G.R. No.

135981             January 15, 2004 "WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of
PEOPLE OF THE PHILIPPINES, appellee, the crime of Parricide as provided under Article 246 of the Revised Penal
vs. Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
MARIVIC GENOSA, appellant. generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.
DECISION
"The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
PANGANIBAN, J.: indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages."2
Admitting she killed her husband, appellant anchors her prayer for acquittal on a
novel theory -- the "battered woman syndrome" (BWS), which allegedly constitutes The Information3 charged appellant with parricide as follows:
self-defense. Under the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she shot him. "That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
Absent unlawful aggression, there can be no self-defense, complete or incomplete. kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA,
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a her legitimate husband, with the use of a hard deadly weapon, which the
form of cumulative provocation that broke down her psychological resistance and self- accused had provided herself for the purpose, [causing] the following
control. This "psychological paralysis" she suffered diminished her will power, thereby wounds, to wit:
entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the
Revised Penal Code. 'Cadaveric spasm.

In addition, appellant should also be credited with the extenuating circumstance of 'Body on the 2nd stage of decomposition.
having acted upon an impulse so powerful as to have naturally produced passion and
obfuscation. The acute battering she suffered that fatal night in the hands of her
batterer-spouse, in spite of the fact that she was eight months pregnant with their 'Face, black, blownup & swollen w/ evident post-mortem lividity.
child, overwhelmed her and put her in the aforesaid emotional and mental state, Eyes protruding from its sockets and tongue slightly protrudes out
which overcame her reason and impelled her to vindicate her life and her unborn of the mouth.
child's.
'Fracture, open, depressed, circular located at the occipital bone of
Considering the presence of these two mitigating circumstances arising from BWS, as the head, resulting [in] laceration of the brain, spontaneous rupture
well as the benefits of the Indeterminate Sentence Law, she may now apply for and of the blood vessels on the posterior surface of the brain, laceration
be released from custody on parole, because she has already served the minimum of the dura and meningeal vessels producing severe intracranial
period of her penalty while under detention during the pendency of this case. hemorrhage.

The Case 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk
w/ shedding of the epidermis.
For automatic review before this Court is the September 25, 1998 Decision 1 of the
Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, 'Abdomen distended w/ gas. Trunk bloated.'
finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal
portion of the Decision reads: which caused his death."4

1 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

With the assistance of her counsel,5 appellant pleaded not guilty during her Steban went there to find out the cause of the stench but the house was
arraignment on March 3, 1997.6 In due course, she was tried for and convicted of locked from the inside. Since he did not have a duplicate key with him,
parricide. Steban destroyed the gate padlock with a borrowed steel saw. He was able
to get inside through the kitchen door but only after destroying a window to
The Facts reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in
Version of the Prosecution his briefs with injuries at the back of his head. Seeing this, Steban went out
of the house and sent word to the mother of Ben about his son's misfortune.
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the Later that day, Iluminada Genosa, the mother of Ben, identified the dead
facts in this wise: body as that of [her] son.

"Appellant and Ben Genosa were united in marriage on November 19, 1983 "Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
in Ormoc City. Thereafter, they lived with the parents of Ben in their house at assigned at the police station at Isabel, Leyte, received a report regarding
Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived with the foul smell at the Genosas' rented house. Together with SPO1 Millares,
them too. Sometime in 1995, however, appellant and Ben rented from SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived house and went inside the bedroom where they found the dead body of Ben
with their two children, namely: John Marben and Earl Pierre. lying on his side wrapped with a bedsheet. There was blood at the nape of
Ben who only had his briefs on. SPO3 Acodesin found in one corner at the
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after side of an aparador a metal pipe about two (2) meters from where Ben was,
receiving their salary. They each had two (2) bottles of beer before heading leaning against a wall. The metal pipe measured three (3) feet and six (6)
home. Arturo would pass Ben's house before reaching his. When they inches long with a diameter of one and half (1 1/2) inches. It had an open
arrived at the house of Ben, he found out that appellant had gone to Isabel, end without a stop valve with a red stain at one end. The bedroom was not in
Leyte to look for him. Ben went inside his house, while Arturo went to a store disarray.
across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side "About 10:00 that same morning, the cadaver of Ben, because of its stench,
of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to had to be taken outside at the back of the house before the postmortem
which Ben replied 'Why kill me when I am innocent?' That was the last time examination was conducted by Dr. Cerillo in the presence of the police. A
Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' municipal health officer at Isabel, Leyte responsible for medico-legal cases,
rented house appeared uninhabited and was always closed. Dr. Cerillo found that Ben had been dead for two to three days and his body
was already decomposing. The postmortem examination of Dr. Cerillo
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend yielded the findings quoted in the Information for parricide later filed against
and neighbor living about fifty (50) meters from her house, to look after her appellant. She concluded that the cause of Ben's death was
pig because she was going to Cebu for a pregnancy check-up. Appellant 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to
likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie a depressed fracture of the occipital [bone].'
Dayandayan who unfortunately had no money to buy it.
"Appellant admitted killing Ben. She testified that going home after work
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for on November 15, 1995, she got worried that her husband who was not home
a bus going to Ormoc when he saw appellant going out of their house with yet might have gone gambling since it was a payday. With her cousin Ecel
her two kids in tow, each one carrying a bag, locking the gate and taking her Araño, appellant went to look for Ben at the marketplace and taverns at
children to the waiting area where he was. Joseph lived about fifty (50) Isabel, Leyte but did not find him there. They found Ben drunk upon their
meters behind the Genosas' rented house. Joseph, appellant and her return at the Genosas' house. Ecel went home despite appellant's request
children rode the same bus to Ormoc. They had no conversation as Joseph for her to sleep in their house.
noticed that appellant did not want to talk to him.
"Then, Ben purportedly nagged appellant for following him, even challenging
"On November 18, 1995, the neighbors of Steban Matiga told him about the her to a fight. She allegedly ignored him and instead attended to their
foul odor emanating from his house being rented by Ben and appellant. children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
2 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
 the television antenna or wire to keep her from watching television. hand was covered with blood. Marivic left the house but after a week, she
According to appellant, Ben was about to attack her so she ran to the returned apparently having asked for Ben's forgiveness. In another incident
bedroom, but he got hold of her hands and whirled her around. She fell on in May 22, 1994, early morning, Alex and his father apparently rushed to
the side of the bed and screamed for help. Ben left. At this point, appellant Ben's aid again and saw blood from Ben's forehead and Marivic holding an
packed his clothes because she wanted him to leave. Seeing his packed empty bottle. Ben and Marivic reconciled after Marivic had apparently again
clothes upon his return home, Ben allegedly flew into a rage, dragged asked for Ben's forgiveness.
appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant "Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that
testified that she was aware that there was a gun inside the drawer but since Ben and Marivic married in '1986 or 1985 more or less here in Fatima,
Ben did not have the key to it, he got a three-inch long blade cutter from his Ormoc City.' She said as the marriage went along, Marivic became 'already
wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's
drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with two sons, there were 'three (3) misunderstandings.' The first was when
the pipe as he was about to pick up the blade and his wallet. She thereafter Marivic stabbed Ben with a table knife through his left arm; the second
ran inside the bedroom. incident was on November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was also affected. It was
"Appellant, however, insisted that she ended the life of her husband by wounded and also the ear' and her husband went to Ben to help; and the
shooting him. She supposedly 'distorted' the drawer where the gun was and third incident was in 1995 when the couple had already transferred to the
shot Ben. He did not die on the spot, though, but in the bedroom." 7 (Citations house in Bilwang and she saw that Ben's hand was plastered as 'the bone
omitted) cracked.'

Version of the Defense "Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
Appellant relates her version of the facts in this manner:
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. 'After we collected our salary, we went to the cock-fighting place of ISCO.'
Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, They stayed there for three (3) hours, after which they went to 'Uniloks' and
obtaining a degree of Bachelor of Science in Business Administration, and drank beer – allegedly only two (2) bottles each. After drinking they bought
was working, at the time of her husband's death, as a Secretary to the Port barbeque and went to the Genosa residence. Marivic was not there. He
Managers in Ormoc City. The couple had three (3) children: John Marben, stayed a while talking with Ben, after which he went across the road to wait
Earl Pierre and Marie Bianca. 'for the runner and the usher of the masiao game because during that time,
the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet.' On his way home at about 9:00 in
"2. Marivic and Ben had known each other since elementary school; they the evening, he heard the Genosas arguing. They were quarreling loudly.
were neighbors in Bilwang; they were classmates; and they were third Outside their house was one 'Fredo' who is used by Ben to feed his fighting
degree cousins. Both sets of parents were against their relationship, but Ben cocks. Basobas' testimony on the root of the quarrel, conveniently overheard
was persistent and tried to stop other suitors from courting her. Their by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied
closeness developed as he was her constant partner at fiestas. 'Why kill me when I am innocent.' Basobas thought they were joking.

"3. After their marriage, they lived first in the home of Ben's parents, together "He did not hear them quarreling while he was across the road from the
with Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic Genosa residence. Basobas admitted that he and Ben were always at the
and Ben 'lived happily'. But apparently, soon thereafter, the couple would cockpits every Saturday and Sunday. He claims that he once told Ben
quarrel often and their fights would become violent. 'before when he was stricken with a bottle by Marivic Genosa' that he should
leave her and that Ben would always take her back after she would leave
"4. Ben's brother, Alex, testified for the prosecution that he could not him 'so many times'.
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left
3 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
"Basobas could not remember when Marivic had hit Ben, but it was a long Mr. Sarabia further testified that Ben 'would box his wife and I would see
time that they had been quarreling. He said Ben 'even had a wound' on the bruises and one time she ran to me, I noticed a wound (the witness pointed
right forehead. He had known the couple for only one (1) year. to his right breast) as according to her a knife was stricken to her.' Mr.
Sarabia also said that once he saw Ben had been injured too. He said he
"6. Marivic testified that after the first year of marriage, Ben became cruel to voluntarily testified only that morning.
her and was a habitual drinker. She said he provoked her, he would slap
her, sometimes he would pin her down on the bed, and sometimes beat her. '7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
"These incidents happened several times and she would often run home to house and asked her help to look for Ben. They searched in the market
her parents, but Ben would follow her and seek her out, promising to change place, several taverns and some other places, but could not find him. She
and would ask for her forgiveness. She said after she would be beaten, she accompanied Marivic home. Marivic wanted her to sleep with her in the
would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. Genosa house 'because she might be battered by her husband.' When they
These doctors would enter the injuries inflicted upon her by Ben into their got to the Genosa house at about 7:00 in the evening, Miss Arano said that
reports. Marivic said Ben would beat her or quarrel with her every time he 'her husband was already there and was drunk.' Miss Arano knew he was
was drunk, at least three times a week. drunk 'because of his staggering walking and I can also detect his face.'
Marivic entered the house and she heard them quarrel noisily. (Again,
please note that this is the same night as that testified to by Arturo Basobas)
"7. In her defense, witnesses who were not so closely related to Marivic, Miss Arano testified that this was not the first time Marivic had asked her to
testified as to the abuse and violence she received at the hands of Ben. sleep in the house as Marivic would be afraid every time her husband would
come home drunk. At one time when she did sleep over, she was awakened
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, at 10:00 in the evening when Ben arrived because the couple 'were very
testified that on November 15, 1995, he overheard a quarrel between Ben noisy in the sala and I had heard something was broken like a vase.' She
and Marivic. Marivic was shouting for help and through the open jalousies, said Marivic ran into her room and they locked the door. When Ben couldn't
he saw the spouses 'grappling with each other'. Ben had Marivic in a choke get in he got a chair and a knife and 'showed us the knife through the
hold. He did not do anything, but had come voluntarily to testify. (Please window grill and he scared us.' She said that Marivic shouted for help, but no
note this was the same night as that testified to by Arturo Busabos.8 ) one came. On cross-examination, she said that when she left Marivic's
house on November 15, 1995, the couple were still quarreling.
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the night '7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-
of November 15, 1995. He peeped through the window of his hut which is employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times'
located beside the Genosa house and saw 'the spouses grappling with each and had also received treatment from other doctors. Dr. Caing testified that
other then Ben Genosa was holding with his both hands the neck of the from July 6, 1989 until November 9, 1995, there were six (6) episodes of
accused, Marivic Genosa'. He said after a while, Marivic was able to physical injuries inflicted upon Marivic. These injuries were reported in his
extricate he[r]self and enter the room of the children. After that, he went back Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
to work as he was to go fishing that evening. He returned at 8:00 the next qualifications of Dr. Caing and considered him an expert witness.'
morning. (Again, please note that this was the same night as that testified to
by Arturo Basobas). xxx   xxx   xxx

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they 'Dr. Caing's clinical history of the tension headache and hypertention of
were living in Isabel, Leyte. His house was located about fifty (50) meters Marivic on twenty-three (23) separate occasions was marked at Exhibits '2'
from theirs. Marivic is his niece and he knew them to be living together for 13 and '2-B.' The OPD Chart of Marivic at the Philphos Clinic which reflected all
or 14 years. He said the couple was always quarreling. Marivic confided in the consultations made by Marivic and the six (6) incidents of physical
him that Ben would pawn items and then would use the money to gamble. injuries reported was marked as Exhibit '3.'
One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that
while Ben was alive 'he used to gamble and when he became drunk, he "On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
would go to our house and he will say, 'Teody' because that was what he not say whether the injuries were directly related to the crime committed. He
used to call me, 'mokimas ta,' which means 'let's go and look for a whore.'
4 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
said it is only a psychiatrist who is qualified to examine the psychological "10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of
make-up of the patient, 'whether she is capable of committing a crime or not.' Isabel, Leyte at the time of the incident, and among her responsibilities as
such was to take charge of all medico-legal cases, such as the examination
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
resided, testified that about two (2) months before Ben died, Marivic went to pathologist. She merely took the medical board exams and passed in 1986.
his office past 8:00 in the evening. She sought his help to settle or confront She was called by the police to go to the Genosa residence and when she
the Genosa couple who were experiencing 'family troubles'. He told Marivic got there, she saw 'some police officer and neighbor around.' She saw Ben
to return in the morning, but he did not hear from her again and assumed Genosa, covered by a blanket, lying in a semi-prone position with his back to
'that they might have settled with each other or they might have forgiven with the door. He was wearing only a brief.
each other.'
xxxxxxxxx
xxx   xxx   xxx
"Dra. Cerillo said that 'there is only one injury and that is the injury involving
"Marivic said she did not provoke her husband when she got home that night the skeletal area of the head' which she described as a 'fracture'. And that
it was her husband who began the provocation. Marivic said she was based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did
frightened that her husband would hurt her and she wanted to make sure not testify as to what caused his death.
she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and "Dra. Cerillo was not cross-examined by defense counsel.
hypertension, and the baby was born prematurely on December 1, 1995.
"11. The Information, dated November 14, 1996, filed against Marivic
"Marivic testified that during her marriage she had tried to leave her husband Genosa charged her with the crime of PARRICIDE committed 'with intent to
at least five (5) times, but that Ben would always follow her and they would kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
reconcile. Marivic said that the reason why Ben was violent and abusive feloniously attack, assault, hit and wound x x x her legitimate husband, with
towards her that night was because 'he was crazy about his recent girlfriend, the use of a hard deadly weapon x x x which caused his death.'
Lulu x x x Rubillos.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17,
"On cross-examination, Marivic insisted she shot Ben with a gun; she said 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997,
that he died in the bedroom; that their quarrels could be heard by anyone 22 May 1998, and 5 and 6 August 1998.
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in "13. On 23 September 1998, or only fifty (50) days from the day of the last
Manila, rented herself a room, and got herself a job as a field researcher trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
under the alias 'Marvelous Isidro'; she did not tell anyone that she was Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond
leaving Leyte, she just wanted to have a safe delivery of her baby; and that reasonable doubt' of the crime of parricide, and further found treachery as an
she was arrested in San Pablo, Laguna. aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.
'Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to 'smash "14. The case was elevated to this Honorable Court upon automatic review
him once'; that she was wounded by Ben on her wrist with the bolo; and that and, under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P.
two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
her towards the drawer when he saw that she had packed his things.' precautionary measure, two (2) drafts of Appellant's Briefs he had prepared
for Marivic which, for reasons of her own, were not conformed to by her.
"9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa residence. "The Honorable Court allowed the withdrawal of Atty. Tabucanon and
This fact was testified to by all the prosecution witnesses and some defense permitted the entry of appearance of undersigned counsel.
witnesses during the trial.

5 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated Philippines and is a member of the American Psychological Association. She
20 January 2000, to the Chief Justice, coursing the same through Atty. is the secretary of the International Council of Psychologists from about 68
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, countries; a member of the Forensic Psychology Association; and a member
wherein she submitted her 'Brief without counsels' to the Court. of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic
"This letter was stamp-received by the Honorable Court on 4 February 2000. and psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled 'Energy Global Psychology'
"16. In the meantime, under date of 17 February 2000, and stamp-received (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the
by the Honorable Court on 19 February 2000, undersigned counsel filed an first time she has testified as an expert on battered women as this is the first
URGENT OMNIBUS MOTION praying that the Honorable Court allow the case of that nature.
exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she killed her "Dra. Dayan testified that for the research she conducted, on the socio-
husband; and finally, to allow a partial re-opening of the case a quo  to take demographic and psychological profile of families involved in domestic
the testimony of said psychologists and psychiatrists. violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that 'there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to psychiatric
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel disorder.'
Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the post-
mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating "Dra. Dayan described domestic violence to comprise of 'a lot of incidents of
with a lead pipe. psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.'
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivic's URGENT OMNIBUS MOTION and remanded the xxx   xxx   xxx
case 'to the trial court for the reception of expert psychological and/or
psychiatric opinion on the 'battered woman syndrome' plea, within ninety "Dra. Dayan testified that in her studies, 'the battered woman usually has a
(90) days from notice, and, thereafter to forthwith report to this Court the very low opinion of herself. She has a self-defeating and self-sacrificing
proceedings taken, together with the copies of the TSN and relevant characteristics. x x x they usually think very lowly of themselves and so when
documentary evidence, if any, submitted.' the violence would happen, they usually think that they provoke it, that they
were the one who precipitated the violence, they provoke their spouse to be
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified physically, verbally and even sexually abusive to them.' Dra. Dayan said that
before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. usually a battered x x x comes from a dysfunctional family or from 'broken
homes.'
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that "Dra. Dayan said that the batterer, just like the battered woman, 'also has a
interviews were done at the Penal Institution in 1999, but that the clinical very low opinion of himself. But then emerges to have superiority complex
interviews and psychological assessment were done at her clinic. and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) become violent.' The batterer also usually comes from a dysfunctional family
years with her own private clinic and connected presently to the De La Salle which over-pampers them and makes them feel entitled to do anything. Also,
University as a professor. Before this, she was the Head of the Psychology they see often how their parents abused each other so 'there is a lot of
Department of the Assumption College; a member of the faculty of modeling of aggression in the family.'
Psychology at the Ateneo de Manila University and St. Joseph's College;
and was the counseling psychologist of the National Defense College. She
has an AB in Psychology from the University of the Philippines, a Master of "Dra. Dayan testified that there are a lot of reasons why a battered woman
Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from does not leave her husband: poverty, self-blame and guilt that she provoked
the U.P. She was the past president of the Psychological Association of the the violence, the cycle itself which makes her hope her husband will change,
6 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
the belief in her obligations to keep the family intact at all costs for the sake Cagayan Medical Society; and the Philippine Association of Military
of the children. Surgeons.

xxx   xxx   xxx "He authored 'The Comparative Analysis of Nervous Breakdown in the

Philippine Military Academy from the Period 1954 – 1978' which was
"Dra. Dayan said that abused wives react differently to the violence: some presented twice in international congresses. He also authored 'The Mental
leave the house, or lock themselves in another room, or sometimes try to Health of the Armed Forces of the Philippines 2000', which was likewise
fight back triggering 'physical violence on both of them.' She said that in a published internationally and locally. He had a medical textbook published
'normal marital relationship,' abuses also happen, but these are 'not on the use of Prasepam on a Parke-Davis grant; was the first to use
consistent, not chronic, are not happening day in [and] day out.' In an Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of
'abnormal marital relationship,' the abuse occurs day in and day out, is long the drug Zopiclom in 1985-86.
lasting and 'even would cause hospitalization on the victim and even death
on the victim.' "Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
xxx   xxx   xxx enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
"Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because 'inspite of her feeling of self-confidence which we can see "Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
at times there are really feeling (sic) of loss, such feelings of humiliation Pajarillo had already encountered a suit involving violent family relations,
which she sees herself as damaged and as a broken person. And at the and testified in a case in 1964. In the Armed Forces of the Philippines,
same time she still has the imprint of all the abuses that she had violent family disputes abound, and he has seen probably ten to twenty
experienced in the past.' thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he
became a consultant of the Battered Woman Office in Quezon City under
xxx   xxx   xxx Atty. Nenita Deproza.

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even "As such consultant, he had seen around forty (40) cases of severe
consider filing for nullity or legal separation inspite of the abuses. It was at domestic violence, where there is physical abuse: such as slapping, pushing,
the time of the tragedy that Marivic then thought of herself as a victim. verbal abuse, battering and boxing a woman even to an unconscious state
such that the woman is sometimes confined. The affliction of Post-Traumatic
xxx   xxx   xxx Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may
"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since induce the disorder; if the psychological stamina and physiologic
passed away, appeared and testified before RTC-Branch 35, Ormoc City. constitutional stamina of the victim is stronger, 'it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.'
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and a Fellow of the Philippine
Psychiatry Association. He was in the practice of psychiatry for thirty-eight "In psychiatry, the post-traumatic stress disorder is incorporated under the
(38) years. Prior to being in private practice, he was connected with the 'anxiety neurosis or neurologic anxcietism.' It is produced by 'overwhelming
Veterans Memorial Medical Centre where he gained his training on brutality, trauma.'
psychiatry and neurology. After that, he was called to active duty in the
Armed Forces of the Philippines, assigned to the V. Luna Medical Center for xxx   xxx   xxx
twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from "Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the
the University of Santo Tomas. He was also a member of the World beating or trauma as if it were real, although she is not actually being beaten
Association of Military Surgeons; the Quezon City Medical Society; the at that time. She thinks 'of nothing but the suffering.'
7 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
xxx   xxx   xxx interviewed Marivic 'she was more subdued, she was not super alert
anymore x x x she is mentally stress (sic) because of the predicament she is
"A woman who suffers battery has a tendency to become neurotic, her involved.'
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her 'self- xxx   xxx   xxx
world' is damaged.
"20. No rebuttal evidence or testimony was presented by either the private or
"Dr. Pajarillo said that an abnormal family background relates to an the public prosecutor. Thus, in accord with the Resolution of this Honorable
individual's illness, such as the deprivation of the continuous care and love Court, the records of the partially re-opened trial a quo were elevated."9
of the parents. As to the batterer, he normally 'internalizes what is around
him within the environment.' And it becomes his own personality. He is very Ruling of the Trial Court
competitive; he is aiming high all the time; he is so macho; he shows his
strong façade 'but in it there are doubts in himself and prone to act without
thinking.' Finding the proffered theory of self-defense untenable, the RTC gave credence to the
prosecution evidence that appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic aggravating circumstance of
xxx   xxx   xxx treachery, because Ben Genosa was supposedly defenseless when he was killed --
lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
"Dr. Pajarillo emphasized that 'even though without the presence of the
precipator (sic) or the one who administered the battering, that re- The capital penalty having been imposed, the case was elevated to this Court for
experiencing of the trauma occurred (sic) because the individual cannot automatic review.
control it. It will just come up in her mind or in his mind.'
Supervening Circumstances
xxx   xxx   xxx
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this
"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of
defend themselves, and 'primarily with knives. Usually pointed weapons or his death; (2) the examination of appellant by qualified psychologists and psychiatrists
any weapon that is available in the immediate surrounding or in a hospital x to determine her state of mind at the time she had killed her spouse; and (3) the
x x because that abound in the household.' He said a victim resorts to inclusion of the said experts' reports in the records of the case for purposes of the
weapons when she has 'reached the lowest rock bottom of her life and there automatic review or, in the alternative, a partial reopening of the case for the lower
is no other recourse left on her but to act decisively.' court to admit the experts' testimonies.

xxx   xxx   xxx On September 29, 2000, this Court issued a Resolution granting in part appellant's
Motion, remanding the case to the trial court for the reception of expert psychological
"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview and/or psychiatric opinion on the "battered woman syndrome" plea; and requiring the
he conducted for two (2) hours and seventeen (17) minutes. He used the lower court to report thereafter to this Court the proceedings taken as well as to
psychological evaluation and social case studies as a help in forming his submit copies of the TSN and additional evidence, if any.
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
Acting on the Court's Resolution, the trial judge authorized the examination of Marivic
xxx   xxx   xxx by two clinical psychologists, Drs. Natividad Dayan10 and Alfredo
11 
Pajarillo, supposedly experts on domestic violence. Their testimonies, along with
"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the their documentary evidence, were then presented to and admitted by the lower court
time she killed her husband Marivic'c mental condition was that she was 're- before finally being submitted to this Court to form part of the records of the case.12
experiencing the trauma.' He said 'that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just The Issues
come in flashes and probably at that point in time that things happened
when the re-experiencing of the trauma flashed in her mind.' At the time he
8 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Appellant assigns the following alleged errors of the trial court for this Court's high degree of respect and will not be disturbed on appeal in the absence of any
consideration: showing that the trial judge gravely abused his discretion or overlooked,
misunderstood or misapplied material facts or circumstances of weight and substance
"1. The trial court gravely erred in promulgating an obviously hasty decision that could affect the outcome of the case.14
without reflecting on the evidence adduced as to self-defense.
In appellant's first six assigned items, we find no grave abuse of discretion, reversible
"2. The trial court gravely erred in finding as a fact that Ben and Marivic error or misappreciation of material facts that would reverse or modify the trial court's
Genosa were legally married and that she was therefore liable for parricide. disposition of the case. In any event, we will now briefly dispose of these alleged
errors of the trial court.
"3. The trial court gravely erred finding the cause of death to be by beating
with a pipe. First, we do not agree that the lower court promulgated "an obviously hasty decision
without reflecting on the evidence adduced as to self-defense." We note that in his
17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both
"4. The trial court gravely erred in ignoring and disregarding evidence the prosecution and the defense witnesses and -- on the basis of those and of the
adduced from impartial and unbiased witnesses that Ben Genosa was a documentary evidence on record -- made his evaluation, findings and conclusions. He
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in wrote a 3-page discourse assessing the testimony and the self-defense theory of the
concluding that Ben Genosa was a battered husband. accused. While she, or even this Court, may not agree with the trial judge's
conclusions, we cannot peremptorily conclude, absent substantial evidence, that he
"5. The trial court gravely erred in not requiring testimony from the children of failed to reflect on the evidence presented.
Marivic Genosa.
Neither do we find the appealed Decision to have been made in an "obviously hasty"
"6. The trial court gravely erred in concluding that Marivic's flight to Manila manner. The Information had been filed with the lower court on November 14, 1996.
and her subsequent apologies were indicia of guilt, instead of a clear attempt Thereafter, trial began and at least 13 hearings were held for over a year. It took the
to save the life of her unborn child. trial judge about two months from the conclusion of trial to promulgate his judgment.
That he conducted the trial and resolved the case with dispatch should not be taken
"7. The trial court gravely erred in concluding that there was an aggravating against him, much less used to condemn him for being unduly hasty. If at all, the
circumstance of treachery. dispatch with which he handled the case should be lauded. In any case, we find his
actions in substantial compliance with his constitutional obligation.15

"8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus Second, the lower court did not err in finding as a fact that Ben Genosa and appellant
in this case, thereby erroneously convicting Marivic Genosa of the crime of had been legally married, despite the non-presentation of their marriage contract.
parricide and condemning her to the ultimate penalty of death."13 In People v. Malabago,16 this Court held:

In the main, the following are the essential legal issues: (1) whether appellant acted in "The key element in parricide is the relationship of the offender with the
self-defense and in defense of her fetus; and (2) whether treachery attended the victim. In the case of parricide of a spouse, the best proof of the relationship
killing of Ben Genosa. between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected
The Court's Ruling to."

The appeal is partly meritorious. Two of the prosecution witnesses -- namely, the mother and the brother of appellant's
deceased spouse -- attested in court that Ben had been married to Marivic. 17 The
Collateral Factual Issues defense raised no objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her marriage to
Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon the party
The first six assigned errors raised by appellant are factual in nature, if not collateral
making it, except only when there is a showing that (1) the admission was made
to the resolution of the principal issues. As consistently held by this Court, the findings
through a palpable mistake, or (2) no admission was in fact made. 19 Other than merely
of the trial court on the credibility of witnesses and their testimonies are entitled to a
9 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
attacking the non-presentation of the marriage contract, the defense offered no proof The Battered Woman Syndrome
that the admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake. In claiming self-defense, appellant raises the novel theory of the battered woman
syndrome. While new in Philippine jurisprudence, the concept has been recognized in
Third, under the circumstances of this case, the specific or direct cause of Ben's foreign jurisdictions as a form of self-defense or, at the least, incomplete self-
death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. defense.23 By appreciating evidence that a victim or defendant is afflicted with the
As the Court elucidated in its September 29, 2000 Resolution, "[c]onsidering that the syndrome, foreign courts convey their "understanding of the justifiably fearful state of
appellant has admitted the fact of killing her husband and the acts of hitting his nape mind of a person who has been cyclically abused and controlled over a period of
with a metal pipe and of shooting him at the back of his head, the Court believes that time."24
exhumation is unnecessary, if not immaterial, to determine which of said acts actually
caused the victim's death." Determining which of these admitted acts caused the A battered woman has been defined as a woman "who is repeatedly subjected to any
death is not dispositive of the guilt or defense of appellant. forceful physical or psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights. Battered women include
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was wives or women in any form of intimate relationship with men. Furthermore, in order
a drunk, gambler, womanizer and wife-beater. Until this case came to us for to be classified as a battered woman, the couple must go through the battering cycle
automatic review, appellant had not raised the novel defense of "battered woman at least twice. Any woman may find herself in an abusive relationship with a man
syndrome," for which such evidence may have been relevant. Her theory of self- once. If it occurs a second time, and she remains in the situation, she is defined as a
defense was then the crucial issue before the trial court. As will be discussed shortly, battered woman."25
the legal requisites of self-defense under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to the death of the victim. Hence, his Battered women exhibit common personality traits, such as low self-esteem,
personal character, especially his past behavior, did not constitute vital evidence at traditional beliefs about the home, the family and the female sex role; emotional
the time. dependence upon the dominant male; the tendency to accept responsibility for the
batterer's actions; and false hopes that the relationship will improve.26
Fifth, the trial court surely committed no error in not requiring testimony from
appellant's children. As correctly elucidated by the solicitor general, all criminal More graphically, the battered woman syndrome is characterized by the so-called
actions are prosecuted under the direction and control of the public prosecutor, in "cycle of violence,"27 which has three phases: (1) the tension-building phase; (2) the
whom lies the discretion to determine which witnesses and evidence are necessary to acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.28
present.20 As the former further points out, neither the trial court nor the prosecution
prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify. During the tension-building phase, minor battering occurs -- it could be verbal or
slight physical abuse or another form of hostile behavior. The woman usually tries to
pacify the batterer through a show of kind, nurturing behavior; or by simply staying out
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic of his way. What actually happens is that she allows herself to be abused in ways
to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or that, to her, are comparatively minor. All she wants is to prevent the escalation of the
are attempts to save the life of her unborn child. Any reversible error as to the trial violence exhibited by the batterer. This wish, however, proves to be double-edged,
court's appreciation of these circumstances has little bearing on the final resolution of because her "placatory" and passive behavior legitimizes his belief that he has the
the case. right to abuse her in the first place.

First Legal Issue: However, the techniques adopted by the woman in her effort to placate him are not
usually successful, and the verbal and/or physical abuse worsens. Each partner
Self-Defense and Defense of a Fetus senses the imminent loss of control and the growing tension and despair. Exhausted
from the persistent stress, the battered woman soon withdraws emotionally. But the
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self- more she becomes emotionally unavailable, the more the batterer becomes angry,
defense and/or defense of her unborn child. When the accused admits killing the oppressive and abusive. Often, at some unpredictable point, the violence "spirals out
victim, it is incumbent upon her to prove any claimed justifying circumstance by clear of control" and leads to an acute battering incident.29
and convincing evidence.21 Well-settled is the rule that in criminal cases, self-defense
(and similarly, defense of a stranger or third person) shifts the burden of proof from The acute battering incident is said to be characterized by brutality, destructiveness
the prosecution to the defense.22 and, sometimes, death. The battered woman deems this incident as unpredictable,
10 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
yet also inevitable. During this phase, she has no control; only the batterer may put A In the first year, I lived with him happily but in the subsequent year he was
an end to the violence. Its nature can be as unpredictable as the time of its explosion, cruel to me and a behavior of habitual drinker.
and so are his reasons for ending it. The battered woman usually realizes that she
cannot reason with him, and that resistance would only exacerbate her condition. Q You said that in the subsequent year of your marriage, your husband was
abusive to you and cruel. In what way was this abusive and cruelty
At this stage, she has a sense of detachment from the attack and the terrible pain, manifested to you?
although she may later clearly remember every detail. Her apparent passivity in the
face of acute violence may be rationalized thus: the batterer is almost always much A He always provoke me in everything, he always slap me and sometimes
stronger physically, and she knows from her past painful experience that it is futile to he pinned me down on the bed and sometimes beat me.
fight back. Acute battering incidents are often very savage and out of control, such
that innocent bystanders or intervenors are likely to get hurt.30
Q How many times did this happen?
The final phase of the cycle of violence begins when the acute battering incident
ends. During this tranquil period, the couple experience profound relief. On the one A Several times already.
hand, the batterer may show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it, begging for her Q What did you do when these things happen to you?
forgiveness and promising never to beat her again. On the other hand, the battered
woman also tries to convince herself that the battery will never happen again; that her A I went away to my mother and I ran to my father and we separate each
partner will change for the better; and that this "good, gentle and caring man" is the other.
real person whom she loves.

Q What was the action of Ben Genosa towards you leaving home?
A battered woman usually believes that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation and despair, she feels responsible for his
well-being. The truth, though, is that the chances of his reforming, or seeking or A He is following me, after that he sought after me.
receiving professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional help as a way of Q What will happen when he follow you?
getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.
A He said he changed, he asked for forgiveness and I was convinced and
after that I go to him and he said 'sorry'.
The illusion of absolute interdependency is well-entrenched in a battered woman's
psyche. In this phase, she and her batterer are indeed emotionally dependent on
Q During those times that you were the recipient of such cruelty and abusive
each other -- she for his nurturant behavior, he for her forgiveness. Underneath this
behavior by your husband, were you able to see a doctor?
miserable cycle of "tension, violence and forgiveness," each partner may believe that
it is better to die than to be separated. Neither one may really feel independent,
capable of functioning without the other.31 A Yes, sir.

History of Abuse Q Who are these doctors?

in the Present Case
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
To show the history of violence inflicted upon appellant, the defense presented
several witnesses. She herself described her heart-rending experience as follows: xxx   xxx   xxx

"ATTY. TABUCANON Q You said that you saw a doctor in relation to your injuries?

Q How did you describe your marriage with Ben Genosa? A Yes, sir.

11 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 Q Who inflicted these injuries? Q Will you please read the physical findings together with the dates for the
record.
A Of course my husband.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower
Q You mean Ben Genosa? eyelid and redness of eye. Attending physician: Dr. Lucero;

A Yes, sir. 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area,
pain and contusion (R) breast. Attending physician: Dr. Canora;
xxx   xxx   xxx
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
[Court] /to the witness
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending
physician: Dr. Caing;
Q How frequent was the alleged cruelty that you said?
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending
A Everytime he got drunk. physician: Dr. Canora; and

Q No, from the time that you said the cruelty or the infliction of injury inflicted 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
on your occurred, after your marriage, from that time on, how frequent was Pregnancy. Attending physician: Dr. Canora.
the occurrence?
Q Among the findings, there were two (2) incidents wherein you were the
A Everytime he got drunk. attending physician, is that correct?

Q Is it daily, weekly, monthly or how many times in a month or in a week? A Yes, sir.

A Three times a week. Q Did you actually physical examine the accused?

Q Do you mean three times a week he would beat you? A Yes, sir.

A Not necessarily that he would beat me but sometimes he will just quarrel Q Now, going to your finding no. 3 where you were the one who attended
me." 32 the patient. What do you mean by abrasion furuncle left axilla?

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. A Abrasion is a skin wound usually when it comes in contact with something
Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: rough substance if force is applied.

"Q So, do you have a summary of those six (6) incidents which are found in Q What is meant by furuncle axilla?
the chart of your clinic?
A It is secondary of the light infection over the abrasion.
A Yes, sir.
Q What is meant by pain mastitis secondary to trauma?
Q Who prepared the list of six (6) incidents, Doctor?

A I did.

12 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A So, in this 4th episode of physical injuries there is an inflammation of left Q Being a doctor, can you more engage at what stage of pregnancy was
breast. So, [pain] meaning there is tenderness. When your breast is she?
traumatized, there is tenderness pain.
A Eight (8) months pregnant.
Q So, these are objective physical injuries. Doctor?
Q So in other words, it was an advance stage of pregnancy?
xxx   xxx   xxx
A Yes, sir.
Q Were you able to talk with the patient?
Q What was your November 6, 1995 examination, was it an examination
A Yes, sir. about her pregnancy or for some other findings?

Q What did she tell you? A No, she was admitted for hypertension headache which complicates her
pregnancy.
A As a doctor-patient relationship, we need to know the cause of these
injuries. And she told me that it was done to her by her husband. Q When you said admitted, meaning she was confined?

Q You mean, Ben Genosa? A Yes, sir.

A Yes, sir. Q For how many days?

xxx   xxx   xxx A One day.

ATTY. TABUCANON: Q Where?

Q By the way Doctor, were you able to physical examine the accused A At PHILPHOS Hospital.
sometime in the month of November, 1995 when this incident happened?
xxx   xxx   xxx
A As per record, yes.
Q Lets go back to the clinical history of Marivic Genosa. You said that you
Q What was the date? were able to examine her personally on November 6, 1995 and she was 8
months pregnant.
A It was on November 6, 1995.
What is this all about?
Q So, did you actually see the accused physically?
A Because she has this problem of tension headache secondary to
A Yes, sir. hypertension and I think I have a record here, also the same period from
1989 to 1995, she had a consultation for twenty-three (23) times.
Q On November 6, 1995, will you please tell this Honorable Court, was the
patient pregnant? Q For what?

A Yes, sir. A Tension headache.

13 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 Q Can we say that specially during the latter consultation, that the patient Ecel Arano also testified36 that for a number of times she had been asked by Marivic
had hypertension? to sleep at the Genosa house, because the latter feared that Ben would come home
drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened
A The patient definitely had hypertension. It was refractory to our treatment. about ten o'clock at night, because the couple "were very noisy … and I heard
She does not response when the medication was given to her, because something was broken like a vase." Then Marivic came running into Ecel's room and
tension headache is more or less stress related and emotional in nature. locked the door. Ben showed up by the window grill atop a chair, scaring them with a
knife.
Q What did you deduce of tension headache when you said is emotional in
nature? On the afternoon of November 15, 1995, Marivic again asked her help -- this time to
find Ben -- but they were unable to. They returned to the Genosa home, where they
found him already drunk. Again afraid that he might hurt her, Marivic asked her to
A From what I deduced as part of our physical examination of the patient is sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she
the family history in line of giving the root cause of what is causing this heard the couple start arguing, she decided to leave.
disease. So, from the moment you ask to the patient all comes from the
domestic problem.
On that same night that culminated in the death of Ben Genosa, at least three other
witnesses saw or heard the couple quarreling.37 Marivic relates in detail the following
Q You mean problem in her household? backdrop of the fateful night when life was snuffed out of him, showing in the process
a vivid picture of his cruelty towards her:
A Probably.
"ATTY. TABUCANON:
Q Can family trouble cause elevation of blood pressure, Doctor?
Q Please tell this Court, can you recall the incident in November 15, 1995 in
A Yes, if it is emotionally related and stressful it can cause increases in the evening?
hypertension which is unfortunately does not response to the medication.
A Whole morning and in the afternoon, I was in the office working then after
Q In November 6, 1995, the date of the incident, did you take the blood office hours, I boarded the service bus and went to Bilwang. When I reached
pressure of the accused? Bilwang, I immediately asked my son, where was his father, then my second
child said, 'he was not home yet'. I was worried because that was payday, I
A On November 6, 1995 consultation, the blood pressure was 180/120. was anticipating that he was gambling. So while waiting for him, my eldest
son arrived from school, I prepared dinner for my children.

Q Is this considered hypertension?

Q This is evening of November 15, 1995?

A Yes, sir, severe.

A Yes, sir.

Q Considering that she was 8 months pregnant, you mean this is dangerous
level of blood pressure? Q What time did Ben Genosa arrive?

A It was dangerous to the child or to the fetus." 34 A When he arrived, I was not there, I was in Isabel looking for him.

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Q So when he arrived you were in Isabel looking for him?
Isabel, Leyte, testified that he had seen the couple quarreling several times; and that
on some occasions Marivic would run to him with bruises, confiding that the injuries A Yes, sir.
were inflicted upon her by Ben.35
Q Did you come back to your house?

14 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A Yes, sir. Q What's the name of the baby you were carrying at that time?

Q By the way, where was your conjugal residence situated this time? A Marie Bianca.

A Bilwang. Q What time were you able to meet personally your husband?

Q Is this your house or you are renting? A Yes, sir.

A Renting. Q What time?

Q What time were you able to come back in your residence at Bilwang? A When I arrived home, he was there already in his usual behavior.

A I went back around almost 8:00 o'clock. Q Will you tell this Court what was his disposition?

Q What happened when you arrived in your residence? A He was drunk again, he was yelling in his usual unruly behavior.

A When I arrived home with my cousin Ecel whom I requested to sleep with Q What was he yelling all about?
me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with A His usual attitude when he got drunk.
me, but she resisted because she had fears that the same thing will happen
again last year.
Q You said that when you arrived, he was drunk and yelling at you? What
else did he do if any?
Q Who was this cousin of yours who you requested to sleep with you?
A He is nagging at me for following him and he dared me to quarrel him.
A Ecel Araño, the one who testified.
Q What was the cause of his nagging or quarreling at you if you know?
Q Did Ecel sleep with you in your house on that evening?
A He was angry at me because I was following x x x him, looking for him. I
A No, because she expressed fears, she said her father would not allow her was just worried he might be overly drunk and he would beat me again.
because of Ben.
Q You said that he was yelling at you, what else, did he do to you if any?
Q During this period November 15, 1995, were you pregnant?
A He was nagging at me at that time and I just ignore him because I want to
A Yes, 8 months. avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore him of his provocation and he switch off
Q How advance was your pregnancy? the light and I said to him, 'why did you switch off the light when the children
were there.' At that time I was also attending to my children who were doing
A Eight (8) months. their assignments. He was angry with me for not answering his challenge, so
he went to the kitchen and [got] a bolo and cut the antenna wire to stop me
from watching television.
Q Was the baby subsequently born?
Q What did he do with the bolo?
A Yes, sir.

15 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A He cut the antenna wire to keep me from watching T.V. A I wanted him to leave us.

Q What else happened after he cut the wire? Q During this time, where were your children, what were their reactions?

A He switch off the light and the children were shouting because they were A After a couple of hours, he went back again and he got angry with me for
scared and he was already holding the bolo. packing his clothes, then he dragged me again of the bedroom holding my
neck.
Q How do you described this bolo?
Q You said that when Ben came back to your house, he dragged you? How
A 1 1/2 feet. did he drag you?

Q What was the bolo used for usually? COURT INTERPRETER:

A For chopping meat. The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)
Q You said the children were scared, what else happened as Ben was
carrying that bolo? A And he dragged me towards the door backward.

A He was about to attack me so I run to the room. ATTY. TABUCANON:

Q What do you mean that he was about to attack you? Q Where did he bring you?

A When I attempt to run he held my hands and he whirled me and I fell to the A Outside the bedroom and he wanted to get something and then he kept on
bedside. shouting at me that 'you might as well be killed so there will be nobody to
nag me.'
Q So when he whirled you, what happened to you?
Q So you said that he dragged you towards the drawer?
A I screamed for help and then he left.
A Yes, sir.
Q You said earlier that he whirled you and you fell on the bedside?
Q What is there in the drawer?
A Yes, sir.
A I was aware that it was a gun.
Q You screamed for help and he left, do you know where he was going?
COURT INTERPRETER:
A Outside perhaps to drink more.
(At this juncture the witness started crying).
Q When he left what did you do in that particular time?
ATTY. TABUCANON:
A I packed all his clothes.
Q Were you actually brought to the drawer?
Q What was your reason in packing his clothes?
A Yes, sir.
16 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Q What happened when you were brought to that drawer? A It's a cutter.

A He dragged me towards the drawer and he was about to open the drawer Q How do you describe the blade, is it sharp both edges?
but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he A Yes, because he once used it to me.
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I Q How did he do it?
smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that A He wanted to cut my throat.
very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit. Q With the same blade?

COURT INTERPRETER: A Yes, sir, that was the object used when he intimidate me." 38

(The witness at this juncture is crying intensely). In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert
witness to assist it in understanding the psyche of a battered person. She had met
xxx   xxx   xxx with Marivic Genosa for five sessions totaling about seventeen hours. Based on their
talks, the former briefly related the latter's ordeal to the court a quo as follows:
ATTY. TABUCANON:
"Q: What can you say, that you found Marivic as a battered wife? Could you
Q Talking of drawer, is this drawer outside your room? in layman's term describe to this Court what her life was like as said to you?

A Outside. A: What I remember happened then was it was more than ten years, that
she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The
Q In what part of the house? husband had a very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices,
A Dining. going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical
Q Where were the children during that time? abuse. She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very
A My children were already asleep. angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening day
Q You mean they were inside the room? in and day out." 39

A Yes, sir. In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly
or unwittingly put forward, additional supporting evidence as shown below:
Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like? "Q In your first encounter with the appellant in this case in 1999, where you
talked to her about three hours, what was the most relevant information did
A Three (3) inches long and 1/2 inch wide. you gather?

Q Is it a flexible blade?

17 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A The most relevant information was the tragedy that happened. The most Q Being an expert witness, our jurisprudence is not complete on saying this
important information were escalating abuses that she had experienced matter. I think that is the first time that we have this in the Philippines, what is
during her marital life. your opinion?

Q Before you met her in 1999 for three hours, we presume that you already A Sir, my opinion is, she is really a battered wife and in this kind happened, it
knew of the facts of the case or at least you have substantial knowledge of was really a self-defense. I also believe that there had been provocation and
the facts of the case? I also believe that she became a disordered person. She had to suffer
anxiety reaction because of all the battering that happened and so she
A I believe I had an idea of the case, but I do not know whether I can became an abnormal person who had lost she's not during the time and that
consider them as substantial. is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.
xxx   xxx   xxx
Q I do believe that she is a battered wife. Was she extremely battered?
Q Did you gather an information from Marivic that on the side of her husband
they were fond of battering their wives? A Sir, it is an extreme form of battering. Yes.40

A I also heard that from her? Parenthetically, the credibility of appellant was demonstrated as follows:

Q You heard that from her? "Q And you also said that you administered [the] objective personality test,
what x x x [is this] all about?
A Yes, sir.
A The objective personality test is the Millon Clinical Multiaxial Inventory.
The purpose of that test is to find out about the lying prone[ne]ss of the
Q Did you ask for a complete example who are the relatives of her husband person.
that were fond of battering their wives?
Q What do you mean by that?
A What I remember that there were brothers of her husband who are also
battering their wives.
A Meaning, am I dealing with a client who is telling me the truth, or is she
someone who can exaggerate or x x x [will] tell a lie[?]
Q Did she not inform you that there was an instance that she stayed in a
hotel in Ormoc where her husband followed her and battered [her] several
times in that room? Q And what did you discover on the basis of this objective personality test?

A She told me about that. A She was a person who passed the honesty test. Meaning she is a person
that I can trust. That the data that I'm gathering from her are the truth."41
Q Did she inform you in what hotel in Ormoc?
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on
his Psychiatric Report,42 which was based on his interview and examination of Marivic
A Sir, I could not remember but I was told that she was battered in that room. Genosa. The Report said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and happy -- until "Ben
Q Several times in that room? started to be attracted to other girls and was also enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben was often joining his barkada in drinking
A Yes, sir. What I remember was that there is no problem about being sprees."
battered, it really happened.
The drinking sprees of Ben greatly changed the attitude he showed toward his family,
particularly to his wife. The Report continued: "At first, it was verbal and emotional
18 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
abuses but as time passed, he became physically abusive. Marivic claimed that the Corroborating these research findings, Dra. Dayan said that "the battered woman
viciousness of her husband was progressive every time he got drunk. It was a painful usually has a very low opinion of herself. She has x x x self-defeating and self-
ordeal Marivic had to anticipate whenever she suspected that her husband went for a sacrificing characteristics. x x x [W]hen the violence would happen, they usually think
drinking [spree]. They had been married for twelve years[;] and practically more than that they provoke[d] it, that they were the one[s] who precipitated the violence[; that]
eight years, she was battered and maltreated relentlessly and mercilessly by her they provoke[d] their spouse to be physically, verbally and even sexually abusive to
husband whenever he was drunk." them."48

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further According to Dra. Dayan, there are a lot of reasons why a battered woman does not
quoting from the Report, "[s]he also sought the advice and help of close relatives and readily leave an abusive partner -- poverty, self-blame and guilt arising from the
well-meaning friends in spite of her feeling ashamed of what was happening to her. latter's belief that she provoked the violence, that she has an obligation to keep the
But incessant battering became more and more frequent and more severe. x x x."43 family intact at all cost for the sake of their children, and that she is the only hope for
her spouse to change.49
From the totality of evidence presented, there is indeed no doubt in the Court's mind
that Appellant Marivic Genosa was a severely abused person. The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having evaluated
Effect of Battery on Appellant "probably ten to twenty thousand" violent family disputes within the Armed Forces of
the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in
Because of the recurring cycles of violence experienced by the abused woman, her Quezon City. As such, he got involved in about forty (40) cases of severe domestic
state of mind metamorphoses. In determining her state of mind, we cannot rely violence, in which the physical abuse on the woman would sometimes even lead to
merely on the judgment of an ordinary, reasonable person who is evaluating the her loss of consciousness.50
events immediately surrounding the incident. A Canadian court has aptly pointed out
that expert evidence on the psychological effect of battering on wives and common
law partners are both relevant and necessary. "How can the mental state of the Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in
appellant be appreciated without it? The average member of the public may ask: Why posttraumatic stress disorder, a form of "anxiety neurosis or neurologic
would a woman put up with this kind of treatment? Why should she continue to live anxietism."51 After being repeatedly and severely abused, battered persons "may
with such a man? How could she love a partner who beat her to the point of requiring believe that they are essentially helpless, lacking power to change their situation. x x
hospitalization? We would expect the woman to pack her bags and go. Where is her x [A]cute battering incidents can have the effect of stimulating the development of
self-respect? Why does she not cut loose and make a new life for herself? Such is the coping responses to the trauma at the expense of the victim's ability to muster an
reaction of the average person confronted with the so-called 'battered wife active response to try to escape further trauma. Furthermore, x x x the victim ceases
syndrome.'"44 to believe that anything she can do will have a predictable positive effect."52

To understand the syndrome properly, however, one's viewpoint should not be drawn A study53 conducted by Martin Seligman, a psychologist at the University of
from that of an ordinary, reasonable person. What goes on in the mind of a person Pennsylvania, found that "even if a person has control over a situation, but believes
who has been subjected to repeated, severe beatings may not be consistent with -- that she does not, she will be more likely to respond to that situation with coping
nay, comprehensible to -- those who have not been through a similar experience. responses rather than trying to escape." He said that it was the cognitive aspect -- the
Expert opinion is essential to clarify and refute common myths and misconceptions individual's thoughts -- that proved all-important. He referred to this phenomenon as
about battered women.45 "learned helplessness." "[T]he truth or facts of a situation turn out to be less important
than the individual's set of beliefs or perceptions concerning the situation. Battered
women don't attempt to leave the battering situation, even when it may seem to
The theory of BWS formulated by Lenore Walker, as well as her research on outsiders that escape is possible, because they cannot predict their own safety; they
domestic violence, has had a significant impact in the United States and the United believe that nothing they or anyone else does will alter their terrible circumstances."54
Kingdom on the treatment and prosecution of cases, in which a battered woman is
charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the Thus, just as the battered woman believes that she is somehow responsible for the
latter's "ability to act decisively in her own interests, making her feel trapped in the violent behavior of her partner, she also believes that he is capable of killing her, and
relationship with no means of escape."46 In her years of research, Dr. Walker found that there is no escape.55 Battered women feel unsafe, suffer from pervasive anxiety,
that "the abuse often escalates at the point of separation and battered women are in and usually fail to leave the relationship.56 Unless a shelter is available, she stays with
greater danger of dying then."47
19 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
her husband, not only because she typically lacks a means of self-support, but also We emphasize that in criminal cases, all the elements of a modifying circumstance
because she fears that if she leaves she would be found and hurt even more.57 must be proven in order to be appreciated. To repeat, the records lack supporting
evidence that would establish all the essentials of the battered woman syndrome as
In the instant case, we meticulously scoured the records for specific evidence manifested specifically in the case of the Genosas.
establishing that appellant, due to the repeated abuse she had suffered from her
spouse over a long period of time, became afflicted with the battered woman BWS as Self-Defense
syndrome. We, however, failed to find sufficient evidence that would support such a
conclusion. More specifically, we failed to find ample evidence that would confirm the In any event, the existence of the syndrome in a relationship does not in itself
presence of the essential characteristics of BWS. establish the legal right of the woman to kill her abusive partner. Evidence must still
be considered in the context of self-defense.59
The defense fell short of proving all three phases of the "cycle of violence"
supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt From the expert opinions discussed earlier, the Court reckons further that crucial to
there were acute battering incidents. In relating to the court a quo how the fatal the BWS defense is the state of mind of the battered woman at the time of the
incident that led to the death of Ben started, Marivic perfectly described the tension- offense60 -- she must have actually feared imminent harm from her batterer and
building phase of the cycle. She was able to explain in adequate detail the typical honestly believed in the need to kill him in order to save her life.
characteristics of this stage. However, that single incident does not prove the
existence of the syndrome. In other words, she failed to prove that in at least another
battering episode in the past, she had gone through a similar pattern. Settled in our jurisprudence, however, is the rule that the one who resorts to self-
defense must face a real threat on one's life; and the peril sought to be avoided must
be imminent and actual, not merely imaginary.61 Thus, the Revised Penal Code
How did the tension between the partners usually arise or build up prior to acute provides the following requisites and effect of self-defense:62
battering? How did Marivic normally respond to Ben's relatively minor abuses? What
means did she employ to try to prevent the situation from developing into the next
(more violent) stage? "Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:
Neither did appellant proffer sufficient evidence in regard to the third phase of the
cycle. She simply mentioned that she would usually run away to her mother's or "1. Anyone who acts in defense of his person or rights, provided that the
father's house;58 that Ben would seek her out, ask for her forgiveness and promise to following circumstances concur;
change; and that believing his words, she would return to their common abode.
First. Unlawful aggression;
Did she ever feel that she provoked the violent incidents between her and her
spouse? Did she believe that she was the only hope for Ben to reform? And that she Second. Reasonable necessity of the means employed to prevent or repel it;
was the sole support of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in their relationship? Third. Lack of sufficient provocation on the part of the person defending
Did both of them regard death as preferable to separation? himself."

In sum, the defense failed to elicit from appellant herself her factual experiences and Unlawful aggression is the most essential element of self-defense.63 It presupposes
thoughts that would clearly and fully demonstrate the essential characteristics of the actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life
syndrome. or safety of a person.64 In the present case, however, according to the testimony of
Marivic herself, there was a sufficient time interval between the unlawful aggression of
The Court appreciates the ratiocinations given by the expert witnesses for the Ben and her fatal attack upon him. She had already been able to withdraw from his
defense. Indeed, they were able to explain fully, albeit merely theoretically and violent behavior and escape to their children's bedroom. During that time, he
scientifically, how the personality of the battered woman usually evolved or apparently ceased his attack and went to bed. The reality or even the imminence of
deteriorated as a result of repeated and severe beatings inflicted upon her by her the danger he posed had ended altogether. He was no longer in a position that
partner or spouse. They corroborated each other's testimonies, which were culled presented an actual threat on her life or safety.
from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to
them -- if at all -- based on which they concluded that she had BWS.
20 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Had Ben still been awaiting Marivic when she came out of their children's bedroom -- the prolonged commission of the battering and the psychological and
and based on past violent incidents, there was a great probability that he would still constitutional stamina of the victim and another one is the public and social
have pursued her and inflicted graver harm -- then, the imminence of the real threat support available to the victim. If nobody is interceding, the more she will go
upon her life would not have ceased yet. Where the brutalized person is already to that disorder....
suffering from BWS, further evidence of actual physical assault at the time of the
killing is not required. Incidents of domestic battery usually have a predictable pattern. xxx   xxx   xxx
To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'"65 Still,
impending danger (based on the conduct of the victim in previous battering episodes) Q You referred a while ago to severity. What are the qualifications in terms
prior to the defendant's use of deadly force must be shown. Threatening behavior or of severity of the postraumatic stress disorder, Dr. Pajarillo?
communication can satisfy the required imminence of danger. 66 Considering such
circumstances and the existence of BWS, self-defense may be appreciated. A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of the head like
We reiterate the principle that aggression, if not continuous, does not warrant self- that. It is usually the very very severe stimulus that precipitate this
defense.67 In the absence of such aggression, there can be no self-defense -- post[t]raumatic stress disorder. Others are suffocating the victim like holding
complete or incomplete -- on the part of the victim.68 Thus, Marivic's killing of Ben was a pillow on the face, strangulating the individual, suffocating the individual,
not completely justified under the circumstances. and boxing the individual. In this situation therefore, the victim is heightened
to painful stimulus, like for example she is pregnant, she is very susceptible
because the woman will not only protect herself, she is also to protect the
Mitigating Circumstances Present fetus. So the anxiety is heightened to the end [sic] degree.

In any event, all is not lost for appellant. While she did not raise any other modifying Q But in terms of the gravity of the disorder, Mr. Witness, how do you
circumstances that would alter her penalty, we deem it proper to evaluate and classify?
appreciate in her favor circumstances that mitigate her criminal liability. It is a
hornbook doctrine that an appeal in a criminal case opens it wholly for review on any
issue, including that which has not been raised by the parties.69 A We classify the disorder as [acute], or chronic or delayed or [a]typical.

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Q Can you please describe this pre[-]classification you called delayed or
Psychological Evaluation Report dated November 29, 2000, opined as follows: [atypical]?

"This is a classic case of a Battered Woman Syndrome. The repeated A The acute is the one that usually require only one battering and the
battering Marivic experienced with her husband constitutes a form of individual will manifest now a severe emotional instability, higher irritability
[cumulative] provocation which broke down her psychological resistance and remorse, restlessness, and fear and probably in most [acute] cases the first
natural self-control. It is very clear that she developed heightened sensitivity thing will be happened to the individual will be thinking of suicide.
to sight of impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of psychological Q And in chronic cases, Mr. Witness?
paralysis which can only be ended by an act of violence on her part." 70
A The chronic cases is this repetitious battering, repetitious maltreatment,
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of any prolonged, it is longer than six (6) months. The [acute] is only the first
"repetitious pain taking, repetitious battering, [and] repetitious maltreatment" as well day to six (6) months. After this six (6) months you become chronic. It is
as the severity and the prolonged administration of the battering is posttraumatic stated in the book specifically that after six (6) months is chronic. The
stress disorder.71 Expounding thereon, he said: [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic
"Q What causes the trauma, Mr. Witness? personality of these cases of post[t]raumatic stress disorder." 72

A What causes the trauma is probably the repetitious battering. Second, the Answering the questions propounded by the trial judge, the expert witness clarified
severity of the battering. Third, the prolonged administration of battering or further:

21 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 "Q But just the same[,] neurosis especially on battered woman syndrome x x psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim
x affects x x x his or her mental capacity? relives the beating or trauma as if it were real, although she is not actually being
beaten at the time. She cannot control "re-experiencing the whole thing, the most
A Yes, your Honor. vicious and the trauma that she suffered." She thinks "of nothing but the suffering."
Such reliving which is beyond the control of a person under similar circumstances,
must have been what Marivic experienced during the brief time interval and prevented
Q As you were saying[,] it x x x obfuscated her rationality? her from recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.
A Of course obfuscated."73
It should be clarified that these two circumstances -- psychological paralysis as well
In sum, the cyclical nature and the severity of the violence inflicted upon appellant as passion and obfuscation -- did not arise from the same set of facts.
resulted in "cumulative provocation which broke down her psychological resistance
and natural self-control," "psychological paralysis," and "difficulty in concentrating or On the one hand, the first circumstance arose from the cyclical nature and the
impairment of memory." severity of the battery inflicted by the batterer-spouse upon appellant. That is, the
repeated beatings over a period of time resulted in her psychological paralysis, which
Based on the explanations of the expert witnesses, such manifestations were was analogous to an illness diminishing the exercise of her will power without
analogous to an illness that diminished the exercise by appellant of her will power depriving her of consciousness of her acts.
without, however, depriving her of consciousness of her acts. There was, thus, a
resulting diminution of her freedom of action, intelligence or intent. Pursuant to The second circumstance, on the other hand, resulted from the violent aggression he
paragraphs 974 and 1075 of Article 13 of the Revised Penal Code, this circumstance had inflicted on her prior to the killing. That the incident occurred when she was eight
should be taken in her favor and considered as a mitigating factor. 76 months pregnant with their child was deemed by her as an attempt not only on her
life, but likewise on that of their unborn child. Such perception naturally produced
In addition, we also find in favor of appellant the extenuating circumstance of having passion and obfuscation on her part.
acted upon an impulse so powerful as to have naturally produced passion and
obfuscation. It has been held that this state of mind is present when a crime is Second Legal Issue:
committed as a result of an uncontrollable burst of passion provoked by prior unjust or
improper acts or by a legitimate stimulus so powerful as to overcome reason. 77 To
appreciate this circumstance, the following requisites should concur: (1) there is an Treachery
act, both unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable length of time, There is treachery when one commits any of the crimes against persons by
during which the accused might recover her normal equanimity.78 employing means, methods or forms in the execution thereof without risk to oneself
arising from the defense that the offended party might make. 81 In order to qualify an
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, act as treacherous, the circumstances invoked must be proven as indubitably as the
preceded his being killed by Marivic. He had further threatened to kill her while killing itself; they cannot be deduced from mere inferences, or conjectures, which
dragging her by the neck towards a cabinet in which he had kept a gun. It should also have no place in the appreciation of evidence. 82 Because of the gravity of the resulting
be recalled that she was eight months pregnant at the time. The attempt on her life offense, treachery must be proved as conclusively as the killing itself.83
was likewise on that of her fetus.79 His abusive and violent acts, an aggression which
was directed at the lives of both Marivic and her unborn child, naturally produced Ruling that treachery was present in the instant case, the trial court imposed the
passion and obfuscation overcoming her reason. Even though she was able to retreat penalty of death upon appellant. It inferred this qualifying circumstances merely from
to a separate room, her emotional and mental state continued. According to her, she the fact that the lifeless body of Ben had been found lying in bed with an "open,
felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she depressed, circular" fracture located at the back of his head. As to exactly how and
and her baby were about to die. In a fit of indignation, she pried open the cabinet when he had been fatally attacked, however, the prosecution failed to establish
drawer where Ben kept a gun, then she took the weapon and used it to shoot him. indubitably. Only the following testimony of appellant leads us to the events
surrounding his death:
The confluence of these events brings us to the conclusion that there was no
considerable period of time within which Marivic could have recovered her normal "Q You said that when Ben came back to your house, he dragged you? How
equanimity. Helpful is Dr. Pajarillo's testimony80 that with "neurotic anxiety" -- a did he drag you?

22 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

COURT: very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck) COURT INTERPRETER

A And he dragged me towards the door backward. (The witness at this juncture is crying intensely).

ATTY. TABUCANON: xxx   xxx   xxx

Q Where did he bring you? Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like?
A Outside the bedroom and he wanted to get something and then he kept on
shouting at me that 'you might as well be killed so there will be nobody to A Three (3) inches long and ½ inch wide.
nag me'
Q It is a flexible blade?
Q So you said that he dragged you towards the drawer?
A It's a cutter.
A Yes, sir.
Q How do you describe the blade, is it sharp both edges?
Q What is there in the drawer?
A Yes, because he once used it to me.
A I was aware that it was a gun.
Q How did he do it?
COURT INTERPRETER
A He wanted to cut my throat.
(At this juncture the witness started crying)
Q With the same blade?
ATTY. TABUCANON:
A Yes, sir, that was the object used when he intimidate me.
Q Were you actually brought to the drawer?
xxx   xxx   xxx
A Yes, sir.
ATTY. TABUCANON:
Q What happened when you were brought to that drawer?
Q You said that this blade fell from his grip, is it correct?
A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled his A Yes, because I smashed him.
wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about Q What happened?
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very moment A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I
everything on my mind was to pity on myself, then the feeling I had on that smashed him and I ran to the other room.

23 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 Q What else happened? she committed the crime in order to ensure its execution, this Court resolves the
doubt in her favor.87
A When I was in the other room, I felt the same thing like what happened
before when I was admitted in PHILPHOS Clinic, I was about to vomit. I Proper Penalty
know my blood pressure was raised. I was frightened I was about to die
because of my blood pressure. The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
COURT INTERPRETER: aggravating circumstance have been found to have attended the commission of the
offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of
(Upon the answer of the witness getting the pipe and smashed him, paragraph 588 of the same Code.89 The penalty of reclusion temporal in its medium
the witness at the same time pointed at the back of her neck or the period is imposable, considering that two mitigating circumstances are to be taken
nape). into account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense. 90 Under
the Indeterminate Sentence Law, the minimum of the penalty shall be within the
ATTY. TABUCANON: range of that which is next lower in degree -- prision mayor -- and the maximum shall
be within the range of the medium period of reclusion temporal.
Q You said you went to the room, what else happened?
Considering all the circumstances of the instant case, we deem it just and proper to
A Considering all the physical sufferings that I've been through with him, I impose the penalty of prision mayor in its minimum period, or six (6) years and one
took pity on myself and I felt I was about to die also because of my blood (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years
pressure and the baby, so I got that gun and I shot him. 8 months and 1 day as maximum. Noting that appellant has already served the
minimum period, she may now apply for and be released from detention on parole.91
COURT
Epilogue
/to Atty. Tabucanon
Being a novel concept in our jurisprudence, the battered woman syndrome was
Q You shot him? neither easy nor simple to analyze and recognize vis-à-vis the given set of facts in the
present case. The Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which decisions are made --
A Yes, I distorted the drawer."84 on the basis of existing law and jurisprudence applicable to the proven facts. To give
a just and proper resolution of the case, it endeavored to take a good look at studies
The above testimony is insufficient to establish the presence of treachery. There is no conducted here and abroad in order to understand the intricacies of the syndrome
showing of the victim's position relative to appellant's at the time of the shooting. and the distinct personality of the chronically abused person. Certainly, the Court has
Besides, equally axiomatic is the rule that when a killing is preceded by an argument learned much. And definitely, the solicitor general and appellant's counsel, Atty.
or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because Katrina Legarda, have helped it in such learning process.
the deceased may be said to have been forewarned and to have anticipated
aggression from the assailant.85 While our hearts empathize with recurrently battered persons, we can only work
within the limits of law, jurisprudence and given facts. We cannot make or invent
Moreover, in order to appreciate alevosia, the method of assault adopted by the them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom,
aggressor must have been consciously and deliberately chosen for the specific may do so.
purpose of accomplishing the unlawful act without risk from any defense that might be
put up by the party attacked.86 There is no showing, though, that the present appellant The Court, however, is not discounting the possibility of self-defense arising from the
intentionally chose a specific means of successfully attacking her husband without battered woman syndrome. We now sum up our main points. First, each of the
any risk to herself from any retaliatory act that he might make. To the contrary, it phases of the cycle of violence must be proven to have characterized at least two
appears that the thought of using the gun occurred to her only at about the same battering episodes between the appellant and her intimate partner. Second, the final
moment when she decided to kill her batterer-spouse. In the absence of any acute battering episode preceding the killing of the batterer must have produced in
convincing proof that she consciously and deliberately employed the method by which the battered person's mind an actual fear of an imminent harm from her batterer and
24 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
an honest belief that she needed to use force in order to save her life. Third, at the revolver which was tucked in his holster. In the midst of the drinking spree, Randy
time of the killing, the batterer must have posed probable -- not necessarily immediate Sabang suddenly and unexpectedly appeared before the group. His appearance
and actual -- grave harm to the accused, based on the history of violence perpetrated triggered a negative reaction from Butad, who then uttered the words "I will shoot you"
by the former against the latter. Taken altogether, these circumstances could satisfy to Randy Sabang.2
the requisites of self-defense. Under the existing facts of the present case, however,
not all of these elements were duly established. Certain circumstances attaching to this evident threat are disputed, as are the events
that consequently followed. What is certain is that shortly afterwards, Butad lay dead,
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is having sustained four (4) gunshot wounds from his own revolver. Petitioner appears
hereby AFFIRMED. However, there being two (2) mitigating circumstances and no to have fled but voluntarily surrendered thereafter, turning over the revolver as he
aggravating circumstance attending her commission of the offense, her penalty surrendered.3
is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14
years, 8 months and 1 day of reclusion temporal as maximum. Photographs of Butad as he lay dead on the scene were presented in evidence, 4 as
was the official report on his autopsy, prepared by the City Health Office of Ormoc
Inasmuch as appellant has been detained for more than the minimum penalty hereby City. The autopsy report5 indicated the following findings:
imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is eligible GENERAL SURVEY:
for parole, unless she is being held for some other lawful cause. Costs de oficio.
Examined a fairly nourished/fairly developed male cadaver with approximate height of
SO ORDERED. 165 cm & weight of 65 kg in state of rigor mortis.

G.R. No. 168818             March 9, 2007 FINDINGS:

NILO SABANG, Petitioner, 1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline, right,
vs. along 3rd intercostal space anterior axillary line penetrating thoracic cavity
THE PEOPLE OF THE PHILIPPINES, Respondent. lacerating upper lobe of right lung.

DECISION 2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line, right,
penetrating thoracic cavity lacerating upper lobe of right lung.
TINGA, J.:
3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm injuring
On January 17, 1997, in the midst of a drinking spree on the eve of the fiesta in skin & muscles.
Liloan, Ormoc City, an intoxicated Nicanor Butad uttered the ominous words "I will
shoot you" to Randy Sabang, to the horror of young Sabang's father, Nilo, and the 4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing spine of
other onlookers. Within moments, Butad himself lay dead from four gunshot wounds 8th thoracic vertebra.
on his body. Nilo Sabang, petitioner herein, who was charged with and later convicted
for the homicide, admits to the killing of Butad, but claims
CAUSE OF DEATH:
that the shooting was accidental and done as a means of defending his son. An array
of witnesses for the prosecution and the defense provides a competing set of Hypovolemia 2° to multiple bullet wound.
particulars as to the shooting. Ultimately, the prosecution’s version, supported by the
physical evidence, stands out as the truth. During arraignment, petitioner pleaded innocence, but during the presentation of the
evidence for the defense, he claimed to have acted in defense of a relative. Petitioner
This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and Butad and four (4) other witnesses testified for the defense. The following facts were sought
were having drinks together with spouses Cruz and Andresa Villamor outside the to be established by petitioner:
store of Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc City.1 Butad, a
civilian agent with the Philippine National Police, was then armed with a .38-caliber
25 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
By the time Butad had joined what was to be his last drinking spree, he was already in who conducted the post mortem examination of Butad’s body, to the effect that the
a belligerent mood. Earlier that afternoon, he absence of powder burns indicates that the gunshots were fired at a distance of more
than 10 inches from the victim’s body and not close range as claimed by petitioner.20
had been chasing after Ramil Perez when the latter demanded payment for a bet
Butad had lost over a cockfight.6 The Court of Appeals affirmed petitioner’s conviction in a Decision 21 dated August 16,
2004 and denied reconsideration in a Resolution22 dated July 6, 2005.
The chase was witnessed by Celso Pepito, who would testify for the defense.7 As to
the shooting itself, testifying for the defense were petitioner himself, the storekeeper In this Petition,23 petitioner prays for his acquittal contending that he acted in defense
Sombilon, and an eyewitness, Laurito Caparoso, who was situated right across the of his son, a justifying circumstance under Art. 1124 of the Revised Penal Code. He
road when the shooting occurred. claims that Butad’s act of aiming a gun at his son while uttering the words "I will shoot
you" was an aggression of the most imminent kind which prompted him to try to
Sombilon testified that when Butad told Randy Sabang, "I will shoot you," the wrestle the gun from Butad leading to the accidental firing of the fatal shots.
deceased already had his revolver aimed at Randy. 8 At this point, Andresa Villamor, a
niece of the deceased, told Butad, "Please don't[,] tiyo, he's the son of Petitioner theorizes that the fact that Butad was then fully clothed could have
Nilo."9 Petitioner and Caparoso also testified that at that time, Butad had his revolver accounted for the absence of powder burns on Butad’s body. He disputes the trial
pointed at Randy.10 Petitioner claimed that he then grabbed the arm of Butad, court’s finding that the wounds would have looked oblique had the shots been fired
attempting to twist it toward his body and away from his son. As they were grappling during a struggle, claiming that round entrance wounds could likewise be produced in
and the revolver was pointed towards the body of near contact fire.

Butad, petitioner claimed he heard gunshots, and only after the shots were fired was He further avers that Payud was not really an eyewitness to the event, pointing to the
he able to "take the gun" from Butad. 11 Petitioner’s account is substantially testimony of Benjamin Mahusay that he and Payud were already out of Sitio Landing
corroborated by Caparoso.12 and were heading home when they heard the gunshots. Likewise, Andresa Villamor’s
testimony is allegedly confined to seeing Butad sprawled on the ground.
This version of the shooting, however, stands in sharp contrast to that presented by
the prosecution. The Office of the Solicitor General insists on petitioner’s conviction but asks that the
award of moral damages be reduced from ₱100,000.00 to ₱50,000.00.25
Natividad Payud, an eyewitness to the incident, testified that while the group of the
deceased Butad, petitioner, and the spouses Cruz and Andresa Villamor was having We shall first resolve the question of whether petitioner’s insistence on the justifying
a drinking spree, Randy suddenly entered the scene. Butad, appearing surprised, circumstance of defense of relative deserves merit.
thrust a glass of Tanduay near Randy’s mouth and uttered the words, "I will shoot
you." Payud is certain that at this point, Butad was not holding any gun.13 Andresa In order to successfully claim that he acted in defense of a relative, the accused must
Villamor, another eyewitness to the incident, confirmed Payud’s testimony that Butad prove the concurrence of the following requisites: (1) unlawful aggression on the part
was holding a glass and not a gun when he uttered those words.14 of the person killed or injured; (2) reasonable necessity of the means employed to
prevent or repel the unlawful aggression; and (3) the person defending the relative
Petitioner reacted to Butad’s statement saying, "Just try to shoot my child because I’ll had no part in provoking the assailant, should any provocation been given by the
never fight for him because he is a spoiled brat."15 Andresa Villamor then chided relative attacked.26 Unlawful aggression is a
Butad and said, "Do not say that tiyo[,] because it’s [sic] the son of Nilo Sabang."16
primary and indispensable requisite without which defense of relative, whether
Unexpectedly, a person appeared on the scene and punched Butad causing the latter complete or otherwise, cannot be validly invoked.27
to fall down lying partially on his back. Petitioner, who was then sitting across Butad,
stood up and pulled the gun tucked in Butad’s waist. He pointed the gun at Butad and It is well-settled in this jurisdiction that once an accused has admitted that he inflicted
fired a shot at the latter’s chest.17 Payud and Andresa Villamor both saw petitioner fire the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal
two (2) more shots near Butad’s chest.18 liability, to prove the justifying circumstance claimed by him with clear, satisfactory
and convincing evidence. He cannot rely on the weakness of the prosecution but on
In a Judgment19 dated November 22, 1999, the trial court convicted petitioner the strength of his own evidence, "for even if the evidence of the prosecution were
principally on the strength of the testimony of Dr. Edilberto P. Calipayan, the physician weak it could not be disbelieved after the accused himself had admitted the killing."
26 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Thus, petitioner must establish with clear and convincing evidence that the killing was Powder burns is a term commonly used by physicians whenever there is blackening
justified, and that he incurred no criminal liability therefor.28 of the margin at the entrance of the gunshot wound. The blackening is due to smoke
smudging, gunpowder tattooing and, to a certain extent, burning of the wound
Unlawful aggression must be clearly established by the evidence. In this case, there margin.36 As found by the medico-legal officer in this case, Butad’s body did not have
is a divergence in the testimonies of the prosecution and defense witnesses as to any powder burns. In response to the court’s queries, Dr. Calipayan testified:
whether Butad aimed a gun at petitioner’s son as he uttered the words "I will shoot
you." With this conflict emerges the question of whether petitioner sensed an COURT’S QUESTIONS
imminent threat to his son’s life. Payud unequivocally testified that petitioner even
dismissed Butad’s utterance saying, "Just try to shoot my child because I’ll never fight Q Being an expert, is it a scientific fact that every gun burst within ten (10) inches
for him because he is a spoiled brat." distance as you said, is it always a fact that there is presence of powder burns?

This indicates to us that petitioner did not consider Butad’s words a threat at all. A It is always a fact, if the caliber of the firearm is higher or I can say, may be .22
caliber as well as there is a gun powder that burst. If it is fired about less than ten (10)
These circumstances led the trial court to conclude that there was no unlawful inches from the surface of the skin, it will always cause powder burns.
aggression on the part of Butad which could have precipitated petitioner’s actions.
This finding, affirmed by the Court of Appeals, is conclusive on the Court barring any Q And in this case, you cannot indicate the presence of powder burns?
showing of any arbitrariness or oversight of material facts that could change the
result.29
A Because I did not find any.37
Furthermore, the presence of four (4) gunshot wounds on Butad’s body negates the
claim that the killing was justified but instead indicates a determined effort to kill him. The fact that there were no powder burns on Butad’s body indicates that the shots
Even assuming that it was Butad who initiated the attack, the fact that petitioner was were fired at a distance of more than two (2) feet and not at close range as the
able to wrest the gun from him signifies that the aggression which Butad had started defense suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of
already ceased. Petitioner became the unlawful aggressor when he continued to which were in the chest area, circumstances which are inconsistent with the defense’s
shoot Butad even as he already lay defenseless on the ground.30 theory of accidental firing.38

On this point, the defense’s own witness, Caparoso, said in his Counter Affidavit31 and On the credibility of the prosecution’s witnesses, the defense questions Payud’s
during direct examination that after the first shot was fired, he saw petitioner take testimony averring that its witness, Benjamin Mahusay, testified that he and Payud
possession of the gun as Butad released his hold of it. It was after petitioner already were already on their way home
had the gun that Caparoso heard more gunshots.32 Even petitioner admitted that he
had an easy time twisting the hand with which Butad was supposedly holding his when they heard the gunshots. According to Mahusay, he attended a cockfight which
revolver because the latter was already very drunk having started drinking before ended at 5 o’clock in the afternoon of January 17, 1997. He went home afterwards
noon that day.33 and claimed to have met Payud on the way home at around 5 in the afternoon. 39 It
was at this time that he and Payud supposedly heard gunshots.
Another crucial point to consider is that the prosecution’s theory is consistent with the
physical evidence. Mahusay’s account, however, conflicts with the established fact that Butad was shot
to death at around 6:30 that night. His testimony all the more loses significance in the
The distance from which a shot is fired affects the nature and extent of the injury face of Payud’s compelling testimony that she went back to Sitio Landing to fetch her
caused on the victim. In close range fire, the injury is not only due to the missile but children and witnessed the killing.40
also due to the pressure of the expanded gases, flame and other solid products of
combustion. In Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness
the actual shooting. She unequivocally testified that she turned back and saw Sabang
contrast, distant fire usually produces the characteristic effect of the bullet alone.34 A take the pistol from Butad and point the gun at the latter. She instinctively covered her
shot fired from a distance of more than 60 cm or about two (2) feet does not produce eyes shouting, "Do not shoot my uncle!" She uncovered her eyes after hearing the
the burning, smudging or tattooing typically present in loose contact or near fire, short first gunshot, saw petitioner still pointing the gun at Butad, and watched as petitioner
range fire and medium range fire.35 shot Butad two (2) more times.41

27 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

In the final analysis, petitioner failed to demonstrate any reason to disturb the findings accused, the rule is reversed where the accused admits the commission of the crime
and conclusions of the trial court and the Court of Appeals. His conviction of the crime and invokes self-defense.
of homicide is certain. Under Art. 249 of the Revised Penal Code, homicide is
punished by reclusion temporal.  There being one (1) mitigating circumstance of This is an appeal from the September 25, 2006 Decision1 of the Court of Appeals
voluntary surrender, the penalty shall be imposed in its minimum period. 42 Applying (CA) in CA-G.R. CEB-CR H.C. No. 00241. The CA affirmed in toto the April 2, 2004
the benefits of the Indeterminate Sentence Law, the trial court correctly imposed an Decision2 of the Regional Trial Court (RTC) of Negros Oriental, Branch 37,
indeterminate penalty ranging from eight (8) years and one (1) day of prision Dumaguete City finding appellants Bingky Campos (Bingky) and Danny "Boy" Acabo
mayor  as minimum to twelve (12) years and one (1) day of reclusion temporal as (Danny) guilty beyond reasonable doubt of the crime of murder.
maximum.
In an Information filed by the Assistant Prosecutor of Dumaguete City, Bingky and
As regards the matter of damages, we affirm the award of civil indemnity in the Danny were charged with the crime of murder committed as follows:
amount of ₱50,000.00 for the heirs of Butad in line with recent jurisprudence. Civil
indemnity is mandatory and is granted to the heirs of the victim without need of proof
other than the commission of the crime.43 We also affirm the award of ₱180,000.00 That on August 19, 2001 at about 8:00 o’clock in the evening at Arellano Street,
representing loss of earning capacity at a reasonable life expectancy of three (3) Poblacion Zamboanguita, Negros Oriental, Philippines and within the jurisdiction of
years considering that Butad was already 67 years old at the time of the this Honorable Court, the above-named accused conspiring and confederating
incident.44 Likewise affirmed are the award of ₱50,000.00 as burial expenses duly together and mutually helping each other, with deliberate intent to kill, armed with a
proven, attorney’s fees of ₱40,000.00, and appearance fee of ₱1,000.00 per hearing. "plamingco" - a bladed weapon of which said accused were armed and provided, and
[by] means of treachery, and disregard of the respect due the offended party on
account of his age, did then and there willfully, unlawfully and feloniously attack, stab
We, however, agree with the Office of the Solicitor General that consistent with and wound ROMEO F. ABAD, 64 years of age, thereby inflicting upon the latter "stab
pertinent jurisprudence, the award of moral damages should be reduced from [sic] wound with injury to the liver, gallbladder thru/thru; duodenum thru/thru;
₱100,000.00 to ₱50,000.00.45 Finally, in the absence of any aggravating pancreas", which cause[d] his death on the following day while undergoing medical
circumstance, the trial court correctly withheld the award of exemplary damages.46 treatment at the Holy Child Hospital.

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision Contrary to Article 248 of the Revised Penal Code, as amended.3
of the Court of Appeals dated August 16, 2004 and its Resolution dated July 6, 2005,
affirming the Judgment rendered by the Regional Trial Court dated November 26,
Arraigned on September 25, 2001, appellants, assisted by counsel, pleaded not
guilty. The pre-trial was deemed terminated on March 25, 2002. Trial on the merits
1999, are AFFIRMED with the MODIFICATION that the award of moral damages is thereafter proceeded.
reduced to ₱50,000.00. Costs against petitioner.
Version of the Prosecution
SO ORDERED.
A brief summary of the pertinent facts constituting the prosecution’s version of the
G.R. No. 176061               July 4, 2011 incident was unveiled by the Office of the Solicitor General (OSG) in this manner:

PEOPLE OF THE PHILIPPINES, Appellee, [A]t around [8:00] o’clock in the evening of August 19, 2001, prosecution eyewitness
vs. Lester Huck Baldivino (Lester) was tending his sari-sari store near his house located
BINGKY CAMPOS and DANNY "BOY" ACABO, Appellants. at Arellano St., Brgy. Calango, Zamboanguita, Negros Oriental when [the victim]
Romeo Abad (Romeo), his maternal uncle, came to buy cigarettes and candies.
DECISION Lester was about to call it a night and was already preparing to close his store, but
Romeo lit up a cigarette and started to converse with him.
DEL CASTILLO, J.:
Romeo was jesting about Lester’s skin rashes, as the latter was applying medicine on
We reiterate in this case the time-honored doctrine that although it is a cardinal his irritated skin.1avvphi1 They were in this bantering mood, when Lester, who was
principle in criminal law that the prosecution has the burden of proving the guilt of the facing the highway, suddenly heard footsteps and immediately saw Danny Boy Acabo
(Acabo) running towards his uncle’s direction, closely followed by Bingky Campos
28 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
(Campos). Before Lester can utter a word of warning, Danny swiftly stab[bed] Romeo Ruling of the Court of Appeals
at the lower right side of the latter’s abdomen with a "plamingko" while Bingky stood
nearby. Immediately after stabbing Romeo, Danny and Bingky fled. The CA found no error in the appreciation of the evidence and applicable law by the
trial court. On September 25, 2006, the appellate court, in rendering its assailed
Lester was shocked but darted out of his store to apply pressure on Romeo’s wound Decision, dispositively ruled:
when he heard the latter cry out for help. Lester told Romeo to hang on and ran inside
his house to call his mother and Romeo’s son and told them to prepare the car. WHEREFORE, premises considered, Judgment is hereby rendered affirming the
Decision of the trial court in toto.
Romeo was brought to the Holy Child Hospital where he died.
SO ORDERED.11
The medical examination conducted by Dr. Johnny B. Yee (Dr. Yee), the attending
physician at the Holy Child Hospital who prepared the Certificate of Death, revealed Hence, this appeal.
that Romeo sustained a stab[bed] wound that could have been inflicted by a sharp
and pointed long instrument. The weapon hit him at the right upper quadrant of the
abdomen, penetrating and causing injury to the liver, with through and through On May 3, 200712 and May 7, 2007,13 appellants and appellee People of the
laceration of the gall bladder and the duodenum, and transecting the whole length of Philippines, through the Office of the Solicitor General (OSG), respectively, filed
the pancreas. Dr. Yee further testified that the injury to the pancreas caused the similar manifestation that they are no longer filing their supplemental briefs.
massive blood loss which [made] Romeo to suffer hypovolemic shock [resulting to]
cardio-pulmonary arrest [and, eventually, his] death.4 Appellants pray for the reversal of their conviction alleging that the prosecution failed
to prove their guilt beyond reasonable doubt. They claim that the stabbing of the
Version of the Defense victim was done in self-defense. They take exception to the finding of the trial court
regarding the presence of conspiracy asserting that the mere presence of Bingky at
the scene of the crime does not prove the existence of conspiracy.
For the defense, the following is their own version of the incident as narrated in their
Brief:
For the appellee, the OSG argues that Danny failed to prove his plea of self-defense;
that conspiracy attended the killing of the victim and that appellants’ guilt was proven
On August 19, 2001 while on their way to the house of their uncle, Danny and Bingky beyond reasonable doubt. Appellee thus prays for the affirmance of the judgment of
met four men who mauled Bingky. When Bingky was able to run away, they conviction with modification as to the award of civil indemnities.
approached Danny and kicked his buttocks. Danny pulled out a knife and thrust it
towards one of the men. Danny then ran away to escape.5
Our Ruling
Bingky corroborated the testimony of Danny that four men approached him (Bingky)
and mauled him. He does not know who these persons were.6 The appeal lacks merit.

Ruling of the Regional Trial Court Well-settled is the rule in criminal cases that the prosecution has the burden of proof
to establish the guilt of the accused beyond reasonable doubt.14 However, once the
accused admits the commission of the offense charged but raises a justifying
On April 2, 2004, after evaluating the conflicting evidence before it, the RTC meted circumstance as a defense, the burden of proof is shifted to him. He cannot rely on
out a judgment of conviction and sentenced both Bingky and Danny to reclusion the weakness of the evidence for the prosecution for even if it is weak, it cannot be
perpetua and ordered them to indemnify jointly and severally the heirs of Romeo the doubted especially after he himself has admitted the killing.15 This is because a
sum of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages plus cost.7 judicial confession constitutes evidence of a high order.

Appellants appealed to this Court in view of the penalty imposed on them. On Danny categorically admits that he stabbed Romeo. However, he boldly claims that
September 15, 2004, this Court accepted the appeal and notified the parties to file he did it in self defense. He avers that on that fateful night of August 19, 2001, he and
briefs.8 On March 7, 2005,9 the Court transferred the case to the CA in conformity with Bingky were attacked along the way home by four unknown persons for no apparent
the Decision in People v. Mateo.10 reason. He observed that one of the men was pulling an object from his waistband
which he thought was a bladed weapon so he drew his own knife and thrust it at the

29 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

man rushing at him, hitting the latter on the right side of his body. His reaction, he Q Then what did you do?
asserts, was defensive arising from a prior act of aggression and provocation by the
victim and his companions. A I pulled a knife from my waist.

The essential elements of the justifying circumstance of self-defense, which the Q Who [between] the two kicked you at your butt and who was the person who took
accused must prove by clear and convincing evidence are: (a) unlawful aggression on hold of you?
the part of the victim; (b) reasonable necessity of the means employed by the
accused to prevent or repel the unlawful aggression; and (c) lack of sufficient
provocation on the part of the accused defending himself.16 The first element of A It was Iko who kicked my buttocks but the other person who held me, I do not know
unlawful aggression is a condition sine qua non. There can be no self-defense unless his name.
there was unlawful aggression from the person injured or killed by the accused; for
otherwise, there is nothing to prevent or repel. Q Now what happened when you drew you[r] knife?

In the present case, Danny’s claim of self-defense is belied by his own testimony: A The two persons who attempted to attack me, when I pulled a knife, I thrust the
knife to the person who rushed at me.
Q Now after they attacked Bingky Campos what did they do?
Q Did you hit that person?
A They were not able to hit again Bingky because Bingky ran away.
A Yes, he was hit.
Q How about you? What did they do to you?
Q Where was he hit?
A I was held by the other person when he approached me because Bingky was no
longer there. A At the side.

Q And who was that person who held you? Court Interpreter:

A I do not know him. The witness is touching his lower right side.

Q How about now, do you know his name? Atty. Vailoces:

A What I know only was Jaime and Iko. Q And what were the other companions doing at that time?

Q Who [between] the two, Jaime and Iko [took] hold of you? Witness:

A Jaime and Iko were not able to hold me. A After thrusting the knife to the person, I ran away and the three (3) ran after me.17

Q Was there an attempt by Jaime and Iko to maul you also? As can be gleaned from the foregoing narration, there is no mention at all that Romeo
was among the four persons who allegedly attacked Danny and Bingky. Likewise,
A Yes. there is nothing in the narration which evinces unlawful aggression from Romeo.
Danny’s testimony shows that there was only an attempt, not by Romeo but by Jaime
and Iko, to attack him. Following his version, Danny then became the aggressor and
Q What did they do? not the victim. Even if the version of Danny is given a semblance of truth, that there
was an attempt to hurt him, though intimidating, the same cannot be said to pose
A They kicked my left butt and the other person held me. danger to his life and limb. This conclusion was drawn from the fact that no bladed

30 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

weapon was found at the alleged scene of the crime and nobody testified about it. For affirmed by the CA, are binding upon this Court.29 Though there are recognized
unlawful aggression to be appreciated, there must be an "actual, sudden and exceptions to this rule, none is present in this case. We are bound by the trial court’s
unexpected attack, or imminent danger thereof, not merely a threatening or assessment, as affirmed by the appellate court, that the stabbing of Romeo took
intimidating attitude"18 and the accused must present proof of positively strong act of place in the manner proven by the prosecution, that is, in front of the store of Lester
real aggression. For this reason, Danny’s observation that one of the men was pulling and not elsewhere, at the time the victim was buying cigarette and candies.
an object from his waist is not a convincing proof of unlawful aggression. "[A] threat,
even if made with a weapon or the belief that a person was about to be attacked, is Treachery attended the killing of the victim
not sufficient."19 An intimidating or threatening attitude is by no means enough. In this
case, other than the self-serving allegation of Danny, there is no evidence sufficiently
clear and convincing that the victim indeed attacked him. The prosecution’s rebuttal The trial court, in convicting appellants of murder, ruled that the killing was qualified
witnesses Jaime Maquiling and Francisco Austero20 who admittedly were among by treachery.
those whom Danny and Bingky had an encounter with on the night of August 19,
2001, never said in their testimonies that Romeo attacked Danny and a bladed We agree.
weapon was used. These witnesses were categorical that Romeo was not with them
during the incident. This testimonial evidence was not refuted by the defense. Even There is treachery when the offender commits any of the crimes against persons,
Bingky who claimed to be a friend of Romeo21 was not able to identify the latter as employing means, methods or forms in the execution thereof which tend directly and
one of those present at the time. Candid enough, Bingky declared that it was only a specifically to ensure the execution of the crime without risk to himself arising from the
certain Ago and Jaime who confronted Danny.22 Resultantly, Danny failed to defense which the offended party might make.30 To establish treachery, two elements
discharge his burden of proving unlawful aggression, the most indispensable element must concur: (a) that at the time of the attack, the victim was not in a position to
of self-defense. Where "no unlawful aggression is proved, no self-defense may be defend himself; and, (b) that the offender consciously adopted the particular means of
successfully pleaded."23 attack employed.31

Moreover, as testified to by the attending physician Dr. Yee, Romeo sustained a stab In this case, it is at once evident that Danny’s attack on the victim was sudden and
wound causing injuries on his liver, gall bladder, duodenum and the pancreas which deliberate as testified by eyewitness Lester. The attack was unexpected and without
resulted to massive blood loss.24 He eventually died of multiple vital organ failure. the slightest provocation on the part of the unarmed Romeo considering that he was
Clearly the wound inflicted by Danny on Romeo indicate a determined effort to kill and casually talking to Lester after buying something from the store with no inkling that an
not merely to defend.25 As has been repeatedly ruled, the nature, number and location attack was forthcoming. The attack was executed in a manner that Romeo was
of the wounds sustained by the victim disprove a plea of self-defense.26 rendered defenseless and unable to retaliate. The severity of the lone stab wound
forestalled any possibility of resisting the attack. Danny without doubt took advantage
Furthermore, Danny’s actuation in not reporting the incident immediately to the of this situation. As correctly held by the trial court, the act of Danny in positioning
authorities cannot take out his case within the ambit of the Court’s jurisprudential himself in a place where Romeo could not see him and then suddenly and
doctrine that the flight of an accused discloses a guilty conscience. The justifying deliberately inflicting a fatal wound are clear indications that he employed means and
circumstance of self-defense may not survive in the face of appellant’s flight from the methods which tended directly and specifically to ensure the successful execution of
scene of the crime coupled with his failure to promptly inform the authorities about the the offense.32
incident.27
Conspiracy adequately established
Indeed, appellants’ conviction was principally anchored on the testimony of Lester as
an eyewitness. Like the courts below, we too find Lester’s testimony consistent, Notably, a relevant portion of the appellants’ brief was focused on the discussion of
credible and trustworthy. We have reviewed his declaration in court as contained in the conspiracy angle in the commission of the crime. The defense challenges the trial
the pertinent transcript of stenographic notes and we discern nothing therein that court’s finding of conspiracy, arguing that Bingky’s mere presence at the scene of the
casts doubt on his credibility. His testimony is clear, positive in its vital points and full crime does not prove the existence of conspiracy.
of details substantiating the circumstances of how, where and when the offense
charged happened including the identity of the knife wielder, Danny. It is most unlikely
that he could narrate all the details of the crime with clarity and lucidity unless he was Appellants’ argument is untenable.
personally present at the situs criminis before and during the incident. The testimony
of a witness, giving details of a startling incident that cannot easily be fabricated, Conspiracy is said to exist where two or more persons come to an agreement
deserves credence and full probative weight for it indicates sincerity and truthfulness concerning the commission of a felony and decide to commit it. 33 "Direct proof is not
in the narration of events.28 Findings of fact of the trial court, particularly when essential to prove conspiracy [for] it may be deduced [from] the acts of the accused
31 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
before, during and after the commission of the crime charged, from which it may be Significantly, both lower courts failed to award exemplary and actual damages to the
indicated that there is a common purpose to commit the crime."34 heirs of the victim. Exemplary damages should be awarded in accordance with Article
223039 of the Civil Code given the presence of treachery which qualified the killing to
Indeed, mere presence at the scene of the incident, by itself, is not a sufficient ground murder. We therefore award the amount of ₱30,000.00 as exemplary damages to the
to hold a person liable as a conspirator. However, conspiracy may be inferred from heirs of the victim.40
proof of facts and circumstances which when taken together indicate that they are
parts of the scheme to commit the crime. In the present case, Bingky’s presence at Settled is the rule that only duly receipted expenses can be the basis of actual
the scene of the crime at the time of its commission as testified to by prosecution damages.lawphi1 Dominic Abad, son of the victim testified that the family spent
eyewitness Lester was never rebutted. According to Lester, Danny arrived first at the ₱65,000.00 for the hospitalization of the victim, ₱45,000.00 for the coffin and
scene of the crime followed by Bingky. During the stabbing incident, Bingky was ₱35,000.00 for the wake but failed to present receipts to prove these
around three meters away from Danny. Immediately after the incident, both expenses.41 However, notwithstanding the absence of receipts to prove actual
appellants scampered away.35 To the mind of the Court, Bingky’s presence at the damages, we find it imperative to award the amount of ₱25,000.00 as temperate
scene of the crime at the time of its commission was not just a chance encounter with damages in lieu of actual damages. Under Article 2224 of the Civil Code, temperate
Danny. His overt act of keeping himself around served no other purpose than to lend damages may be recovered as it cannot be denied that the heirs of the victim
moral support by ensuring that no one could give succor to the victim. His presence at suffered pecuniary loss although the exact amount was not proved.42
the scene has no doubt, encouraged Danny and increased the odds against the
victim. One who participates in the material execution of the crime by standing guard In addition, and in conformity with current policy, we also impose on all the monetary
or lending moral support to the actual perpetration thereof is criminally responsible to awards for damages an interest at the legal rate of 6% from date of finality of this
the same extent as the actual perpetrator.36 Moreover, the record is bereft of any hint Decision until fully paid.
that Bingky endeavored to avert the stabbing of the victim despite the particular
distance between them. Under the circumstances, we can hardly accept that Bingky
has nothing to do with the killing. No conclusion can be drawn from the acts of Bingky wherefore, the appealed judgment is AFFIRMED with the MODIFICATIONS that
except that he consented and approved the acts of his co-accused in stabbing the appellants Bingky Campos and Danny "Boy" Acabo are ordered to jointly and
victim. Once conspiracy is established, the act of one is deemed the act of all. It severally pay the heirs of the victim Romeo Abad, the amount of ₱75,000.00 as civil
matters not who among the accused actually killed the victim. Thus, the trial court did indemnity; ₱30,000.00 as exemplary damages; ₱25,000.00 as temperate damages,
not err in its ruling that conspiracy existed between appellants in the commission of all in addition to the ₱50,000.00 moral damages which is retained, as well as interest
the crime charged. on all these damages assessed at the legal rate of 6% from date of finality of this
Decision until fully paid.
The Proper Penalty
SO ORDERED.
37
Treachery qualifies the killing to murder.  Under Article 248 of the Revised Penal
Code (RPC), the penalty for murder is reclusion perpetua to death. The two penalties G.R. No. 150723             July 11, 2006
being both indivisible and there being no mitigating nor aggravating circumstance to
consider, the lesser of the two penalties which is reclusion perpetua should be RAMONITO MANABAN, petitioner,
imposed pursuant to the second paragraph of Article 6338 of the RPC. Hence the vs.
penalty of reclusion perpetua imposed by the trial court and affirmed by the appellate COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
court is proper.
DECISION
As to Damages
CARPIO, J.:
The trial court likewise correctly awarded civil indemnity and moral damages to the
heirs of the victim. However, in line with prevailing jurisprudence the award of civil The Case
indemnity shall be increased from ₱50,000.00 to ₱75,000.00. This amount is granted
to the heirs of the victim without need of proof other than the commission of the crime.
We retain the award of ₱50,000.00 as moral damages. Moral damages are awarded This is a petition for review1 of the Decision2 dated 21 May 2001 and the
despite the absence of proof of mental and emotional suffering of the victim’s heirs. Resolution3 dated 8 November 2001 of the Court of Appeals in CA-G.R. CR No.
23790. In its 21 May 2001 Decision, the Court of Appeals affirmed the Decision of the
Regional Trial Court of Quezon City, Branch 219 ("trial court"), finding Ramonito
32 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Manaban ("Manaban") guilty of the crime of homicide. In its 8 November 2001 The Trial
Resolution, the Court of Appeals modified its Decision by reducing the award for loss
of earning capacity. The Prosecution’s Version

The Facts The prosecution presented six witnesses: (1) Faustino Delariarte ("Delariarte"); (2)
SPO1 Dominador Salvador ("SPO1 Salvador"); (3) Rodolfo Bilgera ("Bilgera"); (4)
The facts as narrated by the trial court are as follows: Celedonia H. Tan ("Tan"); (5) Dr. Eduardo T. Vargas ("Dr. Vargas"); and (6) Editha
Bautista ("Editha").
On October 11, 1996, at around 1:25 o’clock in the morning, Joselito
Bautista, a father and a member of the UP Police Force, took his daughter, Delariarte was a security guard who was employed by the same security agency as
Frinzi, who complained of difficulty in breathing, to the UP Health Center. Manaban. Delariarte testified that in the early morning of 11 October 1996, their duty
There, the doctors prescribed certain medicines to be purchased. Needing officer, Diosdado Morga, called him and informed him that one of the guards
money therefore, Joselito Bautista, who had taken alcoholic drinks earlier, stationed at the BPI Kalayaan Branch ("BPI Kalayaan") was involved in a shooting
proceeded to the BPI Kalayaan Branch to withdraw some money from its incident. When he arrived at the bank, Delariarte saw Manaban inside the bank using
Automated Teller Machine (ATM). the phone. He also saw Joselito Bautista ("Bautista") lying on the ground but still
alive. He then told their company driver, Virgilio Cancisio ("Cancisio"), to take Bautista
Upon arrival at the bank, Bautista proceeded to the ATM booth but because to the hospital but to be careful since there was a gun tucked in Bautista’s waist.
he could not effectively withdraw money, he started kicking and pounding on Bautista allegedly reeked of alcohol. Delariarte further testified that when Manaban
the machine. For said reason, the bank security guard, Ramonito Manaban, came out of the bank, Manaban admitted to Delariarte that he shot Bautista.7
approached and asked him what the problem was. Bautista complained that
his ATM was retrieved by the machine and that no money came out of it. SPO1 Salvador was a police investigator assigned at Station 10, Philippine National
After Manaban had checked the receipt, he informed Bautista that the Police-Central Police District Command (PNP-CPDC) of Quezon City. SPO1 Salvador
Personal Identification Number (PIN) entered was wrong and advised him to testified that on 11 October 1996, about 2:05 a.m., the duty desk officer SPO2
just return the next morning. This angered Bautista all the more and Redemption Negre sent him, SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI
resumed pounding on the machine. Manaban then urged him to calm down Kalayaan to investigate an alleged shooting incident. SPO1 Salvador testified that
and referred him to their customer service over the phone. Still not mollified, when they arrived at BPI Kalayaan, they were met by Delariarte and Cancisio.
Bautista continued raging and striking the machine. When Manaban could Manaban then approached them and surrendered his service firearm, a .38 caliber
no longer pacify him, he fired a warning shot. That diverted the attention of revolver, to SPO1 Salvador. Manaban allegedly admitted shooting Bautista. SPO1
Bautista. Instead of venting his ire against the machine, he confronted Salvador and his team investigated the crime scene. According to SPO1 Salvador, he
Manaban. After some exchange of words, a shot rang out fatally hitting saw Bautista lying on his back near the Automated Teller Machine ("ATM"). A .38
Bautista.4 caliber revolver inside a locked holster was tucked in Bautista’s right waist. SPO1
Salvador noticed that Bautista, who was still breathing, had been shot in the back.
On 24 October 1996, Manaban was charged with the crime of murder. The They brought Bautista to the East Avenue Medical Center where Bautista later died.
Information states: Thereafter, they proceeded to the police station and turned over Manaban to their
desk officer for proper disposition and investigation.8
That on or about the 11th day of October 1996, in Quezon City, Philippines,
the above-named accused, armed with a gun, and with intent to kill, qualified Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer, conducted
by treachery, did then and there wilfully, unlawfully and feloniously attack, an autopsy on Bautista’s cadaver. Dr. Vargas testified that Bautista died of a gunshot
assault and employ personal violence upon the person of one JOSELITO wound. According to him, the point of entry of the bullet was at the back, on the right
BAUTISTA, by then and there, shooting him at the back portion of his body, side of the body and there was no exit point. He stated that he was able to recover
thereby inflicting upon said JOSELITO BAUTISTA mortal wounds which the slug from the left anterior portion of the victim’s body and that he later submitted
were the direct and immediate cause of his untimely death, to the damage the slug to the NBI Ballistics Division. Dr. Vargas further stated that the bullet wound
and prejudice of the heirs of the said JOSELITO BAUTISTA.5 was fatal because the bullet hit the right lung and lacerated parts of the liver, stomach
and the pancreas. Based on the location of the gunshot wound, Dr. Vargas deduced
that the assailant must have been behind the victim, on the right side, when he shot
When arraigned on 4 December 1996,6 Manaban pleaded not guilty to the offense the victim.9 Dr. Vargas also testified that the absence of signs of near-fire indicates
charged. Trial then followed. that the distance between the muzzle of the gun and the point of entry was more than

33 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

24 inches. During cross-examination, Dr. Vargas testified that he was able to take The prosecution and the defense agreed to dispense with the testimony of Tan, the
blood samples from the victim which, based on the NBI Chemistry Division analysis, Assistant Manager of BPI Kalayaan. Instead, they just agreed to stipulate that on 11
tested positive for alcohol.10 Dr. Vargas issued a certificate of post-mortem October 1996, about 7:45 a.m., Tan and BPI Custodian Elma R. Piñano retrieved BPI
examination11 and an autopsy report.12 Express Teller Card No. 3085-2616-21 issued to Bautista which was captured by the
ATM because a wrong Personal Identification Number (PIN) was entered.18
Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI.
Bilgera testified that upon receiving a letter-request dated 11 October 1996 from PNP The Defense’s Version
Police Inspector Percival Fontanilla, he conducted a ballistic examination on the
following specimens submitted to him: The defense presented four witnesses: (1) Manaban; (2) Renz Javelona ("Javelona");
(3) Tan; and (4) Patrick Peralta ("Peralta").
1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked "DBS";
Manaban, the accused, testified that he was employed by Eagle Star Security Agency
2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked as a security guard and was assigned at BPI Kalayaan. On 10 October 1996, he was
"DBS"; on duty from 7:00 p.m. until 7:00 a.m. the following day.

3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to
"RM"; withdraw money from the ATM. Manaban then saw Bautista pounding and kicking the
ATM. When Manaban asked Bautista what was the problem, Bautista replied that no
4. Two (2) Caliber .38 empty shells marked "RM-1" and "RM-2"; money came out from the machine. According to Manaban, Bautista appeared to be
intoxicated.
5. One (1) Caliber .38 misfired ammunition marked "RM-3";
Manaban looked at the receipt issued to Bautista and saw that the receipt indicated
that a wrong PIN was entered. Manaban informed Bautista that the ATM captured
6. Nine (9) Caliber .38 ammunition marked "RM-4", "RM-5", "RM-6" and "JB- Bautista’s ATM card because he entered the wrong PIN. He then advised Bautista to
1" to "JB-6"; and return the following day when the staff in charge of servicing the ATM would be
around.
7. One (1) Caliber .38 deformed copper coated lead bullet marked "JB". (Re-
FID No. 606-14-1096 [N-96-2047]).13 Bautista replied that he needed the money very badly and then resumed pounding on
the ATM. Manaban tried to stop Bautista and called by telephone the ATM service
Based on the examination, Bilgera concluded that the bullet which was extracted from personnel to pacify Bautista. Bautista talked to the ATM service personnel and
Bautista’s body by the medico-legal officer was fired from the ARMSCOR 2015 .38 Manaban heard him shouting invectives and saw him pounding and kicking the ATM
Caliber revolver with Serial No. 2890914 and that the empty shells also came from the again.
same gun. Bilgera submitted a written report15 on the result of his examination.
When Manaban failed to pacify Bautista, Manaban fired a warning shot in the air.
Editha, the widow of Joselito Bautista, testified that she was married to Bautista on 22 Bautista then faced him and told him not to block his way because he needed the
December 1993 in civil rites and that they have four children, the eldest of whom was money very badly. Bautista allegedly raised his shirt and showed his gun which was
13 years old. Editha stated that her husband, who was a member of the University of tucked in his waist. Manaban stepped back and told Bautista not to draw his gun,
the Philippines Police Force ("UP Police Force") since 1985, was receiving a monthly otherwise he would shoot.
salary of P5,050 at the time of his death. She narrated that on 11 October 1996,
about 1:25 a.m., her husband brought their daughter Frinzi who had an asthma attack However, Bautista allegedly kept on moving toward Manaban, who again warned
to the UP Health Center where she was confined for three days. According to Editha, Bautista not to come near him or he would be forced to shoot him. Bautista suddenly
her husband then left to withdraw money at BPI Kalayaan for the purchase of turned his back and was allegedly about to draw his gun. Fearing that he would be
medicines. Later, she was fetched by members of the UP Police Force who informed shot first, Manaban pulled the trigger and shot Bautista.
her that her husband had been shot. Editha claimed that as a consequence of her
husband’s death, she spent more than P111,00016 for the nine-day wake,
embalmment and funeral services.17

34 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Manaban recounted that he then went inside the bank and called the police and his the technician, to have the ATM repaired. When Peralta opened the ATM, they found
agency to report the incident. While he was inside the bank, a fellow security guard Bautista’s ATM card which was captured by the machine.22
arrived and asked what happened. Manaban answered, "wala yan, lasing."
Peralta, a Customer Engineer Specialist, testified that on 11 October 1996, BPI
Later, a mobile patrol car arrived. Manaban related the incident to the police officer Kalayaan sought his assistance regarding their ATM. When Peralta arrived at BPI
and informed him that Bautista was still alive and had a gun. Manaban then Kalayaan, he talked to Tan and then proceeded to the ATM to assess the damage.
surrendered his service firearm to the police officer. According to Manaban, he fired According to Peralta, the ATM keyboard was damaged and mis-aligned.23
his gun twice – once in the air as a warning shot and the second time at Bautista who
was about four meters from him.19 The Trial Court’s Ruling

On cross-examination, Manaban further explained that after he fired the warning shot, On 14 April 1999, the trial court rendered judgment, the dispositive portion of which
Bautista kept coming toward him. Manaban pointed his gun at Bautista and warned reads:
him not to come closer. When Bautista turned his back, Manaban thought Bautista
was about to draw his gun when he placed his right hand on his waist. Fearing for his
life, he pulled the trigger and shot Manaban. According to Manaban, "[n]oong makita WHEREFORE, finding the accused guilty beyond reasonable doubt of the
ko siya na pabalikwas siya, na sadya bubunot ng baril, sa takot ko na baka crime of Homicide, the Court hereby sentences the accused to suffer the
maunahan niya ako at mapatay, doon ko na rin nakalabit yung gatilyo ng baril." penalty of imprisonment ranging from FOUR (4) YEARS and TWO (2)
Manaban declared that it did not occur to him to simply disable the victim for fear that MONTHS of Prision Correccional, as minimum, to EIGHT (8) YEARS and
Bautista would shoot him first.20 ONE (1) DAY of Pris[i]on Mayor, as maximum; to pay indemnity to the heirs
of Joselito Bautista for his death in the amount of P75,000.00; and actual
damages in the amount of P111,324.00 for the nine-day wake, embalm[ing]
Javelona was an ATM Service Assistant of BPI. Javelona testified that on 11 October and funeral services, and P1,418,040.00 for the loss of Bautista’s earning
1996, between 1:30 a.m. and 2:00 a.m., she received a call from a client at BPI capacity, the last to be paid by installment at least P3,030.00 a month until
Kalayaan. The client, who was later identified as Bautista, complained: "Nagwi- fully paid with the balance earning interest at the rate of six percent (6%) per
withdraw ako dito sa ATM Kalayaan. Mali daw yung PIN ko, alam ko tama yung PIN annum; and to pay the costs.
ko. Ilang beses ko nang ginamit, mali pa rin. Kailangan kong mag-withdraw."
SO ORDERED.24
Javelona tried to placate Bautista and advised him not to insert his card anymore
because it might be captured by the machine and to try again later in the morning.
Bautista allegedly answered angrily: "Na capture na nga, eh! Tama na nga yung PIN The trial court held that the defense failed to establish self-defense as a justifying
number [sic]. Hindi ako pwedeng hindi makakuha ng pera. Kailangan kong bumili ng circumstance. According to the trial court, unlawful aggression, which is the most
gamot para sa anak ko. Hindi ko naman kasalanan ito." Javelona replied: "Sir, hindi essential element to support the theory of self-defense, was lacking in this case. The
ho natin makukuha ang card ninyo ngayon kasi ang makaka-open lang ho ng ATM trial court found that, contrary to Manaban’s claim, Bautista was not about to draw his
machine ay ang officer ng Kalayaan Branch. Even if makuha natin ang card ninyo gun to shoot Manaban. Evidence show that Bautista’s gun was still tucked in his waist
ngayon, hindi pa ninyo magagamit ngayon. Magagamit lang ninyo as soon as mag- inside a locked holster. Furthermore, the trial court held that Bautista could not have
pa-encode kayo ng PIN number [sic]." surprised Manaban with a preemptive attack because Manaban himself testified that
he already had his gun pointed at Bautista when they were facing each other. The
trial court likewise rejected Manaban’s claim of exemption from criminal liability
Bautista then reiterated angrily his dire need to withdraw money for the medicine of because he acted under the impulse of an uncontrollable fear of an equal or greater
his daughter. Javelona apologized to Bautista and informed him that there was really injury. The trial court held that the requisites for the exempting circumstance of
nothing she could do at that time. She also advised Bautista to go back to the bank at uncontrollable fear under paragraph 6, Article 12 of the Revised Penal Code are not
9:00 a.m. to get his ATM card and also to withdraw money over the counter. Bautista present in this case. However, the trial court credited Manaban with two mitigating
refused to be pacified and started cursing so Javelona decided to hang up the circumstances: voluntary surrender and obfuscation.
phone.21
The Court of Appeals’ Ruling
Tan, the Assistant Manager of BPI Kalayaan, testified that when she reported for work
in the morning of 11 October 1996, she discovered that the ATM was out of order.
According to Tan, the ATM keyboard was not properly mounted and the keys were On appeal, the Court of Appeals affirmed the trial court’s decision. The Court of
damaged. Also, the telephone beside the ATM was hung up. Tan then called Peralta, Appeals later reconsidered and modified its decision with respect only to the award of

35 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

loss of earning capacity. Using the formula 2/3 [80 – age at the time of death] x [gross accused must establish by clear and convincing evidence that all the requisites of
annual income – 80% gross annual income], the Court of Appeals recomputed the self-defense are present.28
award for loss of earning capacity. In its Resolution dated 8 November 2001, the
Court of Appeals reduced the award for the loss of the victim’s earning capacity Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to
from P1,418,040 to P436,320. prove self-defense as a justifying circumstance which may exempt an accused from
criminal liability are: (1) unlawful aggression on the part of the victim; (2) reasonable
The Issues necessity of the means employed to prevent or repel the aggression; and (3) lack of
sufficient provocation on the part of the accused or the person defending
In his petition for review, Manaban submits that: himself.29 Unlawful aggression is an indispensable requisite of self-defense.30 Self-
defense is founded on the necessity on the part of the person being attacked to
prevent or repel the unlawful aggression.31 Thus, without prior unlawful and
1. The Respondent Court gravely erred in affirming the erroneous factual unprovoked attack by the victim, there can be no complete or incomplete self-
appreciation and interpretation by the trial court a quo in practically affirming defense.32
the decision of the latter court which are based on a clear misappreciation of
facts and findings grounded entirely on speculations, surmises or
conjectures "in a way probably not in accord with law or with the applicable Unlawful aggression is an actual physical assault or at least a threat to attack or inflict
jurisprudence of the Supreme Court." physical injury upon a person.33 A mere threatening or intimidating attitude is not
considered unlawful aggression,34 unless the threat is offensive and menacing,
manifestly showing the wrongful intent to cause injury.35 There must be an actual,
2. The Respondent Court gravely erred in ignoring petitioner’s self-defense sudden, unexpected attack or imminent danger thereof, which puts the defendant’s
on the sole fact that the entrance of the deceased victim’s wound was from life in real peril.36
the back.
In this case, there was no unlawful aggression on the part of the victim. First, Bautista
3. The Respondent Court gravely erred in concluding that petitioner failed to was shot at the back as evidenced by the point of entry of the bullet. Second, when
establish unlawful aggression just because the holster of the victim was still Bautista was shot, his gun was still inside a locked holster and tucked in his right
in a lock position. waist. Third, when Bautista turned his back at Manaban, Manaban was already
pointing his service firearm at Bautista. These circumstances clearly belie Manaban’s
4. Granting arguendo  that petitioner made a mistake in his appreciation that claim of unlawful aggression on Bautista's part. Manaban testified:
there was an attempt on the part of the deceased victim to draw his gun who
executed "bumalikwas," such mistake of fact is deemed justified. ATTY. ANCANAN

5. Finally, the Respondent Court gravely erred in awarding exorbitant and Q: You said the victim showed his gun by raising his shirt?
baseless award of damages to the heirs of deceased victim.25
A: Yes, sir.
The Court’s Ruling
Q: The victim never drew his gun?
The petition is partly meritorious.
A: He was about to draw the gun when he turned around.
An appeal in a criminal case opens the entire case for review. The reviewing tribunal
can correct errors though unassigned in the appeal, or reverse the lower court’s
decision on grounds other than those the parties raised as errors.26 Q: My question is when the victim was facing you, the victim never
drew his gun?
Unlawful Aggression is an Indispensable Requisite of Self-Defense
A: Not yet, sir.
When the accused invokes self-defense, he in effect admits killing the victim and the
burden is shifted to him to prove that he killed the victim to save his life. 27 The Q: And when you told the victim not to come close, he did not come closer
anymore?

36 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A: He walked towards me, sir. Q: When you said, when you fired your shot, the victim’s gun was still
tucked in his right waist, is that correct?
Q: For how many steps?
A: Yes, sir, his hand was on his waist.
A: I cannot remember how many steps.
Q: You just answer the question. Was the victim’s gun still tucked on
Q: And according to you, while he was facing you and walking towards his waistline?
you he suddenly turned his back to you, is that correct?
A: Yes, sir.
A: Bumalikwas po at parang bubunot ng baril.
Q: And his hand was merely placed on his hips. The victim’s right hand was
Q: Let us get the meaning of "bumalikwas", tumalikod sa iyo? merely placed on his right hip?

A: Bumalikwas po (witness demonstrating). ATTY. CARAANG

Q: Will you please demonstrate to us how the victim "bumalikwas"? I object. The witness testified that he was about to draw his gun.

A: When he was facing me and I told him, "Sir, you just be there otherwise I COURT
am going to take the gun" and at that moment, he, the victim turned his back
and simultaneously drew the gun. He is asking the question so he has to answer.

Q: When he was facing you, the victim never drew his gun, is that correct? A: No, sir, the gun was on his waist.

A: Not yet, sir. ATTY. ANCANAN

Q: And according to you, it was at that point when he turned his back Q: At the precise time that you fired your second shot, you could have
on you that he tried to draw his gun? aimed your gun at the extremities of the victim, meaning legs or arms,
is that correct?
A: Yes, sir.
A: When I saw him that he was about to draw his gun because of my
Q: You said that he tried to draw, but the fact is he merely placed his fear that he would get ahead of me and he would kill me, I did not mind
hand on his waist? anymore, I just inunahan ko siya.

A: No, sir, when I saw him, when he was hit, I saw him, the hand was ATTY. CARAANG
already on the gun but still tucked on his waist (witness places his
hand on his right waist with fingers open). May I request that the answer of the witness be quoted as is?

Q: And it was at that precise moment while the victim’s back was A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng
turned on you that you fired your shot? baril, sa takot ko na baka maunahan niya ako at mapatay, doon ko na
rin nakalabit yung gatilyo ng baril ko.
A: When he was about to turn his back and it seems about to take his
gun, that is the time I shot him because of my fear that he would be ATTY. ANCANAN
ahead in pulling his gun and he might kill me.

37 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Q: Mr. Witness, how long have you been a security guard before this Objection, already answered, your Honor.
incident?
COURT
A: Around 7 months, sir.
Witness may answer.
Q: Now, before you were employed as security guard by the Eagle Star
Security Agency, did you undergo any training as a security guard? A: No, sir, I shot him only once, not twice.

A: Yes, sir. Q: Please answer the question. When you fired your second shot . . .

Q: Where? A: Bumalikwas ho ’yon eh.

A: Camp Crame, sir. Q: Please answer the question.

Q: For how long? A: Yes, sir.

A: Three (3) days, sir. Q: And because his back was towards you, you could have easily
disabled him by firing at his leg or at his arms, is that not correct?
Q: And what did you learn from those 3 days training as security guard?
ATTY. CARAANG
A: Our duties as security guard were lectured to us, sir.
I object, your Honor, it was already answered. He said he was not
Q: Now, were you not taught during the training that in any given given the opportunity to have a second thought and at that moment
situation, your first duty is to disable first an aggressor? he was able to pull the trigger of his gun.

ATTY. CARAANG ATTY. ANCANAN

Objection, your Honor, I think that is no longer material The witness already admitted that when he fired his gun, the
besides, that is not part of my direct examination. victim’s back was towards the witness, so my last question is just a
follow-up.
COURT
ATTY. CARAANG
Witness may answer.
But the witness testified that he was not given the opportunity to
A: It was taught to us, sir, but it depends on my situation. If the person have a second thought, that is why right then and there, he pulled
kept on doing what I told him not to do and it would reach a point that it the trigger of his gun.
would endanger my life, of course even if you were in my place, you
would do the same thing, so nakipagsabayan na ako, sir. COURT

Q: But in this particular case when you fired your second shot, the victim’s Objection noted, witness may answer.
back was towards you, is that not correct?

ATTY. CARAANG

38 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 A: What I was thinking at that time, was just to disarm him but when he obfuscation. The requisites of the mitigating circumstance of passion or obfuscation
turned, bumalikwas, and I saw that he was going to draw a firearm and are: (1) that there should be an act both unlawful and sufficient to produce such
that was when I decided to "makipagsabayan." condition of mind; and (2) that the act which produced the obfuscation was not far
removed from the commission of the crime by a considerable length of time, during
xxx   xxx   xxx which the perpetrator might recover his normal equanimity.40

RE-DIRECT EXAMINATION In his testimony, Manaban admitted shooting Bautista because Bautista turned
around and was allegedly about to draw his gun to shoot Manaban. The act of
Bautista in turning around is not unlawful and sufficient cause for Manaban to lose his
ATTY. CARAANG reason and shoot Bautista. That Manaban interpreted such act of Bautista as
preparatory to drawing his gun to shoot Manaban does not make Bautista’s act
Q: Mr. Witness, when you and the victim were facing each other, the unlawful. The threat was only in the mind of Manaban and is mere speculation which
gun was already pointed to him, is it not? Your gun? is not sufficient to produce obfuscation which is mitigating.41 Besides, the threat or
danger was not grave or serious considering that Manaban had the advantage over
A: Yes, sir, I pointed my gun at him.37 Bautista because Manaban was already pointing his firearm at Bautista when the
latter turned his back. The defense failed to establish by clear and convincing
evidence the cause that allegedly produced obfuscation.
The allegation of Manaban that Bautista was about to draw his gun when he turned
his back at Manaban is mere speculation. Besides, Manaban was already aiming his
loaded firearm at Bautista when the latter turned his back. In that situation, it was Award of Damages
Bautista whose life was in danger considering that Manaban, who had already fired a
warning shot, was pointing his firearm at Bautista. Bautista, who was a policeman, The records42 reveal that Bautista was 36 years old at the time of his death and not 26
would have realized this danger to his life and would not have attempted to draw his years old as stated by the trial court and the Court of Appeals.43 Moreover, the annual
gun which was still inside a locked holster tucked in his waist. Furthermore, if salary of Bautista at the time of his death was already P60,864 and not P60,600.44 We
Manaban really feared that Bautista was about to draw his gun to shoot him, likewise modify the formula applied by the Court of Appeals in the computation of the
Manaban could have easily disabled Bautista by shooting his arm or leg considering award for loss of earning capacity. In accordance with current jurisprudence, 45 the
that Manaban’s firearm was already aimed at Bautista. formula for the indemnification for loss of earning capacity is:

Aggression presupposes that the person attacked must face a real threat to his life Net Earning = Life Expectancy x [Gross Annual – Living Expenses]
and the peril sought to be avoided is imminent and actual, not imaginary. 38 Absent Capacity Income (GAI)
such actual or imminent peril to one’s life or limb, there is nothing to repel and there is
no justification for taking the life or inflicting injuries on another.39   = 2/3(80 – age of deceased) x (GAI – 50% of GAI)

Voluntary Surrender and Obfuscation Using this formula, the indemnification for loss of earning capacity should be:

The trial court credited Manaban with two mitigating circumstances: voluntary Net Earning = 2/3 (80 – 36) x [P60,864 – (50% x P60,864)]
surrender and obfuscation. Capacity
  = 29.33 x P30,432
It is undisputed that Manaban called the police to report the shooting incident. When
  = P892,570.56
the police arrived, Manaban surrendered his service firearm and voluntarily went with
the police to the police station for investigation. Thus, Manaban is entitled to the
benefit of the mitigating circumstance of voluntary surrender. With regard to actual damages, the records show that not all the expenses that the
Bautista family allegedly incurred were supported by competent evidence. Editha
On obfuscation, we find that the facts of the case do not entitle Manaban to such failed to present receipts or any other competent proof for food expenses and rental
mitigating circumstance. Under paragraph 6, Article 13 of the Revised Penal Code, fee for jeeps for the funeral. Editha merely submitted a typewritten "Summary of Food
the mitigating circumstance of passion and obfuscation is appreciated where the Expenses & Others."46 A mere list of expenses, without any official receipts or any
accused acted upon an impulse so powerful as naturally to have produced passion or other evidence obtainable, does not to prove actual expenses incurred.47 Competent

39 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

proof of the actual expenses must be presented to justify an award for actual The factual backdrop:
damages.48 In this case, only the following expenses were duly supported by official
receipts and other proof : On September 12, 1994, herein petitioner, then a police officer, was charged before
the Sandiganbayan with the crime of Murder, allegedly committed, per the indicting
1. Embalming fee49 P11,000 Information,2 docketed as Criminal Case No. 21131, as follows:
50
2. Bronze Casket 25,000
51
That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic)
3. Cadillac Hearse fee 3,500 Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
4. Funeral Services52   30,000 the said accused Rufino S. Mamangun, a public officer, being then a Police Officer
(PO2), duly appointed as such and acting in relation to his office, armed with a gun,
    Total P69,500 with intent to kill, did then and there willfully, unlawfully and feloniously, with
treachery, evident premeditation and abuse of superior strength, attack, assault and
Thus, we reduce the actual damages granted from P111,324 to P69,500. shoot one Gener M. Contreras with the said gun, hitting the latter on his body, thereby
inflicting (sic) him serious physical injuries which directly cause (sic) his death.
We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance
with prevailing jurisprudence.53 CONTRARY TO LAW.

WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio,
Appeals dated 21 May 2001 and its Resolution dated 8 November 2001. We find entered a plea of "Not Guilty."
petitioner Ramonito Manaban guilty beyond reasonable doubt of the crime of
Homicide. Applying the Indeterminate Sentence Law and taking into account the In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto
mitigating circumstance of voluntary surrender, Ramonito Manaban is hereby Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated
sentenced to suffer an indeterminate penalty ranging from six years and one day Medico-Legal Officer of Bulacan who performed an autopsy on the cadaver of the
of prision mayor as minimum to 12 years and one day of reclusion temporal as victim.
maximum. Ramonito Manaban is ordered to pay the heirs of Joselito
Bautista: P892,570.56 as indemnity for loss of earning capacity; P69,500 as actual
For its part, the defense adduced in evidence the testimonies of the accused himself,
damages; and P50,000 as indemnity for death.
Rufino Mamangun, his co-policemen at the Philippine National Police (PNP), namely,
PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B.
SO ORDERED. Banez, all assigned at the Meycauayan Police Station; and those of Lorenzo S.
Abacan and Rogelio Ingco, son and son-in-law, respectively, of Antonio Abacan,
G.R. No. 149152             February 2, 2007 owner of the house on which rooftop the shooting of the victim took place.

RUFINO S. MAMANGUN, Petitioner, It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario,
vs. Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
PEOPLE OF THE PHILIPPINES, Respondent. "Magnanakaw…Magnanakaw." Several residents responded and thereupon chased
the suspect who entered the yard of Antonio Abacan and proceeded to the rooftop of
Abacan’s house.
DECISION

At about 9:00 o’clock that same evening, the desk officer of the Meycauayan PNP
GARCIA, J.:
Police Station, upon receiving a telephone call that a robbery-holdup was in progress
in Brgy. Calvario, immediately contacted and dispatched to the scene the crew of
In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Patrol Car No. 601 composed of Team Leader SPO1 Andres Legaspi, with PO2
Mamangun y Silverio seeks the reversal of the Decision1 dated January 19, 2001 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and Patrol Car No.
(promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz
21131, convicting him of the crime of Homicide. and PO2 Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2

40 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect was dark. They claimed that each of them, with Mamangun on the lead, went on separate
allegedly taking refuge. directions around a water tank. As they met each other at the other side of the tank,
PO2 Cruz pointed to a person crouching at the edge of the roof of the garage.
The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn Thinking that the person was the suspect they were looking for, Mamangun chased
handgun, searched the rooftop. There, they saw a man whom they thought was the said person. They announced that they were police officers but the person continued
robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of to run in a crouching position until Mamangun caught up with him and shouted, "Pulis.
the group, fired his handgun once, hitting the man. The man turned out to be Gener Tigil," whereupon the person suddenly stopped, turned around, faced Mamangun,
Contreras (Contreras) who was not the robbery suspect. and raised a stainless steel pipe towards the latter’s head but Mamangun was able to
evade the attack. This prompted Mamangun to shoot the person on the left arm. All
three claimed that it was only at this point that PO2 Cruz and Diaz approached
Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near Contreras and
Caballero yielded the following findings: asked, "Why did you go to the rooftop? You know there are policemen here."
Contreras was thereafter brought to the hospital where he died. After the shooting
The cause of death was "Shock due to massive external and internal hemorrhage due incident, Mamangun reported the same to the desk officer, POI Filomeno de Luna,
to multiple gunshot wounds in the left arm side of the thorax, penetrating the left lung who advised him to remain in the police station. De Luna directed Police Investigator
and vertebral column." There were several wounds caused by one (1) bullet. Hernando Banez to investigate the incident. That same evening, Investigator Banez
went to the place where the shooting happened. Banez allegedly found a steel pipe
As shown on the sketch of human body attached to the Certificate of Death, and as about three (3) feet long on the depressed portion of the roof.
testified on by Dr. Caballero, the bullet entered through the "lower third of the left arm,
left side of the thorax and it penetrated the left lung and vertebral column and that is On January 19, 2001, after due proceedings, the Sandiganbayan came out with its
where the slug was found." From a layman’s appreciation of the sketch, the bullet decision4 finding the petitioner guilty beyond reasonable doubt of only the crime of
entered the outer, upper left arm of the victim, exited through the inner side of the Homicide. In so finding, the Sandiganbayan did not appreciate the presence of the
said upper left arm, a little lower than the left armpit and the slug lodging on the aggravating circumstances of treachery, evident premeditation and abuse of superior
victim’s back where it was recovered at the vertebral column.3 strength to qualify the killing to Murder. But even as the said court rejected the
petitioner’s claim that the shooting was justified by self-defense, it nonetheless ruled
From the foregoing admitted or undisputed facts, the prosecution and the defense that the crime of Homicide was attended by an incomplete justifying circumstance of
presented conflicting versions as to how the fatal shooting of Contreras by petitioner the petitioner having acted in the performance of his duty as a policeman, and also
Mamangun actually happened. appreciated in his favor the generic mitigating circumstance of voluntary surrender.
Dispositively, the decision reads:

According to Ayson, the lone eyewitness for the prosecution, he accompanied the
three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacan’s house. He WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY
was following petitioner Mamangun who was ahead of the group. They passed beyond reasonable doubt of the crime of Homicide, defined and penalized under
through the second-floor door of the house to the rooftop. The roof was lighted by an Article 249, Revised Penal Code, and taking into account the attendance of one (1)
incandescent bulb from an adjacent house. He was beside Mamangun when they privileged mitigation (sic) circumstance, one generic circumstance and no aggravating
saw, some four to five arms-length away, a man whom he (witness) recognized as circumstance, he is hereby sentenced under the Indeterminate Sentence Law, to
Gener Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months of
exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi ako?" prision correctional as minimum, to Seven (7) years of prision mayor, as maximum, to
Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who indemnify the heirs (parents) of Gener Contreras in the total amount of P352,025.00,
turned out to be Contreras. He (witness) approached the victim who was then lying on and to past the costs.
his left side unconscious. He brought down the victim and they rushed him to the
hospital where he died at about 10:00 o’clock that same evening. SO ORDERED.

The defense has its own account of what purportedly actually transpired.1awphi1.net Unable to accept the judgment of conviction, petitioner is now with this Court via the
present recourse alleging that the Sandiganbayan committed reversible error in failing
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson to apply paragraph 5, Article 11, of the Revised Penal Code, which would have
at the rooftop during the shooting incident. Corroborating one another, the three absolved him from criminal liability on the basis of his submission that the shooting in
testified that they were the only ones at the scene of the shooting, and that it was question was done in the performance of a duty or in the lawful exercise of a right or
office.
41 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
First off, petitioner insists that the shooting, which ultimately caused the demise of their seemingly "positive" identification of the stainless steel pipe (more of a rod) as
Contreras, was justified because he was repelling Contreras’ unlawful attack on his his weapon, to be of doubtful credibility, for the following reasons:
person, as Contreras was then about to strike him on the head with a steel pipe.
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert
We are not persuaded. Diaz, the three policemen appropriately identified themselves as police
officers as they started chasing the man they saw "crouching," and, as
Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon claimed by accused PO2 Rufino Mamangun, that, as he was about to catch
the Court except where: (1) the conclusion is a finding grounded entirely on up with said man, he shouted, "Pulis! Tigil!" With all these introductions and
speculations, surmises and conjectures; (2) the inference made is manifestly forewarnings, it is utterly incredible and contrary to human experience that,
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on that man, later identified to be Gener Contreras and admittedly not the
misapprehension of facts and the findings of fact are premised on the absence of person they were looking for, purportedly armed only with a stainless steel
evidence and are contradicted by the evidence on record.5 None of these exceptions "lead" pipe (more of a rod) would suddenly stop, turn around and attack one
obtains in this case. of the three policemen who were chasing him, one after the other, with
drawn guns.
Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992,
petitioner is charged with the burden of adducing convincing evidence to show that (2) When the victim (Gener Contreras) fell down after being shot by accused
the killing was done in the fulfillment of his duty as a policeman. PO2 Mamangun, and as the latter went near the fallen victim, said accused
asked, "Why did you go to the rooftop. You know there are policemen here."
He admits that he did not ask the victim, "Why did you try to hit me, if you
The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the are not the one?" This admission clearly belies the claim of the police-
Revised Penal Code may be invoked only after the defense successfully proves that: witnesses that Gener Contreras attacked the accused policeman with an iron
(1) the accused acted in the performance of a duty; and (2) the injury inflicted or pipe when he was shot, for the accused should have asked the latter
offense committed is the necessary consequence of the due performance or lawful question.
exercise of such duty.7
(3) The location of the entry of the bullet fired by accused Mamangun which
Concededly, the first requisite is present in this case. Petitioner, a police officer, was is at the outer left arm at about the bicep of the victim and its trajectory as it
responding to a robbery-holdup incident. His presence at the situs of the crime was in penetrated his body hitting his vital organs along the way belies the claim of
accordance with the performance of his duty. However, proof that the shooting and the accused that the victim was facing him and had just missed his head with
ultimate death of Contreras was a necessary consequence of the due performance of an iron pipe, as instead the victim must have instinctively shielded his body
his duty as a policeman is essential to exempt him from criminal liability. with his left arm.

As we see it, petitioner’s posturing that he shot Contreras because the latter tried to Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is
strike him with a steel pipe was a mere afterthought to exempt him from criminal intriguing. As it is, petitioner did not report the same to Police Investigator Banez
liability. when he reported back to the police station after the shooting incident. It was only
when a lead pipe was recovered from the scene and brought to the police station that
We see no plausible basis to depart from the Sandiganbayan’s findings that there petitioner conveniently remembered Contreras trying to hit him with a pipe. Such a
was no reason for the petitioner to shoot Contreras. The latter was unarmed and had vital information could not have escaped the petitioner’s mind. We are thus inclined to
already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shot him on believe that the alleged actuation of Contreras, which could have justified petitioner’s
the left arm. Prosecution witness Ayson, who was then behind the petitioner when the shooting him, was nothing but a concocted story to evade criminal liability. Indeed,
latter shot Contreras, testified that to the victim’s utterances, the petitioner even knowing that he shot Contreras, the least that the petitioner should have done was to
responded, "Anong hindi ako," and immediately shot Contreras.8 As correctly bring with him to the police station the very pipe with which Contreras tried to attack
observed by the Sandiganbayan: him. As borne by the evidence, however, it was only after a police investigator
referred to the scene that the lead pipe surfaced.
Besides being self-serving (with respect to the accused) and biased (with respect to
his co-policemen-witnesses), We find (1) the claim of the accused and his co- Petitioner would likewise argue that the testimony of prosecution witness Ayson was
policemen-witnesses that the victim (Contreras) attacked the said accused and (2) incredible and riddled with inconsistencies.

42 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

The alleged contradictions cited by the petitioner, i.e. where the victim was shot, IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the
where he died, and as to whether Ayson left his house after the shooting incident, are Sandiganbayan is AFFIRMED in all respects.
but minor details which do not affect Ayson’s credibility. We have held time and again
that few discrepancies and inconsistencies in the testimony of a witness referring to No pronouncement as to costs.
minor details and not in actuality touching upon the central fact of the crime, do not
impair his credibility. Quite the contrary, such minor inconsistencies even tend to
strengthen credibility because they discount the possibility that the testimony was SO ORDERED.
rehearsed.9
G.R. No. 161308               January 15, 2014
For sure, the record reveals that Ayson’s answers to the questions propounded by the
defense counsel are clear and categorical. As to where the victim died, Ayson RICARDO MEDINA, JR. y ORIEL, Petitioner,
clarified that the victim was already at the rooftop even before the arrival of the police vs.
officers. As to why he was not able to warn Mamangun that the victim was his PEOPLE OF THE PHILIPPINES, Respondent.
relative, Ayson explained that he was not able to utter any word because when
Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at the latter.10 As to the DECISION
claim that Ayson was also on the roof, record shows that the robbery-holdup
happened at around 8:00 in the evening. Before the policemen arrived, Ayson and
Contreras were already pursuing the robber.11 Ayson also testified that when the BERSAMIN, J.:
victim was shot by the petitioner, the former fell on his left side unconscious; that he
did not leave his house after the incident because he was afraid that the policemen Credibility of witnesses is determined by the conformity of their testimonies to human
would detain him.12 knowledge, observation and experience.

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

justifying circumstance in this case. For, from the above admitted, uncontroverted or
established facts, the most important element of unlawful aggression on the part of
Ricardo Medina Jr. (Ricardo) appeals by petition for review on certiorari the
the victim to justify a claim of self defense was absent. Lacking this essential and
affirmance of his conviction for homicide with modification of the penalty and civil
primary element of unlawful aggression, petitioner’s plea of self-defense, complete or
liability by the Court of Appeals (CA) through the decision promulgated on July 7,
incomplete, must have to fail.
2003.1 He had assailed his conviction handed down under the decision rendered on
January 31, 2001by the Regional Trial Court (RTC), Branch 266, in Pasig City. 2 His
To be sure, acts in the fulfillment of a duty, without more, do not completely justify the brother and co-accused, Randolf Medina (Randolf), was acquitted by the RTC for
petitioner’s firing the fatal gunshot at the victim. True, petitioner, as one of the insufficiency of evidence.
policemen responding to a reported robbery then in progress, was performing his duty
as a police officer as well as when he was trying to effect the arrest of the suspected
Antecedents
robber and in the process, fatally shoot said suspect, albeit the wrong man. However,
in the absence of the equally necessary justifying circumstance that the injury or
offense committed be the necessary consequence of the due performance of such This case concerns the fatal stabbing of Lino Mulinyawe (Lino) between 9:00 and
duty, there can only be incomplete justification, a privileged mitigating circumstance 10:00 o’clock in the evening of April 3, 1997 at Jabson Street in Acacia,
under Articles 13 and 69 of the Revised Penal Code. Pinagbuhatan, Pasig City. The stabbing was preceded by a fight during a basketball
game between Ross Mulinyawe, Lino’s son, and Ronald Medina, the younger brother
of Ricardo and Randolf. In that fight, Ronald had hit Ross with a piece of stone.
There can be no quibbling that there was no rational necessity for the killing of
Hearing about the involvement of his brother in the fight, Randolf rushed to the scene
Contreras. Petitioner could have first fired a warning shot before pulling the trigger
and sent Ronald home. Ross was brought to the hospital for treatment. Once Lino
against Contreras who was one of the residents chasing the suspected robber.
learned that his son had sustained a head injury inflicted by one of the Medinas, he
forthwith went towards the house of the Medinas accompanied by his drinking
All told, we find no reversible error committed by the Sandiganbayan in convicting the buddies, Jose Tapan and Abet Menes. He had a bread knife tucked in the back, but
petitioner of the crime of Homicide attended by the privileged mitigating circumstance his companions were unarmed. Along the way, Lino encountered Randolf whom he
of incomplete justifying circumstance of having acted in the performance of his duty confronted about the fight. The two of them had a heated argument. Although Randolf
as a policeman and the generic mitigating circumstance of voluntary surrender. tried to explain what had really happened between Ross and Ronald, Lino lashed out

43 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

at Randolf and gripped the latter’s hand. Tapan almost simultaneously punched The Defense claimed that it was Lino who had attacked Ricardo with a knife, and that
Randolf in the face. Lino, already holding the knife in his right hand, swung the knife Lino had accidentally stabbed himself by falling frontward and into his own knife.
at Randolf who was not hit. Randolf retreated towards the store and took two empty
bottles of beer, broke the bottles and attacked Lino with them. Arriving at the scene, Judgment of the RTC
Ricardo saw what was happening, and confronted Lino. A commotion ensued
between them. Ricardo entered their house to get a kitchen knife and came out. Lino
made a thrust at Ricardo but failed to hit the latter, who then stabbed Lino on the left In its judgment rendered on January 31, 2001,6 the RTC acquitted Randolf but
side of his chest, near the region of the heart. Lino fell face down on the ground. After convicted Ricardo of homicide. It found no evidence of conspiracy between Randolf
that, Ricardo walked away, while Randolf threw the broken bottles at the fallen Lino. and Ricardo because their actions appeared to be independent and separate from
each other and did not show that they had mounted a joint attack against Lino. It
rejected Ricardo’s defense that the fatal stab wound of Lino had been self-inflicted,
Lino’s injuries were described as follows: ratiocinating that:

Fairly nourished, fairly developed male cadaver, in rigor mortis, with postmortem The fatal wound of the deceased is: ‘stab wound, left mamary [sic] region, measuring
lividity at the dependent portions of the body. Conjunctive lips and nailbeds are pale. 3.6 by 1.4 cm, 5.5 cm from the anterior midline, 12 cm deep, directed posteriorwards,
downwards, and medialwards, thru the 4th left intercostal space, piercing the
HEAD, CHEST AND LEFT KNEE: pericardial sac and left ventricle.’ (See Exh. J).

(1) Lacerated wound, left parietal region, measuring 2 by 0.7 cm, 5 cm from Randolf Medina testified that Lino Mulinyawe attacked him with a knife held with his
the midsagittal line. right hand. The trajectory of the stab wound sustained by Lino Mulinyawe at his left
mammary region as shown by the Medico Legal Report and Medico Legal
(2) Abrasion, left parietal region, measuring 1.2 by 0.6 cm, 8 cm from the Examination on the cadaver of the deceased (Exhs. J and L) is incompatible and
anterior midline. inconsistent with the defense of the accused that when Mulinyawe was making a
thrust, he fell frontward and accidentally stabbed himself.
(3) Abrasion left maxillary region, measuring 2 by 0.3, 4.5 cm, from the
anterior midline. If the knife was held with the right hand of Lino Mulinyawe, the stab wound would not
have been from the ‘anterior midline, 12 cm deep, directed posteriorwards,
downwards, and medialwards, thru the 4th left intercostal space, piercing the
(4) Stab wound, left mammary region, measuring 3.6 by 1.4 cm, 5.5 cm from pericardial sac and left ventricle.’ The trajectory of the stab wound would have been
the anterior line, 12 cm deep, directed posteriorwards, downwards, and leftward and upward the body of the deceased if he really fell frontward upon
medialwards, thru the 4th left intercostal space, piercing the pericardial sac it.7 (Emphasis supplied)
and left ventricle.
The RTC disposed and decreed:
Cause of death is Stab wound of the chest.3
WHEREFORE, postulates considered, this Court ACQUITS Randolf Medina for
On April 4, 1997, the Office of the City Prosecutor of Pasig City charged Randolf with insufficiency of evidence to prove his guilt of the charge of homicide against him.
homicide.4 The information was amended with leave of court to include Ricardo as a
co-conspirator, alleging thusly:
However, the evidence of the prosecution has proven beyond reasonable doubt the
GUILT of the accused Ricardo Medina, Jr. y Oriel for homicide and he is hereby
On or about April 3, 1997 in Pasig City and within the jurisdiction of this Honorable sentenced with a penalty of imprisonment of Fourteen (14) years and Eight (8)
Court, the accused, conspiring and confederating together and both of them mutually Months and One (1) day to Seventeen (17) years and Four (4) Months of reclusion
helping and aiding one another, with intent to kill, did then and there willfully, temporal in its medium period there being neither aggravating nor mitigating
unlawfully and feloniously attack, assault, stab and employ personal violence upon circumstance (Art. 64, par. 1, Revised Penal Code).
the person of Lino M. Mulinyawe, thereby inflicting upon the latter stab wound, which
directly caused his death.
The widow Marivi Mulinyawe is hereby awarded the amount of Thirty Thousand
Pesos (₱30,000.00) as actual damages and the amount of Fifty Thousand Pesos
Contrary to law.5 (₱50,000.00) as moral damages, payable by Ricardo Medina, Jr. y Oriel.
44 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
The bonds posted by both accused are hereby cancelled. II

SO ORDERED.8 THE COURT OF APPEALS GRAVELY ERRED IN ADOPTING THE TRIAL COURT’S
OPINION THAT THE ‘FATAL WOUND COULD NOT HAVE BEEN SELF-INFLICTED’
Decision of the CA WHICH WAS THE DIRECT OPPOSITE OF THE OPINION OF THE ONLY MEDICO-
LEGAL EXPERT PRESENTED WHO POSITIVELY TESTIFIED THAT THE FATAL
WOUND CAN POSSIBLY BE SELF-INFLICTED.
Ricardo appealed, but the CA affirmed his conviction with modification of the penalty
and the civil liability under the decision promulgated on July 7, 2003,9 to wit:
III
WHEREFORE, premises considered, the present appeal is hereby DISMISSED and
the decision appealed from in Criminal Case No. 112091 is hereby AFFIRMED with THE COURT OF APPEALS ERRED IN MAKING A FINDING THAT THE
MODIFICATIONS in that accused-appellant Ricardo Medina, Jr. y Oriel is hereby [PETITIONER] STABBED THE DECEASED BUT DISREGARDED X X X THE
instead sentenced to suffer an indeterminate prison term of eight (8) years and one JUSTIFYING CIRCUMSTANCE OF DEFENSE OF A RELATIVE (ART. 11, RPC) X X
(1) day to prision mayor, as minimum, to fourteen (14) years, eight (8) months and X
one (1) day of reclusion temporal, as maximum, and that the award of actual
damages is hereby reduced from Thirty Thousand Pesos (₱30,000.00) to IV

Twenty Thousand Pesos (₱20,000.00) and the sum of Fifty Thousand Pesos THE COURT OF APPEALS, EVEN ON THE ASSUMPTION THAT PETITIONER
(₱50,000.00) is further granted as death indemnity in addition to the award of Fifty STABBED LINO MULINYAWE, DID NOT IMPOSE THE PROPER SENTENCE BY
Thousand Pesos (₱50,000.00) as moral damages. DISREGARDING THE PRESENCE OF MITIGATING CIRCUMSTANCES AND THE
LACK OF AGGRAVATING CIRCUMSTANCE ATTENDANT TO THE CASE.11
With costs against the accused-appellant.
Ruling of the Court
SO ORDERED.
The appeal has no merit.
10
After his motion for reconsideration was denied on November 21, 2003,  Ricardo
appealed to the Court. First of all, Ricardo argues that his stabbing and inflicting of the fatal wound on Lino
were not proven beyond reasonable doubt.
Issues
The argument of Ricardo is a mere reiteration of his submissions that the CA had
Ricardo now submits the following errors for consideration, namely: already exhaustively considered and passed upon. He has not added anything of
substance or weight to persuasively show that the CA had erred in affirming the RTC.
I
Time and again, this Court has deferred to the trial court’s factual findings and
evaluation of the credibility of witnesses, especially when affirmed by the CA, in the
THE LOWER COURT GRAVELY ERRED IN ITS FACTUAL FINDING THAT THE absence of any clear showing that the trial court overlooked or misconstrued cogent
[PETITIONER] STABBED LINO MULINYAWE IN SPITE OF THE FACT THAT: facts and circumstances that would justify altering or revising such findings and
evaluation.12 This is because the trial court’s determination proceeds from its first-
1. THE PROSECUTION WITHHELD THE PRESENTATION OF THE hand opportunity to observe the demeanor of the witnesses, their conduct and
ACTUAL KNIVES DURING THE HEARING OF THE CASE – WHICH attitude under grilling examination, thereby placing the trial court in the unique
PRESENTATION AND BLOOD ANALYSIS ON THE TWO KNIVES COULD position to assess the witnesses’ credibility and to appreciate their truthfulness,
HAVE PROVEN THAT LINO MULINYAWE FELL ON HIS OWN KNIFE. honesty and candor.13 But here Ricardo has not projected any strong and compelling
reasons to sway the Court into rejecting or revising such factual findings and
2. THE MEDICO-LEGAL TESTIMONY CORROBORATED THE FACT THAT evaluation in his favor.
LINO MULINYAWE FELL ON HIS OWN KNIFE.

45 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Secondly, Ricardo contends that the State did not present as evidence in court the defense of denial is not corroborated by disinterested and credible witnesses: the
two knives wielded by him and Lino despite repeated demands for their presentation; mother of the accused whose presence in the crime scene was not sufficiently
that had the knives been presented, it could have been demonstrated to the trial court established and Edgar Erro whose testimony is found to be doubtful and not without
that the smaller knife used by Lino had more blood stains than the knife held by him bias.14
and would fit the size of the mortal wound; that his assertion that Lino had stabbed
himself when he stumbled and lost his balance while swinging his knife at Randolf The non-identification and non-presentation of the weapon actually used in the killing
would have been thereby validated; and that in his testimony, Dr. Emmanuel Aranas did not diminish the merit of the conviction primarily because other competent
of the PNP Crime Laboratory Service, Southern Police District, did not rule out the evidence and the testimonies of witnesses had directly and positively identified and
possibility that the wounds sustained by Lino were self-inflicted. incriminated Ricardo as the assailant of Lino.15 Hence, the establishment beyond
reasonable doubt of Ricardo’s guilt for the homicide did not require the production of
The contention deserves no serious consideration. the weapon used in the killing as evidence in court, for in arriving at its findings on the
culpability of Ricardo the RTC, like other trial courts, clearly looked at, considered and
To start with, the following findings of the CA indicate that the evidence supporting the appreciated the entirety of the record and the evidence. For sure, the weapon actually
conviction for homicide was already overwhelming even without the presentation of used was not indispensable considering that the finding of guilt was based on other
the knife held by the victim, to wit: evidence proving his commission of the crime.16

Reviewing the records, We find that appellant’s guilt as the perpetrator of the unlawful In addition, the witnesses incriminating Ricardo were not only credible but were not
killing of the victim Lino Mulinyawe had been adequately proven by prosecution shown to have harbored any ill-motive towards him. They were surely entitled to full
evidence, both testimonial and physical. The credible and categorical testimonies of faith and credit for those reasons, and both the RTC and the CA did well in according
two (2) eyewitnesses during the entire incident on the night of April 3, 1997, Jeffrey such credence to them. Their positive identification of him as the assailant prevailed
and Sherwin, positively point to appellant as the one (1) who delivered the single fatal over his mere denial, because such denial, being negative and self-serving evidence,
stabbing blow upon the victim while the latter was trying to counter the assault of was undeserving of weight by virtue of its lack of substantiation by clear and
appellant’s brother, co-accused Randolf who was then holding a broken convincing proof.17 Hence, his denial had no greater evidentiary value than the
bottle.1âwphi1 The lone knife thrust was directed at the heart of the victim, the wound affirmative testimonies of the credible witnesses presented against him.18
penetrating said vital organ up to 12 centimeters deep, the direction, trajectory and
depth of the stab wound clearly showing the intent to kill him. The medico-legal And, thirdly, Ricardo’s attribution of serious error to the CA for not appreciating the
findings of Dr. Aranas sufficiently corroborate the account of said eyewitnesses that justifying circumstance of defense of a relative in his favor was bereft of any support
the victim was attacked frontally and the fatal stab wound caused by a single-bladed from the records.
kitchen knife such as the one (1) identified in court, previously identified by the
witness but only the photographs thereof were formally offered in evidence by the In order that defense of a relative is to be appreciated in favor of Ricardo, the
prosecution. following requisites must concur, namely: (1) unlawful aggression by the victim; (2)
reasonable necessity of the means employed to prevent or repel the aggression; and
The totality of prosecution evidence more than satisfactorily proves the commission of (3) in case the provocation was given by the person attacked, that the person making
the offense and appellant’s authorship thereof. Contrary to appellant’s contention, the the defense took no part in the provocation.19 Like in self-defense, it is the accused
non-presentation of blood samples from the victim and the accused as well as the who carries the burden to prove convincingly the attendance and concurrence of
instrument which accused used in perpetrating his felonious acts do not negate these requisites because his invocation of this defense amounts to an admission of
criminal liability – it is enough for the prosecution to establish by the required quantum having inflicted the fatal injury on the victim.
of proof that a crime was committed and the accused was the author thereof. The
presentation of the weapon is not a prerequisite for conviction. Such presentation and In invoking defense of a relative, Ricardo states that his immediate impulse upon
identification of the weapon used are not indispensable to prove the guilt of the seeing Randolf being attacked by Lino with a knife was to get his own weapon and to
accused much more so where the perpetrator has been positively identified by a aid in the defense of Randolf. But that theory was inconsistent with his declaration at
credible witness. Appellant’s insistence, therefore, that the presentation of the two (2) the trial that Lino’s fatal wound had been self-inflicted, as it presupposes direct
knives would prove his innocence is futile, irrelevant and immaterial, in the face of responsibility for inflicting the mortal wound. Thus, his defense was unworthy of belief
positive identification by two unbiased and credible eyewitnesses. Positive due to its incongruity with human experience.
identification where categorical and consistent and without any showing of ill-motive
on the part of the eyewitnesses testifying on the matter prevails over a denial. Denial
being negative evidence which is self-serving in nature, cannot prevail over the Verily, the issue of credibility, when it is decisive of the guilt or innocence of the
positive identification of prosecution witnesses. More so in this case where the accused, is determined by the conformity of the conflicting claims and recollections of
46 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
the witnesses to common experience and to the observation of mankind as probable The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision5 of the
under the circumstances. It has been appropriately emphasized that "[w]e have no Regional Trial Court, Branch 41, Dagupan City, which found petitioners guilty beyond
test of the truth of human testimony, except its conformity to our knowledge, reasonable doubt of attempted murder.
observation, and experience. Whatever is repugnant to these belongs to the
miraculous and is outside of judicial cognizance."20 In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez
(Victor), along with four (4) others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo),
In fine, Ricardo has not convinced the Court in this appeal that the RTC and the CA Sonny Boy Velasquez (Sonny), and Ampong Ocumen (Ampong) - were charged with
overlooked, or misappreciated, or misread some fact or circumstance of weight and attempted murder under Article 248,6 in relation to Article 6,7 of the Revised Penal
consequence that would have changed the outcome of the case in his favor. Code, as follows:

The Court needs to raise the civil indemnity from PS0,000.00 to ₱75,000.00 in order That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and
to conform to the current judicial policy on the matter. 21The other awards of civil within the jurisdiction of this Honorable Court, the above named accused while armed
liability are sustained because of the absence of any challenge against them. with stones and wooden poles, conspiring, confederating and mutually helping one
another, with intent to kill, with treachery and abuse of superior strength, did, then and
WHEREFORE, the Court DENIES the petition for review for its lack of merit; there willfully, unlawfully and feloniously attack, maul and hit JESUS DEL MUNDO
AFFIRMS the decision promulgated on July 7, 2003 in all respects, subject to the inflicting upon him injuries in the vital parts of his body, the said accused having thus
MODIFICATION that the civil indemnity is increased to ₱75,000.00; and ORDERS the commenced a felony directly by overt acts, but did not perform all the acts of
petitioner to pay the costs of suit. execution which could have produced the crime of Murder but nevertheless did not
produce it by reason of some causes or accident other than their own spontaneous
desistance to his damage and prejudice.
SO ORDERED.
Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code.8
March 15, 2017
All accused, except Ampong, who remained at large, pleaded not guilty upon
G.R. No. 195021 arraignment.9 Trial then ensued.10

NICOLAS VELASQUEZ and VICTOR VELASQUEZ, Petitioners According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses
vs Jesus and Ana Del Mundo (Del Mundo Spouses) left their home to sleep in their nipa
PEOPLE OF THE PHILIPPINES, Respondent hut, which was about 100 meters away.11 Arriving at the nipa hut, the Del Mundo
Spouses saw Ampong and Nora Castillo (Nora) in the midst of having sex.12 Aghast at
DECISION what he perceived to be a defilement of his property, Jesus Del Mundo (Jesus)
shouted invectives at Ampong and Nora, who both scampered away.13 Jesus decided
LEONEN, J.: to pursue Ampong and Nora, while Ana Del Mundo (Ana) left to fetch their son, who
was then elsewhere.14 Jesus went to the house of Ampong's aunt, but neither
Ampong nor Nora was there.15 He began making his way back home when he was
An accused who pleads a justifying circumstance under Article 11 of the Revised blocked by Ampong and his fellow accused.16
Penal Code1 admits to the commission of acts, which would otherwise engender
criminal liability. However, he asserts that he is justified in committing the acts. In the
process of proving a justifying circumstance, the accused risks admitting the imputed Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a
acts, which may justify the existence of an offense were it not for the exculpating stone. Petitioner Victor also hit Jesus' left eyebrow with a stone. 17 Accused Felix did
facts. Conviction follows if the evidence for the accused fails to prove the existence of the same, hitting Jesus above his left ear.18 Accused Sonny struck Jesus with a
justifying circumstances. bamboo, hitting him at the back, below his right shoulder. 19 Ampong punched Jesus
on his left cheek. The accused then left Jesus on the ground, bloodied. Jesus crawled
and hid behind blades of grass, fearing that the accused might return. He then got up
Through this Petition for Review on Certiorari2 under Rule 45 of the Rules of Court, and staggered his way back to their house.20
the accused petitioners pray that the assailed March 17, 2010 Decision3 and
December 10, 2010 Resolution4 of the Court of Appeals in CA-G.R. CR. No. 31333 be
reversed and set aside, and that they be absolved of any criminal liability. Jesus testified on his own ordeal. In support of his version of the events, the
prosecution also presented the testimony of Maria Teresita Viado (Maria Teresita).
47 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Maria Teresita was initially approached by Jesus' wife, Ana, when Jesus failed to In its July 25, 2007 Decision,37 the Regional Tnal Court, Branch 41, Dagupan City
immediately return home.21 She and Ana embarked on a search for Jesus but were found petitioners and Felix Caballeda guilty beyond reasonable doubt of attempted
separated.22 At the sound of a man being beaten, she hid behind some murder.38 The court also found Sonny Boy Velasquez guilty beyond reasorable doubt
bamboos.23 From that vantage point, she saw the accused mauling Jesus.24 The of less serious physical injuries.39 He was found to have hit Jesus on the back with a
prosecution noted that about four (4) or five (5) meters away was a lamp post, which bamboo rod. Jojo Del Mundo was acquitted.40 The case was archived with respect to
illuminated the scene.25 Ampong, as he remained at large.41

At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she The dispositive portion of its Decision read:
had witnessed (Jesus had managed to return home by then).26 Ana and Maria
Teresita then brought Jesus to Barangay Captain Pili ta Villanueva, who assisted WHEREFORE, premises considered, judgment is hereby rendered finding accused
them in bringing Jesus to the hospital.27 NICOLAS VELASQUEZ, VICTOR VELASQUEZ and FELIX CABALLEDA guilty
beyond reasonable doubt of the crime of Attempted Murder defined and penalized
After undergoing an x-ray examination, Jesus was found to have sustained a crack in under Article 248 in relation to Art.ides 6, paragraph 3 and 51 of the Revised Penal
his skull.28 Dr. Jose D. De Guzman (Dr. De Guzman) issued a medico-legal certificate Code, and pursuant to the law, sentences each of them to suffer on (sic)
indicating the following findings: indeterminate penalty of four (4) years and one (1) day of Arrested (sic) Mayor in its
maximum period as minimum to eight (8) years of Prison (sic) Correctional (sic) in its
x.x. Positive Alcoholic Breath maximum period to Prison (sic) Mayor in its medium period as maximum and to pay
proportionately to private complainant Jesus del Mundo the amount of Php55,000.00
as exemplary damages, and to pay the cost of suit.
3 ems lacerated wound fronto-parietal area left
The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond
1 cm lacerated wound frontal area left reasonable doubt of the [crime] of Less Serious Physical Injuries defined and
penalized under Article 265 of the Revised Penal Code and pursuant thereto, he is
Abrasion back left multi linear approximately 20 cm hereby sentenced to suffer the penalty of Arresto Mayor on one (1) month and one (1)
day to six (6) months.
Abrasion shoulder left, confluent 4x10 cm
Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of
Depressed skull fracture parietal area left. evidence.

x.x.29 With respect to accused AMPONG OCUMEN, the case against him is archived
without prejudice to its revival as soon as he is arrested and brought to the jurisdiction
of this Court.42
Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six
(6) weeks.30 Jesus was also advised to undergo surgery.31 He was, however, unable
to avail of the required medical procedure due to shortage of funds.32 Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional
Trial Court denied.43

The defense offered a different version of events.

On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners
and Caballeda were only liable for serious physical injuries because "first, intent to kill
According to the accused, in the evening of May 24, 2003, petitioner Nicolas was was not attendant inasmuch as the accused-appellants, despite their superiority in
roused in his sleep by his wife, Mercedes Velasquez (Mercedes), as the nearby numbers and strength, left the victim alive and, second, none of [the] injuries or
house of petitioner Victor was being stoned.33 wounds inflicted upon the victim was fatal." 44 The Court of Appeals thus modified the
sentence imposed on petitioners and Caballeda.
Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door.
Several neighbors - the other accused - allegedly tried to pacify Jesus. 34 Jesus, who The dispositive portion of its assailed March 1 7, 2010 Decision45 read:
was supposedly inebriated, vented his ire upon Nicolas and the other accused, as
well as on Mercedes.35 The accused thus responded and countered Jesus' attacks,
leading to his injuries.36
48 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, A person invoking self-defense (or defense of a relative) admits to having inflicted
Regional Trial Court of Dagupan City is hereby MODIFIED. Instead, accused- harm upon another person - a potential criminal act under Title Eight (Crimes Against
appellants are found guilty of Serious Physical Injuries and each of them is sentenced Persons) of the Revised Penal Code. However, he or she makes the additional,
to suffer the penalty of imprisonment of six (6) months of arresto mayor as minimum defensive contention that even as he or she may have inflicted harm, he or she
to four (4) years and two (2) months of prisi6n correccional  as maximum. nevertheless incurred no criminal liability as the looming danger upon his or her own
person (or that of his or her relative) justified the infliction of protective harm to an
SO ORDERED.46 (Emphasis in the original) erstwhile aggressor.

Following the denial of their Motion for Reconsideration, petitioners filed the present The accused's admission enables the prosecution to dispense with discharging its
Petition.47 They insist on their version of events, particularly on how they and their co- burden of proving that the accused performed acts, which would otherwise be the
accused allegedly merely acted in response to Jesus Del Mundo's aggressive basis of criminal liability. All that remains to be established is whether the accused
behavior. were justified in acting as he or she did. To this end, the accused's case must rise on
its own merits:
For resolution is the issue of whether petitioners may be held criminally liable for the
physical harm inflicted on Jesus Del Mundo. More specifically, this Court is asked to It is settled that when an accused admits [harming] the victim but invokes self-defense
determine whether there was sufficient evidence: first, to prove that justifying to escape criminal liability, the accused assumes the burden to establish his plea by
circumstances existed, and second, to convict the petitioners. credible, clear and convincing evidence; otherwise, conviction would follow from his
admission that he [harmed] the victim. Self-defense cannot be justifiably appreciated
when uncorroborated by independent and competent evidence or when it is extremely
I doubtful by itself. Indeed, in invoking self-defense, the burden of evidence is shifted
and the accused claiming self-defense must rely on the strength of his own evidence
Petitioners' defense centers on their claim that they acted in defense of themselves, and not on the weakness of the prosecution.48
and also in defense of Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke
the first and second justifying circumstances under Article 11 of the Revised Penal To successfully invoke self-defense, an accused must establish: "(1) unlawful
Code: aggression on the part of the victim; (2) reasonable necessity of the means employed
to prevent or repel such aggression; and (3) lack of sufficient provocation on the part
ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal of the person resorting to self-defense."49 Defense of a relative under Article 11 (2) of
liability: the Revised Penal Code requires the same first two (2) requisites as self-defense
and, in lieu of the third "in case the provocation was given by the person attacked,
1. Anyone who acts in defense of his person or rights, provided that the following that the one making the defense had no part therein."50
circumstances concur:
The first requisite - unlawful aggression - is the condition sine qua non of self-defense
First. Unlawful aggression; and defense of a relative:

Second. Reasonable necessity of the means employed to prevent or repel it; At the heart of the claim of self-defense is the presence of an unlawful aggression
committed against appellant. Without unlawful aggression, self-defense will not have
a leg to stand on and this justifying circumstance cannot and will not be appreciated,
Third. Lack of sufficient provocation on the part of the person defending even if the other elements are present. Unlawful aggression refers to an attack
himself. amounting to actual or imminent threat to the life and limb of the person claiming self-
defense.51
2. Anyone 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 The second requisite - reasonable necessity of the means employed to prevent or
by affinity in the same degrees, and those by consanguinity within the fourth civil repel the aggression - requires a reasonable proportionality between the unlawful
degree, provided that the first and second requisites prescribed in the next preceding aggression and the defensive response: "[t]he means employed by the person
circumstance are present, and the further requisite, in case the provocation was given invoking self-defense contemplates a rational equivalence between the means of
by the person attacked, that the one making defense had no part therein. attack and the defense."52 This is a matter that depends on the circumstances:

49 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Reasonable necessity of the means employed does not imply material The Court takes judicial notice of (the) big difference in the physical built of the private
commensurability between the means of attack and defense. What the law requires is complainant and accused Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda
rational equivalence, in the consideration of which will enter as principal factors the and Jojo del Mundo, private complainant is shorter in height and of smaller built than
emergency, the imminent danger to which the person attacked is exposed, and the all the accused.
instinct, more than the reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the The said accused could have had easily held the private complainant, who was
imminent danger of such injury ... As WE stated in the case of People vs. Lara, in heavily drunk as they claim, and disarmed him without the need of hitting him.58
emergencies of this kind, human nature does not act upon processes of formal
reason but in obedience to the instinct of self-preservation; and when it is apparent
that a person has reasonably acted upon this instinct, it is the duty of the courts to The injuries which Jesus were reported to have sustained speak volumes:
sanction the act and hold the act irresponsible in law for the
consequences.53 (Citations omitted) 3 ems lacerated wound fronto-parietal area left

The third requisite - lack of sufficient provocation - requires the person mounting a 1 cm lacerated wound frontal area left
defense to be reasonably blameless. He or she must not have antagonized or incited
the attacker into launching an assault. This also requires a consideration of Abrasion back left multi linear approximately 20 cm
proportionality. As explained in People v. Boholst-Caballero,54 "[p]rovocation is
sufficient when it is proportionate to the aggression, that is, adequate enough to impel
one to attack the person claiming self-defense."55 Abrasion shoulder left, confluent 4x 10 cm

II Depressed skull fracture parietal area left.59

We find petitioners' claims of self-defense and defense of their relative, Mercedes, to Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to
be sorely wanting. him by petitioners and their co-accused was still glaringly in excess of what would
have sufficed to neutralize him. It was far from a reasonably necessary means to
repel his supposed aggression. Petitioners thereby fail in satisfying the second
Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by requisite of self-defense and of defense of a relative.
barging into the premises of petitioners' residences, hacking Victor's door, and
threatening physical harm upon petitioners and their companions. That is, that
unlawful aggression originated from Jesus. III

Contrary to what a successful averment of self-defense or defense of a relative In addition to their tale of self-defense, petitioners insist that the testimony of Maria
requires, petitioners offered nothing more than a self-serving, uncorroborated claim Teresita is not worthy of trust because she parted ways with Ana while searching for
that Jesus appeared out of nowhere to go berserk in the vicinity of their homes. They Jesus.60 They characterize Maria Teresita as the prosecution's "lone
failed to present independent and credible proof to back up their assertions. The eyewitness."61 They make it appear that its entire case hinges on her. Thus, they
Regional Trial Court noted that it was highly dubious that Jesus would go all the way theorize that with the shattering of her credibility comes the complete and utter ruin of
to petitioners' residences to initiate an attack for no apparent reason.56 the prosecution's case.62 Petitioners claim that Maria Teresita is the prosecution's
lone eyewitness at the same time that they acknowledge Jesus' testimony, which they
dismissed as laden with inconsistencies.63
The remainder of petitioners' recollection of events strains credulity. They claim that
Jesus launched an assault despite the presence of at least seven (7) antagonists:
petitioners, Mercedes, and the four (4) other accused. They further assert that Jesus These contentions no longer merit consideration.
persisted on his assault despite being outnumbered, and also despite their and their
co-accused's bodily efforts to restrain Jesus. His persistence was supposedly so likely Petitioners' averment of justifying circumstances was dispensed with the need for
to harm them that, to neutralize him, they had no other recourse but to hit him on the even passing upon their assertions against Maria Teresita's and Jesus'
head with stones for at least three (3) times, and to hit him on the back with a bamboo testimonies.1âwphi1 Upon their mere invocation of self-defense and defense of a
rod, aside from dealing him with less severe blows.57 relative, they relieved the prosecution of its burden of proving the acts constitutive of
the offense. They took upon themselves the burden of establishing their innocence,
As the Regional Trial Court noted, however:
50 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
and cast their lot on their capacity to prove their own affirmative PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
allegations.1âwphi1 Unfortunately for them, they failed. vs.
ALFONSO FONTANILLA y OBALDO, Accused-Appellant.
Even if we were to extend them a measure of consideration, their contentions fail to
impress. DECISION

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," BERSAMIN, J.:

upon whose testimony the prosecution's case was to rise or fall, is plainly erroneous.
Apart from her, Jesus testified about his own experience of being mauled by An indispensable requisite of self-defense is that the victim must have mounted an
petitioners and their co-accused. Maria Teresita's testimony was only in support of unlawful aggression against the accused. Without such unlawful aggression, the
what Jesus recounted. accused cannot invoke self-defense as a justifying circumstance.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways The accused prays for the review and reversal of the decision promulgated on June
with Ana while searching for Jesus diminishes her credibility. No extraordinary 29, 2006,1 whereby the Court of Appeals (CA) affirmed his conviction for murder
explanation is necessary for this. Their having proceeded separately may be handed down by the Regional Trial Court (RTC), Branch 34, in Balaoan, La Union.
accounted for simply by the wisdom of how independent searches enabled them to
cover more ground in less time.
Antecedents
Regarding Jesus' recollection of events, petitioners' contention centers on Jesus'
supposedly flawed recollection of who among the six (6) accused dealt him, which At around 9:30 p.m. on October 29, 1996, Jose Olais was walking along the provincial
specific blow, and using which specific weapon.64 These contentions are too trivial to road in Butubut Oeste, Balaoan, La Union when Alfonso Fontanilla suddenly struck
even warrant an independent, point by point audit by this Court. him in the head with a piece of wood called bellang.2 Olais fell facedown to the
ground, but Fontanilla hit him again in the head with a piece of stone. Fontanilla
desisted from hitting Olais a third time only because Joel Marquez and Tirso Abunan,
Jurisprudence is replete with clarifications that a witness' recollection of crime need the sons-in-law of Olais, shouted at him, causing him to run away. Marquez and
not be foolproof: "Witnesses cannot be expected to recollect with exactitude every Abunan rushed their father-in-law to a medical clinic, where Olais was pronounced
minute detail of an event. This is especially true when the witnesses testify as to facts dead on arrival.3
which transpired in rapid succession, attended by flurry and excitement."65 This is
especially true of a victim's recollection of his or her own harrowing ordeal. One who
has undergone a horrifying and traumatic experience "cannot be expected to On April 25, 1997, the Office of the Provincial Prosecutor of La Union filed an
mechanically keep and then give an accurate account"66 of every minutiae. information for murder against Fontanilla in the RTC, viz:

Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which That on or about the 29th day of October 1996, along the Provincial Road at
specific blow can be forgiven. The merit of Jesus' testimony does not depend on Barangay Butubut Oeste, Municipality of Balaoan, Province of La Union, Philippines,
whether he has an extraordinary memory despite being hit on the head multiple and within the jurisdiction of this Honorable Court, the above-named accused, with
times. Rather, it is in his credible narration of his entire ordeal, and how petitioners intent to kill and with evident premeditation and treachery, did then and there willfully,
and their co-accused were its authors. On this, his testimony was unequivocal. unlawfully and feloniously attack, assault and strike with a long coconut night stick
and thereafter hit with a stone the head of Jose Olais, thereby inflicting on the latter
head wounds which caused the death of the latter, to the damage and prejudice of
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA- the heirs of said victim.
G.R. CR. No. 31333 is AFFIRMED.
CONTRARY TO LAW.4
SO ORDERED.
The accused pleaded not guilty.
G.R. No. 177743               January 25, 2012
The State presented Marquez and Abunan as its witnesses. They claimed that they
were only several meters away from Olais when Fontanilla struck him; that they

51 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

shouted at Fontanilla, who fled because of them; and that they were able to see and injury he might have suffered, having been immediately released from the
to identify Fontanilla as the attacker of their father-in-law because the area was then hospital;13 that Fontanilla’s failure to give any statement at the time he surrendered to
well-lighted.5 the police was inconsistent with his plea of self-defense;14 and that the manner of
attack against Olais established the attendance of treachery.15
Dr. Felicidad Leda, the physician who conducted the autopsy on the cadaver of Olais,
attested that her post-mortem examination showed that Olais had suffered a fracture On appeal, the CA affirmed the RTC, holding that Fontanilla did not establish the
on the left temporal area of the skull, causing his death. She opined that a hard object indispensable element of unlawful aggression; that his failure to report the incident to
or a severe force had hit the skull of the victim more than once, considering that the the police at the earliest opportunity, or even after he was taken into custody, negated
skull had been already fragmented and the fractures on the skull had been radiating.6 the plea of self-defense; and that the nature of the victim’s injury was a significant
physical proof to show a determined effort on the part of Fontanilla to kill him, and not
SPO1 Abraham Valdez, who investigated the slaying and apprehended Fontanilla, just to defend himself.16
declared that he had gone looking for Fontanilla in his house along with other
policemen; that Fontanilla’s father had denied that he was around; that their search of The CA ruled that treachery was attendant, because Olais had no inkling that a fatal
the house had led to the arrest of Fontanilla inside; and that they had then brought blow was looming upon him, and because Fontanilla was inconspicuously hidden
him to the police station.7 Valdez further declared that Fontanilla asserted that he from view when he struck Olais from behind, rendering Olais unable to retaliate.17
would only speak in court.8
Nonetheless, the CA rectified the penalty from reclusion perpetua to death to only
At the trial, Fontanilla claimed self-defense. He said that on the night of the incident, reclusion perpetua upon noting the absence of any aggravating or mitigating
he had been standing on the road near his house when Olais, wielding a nightstick circumstance, and disposed as follows:
and appearing to be drunk, had boxed him in the stomach; that although he had then
talked to Olais nicely, the latter had continued hitting him with his fists, striking him IN VIEW OF ALL THE FOREGOING, the appealed decision of the Regional Trial
with straight blows; that Olais, a karate expert, had also kicked him with both his legs; Court of Balaoan, La Union, Branch 34, in Criminal Case No. 2561 is
that he had thus been forced to defend himself by picking up a stone with which he hereby AFFIRMED with MODIFICATION that appellant Fontanilla is hereby
had hit the right side of the victim’s head, causing the latter to fall face down to the sentenced to suffer the penalty of reclusion perpetua. No cost.
ground; and that he had then left the scene for his house upon seeing that Olais was
no longer moving.9
SO ORDERED.18
Fontanilla’s daughter Marilou corroborated her father’s version.10
The accused is now appealing, insisting that the CA erred because:
On June 21, 2001, the RTC declared Fontanilla guilty as charged, and disposed
thusly: I.

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment THE TRIAL COURT GRAVELY ERRED IN IGNORING THE ACCUSED-
declaring he accused ALFONSO FONTANILLA Y OBALDO @ ‘Carlos’ guilty beyond APPELLANT’S CLAIM OF SELF-DEFENSE.
reasonable doubt of the crime of MURDER as defined and penalized in Art. 248 of
the Revised Penal Code, as amended by Republic Act No. 7659, Sec. 6, and thereby II.
sentences him to suffer the penalty of RECLUSION PERPETUA TO DEATH and to
indemnify the heirs of the victim in the amount of Fifty Thousand Pesos ( ₱50,000.00). EVEN GRANTING THAT ACCUSED-APPELLANT KILLED THE VICTIM,
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
SO ORDERED.11 APPELLANT OF THE CRIME OF MURDER WHEN THE QUALIFYING
CIRCUMSTANCE OF TREACHERY WAS NOT PROVEN BEYOND
The RTC rejected Fontanilla’s plea of self-defense by observing that he had "no REASONABLE DOUBT.
necessity to employ a big stone, inflicting upon the victim a mortal wound causing his
death"12 due to the victim attacking him only with bare hands. It noted that Fontanilla III.
did not suffer any injury despite his claim that the victim had mauled him; that
Fontanilla did not receive any treatment, and no medical certificate attested to any

52 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 FURTHERMORE, THE TRIAL COURT GRAVELY ERRED IN NOT held criminally liable unless he established self-defense by sufficient and satisfactory
APPRECIATING THE SPECIAL PRIVILEGE[D] MITIGATING proof.24 He should discharge the burden by relying on the strength of his own
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AND THE evidence, because the Prosecution’s evidence, even if weak, would not be
MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER. disbelieved in view of his admission of the killing.25 Nonetheless, the burden to prove
guilt beyond reasonable doubt remained with the State until the end of the
Ruling proceedings.

We affirm the conviction. Fontanilla did not discharge his burden. A review of the records reveals that, one,
Olais did not commit unlawful aggression against Fontanilla, and, two, Fontanilla’s act
of hitting the victim’s head with a stone, causing the mortal injury, was not
Fontanilla pleaded self-defense. In order for self-defense to be appreciated, he had to proportional to, and constituted an unreasonable response to the victim’s fistic attack
prove by clear and convincing evidence the following elements: (a) unlawful and kicks.
aggression on the part of the victim; (b) reasonable necessity of the means employed
to prevent or repel it; and (c) lack of sufficient provocation on the part of the person
defending himself.19 Unlawful aggression is the indispensable element of self-defense, Indeed, had Olais really attacked Fontanilla, the latter would have sustained some
for if no unlawful aggression attributed to the victim is established, self-defense is injury from the aggression. It remains, however, that no injury of any kind or gravity
unavailing, for there is nothing to repel.20 The character of the element of unlawful was found on the person of Fontanilla when he presented himself to the hospital;
aggression is aptly explained as follows: hence, the attending physician of the hospital did not issue any medical certificate to
him. Nor was any medication applied to him.26 In contrast, the physician who
examined the cadaver of Olais testified that Olais had been hit on the head more than
Unlawful aggression on the part of the victim is the primordial element of the justifying once. The plea of self-defense was thus belied, for the weapons used by Fontanilla
circumstance of self-defense. Without unlawful aggression, there can be no justified and the location and number of wounds he inflicted on Olais revealed his intent to kill,
killing in defense of oneself. The test for the presence of unlawful aggression under not merely an effort to prevent or repel an attack from Olais. We consider to be
the circumstances is whether the aggression from the victim put in real peril the life or significant that the gravity of the wounds manifested the determined effort of the
personal safety of the person defending himself; the peril must not be an imagined or accused to kill his victim, not just to defend himself.27
imaginary threat. Accordingly, the accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there must be a physical or material
attack or assault; (b) the attack or assault must be actual, or, at least, imminent; and The CA and the RTC found that treachery was attendant. We concur. Fontanilla had
(c) the attack or assault must be unlawful. appeared out of nowhere to strike Olais on the head, first with the wooden stick, and
then with a big stone, causing Olais to fall to the ground facedown. The suddenness
and unexpectedness of the attack effectively denied to Olais the ability to defend
Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and himself or to retaliate against Fontanilla.
(b) imminent unlawful aggression. Actual or material unlawful aggression means an
attack with physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury. Imminent unlawful The imposition of reclusion perpetua by the CA was warranted under Article 248 of
aggression means an attack that is impending or at the point of happening; it must not the Revised Penal Code,28 which prescribes reclusion perpetua to death as the
consist in a mere threatening attitude, nor must it be merely imaginary, but must be penalty for murder. Under the rules on the
offensive and positively strong (like aiming a revolver at another with intent to shoot or
opening a knife and making a motion as if to attack). Imminent unlawful aggression application of indivisible penalties in Article 63 of the Revised Penal Code,29 the lesser
must not be a mere threatening attitude of the victim, such as pressing his right hand penalty of reclusion perpetua is imposed if there are neither mitigating nor
to his hip where a revolver was holstered, accompanied by an angry countenance, or aggravating circumstances. Yet, the Court points out that the RTC erroneously
like aiming to throw a pot.21 imposed "RECLUSION PERPETUA TO DEATH" as the penalty. Such imposition was
bereft of legal justification, for reclusion perpetua and death, being indivisible, should
By invoking self-defense, however, Fontanilla admitted inflicting the fatal injuries that not be imposed as a compound, alternative or successive penalty for a single felony.
caused the death of Olais. It is basic that once an accused in a prosecution for In short, the imposition of one precluded the imposition of the other.
murder or homicide admitted his infliction of the fatal injuries on the deceased, he
assumed the burden to prove by clear, satisfactory and convincing evidence the The Court also modifies the limiting of civil damages by the CA and the RTC to only
justifying circumstance that would avoid his criminal liability.22 Having thus admitted the death indemnity of ₱50,000.00. When death occurs due to a crime, the damages
being the author of the death of the victim, Fontanilla came to bear the burden of to be awarded may include: (a) civil indemnity ex delicto for the death of the victim; (b)
proving the justifying circumstance to the satisfaction of the court, 23 and he would be
53 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
actual or compensatory damages; (c) moral damages; (d) exemplary damages; and moment that treachery was an attendant circumstance in murder, and, as such,
(e) temperate damages.30 inseparable and absorbed in murder. As well explained in People v. Catubig:38

Accordingly, the CA and the RTC should also have granted moral damages in The term "aggravating circumstances" used by the Civil Code, the law not having
addition to the death indemnity, which were of different kinds. 31 The death indemnity specified otherwise, is to be understood in its broad or generic sense. The
compensated the loss of life due to crime, but appropriate and reasonable moral commission of an offense has a two-pronged effect, one on the public as it breaches
damages would justly assuage the mental anguish and emotional sufferings of the the social order and the other upon the private victim as it causes personal sufferings,
surviving family of Olais.32 Although mental anguish and emotional sufferings of the each of which is addressed by, respectively, the prescription of heavier punishment
surviving family were not quantifiable with mathematical precision, the Court must for the accused and by an award of additional damages to the victim. The increase of
nonetheless strive to set an amount that would restore the heirs of the deceased to the penalty or a shift to a graver felony underscores the exacerbation of the offense
their moral status quo ante. Given the circumstances, ₱50,000.00 should be by the attendance of aggravating circumstances, whether ordinary or qualifying, in its
reasonable as moral damages, which, pursuant to prevailing jurisprudence,33 we are commission. Unlike the criminal liability which is basically a State concern, the award
bound to award despite the absence of any allegation and proof of the heirs’ mental of damages, however, is likewise, if not primarily, intended for the offended party who
anguish and emotional suffering. The rationale for doing so rested on human nature suffers thereby. It would make little sense for an award of exemplary damages to be
and experience having shown that: due the private offended party when the aggravating circumstance is ordinary but to
be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an
xxx a violent death invariably and necessarily brings about emotional pain and aggravating circumstance is a distinction that should only be of consequence to the
anguish on the part of the victim’s family. It is inherently human to suffer sorrow, criminal, rather than to the civil, liability of the offender. In fine, relative to the civil
torment, pain and anger when a loved one becomes the victim of a violent or brutal aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
killing. Such violent death or brutal killing not only steals from the family of the should entitle the offended party to an award of exemplary damages within the
deceased his precious life, deprives them forever of his love, affection and support, unbridled meaning of Article 2230 of the Civil Code.
but often leaves them with the gnawing feeling that an injustice has been done to
them.34 1âwphi1 For the purpose, ₱30,000.00 is reasonable and proper as exemplary damages,39 for a
lesser amount would not serve result in genuine exemplarity.
Another omission of the CA and the RTC was their non-recognition of the right of the
heirs of the victim to temperate damages. The victim’s wife testified about her family’s WHEREFORE, we AFFIRM the decision promulgated on June 29, 2006 by the Court
incurring funeral expenses of ₱36,000.00, but only ₱18,000.00 was backed by of Appeals, subject to the MODIFICATION of the civil damages, by ordering accused
receipts. It is already settled that when actual damages substantiated by receipts sum Alfonso Fontanilla y Obaldo to pay to the heirs of Jose Olais ₱25,000.00 as
up to lower than ₱25,000.00, temperate damages of at least ₱25,000.00 become temperate damages and ₱30,000.00 as exemplary damages in addition to the
justified, in lieu of actual damages in the lesser amount actually proved by receipts. It ₱50,000.00 as death indemnity and the ₱50,000.00 as moral damages, plus interest
would obviously be unfair to the heirs of the victim to deny them compensation by way of 6% per annum on such amounts from the finality of the judgment.
of actual damages despite their honest attempt to prove their actual expenses by
receipts (but succeeding only in showing expenses lower than ₱25,000.00 in The accused shall pay the costs of suit.
amount).35 Indeed, the heirs should not be left in a worse situation than the heirs of
another victim who might be nonetheless allowed temperate damages of ₱25,000.00
despite not having presented any receipts at all. With the victim’s wife having proved SO ORDERED.
₱18,000.00 worth of expenses, granting his heirs temperate damages of ₱25,000.00,
not only ₱18,000.00, is just and proper. Not to do so would foster a travesty of basic G.R. No. 165483             September 12, 2006
fairness.
RUJJERIC Z. PALAGANAS,1 petitioner,
The Civil Code provides that exemplary damages may be imposed in criminal cases vs.
as part of the civil liability "when the crime was committed with one or more PEOPLE OF THE PHILIPPINES, respondent.
aggravating circumstances."36 The Civil Code permits such damages to be awarded
"by way of example or correction for the public good, in addition to the moral, DECISION
temperate, liquidated or compensatory damages."37 In light of such legal provisions,
the CA and the RTC should have recognized the entitlement of the heirs of the victim
to exemplary damages on account of the attendance of treachery. It was of no CHICO-NAZARIO, J.:

54 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

For what is a man, what has he got? That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
If not himself, then he has naught. Pangasinan and within the jurisdiction of this Honorable Court, the above-
To say the things he truly feels; named accused armed with an unlicensed firearm, with intent to kill,
And not the words of one who kneels. treachery and evident premeditation, conspiring together, did then and there
The record shows I took the blows - willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying
And did it my way! Ferrer", inflicting upon him gunshot wound on the right shoulder, the
accused having thus performed all the acts of execution which would have
The song evokes the bitterest passions. This is not the first time the song "My produced the crime of murder as a consequence, but which nevertheless,
Way"2 has triggered violent behavior resulting in people coming to blows. In the case did not produce it by reason of the causes independent of the will of the
at bar, the few lines of the song depicted what came to pass when the victims and the accused and that is due to the medical assistance rendered to said Michael
aggressors tried to outdo each other in their rendition of the song. "Boying" Ferrer which prevented his death, to his damage and prejudice.

In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised
petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Penal Code, as amended.
Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with
modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, CRIMINAL CASE NO. U-9610
Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated
28 October 1998,5 finding petitioner guilty beyond reasonable doubt of the crime of That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Pangasinan and within the jurisdiction of this Honorable Court, the above-
Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same named accused armed with an unlicensed firearm, with intent to kill,
Code. treachery and evident premeditation, conspiring together, did then and there
willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas FERRER", inflicting upon him mortal gunshot wounds in the head and right
(Ferdinand), were charged under four (4) separate Informations6 for two (2) counts of thigh which caused the instantaneous death of said Melton "Tony" Ferrer,
Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of to the damage and prejudice of his heirs.
COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus
Election Code,8 allegedly committed as follows: CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A.
7659.
CRIMINAL CASE NO. U-9608
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
Pangasinan and within the jurisdiction of this Honorable Court, the above- That on or about January 16, 1998 which is within the election period at
named accused armed with an unlicensed firearm, with intent to kill, Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this
treachery and evident premeditation, conspiring together, did then and there Honorable Court, the above-named accused did then and there willfully,
willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y unlawfully and feloniously bear and carry one (1) caliber .38 without first
Juanatas, inflicting upon him "gunshot wound penetrating perforating securing the necessary permit/license to do the same.
abdomen, urinary bladder, rectum bullet sacral region," the accused having
thus performed all the acts of execution which would have produced the
crime of Murder as a consequence, but which nevertheless, did not produce CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the
it by reason of the causes independent of the will of the accused and that is OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.)
due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr.
which prevented his death, to his damage and prejudice. When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas
of "Not Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12
Penal Code, as amended.
The factual antecedents as viewed by the prosecution, are summarized in the
CRIMINAL CASE NO. U-9609 Comment dated 18 April 2005 of the Office of the Solicitor General,13 to wit:
55 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
 On January 16, 1998, around 8:00 in the evening, brothers Servillano, Café and Videoke Bar and started drinking and singing. About thirty minutes
[Melton] and Michael, all surnamed Ferrer were having a drinking spree in later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend
their house because [Melton], who was already living in San Fernando, La Virgilio Bautista arrived at the bar and occupied a table near that of the
Union, visited his three brothers and mother at their house in Sitio Baloking, Ferrers'.
Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers
decided to proceed to Tidbits Videoke bar located at the corner of Malvar After the Ferrers' turn in singing, the microphone was handed over to Jaime
and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and Palaganas, who then started to sing. On his third song [My Way], Jaime was
to sing. Inside the karaoke bar, they were having a good time, singing and joined in his singing by Tony Ferrer, who sang loudly and in an obviously
drinking beer. mocking manner. This infuriated Jaime, who then accosted Tony, saying,
"You are already insulting us." The statement resulted in a free for all fight
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with between the Ferrers', on one hand, and the Palaganases on the other.
Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer Jaime was mauled and Ferdinand, was hit on the face and was chased
brothers were the customers in the bar. The two groups occupied separate outside of the bar by Junior and Boying Ferrer.
tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang
along with him as he was familiar with the song [My Way]. Jaime however, Ferdinand then ran towards the house of the appellant Rujjeric Palaganas,
resented this and went near the table of the Ferrer brothers and said in his brother, and sought the help of the latter. Rujjeric, stirred from his sleep
Pangasinan dialect "As if you are tough guys." Jaime further said "You are by his brother's shouts, went out of his house and, noticing that the van of
already insulting me in that way." Then, Jaime struck Servillano Ferrer with his uncle was in front of the Tidbits Videoke Bar, proceeded to that place.
the microphone, hitting the back of his head. A rumble ensued between the Before reaching the bar, however, he was suddenly stoned by the Ferrer
Ferrer brothers on the one hand, and the Palaganases, on the other hand. brothers and was hit on different parts of his body, so he turned around and
Virgilio Bautista did not join the fray as he left the place. During the rumble, struggled to run towards his house. He then met his brother, Ferdinand,
Ferdinand went out of the bar. He was however pursued by Michael. When going towards the bar, so he tugged him and urged him to run towards the
Servillano saw Michael, he also went out and told the latter not to follow opposite direction as the Ferrer brothers continued pelting them with large
Ferdinand. Servillano and Michael then went back inside the bar and stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on
continued their fight with Jaime. instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired
one shot in the air to force the brothers to retreat. Much to his surprise,
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived however, the Ferrer brothers continued throwing stones and when (sic) the
and pacified them. Servillano noticed that his wristwatch was missing. appellant was again hit several times. Unable to bear the pain, he closed his
Unable to locate the watch inside the bar, the Ferrer brothers went outside. eyes and pulled the trigger.
They saw Ferdinand about eight (8) meters away standing at Rizal Street.
Ferdinand was pointing at them and said to his companion, later identified as On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only
petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They of the crime of Homicide and two (2) counts of Frustrated Homicide.15 He was,
are the ones, shoot them." Petitioner then shot them hitting Servillano first at however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in
the left side of the abdomen, causing him to fall on the ground, and followed relation to Section 261 of the Omnibus Election Code. 16 On the other hand, Ferdinand
by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was acquitted of all the charges against him.17
was no longer moving, he told Michael "Bato, bato." Michael picked up some
stones and threw them at petitioner and Ferdinand. The latter then left the
place. Afterwards, the police officers came and the Ferrer brothers were In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide
brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. but not for Murder and Frustrated Murder, the trial court explained that there was no
Servillano later discovered that [Melton] was fatally hit in the head while conspiracy between petitioner and Ferdinand in killing Melton and wounding
Michael was hit in the right shoulder. Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand
"pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog
mo lara!" (They are the ones, shoot them!), does not in itself connote common design
On the other hand, the defense, in its Appellant's Brief dated 3 December or unity of purpose to kill. It also took note of the fact that petitioner was never a
1999,14 asserted the following set of facts: participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the
night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle,
On January 16, 1998, at around 11:00 in the evening, after a drinking Jaime, who was being assaulted by the Ferrer brothers. It further stated that the
session at their house, the brothers Melton (Tony), Servillano (Junior) and shooting was instantaneous and without any prior plan or agreement with Ferdinand
Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits to execute the same. It found that petitioner is solely liable for killing Melton and for
56 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
wounding Servillano and Michael, and that Ferdinand is not criminally responsible for Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to
the act of petitioner. prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
Further, it declared that there was no treachery that will qualify the crimes as murder
and frustrated murder since the Ferrer brothers were given the chance to defend 2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby
themselves during the shooting incident by stoning the petitioner and Ferdinand. 19 It CONVICTED beyond reasonable doubt of the crime of FRUSTRATED
reasoned that the sudden and unexpected attack, without the slightest provocation on HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm,
the part of the victims, was absent. In addition, it ratiocinated that there was no the Court sentences him to suffer the penalty of Prision Mayor in its
evident premeditation as there was no sufficient period of time that lapsed from the maximum period or 12 years of imprisonment and to pay Servillano Ferrer
point where Ferdinand called the petitioner for help up to the point of the shooting of the sum of P163,569.90 for his medical expenses and P50,000.00 for
the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard exemplary damages;
Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and
sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
and Ferdinand went to the videoke bar where they met the Ferrer brothers and, conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas
shortly afterwards, the shooting ensued. In other words, according to the trial court, beyond reasonable doubt.
the sequence of the events are so fast that it is improbable for the petitioner to have
ample time and opportunity to then plan and organize the shooting.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of FRUSTRATED
Corollarily, it also stated that petitioner cannot successfully invoke self-defense since HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm,
there was no actual or imminent danger to his life at the time he and Ferdinand saw the Court sentences him to suffer the penalty of Prision Mayor in its
the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and maximum period or 12 years of imprisonment; and to pay Michael Ferrer the
Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary
carrying any weapon. Petitioner then was free to run or take cover when the Ferrer damages;
brothers started pelting them with stones. Petitioner, however, opted to shoot the
Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable
means to prevent the attack of the Ferrer brothers since the latter were only equipped Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
with stones, and that the gun was deadlier compared to stones. Moreover, it also conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas
found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22 beyond reasonable doubt.

As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother
of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in
his use and possession of a gun was not for the purpose of disrupting election CRIM. CASES NOS. U-9608, U-9609, U-9610.
activities.23 In conclusion, the trial court held:
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove
WHEREFORE, JUDGMENT is hereby rendered as follows: the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of
Violation of COMELEC Resolution No. 2958 in relation with Section 261 of
the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby PALAGANAS.24
CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not
Murder) with the use of an unlicensed firearm. The penalty imposable is in its
maximum period which is 20 years. The Court sentences [Rujjeric] Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28
Palaganas to suffer the penalty of Reclusion Temporal in its maximum October 1998, before the Court of Appeals. In its Decision dated 30 September 2004,
period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the Court of Appeals affirmed with modifications the assailed RTC Decision. In
the sum of P7,791.50 as actual medical expenses of [MELTON] modifying the Decision of the trial court, the appellate court held that the mitigating
Ferrer; P500,000.00 as moral damages representing unearned income of circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal
[MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for Code should be appreciated in favor of petitioner since the latter, accompanied by his
exemplary damages and P100,000.00 for burial and funeral expenses. counsel, voluntarily appeared before the trial court, even prior to its issuance of a
warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law

57 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

should be applied in imposing the penalty upon the petitioner.26 The dispositive aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in
portion of the Court of Appeals' Decision reads: his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that
the appellate court failed to consider a material evidence described as "Exhibit O";
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to that "Exhibit O" should have been given due weight since it shows that there was slug
the MODIFICATION that the penalty to be imposed for the crimes which the embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the
appellant committed are as follows: height from which the slug was taken was about seven feet from the ground; that if it
was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the
videoke bar in order to shoot them, then the trajectory of the bullets would have been
(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered either straight or downward and not upward considering that the petitioner and the
to suffer imprisonment of ten (10) years of prision mayor as minimum to Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall
seventeen (17) years and four (4) months of reclusion temporal as was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was
maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil properly appreciated by the trial court, petitioner would be acquitted of all the
indemnity in the amount of P50,000.00, moral damages in the amount charges.29
of P50,000.00 without need of proof and actual damages in the amount
of P43,556.00.
Moreover, petitioner contended that the warning shot proved that that the Ferrer
brothers were the unlawful aggressors since there would have been no occasion for
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the
is hereby ordered to suffer imprisonment of four (4) years and two (2) testimony of Michael in the trial court proved that it was the Ferrer brothers who
months of prision correcional as minimum to ten (10) years of prision provoked petitioner to shoot them; and that the Ferrer brothers pelted them with
mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual stones even after the "warning shot."30
damages in the amount of P2,259.35 and moral damages in the amount
of P30,000.00.
Petitioner's contention must fail.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant
is hereby penalized with imprisonment of four (4) years and two (2) months Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or
of prision correcional as minimum to ten (10) years of prision mayor as requisites in order that a plea of self-defense may be validly considered in absolving a
maximum. Appellant is also ordered to pay Servillano Ferrer actual damages person from criminal liability, viz:
in the amount of P163,569.90 and moral damages in the amount
of P30,000.00.27 ART. 11. Justifying circumstances. – The following do not incur any criminal
liability:
On 16 November 2004, petitioner lodged the instant Petition for Review before this
Court on the basis of the following arguments: 1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
I.
First. Unlawful aggression;
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
JUDGMENT OF CONVICTION OF THE TRIAL COURT. Second. Reasonable necessity of the means employed to prevent or repel it;

II. Third. Lack of sufficient provocation on the part of the person defending
himself. x x x.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING
ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF- As an element of self-defense, unlawful aggression refers to an assault or attack, or a
DEFENSE.28 threat thereof in an imminent and immediate manner, which places the defendant's
life in actual peril.31 It is an act positively strong showing the wrongful intent of the
Anent the first issue, petitioner argued that all the elements of a valid self-defense are aggressor and not merely a threatening or intimidating attitude. 32 It is also described
present in the instant case and, thus, his acquittal on all the charges is proper; that as a sudden and unprovoked attack of immediate and imminent kind to the life, safety
when he fired his gun on that fateful night, he was then a victim of an unlawful or rights of the person attacked.33
58 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
There is an unlawful aggression on the part of the victim when he puts in actual or the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the
imminent peril the life, limb, or right of the person invoking self-defense. There must unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot
be actual physical force or actual use of weapon.34 In order to constitute unlawful the Ferrer brothers just to defend himself, it defies reason why he had to shoot the
aggression, the person attacked must be confronted by a real threat on his life and victims at the vital portions of their body, which even led to the death of Melton who
limb; and the peril sought to be avoided is imminent and actual, not merely was shot at his head.45 It is an oft-repeated rule that the nature and number of
imaginary.35 wounds inflicted by the accused are constantly and unremittingly considered
important indicia to disprove a plea of self-defense.46
In the case at bar, it is clear that there was no unlawful aggression on the part of the
Ferrer brothers that justified the act of petitioner in shooting them. There were no Let it not be forgotten that unlawful aggression is a primordial element in self-
actual or imminent danger to the lives of petitioner and Ferdinand when they defense.47 It is an essential and indispensable requisite, for without unlawful
proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It aggression on the part of the victim, there can be, in a jural sense, no complete or
appears that the Ferrer brothers then were merely standing outside the videoke bar incomplete self-defense.48 Without unlawful aggression, self-defense will not have a
and were not carrying any weapon when the petitioner arrived with his brother leg to stand on and this justifying circumstance cannot and will not be appreciated,
Ferdinand and started firing his gun.36 even if the other elements are present. 49 To our mind, unlawful aggression, as an
element of self-defense, is wanting in the instant case.
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot
them by pelting the latter with stones, the shooting of the Ferrer brothers is still The second element of self-defense requires that the means employed by the person
unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a defending himself must be reasonably necessary to prevent or repel the unlawful
state of actual or imminent danger considering the wide distance (4-5 meters) of the aggression of the victim. The reasonableness of the means employed may take into
latter from the location of the former.37 Petitioner was not cornered nor trapped in a account the weapons, the physical condition of the parties and other circumstances
specific area such that he had no way out, nor was his back against the wall. He was showing that there is a rational equivalence between the means of attack and the
still capable of avoiding the stones by running away or by taking cover. He could have defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was
also called or proceeded to the proper authorities for help. Indeed, petitioner had not a reasonable and necessary means of repelling the aggression allegedly initiated
several options in avoiding dangers to his life other than confronting the Ferrer by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far
brothers with a gun. deadlier compared to the stones thrown by the Ferrer brothers.51

The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at
caused by the stones thrown by the Ferrer brothers, does not signify that he was a the petitioner, the latter had other less harmful options than to shoot the Ferrer
victim of unlawful aggression or that he acted in self-defense.38 There is no evidence brothers. Such act failed to pass the test of reasonableness of the means employed
to show that his wounds were so serious and severe. The superficiality of the injuries in preventing or repelling an unlawful aggression.
sustained by the petitioner is no indication that his life and limb were in actual peril.39
With regard to the second issue, petitioner asserts that the Court of Appeals erred in
Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer not acquitting him on the ground of lawful self-defense.
brothers continued to pelt him with stones,40 will not matter exonerate him from
criminal liability. Firing a warning shot was not the last and only option he had in order Petitioner's argument is bereft of merit.
to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run
away, or taken cover, or proceeded to the proper authorities for help. Petitioner,
however, opted to shoot the Ferrer brothers. In resolving criminal cases where the accused invokes self-defense to escape
criminal liability, this Court consistently held that where an accused admits killing the
victim but invokes self-defense, it is incumbent upon the accused to prove by clear
It is significant to note that the shooting resulted in the death of Melton, and wounding and convincing evidence that he acted in self-defense.52 As the burden of evidence is
of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and shifted on the accused to prove all the elements of self-defense, he must rely on the
another bullet hit his head which caused his instant death. 41 As regards Servillano, a strength of his own evidence and not on the weakness of the prosecution.53
bullet penetrated two of his vital organs, namely, the large intestine and urinary
bladder.42 He underwent two (2) surgeries in order to survive and fully
recover.43 Michael, on the other hand, sustained a gunshot wound on the right As we have already found, there was no unlawful aggression on the part of the Ferrer
shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke brothers which justified the act of petitioner in shooting them. We also ruled that even
bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun
was not a reasonable means of repelling the act of the Ferrer brothers in throwing
59 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
stones. It must also be emphasized at this point that both the trial court and the in attempted felony, the reason for the non-fulfillment of the crime is a cause
appellate court found that petitioner failed to established by clear and convincing or accident other than the offender's own spontaneous desistance.
evidence his plea of self-defense. In this regard, it is settled that when the trial court's
findings have been affirmed by the appellate court, said findings are generally In addition to these distinctions, we have ruled in several cases that when the
conclusive and binding upon this Court.54 In the present case, we find no compelling accused intended to kill his victim, as manifested by his use of a deadly weapon in his
reason to deviate from their findings. Verily, petitioner failed to prove by clear and assault, and his victim sustained fatal or mortal wound/s but did not die because of
convincing evidence that he is entitled to an acquittal on the ground of lawful self- timely medical assistance, the crime committed is frustrated murder or frustrated
defense. homicide depending on whether or not any of the qualifying circumstances under
Article 249 of the Revised Penal Code are present.55 However, if the wound/s
On another point, while we agree with the trial court and the Court of Appeals that sustained by the victim in such a case were not fatal or mortal, then the crime
petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case committed is only attempted murder or attempted homicide.56 If there was no intent to
No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano kill on the part of the accused and the wound/s sustained by the victim were not fatal,
in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner the crime committed may be serious, less serious or slight physical injury.57
is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case
No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Based on the medical certificate of Michael, as well as the testimony of the physician
Homicide. who diagnosed and treated Michael, the latter was admitted and treated at the
Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right
Article 6 of the Revised Penal Code states and defines the stages of a felony in the shoulder caused by the shooting of petitioner. 58 It was also stated in his medical
following manner: certificate that he was discharged on the same day he was admitted and that the
treatment duration for such wound would be for six to eight days only.59 Given these
ART. 6. Consummated,  frustrated, and  attempted  felonies. – set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his
Consummated felonies, as well as those which are frustrated and attempted, right shoulder was not fatal or mortal since the treatment period for his wound was
are punishable. short and he was discharged from the hospital on the same day he was admitted
therein. Therefore, petitioner is liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.
A felony is consummated when all the elements necessary for the 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 With regard to the appreciation of the aggravating circumstance of use of an
as a consequence but which, nevertheless, do not produce it by reason or unlicensed firearm, we agree with the trial court and the appellate court that the same
causes independent of the will of the perpetrator. must be applied against petitioner in the instant case since the same was alleged in
the informations filed against him before the RTC and proven during the trial.
However, such must be considered as a special aggravating circumstance, and not a
There is an attempt when the offender commences the commission of a generic aggravating circumstance.
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance (italics supplied). Generic aggravating circumstances are those that generally apply to all crimes such
as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and
20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime
Based on the foregoing provision, the distinctions between frustrated and attempted to its maximum period, but it cannot increase the same to the next higher degree. It
felony are summarized as follows: must always be alleged and charged in the information, and must be proven during
the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary
1.) In frustrated felony, the offender has performed all the acts of execution mitigating circumstance.
which should produce the felony as a consequence; whereas in attempted
felony, the offender merely commences the commission of a felony directly On the other hand, special aggravating circumstances are those which arise under
by overt acts and does not perform all the acts of execution. special conditions to increase the penalty for the offense to its maximum period, but
the same cannot increase the penalty to the next higher degree. Examples are quasi-
2.) In frustrated felony, the reason for the non-accomplishment of the crime recidivism under Article 160 and complex crimes under Article 48 of the Revised
is some cause independent of the will of the perpetrator; on the other hand, Penal Code. It does not change the character of the offense charged. 61 It must always
be alleged and charged in the information, and must be proven during the trial in

60 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

order to be appreciated.62 Moreover, it cannot be offset by an ordinary mitigating the receipts for hospital, medicine, funeral and burial expenses on record, and upon
circumstance. computation of the same, the proper amount of actual damages should
be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity
It is clear from the foregoing that the meaning and effect of generic and special cannot be awarded in this case since there was no documentary evidence to
aggravating circumstances are exactly the same except that in case of generic substantiate the same.71 Although there may be exceptions to this rule, 72 none is
aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas availing in the present case. Nevertheless, since loss was actually established in this
in the case of special aggravating circumstance, it CANNOT be offset by an ordinary case, temperate damages in the amount of P25,000.00 may be awarded to the heirs
mitigating circumstance. of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate
damages may be recovered when the court finds that some pecuniary loss was
suffered but its amount cannot be proved with certainty. Moreover, exemplary
Aside from the aggravating circumstances abovementioned, there is also an damages should be awarded in this case since the presence of special aggravating
aggravating circumstance provided for under Presidential Decree No. 1866,63 as circumstance of use of unlicensed firearm was already established. 73 Based on
amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision prevailing jurisprudence, the award of exemplary damages for homicide
states: is P25,000.00.74

If homicide or murder is committed with the use of an unlicensed firearm, In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award
such use of an unlicensed firearm shall be considered as an aggravating of actual damages and its corresponding amount since the same is supported by
circumstance. documentary proof therein. The award of moral damages is also consistent with
prevailing jurisprudence. However, exemplary damages should be awarded in this
In interpreting the same provision, the trial court reasoned that such provision is case since the presence of special aggravating circumstance of use of unlicensed
"silent as to whether it is generic or qualifying." 65 Thus, it ruled that "when the law is firearm was already established. Based on prevailing jurisprudence, the award of
silent, the same must be interpreted in favor of the accused."66 Since a generic exemplary damages for both the attempted and frustrated homicide shall
aggravating circumstance is more favorable to petitioner compared to a qualifying be P25,000.00 for each.
aggravating circumstance, as the latter changes the nature of the crime and increase
the penalty thereof by degrees, the trial court proceeded to declare that the use of an WHEREFORE, premises considered, the decision of the Court of Appeals dated 30
unlicensed firearm by the petitioner is to be considered only as a generic aggravating September 2004 is hereby AFFIRMED with the following MODIFICATIONS:
circumstance.67 This interpretation is erroneous since we already held in several
cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL (1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of
aggravating circumstance and not a generic aggravating circumstance.68 Republic Act attempted homicide. The penalty imposable on the petitioner is prision
No. 8294 applies to the instant case since it took effect before the commission of the correccional under Article 51 of the Revised Penal Code.75 There being a special
crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner aggravating circumstance of the use of an unlicensed firearm and applying the
in the instant case should be designated and appreciated as a SPECIAL aggravating Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2)
circumstance and not merely a generic aggravating circumstance. months of arresto mayor as minimum period to six (6) years of prision correccional as
maximum period. As regards the civil liability of petitioner, the latter is hereby ordered
to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to
As was previously established, a special aggravating circumstance cannot be offset the actual damages and moral damages awarded by the Court of Appeals.
by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case
is merely an ordinary mitigating circumstance. Thus, it cannot offset the special
aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, (2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the
paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should frustrated homicide is prision mayor under Article 50 of the Revised Penal
be in its maximum period.69 Code.76 There being a special aggravating circumstance of the use of an unlicensed
firearm and applying the Indeterminate Sentence Law, the penalty now becomes six
(6) years of prision correccional as minimum period to twelve (12) years of prision
As regards the civil liability of petitioner, we deem it necessary to modify the award of mayor as maximum period. As regards the civil liability of petitioner, the latter is
damages given by both courts. hereby ordered to pay Servillano Ferrer exemplary damages in the amount
of P25,000.00 in addition to the actual damages and moral damages awarded by the
In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper Court of Appeals.
amount of civil indemnity is P50,000.00, and that the proper amount for moral
damages is P50,000.00 pursuant to prevailing jurisprudence.70 However, based on
61 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide The version of the prosecution was summarized by the CA thus wise:
is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a
special aggravating circumstance of the use of an unlicensed firearm and applying Prosecution witnesses Jose Palavorin and Carmelita Cardona, 67 and 46 years old,
the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision respectively, testified that at around 3:00 p.m. of 11 March 2007, they, together with
mayor as minimum period to twenty (20) years of reclusion temporal as maximum Victim Pablo Maddauin, were seated on a long bench having their usual chit-chat at
period. As regards the civil liability of petitioner, the latter is hereby ordered to pay the vacant lot situated at 4th Street Guadal Canal, St., Sta. Mesa, Manila. Witness
Melton Ferrer exemplary damages in the amount of P25,000.00 in addition to the Jose was the watchman of this property. While conversing, they saw appellant
actual damages and moral damages awarded by the Court of Appeals. The actual coming towards their direction. Appellant could not walk straight and appeared to be
damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18. drunk. Without warning, appellant pulled out a knife from his waist and stabbed the
victim on the chest. Jose and Carmelita tried to restrain the appellant from attacking
SO ORDERED. the victim, but Jose experienced leg cramps and lost his hold on appellant. Appellant
turned again on the victim and continued to stab him several times more. The victim
G.R. No. 200800               February 9, 2015 was heard asking appellant, "Bakit?". Carmelita shouted for help. The victim’s wife
came to the scene and embraced appellant as she wrestled for the knife. Thereafter,
[the] victim was brought to the University of the East Ramon Magsaysay Memorial
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, Medical center; but unfortunately, he died that same day.4
vs.
OSCAR SEVILLANO y RETANAL Accused-Appellant.
Appellant, for his part, denied the accusations against him. He interposed self-
defense to absolve himself from criminal liability. He averred that on that fateful
RESOLUTION afternoon, he went to the vacant lot where the victim and his friends usually hang-out
to feed his chicken. While thereat, the victim, whom he described to have bloodshot
PEREZ, J.: eyes, walk towards him and stepped on his injured foot. While he was on his knees
because of the pain, he saw the victim draw a knife. The latter thereafter stabbed at
For this Court's resolution is the appeal filed by Oscar Sevillano y Retanal (appellant) him while uttering: "Ikaw pa, putang ina mo," but missed his target. As he and the
assailing the 17 August 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR victim grappled for the knife, the latter was accidentally stabbed. When he saw blood
No. 04257 which affirmed the Regional Trial Court's (RTC) 4 December 2009 oozing out of the victim, he became apprehensive of the victim’s relative to such
Judgment2 finding the appellant guilty beyond reasonable doubt of the crime of extent that he fled the scene and hid to as far as Bulacan where he was eventually
murder. apprehended.

Factual Antecedents Ruling of the RTC

Appellant was charged before the RTC, Branch 1 7, Manila with murder in an In a Judgment5 dated 4 December 2009, the trial court found appellant guilty of
information that reads: murder for the death of Pablo Maddauin (Pablo) and sentenced him to suffer the
penalty of reclusion perpetua without eligibility of parole and to pay the heirs of the
deceased ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
That on or about March 11, 2007, in the City of Manila, Philippines, the said accused, ₱25,000.00 as exemplary damages.
with intent to kill and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and use personal violence upon the
person of PABLO MADDAUIN y TAMANG by then and there suddenly and The trial court gave credence to the testimony of the prosecution witnesses that
unexpectedly stabbing him several times with a deadly bladed weapon hitting upon appellant, who appeared to be intoxicated, unexpectedly arrived and stabbed Pablo
the said Pablo T. Maddauin fatal stab wounds which are the direct cause of his death seven times with a knife. The trial court disregarded appellant’s denial as his
immediately thereafter.3 testimony was outweighed by the positive statements of the prosecution witnesses. It
likewise ruled that treachery attended the commission of the crime, as demonstrated
by the fact that the victim was seated and engaged in a conversation when suddenly
During arraignment, appellant, assisted by his counsel, pleaded not guilty to the crime attacked by the appellant. The trial court ruled that such situation foreclosed any
charged. Trial thereafter ensued. opportunity on the part of the victim to ward off the impending harm.

Statement of Facts The Ruling of the Court of Appeals

62 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
In his appeal before the CA, appellant contended that: the witness first hand and note his demeanor, conduct and attitude under gruelling
examination.9 Absent any showing that the trial court’s calibration of credibility was
I. flawed, the appellate court is bound by its assessment. In the prosecution of the crime
of murder as defined in Article 248 of the Revised Penal Code (RPC), the following
elements must be established by the prosecution: (1) that a person was killed; (2) that
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ACCUSED- the accused killed that person; (3) that the killing was attended by treachery; and (4)
APPELLANT’S GUILT FOR THE CRIME CHARGED HAS BEEN PROVEN that the killing is not infanticide or parricide.10
BEYONDREASONABLE DOUBT.
After a careful evaluation of the records, we find that these elements were clearly met.
II The prosecution witnesses positively identified the appellant as the person who
stabbed Pablo several times on the chest which eventually caused the latter’s death.
ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS LIABLE, THE TRIAL They testified that they even tried to stop appellant’s attack but unfortunately, were
COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF unsuccessful. We find no reason to disbelieve the testimonies of these witnesses
MURDER INSTEAD OF HOMICIDE. considering that their narration of facts were straightforward and replete with details
that coincide with the medical examination conducted on the body of the victim. We
III are not persuaded by the appellant’s defense of denial as this cannot prevail over the
eyewitnesses’ positive identification of him as the perpetrator of the crime. Denial, like
alibi, if not substantiated by clear and convincing evidence, is negative and self-
THE TRIAL COURT ERRED INNOT FINDING THAT THE ACCUSED-APPELLANT serving evidence undeserving of weight in law.11
ACTED IN SELF-DEFENSE.6
Anent the presence of the element of treachery as a qualifying circumstance, the
The CA found no reason to disturb the findings of the RTC and upheld its ruling but prosecution was able to establish that the attack on the unsuspecting victim, who was
with modification on the amount of damages awarded. The CA ordered appellant to merely seated on a bench and talking with his friends, was very sudden. In fact, the
indemnify the heirs of Pablo in the amounts of ₱75,000.00 as civil indemnity; victim was able to utter only "Bakit?". We note that the essence of treachery is the
₱75,000.00 as moral damages; and ₱30,000.00 as exemplary damages. The sudden and unexpected attack on the unsuspecting victim by the perpetrator of the
appellate court held that the eyewitness accounts of prosecution witnesses Jose crime, depriving the former of any chance to defend himself or to repel the
Palavorin and Carmelita Cardona, and their positive identification of appellant as the aggression, thus insuring its commission without risk to the aggressor and without any
perpetrator, aptly complemented by the findings of the postmortem examination, are provocation on the part of the victim.
more plausible than the appellant’s claim of self-defense.7 The CA likewise sustained
the trial court’s findings that the qualifying circumstance of treachery was present in
the case. It held that although the attack on the victim was frontal, it was deliberate, By invoking self-defense, appellant in effect, admits to having inflicted the stab
sudden and unexpected, affording the hapless, unarmed and unsuspecting victim no wounds which killed the victim.1âwphi1 The burden was, therefore, shifted on him to
opportunity to resist or to defend himself.8 prove that the killing was done in self-defense. In Razon v. People, 12 this Court held
that where an accused admits the killing, he assumes the burden to establish his plea
by credible, clear and convincing evidence; otherwise, conviction would follow from
Issues his admission that he killed the victim. Self-defense cannot be justifiably appreciated
when corroborated by independent and competent evidence or when it is extremely
Undaunted, appellant is now before this Court continuing to insist that his guilt was doubtful by itself.
not proven beyond reasonable doubt, and that the lower courts erred in rejecting his
claim of self-defense and convicting him of murder instead of homicide. Under Article 11, paragraph 1 of the RPC, the following elements must be present in
order that a plea of self-defense may be validly considered in absolving a person from
Our Ruling criminal liability:

We find the appeal bereft of merit. First. Unlawful Aggression;

Well entrenched in our jurisprudence is the rule that findings of the trial court on the Second. Reasonable necessity of the means employed to prevent or repel it;
credibility of witnesses deserve great weight, as the trial judge is in the best position
to assess the credibility of the witnesses, and has the unique opportunity to observe Third. Lack of sufficient provocation on the part of the person defending himself.
63 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Appellant’s version that it was the victim who was armed with a knife and threatened DECISION
to stab him was found by the lower court to be untenable. We agree with the lower
court’s conclusion. Assuming arguendo that there was indeed unlawful aggression on BERSAMIN, J.:
the part of the victim, the imminence of that danger had already ceased the moment
appellant was able to wrestle the knife from him. Thus, there was no longer any
unlawful aggression to speak of that would justify the need for him to kill the victim or The accused who shows by clear and convincing evidence that the death of the victim
the former aggressor. This Court has ruled that if an accused still persists in attacking arose from the need for self-preservation in the face of the victim's deadly unlawful
his adversary, he can no longer invoke the justifying circumstance of self- aggression, and there was a reasonable necessity of the means employed to prevent
defense.13 The fact that the victim suffered many stab wounds in the body that caused or repel the same, is entitled to acquittal on the ground of self-defense in the absence
his demise, and the nature and location of the wound also belies and negates the of any indication of his having provoked such unlawful aggression.
claim of self-defense. It demonstrates a criminal mind resolved to end the life of the
victim.14 In self-defense and defense of stranger, the circumstances as the accused perceived
them at the time of the incident, not as others perceived them, should be the bases
As to the penalties and damages for determining the merits of the plea.

We affirm the penalty imposed upon appellant. Under Article 248 of the RPC, as The Case
amended, the crime of murder qualified by treachery is penalized with reclusion
perpetua to death. The lower courts were correct in sentencing appellant to suffer the For the killing of the late Romeo Arca, accused Rodolfo Olarbe y Balihango (Olarbe)
penalty of reclusion perpetua, upon consideration of the absence of any aggravating was charged with and convicted of murder by the Regional Trial Court (RTC), Branch
and mitigating circumstances that attended the commission of the offense. 27, in Santa Cruz, Laguna through the judgment rendered on August 13, 2014 in
Criminal Case No. SC-12274. 1
We likewise affirm the CA’s award of ₱75,000.00 as civil indemnity; ₱75,000.00 as
moral damages; and ₱30,000.00 as exemplary damages to the victim’s heirs, as On appeal, the Court of Appeals (CA) affirmed the conviction on March 22, 2016.2
these amounts are consistent with current jurisprudence.15 In addition, we impose on
all the monetary awards for damages interest at the legal rate of six percent (6%) per Antecedents
annum from date of finality of the resolution until fully paid.16

The information charged Olarbe with murder, viz.:

WHEREFORE, the petition is DENIED. The Decision dated 17 August 2011 of the
Court of Appeals in CA-G.R. CR No. 04257 finding Oscar Sevillano y Retanal guilty
beyond reasonable doubt of murder, sentencing him to suffer the penalty of reclusion That on or about May 7, 2006 at about 12:00 o'clock midnight, at Sitio Pananim,
perpetua without eligibility of parole, and ordering him to indemnify the heirs of Pablo Municipality of Luisiana, Province of Laguna and within the jurisdiction of this
Maddauin in the amounts of ₱75,000.00 as civil indemnity; ₱75,000.00 as moral Honorable Court, the above-named accused, with intent to kill and with evident
damages; and ₱30,000.00 as exemplary damages is hereby AFFIRMED with premeditation and treachery and with the use of a rifle (airgun) converted to caliber .
MODIFICATION that he shall pay interest at the rate of six percent ( 6%) per annum 22 and a bolo, did then and there, willfully, unlawfully and feloniously shoot and hack
on the civil indemnity, moral and exemplary damages awarded from finality of this one ROMEO ARCA with the said weapons, thereby inflicting upon him gunshot
resolution until fully paid. wound and hacking wounds on the different parts of his body which resulted to (sic)
his instantaneous death, to the damage and prejudice of his surviving heirs.
SO ORDERED.
CONTRARY TO LAW.3
JULY 23, 2018
The CA recounted the factual and procedural background of the case in its assailed
decision thusly:
G.R. No. 227421

Arraigned, OLARBE initially pled not guilty to the crime charged. Upon re-
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee arraignment, OLARBE pleaded guilty but subsequently withdrew his plea of guilt and
vs. manifested for the presentation of his defense. Thereafter, trial on the merits ensued.
RODOLFO OLARBE y BALIHANGO, Accused-Appellant

64 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

The prosecution's diegesis of the case is synthesized as follows: treachery when he killed the victim Romeo Arca. Thus, this Court finds the accused
Rodolfo Olarbe y Balihango GUILTY of "Murder".
On 8 May 2006 at around 12:30 o'clock midnight, OLARBE voluntarily surrendered to
police officers SPO2 Vivencio Aliazas, PO3 Ricardo Cruz and PO1 William Cortez at On the other hand, finding that herein accused voluntarily surrendered to the police
the Police Station of Luisiana, Laguna. OLARBE informed them that he happened to authorities of the Municipal Police Station of Luisiana, Laguna immediately after killing
have killed Romeo Arca (Arca) in Sitio Pananim, Luisiana, Laguna. Forthwith, Romeo Arca, he is entitled to the said mitigating circumstance. The accused Rodolfo
OLARBE was booked, arrested and detained at the police station. Thereafter, the Olarbe y Balihango is thereby hereby sentenced to the minimum penalty of
police officers proceeded to the crime scene and found the lifeless body of Arca with imprisonment for the crime of murder, which is a period of TWENTY (20) YEARS
several wounds and the bolo used by OLARBE in killing him. The Death AND ONE (1) DAY TO RECLUSION PERPETUA.
Certificate revealed that Area's antecedent cause of death was gunshot wounds and
his immediate cause of death was hacked wounds. For his part, OLARBE invoked The accused Rodolfo Olarbe y Balihango is also hereby ordered to pay to the heirs of
self-defense and avowed – Romeo Arca the following:

For his part, OLARBE invoked self-defense and avowed – On the fateful incident, he Civil indemnity in the amount of ₱75,000.00;
and his wife Juliet were sleeping in their house in Barangay San Antonio, Sitio
Pananim, Luisiana, Laguna. Suddenly they were awakened by the sound of a
gunshot and shouting from Arca who appeared to be drunk. Arca was holding a rifle Moral damages in the amount of ₱50,000.00;
(an airgun converted to a calibre .22) and shouted "mga putang ina ninyo,
pagpapatayin ko kayo." Then, Arca forcibly entered their house and aimed the gun at Actual damages in the following amounts – ₱1,000.00 as expenses for church
them. OLARBE immediately grabbed the gun from him and they grappled for its services from the Iglesia Filipina Independiente; the amount of ₱1,200.00 for
possession. OLARBE managed to wrest the gun away from Arca. In a jiff, OLARBE expenses incurred in Jeralyn's Flower Shop; the amount of ₱20,000.00 paid to
shot Arca causing the latter to lean sideward ("napahilig"). Nevertheless, Arca Mancenido Funeral Service; fees paid to the Municipal Treasurer of Luisiana in the
managed to get his bolo from his waist and continued to attack them. OLARBE amount of ₱150.00; and, the amount of ₱15,000.00 paid for the burial lot; and,
grabbed the bolo and in their struggle for its possession, they reached the outer
portion of the house. OLARBE was able to wrestle the bolo and instantly, he hacked Exemplary damages in the amount of ₱30,000.00.
Arca. After the killing incident, OLARBE voluntarily surrendered to the police
authorities.4
SO ORDERED.5
Judgment of the RTC
Decision of the CA
Rejecting Olarbe's pleas of self-defense and defense of stranger, the RTC
pronounced him guilty of murder as charged. It observed that the initial unlawful On appeal, the CA affirmed the conviction of Olarbe because the factual findings of
aggression by Arca had ceased when Olarbe shot him in the head and caused him to the RTC were consistent with the evidence on record and accorded with human
"lean sideward." It disbelieved Olarbe's insistence that Arca had still been able to grab experience; and because- treachery had attended the killing. The fallo of the assailed
his bolo and assault Olarbe's common-law spouse therewith for being implausible decision reads:
considering that Arca had by then been hit in the head. It held that Olarbe's testimony
that he had wrested the bolo from Arca after grappling for its control, and had then WHEREFORE, the Appeal is hereby DENIED. The Judgment dated 13 August 2014
hacked him with it was improbable .and. pot in accord with the natural order of things of the Regional Trial Court, Fourth Judicial Region, Santa Cruz, Laguna, Branch 27,
because. the injury in the head had already weakened and subdued Arca; and that in Criminal Case No. SC-12274, is AFFIRMED with MODIFICATION in that accused-
the killing was treacherous because Olarbe had hacked the then unarmed and appellant Rodolfo Olarbe is ORDERED to pay temperate damages in the amount of
weakened victim. ₱25,000.00. He is further ORDERED to pay interest at the rate of six percent
(6%) per annum on the civil indemnity, moral, exemplary and temperate damages
The dispositive portion of the judgment of the RTC reads: awarded from the finality of this judgment until fully paid.

WHEREFORE, this court finds that herein accused was unable to prove the justifying SO ORDERED.6
circumstance of self-defense by clear, satisfactory and convincing evidence that
excludes any vestige of criminal aggression on his part and further, he employed Hence, this appeal.
65 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
The accused and the Office of the Solicitor General (OSG) have separately Unlawful aggression on the part of the victim is the primordial element of the justifying
manifested that they would no longer be filing supplemental briefs in this appeal; and circumstance of self-defense. Without unlawful aggression, there can be no justified
prayed that their respective briefs filed in the CA should be considered. 7 killing in defense of oneself. The test for the presence of unlawful aggression
under the circumstances is whether the aggression from the victim put in real
Issue peril the life or personal safety of the person def ending himself; the peril must
not be an imagined or imaginary threat. Accordingly, the accused must establish
the concurrence of three elements of unlawful aggression, namely: (a) there must be
In his appellant's brief filed in the CA, Olarbe submitted that it waserroneous to reject a physical or material attack or assault; (b) the attack or assault must be actual, or, at
his pleas of self-defense and defense of stranger because he had killed Arca to save least, imminent; and (c) the attack or assault must be unlawful.
himself and his common-law wife from the latter's unlawful aggression; that his use of
the victim's gun and bolo to repel or stop the unlawful aggression was necessary and
reasonable; and that the killing was consequently legally justified. Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and
(b) imminent unlawful aggression. Actual or material unlawful aggression means an
attack with physical force or with a weapon, an offensive act that positively
The OSG countered that it was Olarbe who had mounted the unlawful aggression determines the intent of the aggressor to cause the injury. Imminent unlawful
against Arca; and that the latter had been defenseless when Olarbe hacked him to aggression means an attack that is impending or at the point of happening; it must not
death. consist in a mere threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver at another with intent to shoot or
Ruling of the Court opening a knife and making a motion as if to attack). Imminent unlawful aggression
must not be a mere threatening attitude of the victim, such as pressing his right hand
The appeal has merit. to his hip where a revolver was holstered, accompanied by an angry countenance, or
like aiming to throw a pot.

An accused who pleads any justifying circumstance in Article 11 of the Revised Penal

Code admits to the commission of acts that show the commission of a crime. It thus Let us now revisit the events of that fateful night of May 7, 2006. Arca, armed with the
becomes his burden to prove the justifying circumstance with clear and convincing rifle (described as an airgun converted into a caliber .22) and the bolo, went to the
evidence; otherwise, his conviction for the crime charged follows. 8 house of Olarbe towards midnight. The latter and his household were already
slumbering, but were roused from bed because Arca fired his gun and was loudly
shouting, Mga putang ina ninyo, pagpapatayin ko kayo. Thereafter, Arca forcibly
In order for Olarbe to exonerate himself on the ground of self-defense under Article entered Olarbe's house. Olarbe managed to grab the gun of Arca, and they struggled
11, paragraph 1,9 of the Revised Penal Code, he must establish the following facts, for control of it. Upon wresting the gun from Arca, Olarbe fired at him, causing him to
namely: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of totter. But Arca next took out the bolo from his waist and charged at Olarbe's
the means employed to prevent or repel such aggression; and (3) lack of sufficient common-law spouse. This forced Olarbe to fight for possession of the bolo, and upon
provocation on the part of the person resorting to self-defense. seizing the bolo, he hacked Arca with it.

Olarbe also invoked defense of stranger under Article 11, paragraph 3, 10 of Area's death was certified to have been due to the gunshot on the head and hacking
the Revised Penal Code because Arca was likewise attacking his common-law wounds. T1 he CA noted the following injuries, aside from the gunshot wound in the
spouse. Defense of stranger requires clear and convincing evidence to prove the head, namely:
following, to wit: (1) unlawful aggression by the victim; (2) reasonable necessity of the
'means to prevent or repel it; and (3) the person defending be not induced by
revenge, resentment or other evil motive. 11 • Lacerated wound on the forehead;

The indispensable requisite for either of these justifying circumstances is that the • Lacerated wound, front rib area;
victim must have mounted an unlawful aggression against the accused or the
stranger. Without such unlawful aggression, the accused is not entitled to the • Lacerated wound on the left upper quadrant;
justifying circumstance. 12 The essence of the unlawful aggression indispensable in
self-defense or defense of stranger has been fully discussed in People v. • Lacerated wound on the left lower quadrant;
Nugas, 13 thus:
• Lacerated wound on the occipital area

66 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

• Two (2) hacking wounds posterior of neck; and in judgment in a criminal trial. Judges should assiduously sift the records, carefully
analyze the evidence, and reach conclusions that are natural and reasonable.
• Hacking wound on lumbar area. 14
Did Olarbe clearly and convincingly establish the justifying circumstances invoked?
Only Olarbe's account of the incident existed in the records, but instead of giving
weight to the account, the RTC and the CA rejected his pleas of self-defense and We find that Arca committed continuous and persistent unlawful aggression against
defense of stranger based on their common holding that Arca had been weakened Olarbe and his common-law spouse that lasted from the moment he forcibly barged
from being hit on the head; and concluded that consequently Arca could not have into the house and brandished his gun until he assaulted Olarbe's common-law
charged with his bolo. spouse with the bolo. Such armed assault was not a mere threatening act. Olarbe
was justified in believing his and his common-law spouse's lives to be in extreme
The CA's rejection of Olarbe's pleas of self-defense and defense of stranger was danger from Arca who had just fired his gun in anger outside their home and whose
unwarranted. threats to kill could not be considered idle in the light of his having forced himself
upon their home. The imminent threat to life was positively strong enough to induce
Olarbe to act promptly to repel the unlawful and unprovoked aggression. For Olarbe
To start with, there was no credible showing that the shot to the head had rendered to hesitate to act as he had done would have cost him his own life. Area's being
Arca too weak to draw the bolo and to carry on with his aggression in the manner dispossessed of his gun did not terminate the aggression, for, although he had been
described by Olarbe. The conclusion of the RTC and the CA thereon was obviously hit on the head, he quickly reached for the bolo and turned his assault towards
speculative. Secondly, the State did not demonstrate that the shot from the airgun Olarbe's common-law spouse. Olarbe was again forced to struggle for control of
converted to .22 caliber fired at close range sufficed to disable Arca from further the bolo. The swiftness of the action heightened Olarbe's sense that the danger to
attacking with his bolo. Without such demonstration, the R TC and the CA clearly their lives was present and imminent.
indulged in pure speculation. Thirdly, nothing in the record indicated Arca's physical
condition at the time of the incident. How could the CA then reliably conclude that he
could not have mounted the bolo assault? And, lastly, to rule out any further In judging pleas of self-defense and defense of stranger, the courts should not
aggression by Arca with his bolo after the shot in the head was again speculative. On demand that the accused conduct himself with the poise of a person not under
the other hand, our substantial judicial experience instructs that an armed person imminent threat of fatal harm. He had no time to reflect and to reason out his
boldly seeking to assault others - like Arca - would have enough adrenaline to enable responses. He had to be quick, and his responses should be commensurate to the
him to persist on his assault despite sustaining a wound that might otherwise be imminent harm. This is the only way to judge him, for the law of nature - the
disabling. foundation of the privilege to use all reasonable means to repel an aggression that
endangers one's own life and the lives of others - did not require him to use unerring
judgment when he had the reasonable grounds to believe himself in apparent danger
To us, Olarbe's account of what did happen on that fateful night was highly plausible. of losing his life or suffering great bodily injury. 15 The test is whether his subjective
At the minimum, the details and sequence of the events therein described conformed belief as to the imminence and seriousness of the danger was reasonable or
to human experience and the natural course of things. Armed with both the gun and not, 16 and the reasonableness of his belief must be viewed from his standpoint at the
the bolo, Acra not only disturbed Olarbe's peace but physically invaded the sanctity of time he acted. 17 The right of a person to take life in self-defense arises from his belief
latter's home at midnight. Given that the aggressioll' by Arca was unprovoked on the in the necessity for doing so; and his belief and the reasonableness thereof are to be
part of Olarbe, and with no other person disputing the latter's account, we should judged in the light of the circumstances as they then appeared to him, not in the light
easily see and understand why Olarbe would feel that his and his commonlaw of circumstances as they would appear to others or based on the belief that others
spouse's lives had been put in extreme peril. may or might entertain as to the nature and imminence of the danger and the
necessity to kill.18
In addition, Olarbe's conduct following the killing of Arca - of voluntarily surrendering
himself to the police authorities immediately after the killing (i.e., at around 12:30 The remaining elements of the justifying circumstances were likewise established.
o'clock in the early morning of May 8, 2006), and reporting his participation in the
killing of Arca to the police authorities - bolstered his pleas of having acted in
legitimate self-defense and legitimate defense of his common-law spouse. Such Reasonable necessity of the means employed to repel the unlawful aggression does
conduct manifested innocence. not mean absolute necessity. It must be assumed that one who is assaulted cannot
have sufficient tranquility of mind to think, calculate and make comparisons that can
easily be made in the calmness of reason. The law requires rational necessity, not
To disbelieve Olarbe's account is to give primacy to surmise and speculation. That is indispensable need. In each particular case, it is necessary to judge the relative
not how courts of law whose bounden and sworn duty is to dispense justice should sit necessity, whether more or less imperative, in. accordance with the rules of rational

67 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

logic. The accused may be given the benefit of any reasonable doubt as to whether or and DIRECTS his IMMEDIATE RELEASE FROM CONFINEMENT unless he is
not he employed rational means to repel the aggression. 19 otherwise legally confined for another cause.

In determining the reasonable necessity of the means employed, the courts may also Let a copy of this decision be sent to the Director, Bureau of Corrections, in
look .at and consider the number of wounds inflicted. A large number of wounds Muntinlupa City for immediate implementation.1âwphi1 The Director of the Bureau of
inflicted on the victim can indicate a determined effort on the part of the accused to kill Corrections is DIRECTED TO REPORT the action taken to this Court within five days
the victim and may belie the reasonableness of the means adopted to prevent or from receipt of this decision.
repel an unlawful act of an aggressor.20 Here, however, although Arca sustained
several wounds, the majority of the wounds were lacerations whose nature and extent SO ORDERED.
were not explained. The lack of explanations has denied us the means to fairly
adjudge the reasonableness of the means adopted by Olarbe to prevent or repel
Area's unlawful aggression. Accordingly, to rule out reasonable necessity of the THIRD DIVISION
means adopted by Olarbe solely on the basis of the number of wounds would be
unfair to him. In any event, we have to mention that the rule of reasonable necessity G.R. No. 189405               November 19, 2014
is not ironclad in its application, but is dependent upon the established circumstances
of each particular case. SHERWIN DELA CRUZ, Petitioner,
vs.
The courts ought to remember that a person who is assaulted has neither the time PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in behalf
nor the sufficient tranquility of mind to think, calculate and choose the weapon to be of his deceased brother, JEFFREY WERNHER L. GONZALES, Respondents.
used. For, in emergencies of this kind, human nature does not act upon processes of
formal reason but in obedience to the instinct of self-preservation; and when it is DECISION
apparent that a person has reasonably acted upon this instinct, it is the duty of the
courts to hold the actor not responsible in law for the consequences. 21 Verily, the law
requires rational equivalence, not material commensurability, viz.: PERALTA, J.:

It is settled that reasonable necessity of the means employed does not imply material This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking
commensurability between the means of attack and defense. What the law requires to annul and set aside the May 7, 2009 Decision 1 of the Court of Appeals, in CA-G.R.
is rational equivalence, in the consideration of which will enter the principal CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable doubt
factors the emergency, the imminent danger to which the person attacked is of the crime of Homicide, and its August 19, 2009 Resolution2 denying his motion for
exposed, and the instinct, more than the reason, that moves or impels the reconsideration.
defense, and the proportionateness thereof does not depend upon the harm
done, but rests upon the imminent danger of such injury.22 [Bold underscoring Petitioner was charged with the crime of Homicide in an Information 3 dated March 2,
supplied for emphasis] 2005, which alleged:

Lastly, the absence of any showing that Olarbe had provoked Arca, or that he had That on or about the 1st day of January 2005, in the City of Makati, Philippines and
been induced by revenge, resentment or other evil motive has been equally palpable. within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to
We deem to be established, therefore, that the third elements of the justifying kill and with the use of an unlicensed firearm, did then and there wilfully, unlawfully
circumstances of self-defense and defense of stranger were present. and feloniously attack, assault and shoot one JEFFREY WERNHER GONZALES Y
LIM on the head, thereby inflicting upon the latter serious and moral gunshot wound
With Olarbe being entitled to the justifying circumstances of self-defense and defense which directly caused his death.
of a stranger, his acquittal follows.
CONTRARY TO LAW.4
WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on
March 22, 2016 in CA-G.R. CR-HC No. According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon,
07112; ACQUITS accused RODOLFO OLARBE y BALIHANGO on the grounds petitioner went to the office of Sykes Asia Inc. located at the 25th Floor of Robinson’s
of SELF-DEFENSE and DEFENSE OF A STRANGER; DECLARES him NOT CIVILL Summit Center,Ayala Avenue, Makati City. When petitioner was already inside the
Y LIABLE to the heirs of the late Romeo Arca; building, he went to the work station of the deceased victim, Jeffrey Wernher L.
68 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
Gonzales (Jeffrey), who, by the configuration of the eye witness Antonette petitioner’s path and shouted, "Guard! Guard!" Immediately then, Jeffrey took hold ofa
Managbanag’s sketch, was seated fronting his computer terminal, with his back big fire extinguisher, aimed and was about to smash the same on petitioner’s head.
towards the aisle. As petitioner approached Jeffrey from the back, petitioner was
already holding a gun pointed at the back of Jeffrey’s head. At the last second, Jeffrey Acting instinctively, petitioner parried the attack while still holding the gun. While in the
managed to deflect the hand of petitioner holding the gun, and a short struggle for the act of parrying, the gun accidentally fired due to the reasonable force and contact that
possession of the gun ensued thereafter. Petitioner won the struggle and remained in his parrying hand had made with the fire extinguisher and the single bullet discharged
possession of the said gun. Petitioner then pointed the gun at Jeffrey’s face, pulled hit the forehead of Jeffrey, which caused the latter to fall on the floor and die.
the trigger four (4) times, the fourth shot finally discharging the bullet that hit Jeffrey in
the forehead, eventually killing him. Finally, after shooting Jeffrey, petitioner fled the
office. Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded
towards the elevator. On his way to the elevator, he heard Darlene shout, "Sherwin
anong nangyari?", but he was not able to answer.
The defense recounted a different version of the facts.
After said incident, Darlene abandoned petitioner and brought with her their two (2)
Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or young children. Petitioner later learned that Darlene and Jeffrey had an illicit
less, petitioner, together with his children, went to Sykes Asia, the workplace of his relationship when he received a copy of the blog of Darlene, dated January 30, 2005,
wife, Darlene Dela Cruz (Darlene), located at the 25th Floor of Robinson’s Summit sent by his friend.
Building in Makati City, to fetch the latter so that their family could spend time and
celebrate together the New Year’s Day. Before entering the Robinson’s Summit
Building, petitioner underwent the regular security check-up/procedures. He was During his arraignment, on August 22, 2005, petitioner, with the assistance of
frisked by the guards-on-duty manning the main entrance of said building and no counsel, pleaded "Not Guilty" to the charge. Thereafter, pretrial conference was
firearm was found in his possession. He registered his name at the security logbook conducted on even date and trial on the merits ensued thereafter.
and surrendered a valid I.D.
During the trial of the case, the prosecution presented the oral testimonies of Marie
Upon reaching the 25th Floor of the same building, a security guard manning the Antonette Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos
entrance once again frisked petitioner and, likewise, found no gun in his possession; Alberto Lim Gonzales (Gonzales), respectively. The prosecution likewise formally
hence, he was allowed to enter the premises of Sykes Asia. The security guard also offered several pieces of documentary evidence to support its claim.
pointed to him the direction towards his wife’s table.
For its part, the defense presented aswitnesses, petitioner himself; his brother,
However, as Darlene was then not on her table, petitioner approached a certain man Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and
and asked the latter as to the possible whereabouts of Darlene. The person whom Managbanag, who was recalled to the witness stand as witness for the defense.
petitioner had talked towas the deceased-victim, Jeffrey. After casually introducing
himself as the husband of Darlene, Jeffrey curtly told him, "Bakit mo hinahanap si On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147,
Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The response given rendered a Decision5 finding petitioner guilty beyond reasonable doubt of the crime of
by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng asawa mo sayo Homicide, as defined and penalized under Article 249 of the Revised Penal Code
sinusundo mo pa!" (RPC), the fallo thereof reads:

Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y
who he was. But Jeffrey suddenly cursed petitioner. Then, Jeffrey suddenly picked up Gloria Guilty beyond reasonable doubt of the crime of Homicide as defined and
something in his chair which happened to be a gun and pointed the same at penalized under Art. 249 of the Revised Penal Code, and sentencing him to suffer the
petitioner’s face followed by a clicking sound. The gun, however, did not fire. indeterminate penalty of Eight (8) years and One (1) day of prision mayor medium as
Minimum to Fourteen (14) years eight (8) months and one (1) day of reclusion
Seeing imminent danger to his life,petitioner grappled with Jeffrey for the possession temporal medium as Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y
of the gun.While grappling, the gunclicked for two (2) to three (3) more times. Again, Lim in the amount of ₱50,000.00 plus moral damages in the amount of ₱1 Million,
the gun did not fire. and to pay the costs.

Petitioner was able to wrest away the gun from Jeffrey and tried to run away to avoid SO ORDERED.6
any further confrontation with the latter.However, Jeffrey immediately blocked
69 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent, 5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE
through the private prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as FOR THE DEATH OF THE VICTIM ARISING FROM THE ACCIDENT THAT
the sentence rendered against petitioner is concerned and the civil damages TRANSPIRED.9
awarded.
There is no question that petitioner authored the death of the deceased-victim,
After the denial of their motion for reconsideration, petitioner elevated the case to the Jeffrey. What is leftfor determination by this Court is whether the elements of self-
Court of Appeals (CA). However, the latter denied their appeal and affirmed the RTC defenseexist to exculpate petitioner from the criminal liability for Homicide.
decision with modification on the civil liability of petitioner. The decretal portion of the
Decision7 reads: WHEREFORE, we hereby AFFIRM the Decision of the Regional The essential requisites of self-defense are the following: (1) unlawful aggression on
Trial Court of Makati, Branch 147 dated 26 February 2007 finding accused-appellant the part of the victim; (2) reasonable necessity of the means employed to prevent or
Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt of the crime repel such aggression; and (3) lackof sufficient provocation on the part of the person
ofHomicide with the following MODIFICATIONS: resorting to self-defense.10 In other words, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who was then forced to
(1) to pay the heirs of the victim the amount of ₱50,000.00 as civil indemnity; inflict severe wounds upon the assailant by employing reasonable means to resist the
attack.11
(2) the amount of ₱50,000.00 as moral damages;
Considering that self-defense totally exonerates the accused from any criminal
(3) the amount of ₱25,000.00 as temperate damages; liability, it is well settled thatwhen he invokes the same, it becomes incumbent upon
him to prove by clear and convincing evidence that he indeed acted in defense of
himself.12 The burden of proving that the killing was justified and that he incurred no
(4) the amount of ₱3,022,641.71 as damages for loss of earning capacity. criminal liability therefor shifts upon him.13 As such, he must rely on the strength of his
own evidence and not on the weakness of the prosecution for, even if the prosecution
(5) to pay the costs of the litigation. evidence is weak, it cannot be disbelieved after the accused himself has admitted the
killing.14
SO ORDERED.8
Measured against this criteria, wefind that petitioner's defense is sorely wanting.
Petitioner's motion for reconsideration was denied. Hence, the present petition. Hence, his petition must be denied.

Raised are the following issues for resolution: First. The evidence on record does not support petitioner's contention that unlawful
aggression was employed by the deceased-victim, Jeffrey, against him.

1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING

CIRCUMSTANCE OF SELF-DEFENSE, AS PROVIDED FOR BY LAW AND Unlawful aggression is the most essential element of self-defense. It presupposes
SETTLED JURISPRUDENCE, ARE PRESENT IN THIS CASE. actual, sudden, unexpected or imminent danger — not merely threatening and
intimidating action.15 There is aggression, only when the one attacked faces real and
immediate threat to his life.16 The peril sought to be avoided must be imminent and
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE actual, not merely speculative.17 In the case at bar, other than petitioner’s testimony,
BULLET WAS DISCHARGED THEREFROM WAS MERELY ACCIDENTAL the defense did not adduce evidence to show that Jeffrey condescendingly
WHICH OCCURRED DURING THE TIME THAT THE PETITIONER- responded to petitioner’s questions or initiated the confrontation before the shooting
APPELLANT WAS STILL IN THE ACT OF DEFENDING HIMSELF FROM incident; that Jeffrey pulled a gun from his chair and tried to shoot petitioner but failed
THE CONTINUOUS UNLAWFUL AGGRESSION OF THE DECEASED — an assault which may have caused petitioner to fear for his life.
VICTIM.
Even assuming arguendothat the gun originated from Jeffrey and an altercation
3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE transpired, and therefore, danger may have in fact existed, the imminence of that
ESSENTIAL ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE. danger had already ceased the moment petitioner disarmed Jeffrey by wresting the
gun from the latter. After petitioner had successfully seized it, there was no longer any
4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF- unlawful aggression to speak of that would have necessitated the need to kill Jeffrey.
DEFENSE IS APPLICABLE IN THIS CASE.
70 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
As aptly observed by the RTC, petitioner had every opportunity to run away from the A: And then Jeff parried the gun and they started struggling for the possession of the
scene and seek help but refused to do so, thus: gun.

In this case, accused and the victim grappled for possession of the Q: How far were you from this struggle when you witnessed it?
gun.1avvphi1 Accused admitted that he wrested the gun from the victim. From that
point in time until the victim shouted "guard, guard", then took the fire extinguisher, A: Probably 10 to 12 feet.
there was no unlawful aggression coming from the victim. Accused had the
opportunity to run away. Therefore, even assuming that the aggression with use of
the gun initially came from the victim, the fact remains that it ceased when the gun Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey warded off
was wrested away by the accused from the victim. It is settled that when unlawful the gun, they started to struggle, what happened after that, if any?
aggression ceases, the defender no longer has any right to kill or wound the former
aggressor, otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana, A: After they struggled, the gun clicked three times and then after that Jeff tried to get
424 SCRA 620). A person making a defense has no more right to attack an aggressor hold of the fire extinguisher and the fourth shot went off and then Jeffrey fell down.
when the unlawful aggression has ceased (PeoVs. Pateo, 430 SCRA 609).
Q: And who was holding the gun?
Accused alleged that the victimwas about to smash the fire extinguisher on his
(accused’s) headbut he parried it with his hand holding the gun. This is doubtful as A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSS-
nothing in the records is or would be corroborative of it.In contrast, the two (2) EXAMINATION: Atty. Agoot:
Prosecution witnesses whose credibility was not impeached, both gave the
impression that the victim got the fire extinguisher to shieldhimself from the accused
who was then already in possession of the gun.18 Q: So you did not see when Sherwin approached Jeffrey because he came from the
other side? Atty. Mariano:
Thus, when an unlawful aggression that has begun no longer exists, the one who
resorts to self-defense has no right to kill or even wound the former aggressor.19 To Objection, your Honor, witness already answered that.
be sure, when the present victim no longer persisted in his purpose or action to the
extent that the object of his attack was no longer in peril, there was no more unlawful Atty. Agoot:
aggression that would warrant legal self-defense on the part of the
offender.20 Undoubtedly, petitioner went beyond the call of self-preservation when he
I am on cross examination, your Honor.
proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey, even when the
allegedly unlawful aggression had already ceased.
COURT
More, a review of the testimony of the prosecution witness, Pelaez, will show that if
there was unlawful aggression in the instant case, the same rather emanated from You didn’t not see when he approached Jeffrey? A: No, as I said, I saw him point the
petitioner, thus: DIRECT EXAMINATION gun at the back of Jeff and he did not come from my side so that means…

Atty. Mariano: COURT

Q: Can you relate to the Court, Ms. Witness, how did this incident happen? No, the question is, You did not actually see Sherwin approached Jeffrey?

A: We were still at work, we were expecting calls but there were no calls at the A: I saw him already at the back of Jeffrey.
moment and I was standing at my work station and then Sherwin approached Jeff
and he pointed a gun at the back of the head of Jeff. Atty. Agoot

Q: And then what happened? He was already at the back of Jeffrey when you saw him?

A: Yes, Sir.
71 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
(TSN, Oct. 17, 2005, pp. 26-27)21 Q: And then he used that fire extinguisher to protect himself from the slapping of that
person who was in possession of the gun?
Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a
gun from his chair and tried to shoot him, is not corroborated by separate competent Witness
evidence. Pitted against the testimony of prosecution witnesses, Managbanag and
Pelaez, it pales incomparison and loses probative value. We have, on more thanone A: Yes, sir.
occasion, ruled that the plea of self-defense cannot be justifiably entertained where it
is not only uncorroborated by any separate competent evidence but also extremely
doubtful in itself.22 Atty. Agoot

In addition, other than petitioner’s testimony, there is dearth of evidence showing that Q: And then after that there was again a grappling?
the alleged unlawful aggression on the part of Jeffrey continued when he blocked the
path of petitioner while the latter tried to run away to avoid further confrontation with Witness
Jeffrey. We also agree with the findings of the RTC that there was no proof evincing
that Jeffrey aimed and intended to smash the big fire extinguisher on petitioner’s A: No more grappling for possession. Because Jeffrey was still holding the fire
head. Alternatively, the prosecution witnesses maintained an impression that Jeffrey extinguisher at thattime. And then he fell holding on to the fire extinguisher.
used the same to shield himself from petitioner who was then in possession of the
gun, a deadly weapon. An excerpt of the testimony of Managbanag bares just that, to
wit: Atty. Agoot

Atty. Agoot Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi
pumutok" Do you affirmand confirm this statement?
Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced the
person who was holding the gun already? Witness

Witness: A: Yes, sir. They were pushing each other. The other person was trying to point the
gun at Jeffrey and Jeffrey was trying to cover himself with the fire extinguisher so
nagkakatulakan sila at the same time.
A: He was holding the fire extinguisher like this.

Atty. Agoot
COURT

Q: You said that the gun clicked, how many times did the gun click without firing?
For the record.

Witness
Atty. Mariano:

A: Three (3) times, sir.

Witness demonstrating how the victim Jeffrey Gonzales was holding the fire
extinguisher upright with his right hand above the fire extinguisher and his left hand
below the fire extinguisher. Atty. Agoot

Witness: Q: And what did the late Jeffrey do when the gun clicked but did not fire?

The left hand would support the weight basically. Witness

Atty. Agoot A: They were still pushing each other at that time.

72 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Atty. Agoot Indeed, the means employed by a person resorting to self-defense must be rationally
necessary to prevent or repel an unlawful aggression. The opposite was, however,
Q: Using the fire extinguisher, heused that to push against the person… employed by petitioner, as correctly pointed out by the RTC, thus:

Witness The victim was holding the fire extinguisher while the second was holding the gun.
The gun and the discharge thereof was unnecessary and disproportionate to repel the
alleged aggression with the use of fire extinguisher. The rule is that the means
A: Basically trying to cover himself and trying to push away the person who was employed by the person invoking self-defense contemplates a rational equivalence
pointing the gun at him. between the means of attack and the defense (Peo vs. Obordo, 382 SCRA 98).

Atty. Agoot It was the accused who was in a vantage position as he was armed with a gun, as
against the victim who was armed, so to speak, with a fire extinguisher, which is not a
Q: And why do you know that Jeffrey was trying hard to push the fire extinguisher? deadly weapon. Under the circumstances, accused’s alleged fear was unfounded.
The Supreme Court has ruled that neither an imagined impending attack nor an
Witness impending or threatening attitude is sufficient to constitute unlawful aggression
(Catalina Security Agency Vs. Gonzales-Decano, 429 SCRA 628). It is a settled rule
that to constitute aggression, the person attacked must be confronted by a real threat
A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly saw on his lifeand limb; and the peril sought to be avoided is imminent and actual, not
what was going on at that time. merely imaginary (Senoja v. Peo., 440 SCRA 695).26

(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04 If petitioner had honestly believed that Jeffrey was trying to kill him, he should have
September 2006, pp. 12-17, emphasis supplied)23 just run, despite any obstruction, considering that he was already in possession of the
gun. He could have also immediately sought help from the people around him,
Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and specifically the guard stationed at the floor where the shooting incident happened. In
imminent is, therefore, devoid of merit. fact, he could have reported the incident to the authorities as soon as he had
opportunity to do so, if it was indeed an accident or a cry of self-preservation. Yet,
petitioner never did any of that.
Given that the criteria of unlawful aggression is indubitably absent in the instant case,
the severe wounds inflicted by petitioner upon Jeffrey was unwarranted and,
therefore, cannot be considered a justifying circumstance under pertinent laws and We find it highly specious for petitioner to go through the process of tussling and
jurisprudence. hassling with Jeffrey, and inthe end, shooting the latter on the forehead, not only
once, but four times, the last shot finally killing him, if he had no intention to hurt
Jeffrey. Thus:
Second. Even assuming that the unlawful aggression emanated from the deceased
victim, Jeffrey, the means employed by petitioner was not reasonably commensurate
to the nature and extent of the alleged attack, which he sought to avert. As held by Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while
the Court in People v. Obordo:24 there was prior struggle for the possession of the gun, it was nevertheless accused
who was holding the gun at the time of the actual firing thereof (TSN, p. 30, October
10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag even alleged that
Even assuming arguendo that there was unlawful aggression on the part of the victim,
while the victim (Jeffrey), who was in possession of the fire extinguisher, and the
accused-appellant likewise failed to prove that the means he employed to repel
accused were pushing each other, accused pointed the gun at the victim. She heard
Homer's punch was reasonable. The means employed by the person invoking self-
three (3) clicks and on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under
defense contemplates a rational equivalence between the means of attack and the
the circumstances, it cannot be safely said that the gun was or could have been fired
defense. Accused appellant claimed that the victim punched him and was trying to get
accidentally. The discharge of the gun which led to the victim’s death was no longer
something from his waist, so he (accused-appellant) stabbed the victim with his
made in the course of the grapple and/or struggle for the possession of the gun.27
hunting knife. His act of immediately stabbing Homer and inflicting a wound on a vital
part ofthe victim's body was unreasonable and unnecessary considering that, as
alleged by accused-appellant himself, the victim used his bare fist in throwing a punch The observation of the RTC dispels any doubt that the gun may have been shot
at him.25 accidentally to the detriment of Jeffrey. The fire was neither a disaster nor a
misfortune of sorts. While petitioner may nothave intended to kill Jeffrey at the onset,
73 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
at the time he clicked the trigger thrice consecutively, his intent to hurt (or even kill) testifying.35 This being so and in the absence of a showing that the CA and the RTC
Jeffrey was too plain to be disregarded. We have held in the pastthat the nature and failed to appreciate facts or circumstances of such weight and substance that would
number of wounds are constantly and unremittingly considered important indicia have merited petitioner's acquittal, this Court finds no compelling reason to disturb the
which disprove a plea of self-defense.28 Thus, petitioner’s contention that an accident ruling of the CA that petitioner did not act in self-defense.36
simultaneously occurred while hewas in the act of self-defense is simply absurd and
preposterous at best. There could nothave been an accident because the victim In this regard, we do not subscribe to petitioner’s contention that since the incident
herein suffered a gunshot wound on his head, a vital part of the body and, thus, transpired in Jeffrey’s office, and the witnesses presented by the prosecution are
demonstrates a criminal mind resolved to end the life of the victim. known officemates of Jeffrey, the witnesses are expected to testify in favor of Jeffrey
and against petitioner. Ascorrectly pointed out by respondent, there appears no
Besides, petitioner’s failure to inform the police of the unlawful aggression on the part motive on the part of the prosecution witnesses to falsely testify against
of Jeffrey and to surrender the gun that he used to kill the victim militates against his petitioner.37 The fact that they are officemates of Jeffrey does not justify a conclusion
claim of self-defense.29 that Managbanag and Pelaez would concoct or fabricate stories in favorof Jeffrey for
the mere purpose of implicating petitioner with such a serious crime, especially since
In view of the foregoing, we find it illogical to discuss further the third element of self- they are testifying under oath.
defense since it is recognized that unlawful aggression is a conditio sine qua nonfor
upholding the justifying circumstance of self-defense.30 If there is nothing to prevent or All told, we find no basis to doubt ordispute, much less overturn, the findings of the
repel, the other two requisites of self-defense will have no basis. 31 Hence, there is no RTC and the CA that the elements of homicide are present in the instant case as
basis to entertain petitioner’s argument that a privileged mitigating circumstance of amply shown by the testimonies of the prosecution eyewitnesses, and they constitute
selfdefense is applicable in this case, because unless the victim has committed sufficient proof of the guilt of petitioner beyond cavil or doubt.
unlawful aggression against the other, there can be no self-defense, complete or
incomplete, on the part of the latter.32 Nevertheless, with regard to the appreciation of the aggravating circumstance of use
of an unlicensed firearm, we deviate from the findings of the CA. A perusal of the
Anent petitioner’s argument thatthe RTC erred when it failed to consider as Information will show that the use of unlicensed firearm was expressly alleged in the
suppression of evidence the prosecution’s alleged deliberate omission to present the killing of Jeffrey. This allegation was further proved during trial by the presentation of
testimonies of the security guards-on-duty at the time of the shooting incident, the the Certification from the PNP Firearms and Explosives Division, dated November 11,
same fails to persuade. We concur with the decision of the CA on this point, to wit: 2005, certifying that petitioner is not a licensed/registered firearm holder of any kind
and calibre, per verification from the records of the said Division. Accordingly, under
Having admitted the killing of the victim, the burden of evidence that he acted in self- Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294, amending Section 1 of
defense, shifted to accused-appellant Dela Cruz. He must rely on the strength of his Presidential Decree (P.D.) No. 1866, such use of an unlicensed firearm shall be
own evidence and not on the weakness of the prosecution’s evidence, for, even if the considered as an aggravating circumstance, to wit:
latter were weak, it could not be disbelieved after his open admission of responsibility
for the killing. xxxx

The security guards on duty at the time of the subject incident were at the disposal of If homicide or murder is committed with the use of an unlicensed firearm, such use of
both the prosecution and the defense. The defense did not proffer proof that the an unlicensed firearm shall be considered as an aggravating circumstance.
prosecution prevented the security guards from testifying. There is therefore no basis
for it to conclude that the prosecution is guilty of suppression of evidence. x x x x.

The defense could have easily presented the security guards if it is of the opinion that Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There
their [the security guards] testimonies were vital and material to the case of the being an aggravating circumstance of use of unlicensed firearm, the penalty
defense. It could have compelled the security guards on duty to appear before the imposable on petitioner should be in its maximum period.38 Applying the
court. xxx.33 Indeterminate Sentence Law, the petitioner shall be sentenced to an indeterminate
penalty of from ten (10) years and one (1) day of prision mayor maximum, as the
It is worthy to note that the question of whether petitioner acted in self-defense is minimum penalty, to seventeen (17) years, four (4) months and one (1) day of
essentially a question of fact.34 It is the peculiar province of the trial court to determine reclusion temporal maximum, as the maximum penalty.
the credibility of witnesses and related questions of fact because of its superior
advantage in observing the conduct and demeanor of witnesses while
74 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
As to the award of civil indemnity, moral damages, and damages for loss of earning THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
capacity in favor ofprivate respondent, we sustain the findings of the CA in so far as vs.
they are in accordance with prevailing jurisprudence. In addition, we find the grant of FELIPE DELIMA, defendant-appellant.
exemplary damages in the present case in order, since the presence of special
aggravating circumstance of use of unlicensed firearm has been established.39 Based Tancinco & Rosales for appellant.
on current jurisprudence, the award of exemplary damages for homicide is Attorney-General Villa-Real for appellee.
₱30,000.00.40
ROMUALDEZ, J.:
Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames, 41 an interest of six
percent (6%) per annum on the aggregate amount awarded for civil indemnity and
damages for loss of earning capacity shall be imposed, computed from the time of Lorenzo Napilon had escaped from the jail where he was serving sentence.
finality of this Decision until full payment thereof.
Some days afterwards the policeman Felipe Delima, who was looking for him, found
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape
2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89257, finding petitioner of a lance, and demanded his surrender. The fugitive answered with a stroke of his
Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, are lance. The policeman dodged, it, and to impose his authority fired his revolver, but the
hereby AFFIRMED with MODIFICATIONS, to wit: bullet did not hit him. The criminal ran away, without parting with his weapon. These
peace officer went after him and fired again his revolver, this time hitting and killing
him.
(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years
and one (1) day of prision mayor maximum, as the minimum penalty, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal maximum, as the The policeman was tried and convicted for homicide and sentenced to reclusion
maximum penalty; temporal and the accessory penalties. He appeals from that judgment which must be
reversed.
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:
That killing was done in the performance of a duty. The deceased was under the
obligation to surrender, and had no right, after evading service of his sentence, to
a. the amount of ₱50,000.00 as civil indemnity; commit assault and disobedience with a weapon in the hand, which compelled the
policeman to resort to such an extreme means, which, although it proved to be fatal,
b. the amount of ₱50,000.00 as moral damages; was justified by the circumstances.lawphil.net

c. the amount of ₱25,000.00 as temperate damages; Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no
crime, and he is hereby acquitted with the costs de oficio. So ordered.
d. the amount of ₱30,000.00 as exemplary damages;
G.R. Nos. 103501-03. February 17, 1997.]
e. the amount of ₱3,022,641.71 as damages for loss of earning capacity;
LUIS A. TABUENA, Petitioner, v. HONORABLE SANDIGANBAYAN, and THE
PEOPLE OF THE PHILIPPINES, Respondents.
f. for the civil indemnity and the damages for loss of earning capacity, an
interest of six percent (6%) per annum, computed from the time of finality of [G.R. No. 103507. February 17, 1997.]
this Decision until full payment thereof; and
ADOLFO M. PERALTA, Petitioner, v. HON. SANDIGANBAYAN (First Division),
g. the costs of the litigation. and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE
SPECIAL PROSECUTOR, Respondents.
SO ORDERED.
Siguion Reyna, Montecillo & Ongsiako for petitioner in G.R. No. 103501-03.

G.R. No. L-18660 December 22, 1922 Estebal & Associates Law Firm for petitioner in G.R. No. 103507.

75 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 demandable debt and that it was just a portion of a bigger liability to PNCC. Thus,
The Solicitor General for Respondents. even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith. The principles underlying all that has been said above in
SYLLABUS exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which
he is being held accountable, i.e., he acted in good faith when he, upon the directive
of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the
1. REMEDIAL LAW; CRIMINAL PROCEDURE; VARIANCE BETWEEN THE CRIME MIAA funds.
CHARGED AND THAT PROVED, IMMATERIAL. — Tabuena and Peralta stress that
they were being charged with intentional malversation. But they were convicted of 4. ID.; ID.; ID.; ADMINISTRATIVE OR CIVIL LIABILITY FOR FAILURE TO COMPLY
malversation by negligence. Their theory is that such variance is a reversible flaw. We WITH AUDITING RULES. — There is no denying that the disbursement, which
do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Tabuena admitted as "out of the ordinary," did not comply with certain auditing rules
"Cabello v. Sandiganbayan" where the Court passed upon similar protestations raised and regulations. But this deviation was inevitable under the circumstances Tabuena
by therein accused-petitioner Cabello whose conviction for the same crime of was in. He did not have the luxury of time to observe all auditing procedures of
malversation was affirmed, in this wise: ". . . even on the putative assumption that the disbursement considering the fact that the MARCOS Memorandum enjoined his
evidence against petitioner yielded a case of malversation by negligence but the "immediate compliance" with the directive that he forward to the President’s Office the
information was for intentional malversation, under the circumstances of this case his P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility
conviction under the first mode of misappropriation would still be in order. for such omission. But since he was acting in good faith, his liability should only be
Malversation is committed either intentionally or by negligence. The dolo or the culpa administrative or civil in nature, and not criminal.
present in the offense is only a modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the same offense of malversation is 5. ID.; ID.; CONVERSION; NEGATED WHERE MONEY WAS DELIVERED TO
involved and conviction thereof is proper."cralaw virtua1aw library SECRETARY OF THE PRESIDENT; MEMORANDUM DIRECTED ACCUSED TO
PAY IMMEDIATELY PNCC, THRU THE OFFICE OF THE PRESIDENT. — The
2. CRIMINAL LAW; MALVERSATION; GOOD FAITH, VALID DEFENSE. — Good Sandiganbayan made the finding that Tabuena had already converted and
faith is a valid defense in a prosecution for malversation for it would negate criminal misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and
intent on the part of the accused. not to the PNCC. We do not agree. It must be stressed that the MARCOS
Memorandum directed Tabuena "to pay immediately the Philippine National
3. ID.; ID.; ID.; CASE AT BAR. — In so far as Tabuena is concerned, with the due Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION . . .," and
presentation in evidence of the MARCOS Memorandum, we are swayed to give credit that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez.
to his claim of having caused the disbursement of the P55 Million solely by reason of Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch
such memorandum. Tabuena had no other choice but to make the withdrawals, for as Mrs. Gimenez was Marcos’ secretary then. Furthermore, Tabuena had reasonable
that was what the MARCOS Memorandum required him to do. He could not be ground to believe that the President was entitled to receive the P55 Million since he
faulted if he had to obey and strictly comply with the presidential directive, and to was certainly aware that Marcos, as Chief Executive, exercised supervision and
argue otherwise is something easier said than done. Marcos was undeniably control over government agencies. And the good faith of Tabuena in having delivered
Tabuena’s superior — the former being then the President of the Republic who the money to the President’s office (thru Mrs. Gimenez), in strict compliance with the
unquestionably exercised control over government agencies such as the MIAA and MARCOS Memorandum, was not at all affected even if it later turned out that PNCC
PNCC. In other words, Marcos had a say in matters involving inter-government never received the money.
agency affairs and transactions, such as for instance, directing payment of liability of
one entity to another and the manner in which it should be carried out. And as a 6. ID.; ID.; CONSPIRACY TO SIPHON-OUT PUBLIC MONEY FOR PERSONAL
recipient of such kind of a directive coming from the highest official of the land no BENEFIT OF THOSE THEN IN POWER; NOT PROVEN IN CASE AT BAR. — Even
less, good faith should be read on Tabuena’s compliance, without hesitation nor any assuming that the real and sole purpose behind the MARCOS Memorandum was to
question, with the MARCOS Memorandum. Tabuena therefore is entitled to the siphon-out public money for the personal benefit of those then in power, still, no
justifying circumstance of "Any person who acts in obedience to an order issued by a criminal liability can be imputed to Tabuena. There is no showing that Tabuena had
superior for some lawful purpose." The subordinate-superior relationship between anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is
Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in there proof that he profited from the felonious scheme. In short, no conspiracy was
the MARCOS Memorandum, as it has for its purpose partial payment of the liability of established between Tabuena and the real embezzler/s of the P15 Million.
one government agency (MIAA) to another (PNCC). The MARCOS Memorandum is
patently legal (for on its face it directs payment of an outstanding liability) and that 7. POLITICAL LAW; BILL OF RIGHTS; DUE PROCESS; ACCUSED DENIED
Tabuena acted under the honest belief that the P55 million was a due and THEREOF WHERE THE SANDIGANBAYAN ACTIVELY TOOK PART IN THE

76 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

QUESTIONING OF A DEFENSE WITNESS AND OF THE ACCUSED manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which
THEMSELVES. — But what appears to be a more compelling reason for their are crucial in the determination of the innocence or guilt of the appellants. These
acquittal is the violation of the accused’s basic constitutional right to due process. Justices, as trial magistrates, have only exercised one of the inherent rights of a judge
"Respect for the Constitution," to borrow once again Mr. Justice Cruz’s words, is more in the exercise of judicial function. That the appellants themselves did not find any
important than securing a conviction based on a violation of the rights of the impropriety in the conduct of the Justices, or that if they did they find nothing therein
accused." While going over the records, we were struck by the way the to prejudice their right to due process is best proven by their failure to assign it as
Sandiganbayan actively took part in the questioning of a defense witness and of the error.
accused themselves. Hardly in fact can one avoid the impression that the
Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for 2. ID.; ID.; RIGHT TO AN IMPARTIAL JUDGE, SUBJECT TO WAIVER. — Even
the prosecution in proving the case against Tabuena and Peralta when the Justices granting arguendo that the conduct of the Justices constituted such a violation, the
cross-examined the witnesses, their cross-examinations supplementing those made appellants are forever estopped from raising that issue on ground of waiver This
by Prosecutor Viernes and far exceeding the latter’s questions in length. The "cold Court would risk an accusation of undue partiality for the appellants were it to give
neutrality of an impartial judge" requirement of due process was certainly denied them premium for their torpor and then reward them with an acquittal. Such waiver is
Tabuena and Peralta when the court, with its overzealousness, assumed the dual role conclusively proven in these cases. From the quoted portions of the testimonies of the
of magistrate and advocate. witnesses for the appellants, it is clear that their counsel did not object to, or manifest
on record his misgivings on, the active participation of the Justices in the examination
8. REMEDIAL LAW; ACTIONS; APPEALS; APPEAL THROWS THE WHOLE CASE (or cross-examination) of the witnesses. Nothing could have prevented the counsel
OPEN TO REVIEW. — Tabuena and Peralta may not have raised this as an error, for the appellants from doing so. Then, too, as correctly pointed out in the ponencia,
there is nevertheless no impediment for us to consider such matter as additional basis they made no assignment of error on the matter. In our jurisdiction, rights may be
for a reversal since the settled doctrine is that an appeal throws the whole case open waived unless the waiver is contrary to law, public order, public policy, morals, or
to review, and it becomes the duty of the appellate court to correct such errors as may good customs, or is prejudicial to a third person with a right recognized by law. In the
be found in the judgment appealed from whether they are made the subject of cases below, the perceived violation, if at all it existed, was not of the absolute totality
assignments of error or not. of due process, but more appropriately of the right to an impartial trial, which is but an
aspect of the guarantee of due process. I submit that the right to an impartial trial is
9. JUDICIAL ETHICS; JUDGES; EXAMINATION OF WITNESSES MUST BE waivable
LIMITED TO CLARIFICATORY QUESTIONS. — The Court has acknowledged the
right of a trial judge to question witnesses with a view to satisfying his mind upon any 3. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; OBEDIENCE TO LAWFUL
material point which presents itself during the trial of a case over which he presides. ORDER; MEMORANDUM OF PRESIDENT MARCOS TO DELIVER THRU HIS
But not only should his examination be limited to asking "clarificatory" questions, the OFFICES, THE SUM OF P55,000,000.00 IN CASH AS PARTIAL PAYMENT OF
right should be sparingly and judiciously used; for the rule is that the court should stay MIAA’S ACCOUNT, UNLAWFUL. — I also disagree with the view of the majority that
out of it as much as possible neither interfering nor intervening in the conduct of the all the requisites of the sixth justifying circumstance in Article II of the Revised Penal
trial. "A trial judge should not participate in the examination of witnesses as to create Code are present. I submit that the 8 January 1986 Memorandum of President
the impression that he is allied with the prosecution."cralaw virtua1aw library Marcos can by no means be considered a "lawful" order to pay P55 million to the
PNCC as alleged partial payment of the MIAA’s account to the former. The alleged
DAVIDE, J., Dissenting Opinion:chanrob1es virtual 1aw library basis of such Memorandum is the 7 January 1985 Memorandum of Trade and
Industry Minister Roberto Ongpin, which even confirms the absence of any factual
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; EXTENSIVE basis for the order of payment of P55 million. If Ongpin’s memorandum is given full
QUESTIONING BY JUSTICES OF THE SANDIGANBAYAN OF APPELLANTS AND faith, it is clear that PNCC’s "accomplishment billings" for work accomplished,
THEIR WITNESSES, NOT A VIOLATION THEREOF. — The ponencia admits that including accomplishments on the "supplemental contracts" (whose authority therefor
the appellants did not raise as an issue the Sandiganbayan’s violation of their right to was just sought for), aggregated to P98.4 million. Since there were advances given to
due process; nevertheless, it ruled that such failure is not an impediment to the PNCC in the total amount of P93.9 million, the net amount due the PNCC was only
consideration of the violation "as additional basis for a reversal since the settled P4.5 million. However, in view of the approval by then President Marcos of Ongpin’s
doctrine is that an appeal throws the whole case open to review, and it becomes the request "for a deferment of the repayment of PNCC’s advances to the extent of P30
duty of the appellate court to correct such errors as may be found in the judgment million," only P63.9 million of PNCC’s advances was to be deducted from the
appealed from whether they are made the subject of assignments of error or not." I accomplishment billings of P98.4 million. The net amount due thus became P34.5
beg to disagree. There is no showing at all that the extensive participation by the million. Hence, as pointed out by the Sandiganbayan, if any payments were due
Justices of the Sandiganbayan in questioning the appellants and their witness under Ongpin’s Memorandum, they would only be for that amount (P34.5 million).
indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On The Order of then President Marcos to withdraw has, therefore, exceeded by P20.5
the contrary, the quoted portions of the questions propounded by the Justices million. Clearly, the order of payment of P55 million had no factual and legal basis

77 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

and was therefore unlawful. accused, Peralta and Dabao, disregarded standard operating procedures in following
the President’s order. As observed by the Sandiganbayan, "there were no vouchers
4. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; GOOD FAITH NEGATED to authorize the disbursements in question. There were no bills to support the
BY NON-OBSERVANCE OF PROCEDURES IN PAYMENT OF OBLIGATION. — disbursement. There were no certifications as to the availability of funds for an
Being responsible accountable officers of the MIAA, they were presumed to know unquestionably staggering sum of P55 Million." To compound the duplicity, the
that, in light of "the undeferred portion of the repayment" of PNCC’s advances in the checks, issued by one branch of PNB were encashed in another — all made in cash
amount of P63.9 million, the MIAA’s unpaid balance was only P34.5 million. They also instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was
ought to know the procedure to be followed in the payment of contractual obligations. made without prior approval or authority of the Commission on Audit. Finally, the last
First and foremost there were the submission by the PNCC of its claims with the two payments were made despite the non-issuance of a receipt for the first. In fact,
required supporting documents and the approval of the claims by the appropriate the receipt given after the delivery of the last installment was not even issued by the
approving authority of MIAA. When then President Marcos ordered immediate PNCC, the legal obligee and avowed recipient of the money. Instead it emanated
payment, he should not have been understood as to order suspension of the from the office of Roa-Gimenez, a complete stranger to the alleged contract between
accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it MIAA and PNCC, who did not even indicate in what capacity she signed it. To
may be stated here that although President Marcos was a dictator, he was reported to compound the mystery, the money was even delivered to her office, not in
be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter Malacañang, but at nearby Aguado Street. The entire process, done with haste and
of fact, he did not hesitate to issue a decree, letter of instruction, or any presidential with a total disregard of appropriate auditing requirements was, in the words of
issuance in anticipation of any planned actions or activities to give the latter the petitioners themselves, "an extraordinary transaction," admittedly "out of the ordinary"
facade or semblance of legality, wisdom, or propriety. When he made the order to and "not based on normal procedure." Far from being lawful the payment of the
appellant Tabuena, President Marcos must only be understood to order expeditious alleged obligation of MIAA to PNCC through the Office of the President may at best
compliance with the requirements to facilitate immediate release of the money. There be labelled as irregular.
was no way for Tabuena to entertain any fear that disobedience to the order because
of its unlawfulness or delay in the execution of the order due to compliance with the 3. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; LIABILITY SUBSISTS
requirements would cause his head or life. He offered no credible evidence for such WHERE ACCUSED WERE NEGLIGENT. — Assuming arguendo that petitioners
fear. This Court should not provide one for him. That Tabuena served Mr. Marcos acted in good faith in following the President’s order, undeniably, they were negligent
until the end of the latter’s regime and even beyond only proved a loyalty not based as found by the trial court. The instructions in the President’s order should have
on fear but on other considerations. Moreover, the manner the appellant effected the sufficed to put any accountable head of an office, Tabuena included, on guard. Being
withdrawal was most unusual, irregular, and anomalous. He has not shown any the general manager of such a mammoth organization like the MIAA, he should, at
evidence that what he did was the usual practice in his office. What happened in this the very least, have exercised ordinary prudence by verifying with the proper official
case showed the appellants’ complicity as principals by direct participation in the under him whether the agency had indeed an outstanding indebtedness to the PNCC
malversation of the MIAA’s funds. The appellants should, therefore, be thankful to the before ordering any payment to be made through official channels. Such routine
Sandiganbayan for holding them liable therefor only through negligence measures were cavalierly disregarded. The whole process seemed no different from a
petty, personal transaction. As evidence later revealed, PNCC’s receivables from
ROMERO, J., Dissenting Opinion:chanrob1es virtual 1aw library MIAA amounted to P102,475,392.35, the bulk of which comprised escalation charges.
Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A LAWFUL to show where the amount of P55 million cropped up. The only remaining piece of
ORDER; REQUISITES. — For an act to be justified under Article 11(6) of the Revised evidence which would show that MIAA owed PNCC anything as of the date of the
Penal Code three requisites must concur: (a) an order must have been issued by a Marcos Memorandum is MIAA’s balance sheet, which indicates its liability to PNCC
superior; (b) the order must be for a lawful purpose; and (c) the means used by the as of December 31, 1985 to be P27,931,000.00. How can petitioners claim to have
subordinate in carrying out such order must itself be lawful. acted in good faith when they withdrew the P55 million from MIAA’s funds knowing
fully well that the amount due PNCC was only a little over half that amount, as shown
2. ID.; ID.; ID.; ID.; UNLAWFUL MEANS IN CARRYING OUT UNLAWFUL ORDER; by their own evidence?
CASE AT BAR. — In the case at bar, Tabuena was allegedly ordered by President
Marcos to pay the PNCC from MIAA’s fund, thus ostensibly meeting the first 4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; OBLIGATION NOT
requirement but not the others. For there is a qualification which significantly changes EXTINGUISHED WHERE PAYMENT WAS MADE TO A THIRD PERSON. — As
the picture. The payment was to be in cash and immediately made through the Office regards the payments to Roa-Gimenez, these were absolutely unwarranted because
of the President. It is to be pointed out that it is one thing to be ordered to pay a due whatever "authority" she claimed to have emanated, not from the creditor PNCC but
and demandable obligation; it is another to make such payment to someone other from the President Petitioners were required by law to settle their indebtedness with
than the lawful obligee and worse, when the subordinate is forced to breach official PNCC directly, the party in whose favor the Obligation was constituted. The only
channels to comply with the order. It must be stressed that Tabuena and his co- instance when such questionable payment could have been valid was if it had

78 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

redounded to PNCC’s benefit. which was not proved at all in this case. As creditor, proved by the prosecution is immaterial, as stated by the ponente. Petitioners were
the PNCC was not even bound to accept payment, if any, from the President’s private found guilty of malversation by negligence, which is possible even if the charge was
secretary, the latter being a third person who had no interest whatsoever in the for intentional malversation. This does not negate, however, their criminal liability; it
discharge of MIAA’s obligation. The ponencia states that the Marcos Memorandum merely declares that negligence takes the place of malice. Article 3 of the Code
was "patently lawful for no law makes the payment of an obligation illegal." This provides the rationale when it explicitly states that "felonies are committed not only by
statement is premised on the existence of an established creditor-debtor relationship means of deceit but also by means of fault."cralaw virtua1aw library
between the payor and the payee. In this case, however, the obligor was being made
to pay to a party other than the legal obligee when no novation of the obligation has 9. ID.; MALVERSATION; CONSPIRACY NOT NECESSARY WHERE ACCUSED
taken place. How can such an arrangement be possibly in accord with law? PERSONALLY AND KNOWINGLY PERMITTED OTHER PERSON TO TAKE
PUBLIC FUNDS. — The fact that no conspiracy was established between petitioners
5. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL and the true embezzlers of the P55 million is likewise of no moment. The crime of
COURT, GENERALLY UPHELD ON APPEAL. — Time and again, this Court has malversation, as defined under Article 217 of the Code, was consummated the
deferred to the findings of fact of the trial court, owing to its enviable position of moment petitioners deliberately turned over and allowed the President’s private
having seen the physical evidence and observed the witnesses as they testified. We secretary to take custody of public funds intended as payment of MIAA’s obligations
see no reason to depart now from this policy. The Sandiganbayan’s finding that to the PNCC, if obligation there was at all. That petitioner Tabuena who was then
petitioners converted and misappropriated the P55 million cannot simply be brushed General Manager of MIAA personally and knowingly participated in the misfeasance
aside upon petitioners’ claim that the money was delivered in good faith to the Office compounds the maleficence of it all. Rank may have its privileges but certainly a
of the President under the mistaken assumption that the President was entitled to blatant disregard of law and administrative rules is not one of them. It must be etched
receive the same. They rely on the case of People v. Fabian, which declared that" in the minds of public officials that the underside of privileges is responsibilities.
(g)ood faith in the payment of public funds relieves a public officer from the crime of
malversation." But the very same decision also cites Article 217 to the effect that 10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; QUESTIONS
malversation may be committed by an accountable public officer by negligence if he FROM JUSTICE ELICITING THE TRUTH, NOT A DENIAL THEREOF. — The
permits any other person to take the public funds or property in his custody. It is ponencia makes the final observation that the limitations on the right of judges to ask
immaterial if petitioners actually converted or misappropriated MIAA’s funds for their questions during the trial were not observed by respondent court; that the three
own benefit, for by their very negligence, they allowed another person to appropriate Justices who heard the testimonies asked 37 questions of witness Francis Monera,
the same. 67 of Tabuena, and 41 of Peralta — more than what the prosecutors and defense
counsels propounded. While such numbers unduly disturbed the ponente, it cannot
6. CRIMINAL LAW; CRIMINAL LIABILITY; CARRIES WITH IT CIVIL LIABILITY. — be gainsaid that such action by the members of the First Division of respondent
The ponente points out that our reference to the Manual supports the view that Sandiganbayan was, under the circumstances, not only necessary and called for, but
Tabuena was only civilly liable. This is a misappreciation of the entire sense of the likewise legally acceptable. Even the ponente makes the observation that petitioners
dissent. It must be borne in mind that said reference was made after the conclusion did not raise this matter as error. In other words, they did not feel prejudiced by the
was reached that Tabuena was indeed criminally liable for his acts. It is hornbook respondent court’s actuations; nor did they construe the series of questions asked of
knowledge that criminal liability carries with it the civil, specially when as in this case, them by the Justices as indicative of any unfairness or partiality violative of their right
the latter arose from the former. to due process. Thus, while a trial judge is expected to be circumspect in his choice of
words lest they be construed as signs of partiality, he "is not, however, required to
7. ID.; MALVERSATION; IMMUNITY FROM CIVIL LIABILITY FOR ACTS DONE IN remain silent and passive throughout a jury trial" ; he should, instead, "conduct a trial
OFFICIAL DUTIES; BAD FAITH, MALICE OR GROSS NEGLIGENCE MUST BE in an orderly way with a view to eliciting the truth and to attaining justice between the
WANTING. — Sections 29.2 and 29.5 of the Manual, which the ponente uses to parties." The numerous questions asked by the court a quo should have been
illustrate his point, actually includes exceptions to the grant of immunity from civil scrutinized for any possible influence it may have had in arriving at the assailed
liability of a public officer for acts done in the performance of his official duties: (a) The decision. The true test for the appropriateness or inappropriateness of court queries is
preceding statement itself says that the acts must be done "in the performance of his not their quantity but their quality, that is, whether the defendant was prejudiced by
official duties" ; (b) Sec. 29.2 exempts him from civil liability, "unless there is a clear such questioning. To repeat, petitioners did not feel prejudiced by the trial court’s
showing of bad faith, malice or gross negligence", and (c) Sec. 29.5 states that "he actions; otherwise, they would have raised this issue in the instant petition.
shall be liable for willful or negligent acts done by him which are contrary to law,
morals, public policy and good customs even if he acted under order or instructions of PUNO, J., Dissenting Opinion:chanrob1es virtual 1aw library
his superiors." The quoted provisions have been once more underscored herein.
1. CRIMINAL LAW; MALVERSATION BY NEGLIGENCE; GOOD FAITH, NOT A
8. ID.; CRIMINAL PROCEDURE; VARIANCE IN CRIME CHARGED AND THAT DEFENSE. — It should be immediately stressed that petitioners were convicted of the
PROVED, IMMATERIAL. — The variance between the crime charged and that crime of malversation by negligence. The felony was committed by petitioners not by

79 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

means of deceit (dolo) but by fault (culpa). According to Article 3 of the Revised Penal immediate. The facts show that former President Marcos first called petitioner
Code, there is fault when the wrongful act results from imprudence, negligence, lack Tabuena by telephone and asked him to make the payment. One week after or on
of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference between a January 8, 1986, the former President issued a written memorandum reiterating the
felony committed by deceit and that committed by fault in this wise: ". . . In intentional order to pay. Payments were made in three tranches — the first on January 10, 1986,
crimes, the act itself is punished; in negligence or imprudence, what is principally the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it
penalized is the mental attitude or condition behind the act, the dangerous took petitioner one month to comply with the Order. Given the personnel of petitioner
recklessness, lack of care or foresight, the imprudencia punible." In light of this well- Tabuena in his office, one month provides enough time to comply with the rules. In
carved distinction, the long discourse of the majority decision hailing petitioners’ good any event, petitioners did not request former President Marcos for additional time to
faith or lack of intent to commit malversation is off-line. To justify the acquittal of comply with the rules if they felt in good faith that they needed more time. Petitioners
petitioners, the majority should strive to show that petitioners did not commit any short-circuited the rules by themselves. Nothing in the Marcos Memorandum
imprudence, negligence, lack of foresight or lack of skill in obeying the order of former compelled them to disregard the rules. The Memorandum merely stated "Your
President Marcos. This is nothing less than a mission impossible for the totality of the immediate compliance is appreciated. The language of the Memorandum was as
evidence proves the utter carelessness of petitioners in the discharge of their duty as polite as it could be, I fail to discern any duress in the request as the majority did.
public officials.
PANGANIBAN, J., Dissenting Opinion:chanrob1es virtual 1aw library
2. ID.; CRIMINAL LIABILITY; DOCTRINE OF MISTAKE OF FACT; NEVER APPLIED
WHERE NEGLIGENCE CAN BE IMPUTED TO THE ACCUSED. — For the same CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A LAWFUL
reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit ORDER; DEFENSE UNTENABLE WHEN A MORAL CHOICE WAS IN FACT
petitioners. It found as a fact that." . . Tabuena acted under the honest belief that the POSSIBLE TO THE ACCUSED. — The defense of "obedience to a superior’s order"
P55 million was a due and demandable debt . . ." This Court has never applied the is already obsolete. In 1947 the United Nations General Assembly adopted a
doctrine of mistake of fact when negligence can be imputed to the accused. In the Resolution firmly entrenching the principle of moral choice, inter alia, as follows: "The
old, familiar case of People v. Ah Chong, Mr. Justice Carson explained that ignorance fact that a person acted pursuant to an order of his government or of a superior does
or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a not relieve him from responsibility under international law, provided a moral choice
particular intent which under the law is a necessary ingredient of the offense charge was in fact possible to him." In the present case, the accused are civilian officials
(e.g., in larceny animus furendi, in murder, malice, etc.), cancels the presumption of purportedly complying with a memorandum of the Chief Executive when martial law
intent and works an acquittal, except in those cases where the circumstances had already been lifted and the nation was in fact just about to vote in the "snap"
demand a conviction under the penal provisions touching criminal negligence. Hence, presidential election in 1986. The Sandiganbayan did not impose death but only
Ah Chong was acquitted when he mistook his houseboy as a robber and the imprisonment ranging from seventeen years and one day to twenty years. Certainly a
evidence showed that his mistake of fact was not due to negligence. In the case at moral choice was not only possible. It was in fact available to the accused. They could
bar, the negligence of the petitioners screams from page to page of the records of the have opted to defy the illegal order, with no risk of court martial or death. Or they
case. Petitioners themselves admitted that the payments they made were "out of the could have resigned. They knew or should have known that the P55 million was to be
ordinary" and "not based on normal procedure."cralaw virtua1aw library paid for a debt that was dubious and in a manner that was irregular. That the money
was to be remitted in cold cash and delivered to the private secretary of the President,
3. ID.; MALVERSATION; GOOD FAITH AS A DEFENSE; GOOD FAITH NEGATED and not by the normal crossed check to the alleged creditor, gave them a moral
WHERE ACCUSED VIOLATED AUDITING RULES. — As aforestated, the choice to refuse. That they opted to cooperate compounded their guilt to a blatant
cornerstone of the majority decision is its finding of good faith on the part of the conspiracy to defraud the public treasury.
petitioners. Viewed from a more critical lens, however, the evidence cannot justify a
finding of good faith. The violations of auditing rules are too many yet the majority
merely winks at them by ruling that petitioner Tabuena." . . did not have the luxury of
time to observe all auditing procedures of disbursement considering the fact that the DECISION
Marcos Memorandum enjoined ‘immediate compliance’ with the directive that he
forward to the President’s Office the P55 million in cash." With due respect, I am
disquieted by the mischiefs that will be mothered by this ruling. To begin with, the
FRANCISCO, J.:
country was no longer under martial rule in 1986 and petitioners were under no
compulsion to violate our laws. It also ought to be obvious that the order for
immediate compliance even if made by the former President cannot be interpreted as
a green signal by a subordinate official to disregard our laws. Indeed, no person, not Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta
even the President can order the violation of our laws under any excuse whatsoever. (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October
To be sure, the need for petitioners to make an immediate payment is really not that 12, 1990, 2 as well as the Resolution dated December 20, 1991 3 denying

80 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

reconsideration, convicting them of malversation under Article 217 of the Revised Court, Accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of then the General Manager and Assistant General Manager, respectively, of the
having malversed the total amount of P55 Million of the Manila International Airport Manila International Airport Authority (MIAA), and accountable for public funds
Authority (MIAA) funds during their incumbency as General Manager and Acting belonging to the MIAA, they being the only ones authorized to make withdrawals
Finance Services Manager, respectively, of MIAA, and were thus meted the following against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
sentence:jgc:chanrobles.com.ph confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
"(1) In Criminal Case No. 11758, Accused Luis A. Tabuena is sentenced to suffer the misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion from MIAA funds by applying for the issuance of a manager’s check for said amount
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to in the name of accused Luis A. Tabuena chargeable against MIAA’s Savings Account
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in
malversed. He shall also reimburse the Manila International Airport Authority the sum Pasay City, purportedly as partial payment to the Philippine National Construction
of TWENTY-FIVE MILLION PESOS (P 25,000,000.00). Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation
In addition, he shall suffer the penalty of perpetual special disqualification from public of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’s
office. check, Accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
"(2) In Criminal Case No. 11759, Accused Luis A. Tabuena is sentenced to suffer the benefit, to the damage and prejudice of the government in the aforesaid
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion amount.chanrobles
temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount CONTRARY TO LAW."cralaw virtua1aw library
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00). x           x          x

In addition, he shall suffer the penalty of perpetual special disqualification from public
office. "That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable
"(3) In Criminal Case No. 11760, Accused Luis A. Tabuena and Adolfo M. Peralta are Court, Accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and then the General Manager and Assistant General Manager, respectively, of the
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion Manila International Airport Authority (MIAA), and accountable for public funds
temporal as maximum and for each of them to pay separately a fine of FIVE MILLION belonging to the MIAA, they being the only ones authorized to make withdrawals
PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
severally the Manila International Airport Authority the sum of FIVE MILLION PESOS confederating and confabulating with each other, did then and there wilfully,
(P5,000,000.00). unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
In addition, they shall both suffer the penalty of perpetual special disqualification from from MIAA funds by applying for the issuance of a manager’s check for said amount
public office."cralaw virtua1aw library in the name of accused Luis A. Tabuena chargeable against MIAA’s Savings Account
No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Pasay City, purportedly as partial payment to the Philippine National Construction
Manager of MIAA, has remained at large. Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’ s
total amount of P55 Million was taken on three (3) separate dates of January, 1986. check, Accused Luis A. Tabuena encashed the same and thereafter both accused
Tabuena appears as the principal accused — he being charged in all three (3) cases. misappropriated and converted the proceeds thereof to their personal use and
The amended informations in criminal case nos. 11758, 11759 and 11760 benefit, to the damage and prejudice of the government in the aforesaid amount.
respectively read :jgc:chanrobles.com.ph
CONTRARY TO LAW."cralaw virtua1aw library
"That on or about the 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable x           x          x
81 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
 Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA’s account with said Company mentioned
"That on or about the 29th day of January, 1986, and for sometime subsequent in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable and duly approved by this Office on February 4, 1985.
Court, Accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department, Your immediate compliance is appreciated.
respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make (Sgd.) FERDINAND MARCOS." 4
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and Ongpin referred to in the MARCOS Memorandum, reads in full:jgc:chanrobles.com.ph
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a manager’s check for said amount in the name "MEMORANDUM
of accused Luis A. Tabuena chargeable against MIAA’s Savings Account No. 274-
500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay F o r : The President
City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally F r o m : Minister Roberto V. Ongpin
take care of, when both accused well knew that there was no outstanding obligation
of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’s D a t e : 7 January 1985
check, Accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and Subject : Approval of Supplemental Contracts and Request for Partial Deferment of
benefit, to the damage and prejudice of the government in the aforesaid amount. Repayment of PNCC’s Advances for MIA Development Project

CONTRARY TO LAW."cralaw virtua1aw library May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development
Gathered from the documentary and testimonial evidence are the following essential Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
antecedents:chanrob1es virtual 1aw library Construction Corporation (PNCC), formerly CDCP as follows:chanrob1es virtual 1aw
library
Then President Marcos instructed Tabuena over the phone to pay directly to the
president’s office and in cash what the MIAA owes the Philippine National 1. Supplemental Contract No. 12
Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it."
About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private Package Contract No. 2 P11,106,600.95
secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal 2. Supplemental Contract No. 13 5,758,961.52
instruction, to wit:jgc:chanrobles.com.ph
3. Supplemental Contract No. 14
"Office of the President
Package Contract No. 2 4,586,610.80
of the Philippines
4. Supplemental Contract No. 15 1,699,862.69
Malacañang
5. Supplemental Contract No. 16
January 8, 1986
Package Contract No. 2 233,561.22
MEMO TO: The General Manager
6. Supplemental Contract No. 17
Manila International Airport Authority
Package Contract No. 2 8,821,731.08
You are hereby directed to pay immediately the Philippine National Construction

82 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

7. Supplemental Contract No. 18 about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
Package Contract No . 2 6,110,115.75 funding.

8. Supplemental Contract No. 3 Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
Package Contract No. II 16,617,655.49 of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
(xerox copies only; original memo was submitted to the Office of the President on
May 28, 1984) (Sgd.) ROBERTO V. ONGPIN

In this connection, please be informed that Philippine National Construction Minister" 5

Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for the In obedience to President Marcos’ verbal instruction and memorandum, Tabuena,
aforecited contracts. In accordance with contract provisions, outstanding advances with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds
totalling P93.9 million are to be deducted from said billings which will leave a net by means of three (3) withdrawals.
amount due to PNCC of only P4.5 million.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter
At the same time, PNCC has potential escalation claims amounting to P99 million in of even date signed by Tabuena and Dabao requesting the PNB extension office at
the following stages of approval/evaluation:chanrob1es virtual 1aw library the MIAA — the depository branch of MIAA funds, to issue a manager’s check for
said amount payable to Tabuena. The check was encashed, however, at the PNB
—Approved by Price Escalation Committee Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the
money after which, Tabuena took delivery thereof. The P25 Million in cash were then
(PEC) but pended for lack of funds P1.9 million placed in peerless boxes and duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs. Gimenez located at Aguado Street
—Endorsed by project consultants and fronting Malacañang. Mrs. Gimenez did not issue any receipt for the money received.

currently being evaluated by PEC 30.7 million Similar circumstances surrounded the second withdrawal/encashment and delivery of
another P25 Million, made on January 16, 1986.
—Submitted by PNCC directly to PEC
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta
and currently under evaluation 66.5 million was Tabuena’s co-signatory to the letter- request for a manager’s check for this
amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena
————— requested him to do the counting of the P5 Million. After the counting, the money was
placed in two (2) peerless boxes which were loaded in the trunk of Tabuena’s car.
Total P99.1 million Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez’ office at
Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a
========= receipt for all the amounts she received from Tabuena. The receipt, dated January
30, 1986, reads:jgc:chanrobles.com.ph
There has been no funding allocation for any of the above escalation claims due to
budgetary constraints. "Malacañang Manila

The MIA Project has been completed and operational as far back as 1982 and yet January 30, 1986
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract. RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:chanrob1es virtual 1aw
To allow PNCC to collect partially its billings, and in consideration of its pending library
escalation billings, may we request for His Excellency’s approval for a deferment of
the repayment of PNCC’s advances to the extent of P30 million corresponding to Jan. 10 — P25,000,000.00

83 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 "x       x       x
Jan. 16 — 25,000,000.00
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Jan. 30 — 5,000,000.00 Million to people who were not entitled thereto, either as representatives of MIAA or of
the PNCC.
(Sgd.) Fe Roa-Gimenez"
It proves that Tabuena had deliberately consented or permitted through negligence or
The disbursement of the P55 Million was, as described by Tabuena and Peralta abandonment, some other person to take such public funds. Having done so,
themselves, "out of the ordinary" and "not based on the normal procedure." Not only Tabuena, by his own narration, has categorically demonstrated that he is guilty of the
were there no vouchers prepared to support the disbursement, the P55 Million was misappropriation or malversation of P55 Million of public funds." (Emphasis supplied.)
paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense
witness Francis Monera, then Senior Assistant Vice President and Corporate To support their theory that such variance is a reversible flaw, Tabuena and Peralta
Comptroller of PNCC, even affirmed in court that there were no payments made to argue that:chanrob1es virtual 1aw library
PNCC by MIAA for the months of January to June of 1986.
1) While malversation may be committed intentionally or by negligence, both modes
The position of the prosecution was that there were no outstanding obligations in cannot be committed at the same time.
favor of PNCC at the time of the disbursement of the P55 Million. On the other hand,
the defense of Tabuena and Peralta, in short, was that they acted in good faith. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of
Tabuena claimed that he was merely complying with the MARCOS Memorandum negligence where the amended informations charged them with intentional
which ordered him to forward immediately to the Office of the President P55 Million in malversation. 7
cash as partial payment of MIAA’s obligations to PNCC, and that he (Tabuena) was of
the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the 3) Their conviction of a crime different from that charged violated their constitutional
same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) right to be informed of the accusation. 8
to help in the release of P5 Million.
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling
With the rejection by the Sandiganbayan of their claim of good faith which ultimately is "Cabello v. Sandiganbayan" 9 where the Court passed upon similar protestations
led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 raised by therein accused-petitioner Cabello whose conviction for the same crime of
6a committed by the Sandiganbayan for this Court’s consideration. It appears, malversation was affirmed, in this wise:chanrob1es virtual 1aw library
however, that at the core of their plea that we acquit them are the
following:chanrob1es virtual 1aw library . . . even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
1) the Sandiganbayan convicted them of a crime not charged in the amended malversation, under the circumstances of this case his conviction under the first mode
informations, and of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
2) they acted in good faith. modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
Anent the first proposition, Tabuena and Peralta stress that they were being charged proper . . .
with intentional malversation, as the amended informations commonly allege
that:jgc:chanrobles.com.ph In Samson v. Court of Appeals, Et Al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence,
". . . accused . . . conspiring, confederating and confabulating with each other, did thus:chanrob1es virtual 1aw library
then and there willfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of . . . ."cralaw virtua1aw library ‘While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a
But it would appear that they were convicted of malversation by negligence. In this distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
connection, the Court’s attention is directed to p. 17 of the December 20, 1991 may however be said that a conviction for the former can be had under an information
Resolution (denying Tabuena’s and Peralta’s motion for reconsideration) wherein the exclusively charging the commission of a willful offense, upon the theory that the
Sandiganbayan said:jgc:chanrobles.com.ph greater includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence submitted

84 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

by the parties, the Court of Appeals found that in effecting the falsification which American jurisprudence echoes the same principle. It adheres to the view that
made possible the cashing of the checks in question, appellant did not act with criminal intent in embezzlement is not based on technical mistakes as to the legal
criminal intent but merely failed to take proper and adequate means to assure himself effect of a transaction honestly entered into, and there can be no embezzlement if the
of the identity of the real claimants as an ordinary prudent man would do. In other mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The
words, the information alleges acts which charge willful falsification but which turned accused may thus always introduce evidence to show he acted in good faith and that
out to be not willful but negligent. This is a case covered by the rule when there is a he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had
variance between the allegation and proof, and is similar to some of the cases meritoriously shown.
decided by this Tribunal.
In so far as Tabuena is concerned, with the due presentation in evidence of the
x           x          x MARCOS Memorandum, we are swayed to give credit to his claim of having caused
the disbursement of the P55 Million solely by reason of such memorandum. From this
premise flows the following reasons and/or considerations that would buttress his
‘Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the innocence of the crime of malversation.
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established to First. Tabuena had no other choice but to make the withdrawals, for that was what the
constitute the crime proved. . . . MARCOS Memorandum required him to do. He could not be faulted if he had to obey
and strictly comply with the presidential directive, and to argue otherwise is something
‘The fact that the information does not allege that the falsification was committed with easier said than done. Marcos was undeniably Tabuena’s superior — the former
imprudence is of no moment for here this deficiency appears supplied by the being then the President of the Republic who unquestionably exercised control over
evidence submitted by appellant himself and the result has proven beneficial to him. government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a
Certainly, having alleged that the falsification has been willful, it would be incongruous say in matters involving inter- government agency affairs and transactions, such as
to allege at the same time that it was committed with imprudence for a charge of for instance, directing payment of liability of one entity to another and the manner in
criminal intent is incompatible with the concept of negligence.’ which it should be carried out. And as a recipient of such kind of a directive coming
from the highest official of the land no less, good faith should be read on Tabuena’s
"Subsequently, we ruled in People v. Consigna, Et Al., that the aforestated rationale compliance, without hesitation nor any question, with the MARCOS Memorandum.
and arguments also apply to the felony of malversation, that is, that an accused Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in
charged with willful malversation, in an information containing allegations similar to obedience to an order issued by a superior for some lawful purpose." 16 The
those involved in the present case, can be validly convicted of the same offense of subordinate-superior relationship between Tabuena and Marcos is clear. And so too,
malversation through negligence where the evidence sustains the latter mode of is the lawfulness of the order contained in the MARCOS Memorandum, as it has for
perpetrating the offense."cralaw virtua1aw library its purpose partial payment of the liability of one government agency (MIAA) to
another (PNCC). However, the unlawfulness of the MARCOS Memorandum was
Going now to the defense of good faith, it is settled that this is a valid defense in a being argued, on the observation, for instance, that the Ongpin Memo referred to in
prosecution for malversation for it would negate criminal intent on the part of the the presidential directive reveals a liability of only about P34.5 Million. The
accused. Thus, in the two (2) vintage, but significant malversation cases of "US v. Sandiganbayan in this connection said:jgc:chanrobles.com.ph
Catolico" 10 and "US v. Elviña," 11 the Court stressed that:jgc:chanrobles.com.ph
"Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
"To constitute a crime, the act must, except in certain crimes made such by statute, President dated January 7, 1985) were mainly:chanrob1es virtual 1aw library
be accompanied by a criminal intent, or by such negligence or indifference to duty or
to consequences as, in law, is equivalent to criminal intent. The maxim is actus non a.) for the approval of eight Supplemental Contracts; and
facit reum, nisi mens sit rea — a crime is not committed if the mind of the person
performing the act complained of is innocent."cralaw virtua1aw library b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCC’s
The rule was reiterated in "People v. Pacana," 12 although this case involved escalation billings which would result in making payable to PNCC the amount of
falsification of public documents and estafa:jgc:chanrobles.com.ph P34.5 million out of existing MIAA Project funds.

"Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus Thus:chanrob1es virtual 1aw library
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting."cralaw virtua1aw library x           x          x

85 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 Q. Can you please show us in this Exhibit "7" and "7-a" where it is indicated the
To allow PNCC to collect partially its billings, and in consideration of its pending receivables from MIA as of December 31, 1985?
escalation billings, may we request for His Excellency’s approval for a deferment of
repayment of PNCC’s advances to the extent of P30 million corresponding to about A. As of December 31, 1985, the receivables from MIA is shown on page 2, marked
30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been as Exhibit "7-a", sir, P102,475,392.35.
officially recognized by MIADP consultants but could not be paid due to lack of
funding. x       x       x 19

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing ATTY. ANDRES
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9 Q. Can you tell us, Mr. Witness, what these obligations represent?
million.’
WITNESS
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC
to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was A. These obligations represent receivables on the basis of our billings to MIA as
still in the stages of evaluation and approval, with only P32.6 million having been contract-owner of the project that the Philippine National Construction Corporation
officially recognized by the MIADP consultants. constructed. These are billings for escalation mostly, sir.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which Q. What do you mean by escalation?
President Marcos’ Memo was based) they would only be for a sum of up to P34.5
million." 17 A. Escalation is the component of our revenue billings to the contract-owner that are
supposed to take care of price increases, sir.
x           x          x
x       x       x 20

"V. Pres. Marcos’ order to Tabuena dated January 8, 1986 baseless. ATTY. ANDRES

Not only was Pres. Marcos’ Memo (Exhibit "1") for Tabuena to pay P55 million Q. When you said these are accounts receivable, do I understand from you that these
irrelevant, but it was actually baseless. are due and demandable?

This is easy to see. A. Yes, sir." 21

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Thus, even if the order is illegal if it is patently legal and the subordinate is not aware
Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" of its illegality, the subordinate is not liable, for then there would only be a mistake of
authorized only P34.5 million. The order to withdraw the amount of P55 million fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of
exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin’s which, in brief, are as follows:jgc:chanrobles.com.ph
Memo of January 7, 1985 could not therefore serve as a basis for the President’s
order to withdraw P55 million." 18 "Accused was charged with falsification of commercial document. A mere employee
of R.J. Campos, he inserted in the commercial document alleged to have been
Granting this to be true, it will not nevertheless affect Tabuena’s good faith so as to falsified the word "sold" by order of his principal. Had he known or suspected that his
make him criminally liable. What is more significant to consider is that the MARCOS principal was committing an improper act of falsification, he would be liable either as a
Memorandum is patently legal (for on its face it directs payment of an outstanding co-principal or as an accomplice. However, there being no malice on his part, he was
liability) and that Tabuena acted under the honest belief that the P55 million was a exempted from criminal liability as he was a mere employee following the orders of
due and demandable debt and that it was just a portion of a bigger liability to PNCC. his principal." 24
This belief is supported by defense witness Francis Monera who, on direct
examination, testified that:jgc:chanrobles.com.ph Second. There is no denying that the disbursement, which Tabuena admitted as "out
of the ordinary", did not comply with certain auditing rules and regulations such as
"ATTY. ANDRES those pointed out by the Sandiganbayan, to wit:chanrob1es virtual 1aw library

86 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and
a) [except for salaries and wages and for commutation of leaves] all disbursements not to the PNCC, proceeding from the following definitions/concepts of "conversion"
above P1,000.00 should be made by check (Basic Guidelines for Internal Control :jgc:chanrobles.com.ph
dated January 31, 1977 issued by COA)
"‘Conversion’, as necessary element of offense of embezzlement, being the
b) payment of all claims against the government had to be supported with complete fraudulent ‘appropriation to one’s own use’ of another’s property which does not
documentation (Sec. 4, P. D. 1445, "State Auditing Code of the Philippines). In this necessarily mean to one’s personal advantage but every attempt by one person to
connection, the Sandiganbayan observed that:jgc:chanrobles.com.ph dispose of the goods of another without right as if they were his own is ‘conversion to
his own use.’ (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904,
"There were no vouchers to authorize the disbursements in question. There were no 906, 179 Okl. 106)
bills to support the disbursement. There were no certifications as to the availability of
funds for an unquestionably staggering sum of P55 Million."25cralaw:red —At p. 207, Words and Phrases,

c) failure to protest (Sec. 106, P. D. 1445) Permanent Edition 9A.

But this deviation was inevitable under the circumstances Tabuena was in. He did not Conversion is any interference subversive of the right of the owner of personal
have the luxury of time to observe all auditing procedures of disbursement property to enjoy and control it. The gist of conversion is the usurpation of the owner’s
considering the fact that the MARCOS Memorandum enjoined his "immediate right of property, and not the actual damages inflicted. Honesty of purpose is not a
compliance" with the directive that he forward to the President’s Office the P55 Million defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 106)
in cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omission. But since he was acting in good faith, his liability should only be —At page 168, id.
administrative or civil in nature, and not criminal. This follows the decision in
"Villacorta v. People" 26 where the Court, in acquitting therein accused municipal x           x          x
treasurer of Pandan, Catanduanes of malversation after finding that he incurred a
shortage in his cash accountability by reason of his payment in good faith to certain
government personnel of their legitimate wages, leave allowances, etc., held The words ‘convert’ and ‘misappropriate’ connote an act of using or disposing of
that:jgc:chanrobles.com.ph another’s property as if it were one’s own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to one’s
"Nor can negligence approximating malice or fraud be attributed to petitioner. If he own use includes not only conversion to one’s personal advantage but every attempt
made wrong payments, they were in good faith mainly to government personnel, to dispose of the property of another without right.
some of them working at the provincial auditor’s and the provincial treasurer’s offices.
And if those payments ran counter to auditing rules and regulations, they did not —People v. Webber, 57 O.G.
amount to a criminal offense and he should only be held administratively or civilly
liable."cralaw virtua1aw library p. 2933, 2937

Likewise controlling is "US v. Elviña" 27 where it was held that payments in good faith By placing them at the disposal of private persons without due authorization or legal
do not amount to criminal appropriation, although they were made with insufficient justification, he became as guilty of malversation as if he had personally taken them
vouchers or improper evidence. In fact, the Dissenting Opinion’s reference to certain and converted them to his own use.
provisions in the revised Manual on Certificate of Settlement and Balances —
apparently made to underscore Tabuena’s personal accountability, as agency head, —People v. Luntao, 50 O.G.
for MIAA funds — would all the more support the view that Tabuena is vulnerable to
civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of "civilly p. 1182, 1183" 28
liable" to describe the kind of sanction imposable on a superior officer who performs
his duties with "bad faith, malice or gross negligence" ‘ and on a subordinate officer or We do not agree. It must be stressed that the MARCOS Memorandum directed
employee who commits "willful or negligent acts . . . which are contrary to law, morals, Tabuena "to pay immediately the Philippine National Construction Corporation, thru
public policy and good customs even if he acted under order or instructions of his this office, the sum of FIFTY FIVE MILLION . . .", and that was what Tabuena
superiors."cralaw virtua1aw library precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt,
is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was
Third. The Sandiganbayan made the finding that Tabuena had already converted and Marcos’ secretary then. Furthermore, Tabuena had reasonable ground to believe that
87 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
the President was entitled to receive the P55 Million since he was certainly aware that be converted into checks drawn in the name of one Marshall Lu, a non-customer of
Marcos, as Chief Executive, exercised supervision and control over government MWSS, but the checks were subsequently dishonored. Ang was acquitted by this
agencies. And the good faith of Tabuena in having delivered the money to the Court after giving credence to his assertion that the conversion of his collections into
President’s office (thru Mrs. Gimenez), in strict compliance with the MARCOS checks were thru the machinations of one Lazaro Guinto, another MWSS collector
Memorandum, was not at all affected even if it later turned out that PNCC never more senior to him. And we also adopt the Court’s observation therein,
received the money. Thus, it has been said that:jgc:chanrobles.com.ph that:jgc:chanrobles.com.ph

"Good faith in the payment of public funds relieves a public officer from the crime of "The petitioner’s alleged negligence in allowing the senior collector to convert cash
malversation. collections into checks may be proof of poor judgment or too trusting a nature insofar
as a superior officer is concerned but there must be stronger evidence to show fraud,
x           x          x malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall
Lu. The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
Not every unauthorized payment of public funds is malversation. There is suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS,
malversation only if the public officer who has custody of public funds should must be converted into evidence before conviction beyond reasonable doubt may be
appropriate the same, or shall take or misappropriate or shall consent, or through imposed." 33
abandonment or negligence shall permit any other person to take such public funds.
Where the payment of public funds has been made in good faith, and there is The principles underlying all that has been said above in exculpation of Tabuena
reasonable ground to believe that the public officer to whom the fund had been paid equally apply to Peralta in relation to the P5 Million for which he is being held
was entitled thereto, he is deemed to have acted in good faith, there is no criminal accountable, i.e., he acted in good faith when he, upon the directive of Tabuena,
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.
but not criminally liable." 29
This is not a sheer case of blind and misguided obedience, but obedience in good
Fourth. Even assuming that the real and sole purpose behind the MARCOS faith of a duly executed order. Indeed, compliance to a patently lawful order is
Memorandum was to siphon-out public money for the personal benefit of those then rectitude far better than contumacious disobedience. In the case at bench, the order
in power, still, no criminal liability can be imputed to Tabuena. There is no showing emanated from the Office of the President and bears the signature of the President
that Tabuena had anything to do whatsoever with the execution of the MARCOS himself, the highest official of the land. It carries with it the presumption that it was
Memorandum. Nor is there proof that he profited from the felonious scheme. In short, regularly issued. And on its face, the memorandum is patently lawful for no law makes
no conspiracy was established between Tabuena and the real embezzler/s of the P55 the payment of an obligation illegal. This fact, coupled with the urgent tenor for its
Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also execution constrains one to act swiftly without question. Obedientia est legis essentia.
involving the crime of malversation, the accused therein were acquitted after the Besides, the case could not be detached from the realities then prevailing. As aptly
Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein observed by Mr. .Justice Cruz in his dissenting opinion:jgc:chanrobles.com.ph
accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty
by the lower court of malversation after being unable to turn over certain amounts to "We reject history in arbitrarily assuming that the people were free during the era and
the then justice of the peace. It appeared, however, that said amounts were actually that the judiciary was independent and fearless. We know it was not; even the
collected by his secretary Crisanto Urbina. The Court reversed Acebedo’s conviction Supreme Court at that time was not free. This is an undeniable fact that we can not
after finding that the sums were converted by his secretary Urbina without the just blink away. Insisting on the contrary would only make our sincerity suspect and
knowledge and participation of Acebedo. The Court said, which we herein even provoke scorn for what can only be described as our incredible credulity." 34
adopt:jgc:chanrobles.com.ph
But what appears to be a more compelling reason for their acquittal is the violation of
"No conspiracy between the appellant and his secretary has been shown in this case, the accused’s basic constitutional right to due process. "Respect for the Constitution",
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of to borrow once again Mr. Justice Cruz’s words, is more important than securing a
the theft committed by the secretary was shown on the part of the appellant in this conviction based on a violation of the rights of the accused." 35 While going over the
case, nor does it appear that he in any way participated in the fruits of the crime. If the records, we were struck by the way the Sandiganbayan actively took part in the
secretary stole the money in question without the knowledge or consent of the questioning of a defense witness and of the accused themselves. Tabuena and
appellant and without negligence on his part, then certainly the latter can not be Peralta may not have raised this as an error, there is nevertheless no impediment for
convicted of embezzling the same money or any part thereof." 32 us to consider such matter as additional basis for a reversal since the settled doctrine
is that an appeal throws the whole case open to review, and it becomes the duty of
In "Ang", Accused-petitioner, as MWSS bill collector, allowed part of his collection to the appellate court to correct such errors as may be found in the judgment appealed

88 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

from whether they are made the subject of assignments of error or not. 36 A. I agree, your Honor. As far as we are concerned, our billings are what we deemed
are valid receivables. And, in fact, we have been following up for payment.
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking
of the testimony of Francis Monera, then Senior Assistant Vice President and *Q. This determination of the escalation costs was it accepted as the correct figure by
Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct MIA?
examination. Prosecutor Viernes only asked six (6) questions on cross-examination in
the course of which the court interjected a total of twenty-seven (27) questions (more A. I don’t have any document as to the acceptance by MIA, your Honor, but our
than four times Prosecutor Viernes’ questions and even more than the combined total company was able to get a document or a letter by Minister Ongpin to President
of direct and cross-examination questions asked by the counsels). After the defense Marcos, dated January 7, 1985, with a marginal note or approval by former President
opted not to conduct any re-direct examination, the court further asked a total of ten Marcos.
(10) questions. 37 The trend intensified during Tabuena’s turn on the witness stand.
Questions from the court after Tabuena’s cross-examination totalled sixty-seven (67). *PJ GARCHITORENA
38 This is more than five times Prosecutor Viernes’ questions on cross-examination
(14), and more than double the total of direct examination and cross-examination *Q. Basically, the letter of Mr. Ongpin is to what effect?
questions which is thirty-one (31) [17 direct examination questions by Atty. Andres
plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta’s case, the A. The subject matter is approval of the supplementary contract and request for
Justices, after his cross-examination, propounded a total of forty-one (41) questions. partial deferment of payment for MIA Development Project, your Honor.
39
*Q. It has nothing to do with the implementation of the escalation costs?
But more importantly, we note that the questions of the court were in the nature of
cross examinations characteristic of confrontation, probing and insinuation. 40 (The A. The details show that most of the accounts refer to our escalations, your Honor.
insinuating type was best exemplified in one question addressed to Peralta, which will
be underscored.) Thus we beg to quote in length from the transcripts pertaining to *Q. Does that indicate the computation for escalations were already billed or you do
witness Monera, Tabuena and Peralta. (Questions from the Court are marked with not have any proof of that?
asterisks and italicized for emphasis.)
A. Our subsidiary ledger was based on billings to MIA and this letter of Minister
(MONERA) Ongpin appears to have confirmed our billings to MIA, your Honor.

(As a background, what was elicited from his direct examination is that the PNCC had *AJ AMORES
receivables from MIAA totalling P102,475,392.35, and although such receivables
were largely billings for escalation, they were nonetheless all due and demandable. *Q. Were there partial payments made by MIA on these escalation billings?
What follows are the cross-examination of Prosecutor Viernes and the court
questions). A. Based on records available as of today, the P102 million was reduced to about
P56.7 million, if my recollection is correct, your Honor.
"CROSS-EXAMINATION BY PROS. VIERNES
*PJ GARCHITORENA
Q. You admit that as shown by these Exhibits "7" and "7-a", the items here represent
mostly escalation billings. Were those escalation billings properly transmitted to MIA *Q. Were the payments made before or after February 1986, since Mr. Olaguer is a
authorities? new entrant to your company?

A. I don’t have the documents right now to show that they were transmitted, but I have WITNESS
a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of
the balance of our receivables from MIA, sir. A. The payments were made after December 31, 1985 but I think the payments were
made before the entry of our President, your Honor. Actually, the payment was in the
*AJ AMORES form of assignments to State Investment of about P23 million; and then there was
P17.8 million application against advances made or formerly given; and there were
*Q. This matter of escalation costs, is it not a matter for a conference between the payments to PNCC of about P2.6 million and there was a payment for application on
MIA and the PNCC for the determination as to the correct amount? withholding and contractual stock of about P1 million; that summed up to P44.4
million all in all. And you deduct that from the P102 million, the remaining balance

89 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

would be about P57 million. A. I have not reviewed the details of the record, your Honor. But the ledger card
indicates that there were collections on page 2 of the Exhibit earlier presented. It will
*PJ GARCHITORENA indicate that there were collections shown by credits indicated on the credit side of
the ledger.
*Q. What you are saying is that, for all the payments made on this P102 million, only
P2 million had been payments in cash? *AJ AMORES

A. Yes, your Honor. *Q. Your ledger does not indicate the manner of giving credit to the MIA with respect
to the escalation billings. Was the payment in cash or just credit of some sort before
*Q. The rest had been adjustments of accounts, assignments of accounts, or December 31, 1985?
offsetting of accounts?
A. Before December 31, 1985, the reference of the ledger are official receipts and I
A. Yes, your Honor. suppose these were payments in cash, your Honor.

*Q. This is as of December 31, 1985? *Q. Do you know how the manner of this payment in cash was made by MIA?

A. The P102 million was as of December 31, 1985, your Honor, but the balances is as A. I do not know, your Honor.
of August 1987.
*PJ GARCHITORENA
*Q. We are talking now about the P44 million, more or less, by which the basic
account has been reduced. These reductions, whether by adjustment or assignment *Q But your records will indicate that?
or actual delivery of cash, were made after December 31, 1985?
A. The records will indicate that, your Honor.
WITNESS
*Q. Except that you were not asked to bring them?
A. Yes, your Honor.
A. Yes, your Honor.
*Q. And your records indicate when these adjustments and payments were made?
*Q. At all events, we are talking of settlement or partial liquidation prior to December
A. Yes, your Honor. 31, 1985?

*AJ AMORES A. Yes, your Honor.

*Q. You said there were partial payments before of these escalation billings. Do we *PJ GARCHITORENA
get it from you that there was an admission of these escalation costs as computed by
you by MIA, since there was already partial payments? *Q. Subsequent thereto, we are talking merely of about P44 million?

A. Yes, your Honor. A. Yes, your Honor, as subsequent settlements.

*Q. How were these payments made before February 1986, in cash or check, if there *Q. After December 31, 1985?
were payments made?
A. Yes, your Honor.
A. The P44 million payments was in the form of assignments, your Honor.
*Q. And they have liquidated that, as you described it, by way of assignments,
*PJ GARCHITORENA adjustments, by offsets and by P2 million of cash payment?

*Q. The question of the Court is, before December 31, 1985, were there any A. Yes, your Honor.
liquidations made by MIA against these escalation billings?
*AJ AMORES

90 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*Q. Your standard operating procedure before December 31, 1985 in connection with A. The letter is dated January 7, 1985, your Honor.
or in case of cash payment, was the payment in cash or check?
PJ GARCHITORENA
A. I would venture to say it was by check, your Honor
Continue.
*Q. Which is the safest way to do it?
PROS. VIERNES
A. Yes, your Honor
Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made
*PJ GARCHITORENA in favor of MIA in July and November until December 1985. These were properly
credited to the account of MIA?
*Q. And the business way?
WITNESS
A. Yes, your Honor.
A. Yes, sir.
PJ GARCHITORENA
Q. In 1986, from your records as appearing in Exhibit "7-a", there were no payments
Continue. made to PNCC by MIA for the months of January to June 1986?

PROS VIERNES A. Yes, sir.

Q. You mentioned earlier about the letter of former Minister Ongpin to the former Q. And neither was the amount of P22 million remitted to PNCC by MIA?
President Marcos, did you say that that letter concurs with the escalation billings
reflected in Exhibits "7" and "7-a" ? A. Yes, sir.

WITNESS PROS. VIERNES

A. The Company or the management is of the opinion that this letter, a copy of which That will be all, your Honor.
we were able to get, is a confirmation of the acceptance of our billings, sir.
PJ GARCHITORENA
Q. This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of
escalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still Redirect?
insist that the letter of January 1985 confirms the escalation billings as of June 1985?
ATTY. ANDRES
A. The entries started June 30 in the ledger card. And as of December 31, 1985, it
stood at P102 million after payments were made as shown on the credit side of the No redirect, your Honor.
ledger. I suppose that the earlier amount, before the payment was made, was bigger
and therefore I would venture to say that the letter of January 7, 1985 contains an *PJ GARCHITORENA
amount that is part of the original contract account. What are indicated in the ledger
are escalation billings. Questions from the Court.

*PJ GARCHITORENA *AJ AMORES

*Q We are talking about the letter of Minister Ongpin? *Q. From your records, for the month of January 1986, there was no payment of this
escalation account by MIA?
A. The letter of Minister Ongpin refers to escalation billings, sir.
WITNESS
*Q. As of what date?

91 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

A. Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 by our President dated July 6, 1988, your Honor. The amount indicated in the letter is
million, that was on September 25, 1986. P55 million.

*Q. But that is already under the present administration? PJ GARCHITORENA

A. After February 1986, your Honor. Any clarifications you would like to make Mr. Estebal?

*Q. But before February, in January 1986, there was no payment whatsoever by MIA ATTY ESTEBAL
to PNCC?
None, your Honor.
A. Per record there is none appearing, your Honor.
PJ GARCHITORENA
*PJ GARCHITORENA
Mr. Viernes?
*Q. The earliest payment, whether by delivery of cash equivalent or of adjustment of
account, or by assignment, or by offsets, when did these payments begin? PROS. VIERNES

A. Per ledger card, there were payments in 1985, prior to December 31, 1985, your No more, your Honor.
Honor.
PJ GARCHITORENA
*Q. After December 31, 1985?
The witness is excused. Thank you very much Mr. Monera. . . ." 41
A. There appears also P23 million as credit, that is a form of settlement, your Honor.
(TABUENA)
*Q. This is as of September 25?
(In his direct examination, he testified that he caused the preparation of the checks
A. Yes, your Honor. There were subsequent settlements. P23 million is just part of the totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter
P44 million. delivered said amount in cash on the three (3) dates as alleged in the information to
Marcos’ private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter
*Q. And what you are saying is that, PNCC passed the account to State Investment. issued a receipt. Tabuena also denied having used the money for his own personal
In other words, State Investment bought the credit of MIA? use.)chanroblesvirtuallawlibrary

A. Yes, your Honor. "CROSS-EXAMINATION BY PROS. VIERNES

*Q. And the amount of credit or receivables sold by PNCC to State Investment is P23 Q. The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were
million? delivered on how many occasions?

A. Yes, your Honor. A. Three times, sir.

*Q. Is there a payback agreement? Q. And so, on the first two deliveries, you did not ask for a receipt from Mrs.
Gimenez?
A. I have a copy of the assignment to State Investment but I have not yet reviewed
the same, your Honor. A. Yes, sir.

*AJ AMORES Q. It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs.
Gimenez?
*Q. As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A. Yes, sir.
A. There is still a balance of receivables from MIA as evidenced by a collection letter

92 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*PJ GARCHITORENA
*Q. What you are saying is, you do not know who typed that receipt?
*Q. So January 30 is the date of the last delivery?
WITNESS
A. I remember it was on the 31st of January, your Honor. What happened is that, I did
not notice the date placed by Mrs. Gimenez. A. Yes, your Honor.

*Q. Are you telling us that this Exhibit "3" was incorrectly dated? *Q. Are you making an assumption that she typed that receipt?

A. Yes, your Honor. A. Yes, your Honor, because she knows how to type.

*Q. Because the third delivery was on January 31st and yet the receipt was dated *Q. Your assumption is that she typed it herself?
January 30?
A. Yes, your Honor.
A. Yes, your Honor.
PJ GARCHITORENA
*Q. When was Exhibit "3" delivered actually by Mrs. Gimenez?
Proceed.
A. January 31st, your Honor.
PROS. VIERNES
PJ GARCHITORENA
Q. This receipt was prepared on January 31, although it is dated January 30?
Continue.
A. Yes, sir, because I was there on January 31st.
PROS. VIERNES
Q. In what particular place did Mrs. Gimenez sign this Exhibit "3" ?
Q. You did not go to Malacañang on January 30, 1986?
A. In her office at Aguado, sir.
A. Yes. sir. I did not.
Q. Did you actually see Mrs. Gimenez signing this receipt Exhibit "3" ?
Q. Do you know at whose instance this Exhibit "3" was prepared?
A. No, sir, I did not. She was inside her room.
A. I asked for it, sir.
Q. So, she was in her room and when she came out of the room, she handed this
Q. You asked for it on January 31, 1986 when you made the last delivery? receipt to you already typed and signed?

A. Yes, sir. A. Yes, sir.

Q. Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez? *AJ HERMOSISIMA

A. Yes, sir. *Q. So, how did you know this was the signature of Mrs. Gimenez?

Q. This receipt was typewritten in Malacañang stationery. Did you see who typed this WITNESS
receipt?
A. Because I know her signature, your Honor. I have been receiving letters from her
A. No, sir. What happened is that, she went to her room and when she came out she also and when she requests for something from me. Her writing is familiar to me
gave me that receipt.
*Q. So, when the Presiding Justice asked you as to how you knew that this was the
*PJ GARCHITORENA signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it,

93 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

you were not exactly truthful? *Q. Why did you not ask for receipt on the first and second deliveries?

A. What I mean is, I did not see her sign because she went to her room and when she A. Because I know that the delivery was not complete yet, your Honor.
came out, she gave me that receipt, your Honor.
*PJ GARCHITORENA
PJ GARCHITORENA
*Q. So you know that the total amount to be delivered was P55 million?
That is why you have to wait for the question to be finished and listen to it carefully.
Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. A. Yes, your Honor.

WITNESS *PJ GARCHITORENA

Yes, your Honor. Response by Mr. Peralta to the testimony of Mr. Tabuena

PJ GARCHITORENA ATTY. ESTEBAL

Continue. We are adopting the testimony of Mr. Tabuena and we will also present the accused,
your Honor.
PROS. VIERNES
*AJ DEL ROSARIO
Q. Was there another person inside the office of Mrs. Gimenez when she gave you
this receipt Exhibit "3" ? *Q. From whom did you receive the President’s memorandum marked Exhibit "1" ? Or
more precisely, who handed you this memorandum?
A. Nobody, sir.
A. Mrs. Fe Roa Gimenez, your Honor.
Q. I noticed in this receipt that the last delivery of the sum of P55 million was made on
January 30. Do we understand from you that this date January 30 is erroneous? *Q. Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?

A. Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be A. The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
January 31st, sir.
*Q. If it was for the payment of such obligation why was there no voucher prepared to
PROS. VIERNES cover such payment? In other words, why was the delivery of the money not covered
by any voucher?
That will be all, your Honor.
A. The instruction to me was to give it to the Office of the President, your Honor.
PJ GARCHITORENA
*PJ GARCHITORENA
Redirect?
*Q. Be that as it may, why was there no voucher to cover this particular
ATTY. ANDRES disbursement?

No redirect, your Honor. A. I was just told to bring it to the Office of the President, your Honor.

*PJ GARCHITORENA *A J DEL ROSARIO

Questions from the Court. *Q. Was that normal procedure for you to pay in cash to the Office of the President for
obligations of the MIAA in payment of its obligation to another entity?
AJ HERMOSISIMA
WITNESS

94 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 did you not on your own accord already prepare the necessary papers and
A. No, your Honor, I was just following the Order to me of the President. documents for the payment of that obligation?

*PJ GARCHITORENA A. He told me verbally in the telephone that the Order for the payment of that
obligation is forthcoming, your Honor. I will receive it.
*Q. So the Order was out of the ordinary?
*Q. Is this the first time you received such a memorandum from the President?
A. Yes, your Honor.
A. Yes, your Honor.
*AJ DEL ROSARIO
*Q. And was that the last time also that you received such a memorandum?
*Q. Did you file any written protest with the manner with which such payment was
being ordered? A. Yes, your Honor.

A. No, your Honor. *Q. Did you not inquire, if not from the President, at least from Mrs. Gimenez why this
procedure has to be followed instead of the regular procedure?
*Q. Why not?
A. No, sir.
A. Because with that instruction of the President to me, I followed, your Honor.
*A J DEL ROSARIO
*Q. Before receiving this memorandum Exhibit "I", did the former President Marcos
discuss this matter with you? *Q. Why did you not ask?

A. Yes, your Honor. A. I was just ordered to do this thing, your Honor.

*Q. When was that? AJ HERMOSISIMA

A. He called me up earlier, a week before that, that he wants to me pay what I owe *Q. You said there was an "I OWE YOU" ?
the PNCC directly to his office in cash, your Honor.
A. Yes, your Honor.
*PJ GARCHITORENA
*Q. Where is that "I OWE YOU" now?
*Q. By "I OWE", you mean the MIAA?
A. All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA
WITNESS owes PNCC that amount.

A. Yes, your Honor. *Q. Was this payment covered by receipt from the PNCC?

*A J DEL ROSARIO A. It was not covered, your Honor.

*Q. And what did you say in this discussion you had with him? *Q. So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of
that payment?
A. I just said, "Yes, sir, I will do it."cralaw virtua1aw library
A. Based on the order to me by the former President Marcos ordering me to pay that
*Q. Were you the one who asked for a memorandum to be signed by him? amount to his office and then the mechanics will come after, your Honor.

A. No, your Honor. *Q. Is the PNCC a private corporation or government entity?

*Q. After receiving that verbal instruction for you to pay MIAA’s obligation with PNCC, A. I think it is partly government, your Honor.

95 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 money in this amount through a mere receipt from the private secretary?
*PJ GARCHITORENA
A. I was ordered by the President, your Honor.
*Q. That is the former CDCP?
*PJ GARCHITORENA
A. Yes, your Honor.
*Q. There is no question and it can be a matter of judicial knowledge that you have
*A J HERMOSISIMA been with the MIA for sometime?

*Q. Why were you not made to pay directly to the PNCC considering that you are the A. Yes, your Honor.
Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct
of Malacañang? *Q. Prior to 1986?

WITNESS A. Yes, your Honor.

A. I was just basing it from the Order of Malacañang to pay PNCC through the Office *Q. Can you tell us when you became the Manager of MIA?
of the President, your Honor.
A. I became Manager of MIA way back, late 1968, your Honor.
*Q. Do you know the President or Chairman of the Board of PNCC?
*Q. Long before the MIA was constituted as an independent authority?
A. Yes, your Honor.
A. Yes, your Honor.
*Q. How was the obligation of MIAA to PNCC incurred. Was it through the President
or Chairman of the Board? *PJ GARCHITORENA

A. PNCC was the one that constructed the MIA, your Honor. *Q. And by 1986, you have been running the MIA for 18 years?

*Q. Was the obligation incurred through the President or Chairman of the Board or WITNESS
President of the PNCC? In other words, who signed the contract between PNCC and
MIAA? A. Yes, your Honor.

A. Actually, we inherited this obligation, your Honor. The one who signed for this was *Q. And prior to your joining the MIA, did you ever work for the government?
the former Director of BAT which is General Singzon. Then when the MIA Authority
was formed, all the obligations of BAT were transferred to MIAA. So the A. No, your Honor.
accountabilities of BAT were transferred to MIAA and we are the ones that are going
to pay, your Honor. *Q. So, is it correct for us to say that your joining the MIA in 1968 as its Manager was
your first employment with the government?
*Q. Why did you agree to pay to Malacañang when your obligation was with the
PNCC? A. Yes, your Honor.

A. I was ordered by the President to do that, your Honor. *Q. While you were Manager of MIA, did you have other subsequent concurrent
positions in the government also?
*Q. You agreed to the order of the President notwithstanding the fact that this was not
the regular course or Malacañang was not the creditor? A. I was also the Chairman of the Games and Amusement Board, your Honor.

A. I saw nothing wrong with that because that is coming from the President, your *Q. But you were not the executive or operating officer of the Games and Amusement
Honor. Board?

*Q. The amount was not a joke, amounting to P55 million, and you agreed to deliver A. I was, your Honor.

96 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*Q. As Chairman you were running the Games and Amusement Board? *Q. And one of our unfortunate experience (sic) is when the COA Representative
comes to us and says: "Chairman or Manager, this cannot be." And we learn later on
A. Yes, your Honor. that COA has reasons for its procedure and we learn to adopt to them?

*Q. What else, what other government positions did you occupy that time? WITNESS

A. I was also Commissioner of the Game Fowl Commission, your Honor. A. Yes, your Honor.

*PJ GARCHITORENA *Q. As a matter of fact, sometimes we consider it inefficient, sometimes we consider it
foolish, but we know there is reason in this apparent madness of the COA and so we
*Q That is the cockfighting? comply?

WITNESS A. Yes, your Honor.

A. Yes, your Honor. *Q. And more than anything else the COA is ever anxious for proper documentation
and proper supporting papers?
*Q. Here, you were just a member of the Board?
A. Yes, your Honor.
A. Yes, your Honor.
*Q. Sometimes, regardless of the amount?
*Q. So you were not running the commission?
A. Yes, your Honor.
A. Yes, your Honor.
*Q. Now, you have P55 million which you were ordered to deliver in cash, not to the
*Q. Any other entity? creditor of the particular credit, and to be delivered in armored cars to be
acknowledged only by a receipt of a personal secretary. After almost 18 years in the
A. No more, your Honor. government service and having had that much time in dealing with COA people, did it
not occur to you to call a COA representative and say, "What will I do here?"
*Q. As far as you can recall, besides being the Manager of the MIA and later the
MIAA for approximately 18 years, you also ran the Games and Amusement Board as A. I did not, your Honor.
its executive officer?
*PJ GARCHITORENA
A. Yes, your Honor.
*Q. Did you not think that at least out of prudence, you should have asked the COA
*Q. And you were a commissioner only of the Game Fowl Commission? for some guidance on this matter so that you will do it properly?

A. Yes, your Honor. WITNESS

*Q. Who was running the commission at that time? A What I was going to do is, after those things I was going to tell that delivery ordered
by the President to the COA, your Honor.
A. I forgot his name, but he retired already, your Honor.
*Q. That is true, but what happened here is that you and Mr. Dabao or you and Mr.
*Q. All of us who joined the government, sooner or later, meet with our Resident COA Peralta signed requests for issuance of Manager’s checks and you were
representative? accommodated by the PNB Office at Nichols without any internal documentation to
justify your request for Manager’s checks?
A. Yes, your Honor.
A. Yes, your Honor.
*PJ GARCHITORENA

97 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*Q. Of course we had no intimation at that time that Mr. Marcos will win the elections the trunk of your car?
but even then, the Daily Express, which was considered to be a newspaper friendly to
the Marcoses at that time, would occasionally come with so-called expose, is that not WITNESS
so?
A. We have security at that time your Honor.
A. Yes, your Honor.
ATTY. ANDRES
*Q. And worst, you had the so-called mosquito press that would always come out with
the real or imagined scandal in the government and place it in the headline, do you Your Honor, the P25 million was in the armored car; only P5 million was in the trunk
recall that? of his car.

A. Yes, your Honor. *PJ GARCHITORENA

*PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million
inside the trunk of your car, was that not a nervous experience?
*Q. Under these circumstances, did you not entertain some apprehension that some
disloyal employees might leak you out and banner headline it in some mosquito A. As I have said, your Honor, I never thought of that.
publications like the Malaya at that time?
PJ GARCHITORENA
WITNESS
Thank you very much, Mr. Tabuena. You are excused. . . ." 42
A. No, your Honor.
(PERALTA)
*PJ GARCHITORENA
(He testified on direct examination that he co-signed with Tabuena a memorandum
I bring this up because we are trying to find out different areas of fear. We are in the request for the issuance of the Manager’s Check for P5 Million upon order of
government and we in the government fear the COA and we also fear the press. We Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with
might get dragged into press releases on the most innocent thing. You believe that? PNCC in the amount of around P27 Million. He affirmed having accompanied
Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having
A. Yes, your Honor. misappropriated for his own benefit said amount or any portion thereof.)

*Q. And usually our best defense is that these activities are properly documented? "CROSS-EXAMINATION BY PROS VIERNES

A. Yes, your Honor. Q. Will you please tell the Honorable Court why was it necessary for you to co-sign
with Mr. Tabuena the request for issuance of Manager’s check in the amount of P5
*Q. In this particular instance, your witnesses have told us about three (3) different million?
trips from Nichols to Aguado usually late in the day almost in movie style fashion. I
mean, the money being loaded in the trunk of your official car and then you had a A. At that time I was the Acting Financial Services Manager of MIAA, sir, and all
back-up truck following your car? withdrawals of funds should have my signature because I was one of the signatories
at that time.
A. Yes, your Honor.
Q. As Acting Financial Services Manager of MIAA, you always co-sign with Mr.
*Q. Is that not quite a fearful experience to you? Tabuena in similar requests for the issuance of Manager’s checks by the PNB?

A. did not think of that at that time, your Honor. A. That is the only occasion I signed, sir.

*PJ GARCHITORENA Q. Did you say you were ordered by Mr. Tabuena to sign the request?

*Q. You did not think it fearful to be driving along Roxas Boulevard with P25 million in A. Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-

98 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

signed in the request for the issuance of Manager’s check in favor of Mr. Luis
Tabuena. *PJ GARCHITORENA

PROS VIERNES *Q. This matter of preparing Financial Statement was not an annual activity but a
monthly activity?
Q. Was there a separate written order for you to co-sign with Mr. Tabuena?
A. Yes, your Honor.
WITNESS
*Q. This Financial Statement you prepared in January of 1986 recapitulated the
A. Yes, sir, an order was given to me by Mr. Tabuena. financial condition as of the end of the year?

*PJ GARCHITORENA A. Yes, your Honor.

Was that marked in evidence? PJ GARCHITORENA

WITNESS Continue.

Yes, your Honor. PROS VIERNES

*PJ GARCHITORENA Q. You made mention of a request for Escalation Clause by former Minister Ongpin.
Did you personally see that request?
What exhibit?
A. When this order coming from Mr. Tabuena was shown to me, I was shown a copy,
WITNESS sir. I have no file because I just read it.

I have here a copy, your Honor. This was the order and it was marked as exhibit "N" . Q. It was Mr. Tabuena who showed you the letter of Minister Ongpin?

PROS VIERNES A. Yes, sir.

It was marked as Exhibit "M", your Honor. *PJ GARCHITORENA

Q. How did you know there was an existing liability of MIAA in favor of PNCC at that And that will be Exhibit?
time?
ATTY. ANDRES
A. Because prior to this memorandum of Mr. Tabuena, we prepared the financial
statement of MIAA as of December 31, 1985 and it came to my attention that there Exhibit "2" and "2-A", your Honor.
was an existing liability of around P27,999,000.00, your Honor.
PROS VIERNES
Q. When was that Financial Statement prepared?
Q. You also stated that you were with Mr. Tabuena when you withdrew the amount of
A. I prepared it around January 22 or 24, something like that, of 1986, sir. P5 million from the PNB Extension Office at Villamor?

Q. Is it your usual practice to prepare the Financial Statement after the end of the A. Yes, sir.
year within three (3) weeks after the end of the year?
Q. Why was it necessary for you to go with him on that occasion?
A. Yes, sir, it was a normal procedure for the MIAA to prepare the Financial
Statement on or before the 4th Friday of the month because there will be a Board of A. Mr. Tabuena requested me to do the counting by million, sir. So what I did was to
Directors Meeting and the Financial Statement of the prior month will be presented bundle count the P5 million and it was placed in two (2) peerless boxes.
and discussed during the meeting.

99 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Q. Did you actually participate in the counting of the money by bundles? A. Yes, sir.

A. Yes, sir. Q. Until what time do you hold office at the MIA?

Q. Bundles of how much per bundle? A . Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in
the office, sir.
A. If I remember right, the bundles consisted of P100s and P50s, sir.
Q. So, even if it was already after 5: 00 o ‘ clock in the afternoon, you still went back
Q. No P20s and P10s? to your office at MIA?

A. Yes, sir, I think it was only P100s and P50s. A. Yes, sir.

*PJ GARCHITORENA PROS. VIERNES

*Q If there were other denominations, you can not recall? That will be all, your Honor.

A. Yes, your Honor. PJ GARCHITORENA

PROS. VIERNES Redirect?

Q. In how many boxes were those bills placed? ATTY. ESTEBAL

A. The P5 million were placed in two (2) peerless boxes, sir. No redirect, your Honor.

Q. And you also went with Mr. Tabuena to Aguado? *PJ GARCHITORENA

A. No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Questions from the Court.
Tabuena, I was left behind and I went back to my office at MIA.
*A J DEL ROSARIO
Q. But the fact is that, this P5 million was withdrawn at passed 5:00 o’clock in the
afternoon? *Q. Did you not consider it as odd that your obligation with the PNCC had to be paid
in cash?
A. I started counting it I think at around 4:30, sir. It was after office hours. But then I
was there at around 4:00 o’clock and we started counting at around 4:30 p.m. WITNESS
because they have to place it in a room, which is the office of the Manager at that
time. A. Based on the order of President Marcos that we should pay in cash, it was not
based on the normal procedure, your Honor
Q. And Mr. Tabuena left for Malacañang after 5:00 o’clock in the afternoon of that
date? *Q. And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?
A. Yes, sir. After we have counted the money, it was placed in the peerless boxes and
Mr. Tabuena left for Malacañang . A. Yes, your Honor, the payments should be covered by vouchers. But then,
inasmuch as what we did was to prepare a request to the PNB, then this can be
PROS. VIERNES covered by Journal Voucher also.

Q. And you yourself, returned to your office at MIA? *Q. Was such payment of P5 million covered by a Journal Voucher?

WITNESS A. Yes, your Honor.

100 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*Q. Did you present that Journal Voucher here in Court? being used for some other purpose?

A. We have a copy, your Honor. ATTY. ESTEBAL

*Q. Do you have a copy or an excerpt of that Journal Voucher presented in Court to With due respect to the Honorable Justice, we are objecting to the question on the
show that payment? ground that it is improper.

A. We have a copy of the Journal Voucher, your Honor *A J DEL ROSARIO

*Q. Was this payment of P5 million ever recorded in a cashbook or other accounting I will withdraw the question.
books of MIAA?
*PJ GARCHITORENA
A. The payment of P5 million was recorded in a Journal Voucher, your Honor.
What is the ground for impropriety?
*PJ GARCHlTORENA
ATTY. ESTEBAL
*Q. In other words, the recording was made directly to the Journal?
This is not covered in the direct examination, and secondly, I don’t think there was
WITNESS any basis, your Honor.

A. Yes, your Honor. *PJ GARCHITORENA

*Q. There are no other separate documents as part of the application for Manager’s Considering the withdrawal of the question, just make the objection on record.
Check?
*A J HERMOSISIMA
A. Yes, your Honor, there was none.
*Q. As a Certified Public Accountant and Financial Manager of the MIAA, did you not
*A J DEL ROSARIO consider it proper that a check be issued only after it is covered by a disbursement
voucher duly approved by the proper authorities?
*Q. After the payment was made, did your office receive any receipt from PNCC?
A. Your Honor, what we did was to send a request for a Manager’s check to the PNB
A. I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the
your Honor. Inasmuch as the payment should be made through the Office of the Order of President Marcos.
President, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*PJ GARCHITORENA
*Q. After receiving that receipt, did you prepare the necessary supporting documents,
vouchers, and use that receipt as a supporting document to the voucher? *Q. In your capacity as Financial Services Manager of the MIAA, did you not think it
proper to have this transaction covered by a disbursement voucher?
A. Your Honor, a Journal Voucher was prepared for that.
WITNESS
*Q. How about a disbursement voucher?
A. Based on my experience, payments out of cash can be made through cash
A. Inasmuch as this was a request for Manager’s check, no disbursement voucher vouchers, or even though Journal Vouchers, or even through credit memo, your
was prepared, your Honor. Honor.

*A J DEL ROSARIO *A J HERMOSISIMA

*Q. Since the payment was made on January 31, 1986, and that was very close to the *Q. This was an obligation of the MIAA to the PNCC. Why did you allow a
election held in that year, did you not entertain any doubt that the amounts were disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

101 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 WITNESS
A. We based the payment on the order of Mr. Tabuena because that was the order of
President Marcos to pay PNCC through the Office of the President and it should be A. Yes, your Honor.
paid in cash, your Honor.
*Q. Therefore, when you said that a Journal Voucher here is proper, you are saying it
*Q. You are supposed to pay only on legal orders. Did you consider that legal? is proper only because of the exceptional nature of the transactions?

ATTY. ESTEBAL A. Yes, your Honor.

With due respect to the Honorable Justice, the question calls for a conclusion of the *Q. In other words, as an Accountant, you would not normally authorize such a
witness. movement of money unless it is properly documented?

*PJ GARCHITORENA ATTY. ESTEBAL

Considering that the witness is an expert, witness may answer With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is. . . .
WITNESS
*PJ GARCHITORENA
A. The order of President Marcos was legal at that time because the order was to pay
PNCC the amount of P5 million through the Office of the President and it should be Be careful in your objection because the witness understands the language you are
paid in cash, your Honor. And at that time, I know for a fact also that there was an speaking, and therefore, you might be coaching him.
existing P.D. wherein the President of the Republic of the Philippines can transfer
funds from one office to another and the PNCC is a quasi government entity at that ATTY. ESTEBAL
time.
No, your Honor. I am also an accountant that is why I could say that. . . .
*A J HERMOSISIMA
*PJ GARCHITORENA
*Q. Are you saying that this transaction was made on the basis of that P.D. which you
referred to? Please be simple in your objection.

A. I am not aware of the motive of the President, but then since he is the President of ATTY. ESTEBAL
the Philippines, his order was to pay the PNCC through the Office of the President,
your Honor. The question is misleading on the ground that what the witness stated earlier is that
the Journal Voucher in this particular case was supported, your Honor.
*Q. As Financial Manager, why did you allow a payment in cash when ordinarily
payment of an obligation of MIAA is supposed to be paid in check? *PJ GARCHITORENA

A. I caused the payment through the name of Mr. Tabuena because that was the Overruled, may answer.
order of Mr. Tabuena and also he received an order coming from the President of the
Philippines at that time, your Honor. WITNESS

*PJ GARCHITORENA A. The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor.
*Q. Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct
certain statements of accounts earlier made in the same journal? *Q. Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded. A. Yes, your Honor, because at that time we have also a recorded liability of P27
million.

102 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

 A. Because at that time, your Honor, I have knowledge that the President is
*Q. We are not talking of whether or not there was a liability. What we are saying is, is authorized through a Presidential Decree to transfer government funds from one
the order of the General Manager by itself adequate with no other supporting papers, office to another.
to justify the movement of funds?
*PJ GARCHITORENA
A. Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability
of P27,931,000.00, inasmuch as we have that liability and I was shown the order of *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
President Marcos to pay P5 million through the Office of the President, I considered Appropriation Act?
the order of Mr. Luis Tabuena, the order of President Marcos and also the existing
liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is A. I think the liability was duly recorded and appropriations to pay the amount is
also an escalation clause of P99.1 million, the payment of P5 million is fully covered (interrupted)
by those existing documents.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q. Tell me honestly, is your answer responsive to the question or are you just
You keep flooding us with details we are not asking for. We are not asking you throwing words at us in the hope that we will forget what the question is?
whether or not there was valid obligation. We are not asking you about the escalation
clause. We are asking you whether or not this particular order of Mr. Tabuena is an A. No, your Honor.
adequate basis to justify the movement of funds?
*Q. Are you telling us that the debts incurred by MIAA are covered by the
WITNESS Appropriations Act so that the payment of this debt would be in the same level as the
realignment of funds authorized the President? Or are you telling as you did not read
When we pay, your Honor, we always look for the necessary documents and at that the Decree?
time I know for a fact that there was this existing liability.
A. I was aware of that Decree, your Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question
being asked and not to whatever you wanted to say. I know you are trying to protect Mr. Estebal, will you include in your memorandum what are the Decrees authorizing
yourself. We are aware of your statement that there are all of these memoranda. this movement of funds?

*Q. By your disbursement of such amount, you are saying that the order of Mr. ATTY. ESTEBAL
Tabuena by itself is adequate?
Yes, your Honor.
WITNESS
*PJ GARCHITORENA
A. As far as I am concerned, your Honor, inasmuch as we have a liability and I was
shown the Order of President Marcos to pay PNCC through his office, I feel that the *Q. It is true that President Marcos was the President, but he was not an officer of the
order of the General Manager, the order of President Marcos, and also the MIAA, was he?
memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.
A. No, your Honor.
*PJ GARCHITORENA
*Q. In fact, for purposes of internal control, you have different officers and different
*Q. This Presidential Decree which authorizes the President to transfer funds from officials in any company either government or private, which are supposed to check
one department to another, is this not the one that refers to the realignment of funds and balance each other, is it not?
insofar as the Appropriation Act concerned?
A. Yes, your Honor.
WITNESS
*Q. So that when disbursements of funds are made, they are made by authority of not

103 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

only one person alone so that nobody will restrain him?
*Q. Did you submit a written protest to the manner in which such amount was being
A. Yes, your Honor. disposed of?

*Q. These checks and balances exist in an entity so that no one person can dispose A. A written protest was not made, your Honor, but I called the attention of Mr.
of funds in any way he likes? Tabuena that since this payment was upon the order of President Marcos, then I think
as President he can do things which are not ordinary.
A. Yes, your Honor.
*Q. If you did not prepare a written protest, did you at least prepare a memorandum
*Q. And in fact, the purpose for having two (2) signatories to documents and for the record that this was an extra-ordinary transaction?
negotiable documents is for the same purpose?
A. I called the attention of Mr. Tabuena that this was an extra-ordinary transaction
A. Yes, your Honor. and no written note, your Honor.

*PJ GARCHITORENA PJ GARCHITORENA

*Q. In other words, the co-signatories counter check each other? Thank you very much Mr. Peralta, you are excused. . . ." 43

WITNESS This Court has acknowledged the right of a trial judge to question witnesses with a
view to satisfying his mind upon any material point which presents itself during the
A. Yes, your Honor. trial of a case over which he presides. 44 But not only should his examination be
limited to asking "clarificatory" questions, 45 the right should be sparingly and
*Q. In your case, you would be the counter check for Mr. Tabuena? judiciously used; for the rule is that the court should stay out of it as much as possible,
neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations
A. Yes, your Honor. were not observed. Hardly in fact can one avoid the impression that the
Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for
*Q. In other words, even if Mr. Tabuena is the Manager, you as Financial Services the prosecution in proving the case against Tabuena and Peralta when the Justices
Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, cross-examined the witnesses, their cross-examinations supplementing those made
you are my superior but this disbursement is not proper and, therefore, I will not sign by Prosecutor Viernes and far exceeding the latter’s questions in length. The "cold
it", if in your opinion the disbursement is not proper? neutrality of an impartial judge" requirement of due process was certainly denied
Tabuena and Peralta when the court, with its overzealousness, assumed the dual role
A. Yes, your Honor. of magistrate and advocate. In this connection, the observation made in the
Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed"
*Q. Therefore, as co-signatory, you are expected to exercise your judgment as to the with the number of court questions alone, is quite inaccurate. A substantial portion of
propriety of a particular transaction? the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but
more importantly to show that the court questions were in the interest of the
A. Yes, your Honor. prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with
*Q. And this is something you know by the nature of your position and because you "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto"
are a Certified Public Accountant? (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial
judge, as in this case, indulged in extensive questioning of defendant and his
A. Yes, your Honor. witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It
was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all
*A J DEL ROSARIO witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge’s
questions to the defendant De Sisto totalled 306, the prosecutor’s 347, and the
*Q. You admit that the payment of P5 million and P50 million were unusual in the defense counsel’s, 201. After referring to these figures, the court
manner with which they were disposed? stated:jgc:chanrobles.com.ph

A. Yes, your Honor. ". . . It is indeed an impressive proportion, but no such mathematical computation is of

104 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

itself determinative. However, taking all this in conjunction with the long and vigorous connection between the payment made to the President’s office and the then
examination of the defendant himself by the judge, and the repeated belittling by the forthcoming presidential "snap election" ? In another instance, consider the following
judge of defendant’s efforts to establish the time that Fine left the pier, we fear that in questions of Presiding Justice Garchitorena:chanrob1es virtual 1aw library
its zeal for arriving at the facts the court here conveyed to the jury too strong an
impression of the court’ s belief in the defendant’s probable guilt to permit the jury *PJ GARCHITORENA
freely to perform its own function of independent determination of the
facts. . . ."cralaw virtua1aw library *Q. Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct
certain statements of accounts earlier made in the same journal?
The majority believes that the interference by the Sandiganbayan Justices was just
too excessive that it cannot be justified under the norm applied to a jury trial, or even x           x          x
under the standard employed in a non-jury trial where the judge is admittedly given
more leeway in propounding questions to clarify points and to elicit additional relevant
evidence. At the risk of being repetitious, we will amplify on this via some specific *Q. In other words, really what you are telling us is that, a Journal Voucher is to
examples. Based on the evidence on record, and on the admission of Tabuena explain a transaction was otherwise not recorded.
himself, the P55 million was delivered to the President’s Office thru Mrs. Gimenez, in
obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled x           x          x
the following questions to Peralta:jgc:chanrobles.com.ph

"AJ DEL ROSARIO *Q. Therefore, when you said that a Journal Voucher here is proper, you are saying it
is proper only because of the exceptional nature of the transactions?
Q: Since the payment was made on January 31, 1986, and that was very close to the
election held in that year, did you not entertain any doubt that the amounts were
x           x          x
being used for some other purposes?

ATTY. ESTEBAL
*Q. In other words, as an Accountant, you would not normally authorize such a
movement of money unless it is properly documented?
With due respect to the Honorable Justice, We are objecting to the question on the
ground that it is improper.
ATTY. ESTEBAL
AJ DEL ROSARIO
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is. . .
I will withdraw the question.
*PJ GARCHITORENA
PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
What is the ground for impropriety?
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don’t think there was
No, your Honor. I am also an accountant that is why I could say that. . .
any basis, Your Honor.
*PJ GARCHITORENA
PJ GARCHITORENA
Please be simple in your objection.
Considering the withdrawal of the question, just make the objection on record."cralaw
virtua1aw library
ATTY. ESTEBAL
Nothing from the preceding questions of counsels or of the court would serve as basis
The question is misleading on the ground that what the witness stated earlier is that
for this question. How then, can this be considered even relevant? What is the
the Journal Voucher in this particular case was supported, your Honor.
105 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL
 x           x          x
*PJ GARCHITORENA

Overruled, may answer. *Q. Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same level as the
WITNESS realignment of funds authorized the President? Or are you telling as you did not read
the Decree?
A. The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor. *PJ GARCHITORENA

*Q. Are you saying the Order of the General Manager is an adequate basis for the Mr. Estebal, will you include in your memorandum what are the Decrees authorizing
movement of money? this movement of funds?

*Q. We are not talking of whether or not there was a liability. What we are saying is, is ATTY. ESTEBAL
the order of the General Manager by itself adequate with no other supporting papers,
to justify the movement of funds? Yes, your Honor.

*PJ GARCHITORENA *PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you *Q. It is true that President Marcos was the President, but he was not an officer of the
whether or not there was valid obligation. We are not asking you about the escalation MIAA, was he?
clause. We are asking you whether or not this particular order of Mr. Tabuena is an
adequate basis to justify the movement of funds? *Q. In fact, for purposes of internal control, you have different officers and different
officials in any company either government or private, which are supposed to check
*PJ GARCHITORENA and balance each other, is it not?

When we ask questions and when we answer them, we must listen to the question *Q. So that when disbursements of funds are made, they are made by authority of not
being asked and not to whatever you wanted to say. I know you are trying to protect only one person alone so that nobody will restrain him?
yourself . We are aware of your statement that there are all of these memoranda.
*Q. These checks and balances exist in an entity so that no one person can dispose
*Q. By your disbursement of such amount, you are saying that the order of Mr. of funds in any way he likes?
Tabuena by itself is adequate?
*Q. And in fact, the purpose for having two (2) signatories to documents and
*PJ GARCHITORENA negotiable documents is for the same purpose?

*Q. This Presidential Decree which authorizes the President to transfer funds from *PJ GARCHITORENA
one department to another, is this not the one that refers to the realignment of funds
insofar as the Appropriation Act concerned? *Q. In other words, the co-signatories counter check each other?

*PJ GARCHITORENA *Q. In your case, you would be the counter check for Mr. Tabuena?

*Q. Under the Appropriation Act. Are payments of debts of the MIAA covered by the *Q. In other words, even if Mr. Tabuena is the Manager, you as Financial Services
Appropriation Act? Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry,
you are my superior but this disbursement is not proper and, therefore, I will not sign
*PJ GARCHITORENA it.", if in your opinion the disbursement is not proper?

*Q. Tell me honestly, is your answer responsive to the question or are you just *Q. Therefore, as co-signatory, you are expected to exercise your judgment as to the
throwing words at us in the hope that we will forget what the question is? propriety of a particular transaction?

106 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

*Q. And this is something you know by the nature of your position and because you "He [the judge] may properly intervene in a trial of a case to promote expedition, and
are a Certified Public Accountant?" 47 prevent unnecessary waste of time, or to clear up some obscurity, but he should bear
in mind that his undue interference, impatience, or participation in the examination of
How can these questions be considered clarificatory when they clearly border more witnesses, or a severe attitude on his part toward witnesses, especially those who are
on cross-examination questions? Thus, the Dissenting Opinion’s focus on the excited or terrified by the unusual circumstances of a trial, may tend to prevent the
distinction between the two kinds of trial to justify the Sandiganbayan’s active proper presentation of the cause, or the ascertainment of the truth in respect thereto."
participation in the examination of petitioners Tabuena and Peralta and witness 53
Monera, with due respect, appears insignificant to this case. Let it, therefore, be
emphasized anew that:jgc:chanrobles.com.ph "The impartiality of the judge — his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
"A trial judge should not participate in the examination of witnesses as to create the and essential rule of special importance in criminal cases. . . ." 54
impression that he is allied with the prosecution." 48
"Our courts, while never unmindful of their primary duty to administer justice, without
"We doubt not that the sole motive of the learned judge was to ascertain the truth of fear or favor, and to dispose of these cases speedily and in as inexpensive a manner
the transaction, but it is never proper for a judge to discharge the duties of a as is possible for the court and the parties, should refrain from showing any
prosecuting attorney. However anxious a judge may be for the enforcement of the semblance of one-sided or more or less partial attitude in order not to create any false
law, he should always remember that he is as much judge in behalf of the defendant impression in the minds of the litigants. For obvious reasons, it is the bounden duty of
accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the all to strive for the preservation of the people’s faith in our courts." 55
state, for the purpose of safeguarding the interests of society." 49
"Time and again this Court has declared that due process requires no less than the
"Ordinarily it is not good practice for the presiding judge himself to examine witnesses cold neutrality of an impartial judge. Bolstering this requirement, we have added that
at length. The circumstances may be such in a given case as to justify the court in so the judge must not only be impartial but must also appear to be impartial, to give
doing. . . . This court, however, has more than once said that the examination of added assurance to the parties that his decision will be just. The parties are entitled to
witnesses is the more appropriate function of counsel, and the instances are rare and no less than this, as a minimum guaranty of due process." 56
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he may We are well aware of the fear entertained by some that this decision may set a
deem improper questions by the court. Then, in conducting a lengthy examination, it dangerous precedent in that those guilty of enriching themselves at the expense of
would be almost impossible for the judge to preserve a judicial attitude. While he is the public would be able to escape criminal liability by the mere expedient of invoking
not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, "good faith." It must never be forgotten, however, that we render justice on a case to
he will usually not find it necessary to conduct such examinations. The extent to which case basis, always in consideration of the evidence that is presented. Thus, where
this shall be done must largely be a matter of discretion, to be determined by the the evidence warrants an acquittal, as in this case, we are mandated not only by the
circumstances of each particular case, but in so doing he must not forget the function dictates of law but likewise of conscience to grant the same. On the other hand, it
of the judge and assume that of an advocate. . . ." 50 does not follow that all those similarly accused will necessarily be acquitted upon
reliance on this case as a precedent. For the decision in this case to be a precedent,
"While it is true that the manner in which a witness shall be examined is largely in the the peculiar circumstances and the evidence that led to the petitioner’s acquittal must
discretion of the trial judge, it must be understood that we have not adopted in this also be present in subsequent cases.
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense Furthermore, as between a mere apprehension of a "dangerous precedent" and an
of occasional delays. . . . The judge is an important figure in the trial of a cause, and actual violation of constitutionally enshrined rights, it is definitely the latter that merits
while he has the right, and it is often his duty, to question witnesses to the end that our immediate attention. For the most dangerous precedent arises when we allow
justice shall prevail, we can conceive of no other reason, for him to take the trial of the ourselves to be carried away by such fears so that it becomes lawful to sacrifice the
cause out of the hands of counsel." 51 rights of an accused to calm the fearful. In our eagerness to bring to justice the
malefactors of the Marcos regime, we must not succumb to the temptation to commit
"The examination of witnesses is the more appropriate function of counsel, and it is the greatest injustice of visiting the sins of the wrongdoers upon an
believed the instances are rare and the conditions exceptional in a high degree which innocent.chanrobles
will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and
deem such action necessary or advisable." 52 Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined
and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan

107 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL

Decision of October 12, 1990 and the Resolution dated December 20, 1991 are
REVERSED and SET ASIDE.

SO ORDERED.

108 ARTICLE 11 | CRIMINAL LAW REVIEW | JUSTICE OSCAR PIMENTEL