. Upon the

arrest of appellant and Narciso Ramos by the Capital Command (CAPCOM) of the Philippine National Police, they were turned over to the NBI. After the prosecution rested its case, appellant filed a demurrer to evidence but was denied. Meanwhile, appellant jumped bail. On the basis of the evidence presented by the prosecution, the case was submitted for decision. On April 24, 1998, the trial court rendered a Decision, the dispositive portion of which reads: "WHEREFORE, judgment is hereby rendered, finding the accused Eulalia San Roque de Francisco y dela Cruz alias Laling GUILTY beyond reasonable doubt of the crime of murder as charged in the Information and hereby sentences her to suffer the penalty of reclusion perpetua with accessory penalties as provided by the law and to indemnify the heirs of the victim in the sum of P50,000.00. " SO ORDERED."3 Appellant appeared during the promulgation of the Decision. In her brief, appellant raised the following assignments of error: "I "THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED EULALIA SAN ROQUE DE FRANCISCO Y DELA CRUZ alias LALING CONSPIRED AND CONFEDERATED WITH HER CO-ACCUSED IN PERPETRATING THE CRIME OF MURDER, WHEN THE FACT OF SUCH CONSPIRACY HAS NOT BEEN SATISFACTORILY PROVEN TO EXIST BEYOND REASONABLE DOUBT DURING THE TRIAL OF THE CASE. "II "THE TRIAL COURT ERRED IN DECIDING THE CASE AGAINST THE ACCUSED-APPELLANT DESPITE THE WEAK EVIDENCE OF THE PROSECUTION, CONSIDERING THAT THE PROSECUTION HAS FAILED TO PROVE ALL THE NECESSARY ELEMENTS OF THE CRIME AND THE CORPUS DELICTI. "III "THE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY OF THE CRIME OF MURDER BY THE MERE FACT THAT SHE FAILED TO APPEAR AFTER THE CASE WAS REVIVED SUCH FAILURE HAVING BEEN APPRECIATED BY THE TRIAL COURT AS A CLEAR INDICATION OF HER GUILT. "IV "THE TRIAL COURT COMMITTED AN ERROR IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER ON THE BASIS ALONE OF THE TESTIMONY OF THE SOLE WITNESS IN THIS CASE, WITHOUT BEING SUPPORTED THEREBY BY CONVINCING EVIDENCE." We shall discuss the above assignments of error jointly.

Article 248 of the Revised Penal Code, as amended, provides: "ART. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal,4 in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aim of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse." In convicting the appellant of murder, the trial court gave full faith and credence to the testimony of prosecution lone eyewitness, Bernie Ambal. An extract from his testimony is quoted hereunder: "DIRECT EXAMINATION BY PROS. MANAQUIL: xxx Q And in the evening of that date, could you recall at about 7:00 in the evening of February 11, 1993, if there was any unusual incident that happened? A Yes, sir. Q Will you please tell us what was that unusual incident all about that you observed and noticed? A Narciso Ramos, Ramon San Roque and three men of Narciso Ramos got the victim and Eulalia San Roque was also with the group. Court: Q Who was taken? A The victim, your Honor. Q What is the name of the victim?

A William Lomida was taken by these people. Pros. Mananquil: Q From where the accused picked up by these people? A Lomida was taken from the house where Eulalia San Roque and William Lomida were living. Q William Lomida is the victim in this case. Now, how is he related to Eulalia San Roque? A They are not married. They are live-in partners. Q Now, how far from the store where this house of William Lomida and Eulalia San Roque is located? A More or less, ten meters away. Q Is it located in front of the store, on the left side or at the back of the store? A The house of Eulalia is alongside of our house. Q What part of your store where you were at the time you saw these people picked up Lomida? A I was outside the store standing. Q After the accused picked up the victim, what happened or where did they go? A William Lomida, the victim, was brought to the house of Narciso Ramos. xxx Court: xxx Q So the persons whom you saw got Lomida were Narciso Ramos, Ramon San Roque, William Ramos alias Wilfredo Ramos and three men of Narciso Ramos and Eulalia San Roque? A Yes, your Honor. xxx Pros. Mananquil: Q Now, you said that the accused brought William Lomida to the house of Narciso Ramos. How far is this house of Narciso Ramos located in relation to the store, your store? A About half kilometer away. xxx

Q Now, when the victim was brought to the house of Narciso Ramos, what happened next? A The victim was tied to a santol tree. Q Where is this santol tree where the victim Lomida was tied? How far is this from the house of Narciso Ramos? Court: Q Who tied the victim? A Ramon San Roque, Wilfredo Ramos and the three others unidentified men. Pros. Mananquil: Q After the accused tied William Lomida on a santol tree, what happened next? A Ramon San Roque stabbed William Lomida. Q And with what kind of weapon was used by Ramon San Roque? A A bladed 29. Q How long? A I cannot say how long, sir. Q How many times did you see Ramon San Roque stabbed the victim with the 29? A About two times, sir. Q And did you see if Lomida was hit with that two stab thrust? A He was stabbed on the stomach. Pros. Mananquil: Q What happened after Ramon San Roque stabbed the victim? A The victim, William Lomida nangisay and then Narciso Ramos came near the victim and shot him. Q How many times? A About 5 to 7 shots. Q And did you see if the victim was hit? A It seems that the shots were directed to his face because he was bloodied all over his face. Q With what kind of firearm, if you remember?

A When the investigator showed me some guns, I noticed that the one gun that Narciso Ramos used was a .45 caliber. Q Was it magazine or revolver? A Magazine type. Q After Narciso Ramos shot the victim 7 times on the head, what happened next? A When the group made sure that the victim was dead already, they untied him and brought the body where there was a pile of tires, piles of pieces of rubber tires. Q By the way, at the time when the victim was shot by Narciso Ramos and stabbed by Ramon San Roque, where was Willy Ramos, Narciso Ramos and Eulalia San Roque? A They were just there standing and afterwards, turned their back around. xxx Prosecutor: Q How far was Eulalia San Roque from Lomida when Lomida was shot by Narciso Ramos and stabbed by Ramon San Roque? A This place up to that wall. Distance of about 8 meters. Q And what was Eulalia doing at the time when the victim was stabbed and shot? A She turned her back and face the kitchen of the house of Narciso Ramos. Q Did she not try to intervene, this Eulalia, being the live-in partner of William Lomida or did not exert effort to pacify? xxx Prosecutor: Q Just turning her back, what else that she did, being live-in partner of William Lomida? A She did not do anything anymore. Q After the victim was stabbed and shot, he was untied from the santol tree. Who untied him? A It was Ramon San Roque, Willy Ramos and the three others. Q Willy refers to Wilfredo Ramos? A Yes, sir.

Q Where was Eulalia at the time? A She was still there standing. Q Now, you said after the victim was untied from the santol tree, he was brought to where pieces of rubber tires were piled, recycled, how far is this from the santol tree where the victim was tied? A About 25 meters. Q Now, after the accused brought the victim to the piles of recycled tires, what happened next? A Ramos San Roque got a can and poured something on the body of the victim and then, lighted it up. Q What happened to the body of the victim, William Lomida? A The body was burned. Q At the time when this Ramon San Roque poured something on the body of the victim and then lighted the same, where were Wilfredo Ramos, Eulalia San Roque and Narciso Ramos and the other unidentified persons? A There were They were there in front of the burning body. Q How long did the fire last? A It took a long time, about more than one hour. Q After one hour, what happened next? A They left the place. The group left the place. Court: Q What happened to the tires? A The tires also burned. Q And where was the body of Lomida in relation to the tires? A The body of the victim was almost burned and when we went back to the place, the shape of the charred was still there. The same of human body."5 The foregoing testimony clearly shows that Ambal, being then present at the locus of the crime, was able to identify the appellant and the other accused as the persons who killed William. Ambal narrated the incidents leading to the victim's death with clarity and lucidity that they could not have been fabricated or concocted. The records show that throughout the trial, he remained steadfast in his testimony. There is thus no doubt in our minds that this lone eyewitness is credible. While his testimony is uncorroborated, still it sustains the conviction of appellant. In People vs. Toyco,6 we held:

"It is axiomatic that truth is established not by the number of witnesses but by the quality of their testimonies. The testimony of a single witness if positive and credible is sufficient to support a conviction even in charge of murder." We are not persuaded by appellants contention that the prosecution failed to adduce sufficient evidence to establish the existence of conspiracy among the accused. She vigorously contends that she did not participate in the killing of the victim. In determining the existence of conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim.7 The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design. There must be a showing that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. 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.8 The series of events in this case convincingly show that appellant and her co-accused acted in unison and cooperated with each other in killing William Lomida. Appellant was the one who opened the door and allowed the other accused to enter the house. She joined them in bringing the victim to the residence of Narciso Ramos, her brother-in-law. While her co-accused dragged the helpless victim, tied him to a santol tree, stabbed him twice by a bladed knife, and shot him 5 to 7 times, appellant merely watched intensely. She even "turned her back" as the lifeless body of the victim was being burned. And after attaining their purpose, she fled with the other accused. The above circumstances clearly show the common purpose and concerted efforts on the part of appellant and her co-accused. We agree with the trial court in concluding that their acts were indications of a criminal conspiracy to commit the crime of murder. The only remaining question is whether the crime was attended by aggravating circumstances. The killing of the victim was attended by treachery. Treachery exists "when the offender commits a crime against persons, employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution, without risk to himself arising from any defense or retaliatory act which the victim might make."9 Here, appellant and her co-accused tied William to a santol tree before they stabbed and shot him to death, thus, insuring the execution of the crime without risk to themselves. Obviously, he could not retaliate. This aggravating circumstance qualifies the crime to murder. However, we cannot sustain the trial courts appreciation of the aggravating circumstance of superior strength as this is absorbed in treachery.10 It bears stressing that this crime of murder was committed on February 11, 1993.11 The law applicable is Article 248 of the Revised Penal Code then penalizing murder with reclusion temporal in its maximum

period to death. Under Article 64 (1) of the Revised Penal Code, in cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, and there are neither aggravating nor mitigating circumstances that attended the commission of the crime, the penalty prescribed by law in its medium period shall be imposed. The range of the imposable penalty, i.e., reclusion temporal in its maximum period to death, is 17 years, 4 months and 1 day to death. Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstance that attended the commission of the crime, the maximum period is the medium of the imposable penalty, which is reclusion perpetua. The minimum period is one degree lower, or prision mayor in its maximum period to reclusion temporal in its medium period, the range of which is 10 years and 1 day to 17 years and 4 months. The minimum period of the penalty imposable is anywhere within this range, or 10 years and 1 day. Hence, appellant should be sentenced to 10 years and 1 day of prision mayor, as minimum, to reclusion perpetua, as maximum. Regarding damages, the trial court correctly awarded P50,000.00 as civil indemnity to the victims heirs. When death occurs as a result of a crime, appellant should be ordered to pay the heirs of the victim P50,000.00 as civil indemnity, without need of any evidence or proof of damages.12 We likewise award temperate damages, in lieu of actual damages. Here, the prosecution failed to present any proof of the expenses incurred by the victims heirs. However, as they actually incurred funeral expenses, we award P25,000.00 by way of temperate damages.13 Anent moral damages, we award the victims heirs the amount of P50,000.00.14 For verily, moral damages are not intended to enrich the victims heirs; rather they are awarded to allow them to obtain means for diversion that could serve to alleviate their moral and psychological sufferings.15 Mariano Lomida, victims father, equivocally described how he suffered untold wounded feelings for the loss of his son. We also award the victims heirs P25,000.00 as exemplary damages. This is pursuant to our ruling in People vs. Catubig16 that if a crime is committed with an aggravating circumstance, either qualifying or generic, an award ofP25,000.00 as exemplary damages is justified. WHEREFORE, the assailed Decision dated April 24, 1998 of the Regional Trial Court, Branch 122, Caloocan City, in Criminal Case No. C-46010, is hereby AFFIRMED with MODIFICATION in the sense that appellant EULALIA SAN ROQUE DE FRANCISCO is sentenced to suffer the penalty of 10 years and 1 day of prision mayor, as minimum, to reclusion perpetua, as maximum. She is ordered to pay the victims heirs (a) P50,000.00 as civil indemnity; (b)P25,000.00 as temperate damages; (c) P50,000.00 as moral damages and (d) P25,000.00 as exemplary damages. Costs de oficio. SO ORDERED. Vitug, Corona and Morales, JJ., concur.

PEOPLE VS. SIMON

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 130531 May 27, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. MICHAEL SIMON, FROILAN REYES y LACSON @ OLAN, ELY TONGOL y DEMAPENDEN and JOHN DOES,appellants. DECISION SANDOVAL-GUTIERREZ, J.: For automatic review is the Decision1 dated May 21, 1997 of the Regional Trial Court, Branch 172, Valenzuela, Metro Manila, in Criminal Case No.3989-V-94, finding appellants Froilan Reyes y Lacson @ Olan and Michael Simon guilty of murder and imposing upon them the supreme penalty of death. Appellants were charged in an Amended Information which reads: "That on or about the 19th day of February 1994, in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one another, without any justifiable cause, with intent to kill, with treachery and evident premeditation and taking advantage of their superior strength during night time, did then and there willfully, unlawfully and feloniously slap, punch, kick on the different parts of his body, tie his hands, hit with the piece of wood the head, hit the chest and head with a caliber .45 revolver and strangle to death with a piece of wire the neck of one, ANGELITO MANIAOL, thereby inflicting upon the latter serious physical injuries, which injuries ultimately caused the victims death. "Contrary to law."2 Out of the five accused in the Amended Information, only appellants Froilan Reyes and Michael Simon were tried before the court a quo. The others have remained at large. Upon being arraigned on May 29, 1996, both appellants pleaded "not guilty."3 The prosecution presented as its witnesses the following: Lenita Ibaez-Dominguez; Severino Dominguez; Ely Tongol; Celedonio Espital; Nida Espital, girlfriend of the victim; Esther Maniaol, mother of the victim; Crispin Bajado,and Dr. Maximo Reyes. Their testimonies established the following:

At around 12:30 in the morning of February 19, 1994, Lenita Dominguez, a balut vendor, and her daughter went home at 4447 BCL Homes Compound, Gen. T. de Leon, Independence St., Valenzuela, Metro Manila. However, appellant Froilan Reyes, who was unexpectedly guarding the gate, prevented them from entering the compound. He gave her a "tip" that SPO4 Loreto Rodriguez instructed him not to allow anybody to enter because someone would be killed inside.4 She did not say anything. Unmindful of his warning, she and her daughter proceeded to their place. In front of her store, about 4 meters away, she saw appellant Michael Simon together with Dominador Atienza, Hermie Atienza, Noel Simon, Bobot Abesamis, Ronald Malit, Ping Oate, Junel Bunao and Ely Tongol engaged in a drinking spree. Lenita knows them being her neighbors in the same compound. Then to her surprise, she saw SPO4 Loreto Rodriguez hit with a .45 caliber gun the forehead of the victim, Angelito Maniaol alias "Marlo".5 This caused the victim to run towards the house of his girlfriend, Nida Espital, located in the same compound. The group followed him. Thenappellant Michael Simon, Ely Tongol, Hermie Atienza and Dominador Atienza attacked him with fistblows.6 Noel Simon tied his hands behind his back with an alambre.7 Then they brought him back to the place where they were drinking. Ping Oate and Hermie Atienza kicked him, while Tongol, Abesamis and Dominador Atienza boxed him. SPO4 Rodriguez hit him again with a dos por dos and a gun.8 At this point, Noel Simon and Dominador Atienza held the victim. Bunao then tied his mouth with a handkerchief.9Immediately, appellant Michael Simon, Ronald Malit, Junel Bunao, and Ely Tongol started hurting him with lighted cigarette butts ("pinagpapaso ng sigarilyo"). During the "burning session," the others were laughing.10 The victim was already so weak, making an unintelligible sound ("umuungol"). Blood was oozing from his mouth and nose.11 Lenita observed that the "maong" pants of appellant Michael Simon and Noel Simon had blood stains. Thereafter, Noel Simon and Dominador Atienza brought the victim inside the garage of Crispin Bajado.12 The latter saw what happened to the victim inside the garage. There, Noel Simon hit the victims head 3 times with a piece of wood. SPO4 Rodriguez also hit the victims head with a revolver and strangled him with an "alambre". Appellant Michael Simon pummeled him with kicks. Then the group tied a nylon cord around his neck.13 During all those times, appellant Froilan Reyes stayed at the gate, warning the people not to enter the compound. At about 1:05 A.M., Nida Espital, the victims girlfriend, together with her sister and the latters classmate arrived.14 Despite appellant Reyes warning,15 Nida and her companies managed to get inside the compound. Appellant Reyes followed them.16 At that time, SPO4 Rodriguez wanted to take the victim, whose body and face were already covered with blood, outside the gate of Bajado.17 Hence, he ordered Noel Simon and Dominador Atienza to board him in Ping Oates Nissan Sentra car with Plate No. PRT 346, parked in front of Lenitas house.18 However, the plan did not push through because they saw Nida and her two companions coming from the gate.19 SPO4 Rodriguez signaled Noel Simon and Dominador Atienza to bring the victims body to a hidden place. So the two pulled back the very weak and dying20 victim inside Bajados gate.21 Nonetheless, once inside the compound, Nida saw the bloody victim already dead, with hands tied behind his back. His legs were apart and something was stuck in his mouth. Also, a wire was tied around his neck. His head was wounded and full of blood, his body had numerous burns and his chest appeared

to have been hit several times.22 She started shouting but SPO4 Rodriguez pacified her. Nida noticed that his hands, shirt and brown shorts were stained with blood.23 Celedonio Espital, brother of Nida, also a resident of BCL Homes, corroborated the testimony of Lenita.24 He identified appellants Simon25 and Reyes in court.26 He added that he saw both appellants and others carrying the victim and were trying to board him in a gray colored27 car. SPO4 Rodriguezs shirt had bloodstains. There were also drops of blood on his feet and hands.28 After he instructed his brother Benjie to fetch Esther, the victims mother, the police investigators arrived. Meanwhile, Esther rushed to the scene of the crime and saw the dead body of the victim sprawled in Bajados garage. She spent P70,750.00 for the wake and burial of her son as shown by a list of expenses (Exhibit "Q"). She and her family suffered "mental anguish and shock" that cannot be quantified in terms of money. An autopsy was conducted by Dr. Maximo Reyes of the National Bureau of Investigation on February 19, 1994. His Postmortem Findings are as follows: "Cyanosis, lips and fingernailbeds. Hemorrhage, meningeal; epidural and subarachnoidal, extensive. Contused abrasions, 3.0 x 8.0 cm., area of face, left, 3.0 x 10.0 cm., area of chest, left; 2.0 x 3.0 cm., left, deltoid area; 1.0 x 4.0 cm., left hypechendrinc area, 4.0 x 10.0 cm., left iliac region; 3.0 x 4.0 cm., left knee; 7.0 x 18.0 cm., area of right leg, anterior aspect; 4.0 x 10.0 cm., area of shoulder, left; 1.0 x 2.0 cm., left suprascapuler area; 1.0 x 3.0 cm., left infrascapular area, 3.0 x 5.0 cm., right lumbar area, 4.0 x 16.0 cm., area of the forearm, right, posterior aspect. Ligature marked, total length of 12.0 cm. extending from anterior aspect of left side of neck down to the lateral aspect with a diameter of 0.1 to 0.8 cm., the widest. Hematomas, periorbital, 2.0 x 4.0 cm., right; 2.0 x 5.0 cm. left; interstitial, scalp from left parietooccipital to vertex and right, parieto-occipital. Lacerated wounds, sucus membrane of both upper and lower lips, left parietal area, 3.0 cm. Fracture, linear, left, parieto-occipital bone. Heart and all other internal organs are congested. Stomach, filled with brownish fluid. CAUSE OF DEATH: Traumatic Head Injury."29 Appellants Michael Simon and Froilan Reyes raised the defenses of denial and alibi. Appellant Michael Simon, also a resident of BCL at the time of the incident, testified that on February 18, 1994, at around 8:00 oclock in the evening, he was watching T.V. at home with his parents and his two brothers. After dinner, he went to Tatangs place which was 6 to 8 houses away from their

residence.30 Then he went to Elys place, located 3 houses away, to attend his birthday party.31 Appellant drank a bottle of beer and thereafter went home with his brother Noel at around 10:30 p.m.32 When he woke up at 6 oclock the following day, several policemen from Valenzuela were looking for him. They brought him to the Valenzuela Police Headquarters and later, to the NBI. He denied having participated in the killing.33 Lenita testified against him because she was in need of money and wanted to be entitled to the cash benefits given under the Witness Protection Program of the government. Also, she was motivated by hatred in testifying against him because his family did not tolerate her illicit relationship with his brother Noel. Nelia Simon, mother of appellant, corroborated his testimony. Appellant Froilan Reyes testified that on February 18, 1994, he was working as a stay-in caretaker in the shop of Alex Bajado (father of Crispin Bajado) located at Tamaraw Hills, Marulas, Valenzuela, Metro Manila. At around 6:00 oclock in the evening, Alex Bajado instructed him to get the two boxes of fasteners the former left in the car compartment of Crispin Bajado at BCL Homes Compound. So he went to the place together with a certain Popoy, arriving there at 8:00 oclock that same evening. Crispin was then sleeping. It took them only twenty minutes to get the fasteners, then they immediately returned to the shop on board a tricycle. After dinner, they played cards for a while and slept.34 Antonio Sarmiento, testifying for appellant Reyes, declared that spouses Severino and Lenita Dominguez used to borrow money from him from 1987 to 1995;35 and that the spouses have abandoned their residence in the BCL Homes Compound. On May 21, 1997, the trial court rendered its Decision convicting both appellants of murder defined and penalized under Article 248 of the Revised Penal Code, thus: "WHEREFORE, judgment is hereby rendered finding accused MICHAEL SIMON and FROILAN REYES y LACSON @ Olan guilty beyond reasonable doubt and as principal of the crime of murder as defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, attended by the aggravating circumstance of cruelty with no mitigating circumstance to offset the same, and hereby sentences each of them to suffer the supreme penalty of death. Both accused Michael Simon and Froilan Reyes y Lacson @ Olan are further sentenced, jointly and severally, to pay the heirs of victim Angelito Maniaol the amount of P70,750.00 as actual damages, the amount of P50,000.00 as indemnity for the death of Angelito Maniaol, and the amount of P250,000.00 as moral damages, plus the cost of suit. xxx "SO ORDERED."36 Hence, this appeal. Appellant Reyes, in his Appellants Brief, raised the following assignments of error: "I

THE LOWER COURT SERIOUSLY ERRED IN GIVING CREDIT TO THE BELATED, DOUBTFUL AND EXAGGERATED TESTIMONIES OF THE PROSECUTION WITNESSES II THE LOWER COURT SERIOUSLY ERRED IN DISREGARDING THE POSITIVE AND CLEAR EVIDENCE OF THE HEREIN APPELLANT III THE LOWER COURT SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION IN CONVICTING THE HEREIN ACCUSED-APPELLANT."37 Appellant Simon ascribed to the trial court the following errors: "I THE LOWER COURT SERIOUSLY ERRED IN CONSIDERING THE BELATED, HIGHLY DOUBTFUL AND EXAGGERATED TESTIMONIES OF THE PROSECUTION WITNESSES II THE LOWER COURT SERIOUSLY ERRED IN DISREGARDING THE DIRECT AND CLEAR EVIDENCE OF THE HEREIN APELLANT III THE LOWER COURT SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION IN CONVICTING THE HEREIN ACCUSED-APPELLANT."38 Appellants Reyes and Simon contend that the prosecution failed to prove their guilt beyond reasonable doubt because its witness, Lenita Dominguez, is not credible. She only appeared and testified after a year from the filing of the Information. The Solicitor General counters that Lenita, an eyewitness, was telling the truth. In fact, she was unequivocal and categorical in her narration. More importantly, appellants were positively identified by the prosecution witnesses, hence, the latters testimony cannot be simply discredited by appellants mere denial and alibi. The assigned errors basically involve a determination of the credibility of the prosecution witnesses. I. Credibility of prosecution witnesses Settled is the rule that when it comes to credibility of witnesses, appellate courts generally do not overturn the findings of trial courts. The latter are in a best position to ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses manner of testifying, demeanor and behavior in court.39 We see no reason to deviate from this rule.

Appellants bid to exonerate themselves by attempting to destroy the credibility of Lenita is without merit. The latters account of the incident is straightforward and categorical, thus: "ATTY. DAQUIZ: Q Now, Mrs. Witness, you said that you are residing at BCL Compound, is that correct? A Yes, maam Q And you know the accused in this case, Michael Simon? A Yes, maam. Q How about Noel Simon? A Yes, maam. Q What about Froilan Reyes? A Yes, maam. Q How about Dominador Atienza? A Yes, maam. Q How about Ely Tongol? A Yes, maam. Q How about Bobet Abesamis? A Yes, maam. Q How about Junel Bunao? A Yes, maam. Q How about Ronald Malit? A Yes, maam. Q What about Ping Oate? A Yes, maam. Q Why do you know them? A Because they are all my neighbors, maam. Q At BCL Compound?

A Yes, maam. Q What about the victim in this case Angelito Maniaol alias Marlo? xxx WITNESS: A Yes, sir. ATTY. DAQUIZ: Q How did you come to know him? A Because he often visited our place because his girlfriend is residing in our place, maam. COURT: Q What is the name of his girlfriend? A Nida Espital, your Honor. xxx ATTY. DAQUIZ: Q What time did you arrive at your house after vending balut on February 19, 1994? A I arrived home at 12:30 early morning on February 19, 1994, maam. Q And when you arrived home on that particular date and time, what if anything unusual happened that you saw? A Yes, maam. Q Will you please tell the Honorable Court what is that unusual thing that you saw on that date and time? A When I entered the gate of BCL Compound together with my daughter, we met Froilan Reyes, maam. Q You are referring to the same Froilan Reyes who is one of the accused in this case Mrs. Witness? A Yes, maam. Q If Froilan Reyes is now in court Mrs. Witness, would you be able to point him out? A Yes, maam, that man (witness pointing to a man wearing a long sleeves shirt who when asked his name answered Froilan Reyes). Q And after you met Froilan Reyes, what happened, if any?

A When we met Froilan Reyes near the gate of the BCL Compound he gave me a tip that according to SPO4 Loreto Rodriguez no one would be allowed to enter into the compound because there would be someone to be killed. Q What else happened, what else if any, did he tell you? A None, maam. Q What was your response to that? A I did not answer anything, maam. Q And what happened after that? A We proceeded to our house at BCL, maam. Q Where is your house located Mrs. Witness, in relation to the house of Crispin Bajado? A Our houses are fronting each other, maam. Q And how far is the house of Crispin Bajado from your house? A 10 meters away, sir. xxx ATTY. DAQUIZ: Q Mrs. Witness, when you arrived home, what happened? xxx WITNESS: A When we were about to enter the gate of our house, we saw SPO4 Loreto Rodriguez hit with a gun Angelito Maniaol at the forehead, your Honor. ATTY. DAQUIZ: Q I see. More or less if you can remember, what kind of gun was that? A 45 caliber, maam. xxx ATTY. DAQUIZ: Q Who were those persons that you saw Mrs. Witness aside from SPO4 Loreto Rodriguez?

A Dominador Atienza, Hermie Atienza, Noel Simon, Bobet Abesamis, Ronald Malit, Ping Oate, Junel Bunao, Ely Tongol, Michael Simon. Those were the only persons I saw. Q Where did you see them Mrs. Witness? A In front of our store, maam. Q And that what were they doing, if any, Mrs. Witness in front of our store during that time? A They were drinking, maam. Q And after you saw SPO4 Loreto Rodriguez hit Angelito Maniaol, what happened next Mrs. Witness? A Maniaol ran towards the house of his girlfriend Nida Espital, maam. Q And what happened after that Mrs. Witness? A They exchanged fist blows. They all followed him, maam. xxx WITNESS: A They exchanged fist blows and they caught Angelito Maniaol, your Honor. COURT: Exchanged fistic blows. ATTY. DAQUIZ: Q Who were these who exchanged fistic. A Ely Tongol, Hermie Atienza, Dominador Atienza, Noel Simon. Q Now, who were those who were able to catch Maniaol? A Noel Simon, maam. Q And what did Noel Simon do when Noel Simon was able to catch Angelito Maniaol? A He tied the hands of Angelito Maniaol, maam. Q With what? What did he use in tieing the hands of Angelito Maniaol? A Nylon cord or alambre. xxx ATTY. DAQUIZ:

Q Will you please describe to us the nylon cord? xxx WITNESS: A The clothes line (sampayan) at the back of, as liked nila Crispin. ATTY. DAQUIZ: Q Now when Noel Simon was able to catch Angelito Maniaol, what happened next? ATTY. TOLENTINO: Already answered, your Honor. Noel Simon allegedly tied the hands of Angelito Maniaol. ATTY. DAQUIZ: Q After tieing the hands of Angelito Maniaol, what happened next? A Noel Simon brought Angelito Maniaol to the middle of the place where they were then drinking. Q Approximately, how far is that from your store Mrs. Witness? A About four (4) meters, maam. Q How far is that also from where they brought Angelito Maniaol after tieing him Mrs. Witness from the house of Crispin Bajado? The distance? A Yes. Seven meters more or less, maam. ATTY. MENDOZA: We would like to place on record, your Honor, that once in a while the witness is speaking in English. As a matter of fact, the last answer is in English. FISCAL: Once in a while, your Honor. COURT: Q What is your educational attainment? A High school graduate, your Honor. ATTY. DAQUIZ: Q When they brought Angelito Maniaol with tied hands in the middle of their drinking session, what happened next?

A They kicked him, boxed him. They hit him with a gun, hit him with a dos por dos, maam. Q If you can recall, who were those persons who kicked him? A Ping Oate, Hermie Atienza, maam. Q If you can recall, who were those persons who boxed him? A Ely Tongol, Bobet Abesamis, maam. xxx ATTY. DAQUIZ: Q Who else if you can recall? A Dominador Atienza, maam. Q If you can recall, who were those who hit him with a dos por dos? A Sgt. Loreto Rodriguez, maam. Q Who else Mrs. Witness, if you can recall? A He was the only one who hit Angelito with a dos por dos, maam. Q Now who hit again with a gun, Mrs. Witness? A SPO4 Loreto Rodriguez, maam. Q During all the time where was Michael Simon? xxx WITNESS: A He was also with the group, your Honor. ATTY. DAQUIZ: Q And what, if any, did you see him do, Mrs. Witness, during that times? ATTY. TOLENTINO: Already answered, your Honor, drinking in the drinking place. ATTY. DAQUIZ: Aside from drinking?

COURT: Witness may answer. WITNESS: A His only participation was they exchanged blows. ATTY. DAQUIZ: Q With whom? A With Angelito Maniaol, maam. COURT: Q By exchange of fistic blows, are you telling the Court that Maniaol was trying to box Michael Simon? A Yes, your Honor, they exchanged fistic blows. xxx ATTY. DAQUIZ: Q What happened when they exchanged fistic blows? A They held the person, sir. ATTY. DAQUIZ: Q Who held Angelito Maniaol during that time? A They were Noel Simon and Dominador Atienza, maam. Q What about Michael Simon? ATTY. TOLENTINO? We will object, your Honor, because the only person who held Angelito Maniaol were Noel Simon and Dominador Atienza, your Honor. ATTY. DAQUIZ: Q What was Michael Simon doing? ATTY. TOLENTINO: Already answered, nothing more, except that they held Angelito Maniaol. ATTY. DAQUIZ:

Q What else happened, if any, what else, if any, did Michael Simon do? A No more, maam. xxx Q Aside from those who held him. Who were those around him during that time, if any? A Ronald Malit, Ping Oate, Junel Bunao and Sgt. Rodriguez. Q Now, you mentioned about the name of Junel Bunao. What, if any, did Junel Bunao do, if any? ATTY. TOLENTINO: Already answered, your Honor. They were merely around Angelito Maniaol. COURT: The question is whether Bunao did anything. WITNESS: A He was the one who tied a handkerchief on the mouth of Angelito Maniaol, your Honor. ATTY. DAQUIZ: Q After tieing him with the handkerchief, what happened next Mrs. Witness? A They sat him in the place where they were drinking and started pinagpapaso ng sigarilyo. Q By the way Mrs. Witness, will you please describe to the Honorable Court how Angelito Maniaol was tied in his hands? A His hands were tied at the back, maam. FISCAL: Witness standing and put her two (2) hands at her back. ATTY. DAQUIZ: Q And when he was seated, what was his position, if any? A He was made to sit on a bench, maam. Q With his hands tied, is that correct? A Yes, maam.

Q And that time Mrs. Witness, that he was made to sit down with his hands tied, what about the handkerchief that was placed in his mouth? Was it still there or not? xxx WITNESS: A The handkerchief was still there, your Honor. ATTY. TOLENTINO: Q And who were those persons surrounding him at that time that he was seated already Mrs. Witness? A All of them, maam. Q When you said silang lahat, are you referring to Michael Simon, Dominador Atienza, Hermie Atienza, Ping Oate, Bobet Abesamis, Junel Bunao, Ronald Malit and Sgt. Loreto Rodriguez and Noel Simon? A Yes, maam. Q What about Froilan Reyes Mrs. Witness? Where was he at that time? A He was at the main gate of BCL, maam. xxx COURT: Q How far is the gate from your house? Can you see the gate of the compound? A No, your Honor. ATTY. DAQUIZ: Q How did you come to know Mrs. Witness that Froilan Reyes was at the gate during that time? ATTY. MENDOZA: Already answered, your Honor. At the time she was going home. COURT: When she entered the BCL Compound Froilan Reyes was at gate. xxx ATTY. DAQUIZ: The question was how did she come to know that Froilan was at the gate of that time they were surrounding Angelito Maniaol, the deceased?

WITNESS: A Because up to the time that Nida Espital arrived, he was still there at the gate, your Honor. ATTY. DAQUIZ: Q More or less what time was that? A 1:00 early morning, maam. Q And what, if you know, was he doing there at the gate? ATTY. MENDOZA: Witness would be incompetent, your Honor, because the gate could not be seen from her house. ATTY. DAQUIZ: My question is if she knows why he was there. ATTY. TOLENTINO: The same objection, your Honor, because it does not appear that she is competent to know about it because she is inside the house. ATTY. MENDOZA: At the same time there was an admission that she cannot see the gate from her house. ATTY. TOLENTINO: Yes, your Honor. COURT: There was already an answer. ATTY. DAQUIZ: It is an established fact, that is not debatable. My question is what is the reason if she knows why Froilan Reyes was at the gate. COURT: Already answered. He was there to inform people that nobody would be allowed to enter because somebody would be killed. That is the ruling of the Court. ATTY. DAQUIZ:

Q You testified Mrs. Witness that Froilan Reyes was there to notify anybody who comes in that they should not enter? A Yes, maam. ATTY. TOLENTINO: Objection to that line of question. That question should be made on cross-examination. COURT: Anyway, there was an answer already. ATTY. DAQUIZ: I am just repeating what the Court said. I would like to be clarified. Q When Froilan Reyes informed you that nobody should enter the gate because somebody would be killed, to prevent anybody from entering, what was your perception of that statement that be made? ATTY. TOLENTINO: Objection, your Honor, on the same ground. ATTY. MENDOZA: Calling for opinion of the witness. ATTY. TOLENTINO: Yes, your Honor, calling for opinion of the witness. xxx COURT: It is a question of terminology. When you ask a person what it appears to be, we cannot say that is calling for opinion. Witness may answer. WITNESS: A My understanding is that he is giving us a tip that that person would be killed and we are going to watch him. ATTY. DAQUIZ: Q I heard you say a while ago about the word look out. What is that in relation to your understanding of what Froilan Reyes told you during that time? What do you mean by that?

A My understanding is that look out is that Froilan Reyes is the one in charge of telling anybody that would be entering in the compound that according to SPO4 Loreto Rodriguez, he will not allow anybody to come inside because there would be somebody to be killed. Q Now Mrs. Witness, at that time that they surrounded, by the way Mrs. Witness, you mentioned about Michael Simon. If he is in court would you be able to point him to us? A Yes, maam. Q Please do so. A That man, maam. (witness pointing to a person inside the courtroom wearing a gray and blue tshirt, who when asked by the Court his name answered Michael Simon). Q After they have surrounded him Mrs. Witness, what, if any, did they do to Angelito Maniaol, if any? When he was being surrounded, what, if any, did you see them doing to Angelito Maniaol? xxx ATTY. TOLENTINO: According to the witness, they started pinagpapaso ng sigarilyo. xxx ATTY. DAQUIZ: Q By the way Mrs. Witness, you mentioned that they started making paso with cigarette. Who were these people who were doing the paso? A Ely Tongol, maam. Q Who else? A Only Ely Tongol, maam. Q After doing that, what happened Mrs. Witness? A He was brought inside the yard of Crispin Bajado, maam. Q And who were these people who brought Angelito Maniaol during that time inside the yard of Crispin Bajado? A Noel Simon and Dominador Atienza, maam. Q What about the other persons Mrs. Witness? What did they do, if any? A The others remained seated at the place where they were drinking.

Q And what were they doing? ATTY. MENDOZA: Already answered; they were drinking. COURT: That is what the witness answered. Q You are telling us that they continued drinking? A Yes, your Honor. ATTY. DAQUIZ: Q Who were these people or who were these persons drinking Mrs. Witness, who were left behind drinking? A All except Noel and Dominador Atienza, because they brought Angelito Maniaol inside the yard of Crispin Bajado, maam. Q Now Mrs. Witness, what happened when Angelito Maniaol was brought inside the yard of Crispin Bajado? What happened next? A Noel Simon and Dominador Atienza tied the back of Angelito Maniaol with an alambre."40 Despite relentless cross-examination, Lenita, an eyewitness, never wavered in the material details of her testimony. Hence, the trial court is correct in holding that she is credible. Settled is the rule that criminals are convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one witness who is able to convince the court of the guilt of the accused beyond a shadow of a doubt,41 as in the case at bar. II. Imputation of improper motive on the part of prosecution witness Lenita Dominguez is bereft of merit Other than the shallow imputation that Lenita was financially hard-up, the reason why she testified for the prosecution, both appellants failed to prove that she was ill-motivated in testifying against them. Where there is no evidence, as in this case, to indicate that the prosecution witness was actuated by improper motive, the presumption is that he is not so actuated and that his testimony is entitled to full faith and credit.42 Also, jurisprudence holds that if an accused had really nothing to do with a crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.43 III. Delay in reporting the incident is justified

Both appellants likewise contend that if Lenitas account were true, why did it take her one year from the time of the filing of the Information to testify for the prosecution? Settled is the rule that failure to reveal at once the identity of the perpetrator of a felony does not impair the credibility of a witness, more so if the delay has been adequately explained.44 We have repeatedly held that different people react differently to a given situation or type of situation, and there is no standard form of human behavioral response where one is confronted with a strange or startling or frightful experience.45 There is no clear cut standard form of behavior that can be drawn.46 Witnesses are usually reluctant to volunteer information about a criminal case or are unwilling to be involved in or dragged into criminal investigations due to a variety of valid reasons.47 One may immediately report the incident to the proper authorities, while another, in fear and/or avoiding involvement in a criminal investigation, may keep to himself what he had witnessed.48 Others reveal the perpetrator of the crime only after the lapse of one year or so to make sure that the possibility of a threat to his life or to his loved ones is already diminished, if not totally avoided. In People vs. Gornes,49 we held: "It is true that the charge against the appellant was initiated only three and a half years after the commission of the crime. However, the fact of delay alone does not work against the witnesses. In People vs. Rostata,50this Court held: 'Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained. The law on prescription of crimes would be meaningless if We were to yield to the proposition that delay in the prosecution of crimes would be fatal to the state and to the offended parties. In fixing the different prescriptive periods on the basis of the gravity of the penalty prescribed therefor, the law takes into account or allows reasonable delays in the prosecution thereof.' In the case at bar, Lenitas place is just a stone's throw away from appellants houses. Hence, it is reasonable why she did not immediately speak out and reported to the authorities the perpetrators of the crime. Having witnessed the gruesome killing of the victim, she believed that appellants and their co-accused might retaliate and kill her and her family. Her fear and instinct of self preservation and her concern for the safety of her family sufficiently explain her silence for one year. IV. Denial and alibi of appellants Denial and alibi of the appellants cannot be sustained in the light of their positive identification by the prosecution eyewitnesses.51 Being a long-time neighbor, Lenita could not have erred in positively identifying them as two of the persons who killed the victim. Besides, for alibi to prosper, it is not enough for appellants to prove that they were somewhere else when the crime occurred but they must also demonstrate that it was physically impossible for them to have been at the scene of the crime.52 In this case, it was established that during the commission of the crime, appellant Simon was in his house, also within the BCL Homes Compound, the scene of the crime. Appellant Reyes, on the other hand, while staying in Tamaraw Hills, Marulas, Valenzuela, admitted during the trial that he went to the BCL Homes Compound that same evening to get two boxes of fasteners from the car of Crispin Bajado

parked in the same Compound. Obviously, it was physically possible for them to be at the scene of the crime when it was committed. V. Treachery Treachery was correctly considered by the trial court as a qualifying aggravating circumstance. It was alleged in the Information and proved during the hearing. Treachery exists "when the offender commits a crime against persons, employing means, methods, or forms in the execution thereof which tend directly and specifically to insure its execution, without risk to himself arising from any defense or retaliatory act which the victim might make.53 Here, while the group was engaged in a drinking spree, SPO4 Rodriguez suddenly hit the victim on his head with a revolver. While he ran towards the nearby house of his girl friend, however, there was no way he could escape. The group followed him and attacked him with fist blows, tied his hands with an "alambre," kicked him and immediately, SPO4 Rodriguez hit him again with a "dos por dos" and a gun. Junel Bunao tied his mouth with a handkerchief. Still wanting to harm him more, they "burned" him with cigarette butts ("pinagpapaso ng sigarilyo"). Inside Bajados garage, the group continued inflicting injuries on him. Under these circumstances, how could the helpless victim defend himself or retaliate? VI. Abuse of superior strength, cruelty and evident premeditation We sustain the trial courts holding that the aggravating circumstance of abuse of superior strength is absorbed in treachery and, therefore, cannot be appreciated separately as an independent aggravating circumstance.54 However, the trial court erred in appreciating the aggravating circumstance of cruelty. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, aggravating and qualifying circumstances must be both alleged in the Informations and proved during the trial. Otherwise, they cannot be considered at all.55 Here, while the prosecution proved that there was cruelty in the commission of the crime, however, such aggravating circumstance was not alleged in the Information. Consequently, we cannot appreciate the same. The aggravating circumstance of evident premeditation, while alleged in the Information, was not proved. VII. Presence of conspiracy Conspiracy is deemed to arise when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be shown by direct proof of an agreement of the parties to commit the crime.56 It may be inferred from the mode and manner in which the offense was perpetrated, or from the acts of the accused before, during, and after the crime which point to a joint design, concerted action and commonality of sentiment or interest.57 Once proved, the act of one becomes the act of all. All the conspirators are answerable as co-principals regardless of the extent or degree of their participation.

In this case, the prosecution's evidence indubitably shows that appellant Reyes acted in concert with appellant Simon and the rest of their co-accused in killing the victim. First, while appellant Reyes was guarding the gate of the compound to prevent people from witnessing the killing of the victim, the others were assaulting and beating the latter, hacking him to death. Evidently, as a look-out, appellant Reyes was performing an overt act, which directly or indirectly contributed to the execution of the crime. Also, he was one among those who boarded the victim in a car. Second, after the victim fled to Nidas place, appellant Simon and his other co-accused pursued him and took turns in attacking him until he was about to die. This is a manifestation of their common purpose to kill him. Third, when the victim was almost dying, with blood oozing from his mouth, nose and head while growling, not one of them assisted him or showed concern for him. They just stood there watching, laughing, and continuously committing acts of violence against him. The presence of the appellants as a group, each of them armed, undeniably gave encouragement and sense of security and purpose among themselves.58 In conspiracy, it is immaterial who inflicted the fatal blows. A conspirator, no matter how minimal his participation, is as guilty as the principal perpetrator of the crime. VIII. Penalty Art. 248 of the Revised Penal Code, as amended by Sec. 16, R.A. 7659, punishes murder with reclusion perpetuato death. The presence of the aggravating circumstance of treachery qualifies the killing to murder. There being no aggravating circumstance present, the imposition of reclusion perpetua, being the minimum, is in order. IX. Civil indemnity In line with the current jurisprudence, the heirs of the victim are entitled to the amount of P50,000.00 by way of civil indemnity ex delicto.59 As regards the actual damages, it appears that out of the P70,750.00 awarded by the trial court, only P40,000.0060 was actually supported by receipts. The other amounts were based solely on a prepared list.61 To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to the injured party.62Here, the prosecution failed to present receipts for the other expenses incurred. Thus, we reduce the amount of actual damages awarded by the trial court to P40,000.00 only. We affirm the award of moral damages, there being proof that the victims mother and her family suffered wounded feeling, mental anguish and similar injury. However, we reduce the award to P50,000.00.63 Verily, moral damages are not intended to enrich the victims heirs; rather they are awarded to allow them to obtain means for diversion that could serve to alleviate their moral and psychological suffering.64

We also award the victims heirs P25,000.00 as exemplary damages. This is pursuant to our ruling in People vs. Catubig65 that if a crime is committed with an aggravating circumstance, either qualifying or generic, an award ofP25,000.00 as exemplary damages is justified. WHEREFORE, the appealed Decision finding appellants Froilan Reyes y Lacson @ Olan and Michael SimonGUILTY beyond reasonable doubt of murder is AFFIRMED with MODIFICATION in the sense that they are meted the penalty of reclusion perpetua and are hereby ordered to pay jointly and severally the heirs of the victim the sums of: P50,000.00 as civil indemnity, P40,000.00 as actual damages, P50,000.00 as moral damages, andP25,000.00 as exemplary damages. Costs de oficio. SO ORDERED. Davide, Jr.*, Puno*, Vitug**, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

US VS. JOSE LAUREL

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7037 March 15, 1912

THE UNITED STATES, plaintiff-appellee, vs. JOSE LAUREL, ET AL., defendants-appellants. O'Brien and DeWitt for appellants. Attorney-General Villamor for appellee. TORRES, J.: This appeal was raised by the four above-named defendants, from the judgment of conviction, found on page 117 of the record, rendered by the Honorable Mariano Cui. The facts in this case are as follows: On the night of December 26, 1909, while the girl Concepcion Lat was walking along the street, on her way from the house of Exequiel Castillo, situated in the pueblo of Tanauan, Province of Batangas, accompanied by several young people, she was approached by Jose Laurel who suddenly kissed her and immediately thereafter ran off in the direction of his house, pursued by the girl's companions, among whom was the master of the house above mentioned, Exequiel Castillo; but they did not overtake him. On the second night after the occurrence just related, that is, on the 28th, while Exequiel Castillo and Jose Laurel, together with Domingo Panganiban and several others of the defendants, were at an entertainment held on an upper floor of the parochial building of the said pueblo and attended by many residents of the town, it is alleged that the said Castillo and Laurel were invited by Panganiban, the former through his brother, Roque Castillo, and the latter, directly, to come out into the yard, which they did, accompanied by Panganiban and the other defendants referred to. After the exchange of a few words and explanations concerning the kiss given the girl Lat on the night of the 26th of that month, a quarrel arose between the said Jose Laurel and Exequiel Castillo, in which Domingo Panganiban, Vicente Garcia, and Conrado Laurel took part, and as a result of the quarrel Exequiel Castillo was seriously wounded. He succeeded in reaching a drug store near by where he received first aid treatment; Jose Laurel also received two slight wounds on the head. Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo early in the morning of the following day, stated that his examination of the latter's injuries disclosed a wound in the left side of the chest, on a level with the fourth rib, from 3 to 4 centimeters in depth, reaching into the lung; another wound in the back of the left arm and in the conduit through which the ulnar nerve passes, from 10 to

11 centimeters in length, penetrating to the bone and injuring the nerves and arteries of the said region, especially the ulnar nerve, which was served; a contusion on the right temple, accompanied by ecchymosis and hemorrhage of the tissues of the eye; and, finally, another contusion in the back of the abdomen near the left cavity, which by reaction injured the stomach and the right cavity. According to the opinion of the physician above named, the wound in the left side of the breast was serious on account of its having fully penetrated the lungs and caused the patient to spit blood, as noticed the day after he was wounded, and there must have been a hemmorhage of the lung, an important vital vascular organ; by reason of this hemorrhage or general infection the patient would have died, had it not been for the timely medical aid rendered him. The wound on the back of the left arm was also of a serious nature, as the ulnar nerve was cut, with the result that the title and ring fingers of the patient's left hand have been rendered permanently useless. With respect to the contusion on the right temple, it could have been serious, according to the kind of blows received, and the contusion on the back of the abdomen was diagnosed as serious also, on account of its having caused an injury as a result of which the wounded man complained of severe pains in the stomach and left spleen. The said physician stated that he had attended the patient fourteen consecutive days; that the contusion on the abdomen was cured in four or five days, and that on the right temple in ten or twelve days, although this latter injury was accompanied by a considerable ecchymosis which might not disappear for about three months, the time required for the absorption of the coagulated blood; that the stitches in the wound of the left arm were taken out after twelve days, and when witness ceased to attend the patient, this wound was healing up and for its complete cure would require eight or more days' time; and that the wound in the breast, for the reason that it had already healed internally and the danger of infection had disappeared, was healing, although still more time would be required for its complete cure, the patient being able to continue the treatment himself, which in fact he did. In view of the strikingly contradictory evidence adduced by the prosecution and by the defense, and in order to decide what were the true facts of the case we shall proceed to recite the testimony of the party who was seriously wounded and of his witnesses, and afterwards, that of his alleged assailants and of their witnesses, in order to determine the nature of the crime, the circumstances that concurred therein and, in turn, the responsibility of the criminal or criminals. Exequiel Castillo testified that while he, together with Primitivo Gonzalez, was in the hall of the parochial building of Tanauan, attending an entertainment on the night of December 28, 1909, he was approached by his brother, Roque Castillo, who told him, on the part of Domingo Panganiban, that Jose Laurel desired to speak with him and was awaiting him on the ground floor of the said building, to give him an explanation with regard to his (Laurel's) having kissed Concepcion Lat on the night of the 26th in the street and in the presence of the witness and other young people; that the witness, Exequiel Castillo, therefore, left the parochial building, accompanied by his brother Roque and Primitivo Gonzalez, and met Sofronio Velasco, Gaudencio Garcia, and Alfonso Torres, at the street door; that after he had waited there for half an hour, Jose laurel, Conrado Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise came down out of the building and Jose Laurel approached him and immediately took him aside, away from the door of the building and the others; that Laurel then said to him that, before making any explanations relative to the said offense against the girl Concepcion Lat, he

would ask him whether it was true that he (the witness, Castillo) had in his possession some letters addressed by Laurel to the said girl, to which the witness replied that as a gentleman he was not obliged to answer the question; that thereupon Jose Laurel suddenly struck him a blow in the left side of the breast with a knife, whereupon the witness, feeling that he was wounded, struck in turn with the cane he was carrying at his assailant, who dodged and immediately started to run; thereupon witness received another knife thrust in the left arm followed by a blow in the left side from a fist and witness, upon turning, saw Vicente Garcia and Domingo Panganiban in the act of again assaulting him; just then he was struck a blow with a cane on his right temple and, on turning, saw behind him Conrado Laurel carrying a stick, and just at the moment Primitivo Gonzalez and several policemen approached him calling of peace; his assailants then left him and witness went to the neighboring drug store where he received first aid treatment. Witness further testified that he had been courting the girl Concepcion Lat for a month; that, because his sweetheart had been kissed by Jose Laurel, he felt a little resentment against the latter, and that since then he had no opportunity to speak with his assailant until the said night of the attack. Roque Castillo, a witness for the prosecution, testified that, at the request of Domingo Panganiban, he had suggested to his brother, Exequiel Castillo, that the latter should go down to the door of the ground floor of the parochial building, where Jose Laurel was waiting for him, so that the latter might make explanations to him with regard to what had taken place on the night prior to the 26th of December; that Exequiel, who was in the hall beside Primitivo Gonzalez, immediately upon receiving the notice sent him in Laurel's name, got up and went down with Gonzalez and the witness, though the latter remained at the foot of the stairs in conversation with Virginio de Villa, whom he found there; that, after a little while, witness saw Jose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and Conrado Laurel come down from the said building, and, on observing something bulging from the back of the latter's waist he asked him what made that bulge, to which Laurel replied that it meant "peace;" witness thereupon said to him that if he really desired "peace," as witness also did, he might deliver to the latter the revolver he was carrying, and to prove that he would not make bad use of the weapon, Laurel might take the cartridges out and deliver the revolver to witness. This he did, the witness received the revolver without the cartridges, and his fears thus allayed, the witness returned to the upper floor to the entertainment; but that, at the end of about half an hour, he heard a hubbub among the people who said that there was a quarrel, and witness, suspecting that his brother Exequiel had met with some treachery, ran down out of the house; on reaching the ground floor he met Primitivo Gonzalez, who had blood stains on his arms; that Gonzalez then informed him that Exequiel was badly wounded; that he found his said brother in Arsenio Gonzalez' drug store; and that his brother was no longer able to speak but made known that he wanted to be shriven. Witness added that on that same night he delivered the revolver to his father, Sixto Castillo, who corroborated this statement. The other witness, Primitivo Gonzalez, corroborated the testimony given by the preceding witness, Roque Castillo, and testified that, while he was that night attending the entertainment at the parochial building of Tanauan, in company with Exequiel Castillo, the latter received notice from his (Castillo's) brother, through Domingo Panganiban, to the effect that Jose Laurel desired to speak with him concerning what occurred on the night of December 26; that thereupon Exequiel, the latter's brother,

Roque and the witness all went down out of the house, though Roque stopped on the main stairway while witness and Exequiel went on until they came to the main door of the ground floor where they met Alfonso Torres and Gaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente Garcia, Jose Garcia Aquino, and Domingo Panganiban came up; that when Jose Laurel met Exequiel Castillo he caught the latter by the hand and the two separated themselves from the rest and retired to a certain distance, although Vicente and Jose Garcia, Conrado Laurel, and Alfonso Torres placed themselves the nearest to the first two, Jose Laurel and Exequiel Castillo; that at this juncture witness, who was about 6 or 7 meters away from the two men last named, observed that Jose Laurel, who had his hand in his pocket while he was talking with Exequiel, immediately drew out a handkerchief and therewith struck Exequiel a blow on the breast; that the latter forthwith hit his assailant, Laurel, with a cane which he was carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel pursued him and continued to strike him; that thereupon Vicente Garcia stabbed Exequiel, who had his back turned toward him and Conrado Laurel struck the said Exequiel a blow on the head with a cane; that when witness approached the spot where the fight was going on, several policemen appeared there and called out for peace; and that he did not notice what Jose Garcia Aquino and Alfonso Torres did. Lucio Villa, a policeman, testified that on the hearing the commotion, he went to the scene of it and met Jose Laurel who was coming away, walking at an ordinary gait and carrying a bloody pocketknife in his hand; that witness therefore arrested him, took the weapon from him and conducted him to the municipal building; and that the sergeant and another policemen, the latter being the witness's companion, took charge of the other disturbers. The defendant, Jose Laurel, testified that early in the evening of the 28th of December he went to the parochial building, in company with Diosdado Siansance and several young people, among them his cousin Baltazara Rocamora, for the purpose of attending an entertainment which was to be held there; that, while sitting in the front row of chairs, for there were as yet but few people, and while the director of the college was delivering a discourse, he was approached by Domingo Panganiban who told him that Exequiel Castillo wished to speak with him, to which witness replied that he should wait a while and Panganiban thereupon went away; that, a short time afterwards, he was also approached by Alfredo Yatco who gave him a similar message, and soon afterwards Felipe Almeda came up and told him that Exequiel Castillo was waiting for him on the ground floor of the house; this being the third summons addressed to him, he arose and went down to ascertain what the said Exequiel wanted; that, when he stepped outside of the street door, he saw several persons there, among them, Exequiel Castillo; the latter, upon seeing witness, suggested that they separate from the rest and talk in a place a short distance away; that thereupon Exequiel asked witness why he kissed his, Exequiel's sweetheart, and on Laurel's replying that he had done so because she was very fickle and prodigal of her use of the word "yes" on all occasions, Exequiel said to him that he ought not to act that way and immediately struck him a blow on the head with a cane or club, which assault made witness dizzy and caused him to fall to the ground in a sitting posture; that, as witness feared that his aggressor would continue to assault him, he took hold of the pocketknife which he was carrying in his pocket and therewith defended himself; that he did not know whether he wounded Exequiel with the said weapon, for, when witness arose, he noticed that he, the latter, had a wound in the right parietal region and a contusion in the left; that

witness was thereupon arrested by the policemen, Lucio Villa, and was unable to state whether he dropped the pocketknife he carried or whether it was picked up by the said officer; that it took more than a week to cure his injuries; that he had been courting the girl Concepcion Lat for a year, but that in October, 1909, his courtship ended and Exequiel Castillo then began to court her; and that, as witness believed that the said girl would not marry him, nor Exequiel, he kissed her in the street, on the night of December 26, 1909, and immediately thereafter ran toward his house. Baltazara Rocamora stated that, while she was with Jose Laurel on the night of December 28, 1909, attending an entertainment in the parochial building of Tanauan, the latter was successively called by Domingo Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: "Go along, old fellow; you are friends now." Casimiro Tapia testified that, on the morning following the alleged crime, he visited Jose Laurel in the jail, and found him suffering from the bruises or contusions; that to cure them, he gave him one application of tincture of arnica to apply to his injuries, which were not serious. Benito Valencia also testified that, while the entertainment, he saw Domingo Panganiban approach Jose Laurel and tell him that Exequiel Castillo was waiting for him downstairs to talk to him; that Laurel refused to go, as he wished to be present at the entertainment, and that Panganiban then went away; that, soon afterwards, witness also went down, intending to return home, and, when he had been on the ground floor of the parochial building for fifteen minutes, he saw, among the many people who were there, Exequiel Castillo and Jose Laurel who were talking apart from a group of persons among whom he recognized Roque Castillo, Primitivo Gonzalez and Conrado Laurel; that soon after this, witness saw Exequiel Castillo strike Jose Laurel a blow with a cane and the latter stagger and start to run, pursued by the former, the aggressor; that at this juncture, Conrado Laurel approached Exequiel and, in turn, struck him from behind; and that the police presently intervened in the fight, and witness left the place where it occurred. The defendant Domingo Panganiban testified that, while he was at the entertainment that night, he noticed that it threatened to rain, and therefore left the house to get his horse, which he had left tied to a post near the door; that, on reaching the ground floor, the brothers Roque and Exequiel Castillo, asked him to do them the favor to call Jose Laurel, because they wished to talk to the latter, witness noticing that the said brothers were then provided with canes; that he called Jose Laurel, but the latter said that he did not wish to go down, because he was listening to the discourse which was then being delivered, and witness therefore went down to report the answer to the said brothers; that while he was at the door of the parochial building waiting for the drizzle to cease, Jose Laurel and Felipe Almeda came up to where he was, and just then Exequiel Castillo approached the former, Laurel, and they both drew aside, about 2 brazas away, to talk; that soon afterwards, witness saw Exequiel Castillo deal Jose Laurel two blows in succession and the latter stagger and start to run, pursued by his assailant; the latter was met by several persons who crowded about in an aimless manner, among whom witness recognized Roque Castillo and Conrado Laurel; and that he did not see Primitivo Gonzalez nor Gaudencio Garcia at the place where the fight occurred, although he remained where he was until a policeman was called. Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of December 28, 1909, he was in the parochial building for the purpose of attending the entertainment; that he was then carrying a revolver,

which had neither cartridges nor firing pin, for the purpose of returning it to its owner, who was a Constabulary telegraph operator on duty in the pueblo of Tanauan; that the latter, having been informed by a gunsmith that the said revolver could not be fixed, requested witness, when they met each other in the cockpit the previous afternoon, to return the weapon to him during the entertainment; that, on leaving the said building to retire to his house and change his clothes, he met Roque Castillo, his cousin and confidential friend, on the ground floor of the parochial building or convent and the latter, seeing that witness was carrying a revolver, insisted on borrowing it, notwithstanding that witness told him that it was unserviceable; that, after he had changed his clothes, he left his house to return to the parochial building, and near the main door of said building he found Exequiel Castillo and Jose Laurel talking by themselves; that a few moment afterwards, he saw Exequiel strike Jose two blows with a cane that nearly caused him to fall at full length on the ground, and that Jose immediately got up and started to run, pursued by his assailant, Exequiel; that witness, on seeing this, gave the latter in turn a blow on the head with a cane, to stop him from pursuing Jose, witness fearing that the pursuer, should he overtake the pursued, would kill him; that, after witness struck Exequiel Castillo with the cane, the police intervened and arrested them; and that, among those arrested, he saw Panganiban and Vicente Garcia, and, at the place of the disturbance, Roque Castillo and Primitivo Gonzalez. Vicente Garcia denied having taken part in the fight. He testified that he also was attending the entertainment and, feeling warm, went down out of the parochial building; that, upon so doing, he saw Domingo Panganiban and Jose Laurel, but was not present at the fight, and only observed, on leaving the building, that there was a commotion; then he heard a policeman had arrested Jose Laurel. Well-written briefs were filed in first instance, both by the prosecution and by the defense; but, notwithstanding the large number of persons who must have been eyewitnesses to what occurred, it is certain that the prosecution was only able to present the witness, Primitivo Gonzalez, a relative of Exequiel Castillo, to testify as to how and by whom the assault was begun. Each one of the combatants, Exequiel Castillo and Jose Laurel accused the other of having commenced the assault. Castillo testified that Laurel, after the exchange of few words between them, suddenly and without warning stabbed him with a knife, while Laurel swore that, after a short conversation Castillo struck him two blows with a cane, on which account, in order to defend himself, he seized a pocketknife he carried in his pocket. In view, therefore, of these manifest contradictions, and in order to determine the liability of the defendant, Jose Laurel, who, it is proved, inflicted the serious wound on Exequiel Castillo, it is necessary to decide which of the two was the assailant. Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the street and in the presence of Exequiel Castillo, the girl's suitor, and of others who were accompanying her, the first query that naturally arises in the examination of the evidence and the circumstances connected with the occurrence, is: Who provoked the encounter between Laurel and Castillo, and the interview between the same, and who invited the other, on the night of December 28, 1909, to come down from the parochial building of Tanauan, to the lower floor and outside the entrance of the same? Even on this concrete point the evidence is contradictory, for, while the witnesses of Exequiel Castillo swore that the

latter was invited by Jose Laurel, those of the latter testified, in turn, that Laurel was invited three consecutive times by three different messengers in the name and on the part of the said Castillo. In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter, we are forced to think that the person who would consider himself aggrieved at the kiss given the girl Concepcion Lat, in the street and in the presence of several witnesses, would undoubtedly be Exequiel Castillo, the suitor of the girl, and it would appear to be a reasonable conclusion that he himself, highly offended at the boldness of Jose Laurel, was the person who wished to demand explanation of the offense. Upon this premise, and having weighed and considered as a whole the testimony, circumstantial evidence, and other merits of the present case, the conviction is acquired, by the force of probability, that the invitation, given through the medium of several individuals, came from the man who was offended by the incident of the kiss, and that it was the perpetrator of the offense who was invited to come down from the parochial building to the ground floor thereof to make explanations regarding the insult to the girl Lat, the real suitor of whom was at the time the said Exequiel Castillo. All this is not mere conjecture; it is logically derived from the above related facts. Both Jose and Exequiel were attending the entertainment that night in the upper story of the parochial building. Exequiel was the first who went below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in the hall above, and he it was who waited for nearly half an hour on the ground floor of the said building for the said Jose Laurel to come down. The latter was notified three times, and successively, in the name and on the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo Yatco and finally by Felipe Almeda--three summonses which were necessary before Jose Laurel could be induced, after the lapse of nearly half an hour, to come down. Meanwhile, for that space of time, Exequiel Castillo was awaiting him, undoubtedly for the purpose of demanding explanations concerning the offensive act committed against his sweetheart. The natural course and the rigorous logic of the facts can not be arbitrarily be rejected, unless it be shown that other entirely anomalous facts occurred. If, in the natural order of things, the person who was deeply offended by the insult was the one who believed he had a right to demand explanations of the perpetrator of that insult, it is quite probable that the aggrieved party was the one who, through the instrumentality of several persons, invited the insulter to come down from the upper story of the parochial building, where he was, and make the explanations which he believed he had a right to exact; and if this be so, Exequiel Castillo, seriously affected and offended by the insult to his sweetheart, Concepcion Lat, must be held to be the one who brought about the encounter gave the invitation and provoked the occurrence, as shown by his conduct in immediately going down to the entrance door of the said building and in resignedly waiting, for half an hour, for Jose Laurel to come down. Moreover, if the latter had provoked the encounter or interview had on the ground floor of the building, it is not understood why he delayed in going down, nor why it became necessary to call him three times, in such manner that Exequiel Castillo had to wait for him below for half an hour, when it is natural and

logical to suppose that the provoking party or the one interested in receiving explanations would be precisely the one who would have hastened to be in waiting at the place of the appointment; he would not have been slow or indisposed to go down, as was the case with Jose Laurel. If, as is true, the latter was the one who insulted the girl Concepcion Lat an insult which must deeply have affected the mind of Exequiel Castillo, the girl's suitor at the time it is not possible to conceive, as claimed by the prosecution, how and why it should be Jose Laurel who should seek explanations from Exequiel Castillo. It was natural and much more likely that it should have been the latter who had an interest in demanding explanations from the man who insulted his sweetheart. In view of the behavior of the men a few moments before the occurrence, we are of the opinion that Castillo was the first to go down to the entrance door of the parochial building, knowing that Jose Laurel was in the hall, and, notwithstanding the state of his mind, he had the patience to wait for the said Laurel who, it appears, was very reluctant to go down and it was necessary to call him three times before he finally did so, at the end of half an hour. After considering these occurrences which took place before the crime, the query of course arises as to which of the two was the first to assault the other, for each lays the blame upon his opponent for the commencement of the assault. Exequiel Castillo testified that after he had replied to Jose Laurel that he, the witness, was not obliged to say whether he had in his possession several letters addressed by laurel to the girl Concepcion Lat, Laurel immediately stabbed him in the breast with a knife; while Jose Laurel swore that, upon his answering the question put to him by Castillo as to why the witness had kissed his sweetheart, saying that it was because she was very fickle and prodigal of the word "yes" on all occasions, Exequiel said to him in reply that he ought not to act in that manner, and immediately struck him a couple of blows on the head with a club, wherefore, in order to defend himself, he drew the knife he was carrying in his pocket. Were the statements made by Exequiel Castillo satisfactorily proven at the trial, it is unquestionable that Jose Laurel would be liable as the author of the punishable act under prosecution; but, in view of the antecedents aforerelated, the conclusions reached from the evidence, and the other merits of the case, the conclusion is certain that the assault was commenced by Exequiel Castillo, who struck Jose Laurel two blows with a cane, slightly injuring him in two places on the head, and the assaulted man, in selfdefense, wounded his assailant with a pocketknife; therefore, Jose Laurel committed no crime and is exempt from all responsibility, as the infliction of the wounds attended by the three requisites specified in paragraph 4, article 8 of the Penal Code. From the evidence, then, produced at the trial, it is concluded that it was Exequiel Castillo who, through the mediation of several others, invited Laurel to come down from the upper story of the parochial building, and that it was he, therefore, who provoked the affray aforementioned, and, also, it was he who unlawfully assaulted Jose Laurel, by striking the latter two blows with a cane inasmuch as it is not likely that after having received a dangerous wound in the left breast, he would have been able to strike his alleged assailant two successive blows and much less pursue him. It is very probable that he received the said wounds after he had assaulted Jose Laurel with the cane, and Laurel, on his part, in defending himself from the assault, employed rational means by using the knife that he carried in his pocket.

For all the foregoing reasons, Jose Laurel must be acquitted and held to be exempt from responsibility on the ground of self-defense. The case falls within paragraph 4 of article 8 of the Penal Code, inasmuch as the defensive act executed by him was attended by the three requisites of illegal aggression on the part of Exequiel Castillo, there being a lack of sufficient provocation on the part of Laurel, who, as we have said, did not provoke the occurrence complained of, nor did he direct that Exequiel Castillo be invited to come down from the parochial building and arrange the interview in which Castillo alone was interested, and, finally, because Laurel, in defending himself with a pocketknife against the assault made upon him with a cane, which may also be a deadly weapon, employed reasonable means to prevent or repel the same. Under the foregoing reasoning, the other accused, Conrado Laurel and Vicente Garcia, who likewise, were convicted as principals of the crime under prosecution, are comprised within the provisions of paragraph 5 of the said article 8 of the Penal Code, which are as follows: He who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters, or of his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided the first and second circumstances mentioned in the foregoing number are attendant, and provided that in case the party attacked first gave provocation, the defender took no part therein. Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in the trial record to have been proven without contradiction whatsoever, did not provoke the trouble, nor did they take any part in the invitation extended to Jose Laurel in the name of and for Exequiel Castillo; in assisting in the fight between Castillo and Laurel, they acted in defense of their cousin, Jose Laurel, when they saw that the latter was assaulted, twice struck and even pursued by the assailant, Castillo; consequently Conrado Laurel and Vicente Garcia have not transgressed the law and they are exempt from all responsibility, for all the requisites of paragraph 4 of the aforecited article attended the acts performed by them, as there was illegal aggression on the part of the wounded man, Exequiel Castillo, reasonable necessity of the means employed to prevent or repel the said aggression on the part of the aforementioned Conrado Laurel and Vicente Garcia, who acted in defense of their cousin, Jose Laurel, illegally assaulted by Exequiel Castillo, neither of the said codefendants having provoked the alleged crime. With regard to Domingo Panganiban, the only act of which he was accused by the wounded man, Exequiel Castillo, was that he struck the latter a blow on the left side with his fist, while Castillo was pursuing Laurel. Domingo Panganiban denied that he took part in the quarrel and stated that he kept at a distance from the combatants, until he was arrested by a policeman. His testimony appears to be corroborated by that of Primitivo Gonzalez, a witness for the prosecution and relative of Exequiel Castillo, for Gonzalez positively declared that Panganiban was beside him during the occurrence of the fight and when the others surrounded the said Exequiel Castillo; it is, therefore, neither probable nor possible that Panganiban engaged in the affray, and so he contracted no responsibility whatever.

Exequiel Castillo's wounds were very serious, but, in view of the fact that conclusive proof was adduced at the trial, of the attendance of the requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor of those who inflicted the said wounds, it is proper to apply to this case the provision contained in the next to the last paragraph of rule 51 of the provisional law for the application of the said code. With respect to the classification of the crime we believe that there is no need for us to concern ourselves therewith in this decision, in view of the findings of fact and of law made by the court below upon the question of the liability of the defendants. By reason, therefore, of all the foregoing, we are of opinion that, with a reversal of the judgment appealed from, we should acquit, as we do hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and Domingo Panganiban. They have committed no crime, and we exempt them from all responsibility. The costs of both instances shall be de oficio, and the bond given in behalf of the defendants shall immediately be canceled. Johnson, Carson, Moreland and Trent, JJ., concur.

PEOPLE VS.DELA CRUZ

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 27, 1974 G.R. No. L-28810 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEFERINO DE LA CRUZ, defendant-appellant. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Leonardo I. Cruz for plaintiff-appellee. Israel C. Bocobo for appellant. Aquino, J.: p This is an appeal of defendant Ceferino de la Cruz from the decision of the Court of First Instance of Masbate, finding him guilty of rape, sentencing him to reclusion perpetua and ordering him to indemnify the offended girl, Ligaya German, in the sum of six thousand pesos and to pay the costs (Criminal Case No. 5201). The record reveals that the spouses Simeon German and Priscilla Refuerzo, residents of Danao Street, Masbate, Masbate, have a daughter named Ligaya who was born on August 17, 1954 (Exh. A). She was a Grade two pupil of the North Elementary School. One time she met in the theater a man who called her Baby and who instructed her: Baby, please come to the place where I am working every afternoon. He was employed in an establishment known as Lim Yang Hong Trading. Acting on that invitation, Ligaya frequented Lim Yang Hong Trading. The man used to give her candies worth twenty centavos and the same amount so that she could see the movies. On January 13, 1966 the man gave her candies and biscuit and told her to see a show. She came to know the man as Ceferino Esquillo. His real name is Ceferino de la Cruz. She identified him during the trial as the same man whom she had known as Ceferino Esquillo. He was a thirty-five year old laborer residing at BarrioIbingay, Masbate. In the evening of January 13, after the bell rang at six oclock, Ligaya was playing at the swing (naga duyan sa swing) located at the Social Center which was in front of the municipal building of Masbate. She was wearing a red T-shirt and short denim pants (Exh. E and F). Ceferino approached her, held her

by the arms and dragged her to the plaza, which was a building inside the Social Center. (I did not want to go with him but later on he dragged me, she said). He made her lie down (aco guin pahigda sa simento) while he undressed. He removed her panties (Exh. D). He placed himself on top of her and inserted his penis into her vagina (solod an iya pisot sa acon potay) She experienced intense pain. He slapped her face and kicked her on her right thigh. She resisted by biting his right palm. He released her. He warned her that, if she disclosed his name to her father and mother, he would kill her. He left her. Her vagina was bleeding. Ligaya went to the Constabulary barracks and asked for help. It was already forty-five minutes past midnight or the early morning of the next day, January 14th. Sergeant Juan Movida (Navida or Mavida) attended to her. He noticed that there was much blood in her groin (laps) and pants. She informed him that she had been abused by someone whose name she did not want to divulge because she was afraid of him, He asked a prisoner to carry her. They made an ocular inspection of the place in the Social Center where she was abused. Then, they took her to her residence on Danao Street. It was already one oclock. When they reached her house, she was unconscious. Her father said that he would take her to the hospital. Ligaya did not immediately tell her mother the details of the rape because she (Ligaya) was told by that same person not to tell because she was threatened that she will be killed in the event that she will tell what happened to her. She told her mother that she was raped by Ceferino only after she was released from the hospital. The culprit was known to Mrs. German because everyday he used to pass by our (their) house. At around four-thirty in the afternoon of the following day, January 14th, Ligaya was examined at the Masbate Provincial Hospital by Doctor Florenda E. Duano, a twenty-seven year old unmarried resident physician. Her medical certificate (Exh. A), contains the following findings: External Findings: Fairly developed, fairly nourished female Filipino child. Breast not developed. External genitalia absence of pubic hair. Face Lower lip contused. External Findings: Hymenal opening presence of new lacerations corresponding to 10:00 oclock, 8:00 oclock, 6:00 oclock, 4:00 oclock and 2:00 oclock in the face of the clock. Posterior commissure lacerated and said lacerations bleed to touch. Hymenal orifice admits 2 fingers of the examiner with moderate resistance. LABORATORY: Smear for Human Spermatozoa: Negative Conclusion: Physical virginity lost. Doctor Duano explained that there was a defloration of the hymen caused by a hard, blunt instrument. She said that Ligaya appeared to be normal. She (the doctor) was informed that the rape was perpetrated at seven oclock on the night of January 13th at the Social Center. On the basis of her findings, the alleged rape took place less than twenty-four hours before the examination. Asked to explain why no spermatozoa was found, she said that there could be penetration but no emission, as

when, after the penetration, the penis was immediately taken out or because the assailant had tension due to fear of being caught in flagrante, or because the girl was moving and trying to escape from the clutches of her assailant. Six days after the incident, or on January 19th, Ligaya was brought again to the hospital. She was treated by Doctor Duano for vaginal bleeding secondary to hymenal laceration. She was confined for two days or up to January 21st (Exh. C). After her hospitalization, she gained courage to apprise her mother that she was assaulted by Ceferino de la Cruz alias Esquillo. On January 22nd Mrs. German signed a complaint for rape which was sworn to and filed in the municipal court of Masbate on January 24th. She executed her affidavit on that date. The following day the municipal judge conducted a preliminary examination and issued a warrant for the arrest of Ceferino de la Cruz. He was arrested on January 25th. He waived the preliminary investigation. After the trial, the lower court rendered the judgment of conviction already mentioned. In this appeal, Israel Bacobo, appellants counsel de oficio, has posed a jurisdictional question. He contends that the trial court did not acquire jurisdiction over the case because the complaint for rape was filed by the mother of the eleven-year old offended girl and not by the father. His view is that the father had the exclusive authority to file the complaint. That contention is based on the following provisions of Rule 110 of the Rules of Court: SEC. 4. Whom must prosecute criminal actions. xxx xxx xxx The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party, or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. The offended party, even if she were a minor, has the right to institute the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents or guardians, may file the same. The right to file the action granted to the parents, grandparents or guardians shall be exclusive of all other persons and shall be exercised successively in the order herein provided. (See third paragraph of article 344 of the Revised Penal Code). Appellants counsel cites articles 61, 320 and 2180 of the Civil Code as instances where the father is preferred over the mother. His thesis is that, if the parents are living together, the complaint for rape should be filed by the father. Appellants contention is untenable. It is based on a dubious technicality. If sustained, it might defeat the ends of justice. It is not sanctioned by section 4 of Rule 110 nor by article 344 of the Revised Penal

Code whose provisions do not categorically specify that the father has the preferential right to file the complaint for seduction, abduction, rape or abusos deshonestos. It is noteworthy that the father and mother jointly exercise parental authority over their legitimate children who are not emancipated. It is their duty to represent their emancipated children in all actions which may redound to their benefit (Arts. 311 and 316, Civil Code). The Court is of the opinion that each case should be considered according to its facts (ex facto jus oritur). In the instant case the father of the offended girl did not restrain or prevent his wife from filing the complaint for rape. It is highly probable that he tacitly approved it. He did not pardon the offender. Being occupied in the daily task of earning a living for his family, he had no time to spare for a criminal investigation. Under the circumstances, the complaint filed by the mother was a sufficient compliance with article 344 and section 4 of Rule 110. It conferred jurisdiction on the court to try the case (People vs. Pastores, L29800, August 31, 1971, 40 SCRA 498, 508; People vs. Bangalao, 94 Phil. 354; U.S. vs. Gariboso, 25 Phil. 171). The fathers passivity should not preclude the mother from securing redress for the outrage committed against her daughter. As persuasive authority, a case arising under article 467 of the Penal Code for Cuba and Puerto Rico, where the fathers right to file a complaint for rape and abduction is preferential and previous to the mothers, may be cited. It was held in that case that, when the complaint was filed by the mother, in whose company the minor female lived, and it was filed not only without any opposition on the fathers part but also with his tacit consent, the complaint was legally sufficient to require and set in motion the action for prosecution and punishment of the crime committed (Sentencia of the Spanish Supreme Court dated November 25, 1896, 7 Viada, Codigo Penal, 313; 11 Hidalgo, Codigo Penal 353 Concurring opinion, U.S. vs. Gariboso 25 Phil. 171, 177). * Another issue raised by appellant De la Cruz is that he was not accorded the right to cross-examine the complainant. That point was never raised by the appellant in the lower court. It is not entirely accurate. The truth is that after the direct examination of the offended girl on February 22, 1966, she was crossexamined. The cross-examination was not finished. Two days later, or on February 24th, the cross-examination was resumed at ten oclock in the morning. After a few minutes, the examination was suspended. When the case was called at ten-thirty-five for the resumption of the cross-examination, the counsel for the accused asked for postponement. The hearing was transferred to March 1st. The right of the defendant to continue the cross-examination was reserved. No hearing was held on that date. Other hearings were scheduled. The offended girl was subpoenaed to appear at those hearings. After some cancellations or transfers, the trial was resumed on June 27, 1966. At that hearing, the counsel for the accused could have asked that he be allowed to continue his cross-examination. He did not do so. He did not object when the fiscal called his next witness. The counsel for the accused either forgot or waived the further cross-examination of the offended girl.

Under the circumstances, it cannot be said the constitutional right of the accused to meet the witnesses face to face or the right to confrontation (Sec. 1*f+, Rule 115, Rules of Court; Sec. 1*17], Art. III, Old Constitution) was impaired. The fact that the cross-examination of the complainant was not formally terminated is not an irregularity that would justify a new trial. The right to confront the witnesses may be waived by the accused expressly or by implication (U.S. vs. Anastacio, 6 Phil. 413; 4 Morans Comments on the Rule of Court, 1970 Ed., p. 201-2). The chief purpose of confrontation is to secure the opportunity for cross- examination , so that if the opportunity of cross-examination has been secured, the function and test of confrontation has also been accomplished (1 Green leaf on Evidence par. 163, cited in Anastacio case). In the instant case, there was not merely confrontation. The counsel for the accused cross-examined the complaining witness but he waived the right to make additional cross-examination. The other issues raised by the appellant involve the credibility of the witnesses and his defense ofalibi. He testified that he did not have the opportunity to talk with Ligaya German during the time he worked as laborer in Lian Hong Trading. He denied having given money to her for candy, or having brought her to the show, or having told her that his name was Ceferino Esquillo. He admitted that he knew Ligaya and had seen her often at the wharf but he denied having molested her. His story is that in the morning of January 11, 1966, he went to Aroroy to accompany his sister-in-law, Marina Francisco, and her three children. They used a motorboat in going to Aroroy. He stayed in Aroroy for four days in the house of Marina Francisco. He returned by motorboat to the town of Masbate in the afternoon of January 14th at around four o clock. Upon arrival at his house, he rested. The trip had made him dizzy. On January 15th, he was arrested by a policeman. He was brought to the municipal building and was confined in jail. He was investigated but he was not confronted by Ligaya German. He never had any conversation with her. He has resided in Barrio Ibingay for about ten years. He knows that Ligayas father stays at Barrio Ibingay. He used to meet the father at the wharf. In going to the wharf, he passed the Social Center sometimes at twelve noon and when he went home after his work. He was a daytime laborer at the wharf. Seneca Francisco and Marina Francisco, the wife and sister-in-law of the accused, tried to corroborate his alibi. However, discrepancies vitiate their testimonies. Marina testified that De la Cruz went with her to Aroroy on January 11th, staying with her for two days and returning to Masbate on January 14th, meaning after a sojourn of three days. The accused testified that he stayed four days in Aroroy. Seneca testified that De la Cruz returned to the town of Masbate on January 13th, the date when the rape was committed. Appellants witnesses rendered his alibi unworthy of credence. The trial court noted the inconsistency. it held that the prosecutions evidence is more credible than that of the defense. After a conscientious study of the evidence, this Court agrees with the lower court.

Appellants alibi, which, as his counsel admits is a weak defense, cannot prevail over the unmistakable identification made by the offended girl. She testified: Q. Are you positive that this Ceferino de la Cruz whom you met in the theater and who told you to go to him oftentimes at Lim Yang Hong Trading is the same Ceferino de la Cruz whom you told this Court to have abused you and whom you have identified here in court? A. Yes, sir. Q. Will you please point to him again? A. Witness points to the accused. (17 tsn Bajar, Feb. 22, 1966). Appellants attempt to discredit complainants story by observing that she had made no outcry during the commission of the crime or immediately thereafter does not deserve serious consideration. In the rape of a girl below twelve years of age force or intimidation need not be present. The Revised penal code provides: ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (As amended by Rep. Act No. 2632 and Rep. Act No. 4111). The gravamen of the offense is the carnal knowledge of a woman below twelve years of age. In this case the fact that the accused ravished an eleven-year old girl was proven beyond reasonable doubt. In the information, nocturnity is alleged as an aggravating circumstance. Its appreciation in this case would not alter the penalty of reclusion perpetua which is imposable on the appellant (Art. 63, Revised Penal Code). Finding no reversible error in the penalty and indemnity fixed by the trial court, its judgment is hereby affirmed with costs against the appellant.

So ordered. Zaldivar (Chairman), Fernando, Barredo, Antonio and Fernandez, JJ, concur. Footnotes * It may be noted that article 344 traces its descent from article 463 of the Spanish Penal Code of 1870 which provides that the complaint should be filed by la agraviada, o de sus padres o abuelos o tutor. In article 443 of the present Spanish Penal Code, the complaint may be filed by la persona agraviada o del conyugue, ascendiente, hermano, representante legal o guardador de hecho, por este orden. The terms padres o abuelos were replaced by ascendiente. (II Cuello Calon, Derecho Penal, Duodecimo Edicion, p. 577). The change indicates a trend not to establish a preference among the ascendants in the filing of the complaint.

PEOPLE VS. JAURIGUE

Republic of the Philippines SUPREME COURT Manila EN BANC C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. AVELINA JAURIGUE, appellant. Jose Ma. Recto for appellant. Assistant Solicitor General Enriquez and Solicitor Palma for appellee.. DE JOYA, J.: Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her. From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed (1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely absolved of all criminal responsibility; (2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and (3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been committed in a sacred place. The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts: That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the

deceased by defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay. On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection. On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself. In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day. At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights. Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand

and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution. The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in all civilized communities. A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and upheld this view. On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is Switzerland. In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173). The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344). And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249). In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391).. In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above.. According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability.. But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the

incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86). Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123). The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not where. The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a certain degree. In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950).. The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased

Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered.. Ozaeta, Perfecto, and Bengzon, JJ., concur.

Separate Opinions HILADO, J., concurring: In past dissenting and concurring opinions my view regarding the validity or nullity of judicial proceedings in the Japanese-sponsored courts which functioned in the Philippines during the Japanese occupation has been consistent. I am not abandoning it. But in deference to the majority who sustain the opposite view, and because no party litigant herein has raised the question, I have taken part in the consideration of this case on the merits. And, voting on the merits, I concur in the foregoing decision penned by Justice De Joya.

PEOPLE VS. AGSALOG

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 141087 March 31, 2004

PEOPLE OF THE PHILIPPINES, apellee, vs. ABRAHAM AGSALOG @ PANTO and JOVITO SIBLAS y OBAA @ BITONG, appellants. DECISION CARPIO MORALES, J.: On automatic review is the decision of the Regional Trial Court of Urdaneta City, Branch 46, finding appellants Abraham Agsalog and Jovito Siblas guilty beyond reasonable doubt of murder for killing Eduardo Marzan y Teoso (the victim) and sentencing them to death. The following facts are not disputed. At about 2:00 p.m. of October 4, 1997, while the victim and his uncle Tony Opia (Tony) were drinking at the Jessica Mae Videoke located at the San Quintin public market, San Quintin, Pangasinan, a misunderstanding arose between the victim and appellant Siblas who was occupying a table outside the videoke, adjacent to the stall of appellant Agsalog who was then inside.1 The misunderstanding resulted in the victim slapping appellant Siblas. The escalation of the misunderstanding was prevented, however, when Tony pacified the two. The victim and Tony soon left the premises. Also on the same day, October 4, 1997, at about 4:30 p.m., as the victim and his distant cousin-neighbor Edwin Opia (Edwin) were conversing at the terrace of the latters house in Calomboyan, San Quintin, appellants, on board a tricycle2 driven by Francisco Aquino, Jr. (Aquino) arrived. Upon entering the gate of the house, appellants summoned the victim3 who obliged. An exchange of words later ensued between the victim and appellants which resulted in appellant Agsalog stabbing the victim who died as a result thereof. The postmortem examination conducted by Dr. Rosalina O. Victorio of the Office of the Municipal Health Officer showed that the victim sustained two stab wounds one at the upper middle portion of his abdomen, and the other at the upper portion of his chest which penetrated the right auricle of his heart.4 It also showed that the victim had abrasions on the forehead, left eyelid and left cheek5 which Dr. Victorio surmised came about as a result of the victims fall after the stabbing.6 The doctor concluded that the cause of the victims death was acute hemorrhage due to a stab wound on the right auricle of the heart.7

The records show that the day after the stabbing of the victim or on October 6, 1997, Ulyses Soto (Soto),8 Edwin9and Aquino10 gave their respective sworn statements before the local police authorities on what they witnessed, the substance of which statements Soto and Edwin were later to echo at the witness stand. Hence, appellants indictment for murder under an Information11 alleging: xxx That on or about the 4th day of October 1997, in the afternoon, at Brgy. Calomboyan, municipality of San Quintin, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed with a bladed weapon (balisong), with treachery and evident premeditation, conspiring, confederating and helping one another, did then and there willfully, unlawfully and feloniously attack, assault and stab one EDUARDO MARZAN y TEOSO twice on his body which caused his immediate death, to the damage and prejudice of the heirs of said EDUARDO MARZAN y TEOSO. xxx From the account of prosecution witnesses including eyewitness Edwin, and another eyewitness Soto who was across the road where the stabbing occurred, the following are gathered: After the victim heeded the call of appellants to talk with them outside the gate of the house, the three walked towards the gate, with the victim sandwiched by appellant Siblas who was at the victims right side and appellant Agsalog who was at the victims left side. As Edwin sensed that there was "something unusual,"12 he followed the three, he trailing behind by about 3 meters. While appellants and the victim were conversing as they walked, the victim placed his right13 hand on the left shoulder of appellant Siblas and uttered "Pasensiya kan pare."14 At that instant appellant Agsalog took a step forward, "tapped" the hand of the victim as he faced him, uttered "Di na kami met la [ka]babainen"15 and simultaneously drew an already open "balisong" and stabbed the victim at his belly and then at his chest while appellant Siblas, with both hands, held the right wrist and right elbow of the victim. Realizing what had befallen the victim, Edwin picked up a stone upon which appellant Agsalog warned "You will be next if you do that,"16 drawing the former to throw the stone away. Appellant Agsalog invoked self defense. Appellant Siblas denied the existence of a conspiracy. As related in their brief, appellants gave the following version, quoted verbatim: *O+n or about 1:00 oclock in the afternoon of October 4, 1997, Agsalog was in his stall with Siblas infront of the Jessica Mae Videoke. Agsalog heard loud noise coming from the Jessica Mae Videoke. When he went out of his stall, he saw Nola Matsumoto [owner of the videoke-bar] in-between Siblas and [the victim] trying to prevent further troubles from erupting. After that incident, Tony Opia stood

up and told [the victim] "Vulva of your mother, you just slapped people, let us go home." After the lapse of 10 minutes, [the victim] with his brother, Jun Marzan returned to the Jessica Mae Videoke. Jun Marzan asked Nola who was at fault and she replied, "your brother is at fault". Then the two (2) brothers left the place. But before leaving, [the victim] told Siblas that he would return, which he did after about 3 minutes. [The victim], on his return, shook his hands with Siblas, to settle their differences, and as a gesture of reconciliation, [the victim] invited both Siblas and Agsalog to their house for drinks as he is butchering a goat. Agsalog and Siblas accepted the invitation to go there after school hours. Then Agsalog and Siblas, after a few minutes, proceeded to the San Quintin National High School to resume their duties as teachers. At about 4:30 in the afternoon of the same day, Agsalog and Siblas riding in a tricycle driven by one Aquino arrived at the house of Ex-Brgy. Chairman Juan Opia [father of Edwin Opia] at Brgy. Calonboyan, San Quintin, Pangasinan. Agsalog saw [the victim] sitting alone at the terrace of the house of Opia. Agsalog, then asked [the victim] "Bok where is the pulutan? I will get the drinks." [The victim] stood up and retorted "Vulva of your mother, you could easily be baited." Agsalog thought that [the victim] is only joking, so he said to [the victim], "Bring the pulutan out and we will get the drinks." [The victim] instead replied, "Vulva of you mother, you look like pulutan." Agsalog said, "Bok, you do not even respect us". Then [the victim] came down from the terrace and tried to grab Agsalog which the latter warded off. Both Agsalog and Siblas went out of the yard towards the tricycle to leave but *the victim+ followed them. Then, *the victim+ pushed Siblas and Agsalog, saying, "Vulva of your mother, are you going to fight me?" At this stage, [the victim] was drawing a balisong from his waist and when he was about to thrust his balisong into Agsalogs body, Agsalog also drew a knife and swung his arm, hitting *the victims+ body once. But still *the victim+ grabbed Agsalog by the shoulder but Agsalog pushed him with his left arm. [The victim], then turned and went into the yard of Opia. Agsalog saw Edwin Opia came out of the house and picked some stones, going near them, Agsalog told Edwin, "Dont go near-Dont go near (warning to us). x x x (Emphasis and italics in the original; underscoring supplied) Brushing aside appellants version, the trial court, by Decision of October 7, 1999, found them guilty beyond reasonable doubt of murder, the dispositive portion of which is quoted verbatim: WHEREFORE, JUDGMENT of CONVICTION beyond reasonable doubt is hereby rendered against Abraham Agsalog and Jovito Siblas of the crime of aggravated Murder and the Court sentences AGSALOG and SIBLAS to suffer the penalty of DEATH to be implemented in the manner as provided for by law; to pay the heirs of the victim, jointly and solidarily, the amount of P200,000.00 as actual damages; P75,000.00 as moral damages and P30,000.00 as exemplary damages and attorneys fees in the amount of P10,000.00 and all accessory penalties of the law. The Branch Clerk of Court is hereby ordered to prepare the mittimus and to transmit the entire records of this case to the Hon. Supreme Court of the Philippines for automatic review fifteen days from date of promulgation. The Jail Warden, BJMP, is hereby ordered to transmit the living body of accused Agsalog and Siblas to the National Bilibid Prisons, Muntinlupa City, fifteen (15) days from receipt of this Decision.17 (Underscoring supplied)

Hence, this automatic review, appellants ascribing to the trial court the following assignment of errors: I GRANTING WITHOUT ADMITTING THAT THE PROSECUTIONS CASE IS CREDIBLE, THE LOWER COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS CONSPIRED IN KILLING THE VICTIM AS WELL AS IN APPRECIATING AGAINST THEM THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION. II THE TRIAL COURT GRAVELY ERRED IN FAILING TO CONSIDER THE AUTOPSY REPORT AND SWORN STATEMENT OF ANOTHER ALLEGED EYEWITNESS WHICH, IF CONSIDERED, WOULD HAVE BEEN FAVORABLE TO ACCUSED-APPELLANTS. III THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING IN FAVOR OF ACCUSED-APPELLANTS THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE.18 Appellant Agsalog having admitted stabbing the victim, the third assignment of error shall first be considered. For the justifying circumstance of self-defense to be appreciated, the following circumstances must concur. 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel it. 3. Lack of sufficient provocation on the part of the person defending himself.19 Unlawful aggression is present when peril to ones life, limb or right is either actual or imminent.20 Appellant Agsalog claims that as reflected in their above-quoted version in their brief, there was unlawful aggression on the part of the victim that as appellants "were out of the yard towards the tricycle to leave," the victim followed and pushed them, challenged them to a fight, after saying "vulva of your mother," and thereafter drew a balisong which he was "about to thrust" at him (appellant Agsalog). Appellant Siblas following testimony, quoted verbatim, does not corroborate such claim of aggression on the victims part, however, he (appellant Siblas) having merely witnessed the victim holding the shoulder of appellant Agsalog which the latter warded off, followed by the two pushing each other. ATTY. SANSANO, JR (counsel for both appellants): xxx

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q

When your co-accused Abraham Agsalog entered the yard, what happened next? Eduardo Marzan met him. (Siblas answering) What [did] Abraham Agsalog do when he went there? He told us, "Vulva of your mother. You could easily be baited." What prompted Marzan said those words? I do not know why he said that, sir. What did Abraham Agsalog answer, if any? "How come, Bok." What was the reply of Marzan, if any, to what Agsalog said? "When it comes to cocktails ("pulutan") you are so fast." What did Agsalog answer, if any? "How come, Bok, you get it and we eat now." After the reply of Agsalog, what did Marzan do? "Vulva of your mother," he said. What did you do with that Marzan told you and Agsalog? After a while, Agsalog made an invitation. What was that invitation? He said, "If that is the thing, lets go home." What did Marzan do when you were invited by Agsalog to go home? When Agsalog turn, Marzan held the right shoulder of Agsalog. What [did] Marzan do when he held that shoulder of Agsalog? "When I am talking to you, do not turn your back." What did Agsalog do? Agsalog warded his hand, sir. When Agsalog warded the hand of Marzan, what did Marzan do?

A Q A Q A Q A Q A Q A Q A Q

He continued to hold, sir. What did Agsalog told with what Marzan did to him? He warded it, sir. What happened next? I went out first and then Agsalog followed, sir. What happened between Agsalog and Marzan when you went ahead? On the street they pushed each other, sir. What happened when they pushed each other? Marzan told him, "You are liar." To whom he addressed that? To Agsalog, sir. What did Agsalog do? Marzan pushed Agsalog and they pushed each other. And what did Agsalog do when he was pushed by Marzan?

A Things happened fast, sir. When I walk, I did not see the other things and the last thing that I saw when I look back, I saw Marzan going back. Q A Q A Q A Q A Q A How about Agsalog, where was he when you saw Marzan? He was on the street, sir. Did you come to know what happened to Marzan? About his stabbing, sir. Where were you anyway when Agsalog, your co-accused, stabbed Marzan? Maybe 3 to 4 meters away from them. In relation to Marzan, where were you at the time of the stabbing? The same distance, sir. At what particular direction to the place of Marzan? From right side of Eduardo Marzan, sir.

Q A Q A Q A Q A Q A

How about this witness Edwin Opia, do you know where he was at that time? Yes, sir. Where was he at the time? Maybe he was 2 to 3 meters to the left, sir. What was he doing there at the time? He was in possession of a stone, sir. What did he do when he was in possession of a stone? He was holding two stones, sir. He did nothing on those two stones? He was only in possession of those stones, sir.

Q This witness Edwin Opia testified in court that when your co-accused Agsalog stabbed the victim you were holding the right hand of Marzan. What can you say about this? A That is not true, sir.

x x x21 (Emphasis and underscoring supplied) Even assuming, however, that the victim indeed held the shoulder of appellant Agsalog, albeit the prosecution claimed it was appellant Siblas right shoulder which the victim held, that could not have constituted actual or imminent peril to appellant Agsalogs life, limb or right, especially in light of appellant Siblas testimony that after that stage of the incident, the victim and appellant Agsalog pushed each other. It is unthinkable for appellant Siblas to have missed witnessing the alleged attempt of the victim to stab appellant Agsalog if indeed there was such an attempt. Absent thus any corroboration by independent and competent evidence of appellant Agsalogs claim of unlawful aggression on the part of the victim, it is extremely doubtful, hence, it cannot prosper.22 There being no unlawful aggression, there is no self-defense, complete or incomplete.23 That the stabbing could not have been carried out in self-defense draws reinforcement from the failure of appellant Agsalog, a high school teacher at that, to report the incident to police authorities. In fact, when he was arrested on October 6, 1997, at 9:00 p.m., he "refused to sign."24 In their second assignment of error, appellants fault the trial court for failure to consider the implications of the findings in the autopsy report, and the sworn statement of Aquino wherein he stated, as follows, quoted verbatim: xxx

No. 67 Q:

What other things happened if any?

A: Abraham Agsalog and Mr. Siblas entered the yard of Mr. Juan Opia wherein Eduardo Marzan is sitting threat and Abraham Agsalog and Mr. Siblas called Eduardo Marzan and they talked to each other. Not long after, they traded words at the top of their voice and I notice that they were fighting. Then I saw Abraham Agsalog and Mr. Siblas ran towards the East direction being chased by Edwin Opia and Ronald Opia but Abraham Agsalog who was holding a fan knife (balisong) aimed to Ronald Opia and caution[ed] them not to intervene. x x x (Underscoring supplied) With respect to the autopsy report, appellants contend that the fatal (second) stab wound which hit the right auricle of the victims heart was not inflicted by appellant Agsalog. Thus they explain: The Autopsy Report (Exh. "G", "G-1" and "G-2") indicated that there were two (2) stab wounds, one which was inflicted medially on the upper middle portion of the abdomen, just above the navel that pierced the upper lobe of the lung, The other was directed downwards at the upper portion of the chest penetrating the right auricle of the heart and is the cause of death. The thrust through the abdomen, which is medially inflicted, is assumed that the knife is held level with the hand. On the other hand, the knife thrust through the chest, as it is on the downward stroke is assumed that the knife is held perpendicular to the hand. At the heat of the moment, it is not conceivable that the wielder of the knife changed the stance and grasp of the knife of the second thrust. The knife thrust inflicted on the abdomen is admitted by the accused Agsalog, but he claimed only one thrust. As for the knife thrust through the chest, Agsalog denied ever inflicting it. The deceased is taller by 4 5 inches than Agsalog, the knife thrust medially on the abdomen with the knife held level to the hand is expected for a smaller person. But a knife thrust on a downward stroke on the upper portion of a taller person is impossible to be inflicted by a smaller assailant. The fatal stab is not done by Agsalog.25 (Underscoring supplied) The claim that appellant Agsalog inflicted only the wound on the victims abdomen does not persuade, given Edwins and Sotos positive claims in their respective sworn statements and at the witness stand that said appellant twice stabbed the victim. That the wound of the victim on his chest was "on a downward stroke" need not rule out its infliction by a smaller person facing him. It is possible that that wound on the chest was inflicted while the victim stooped in pain after being stabbed in the abdomen, or that appellant Agsalog raised his hand to insure that he would reach and stab the chest of the already wounded taller victim. Whatever it was, the fact remains that Edwin and Soto categorically declared that appellant Agsalog twice stabbed the victim. With respect to the sworn statement of Aquino,26 appellants contend that the same shows that the "incident [which] was preceded by a fight" and culminated in a spur of the moment stabbing was an act of self-defense and "negates and likewise belies the testimony of Edwin Opia [that he (Edwin) was with the deceased at the terrace when appellants arrived] and provides a doubtful ground to convict accused-appellants of murder."

There is nothing in Aquinos statement, however, from which to infer that there was unlawful aggression on the victims part such that self defense may be considered. Neither is there a declaration that the victim was alone at the terrace when appellants arrived. At all events, appellants bewail the non-presentation by the prosecution of the doctor (who prepared the Autopsy Report) and of Aquino, thus denying them, so they claim, the opportunity to propound questions upon them. The non-presentation by the prosecution of the doctor and Aquino as witnesses during the trial was the prerogative of the prosecution. If appellants wanted to question the two, nothing prevented them from presenting them as their own witnesses, but they did not. In denying that conspiracy existed and that treachery and evident premeditation attended the stabbing, appellants proffer as follows, quoted verbatim: Assuming sans admitting that Edwin Opias testimony is credible, Siblas, while holding Marzans hands, could not have expected Agsalog to stab Marzan. It bears to stress that barely three (3) hours before the incident, at the Jessica Mae Karaoke Bar, Marzan slapped Siblas in the face. Siblas could only have thought that Marzan would do the same thing again to him when without warning, Marzan put his right hand on his shoulder. Marzan was very much taller and stouter than either of the two (2) accusedappellants. As such, under the circumstances, it was but natural for Siblas react and to hold Marzan;s right hand to prevent impending harm. When Agsalog saw them, he could have perceived that Marzan intended to harm his friend such that he went on his way to stab Marzan. But on all indications, Siblas never knew nor acquiesced to Agsalogs design. It can thus be said that accused-appellants never consciously adopted the means, methods or forms by which Agsalog killed the victim. The stabbing of the victim cannot be considered as sudden and unexpected to the point of incapacitating him to repel or escape it. In fact, the victim sustained only two (2) stab wounds. Had accused-appellants indeed have a preconceived plan to kill Marzan, the latter would have suffered more stab wounds. The crime was impulsively done at the spur of the moment. It should be borne in mind that the prosecution miserably failed to prove that accused-appellants hatched a conspiracy beforehand to kill Marzan. Their meeting was only casual and at the very least, the attack was done impulsively. Such being the case, the killing of the victim is not at all treacherous . . . 27 On the assailed finding that there was conspiracy between appellants, anchored on appellant Siblas holding, at the time appellant Agsalog attacked the victim, of the right elbow and wrist of the victim who admittedly was very much bigger than them: As the prosecution claims that the victim placed his right hand on the left shoulder of appellant Siblas (the defense claims it was the shoulder of appellant Agsalog which the victim held), and the stabbing was sudden and swift, appellant Siblas holding of the victims elbow and wrist may not necessarily have meant to restrain the victim in order to insure that he would not put up a fight or defense. The holding of the victims right wrist and elbow by appellant Siblas could have been done in the course of the removal thereof from Siblas shoulder. At any rate, there is no showing that had not appellant Siblas held the victims wrist and elbow, appellant Agsalog would not have succeeded in stabbing the victim.

Conspiracy, which requires the same quantum of proof to prove the guilt of an accused, was thus not clearly established. That conspiracy was not proven to have existed does not of course necessarily free appellant Siblas from liability. If appellant Siblas holding of the victims elbow and wrist constituted a crime in and by itself, then he should be held criminally liable. Appellant Siblas aforesaid act, under the proven circumstance, did not, however, amount to criminal offense giving rise to his individual culpability therefor. As for the qualifying circumstance of evident premeditation, for it to be appreciated, the following requisites should be proven: (1) the time when the offender determined to commit the crime, (2) an overt act manifestly indicating that the culprit had clung to his determination, and (3) a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act.28 While the victim slapped appellant Siblas hours before the stabbing and it is thus not improbable for appellants to have hatched a plan to avenge the same, still, the circumstances as presented by the prosecution fail to show evident premeditation, which must be based upon external acts and not presumed from mere lapse of time.29 In the case of People v. Peralta:30 The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor and without the slightest provocation on the part of the victim. The elements of treachery are: (1) the means of execution employed gives the person no opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted. It does not follow that a sudden and unexpected attack is tainted with treachery for it could have been that the same was done on impulse, as a reaction to an actual or imagined provocation offered by the victim. Provocation of the appellant by the victim negates the presence of treachery even if the attack may have been sudden and unexpected. (Citations omitted) The testimony of prosecution eyewitness Edwin that when appellants arrived at his yard and called for the victim, appellant Agsalog "sounded like he was mad," must surely have put the victim on guard, given the fact that a few hours before he slapped appellant Siblas. There is thus reasonable doubt on whether treachery and evident premeditation attended the commission of the crime. The crime committed was then only homicide. As regards the damages awarded by the trial court, the amount of P200,000.00 for actual damages appears to have been partly based on the claim of Virgilio Padilla,31 the victims brother-in-law, that the total amount of P157,000.00 was incurred for burial expenses.

Jurisprudence dictates that the award of actual damages must, however, be duly substantiated by receipts.32 An examination of the records shows that the alleged burial expenses was not duly receipted. It must thus be disallowed. The heirs of the victim are, however, entitled to an award of civil indemnity in the amount of P50,000.00 which needs no proof other than the victims death.33 As to the award by the trial court of P75,000.00 as moral damages, consistent with prevailing jurisprudence,34 the crime committed being homicide, the amount must be reduced to P50,000.00. Finally, the award of P10,000.00 as attorneys fees must be deleted in view of the failure of the trial court to explicitly state in the body of its decision the legal basis therefor. The power of courts to grant damages and attorneys fees demands factual, legal and equitable justification; its basis cannot be left to speculation or conjecture.35 WHEREFORE, the appealed decision of the Regional Trial Court of Urdaneta City, Pangasinan, Branch 46 is hereby MODIFIED. Appellant Abraham Agsalog is found GUILTY beyond reasonable doubt of HOMICIDE as defined under Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty of Six (6) Years and One (1) Day of prision mayor as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal as maximum, with the accessory penalties provided by law; and he is ordered to pay the heirs of the victim, Eduardo Marzan, the amount of P50,000.00 civil indemnity and another P50,000.00 as moral damages. Appellant Jovito Siblas Y Obaa @ Bitong is hereby ACQUITTED of the charge and is hereby ordered immediately RELEASED from confinement, unless he is being lawfully held in custody for another cause. SO ORDERED. davide, Jr., C.J., Puno, Vitug,* Panganiban, Quisumbing, Santiago, Gutierrez, Carpio, Martinez, Corona, Morales, Callejo, Sr., Azcuna, and Tinga, JJ. concur CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. HILARIO G. DAVIDE, JR. Chief Justice