CRIMINAL LAW 1

B. Chapter Two: Justifying and Exempting Circumstances

Art. 11
cf. Art. 100
> Article 100. Civil liability of a person guilty of felony. - Every person criminally liable for
a felony is also civilly liable.

R.A. No. 9262, Sec. 26

> SECTION 26. Battered Woman Syndrome as a Defense. – Victim-survivors who are
found by the courts to be suffering from battered woman syndrome do not incur any
criminal and civil liability notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was suffering from battered
woman syndrome at the time of the commission of the crime, the courts shall be assisted
by expert psychiatrists/ psychologists.

cf. R.A. No. 9344, Sec. 6, as amended by R.A. No. 10630

 Section 6. Section 20 of Republic Act No. 9344 is hereby amended to read as
follows:

 "SEC. 20. Children Below the Age of Criminal Responsibility. – If it has been
determined that the child taken into custody is fifteen (15) years old or below, the
authority which will have an initial contact with the child, in consultation with the local
social welfare and development officer, has the duty to immediately release the child
to the custody of his/her parents or guardian, or in the absence thereof, the child’s
nearest relative. The child shall be subjected to a community-based intervention
program supervised by the local social welfare and development officer, unless the
best interest of the child requires the referral of the child to a youth care facility or
‘Bahay Pag-asa’ managed by LGUs or licensed and/or accredited NGOs monitored
by the DSWD.

 "The local social welfare and development officer shall determine the appropriate
programs for the child who has been released, in consultation with the child and the
person having custody over the child. If the parents, guardians or nearest relatives
cannot be located, or if they refuse to take custody, the child may be released to any
of the following:

 "(a) A duly registered nongovernmental or religious organization;

 "(b) A barangay official or a member of the Barangay Council for the Protection of
Children (BCPC);

 "(c) A local social welfare and development officer; or, when and where appropriate,
the DSWD.

 "If the child has been found by the local social welfare and development officer to be
dependent, abandoned, neglected or abused by his/her parents and the best interest
of the child requires that he/she be placed in a youth care facility or ‘Bahay Pag-asa’,
the child’s parents or guardians shall execute a written authorization for the voluntary
commitment of the child: Provided, That if the child has no parents or guardians or if
they refuse or fail to execute the written authorization for voluntary commitment, the
proper petition for involuntary commitment shall be immediately filed by the DSWD or
the Local Social Welfare and Development Office (LSWDO) pursuant to Presidential
Decree No. 603, as amended, otherwise known as ‘The Child and Youth Welfare
 Code’ and the Supreme Court rule on commitment of children: Provided, further,
That the minimum age for children committed to a youth care facility or ‘Bahay Pag-
asa’ shall be twelve (12) years old."

 "SEC. 20-A. Serious Crimes Committed by Children Who Are Exempt From Criminal
Responsibility. – A child who is above twelve (12) years of age up to fifteen (15)
years of age and who commits parricide, murder, infanticide, kidnapping and serious
illegal detention where the victim is killed or raped, robbery, with homicide or rape,
destructive arson, rape, or carnapping where the driver or occupant is killed or raped
or offenses under Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002) punishable by more than twelve (12) years of imprisonment, shall be deemed
a neglected child under Presidential Decree No. 603, as amended, and shall be
mandatorily placed in a special facility within the youth care faculty or ‘Bahay Pag-
asa’ called the Intensive Juvenile Intervention and Support Center (IJISC).

 "In accordance with existing laws, rules, procedures and guidelines, the proper
petition for involuntary commitment and placement under the IJISC shall be filed by
the local social welfare and development officer of the LGU where the offense was
committed, or by the DSWD social worker in the local social welfare and
development officer’s absence, within twenty-four (24) hours from the time of the
receipt of a report on the alleged commission of said child. The court, where the
petition for involuntary commitment has been filed shall decide on the petition within
seventy-two (72) hours from the time the said petition has been filed by the
DSWD/LSWDO. The court will determine the initial period of placement of the child
within the IJISC which shall not be less than one (1) year. The multi-disciplinary team
of the IJISC will submit to the court a case study and progress report, to include a
psychiatric evaluation report and recommend the reintegration of the child to his/her
family or the extension of the placement under the IJISC. The multi-disciplinary team
will also submit a report to the court on the services extended to the parents and
family of the child and the compliance of the parents in the intervention program. The
court will decide whether the child has successfully completed the center-based
intervention program and is already prepared to be reintegrated with his/her family or
if there is a need for the continuation of the center-based rehabilitation of the child.
The court will determine the next period of assessment or hearing on the
commitment of the child."

 "SEC. 20-B. Repetition of Offenses. – A child who is above twelve (12) years of age
up to fifteen (15) years of age and who commits an offense for the second time or
oftener: Provided, That the child was previously subjected to a community-based
intervention program, shall be deemed a neglected child under Presidential Decree
No. 603, as amended, and shall undergo an intensive intervention program
supervised by the local social welfare and development officer: Provided, further,
That, if the best interest of the child requires that he/she be placed in a youth care
facility or ‘Bahay Pag-asa’, the child’s parents or guardians shall execute a written
authorization for the voluntary commitment of the child: Provided, finally, That if the
child has no parents or guardians or if they refuse or fail to execute the written
authorization for voluntary commitment, the proper petition for involuntary
commitment shall be immediately filed by the DSWD or the LSWDO pursuant to
Presidential Decree No. 603, as amended."

 "SEC. 20-C. Exploitation of Children for Commission of Crimes. – Any person who, in
the commission of a crime, makes use, takes advantage of, or profits from the use of
children, including any person who abuses his/her authority over the child or who,
with abuse of confidence, takes advantage of the vulnerabilities of the child and shall
induce, threaten or instigate the commission of the crime, shall be imposed the
penalty prescribed by law for the crime committed in its maximum period."

 "SEC. 20-D. Joint Parental Responsibility. – Based on the recommendation of the

multi-disciplinary team of the IJISC, the LSWDO or the DSWD, the court may require
the parents of a child in conflict with the law to undergo counseling or any other
intervention that, in the opinion of the court, would advance the welfare and best
interest of the child.
  "As used in this Act, ‘parents’ shall mean any of the following:

 "(a) Biological parents of the child; or

 "(b) Adoptive parents of the child; or

 "(c) Individuals who have custody of the child.

 "A court exercising jurisdiction over a child in conflict with the law may require the
attendance of one or both parents of the child at the place where the proceedings are
to be conducted.

 "The parents shall be liable for damages unless they prove, to the satisfaction of the
court, that they were exercising reasonable supervision over the child at the time the
child committed the offense and exerted reasonable effort and utmost diligence to
prevent or discourage the child from committing another offense."

 "SEC. 20-E. Assistance to Victims of Offenses Committed by Children. – The victim

of the offense committed by a child and the victim’s family shall be provided the
appropriate assistance and psychological intervention by the LSWDO, the DSWD
and other concerned agencies."

Self-defense
- De la Cruz vs. People, 741 SCRA 97 (2014)

- People vs. Gonzales, 672 SCRA 590 (2012)

G.R. No. 195534 June 13, 2012

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
EDUARDO GONZALES, Appellant.

DECISION

BRION, J.:

We review the judgment of conviction for murder of Eduardo Gonzales

(appellant) in the decision dated July 28, 2010 of the Court of Appeals1 (CA) in
CA-G.R. CR-H.C. No. 03840. The CA affirmed the decision2 dated January 5, 2009
of the Regional Trial Court (RTC), Branch 57, San Carlos City, Pangasinan, in
Criminal Case No. 2814 whose decretal portion reads:
WHEREFORE, in light of all the foregoing, this Court finds accused EDUARDO
GONZALES, having failed to prove by clear and convincing evidence that his act
was justified, GUILTY of the crime of Murder and hereby sentences him to suffer
the penalty of reclusion perpetua. Accused Eduardo Gonzales is directed to pay
the heirs of the victim Eligio Donato the sum of ₱20,000.00 as actual damages;
₱50,000.00 as civil indemnity and ₱50,000.00 as moral damages.3 (italics ours)

The Facts

The appellant and his brother, co-accused Edmundo Gonzales,4 were charged
with murder under a criminal information which alleged conspiracy, evident
premeditation and treachery in the killing of Eligio Donato (victim).

The records5 show that the victim went to the house of the appellant at the
invitation of Edmundo. When the victim arrived, he was met by the appellant
who was armed with a .22 caliber firearm. The appellant and Edmundo
immediately fired at the victim six (6) times, hitting him three (3) times - in the
arm, in his left thigh and in his left chest.6 The victim expired before he could
receive medical treatment.

The appellant denied the charge and claimed that he had acted in self-defense.
He narrated that he was at his house watching television when the victim
suddenly arrived, armed with a short firearm. The victim shouted invectives at
the appellant and threatened to kill him. When efforts by the appellant to pacify
the victim proved to be futile, the appellant retrieved his own firearm inside his
house. A struggle for the possession of the appellant’s firearm then ensued
between the appellant and the victim which caused the appellant’s gun to
discharge three times; thus, hitting the victim.

The RTC found the prosecution’s version more consistent with the physical
findings that the victim was not shot at close range, in the absence of powder
burns on his skin.7 The RTC rejected the appellant’s self-defense theory in the
absence of evidence of unlawful aggression. The RTC ruled that the appellant
was guilty of murder, qualified by treachery and evident premeditation, given
the manner and the means employed in attacking the unsuspecting victim,
leaving him no time or opportunity to resist.8

In due course, the appellant appealed his judgment of conviction with the CA,
contending that the RTC committed reversible errors in the appreciation of the
evidence, namely: (1) in giving weight and credence to the highly inconsistent
and questionable testimony of the prosecution eyewitness; (2) in disregarding
the justifying circumstance of self-defense; and (3) in finding that the qualifying
circumstances of treachery and evident premeditation attended the killing.

The CA rejected the appellant’s arguments and affirmed the RTC’s decision
holding that the prosecution eyewitness’ account of the shooting was
straightforward, categorical and without any established ill-motive. The CA also
held that the eyewitness testimony was compatible with the physical evidence
showing that the appellant, not the victim, started the attack. The CA agreed
with the RTC that the killing was qualified by treachery since the attack was
executed in a manner that rendered the victim defenseless and unable to
retaliate.9 The CA did not rule on whether evident premeditation was present in
the victim’s killing.

The Issue

On the basis of the same arguments raised before the CA, the appellant
questions the sufficiency of the evidence proving his guilt beyond reasonable
doubt.

The Court’s Ruling

We find no reversible error in the CA’s decision and affirm the appellant’s
conviction for murder.

The Claim of Self-Defense

Self-defense as a justifying circumstance under Article 11 of the Revised Penal

Code, as amended, implies the admission by the accused that he committed the
acts which would have been criminal in character had it not been for the
presence of circumstances whose legal consequences negate the commission of
a crime. By invoking self-defense in this case, the appellant admitted that he
shot the victim. With this admission, the burden of evidence shifted to the
appellant to prove that he acted in accordance with the law. The appellant, in
this regard, must satisfactorily prove the concurrence of the following requisites
under the second paragraph of Article 11 of the Revised Penal Code, as
amended, to relieve him of any criminal liability:

First, unlawful aggression;

Second, reasonable necessity of the means employed to prevent or repel it;

Third, lack of sufficient provocation on the part of the person defending.

We find that the appellant failed to discharge this burden.

(a) Unlawful aggression

The existence of unlawful aggression is the basic requirement in a plea of self-

defense.10 In other words, no self-defense can exist without unlawful
aggression since there is no attack that the accused will have to prevent or
repel.11 In People v. Dolorido,12 we held that unlawful aggression
"presupposes actual, sudden, unexpected or imminent danger – not merely
threatening and intimidating action. It is present ‘only when the one attacked
faces real and immediate threat to one’s life.’" The unlawful aggression may
constitute an actual physical assault, or at least a threat to inflict real imminent
injury upon the accused.13 In case of a "threat, it must be offensive and strong,
positively showing the x x x intent to cause injury."14

In this case, the requisite of unlawful aggression on the part of the victim is
patently absent. The records fail to disclose any circumstance showing that the
appellant’s life was in danger when he met the victim. What the evidence shows
is that the victim was unarmed when he went to the house of the appellant.
Likewise, there was also no evidence proving the gravity of the utterances and
the actuations allegedly made by the victim that would have indicated his
wrongful intent to injure the appellant.

We note that the appellant’s claim of self-defense was even disproved by the
narration of his own witness, Teofilo Posadas, who came into the scene to
witness the ongoing attack by the appellant on the victim. As Posadas testified:

Q Mr. Witness, how did you know Mr. Witness that it was Eligio Donato
shouting at Eduardo Gonzales "Anggapo lay Balam" [You have no more bullet]?

A When Eduardo fired his gun in the air twice, ma’am.

Q Which came first Mr. Witness, Eduardo Gonzales firing his gun in the air twice
or Eligio Donato shouting at Eduardo Gonzales "Anggapo lay Balam"?
A The firing in the air, ma’am.

xxxx

Q By the way Mr. Witness, you mentioned a while ago that Eduardo Gonzales
fired his gun in the air twice, did you notice what kind of gun did (sic) Eduardo
Gonzales used [in] firing two gunshot or two shots in the air?

A [.]22 caliber long barrel, ma’am.

Q And how did you know that Eduardo Gonzales fired a [.]22 caliber gun or a
long barrel gun?

A I saw that gun before while he was using it in targeting fish and birds, ma’am.

Q So Mr. Witness did Eligio Donato and Eduardo Gonzales get near each other?

A Yes, ma’am.

Q What did they do when they got close [to] each other, Mr. Witness?

A They scuffled over the possession of the gun, ma’am.

xxxx

Q When they were scuffling over the possession of the gun, what happened Mr.
Witness?

A The gun fired, ma’am.

xxxx

Q How many gun burst did you hear Mr. Witness?

A Two (2) or more, ma’am.

Q After you heard two (2) or more gun burst Mr. Witness, what happened to
Eligio [Donato], if any?

A He fell down, ma’am.15

The testimony of Posadas reveals that: first, the appellant who was armed met
the victim; second, while at a distance, the appellant fired twice at the victim’s
direction; and third, the appellant fired at the victim when the latter tried to
take away his firearm.

Posadas’ testimony, taken together with the testimony of prosecution

eyewitness Eduardo Rodriguez,16 provides a clear picture on how the unlawful
aggression was initiated by the appellant, not by the victim. The unlawful
aggression started when the appellant immediately fired at the victim as the
latter alighted from a tricycle and continued when the appellant fired at the
victim six (6) times. The assault ended when the appellant fired at the victim
when the latter tried to take away his firearm.

More importantly, Posadas’ testimony was even corroborated by the physical

evidence that should clearly defeat the claim of unlawful aggression on the part
of the victim, in that: first, it was only the victim who was wounded in the
assault; and second, the physical evidence showed that the victim had three (3)
gunshot wounds thereby indicating that he had already been shot by the
appellant when he tried to gain possession of the appellant’s firearm.

(b) Reasonable necessity of the means employed to prevent or repel the victim’s
attack

The second requisite of self-defense could not have been present in the absence
of any unlawful aggression on the part of the victim. However, even granting
that it was the unarmed victim who first acted as the aggressor, we find that the
means employed by the appellant in repelling the attack - the use of a firearm,
the number of times he fired at the victim and the number of gunshot wounds
sustained by the victim - were not reasonably necessary. On the contrary, we
find that the number of gunshot wounds reveals a clear intent to kill, not merely
to repel the attack of the unarmed victim.
(c) Lack of sufficient provocation on the part of the appellant

The records disclose that the struggle between the victim and the appellant
occurred after the appellant fired at the victim. In other words, the third
requisite was not established given the sufficient provocation by the appellant
in placing the victim’s life in actual danger. Thus, any aggression made by the
victim cannot be considered unlawful as it was made as an act of self-
preservation to defend his life.

In addition to the above considerations, the appellant’s claim of self-defense

was also belied by his own conduct after the shooting. The records show that
the appellant went into hiding after he was criminally charged.17 He also stayed
in hiding for four (4) years and could have continued doing so had it not been
for his arrest.18 Self-defense loses its credibility given the appellant’s flight from
the crime scene and his failure to inform the authorities about the incident.19

Credible Eyewitness Testimony

As the appellant failed to prove that he had acted in self-defense, he effectively

admitted to the unlawful shooting and the unlawful killing of the victim.
Accordingly, we no longer need to examine the issue relating to the credibility
of the prosecution witness’ testimony. We reiterate, however, that the findings
of the trial court on matters relating to the credibility of the witnesses and their
testimonies will not be disturbed on appeal unless some weight and serious
facts or circumstances have been overlooked, misapprehended or
misinterpreted so as to materially affect the disposition of the case.20 Under
the circumstances, we find no compelling reason to deviate from this rule.

The Nature of the Killing

Article 248 of the Revised Penal Code, as amended, provides that [a]ny person
who, not falling within the provisions of Article 246, shall kill another, shall be
guilty of murder and shall be punished by reclusion perpetua, to death if
committed with x x x treachery. Both the RTC and the CA ruled that the crime
committed was murder, taking into account the presence of the qualifying
circumstance of treachery. The CA held:

As established on record and as found by the trial court, the victim lost that
opportunity to defend himself because of x x x appellant’s unexpected attack.
[The victim], who was then unarmed, was alighting a tricycle when x x x
appellant suddenly shot him. Such swiftness of the attack even made it
physically impossible for [the victim] to run for his safety. Clearly, the killing of
[the victim] was attended by treachery which qualifies the crime to murder.21
(emphases supplied)

We agree with the CA’s findings. There is treachery (alevosia) when the offender
commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tend directly and specially to ensure its
execution, without risk to himself arising from the defense which the offended
party might make.22 The two elements that must be proven to establish
treachery are: "(a) the employment of means of execution which would ensure
the safety of the offender from defensive and retaliatory acts of the victim,
giving the victim no opportunity to defend himself; and (b) the means, method
and manner of execution were deliberately and consciously adopted by the
offender."23 The two elements are present in this case.

The first element was established by the prosecution eyewitness’ testimony

showing the sudden attack by the appellant on the unsuspecting victim who had
just alighted from a tricycle. The victim was then unarmed and had no
opportunity to defend himself.1âwphi1

The second element was established by the prosecution eyewitness’ testimony

showing that the appellant deliberately and consciously adopted a pre-
conceived plan on how to kill the victim. The evidence showed that the
unsuspecting victim was first lured in going to the house of the appellant by
Edmundo. The appellant who was armed waited for the arrival of the victim.
Afterwards, the appellant immediately fired at the victim.

The Penalty and the Civil Liability

The CA correctly imposed the penalty of reclusion perpetua there being no

mitigating or aggravating circumstances established.24 We find that the
prosecution failed to establish that the aggravating circumstance of evident
premeditation was present in the case. The prosecution failed to prove the
concurrence of the following requisites to establish evident premeditation: (1)
the time when the offender was determined to commit the crime; (2) an act
manifestly indicating that the offender clung to his determination; and (3) a
sufficient interval of time between the determination and the execution of the
crime to allow him to reflect upon the consequences of his act. The prosecution
failed to prove how and when the plan to kill the victim was planned and
determined.25
With respect to damages, the CA correctly awarded the amounts of ₱50,000.00
as civil indemnity and ₱50,000.00 as moral damages, they being consistent with
prevailing jurisprudence.26 In People of the Philippines v. David Maningding,27
we ruled that when the circumstances surrounding the crime call for the
imposition of reclusion perpetua only, the proper amounts should be ₱
50,000.00 as civil indemnity and ₱ 50,000.00 as moral damages.

However, we modify the CA’s decision on the other awards of damages.

In accordance with current jurisprudence, we delete the award of ₱20,000 as

actual damages and, in its stead, award ₱30,000.00 as temperate damages.28
We also award the heirs of the victim compensatory damages for the loss of the
victim’s earning capacity, there being testimonial and documentary evidence on
record to support the award.29 The wife of the victim testified that the victim
was 36 years old and was a soldier receiving a monthly salary of more than
₱9,000.00. The victim’s pay slip was also presented, showing his earnings of
₱9,576.00 a month.30 The award of compensatory damages for loss of earning
capacity is computed using the following formula:

Net earning capacity (x) = life expectancy x gross annual income -living expenses
(50% of gross annual income) 31

Under this formula, we award to the heirs of the victim the amount of
₱1,685,184.48 as compensatory damages for the victim’s loss of earning
capacity, calculated as follows:

x = 2(80-36)
3 x [₱ 114,912.00 – 57,456.00]
= 29.33 x ₱ 57,456.00
= ₱ 1,685,184.48
Finally, we also award ₱30,000.00 as exemplary damages, in accordance with
prevailing jurisprudence, since the killing was attended by treachery.32

WHEREFORE, premises considered, we DISMISS the appeal and AFFIRM with

MODIFICATION the decision dated July 28, 2010 of the Court of Appeals in CA-
G.R. CR-H.C. No. 03840. Appellant Eduardo Gonzales is found guilty of murder,
penalized under Article 248 of the Revised Penal Code, as amended. He is
hereby ordered to pay the heirs of Eligio Donato the following sums:
1) ₱50,000.00 as civil indemnity;

2) ₱1,685,184.48 as compensatory damages for loss of earning capacity;

3) ₱30,000.00 as temperate damages in lieu of actual damages;

4) ₱50,000.00 as moral damages; and

5) ₱30,000.00 as exemplary damages.

-Nacnac vs. People, 668 SCRA 846 (2012)

G.R. No. 191913

VELASCO JR., J.:

Every circumstance favoring the accused's innocence must be duly taken into
account. The proof against the accused must survive the test of reason.
Strongest suspicion must not be permitted to sway judgment. The conscience
must be satisfied that on the accused could be laid the responsibility for the
offense charged. If the prosecution fails to discharge the burden, then it is not
only the accused's right to be freed; it is, even more, the court's constitutional
duty to acquit him.[1]

This treats of the Motion for Reconsideration of Our Resolution dated August
25, 2010, affirming the July 20, 2009 Decision[2] of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 30907 entitled People of the Philippines v. SPO2 Lolito T.
Nacnac. The CA affirmed the May 23, 2007 Judgment[3] in Criminal Case No.
10750-14 of the Regional Trial Court (RTC), Branch 14 in Laoag City, which
convicted petitioner of homicide.

The Facts

An Information charged the accused as follows:

That on or about February 20, 2003, in Dingras, Ilocos Norte, and within the
jurisdiction of this Honorable Court, accused SPO2 Lolito I. Nacnac, a public
officer, being then a member of the Philippine National Police, assigned with the
Dingras Police Station, Dingras, Ilocos Norte, did then and there willfully,
unlawfully and feloniously, with intent to kill, shoot one SPO1 Doddie Espejo
with a gun resulting into the latter's death.[4]

A reverse trial ensued upon the claim of self-defense by the accused. As

summarized by CA,[5] the shooting incident happened as follows:

The victim, SPO1 Doddie Espejo[,] had a history of violent aggression and
drunkenness. He once attacked a former superior, P/Insp. Laurel Gayya, for no
apparent reason. On the day of his death, he visited a cock house for
merriment. He was shot by accused-appellant [petitioner] on February 20, 2003
at around 10:00 p.m. at the Dingras Police Station, Dingras, Ilocos Norte.

On that fateful night of February 20, 2003, accused-appellant, the victim and a
number of other police officers were on duty. Their shift started at 8:00 in the
morning of the same day, to end at 8:00 the next morning. Accused-appellant,
being the highest ranking officer during the shift, was designated the officer-of-
the-day. Shortly before 10:00 in the evening, the victim, together with then
SPO1 Eduardo Basilio, took the patrol tricycle from the station grounds. When
accused-appellant saw this, he stopped the victim and his colleague from using
the tricycle. The victim told accused-appellant that he (the victim) needed it to
go to Laoag City to settle a previous disagreement with a security of a local bar.

Accused-appellant still refused. He told the victim that he is needed at the

station and, at any rate, he should stay at the station because he was drunk.
This was not received well by the victim. He told accused-appellant in Ilocano:
"Iyot ni inam kapi" (Coitus of your mother, cousin!). The victim alighted from
the tricycle. SPO1 Eduardo Basilio did the same, went inside the office, and left
the accused-appellant and the victim alone. The victim took a few steps and
drew his .45 caliber gun which was tucked in a holster on the right side of his
chest. Accused-appellant then fired his M-16 armalite upward as a warning
shot. Undaunted, the victim still drew his gun. Accused-appellant then shot the
victim on the head, which caused the latter's instantaneous death. Accused-
appellant later surrendered to the station's Chief of Police.

The RTC Ruling

The RTC found the accused guilty of the crime charged. The RTC held that the
claim of self-defense by the accused was unavailing due to the absence of
unlawful aggression on the part of the victim. The dispositive portion of the RTC
Judgment reads:

WHEREFORE, the accused SPO2 Lolito Nacnac is found GUILTY beyond

reasonable doubt of the crime of homicide. Taking into account the mitigating
circumstance of voluntary surrender, the Court hereby sentences him to an
indeterminate penalty ranging from EIGHT YEARS of prision mayor as minimum
to FOURTEEN YEARS of reclusion temporal as maximum. He is also ordered to
pay the heirs of the deceased (1) P50,000.00 as indemnity for his death, (2)
P100,000.00 as actual damages, (3) P50,000.00 as moral damages, and (4)
P20,000.00 as attorney's fees. Costs against the accused.[6]

The CA Ruling

On appeal, the CA affirmed the findings of the RTC. It held that the essential
and primary element of unlawful aggression was lacking. It gave credence to the
finding of the trial court that no one else saw the victim drawing his weapon
and pointing it at accused Senior Police Officer 2 (SPO2) Lolito T. Nacnac. The
fallo of the CA Decision reads:

WHEREFORE, the instant appeal is DISMISSED for lack of merit and the
challenged Judgment dated May 23, 2007 in Criminal Case No. 10750-14 is
AFFIRMED IN TOTO.[7]

On August 25, 2010, this Court issued a Resolution, denying Nacnac's petition
for review for failure to sufficiently show that the CA committed any reversible
error in the challenged decision and resolution as to warrant the exercise of this
Court's appellate jurisdiction.

On October 11, 2010, petitioner filed a Motion for Reconsideration of this

Court's Resolution dated August 25, 2010. On March 21, 2012, this Court
granted the Motion and reinstated the petition. Petitioner raises the following
issues:

1. [Whether the CA erroneously held that] the victim's drawing of his handgun
or pointing it at the petitioner is not sufficient to constitute unlawful aggression
based on existing jurisprudence.
2. [Whether the CA incorrectly appreciated the photo] showing the victim
holding his handgun in a peculiar manner despite the fact that no expert
witness was presented to testify thereto x x x.

3. [Whether petitioner] has met the second and third requisites of self-defense
x x x.[8]

Petitioner argues that he did not receive a just and fair judgment based on the
following: (1) the trial court did not resort to expert testimony and wrongly
interpreted a photograph; (2) the trial court ignored the evidence proving
unlawful aggression by the victim; (3) the trial court ignored the two gun reports
and two empty shells found at the crime scene which support the claim that
petitioner fired a warning shot; and (4) the trial court failed to appreciate
petitioner's act of self-defense. Petitioner also claims that the CA gravely erred
in not giving proper weight and due consideration to the Comment of the Office
of the Solicitor General (OSG).

In its Comment[9] dated April 27, 2011, the OSG avers that petitioner is entitled
to an acquittal, or at the very least, not one but two mitigating circumstances.

Our Ruling

We revisit Our ruling in the instant case.

The Revised Penal Code provides the requisites for a valid self-defense claim:

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

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

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending
himself.

Unlawful Aggression

Unlawful aggression is an indispensable element of self-defense. We explained,

"Without unlawful aggression, self-defense will not have a leg to stand on and
this justifying circumstance cannot and will not be appreciated, even if the other
elements are present."[10] It would "presuppose an actual, sudden and
unexpected attack or imminent danger on the life and limb of a person not a
mere threatening or intimidating attitude but most importantly, at the time the
defensive action was taken against the aggressor. x x x There is aggression in
contemplation of the law only when the one attacked faces real and immediate
threat to one's life. The peril sought to be avoided must be imminent and
actual, not just speculative."[11]

As We held:

Even the cocking of a rifle without aiming the firearm at any particular target is
not sufficient to conclude that one's life was in imminent danger. Hence, a
threat, even if made with a weapon, or the belief that a person was about to be
attacked, is not sufficient. It is necessary that the intent be ostensibly revealed
by an act of aggression or by some external acts showing the commencement of
actual and material unlawful aggression.[12]

The following exchange showing actual and material unlawful aggression

transpired during the examination of petitioner:[13]

Atty. Lazo:
At any rate, when you again prevented them from getting the tricycle telling
them again that they should not get the tricycle, what happened next?
Accused:
When police officer Basilio alighted from the tricycle SPO1 Espejo also alighted
sir.
Q
What did Doddie Espejo do when he alighted from the tricycle?
A
I saw him hold his firearm tucked on his right waist. (witness demonstrating by
placing his right hand at his right sideways). And he was left handed, sir.
Q
And what happened next?
A
When I saw him holding his firearm that was the time I fired a warning shot, sir.
Q
And when you fired [a] warning shot, what happened next?
A
He drew his firearm, sir.
Q
When he drew his firearm, what did you do?
A
When he drew his firearm I shot him [on] his head once, sir.
xxxx
Atty. Cajigal:
Q
By the way, what kind of firearm did the victim draw from his waist?
A
Cal. 45, sir.
Q
What firearm did you use in defending yourself?
A
M-16 armalite, sir.
xxxx
Q
Alright, you mean to tell the Honorable Court then that at the time that you
pointed or squeezed the trigger of your gun the cal. 45 was already pointed at
you?
A
Yes, sir.
Q
Did you ever observe if he squeezed the trigger but the gun [was] already
pointed at you?
A
He just pointed his firearm at me, sir.
Q
Who first pointed his firearm, the victim pointed his firearm at you before you
pointed your firearm at him?
A
The victim, sir.
Q
In short, it was the victim whose gun was first pointed at you?
A
Yes, sir.
Q
And that was the time when you raised your armalite and also pointed the same
at him is that right?
A
Yes, that was the time that I shot him, sir. (Emphasis supplied.)

According to the trial court, petitioner's claim that the victim pointed his gun at
petitioner was a mere afterthought. It ruled that petitioner's sworn statement
and direct testimony as well as the testimonies of SPO1 Eduardo Basilio and
SPO2 Roosevelt Ballesteros only established that the victim drew his gun. The
trial court went on to differentiate the act of drawing a gun and pointing it at a
target. It held that the mere act of drawing a gun cannot be considered unlawful
aggression. In denying petitioner's motion for reconsideration, the CA affirmed
the trial court's findings and further held that petitioner had fuller control of his
physical and mental faculties in view of the victim's drunken state. It concluded
that the likelihood of the victim committing unlawful aggression in "his
inebriated state" was "very slim."[14]

We disagree. The characterization as a mere afterthought of petitioner's

testimony on the presence of unlawful aggression is not supported by the
records.

The following circumstances negate a conviction for the killing of the victim:

(1)
The drunken state of the victim;
(2)
The victim was also a police officer who was professionally trained at shooting;
(3)
The warning shot fired by petitioner was ignored by the victim;
(4)
A lawful order by petitioner was ignored by the victim; and
(5)
The victim was known for his combative and drunken behavior.

As testified by the victim's companion, SPO1 Basilio, petitioner ordered him and
the victim not to leave because they were on duty. SPO1 Basilio also confirmed
that the victim was inebriated and had uttered invectives in response to
petitioner's lawful order.[15]

Ordinarily, as pointed out by the lower court, there is a difference between the
act of drawing one's gun and the act of pointing one's gun at a target. The
former cannot be said to be unlawful aggression on the part of the victim. In
People v. Borreros,[16] We ruled that "for unlawful aggression to be attendant,
there must be a real danger to life or personal safety. Unlawful aggression
requires an actual, sudden and unexpected attack, or imminent danger thereof,
and not merely a threatening or intimidating attitude x x x. Here, the act of the
[deceased] of allegedly drawing a gun from his waist cannot be categorized as
unlawful aggression. Such act did not put in real peril the life or personal safety
of appellant."

The facts surrounding the instant case must, however, be differentiated from
current jurisprudence on unlawful aggression. The victim here was a trained
police officer. He was inebriated and had disobeyed a lawful order in order to
settle a score with someone using a police vehicle. A warning shot fired by a
fellow police officer, his superior, was left unheeded as he reached for his own
firearm and pointed it at petitioner. Petitioner was, therefore, justified in
defending himself from an inebriated and disobedient colleague. Even if We
were to disbelieve the claim that the victim pointed his firearm at petitioner,
there would still be a finding of unlawful aggression on the part of the victim.
We quote with approval the OSG's argument[17] on this point:

A police officer is trained to shoot quickly and accurately. A police officer cannot
earn his badge unless he can prove to his trainors that he can shoot out of the
holster quickly and accurately x x x. Given this factual backdrop, there is
reasonable basis to presume that the appellant indeed felt his life was actually
threatened. Facing an armed police officer like himself, who at that time, was
standing a mere five meters from the appellant, the [latter] knew that he has to
be quick on the draw. It is worth emphasizing that the victim, being a policeman
himself, is presumed to be quick in firing.

Hence, it now becomes reasonably certain that in this specific case, it would
have been fatal for the appellant to have waited for SPO1 Espejo to point his
gun before the appellant fires back.

Reasonable Means Employed

To successfully invoke self-defense, another requisite is that the means

employed by the accused must be reasonably commensurate to the nature and
the extent of the attack sought to be averted.[18]

Supporting petitioner's claim of self-defense is the lone gunshot wound suffered

by the victim. The nature and number of wounds inflicted by the accused are
constantly and unremittingly considered as important indicia.[19] In People v.
Catbagan,[20] We aptly held:

The means employed by the person invoking self-defense is reasonable if

equivalent to the means of attack used by the original aggressor. Whether or
not the means of self-defense is reasonable depends upon the nature or quality
of the weapon, the physical condition, the character, the size and other
circumstances of the aggressor; as well as those of the person who invokes self-
defense; and also the place and the occasion of the assault.

In the instant case, the lone wound inflicted on the victim supports the
argument that petitioner feared for his life and only shot the victim to defend
himself. The lone gunshot was a reasonable means chosen by petitioner in
defending himself in view of the proximity of the armed victim, his drunken
state, disobedience of an unlawful order, and failure to stand down despite a
warning shot.

Lack of Sufficient Provocation

The last requisite for self-defense to be appreciated is lack of sufficient

provocation on the part of the person defending himself or herself. As gleaned
from the findings of the trial court, petitioner gave the victim a lawful order and
fired a warning shot before shooting the armed and drunk victim. Absent from
the shooting incident was any evidence on petitioner sufficiently provoking the
victim prior to the shooting.

All told, We are convinced that petitioner was only defending himself on the
night he shot his fellow police officer. The rule is that factual findings of the trial
court and its evaluation of the credibility of witnesses and their testimonies are
entitled to great respect and will not be disturbed on appeal.[21] This rule is
binding except where the trial court has overlooked, misapprehended, or
misapplied any fact or circumstance of weight and substance.[22] As earlier
pointed out, the trial court did not consider certain facts and circumstances that
materially affect the outcome of the instant case. We must, therefore, acquit
petitioner.

Given the peculiar circumstances of this case, We find that the prosecution was
unable to establish beyond reasonable doubt the guilt of petitioner. Even the
OSG shares this view in its Comment appealing for his acquittal.

WHEREFORE, petitioner's Motion for Reconsideration is GRANTED. The CA

Decision dated July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is REVERSED and SET
ASIDE. Petitioner SPO2 Lolito T. Nacnac is ACQUITTED of homicide on
reasonable doubt.

The Director of the Bureau of Prisons is ordered to immediately RELEASE

petitioner from custody, unless he is being held for some other lawful cause,
and to INFORM this Court within five (5) days from receipt of this Decision of
the date petitioner was actually released from confinement.

SO ORDERED.

Peralta, Abad, Mendoza, and Perlas-Bernabe, JJ., concur.

-People vs. Sotelo, G.R. No. L-33304, Dec. 13, 1930

G.R. No. L-33304 December 13, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CONSTANTE SOTELO, ET AL., defendants.
CONSTANTE SOTELO, appellant.

Alberto Reyes for appellant.

Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

The Sotelo brothers, namely, Constante, Dominador, and Vicente, were

prosecuted in the Court of First Instance of Ilocos Sur for the crime of homicide
under the following information:

That on or about the night of December 24, 1929, in the municipality of

Narvacan, Province of Ilocos Sur, Philippine Islands, the said accused Constante,
Dominador, and Vicente Sotelo, armed with a penknife, a stick, and an iron bar,
respectively, acting together and helping one another, did willfully, maliciously,
unlawfully, and feloniously with treachery and evident premeditation attack,
beat up, and commit assault upon the person of Ignacio Cambaliza, inflicting a
mortal wound upon him on the level of the left nipple, which penetrated the
left lung and the left ventricle of the heart, another on the outward surface of
the right arm, a bruise on the nose and another on the upper lip: as a result of
which said Ignacio Cambaliza died after a few minutes.

Contrary to law; with the aggravating circumstance of abuse of superior

strength.

After the trial, the court below found the defendant Constante Sotelo guilty of
the crime of homicide, and the defendants Vicente and Dominador Sotelo of
slight physical injuries, sentencing the former to suffer twelve years and one day
of reclusion temporal, to indemnify the heirs of the deceased in the sum P1,000,
with the accessories of law, and to pay one-third of the costs; and ordering the
release of Vicente and Dominador Sotelo in view of the fact that they had
already been imprisoned since December 24, 1929, with two-thirds of the costs
de oficio.

The defendant Constante Sotelo appealed from this judgment, and his counsel
has made the following assignments of error:
I. The trial court erred in accepting the whole theory of the prosecution:

Despite the obvious incongruity between the information and the evidence
adduced at the trial;lawphi1>net

Despite the proof that the iron bar, Exhibit B of the prosecution and Exhibit 1 of
the defense, belong to the principal witness, Baltazar Capistrano, and not to any
of the defendants;

Despite the fact that it has been proved that the incident took place in the yard
of the defendants' house and not on the public road;

Despite the fact that Baltazar Capistrano deliberately concealed the place where
the deceased expired, fearing his participation in the tragedy should come to
light; and

Despite the fact that the chief of police acted with evident partiality towards
Cambaliza and Capistrano, in intervening immediately after the incident had
occurred, hiding the whip or riding crop, which the other local authorities found
hanging from the right arm of the deceased, and for the other reasons.

II. The trial court erred in finding the following facts: that Dominador Sotelo hit
the deceased across the mouth with the crop Exhibit B, Vicente Sotelo stabbed
him on the right shoulder with the penknife Exhibit D, and Constante Sotelo
stabbed him under the nipple.

III. The trial court erred in refusing to consider the plea of self-defense alleged
and proved by the defendant-appellant, Constante Sotelo, notwithstanding the
fact that said defense is strongly corroborated by Exhibits O, 5, and 4, which
form a part of the res gestae.

IV. The lower court erred in refusing to consider the motion of February 1, 1930,
declaring afterwards that, as the defendant has shown graphically, the latter
could not have touched the victim's left breast in stabbing him, or the wound
would not have been in the direction described in Dr. Nolasco's certificate; in
spite of the fact that it had made contrary declarations during the trial, which
estop it from making the subsequent holdings.

V. The trial judge erred in convicting the defendant appellant, Constante Sotelo.
The record shows that at about 8 o'clock in the evening of the 24th of
December, 1929, Ignacio Cambaliza started for the barrio of Ravadabia, in the
municipality of Narvacan, Ilocos Sur, accompanied by Baltazar Capistrano. They
took the provincial road leading to said barrio and as they approached the
Sotelo house, they bid the time of day, asking whether they might pass by,
according to the custom of the place. They were barely 20 meters away from
the house, when the defendant Constante Sotelo, who had just finished his
supper, descended from the house towards the road, and, from the entrance of
his yard, turned his flashlight on the passers-by to see who they were. When
Ignacio Cambaliza saw this, he walked back to where Constante Sotelo stood
and inquired why he turned his flashlight on them, and what it was he wanted,
winding up with a vulgar remark. When Constante's brothers, who were then in
the yard on the side of the road, saw Cambaliza's attitude, they approached
their brother to separate or defend him, whereupon Cambaliza's commenced
beating them with his iron crop, once striking Constante's arm. The brothers, in
turn, fell upon Cambaliza, Dominador striking him across the face with the stick
he carried, and Vicente wounding him in the right shoulder with a penknife. At
this juncture, Capistrano attempted to intervene, but he was warned by Vicente
and probably by Dominador also, for which reason he withdrew from the scene,
and the fight then continued between Cambaliza and Constante. In the course
of this fight, Constante thrust a penknife into Cambaliza at about the level of
the left nipple, producing a wound which penetrated the left lung into the left
ventricle of the heart, resulting in his death a few minute later.

Witness Baltazar Capistrano, who was with the deceased, says that after Ignacio
Cambaliza had fallen lifeless, he went over to the municipal building to ask for
help, and at once the chief of police, the justice of the peace, and the municipal
president repaired to the place where the incident had occurred, placing the
brothers under arrest that same night: Constante with a penknife, Vicente with
another penknife, and Dominador with a cane.

Doctor Antonio Nolasco examined Ignacio Cambaliza's body, and found a knife
wound at about the level of the left nipple, 2 1/2 centimeters long, and 2 1/2
inches deep; a knife wound on the outward surface of the right arm, 4
centimeters deep; and bruises at the base of the nose and on the upper lip,
produced by a blunt instrument. According to the doctor the breast wound
which pierced the left lung and the left ventricle of the heart was the cause of
Ignacio Cambaliza's death.

The appellant admits he inflicted the injury which resulted in Ignacio

Cambaliza's death, but maintains he did so in self-defense. In support of this
allegation it is insisted that the fight took place in the yard of the defendants'
house; that Vicente and Dominador went to help their brother Constante when
they saw Cambaliza attack him, but ran behind some sugar cane near by in
order to conceal themselves when pursued by Cambaliza; that the latter fought
hand to hand with Constante, choked him and threw himself upon him, and at
that instant Constante thrust a penknife into his ribs below the left nipple; that
Capistrano answered Cambaliza's call, saying that Constante had stabbed him,
and, with the assistance of Capistrano, Cambaliza succeeded in leaving the
Sotelo yard and after a few steps fell lifeless on the roadside, where his body
was later found.

After examining the evidence of record, we believe the defense is, in a measure,
supported by the testimony of Baltazar Capistrano given before the justice of
the peace of Narvacan. In considering this proof it is well to remember that the
justice of the peace of Narvacan testified in the case that Baltazar Capistrano
made two statements before him — in the investigation prior to the arrest of
the defendants, which is Exhibit 9, and in the course of the preliminary
investigation, embodied in Exhibit 10. Counsel for the defense attempted to
examine Capistrano on these two statements, but the fiscal objected, and the
court sustained the objection on the ground that the best evidence would be
Capistrano's own statements taken down in writing. Counsel then required the
fiscal to present said documents, and the latter delivered to him the
aforementioned Exhibits 9 and 10, which were offered in evidence by the
defense. The fiscal reiterated his objection to that evidence on the ground that
the documents were not identified; but the record shows that they had been
delivered by the fiscal himself to counsel for the defense, and he is therefore
precluded from setting up the lack of identification, whereupon the court
doubtless ruled them in, and the fiscal failed to take exception therefrom.

The record further shows that counsel for the appellant sought to have the
witness Capistrano explain the contradiction between his statement in Exhibit
10 and his testimony at the hearing, but the fiscal objected and the court
sustained the objection. Capistrano has thus failed to explain the contradiction
noted between Exhibit 10 and his testimony before the trial court.

We believe the trial judge erred in sustaining the fiscal's objection to having
witness Capistrano explain the contradiction between his statement in Exhibit
10, and his testimony before the trial court at the hearing. But be that as it may,
we are of opinion that said documents Exhibits 9 and 10 have been duly
introduced into the case as evidence for the defense and must therefore be
taken into consideration in rendering judgment.

In said Exhibit 10, witness Capistrano, among other things, affirms the following:
As we passed by Constante was flashlighting us and he was standing by the door
of their yard. I did not see any body by him. We were then about 20 meters
away from him when he rushed to us.

Ignacio was the first one who uttered bad words against Constante. Ignacio had
a whip wrapped with lead.

Other than this time I declared before the justice of the peace.

As Dominador came he struck Ignacio, but Ignacio defended. Vicente struck and
Constante rushed in and then they wrestled against each other and I tried to
separate them.

I was only 5 meters away from them when they first wrestled. It was dark at
that time but I saw what happened by the aid of my flashlight.

I am very sure that Exhibit A was the bar which Vicente was holding and Exhibit
B was the knife that Constante used in stabbing Ignacio.

While they were wrestling Constante was under Ignacio during which time, I
saw Constante bring out his knife.

The same witness testified before the trial court as follows:

Q. Do you know whether anything extraordinary took place along the road? —
A. Yes sir; for when we came near the house of Francisco Sotelo, we saw
Constante, Dominador, and Vicente Sotelo in the yard of the house. I and my
companion said "we are passing, sir," but they did not answer, and they focused
their flashlight on us. And when we came to within ten meters, they still kept
the flashlight focused on us, and then my companion said: "Why do you turn
your flashlight on us? Have we not greeted you in passing?"

Q. What did the Sotelo brothers, Constante, Dominador, and Vicente do when
they heard Ignacio Cambaliza say this? — A. After Ignacio Cambaliza had said
that, they switched off the light, and we continued on.
Q. What else? — A. After we had proceeded about 20 meters, someone came up
behind us with a flashlight saying: "Wait! your mother's . . .! you cannot say bad
words when you pass here."

Q. What else? — A. When they had said this, Ignacio Cambaliza stopped and
said: "I have used no bad word."

Ignacio Cambaliza interrupted Constante Sotelo saying "I did not say that." And
Dominador, in turn, said, "You didn't say anything, your mother's . . .!"

Q. And what did Dominador Sotelo do then? — A. Immediately after saying,

"you didn't say anything, your mothers . . .! he struck him across the face with a
stick.

xxx xxx xxx

Q. And what else happened? — A. After that blow delivered by Dominador

Sotelo, he was stunned. While he was so stunned, Vicente Sotelo stabbed him
with a penknife on the right shoulder; and Ignacio Cambaliza, still stunned,
turning about; and Constante Sotelo stabbed him in the region of the heart with
a penknife.

Comparing the two statements quoted above, it will be seen that the witness
Capistrano affirmed in Exhibit 10 that he saw Constante standing at the
entrance of his yard, alone; that the deceased was the first to make vulgar
remarks to Constante; and that during the fight Constante was under Cambaliza
when he drew his penknife to stab him. On the other hand, testifying before the
trial court, the said witness Capistrano stated that he and the deceased saw the
three brothers, Constante, Dominador, and Vicente Sotelo in the yard of the
house; that one of these brothers was the first to make insulting remarks to
Cambaliza, and that while the two brothers were attacking Cambaliza,
Constante stabbed him in the chest with a penknife.

We believe Capistrano's testimony appearing in Exhibit 10 as to Constante's

position when he wounded Cambaliza, must be accepted, not only because it
was given two days after the incident, but because it has been corroborated by
the witnesses for the defense. (U. S. vs. Capisonda, 1 Phil., 575; and U. S. vs.
Rafael, 23 Phil., 184.)
As to who started the aggression, there is an obvious contradiction between the
testimony of Capistrano and that of the witnesses for the defense. But in the
light of sound judgment, we are inclined to believe that the deceased started
the aggression, provoked by the offensive language used by Constante and his
brothers, imputing to him the utterance of vulgar language against them. In
such a situation the deceased naturally used his whip against those who were in
front of him, striking Constante's arm. We therefore believe this is a case of
incomplete self-defense, wherein the appellant was unlawfully attacked by the
deceased and compelled to employ reasonable means to defend himself, but he
is responsible for provoking the attack. (U. S. vs. Ancheta, 1 Phil., 30; U. S. vs.
McCray, 2 Phil., 545.) According to article 86 of the Penal Code the penalty next
below that provided in article 404 of said Code must be imposed upon the
appellant, that is, prision mayor in its minimum degree, or six years and one
day, with the accessories of law, and to indemnify the family of the deceased in
the amount of P500. And with this modification the judgment appealed from is
affirmed in all other respects, with costs against the appellant. So ordered.

-People vs. Gutierrez, 611 SCRA 633

G.R. No. 196960 March 12, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ERWIN TAMAYO y BAUTISTA, Appellant.

DECISION

ABAD, J.:

The City Prosecutor of Manila originally filed separate charges of homicide and
theft of a necklace worth ₱1,500.00 against accused Erwin Tamayo y Bautista
(Erwin) and John Del Rosario (John) before the Regional Trial Court (RTC) of
Manila in Criminal Cases 04-225922-23. Subsequently, however, the prosecution
amended the charge of homicide to one of murder, qualified by taking
advantage of superior strength and employing means to weaken the defense
and afford impunity. It also claimed the attendance of the aggravating
circumstances of treachery and evident premeditation.1 Trial took place only as
to Erwin since John jumped bail and remained at-large.2

The prosecution presented Norman Pleno (Norman), Wilson Quinto (Wilson),

Alvin Hernaez (Alvin), and Leonard Miranda (Leonard). They testified that in the
early morning of April 8, 2004, while Joey M. Obamen (Joey), Wilson, Alvin, and
Lorenzo Gloria (Lorenzo) were having drink and merriment beside the Iglesia Ni
Cristo (INC) chapel on Lacson Street in Tondo, Manila,3 someone hurled empty
bottles of gin at them.4 As Wilson went to look for whoever had done it, he saw
accused Erwin and John, in the company of several others, also having their
drink.5

Retaliating, Joey and his group threw stones and empty gin bottles at accused
Erwin and his companions.6 Enraged, the latter group gave chase to Joey and
the others with him. Unfortunately, Joey tripped on an iron chain that guarded
the INC’s parking area and fell to the ground.7 He was in this position when
Erwin and his companions attacked and mauled him. Some, including Erwin,
stabbed Joey with their knives. The assailants scampered away afterwards.8

Joey was rushed to the Jose Reyes Memorial Hospital but died shortly on
arrival.9 A subsequent autopsy of his body showed that he died of traumatic
injuries on the head and multiple stab wounds on the abdomen.10

In his defense, Erwin claimed that when the killing took place, he was asleep at
home with his wife and a certain Maricel Bustarde although it would take but
about 20 to 25 minutes to walk from his house to where the incident took
place.11 He also claimed that he and Norman, his wife’s former boyfriend and
one of the prosecution witnesses, had an altercation shortly before the killing
incident.12 This was the reason Norman testified falsely against him.13
On November 21, 2008 the RTC found accused Erwin guilty of murder but
innocent of the separate charge of theft.14 Although it did not find sufficient
evidence of treachery, evident premeditation, or employment of means to
weaken the defense and afford impunity, the RTC elevated the crime that Erwin
committed from homicide to murder based on its finding that abuse of superior
strength attended the killing. The RTC sentenced him to suffer the penalty of
reclusion perpetua and to pay Joey’s heirs ₱50,000.00 as civil indemnity,
₱36,981.85 as actual damages, and ₱50,000.00 as moral damages.15 Erwin
appealed the conviction.16

On November 19, 2010 the Court of Appeals (CA) affirmed the RTC Decision with
modification in that it further ordered Erwin to pay Joey’s heirs ₱30,000.00 as
exemplary damages,17 hence, the appeal to this Court.18

Accused Erwin claims that since about 15 men mauled Joey, it is "highly
possible" that the prosecution witnesses made a mistake in saying that it was
he who caused Joey’s death.19 Erwin cites several variances in the testimonies
of the prosecution witnesses that lend credit to his defense that he was
elsewhere when the incident took place.20 He also insists that Norman’s
testimony cannot be believed for being tainted with ill motives. Lastly, Erwin
contends that the CA and the RTC erred in finding that abuse of superior
strength qualified the killing of Joey to murder.21

But the Court has always been inclined, with few exceptions, to defer to the
findings of fact of the trial court since it had the opportunity to observe how
each witness expressed himself and whether his eyes agreed with his lips. The
Court finds nothing from the transcripts that would indicate that the trial court
and the CA misapprehended the facts.

The Court also finds no error in the RTC and the CA’s rejection of his
alibi.1âwphi1 The site of the murder was not far from where he lived. Besides,
he presented no corroborating testimony that he was then at his house. As to
his lament that the RTC and the CA should not have given credit to Norman’s
testimony for he had a grudge against him, Erwin presented no proof apart from
his word that this was so. At any rate, the accounts of the remaining
eyewitnesses were just as positive, straightforward, consistent, and clear. They
all testified that Erwin stabbed Joey with a knife.

Assuming that the prosecution witnesses failed to identify exactly who inflicted
the fatal wounds on Joey during the commotion, Erwin’s liability is not
diminished since he and the others with him acted with concert in beating up
and ultimately killing Joey. Conspiracy makes all the assailants equally liable as
co-principals by direct participation.22

Since about 15 men, including accused Erwin, pounced on their one helpless
victim, relentlessly bludgeoned him on the head, and stabbed him on the
stomach until he was dead, there is no question that the accused took
advantage of their superior strength.

In disposing the civil aspect of the case, the RTC correctly awarded to Joey's
heirs the amount of ₱36,981.85 as actual damages representing medical and
funeral expenses23 as this amount was adequately supported by the receipts.24
In addition, this Court sustains the award of ₱50,000.00 as civil indemnity,
₱50,000.00 as moral damages and ₱30,000.00 as exemplary damages given to
Joey's heirs for being in accord with established jurisprudence.25

With regard to the penalty, Article 248 of the Revised Penal Code, as amended
by Republic Act 9346,26 imposes the penalty of reclusion perpetua27 to death
for the crime of murder. In this case, the RTC correctly imposed28 reclusion
perpetua as the penalty for murder due to absence of any modifying
circumstance.29

WHEREFORE, the Court AFFIRMS in toto the Decision of the Court of Appeals in
CA-G.R. CR-H.C. 03851 dated November 19, 2010 which affirmed with
modification as to damages the Decision of the Regional Trial Court in Criminal
Cases 04-225922-23 dated November 21, 2008.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

People vs. Manulit, 635 SCRA 426

FIRST DIVISION

G.R. No. 192581 : November 17, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DENNIS D. MANULIT,

Accused-Appellant.

DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the November 26, 2009 Decision of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 03776[1] entitled People of the Philippines v. Dennis
D. Manulit, which affirmed the January 28, 2009 Decision[2] in Criminal Case No.
03-219494 of the Regional Trial Court (RTC), Branch 27 in Pasay City.

Accused-appellant Dennis D. Manulit stands convicted of the crime of Murder,

as defined and penalized under Article 248 of the Revised Penal Code
(RPC).craHe was sentenced to suffer the penalty of reclusion perpetua.
The Facts

The charge against accused-appellant stemmed from the following

Information:chanroblesvirtuallawlibrary

That on or about July 6, 2003, in the City of Manila, Philippines, the said
accused, armed with a firearm, with intent to kill, with treachery, did then and
there willfully, unlawfully and feloniously attack, assault and use personal
violence upon one Reynaldo Juguilon y Mansueto, by shooting the latter several
times and hitting him on the different parts of the body, thereby inflicting upon
the latter multiple gunshot wounds which were the direct and immediate cause
of his death thereafter.

Contrary to law.[3]cralaw

On November 10, 2008, accused-appellant was arraigned, and he pleaded “not

guilty” to the offense charged.[4] After pre-trial, trial on the merits ensued.

During trial, the prosecution presented as its witnesses Lydia Juguilon, Ralphy
Villadolid y Laguerta, Eduardo Juguilon, and Dr. Romeo T. Salen. On the other
hand, the defense presented accused-appellant; his cousin, Marvin Manulit;
Maria Fontillar-Liwanag; and Arlene Manulit-Intal as its witnesses.

The facts culled from the records are as follows:chanroblesvirtuallawlibrary

On July 6, 2003, at around 9:00 p.m., Anabel Bautista and her live-in partner,
Reynaldo Juguilon, were walking along Dagupan Extension, Tondo, Manila on
their way home when they passed by accused-appellant Manulit, who was
sitting in front of his house across the barangay hall. Upon seeing them, Manulit
stood up and successively shot Reynaldo at the back, resulting in the latter’s
death. He then tucked the gun in his waist, raised his hands, and shouted, “O,
wala akong ginawang kasalanan at wala kayong nakita.” (I did not do anything
wrong, and you saw nothing.) And he ran towards the direction of the
basketball court adjoining the barangay hall.

Lydia Juguilon, Manulit’s aunt and the victim’s sister-in-law, saw what
happened but kept quiet about it until, bothered by her conscience, she decided
to issue a statement before the prosecutor of Manila.[5] She said that, on the
date and time of the incident, she went out of her house to buy some snacks in
a nearby store. She saw Manulit in front of his house, while Reynaldo was
walking two arms length ahead of Anabel towards the direction of their house.
The place was well lighted.[6] Suddenly, she heard a gunshot, and when she
turned her head to where the sound came from, she saw Manulit firing
successive shots at Reynaldo’s back until Reynaldo fell to the ground.[7] She
was then three to four meters away from Reynaldo.[8] Afterwards, Manulit
shouted, “Wala kayong nakita, wala akong ginawa kay Boyet,”[9] and tucked
the gun back to his waist.[10] She further stated that Reynaldo is the brother of
her husband, while Manulit is her nephew being the son of her elder brother.
[11] She explained that during the wake, she kept quiet about the incident; and
she went to Tarlac afterwards to keep her silence, but her conscience kept
bothering her.[12]cralaw

Ralphy Villadolid, another witness, corroborated Lydia’s testimony.[13] Ralphy

was walking along Dagupan Extension, Tondo, Manila when he saw the victim,
Reynaldo, on his way home. Ralphy was near the barangay hall when he saw
Manulit seated at the ground floor of his house. Manulit suddenly stood up and
followed Reynaldo, after which Manulit pulled out a gun and shot Reynaldo
several times, causing him to fall to the ground. Thereafter, Manulit
immediately fled while shouting, “O, wala akong ginawang kasalanan, ha. Wala
kayong nakita.” Frightened, Ralphy sought cover behind a parked motorcycle
and came out only when Manulit was gone. He immediately prepared an
affidavit regarding the incident, but only submitted it to the authorities a week
after the incident.

Reynaldo’s father, Eduardo Juguilon, testified as to the funeral and other

miscellaneous expenses he incurred due to the death of his son.[14]cralaw

Dr. Romeo T. Salen, Medico-Legal Officer of the Manila Police District Crime
Laboratory, testified that he conducted the autopsy on the cadaver of Reynaldo.
[15] Upon inspection, Dr. Salen found that Reynaldo sustained four (4) gunshot
wounds––two (2) at the back and two (2) at his right hand.[16] The gunshot
wounds on the back exited at the neck and armpit and both were enough to
cause the death of the victim.[17] The trial court presented his testimony,
thus:chanroblesvirtuallawlibrary

1. Gunshot wound, thru and thru, point of entry, left scapular region, measuring
0.5 by 0.4 cm, 12 cm from the posterior midline with an abraded collar,
measuring 0.4 cm inferiorly directed anteriorwards, upwards and medialwards,
fracturing the 4th left thoracic ribs, lacerating the lower lobe of the left lung, the
larynx, trachea, making a point of exit at the neck, measuring 1.2 [by] 0.8 cm.
2. Gunshot wound thru and thru, point of entry, right scapular region,
measuring 0.5 by 0.4 cm, 13 cm from the posterior midline with an abraded
collar, measuring 0.2 cm, superiorly directed anteriorwards, downwards, and
medialwards, fracturing the scapula and 4th right thoracic ribs, lacerating the
upper and lower lobes of the right lung, making a point of exit at the left
postaxillary region, measuring 1 by 0.6 cm, 18 cm from the posterior midline.

3. Gunshot wound thru and thru, point of entry, middle third of the right arm,
measuring 0.5 by 0.4 cm, along its anterior midline, directed posteriorwards,
downwards, and lateralwards, lacerating the soft tissues and muscle, making [a]
point of exit at the distal 3rd of the right arm, measuring 1 by 0.6 cm, from its
anterior midline.

4. Gunshot wound thru and thru, point of entry, distal 3rd of the left forearm,
measuring 0.5 by 0.4 cm, 3 cm from its posterior midline, directed
anteriorwards, upwards, lacerating the soft tissues and muscle, making a point
of exit at the proximal 3rd left of the left arm, measuring 1 by 0.8 cm, from its
posterior midline.[18]cralaw

In his defense, Manulit offered a story of self-defense. He testified that on July

6, 2006, at about 9:00 p.m., he asked his cousin, Marvin Manulit, to have a drink
with him. While they were drinking, Reynaldo barged in holding a gun with both
his hands.[19] He appeared not to be his normal self with reddish eyes, as if
high on drugs.[20] Reynaldo poked the gun at Manulit and said, “Ano,
Dennis.”[21] Manulit stood up and countered, “Anong ano?”[22] They then
grappled for the possession of the gun until they reached the alley near the
barangay hall where Manulit got hold of the gun.[23] Suddenly, Reynaldo
opened a fan-knife.[24] This caused Manulit to shoot Reynaldo several times,
causing him to turn around.[25] He dropped the gun and went straight to the
house of his parents and told them what happened.[26] His cousin, Marvin
Manulit, corroborated his testimony.[27]cralaw

The other defense witness, Maria Fontillar-Liwanag, testified that the victim had
been involved in several mischiefs but that she had no personal knowledge of
the incident.[28] On the other hand, Arlene Manulit-Intal, sister of Manulit,
testified that her brother was inside the house drinking liquor with Marvin
Manulit. When she heard a gun fired, she hid and saw nothing. She later learned
from others that Reynaldo was shot dead.[29]cralaw

Ruling of the Trial Court

After trial, the RTC convicted Manulit. The dispositive portion of its January 28,
2009 Decision reads:chanroblesvirtuallawlibrary

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding

accused Dennis Manulit y Diwa, Guilty beyond reasonable doubt of the crime of
murder, treachery being attendant to qualify the killing, and hereby sentences
him to suffer the penalty of reclusion perpetua, to indemnify the heirs of the
victim the sum of P50,000.00, to pay them the additional sum of P50,000.00 as
moral damages and P29,000.00 as actual damages and to pay the costs.

SO ORDERED.[30]cralaw

Ruling of the Appellate Court

On November 26, 2009, the CA affirmed the judgment of the lower court. It held
that accused-appellant failed to prove the presence of unlawful aggression,
which is one of the key elements of self-defense. The dispositive portion of the
CA Decision reads:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, finding no error committed by the trial court

in arriving at the assailed decision, the same is hereby AFFIRMED and the appeal
is hereby DISMISSED for lack of merit.

SO ORDERED.[31]cralaw

The Issues

Manulit contends in his Brief that:chanroblesvirtuallawlibrary

THE TRIAL COURT ERRED IN REJECTING THE ACCUSED-APPELLANT’S SELF-

DEFENSE;

II
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF
TREACHERY AGAINST THE ACCUSED-APPELLANT;

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT.[32]cralaw

The Court’s Ruling

The appeal has no merit.

Unlawful aggression is absent

In his Brief, accused-appellant argues that the trial court failed to appreciate the
facts properly as he only acted in self-defense. He contends that unlawful
aggression was present when the victim barged into his house for no apparent
reason and started to point a gun at him.

We do not agree.

The essential elements of self-defense are: (1) unlawful 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 of the
person resorting to self-defense.[33] The person who invokes self-defense has
the burden of proof of proving all the elements.[34] More importantly, “to
invoke self-defense successfully, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who was then
forced to inflict severe wounds upon the assailant by employing reasonable
means to resist the attack.”[35]cralaw

Although all of the three elements must concur, unlawful aggression must be
proved first in order for self-defense to be successfully pleaded, whether
complete or incomplete. In other words, “[t]here can be no self-defense,
whether complete or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense.”[36]cralaw
Unlawful aggression is an actual physical assault, or at least a threat to inflict
real imminent injury, upon a person.[37] In case of threat, it must be offensive
and strong, positively showing the wrongful intent to cause injury.[38] It
“presupposes actual, sudden, unexpected or imminent danger––not merely
threatening and intimidating action.”[39] It is present “only when the one
attacked faces real and immediate threat to one’s life.”[40]cralaw

In the instant case, accused-appellant failed to prove the existence of unlawful

aggression. He wants this Court to believe that the victim was the aggressor, not
him. In his testimony, he stated that while he and his cousin were drinking at
the ground floor of his house, the victim suddenly barged in and poked a gun at
him. They grappled for the gun and when he was able to obtain possession of it,
the victim opened a fan-knife. This resulted in his act of shooting down the
victim.

The Court is not convinced. After a careful perusal of the records of this case,
this Court finds no plausible reason to question the trial court’s assessment of
the credibility of the witnesses. It is well-entrenched in our jurisprudence “that
the assessment of the credibility of witnesses and their testimonies is a matter
best undertaken by the trial court because of its unique opportunity to observe
the witnesses first hand and note their demeanor, conduct and attitude under
grilling examination.”[41] This rule is even more binding and conclusive when
the trial court’s assessment is affirmed by the appellate court.[42]cralaw

In finding accused-appellant guilty, the trial court found the testimonies of the
prosecution witnesses credible, while it found the testimony of accused-
appellant very self-serving, viz:chanroblesvirtuallawlibrary

The testimonies of the above-mentioned prosecution witnesses were given at

the earliest possible opportunity. They testified unflinchingly thereon. There
was no material discrepancy between their written statement/affidavit and the
testimonies they gave in open court. It was not shown that they had ill motive
that drove them to make false accusations against the accused. In the case of
Lydia Juguilon, she is closely related to both the accused and the victim. Accused
is her nephew being the son of her elder brother while the victim was her
brother in law being the younger brother of her husband. There is no showing of
any reason for her to testify for one against the other. Thus, the Court gives
testimonies of the said witnesses full faith and credit. In contrast, accused did
not bother to give his version of what happened to the investigating authorities.
Right after the shooting incident, he fled and went into hiding. He was arrested
some five (5) years later by virtue of the warrant of arrest issued by this Court.
Moreover, accused’s claim for self-defense was belied by the number and
location of the gunshot wounds sustained by the victim.[43] x x x
Clearly, the trial court is correct in finding no ill motive on the part of any of the
prosecution witnesses. The presumption is that their testimonies were not
moved by any ill will and was untainted by bias, and, thus, entitled to full faith
and credit.[44]cralaw

Moreover, the fact that accused-appellant fled and was only arrested five years
later belies his claim of innocence. In People v. Deduyo, this Court said that
flight by the accused clearly evinces “consciousness of guilt and a silent
admission of culpability. Indeed, the wicked flee when no man pursueth, but
the innocent are as bold as lion.”[45]cralaw

Therefore, since no unlawful aggression was present, accused-appellant cannot

successfully invoke self-defense.

Treachery is evident

In addition, accused-appellant argues that treachery should not have been

appreciated by the trial court considering that the victim was armed with a gun
at the time of the incident. And even after accused-appellant obtained
possession of the gun, the victim had a fan-knife.

We disagree.

Paragraph 16 of Art. 14 of the RPC defines treachery as the direct employment

of means, methods, or forms in the execution of the crime against persons
which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the offended party might make. In
order for treachery to be properly appreciated, two elements must be present:
(1) at the time of the attack, the victim was not in a position to defend himself;
and (2) the accused consciously and deliberately adopted the particular means,
methods, or forms of attack employed by him.[46] The “essence of treachery is
the sudden and unexpected attack by an aggressor on the unsuspecting victim,
depriving the latter of any chance to defend himself and thereby ensuring its
commission without risk of himself.”[47]cralaw

In the case at bar, the victim was only walking along the street when accused-
appellant suddenly shot him at the back several times. He had no opportunity to
defend himself, because he had no inkling that an attack was forthcoming. It
likewise appears that the means was deliberately planned. What is decisive is
that the attack was executed in a manner that the victim was rendered
defenseless and unable to retaliate.[48] Evidently, treachery attended the
killing.

Noteworthy also is the fact that accused-appellant harbored a deep-seated

grudge against the victim, since the victim filed a case against accused-appellant
before the Office of the City Prosecutor.

In conclusion, all the elements of the crime of murder, as defined in par. 1, Art.
248 of the RPC, were successfully proved: (1) that a person was killed; (2) that
the accused killed that person; (3) that the killing was attended by treachery;
and (4) that the killing is not infanticide or parricide.[49]cralaw

Verily, in criminal cases such as this one, the prosecution is not required to show
the guilt of the accused with absolute certainty. Only moral certainty is
demanded, or that degree of proof which, to an unprejudiced mind, produces
conviction.[50] We find that the prosecution has discharged its burden of
proving the guilt of accused-appellant for the crime of murder with moral
certainty.

With respect to the award of damages, in line with our ruling in People v.
Satonero,[51] when the imposable penalty is death but cannot be imposed
because of Republic Act No. 9346 or An Act Prohibiting the Imposition of Death
Penalty in the Philippines, and, instead, the penalty imposed is reclusion
perpetua, the following amounts are to be imposed: PhP 75,000 as civil
indemnity, PhP 75,000 as moral damages, and PhP 30,000 as exemplary
damages. And interest at the rate of six percent (6%) should likewise be added.
[52]cralaw

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No.

03776 finding accused-appellant Dennis Manulit guilty of the crime charged is
AFFIRMED with MODIFICATION. In addition to the sum of PhP 29,000 as actual
damages awarded to the heirs of the victim, we increase the awards of civil
indemnity to PhP 75,000 and moral damages to PhP 75,000. Accused-appellant
is likewise sentenced to pay the victim’s heirs the amount of PhP 30,000 as
exemplary damages, with interest at the rate of six percent (6%) from the
finality of this Decision until fully paid.

- People v. Narvaez, GR L-33466-67

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which,
after a joint trial, resulted in the conviction of the accused in a decision
rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating

circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the

crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P
12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00
as attorney's fees, the offended party having been represented by a private
prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00
as compensatory damages, P10,000.00 as moral damages, P2,000.00 as
attorney's fees, the offended party having been represent by a private
prosecutor, and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano
and Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano
Rubia, were fencing the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and the hacienda
owned by George Fleischer. This is located in the municipality of Maitum, South
Cotabato. At the place of the fencing is the house and rice drier of appellant
Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was
taking his rest, but when he heard that the walls of his house were being
chiselled, he arose and there he saw the fencing going on. If the fencing would
go on, appellant would be prevented from getting into his house and the
bodega of his ricemill. So he addressed the group, saying 'Pare, if possible you
stop destroying my house and if possible we will talk it over what is good,'
addressing the deceased Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting
him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a
gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133,
t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of the
shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer was
the secretary-treasurer and deceased Rubia the assistant manager, on the one
hand, and the land settlers of Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the
Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on
certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:

Appellant was among those persons from northern and central Luzon who went
to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a
separate municipality of South Cotabato. He established his residence therein,
built his house, cultivated the area, and was among those who petitioned then
President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for
distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an

American landowner in Negros Oriental, filed sales application No. 21983 on
June 3, 1937 over the same area formerly leased and later abandoned by
Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey, only
300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set
aside for Sales Application No. 21983, while the rest were subdivided into
sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33,
G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company
was declared open for disposition, appraised and advertised for public auction.
At the public auction held in Manila on August 14, 1948, Fleischer and Company
was the only bidder for P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an investigator
was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon
Atty. Gozon came back after ten days with an amicable settlement signed by the
representative of the settlers. This amicable settlement was later repudiated by
the settlers, but the Director of Lands, acting upon the report of Atty. Gozon,
approved the same and ordered the formal award of the land in question to
Fleischer and Company. The settlers appealed to the Secretary of Agriculture
and Natural Resources, who, however, affirmed the decision in favor of the
company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose of
annulling the order of the Secretary of Agriculture and Natural Resources which
affirmed the order of the Director of Lands awarding the contested land to the
company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the part
of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R)
which likewise affirmed on August 16, 1965 the decision of the Court of First
Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who, to
avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963
near the highway. The second house is not far from the site of the dismantled
house. Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his former
residence to the house near the highway. Aside from the store, he also had a
rice mill located about 15 meters east of the house and a concrete pavement
between the rice mill and the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose
V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First
Instance of Cotabato, Branch I. to obtain an injunction or annulment of the
order of award with prayer for preliminary injunction. During the pendency of
this case, appellant on February 21, 1967 entered into a contract of lease with
the company whereby he agreed to lease an area of approximately 100 to 140
square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits
for Defense) for a consideration of P16.00 monthly. According to him, he signed
the contract although the ownership of the land was still uncertain, in order to
avoid trouble, until the question of ownership could be decided. He never paid
the agreed rental, although he alleges that the milling job they did for Rubia was
considered payment. On June 25, 1968, deceased Fleischer wrote him a letter
with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of
land in which your house and ricemill are located as per agreement executed on
February 21, 1967. You have not paid as as even after repeated attempts of
collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have
no alternative but to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water
pitcher pumps from the land of Fleischers & Co., Inc. This six- month period shall
expire on December 31, 1966.

In the event the above constructions have not been removed within the six-
month period, the company shall cause their immediate demolition (Exhibit 10,
p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced
fencing Lot 38 by putting bamboo posts along the property line parallel to the
highway. Some posts were planted right on the concrete drier of appellant,
thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the
last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence,
when finished, would have the effect of shutting off the accessibility to
appellant's house and rice mill from the highway, since the door of the same
opens to the Fleischers' side. The fencing continued on that fateful day of
August 22, 1968, with the installation of four strands of barbed wire to the
posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall of
his house was being chiselled. Getting up and looking out of the window, he
found that one of the laborers of Fleischer was indeed chiselling the wall of his
house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing
the barbed wire and deceased Fleischer was commanding his laborers. The jeep
used by the deceased was parked on the highway. The rest of the incident is
narrated in the People's Brief as above-quoted. Appellant surrendered to the
police thereafter, bringing with him shotgun No. 1119576 and claiming he shot
two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following
errors:

First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he did
so in defense of his person and of his rights, and therefore he should be exempt
from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under

Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated,
the following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself
(Art. 11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased

Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to
his request addressed to his compadre, the deceased Rubia, when he said,
"Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-
229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the
wall of his house being chiselled. The verbal exchange took place while the two
deceased were on the ground doing the fencing and the appellant was up in his
house looking out of his window (pp. 225-227, supra). According to appellant,
Fleischer's remarks caused this reaction in him: "As if, I lost my senses and
unknowingly I took the gun on the bed and unknowingly also I shot Mr.
Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the
shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the
shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr.
Rubia ran towards the jeep and knowing that there was a firearm in the jeep
and thinking that if he will take that firearm he will kill me, I shot at him (p. 132,
supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the

prosecution. They claim, however, that the deceased were in lawful exercise of
their rights of ownership over the land in question, when they did the fencing
that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence

reveals that five persons, consisting of the deceased and their three laborers,
were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo
cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not
disputed that the jeep which they used in going to the place was parked just a
few steps away, and in it there was a gun leaning near the steering wheel.
When the appellant woke up to the sound of the chiselling on his walls, his first
reaction was to look out of the window. Then he saw the damage being done to
his house, compounded by the fact that his house and rice mill will be shut off
from the highway by the fence once it is finished. He therefore appealed to his
compadre, the deceased Rubia, to stop what they were doing and to talk things
over with him. But deceased Fleischer answered angrily with 'gademit' and
directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the
fencing would have resulted in the further chiselling of the walls of appellant's
house as well as the closure of the access to and from his house and rice mill-
which were not only imminent but were actually in progress. There is no
question, therefore, that there was aggression on the part of the victims:
Fleischer was ordering, and Rubia was actually participating in the fencing. This
was indeed aggression, not on the person of appellant, but on his property
rights.

The question is, was the aggression unlawful or lawful? Did the victims have a
right to fence off the contested property, to destroy appellant's house and to
shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in
the Court of First Instance of Cotabato. The parties could not have known that
the case would be dismissed over a year after the incident on August 22, 1968,
as it was dismissed on January 23, 1970 on ground of res judicata, in view of the
dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for
the annulment of the award to the company, between the same parties, which
the company won by virtue of the compromise agreement in spite of the
subsequent repudiation by the settlers of said compromise agreement; and that
such 1970 dismissal also carried the dismissal of the supplemental petition filed
by the Republic of the Philippines on November 28, 1968 to annul the sales
patent and to cancel the corresponding certificate of title issued to the
company, on the ground that the Director of Lands had no authority to conduct
the sale due to his failure to comply with the mandatory requirements for
publication. The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968, nothing
more was done by the petitioner Republic of the Philippines except to adopt all
the evidence and arguments of plaintiffs with whom it joined as parties-
plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a

favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his
execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21,
1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the
place because even though we do not know who really owns this portion to
avoid trouble. To avoid trouble we better pay while waiting for the case because
at that time, it was not known who is the right owner of the place. So we
decided until things will clear up and determine who is really the owner, we
decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's entrance and exit to the
highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as

long as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing must invoke the aid
of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court (Articles
536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy

or cause damage to appellant's house, nor to close his accessibility to the
highway while he was pleading with them to stop and talk things over with him.
The assault on appellant's property, therefore, amounts to unlawful aggression
as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of

immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property
which he had the right to resist, pursuant to Art. 429 of the Civil Code of the
Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use
such force as may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his property (Emphasis
supplied).

The reasonableness of the resistance is also a requirement of the justifying

circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from his
window, killing his two victims, his resistance was disproportionate to the
attack.

WE find, however, that the third element of defense of property is present, i.e.,
lack of sufficient provocation on the part of appellant who was defending his
property. As a matter of fact, there was no provocation at all on his part, since
he was asleep at first and was only awakened by the noise produced by the
victims and their laborers. His plea for the deceased and their men to stop and
talk things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since
not all the elements for justification are present. He should therefore be held
responsible for the death of his victims, but he could be credited with the
special mitigating circumstance of incomplete defense, pursuant to paragraph 6,
Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of

treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant from
any defense that the party assailed might have made. This cannot be said of a
situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil.
481).

WE likewise find the aggravating (qualifying) circumstance of evident

premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was
drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing,
Maitum, South Cotabato, when the accused and his wife talked to him. Mrs.
Narvaez asked him to help them, as he was working in the hacienda. She further
told him that if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer
because there will be nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they
were only Idle threats designed to get him out of the hacienda (pp. 297-303,
t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating

circumstance of evident premeditation. As WE have consistently held, there
must be "direct evidence of the planning or preparation to kill the victim, .... it is
not enough that premeditation be suspected or surmised, but the criminal
intent must be evidenced by notorious outward acts evincing the determination
to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be
a "showing" that the accused premeditated the killing; that the culprit clung to
their (his) premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to reflect
upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the

deceased Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing, and
clung to his premeditated act, the trial court's conclusion as to the presence of
such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims

to stop the fencing and destroying his house and to talk things over just before
the shooting.

But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to
the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the
crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed. Not
only was his house being unlawfully violated; his business was also in danger of
closing down for lack of access to the highway. These circumstances, coming so
near to the time when his first house was dismantled, thus forcing him to
transfer to his only remaining house, must have so aggravated his obfuscation
that he lost momentarily all reason causing him to reach for his shotgun and fire
at the victims in defense of his rights. Considering the antecedent facts of this
case, where appellant had thirty years earlier migrated to this so-called "land of
promise" with dreams and hopes of relative prosperity and tranquility, only to
find his castle crumbling at the hands of the deceased, his dispassionate plea
going unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not
being attended by any qualifying nor aggravating circumstance, but extenuated
by the privileged mitigating circumstance of incomplete defense-in view of the
presence of unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic mitigating
circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as
reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or
two degrees shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same. Considering that
the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under
paragraph 5 of Article 64, the same may further be reduced by one degree, i.e.,
arresto mayor, because of the presence of two mitigating circumstances and no
aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs.
Pan American World Airways (43 SCRA 397), the award for moral damages was
reduced because the plaintiff contributed to the gravity of defendant's reaction.
In the case at bar, the victims not only contributed but they actually provoked
the attack by damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal councilor,
the victims' actuations were apparently designed to humiliate him and destroy
his reputation. The records disclose that his wife, councilor Feliza Narvaez, was
also charged in these two cases and detained without bail despite the absence
of evidence linking her to the killings. She was dropped as a defendant only
upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim.
Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal
Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer
and Company, despite its extensive landholdings in a Central Visayan province,
to extend its accumulation of public lands to the resettlement areas of
Cotabato. Since it had the capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's resettlement
program, but had no sufficient means to fight the big landowners, were the
ones prejudiced. Thus, the moral and material suffering of appellant and his
family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted

of prision correccional or arrests mayor and fine who has no property with
which to meet his civil liabilities to serve a subsidiary imprisonment at the rate
of one (1) day for each P 2.50. However, the amendment introduced by Republic
Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines
only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act
5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF

ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS
HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER
AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST

FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-
Herrera, Escolin Vasquez and Relova, JJ., concur.

Aquino, J., is on leave.

Plana, J., in the result.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful

aggression on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to

dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides
that the owner or legal possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that
an attack on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically defended is only
property.

Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on
the person of one entrusted with said property. The defense of property,
whether complete or incomplete, to be available in prosecutions for murder or
homicide must be coupled with an attack by the one getting the property on the
person defending it.

In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance
"No, gademit proceed, go ahead" is not the unlawful aggression which entitles
appellant to the pela of self-defense. I agree with the majority opinion that the
crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum
the sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia
of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14)
years now since August 22, 1968, he has served the penalty and should be
released.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful

aggression on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to

dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides
that the owner or legal possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that
an attack on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically defended is only
property.

Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on
the person of one entrusted with said property. The defense of property,
whether complete or incomplete, to be available in prosecutions for murder or
homicide must be coupled with an attack by the one getting the property on the
person defending it.

In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance
"No, gademit proceed, go ahead" is not the unlawful aggression which entitles
appellant to the pela of self-defense. I agree with the majority opinion that the
crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum
the sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia
of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14)
years now since August 22, 1968, he has served the penalty and should be
released.

Defense of relatives
- People vs. Agacer, 662 SCRA 461 (2011)

G.R. No. 177751 December 14, 2011

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
FLORENCIO AGACER, EDDIE AGACER, ELYNOR AGACER, FRANKLIN AGACER and
ERIC* AGACER, Appellants.

DECISION
DEL CASTILLO, J.:

This case involves a man who was killed by his own relatives. Convicted for the crime of
murder by the lower courts, the indicted relatives are now before us assailing their guilty
verdict.

Factual Antecedents

This is an appeal from the November 17, 2006 Decision1 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 01543, affirming with modification the August 7, 2001 Decision2 of
the Regional Trial Court, Branch 8, Aparri, Cagayan which found appellants Florencio
Agacer (Florencio), Franklin Agacer (Franklin), Elynor Agacer (Elynor), Eric Agacer (Eric)
and Eddie Agacer (Eddie), guilty beyond reasonable doubt of the crime of murder for the
killing of Cesario Agacer (Cesario).

As mentioned, all the appellants were related to Cesario. Florencio was Cesario’s
nephew and is the father of Franklin while the brothers Elynor, Eric and Eddie are his
nephews.

On March 2, 1999, an Information3 for Murder was filed against the five appellants, the
accusatory portion of which reads as follows:

That on or about April 2, 1998, in the municipality of Sta. Ana, Province of Cagayan, and
within the jurisdiction [of] this Honorable Court, the above-named accused, armed with a
long firearm, a bow and arrow, a bolo and stones, with intent to kill, with evident
premeditation and with treachery, conspiring together and helping one another, did then
and there wilfully, unlawfully and feloniously assault, attack, stone and shoot one
Cesario Agacer, inflicting upon the latter [bruises] and multiple gunshot wounds in his
body which caused his death.

That the killing was aggravated by the use of an unlicensed firearm.

CONTRARY TO LAW.4

On October 14, 1999, Florencio, Elynor, Franklin and Eric entered separate pleas of "not
guilty" during their arraignment.5 On January 11, 2000, Eddie likewise pleaded "not
guilty".6 Thereafter, trial ensued.

Version of the Prosecution

The prosecution’s version of the events is as follows:

Cesario was a 55-year old farmer and owner of a ricefield situated in Dungeg, Santa Ana,
Cagayan. On April 2, 1998, at around 9:00 a.m., he was clearing a section of his farm and
preparing the beddings for the rice seedlings intended for the coming planting season.
Farm laborers Genesis Delantar (Genesis), his brother Andy, Rafael Morgado and
brothers Roden (Roden) and Ric (Ric) Vallejo were nearby in a separate section of the
same ricefield harvesting Cesario’s palay.
According to prosecution witnesses Genesis and Roden, it was at that moment while
Cesario was tending to his farm when appellants suddenly emerged from a nearby
banana plantation and surrounded Cesario. Visibly intimidated, Cesario moved
backwards and retreated to where the other farm laborers were working. However,
Franklin set afire the rice straws that covered Cesario’s rice seedlings. This prompted
Cesario to return to put out the fire and save his rice seedlings. At this point, Franklin
and Eric started throwing stones at Cesario which forced the latter to retreat again.
Thereafter, Florencio, while standing side by side with Eric, signaled Cesario to come
closer. Cesario obliged but when he was just around five meters away from the group,
Eddie suddenly pulled out a gun concealed inside a sack and, without warning, shot
Cesario hitting him in the left portion of his chest. Almost simultaneously, Elynor took
aim at Cesario with his bow and arrow but missed his mark. As Cesario fell, appellants
fled towards the irrigation canal, where another gunshot rang. Thereafter, a short firearm
was thrown from where the appellants ran towards the direction of Cesario’s fallen body.
Appellants then immediately left the scene of the crime onboard a hand tractor and a
tricycle.

After these events unfolded, Genesis and the other farm laborers scampered away in
different directions. Genesis then reached Barangay Capanikian and informed Cesario’s
son, Neldison Agacer (Neldison), of the death of his father. At around 3:00 p.m.,
Cesario’s friends in said barangay went to the scene of the crime and retrieved his
corpse. During the autopsy, a total of eight entrance wounds were found, mostly on the
chest of Cesario’s cadaver. According to the Medico-Legal Officer, the fatal gunshot
wounds were inflicted by the use of a firearm capable of discharging several slugs
simultaneously.

Version of the Defense

The appellants denied the accusations against them and claimed that Florencio only
acted in self-defense and in defense of relatives. As proof, appellants presented
Florencio who testified that on April 2, 1998, he proceeded to Dungeg, Sta. Ana, Cagayan,
from his residence in Merde, also in Sta. Ana, Cagayan, to prepare seed beddings in the
ricefield over which he and his uncle Cesario had an existing dispute. At around 8:00
a.m., he claimed that Cesario attempted to prevent him from preparing the seed beds.
When Florencio persisted and argued that he inherited the land from his father, Cesario
departed through a cogonal area. Moments later, Cesario returned and shouted at him
not to continue working on the land. At that time, Florencio noticed that Cesario was
holding an object. Suspecting that Cesario may be armed, he shouted to Eric, Franklin,
Eddie and Elynor, who had just arrived, to run away. The four heeded his warning and
scampered in different directions. Cesario then chased Florencio who ran and jumped
into the irrigation canal to hide in the tall cogon grasses. However, Cesario was not
deterred and continued to search for him. When Florencio saw that Cesario was already
close, he suddenly grabbed Cesario’s buckshot gun and successfully disarmed him.
Thereupon, Cesario drew another firearm and shot Florencio several times. As Cesario
was shooting him, Florencio also fired the gun he earlier grabbed from Cesario and hit
the latter. Finding out that he too was hit in the arm, he shouted to his nephews for help.
They responded by taking him to a hospital for treatment. On April 16, 1998, he went to
the police to surrender.

Elynor and Eddie corroborated this version in their respective testimonies.7

Ruling of the Trial Court

The trial court found the prosecution’s evidence sufficient to prove

appellants’ guilt beyond reasonable doubt. It held that appellants acted in conspiracy in
inflicting upon Cesario, in a treacherous manner, multiple gunshot wounds. However, the
trial court did not appreciate evident premeditation as a qualifying aggravating
circumstance for failure to establish its elements as clearly as the criminal act itself. It
also did not consider as aggravating circumstance the use of an unlicensed firearm
since the firearm used in the killing was not presented in evidence.

The dispositive portion of the trial court’s Decision8 of August 7, 2001, reads:

WHEREFORE, the Court finds all the accused FLORENCIO AGACER, EDDIE AGACER,
ELYNOR AGACER, FRANKLIN AGACER and ERIC AGACER GUILTY beyond reasonable
doubt of the crime of MURDER qualified [by] treachery and hereby sentence[s] them to:

1. suffer the penalty of reclusion perpetua with all the accessory penalties;

2. indemnify the heirs of the victim, the amount of ₱75,000.00 as death indemnity; the
amount of ₱40,000.00 as actual damages and the amount of ₱30,000.00 as and by way of
Attorney’s fees.

3. pay the costs of litigation.

SO ORDERED.9

Appellants filed a Notice of Appeal,10 which was approved by the trial court in its
Order11 of August 17, 2001. Pursuant thereto, the records of the case were elevated to
this Court. However, in view of the Court’s ruling in People v. Mateo12 allowing an
intermediate review by the CA where the penalty involved is death, reclusion perpetua as
in this case, or life imprisonment, the case was transferred to said court for appropriate
action and disposition.13

Ruling of the Court of Appeals

The CA affirmed the ruling of the trial court in all respects. It also awarded moral
damages pursuant to the rule laid down in People v. Dela Cruz14 and People v. Panela.15
The dispositive portion of the November 17, 2006 Decision16 of the CA reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered DENYING the instant

appeal, and accordingly AFFIRMING in toto the herein impugned August 7, 2001 Decision
of the RTC, Branch 08, of Aparri, Cagayan. Additionally, the amount of P50,000.00 is
hereby awarded in favor of Cesario Agacer’s surviving heirs as and by way of moral
damages pursuant to the doctrine in the cases of Dela Cruz and Panela, as heretofore
stated.

SO ORDERED.17

Hence, the present appeal.

Assignment of Errors

In their Brief,18 appellants assigned the following errors:

THE LOWER COURT ERRED IN FINDING THAT CONSPIRACY EXISTED [AMONG] THE
HEREIN ACCUSED-APPELLANTS IN THE KILLING OF CESARIO AGACER.

II

THE LOWER COURT LIKEWISE ERRED IN FINDING THAT

TREACHERY AS A QUALIFYING CIRCUMSTANCE ATTENDED THE COMMISSION OF THE

CRIME.

III

THE LOWER COURT FINALLY ERRED IN FINDING THAT THE ACCUSED-APPELLANTS’

GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT.19

Appellants contend that both lower courts erred in finding that they conspired to kill
Cesario. They argue that there was no evidence sufficient to establish their intentional
participation in the crime to achieve a common purpose. Thus, they claim that the
criminal culpability arising from their acts, even if the same were all directed solely
against one victim, is individual and not collective. Put differently, each of them is liable
only for his own acts.

Appellants also contend that treachery did not attend the commission of the crime. They
assert that treachery cannot be appreciated when an altercation precedes the killing.
Here, Cesario already had a previous heated altercation with Florencio. Appellants aver
that Cesario had only himself to blame for obliging when Florencio summoned him to
come near considering that they just had a heated argument. According to them, Cesario
literally courted danger by approaching Florencio instead of running away from him.

Lastly, appellants posit that they cannot be held guilty of murder since the qualifying
circumstance of treachery was not alleged with clarity nor specified in the Information as
required by Sections 8 and 9, Rule 110 of the Rules of Court.

In its Brief,20 the People of the Philippines, through the Office of the Solicitor General
(OSG) maintains that there was conspiracy among the appellants as shown by their
collective acts before, during, and after the perpetration of the crime. Their specific acts
are in fact indicative of a common design and intent to ensure the commission of the
crime.21 The OSG also belies the assertion of the appellants that treachery does not
exist in this case. It insists that their attack on Cesario was sudden and unexpected,
thereby depriving him of a chance to defend himself and ensuring its commission
without risk to the appellants and without the slightest provocation on the part of the
victim.22
Our Ruling

The appeal is unmeritorious.

Conspiracy was sufficiently established

"Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it."23 In conspiracy, it is not necessary to
adduce direct evidence of a previous agreement to commit a crime.24 It "may be shown
through circumstantial evidence, deduced from the mode and manner in which the
offense was perpetrated, or inferred from the acts of the accused themselves when such
lead to a joint purpose and design, concerted action, and community of interest."25
Proof of a previous agreement and decision to commit the crime is not essential but the
fact that the malefactors acted in unison pursuant to the same objective suffices.26

Here, while there is no proof of any previous agreement among appellants to commit the
crime and while it was established during trial that Eddie alone shot Cesario, the acts of
all appellants before, during and after the incident establish the existence of conspiracy
to kill Cesario beyond reasonable doubt. First, all of them emerged at the same time from
a banana plantation beside the ricefield. Second, they surprised Cesario by immediately
surrounding him. Third, all of them were armed at the time of the incident. Eddie had a
shotgun concealed in a sack, Florencio was armed with a bolo, Elynor had a bow and
arrow, while Eric and Franklin had stones in their hands. Fourth, Eric and Franklin struck
Cesario with stones moments before the shooting. Fifth, Eddie immediately shot Cesario
at close range while the latter was approaching the group of appellants upon being
summoned by Florencio. Sixth, Florencio, Franklin, Eric and Elynor stood just a meter
away from Eddie when he shot Cesario, but did not do anything to stop or dissuade
Eddie from the assault. Seventh, after Cesario was shot, all appellants departed from the
scene of the crime together.

Undoubtedly, the acts of the assailants constitute proof of their unanimity in design,
intent and execution.27 They "performed specific acts with closeness and coordination
as to unmistakably indicate a common purpose and design"28 to ensure the death of
Cesario. We thus uphold the lower courts’ finding that appellants conspired to commit
the crime of murder against Cesario.

Having established conspiracy, appellants’ assertion that each of them can only be made
liable for his own acts deserves no merit. Evidence as to who among the appellants
delivered the fatal blow is therefore no longer indispensable since in conspiracy, a
person may be convicted for the criminal act of another.29 In a conspiracy, the act of one
is deemed the act of all.30

Essence of Treachery; Elements

We are also unimpressed with appellants’ contention that both the trial and appellate
courts erred in ruling that treachery qualified the killing of Cesario to murder. They
maintain that since the attack on Cesario was frontal, there was therefore no element of
surprise on the victim or suddenness of the assault that characterizes treachery.

"There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any defense which
the offended party might make."31 Two conditions must concur for treachery to be
appreciated. First, is the employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate. Second, the means of execution
was deliberate or consciously adopted.32 "The essence of treachery is the sudden attack
by an aggressor without the slightest provocation on the part of the victim, depriving the
latter of any real chance to defend himself, thereby ensuring the commission of the crime
without risk to the aggressor." 33

In this case, treachery is evident from the same circumstances we have already
discussed above. From the facts, Cesario could not have been aware that he would be
surrounded, attacked and killed by the appellants who were all related to him. He could
not have also been aware that Eddie had a shotgun concealed in a sack because if he
was, he would not have casually approached Florencio when the latter summoned him.
Unfortunately, while Cesario was advancing towards Florencio, Eddie shot him at close
range without any warning whatsoever. Evidently, the crime was committed in a manner
that there was no opportunity for Cesario to defend himself. Also, the mode of attack did
not spring from the unexpected turn of events but was clearly thought of by the
appellants. Hence, it no longer matters that the assault was frontal since its swiftness
and unexpectedness deprived Cesario of a chance to repel it or offer any resistance in
defense of his person.34

Appellants’ contention that treachery was not alleged with certainty in the Information is
also devoid of merit. In People v. Villacorta35 the Court appreciated treachery as an
aggravating circumstance, it having been alleged in the Information and proved during
trial that the "x x x accused, armed with a sharpened bamboo stick, with intent to kill,
treachery and evident premeditation, did then and there willfully and feloniously attack,
assault and stab with the said weapon one DANILO SALVADOR CRUZ x x x."

Similarly, we hold that treachery was sufficiently alleged in the Information when it reads,
viz:

x x x the above-name[d] accused, armed with a long firearm, a bow and arrow, a bolo and
stones, with intent to kill, with evident premeditation and with treachery, conspiring
together and helping one another, did then and there willfully, unlawfully and feloniously
assault, attack, stone and shoot one Cesario Agacer, inflicting upon the latter [bruises]
and multiple gunshot wounds in his body which caused his death.36 (Emphasis
supplied.)

"Well-settled is the rule that when x x x treachery x x x is present and alleged in the
Information, it qualifies the killing and raises it to the category of murder."37

Appellants failed to discharge their burden to prove Florencio’s claim that he acted in
self-defense and in defense of relatives.

Florencio admits that he shot Cesario but invokes defense of himself and of his relatives
to escape criminal liability.

The Court is not convinced.

While it is the burden of the prosecution to establish the guilt of the accused beyond
reasonable doubt, this burden shifts when the accused admits the killing and pleads self-
defense by way of justification. It therefore becomes vital for the accused to show clear
and convincing evidence that he acted in self-defense. In so doing, he must rely on the
strength of his own evidence and not on the weakness of the prosecution’s evidence.38

The accused must also prove the following elements of self-defense: (1) there was
unlawful aggression on the part of the victim; (2) there was reasonable necessity of the
means employed to prevent or repel the attack; and (3) the lack of sufficient provocation
on the part of the person defending himself.39 In the justifying circumstance of self-
defense, unlawful aggression is a condition sine qua non.40 Self-defense, complete or
incomplete, cannot be considered a justification, unless the victim commits an unlawful
aggression against the person defending himself.41

Here, Florencio failed to prove that he defended himself against the unlawful aggression
of Cesario. He failed to present any evidence to substantiate his claim that there was an
actual or imminent peril to his life or limb. Aside from his unreliable and self-serving
claim, there is no proof that Cesario assaulted and shot him with a firearm during their
struggle or, if at all, that there was indeed a struggle between them. On the other hand,
the separate testimonies of prosecution witnesses Genesis and Roden negate
Florencio’s claim of unlawful aggression. The testimonies of these witnesses established
that it was the appellants who emerged from a nearby banana plantation; that they
surrounded Cesario and set to fire the rice straws covering his rice seedlings; that
appellants were armed with different kinds of weapons, while Cesario was not; that
Franklin and Elynor cast stones upon Cesario; and, that the one who pulled a gun from a
sack and shot Cesario was Eddie, not Florencio. We thus hold that if there was unlawful
aggression here, it came from appellants’ end and not from Cesario. Hence, there being
no unlawful aggression on the part of Cesario, Florencio’s claim of self-defense must fail.

Another basis for appellants’ conviction is the finding of the medico-legal expert that the
cause of Cesario’s death was multiple gunshot wounds found mostly at the "infero-
lateral portion of the anterior chest, right side." This corroborates the testimonies of
Genesis and Roden that Cesario was shot in his chest. These dovetailing findings of the
medico-legal expert and the eyewitness accounts of Genesis and Roden also deserve
more credence than the unsubstantiated claim of self-defense of Florencio, who,
interestingly, gave contradictory testimony. Florencio claimed that he could not see the
gun used by Cesario in shooting him as tall cogonal grass obstructed his view, yet he
could clearly recall that he saw the bullet-riddled Cesario fall.42 These contradictory
statements of Florencio all the more convince us to believe the testimonies of
prosecution witnesses that no exchange of gunfire actually transpired between Cesario
and Florencio. Rather, it was only Eddie who wielded a gun and shot Cesario.1avvphi1

Florencio also invokes the justifying circumstance of defense of relatives, which has
three elements, to wit, (1) there was unlawful aggression on the part of the victim; (2)
there was reasonable necessity of the means employed to prevent or repel it; and (3) in
case of provocation given by the person being attacked, the person making defense had
no part therein.43 Like in the case of self-defense, unlawful aggression is also an
indispensable element in defense of relative. As discussed, there is no unlawful
aggression on the part of Cesario. Hence, Florencio’s reliance on this justifying
circumstance is likewise unavailing.

Similarly, Florencio’s subsequent presentation of himself at the police station cannot be

considered as a "voluntary surrender" which would mitigate the penalty imposed. "A
surrender to be voluntary must be spontaneous, showing the intent of the accused to
submit himself unconditionally to the authorities either because (a) he acknowledges his
guilt or (b) he wishes to save them the trouble and expense necessarily incurred in his
search and capture."44 Here, Florencio cannot be considered to have surrendered
voluntarily since his act did not emanate from a natural impulse to admit the killing of
Cesario or to save the police officers the effort and expense that would be incurred in his
search and incarceration. Although he submitted a medico-legal certificate purportedly
to show that his injuries prevented him from immediately surrendering to the authorities,
same, however, does not certify as to the period of his incapacity or the period during
which he required medical attendance. Thus, there can be no explanation why he
surrendered only on April 16, 1998 or 14 days after the commission of the crime. To us,
Florencio’s surrender was a mere afterthought undeserving of any consideration. Indeed,
the failure of Florencio to immediately surrender militates against his claim that he killed
Cesario in self-defense and in defense of relatives since an innocent person will not
hesitate to take the prompt and necessary action to exonerate himself of the crime
imputed to him.

All told, we find no reason to disturb the conclusion of the trial court, as affirmed by the
CA. The testimonies of the eyewitnesses presented by the prosecution were given in a
clear, natural and spontaneous manner. Their positive identification of the appellants as
the persons responsible for the death of Cesario has been clearly, categorically and
consistently established on record. Moreover, we note that no evidence was presented to
establish that these eyewitnesses harbored any ill-will against the appellants or that they
have reasons to fabricate their testimonies.45 These kinds of testimonies are accepted
as true for being consistent with the natural order of events, human nature and the
presumption of good faith.46

The Proper Penalty

Under Article 248 of the Revised Penal Code, the penalty for the crime of murder is
reclusion perpetua to death. As correctly imposed by the trial court and as affirmed by
the CA, appellants must suffer the prison term of reclusion perpetua, the lower of the
said two indivisible penalties, due to the absence of an aggravating circumstance
attending the commission of the crime.

The Civil Liability

For the victim’s death resulting from the crime, the heirs are entitled to the following
awards: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate
damages.47

Civil indemnity in the amount of ₱75,000.00 is mandatory and is granted without need of
evidence other than the commission of the crime.48 Moral damages in the sum of
₱50,000.00 shall be awarded despite the absence of proof of mental and emotional
suffering of the victim’s heirs.49 "As borne out by human nature and experience, a
violent death invariably and necessarily brings about emotional pain and anguish on the
part of the victim’s family."50 Also under Article 2230 of the Civil Code, exemplary
damages may be imposed when the crime was committed with one or more aggravating
circumstances, like treachery,51 as in this case. Thus, the award of ₱30,000.00 for
exemplary damages is in order.52

As regards actual damages, the son of Cesario, Neldison, testified that the sum of
₱40,000.00 was spent for the coffin of his father but was unable to present receipts to
substantiate such claim. Where the amount of actual damages for funeral expenses
cannot be ascertained due to the absence of receipts to prove them, temperate damages
in the sum of ₱25,000.00 may be granted, as it is hereby granted, in lieu thereof.53
"Under Article 2224 of the Civil Code, temperate damages may be recovered as it cannot
be denied that the heirs of the victim suffered pecuniary loss although the exact amount
was not proved."54
The heirs of Cesario are also entitled to an interest on all the amounts of damages we
have awarded at the legal rate of 6% from the date of finality of this Decision until fully
paid.55

WHEREFORE, the Court AFFIRMS the November 17, 2006 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 01543 which affirmed the August 7, 2001 Decision of the
Regional Trial Court, Branch 8, Aparri, Cagayan, finding appellants Florencio, Franklin,
Elynor, Eddie and Eric, all surnamed Agacer, guilty beyond reasonable doubt of the
crime of murder, with the following modifications:

(1) actual damages is DELETED;

(2) the appellants are ORDERED to pay the heirs of Cesario Agacer ₱25,000.00 as
temperate damages; and

(3) the appellants are ORDERED to pay the heirs of Cesario Agacer interest at the legal
rate of six percent (6%) per annum on all the amounts of damages awarded, commencing
from the date of finality of this Decision until fully paid.

Costs against the appellants.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

- People vs. Lopez, 585 SCRA 529

G.R. No. 189981 March 9, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALLAN GABRINO, Accused-Appellant.

DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the August 28, 2008 Decision1 of the Court of Appeals (CA)
in CA-G.R. CEB CR-H.C. No. 00731, which affirmed the April 3, 2007 Decision2 in
Criminal Case No. 1347 of the Regional Trial Court (RTC), Branch 10 in Abuyog,
Leyte. The RTC convicted accused Allan Gabrino of murder.
The Facts

The charge against the accused stemmed from the following Information:

That on or about the 30th day of December, 1993 in the Municipality of La Paz,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, with treachery and evident
premeditation, did, then and there willfully, unlawfully and feloniously attack,
assault and wound one JOSEPH BALANO with the use of bladed weapon locally
known as pisaw which said accused had purposely provided himself, thereby
causing and inflicting upon the said JOSEPH BALANO wounds on his body which
caused his death shortly thereafter.

Contrary to law.3

On July 7, 2003, the arraignment was conducted. The accused, who was assisted
by counsel, pleaded not guilty to the offense charge. A mandatory pre-trial
conference was done on October 1, 2003. Thereafter, trial ensued.

During the trial, the prosecution offered the testimonies of Bartolome Custodio
(Bartolome), laborer and a resident of Barangay Mag-aso, La Paz, Leyte; and
Ismael Moreto (Ismael), farmer and a resident of Barangay Mohon, Tanauan, Leyte.
On the other hand, the defense presented Nestor Sarile (Nestor), Municipal
Planner of La Paz, Leyte and a resident of Barangay Mag-aso, La Paz, Leyte; and
the accused as witnesses.

The Prosecution’s Version of Facts

The first witness, Bartolome, testified that he is a resident of Barangay Mag-aso,

La Paz, Leyte for more than 30 years and he knows the accused as they were
classmate from Grade 1 to Grade 5. He also testified that on certain occasions, the
accused would spend the night at their house. He stated that he likewise knows
Joseph Balano (Balano), the deceased, as he was a former resident of Barangay
Mag-aso, La Paz Leyte, but had to transfer to Barangay Cogon, Tanauan, Leyte
because of an insurgency.4

He narrated that on December 30, 1993, he visited his uncle, Gorgonio Berones
(Gorgonio) in Barangay Mag-aso, La Paz, Leyte with Balano. Upon arrival at the
house of his uncle, he noticed that a certain Jom-jom and his friends, including
the accused, were having a drinking session. Thirty minutes later, Jom-jom and
his group left the vicinity. Bartolome and Balano stayed for less than an hour at
the house of Bartolome’s uncle, and left thereafter. On their way home, however,
somebody suddenly sprang out from behind the coconut tree and stabbed Balano.
As there was a bright moonlight at the time, and because of the two-arms-length
distance between them, Bartolome easily recognized the assailant to be the
accused. He even testified that he tried to calm the accused down. Bartolome
further stated that he saw the accused stab Balano once, after which Balano ran
away while being pursued by the accused. He stated that he asked the people for
help in transporting Balano to the hospital but the latter died on the way there.5
The second witness, Ismael, testified that on December 30, 1993, he was in
Barangay Mag-aso, La Paz, Leyte, working with Balano for the processing of copra
of Guadalupe Balano. That night, he stayed at the house of Bartolome in the same
barangay. He stated that while he was already at Bartolome’s house at about 10:30
in the evening, he could not sleep yet as Bartolome and Balano were still out of
the house looking for a helper. He, therefore, decided to go out of the house and
upon going outside, he saw the accused suddenly stab Balano once with a pisao
(small bolo or knife).6 Fearing for his life, Ismael instantly went back to
Bartolome’s house.7

The Defense’s Version of Facts

Nestor, the first witness for the defense, stated that on December 30, 1993 at about
5 o’clock in the afternoon, he was in Sitio Siwala, Barangay Rizal, La Paz, Leyte,
picking up passengers as a motorcycle driver for hire. Gorgonio was one of the
passengers at that time who he brought to Barangay Mag-aso, La Paz, Leyte.
When they arrived at the house of Gorgonio, the latter went inside to get money to
pay for his fare. Consequently, Nestor waited in his tricycle outside of Gorgonio’s
house. During such time, Nestor saw four people going down the house: the
accused, Jeffrey Erro (Jeffrey), Tap-ing Fernandez (Tap-ing), and Balano.
According to Nestor’s testimony, the accused went to the side of the house to
urinate and while so doing, he saw Tap-ing throw something at the accused, which
caused him to bleed, and then they ran away. Thereafter, Balano attacked the
accused, and as they grappled, the former was stabbed by the latter on the chest.
The accused ran away after the incident happened.8

Quite differently, the accused narrated that on December 30, 1993 at 5 o’clock in
the afternoon, he was at the house of Gorgonio having a conversation with Leny
Berones and Luna Berones. After an hour had passed, Gorgonio arrived with
Nestor, Tap-ing, Balano and a certain Eddie who all came from the fiesta in
Barangay Siwala. The accused stated that he went outside of the house to urinate
when Tap-ing threw a stone at him, which hit him on the forehead and caused him
to fall down. And when he saw Balano rushing towards him with an ice pick, he
immediately stabbed him and then ran away.9

The Ruling of the Trial Court

After trial, the RTC convicted the accused. The dispositive portion of its April 3,
2007 Decision reads:

WHEREFORE, finding the accused [Allan] Gabrino guilty beyond reasonable doubt
of the crime as [charged], this Court hereby sentences accused to suffer the
penalty of RECLUSION PERPETUA, ordering the accused to indemnify the
offended party the amount of Sixty Five Thousand Pesos (P65,000.00) and to pay
the costs.

SO ORDERED.10

In finding for the prosecution and convicting the accused of murder under Article
248 of the Revised Penal Code (RPC), the RTC gave credence to the testimonies of
the witnesses of the prosecution. The RTC found that treachery was employed by
the accused in killing Balano. The RTC further held that the justifying
circumstance of incomplete self-defense under Art. 11(1) of the RPC could not be
applied in the present case as the element of unlawful aggression is absent.

The Ruling of the Appellate Court

On August 28, 2008, the CA affirmed the judgment of the RTC in toto. The
dispositive portion of the CA Decision reads:

WHEREFORE, the herein appealed Decision convicting appellant Allan Gabrino of

the crime of murder and imposing on him the penalty of reclusion perpetua and
the payment to the victim’s heirs of civil indemnity in the amount of P65,000.00 is
hereby AFFIRMED in toto.

SO ORDERED.11

The Issues

Hence, this appeal is before Us, with accused-appellant maintaining that the trial
court erred in convicting him of the crime of murder, despite the fact that his guilt
was not proved beyond reasonable doubt. Accused-appellant also alleges that
assuming that he could be made liable for Balano’s death, the CA and the RTC
erred in appreciating the qualifying circumstance of treachery. Another issue that
he raises is the alleged existence of the mitigating circumstance of incomplete
self-defense.

The Court’s Ruling

We sustain the conviction of accused-appellant.

Factual findings of the RTC should be given credence and should therefore be
respected

In the instant case, while both the prosecution and the defense agree on the date
when the incident occurred and the fact that accused-appellant stabbed Balano,
they conflict with the rest of the facts. It was, therefore, incumbent upon the RTC
to appreciate the facts during trial and determine which information carries
weight. And in doing so, the RTC gave credence to the testimonies of the
prosecution’s witnesses, with which the CA thereafter concurred. Accordingly, the
RTC adopted the version of the prosecution as the correct factual finding.

We agree with the RTC’s factual determination as affirmed by the CA.

We have held time and again that "the trial court’s assessment of the credibility of
a witness is entitled to great weight, sometimes even with finality."12 As We have
reiterated in the recent People v. Combate, where there is no showing that the trial
court overlooked or misinterpreted some material facts or that it gravely abused
its discretion, then We do not disturb and interfere with its assessment of the facts
and the credibility of the witnesses.13 This is clearly because the judge in the trial
court was the one who personally heard the accused and the witnesses, and
observed their demeanor as well as the manner in which they testified during
trial.14 Accordingly, the trial court, or more particularly, the RTC in this case, is in
a better position to assess and weigh the evidence presented during trial.

In the present case, in giving weight to the prosecution’s testimonies, there is not
a slight indication that the RTC acted with grave abuse of discretion, or that it
overlooked any material fact. In fact, no allegation to that effect ever came from
the defense. There is, therefore, no reason to disturb the findings of fact made by
the RTC and its assessment of the credibility of the witnesses. To reiterate this
time-honored doctrine and well-entrenched principle, We quote from People v.
Robert Dinglasan, thus:

In the matter of credibility of witnesses, we reiterate the familiar and well-

entrenched rule that the factual findings of the trial court should be respected. The
judge a quo was in a better position to pass judgment on the credibility of
witnesses, having personally heard them when they testified and observed their
deportment and manner of testifying. It is doctrinally settled that the evaluation of
the testimony of the witnesses by the trial court is received on appeal with the
highest respect, because it had the direct opportunity to observe the witnesses on
the stand and detect if they were telling the truth. This assessment is binding
upon the appellate court in the absence of a clear showing that it was reached
arbitrarily or that the trial court had plainly overlooked certain facts of substance
or value that if considered might affect the result of the case.15 (Emphasis Ours.)

Treachery was committed by accused-appellant

Art. 248 of the RPC defines murder as follows:

ART. 248. Murder.¾Any person who, not falling within the provisions of Article
246, shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua, to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense, or of means or persons to
insure or afford impunity;

2. In consideration of a price, reward, or promise;

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a

vessel, derailment or assault upon a railroad, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great waste and ruin;

4. On occasion of any calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other
public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the

victim, or outraging or scoffing at his person or corpse. (Emphasis Ours.)
For a person to be convicted of the offense of murder, the prosecution must prove
that: (1) the offender killed the victim; and (2) that the killing was committed with
any of the attendant circumstances under Art. 248 of the RPC, such as treachery.
Particularly, People v. Leozar Dela Cruz enumerates the elements of murder, thus:

1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned
in Art. 248.

4. The killing is not parricide or infanticide.16

In this case, it is undoubted that accused-appellant was the person who stabbed
Balano and caused his death.17 And this killing is neither parricide nor infanticide.
The question, therefore, to be resolved in this case is whether the killing was
attended by treachery that would justify accused-appellant’s conviction of murder.

Treachery exists when "the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution, which tend directly and
specially to insure its execution, without risk to the offender arising from the
defense which the offended party might make."18 What is important in
ascertaining the existence of treachery is the fact that the attack was made swiftly,
deliberately, unexpectedly, and without a warning, thus affording the
unsuspecting victim no chance to resist or escape the attack.19 In People v.
Lobino, We held that a sudden attack against an unarmed victim constitutes
treachery.20

In this case, it is clear accused-appellant employed treachery in stabbing and

killing Balano.

Relevant to the finding of treachery is the testimony of Bartolome, to wit:

Q: Will you please tell this Honorable Court what was that unusual incident that
happen? [sic]

A: While we were on our way home, we have no knowledge that there was
somebody who was waylaying us on the road.

Q: What happen [sic] on that road?

A: He suddenly emanate [sic] coming from the coconut tree and immediately
lounge [sic] at Joseph Balano and stabbed him.
Q: Whom are you referring to [w]ho emanate [sic] from the coconut tree and
immediately stab Joseph Balano?

A: Allan Gabrino.

Q: How far was the place of incident to the house of Gorgonio Berones?

A: Less than twenty (20) meters from the place of incident.

Q: Since it was nighttime, how were you able to identify Allan Gabrino as the one
who stabbed Joseph Balano?

A: Because during that night, there was a moon and my distance to Joseph
Balano was only two arms length, I was near him and he was ahead of me and I
saw that he was stabbed and I even pacified Allan Gabrino.

Q: You mean you pacified Allan Gabrino?

A: Yes, Sir.

Q: How did you pacify him?

A: I said don’t do that Lan. He did not heed because he had already finished
stabbing.

Q: When you said Lan, it is the name of Allan?

A: Yes, Sir.

Q: How many times did you see the accused stab the victim Joseph Balano?

A: I only saw once.21 (Emphasis Ours.)

From the foregoing testimony, it is clear that accused-appellant deliberately hid

behind the coconut tree at nighttime, surprising the victim, Balano, by his swift
attack and immediate lunging at him. Obviously, the unsuspecting Balano did not
have the opportunity to resist the attack when accused-appellant, without warning,
suddenly sprang out from behind the coconut tree and stabbed him. This
undoubtedly constitutes treachery. The fact that Balano was able to run after he
was stabbed by accused-appellant does not negate the fact the treachery was
committed. As We held in Lobino, that the victim was still able to run after the first
blow does not obliterate the treachery that was employed against him.22 Clearly
therefore, the RTC and the CA did not err in finding that treachery was committed.
Accordingly, accused-appellant’s conviction of murder is proper.
Evident premeditation was not established as an aggravating circumstance

According to Art. 14(3) of the RPC, an offense is aggravated when it is committed

with evident premeditation. Evident premeditation is present when the following
requisites concur:

(1) the time when the offender determined to commit the crime;

(2) an act manifestly indicating that the culprit has clung to his determination; and

(3) sufficient lapse of time between the determination and execution to allow him
to reflect upon the consequences of his act.23

In this case, evident premeditation was not established. First, there is showing,
much less an indication, that accused-appellant had taken advantage of a
sufficient time to carefully plan the killing of Balano; or that a considerable time
has lapsed enough for accused-appellant to reflect upon the consequences of his
act but nevertheless clung to his predetermined and well-crafted plan. The
prosecution was only able to establish the fact of accused-appellant’s sudden
stabbing of Balano after he hid behind the coconut tree. This fact only
successfully establishes the qualifying circumstance of treachery but not the
aggravating circumstance of evident premeditation.

In appreciating the aggravating circumstance of evident premeditation, it is

indispensable that the fact of planning the crime be established.24 Particularly,
"[i]t is indispensable to show how and when the plan to kill was hatched or how
much time had elapsed before it was carried out."25 Accordingly, when there is no
evidence showing how and when the accused planned to killing and how much
time elapsed before it was carried out, evident premeditation cannot prosper.26 In
this case, the prosecution failed to establish how and when the plan to kill Balano
was devised. As this has not been clearly shown, consequently, evident
premeditation cannot be appreciated as an aggravating circumstance.

Incomplete self-defense cannot be made as a justifying circumstance, because the

element of unlawful aggression is absent

Accused-appellant’s claim of incomplete self-defense cannot prosper. Art. 69 in

relation to Art. 11 of the RPC explains when incomplete self-defense is permissible
as a privileged mitigating circumstance, thus:

ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable.¾A penalty lower by one or two degrees than that prescribed by law
shall be imposed if the deed is not wholly excusable by reason of the lack of some
of the conditions required to justify the same or to exempt from criminal liability in
the several cases mentioned in articles 11 and 12, provided that the majority of
such conditions be present. The courts shall impose the penalty in the period
which may be deemed proper, in view of the number and nature of the conditions
of exemption present or lacking.

ART. 11. Justifying circumstances.¾The following do not incur any criminal

liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

In order that incomplete self-defense could prosper as a privileged mitigating

circumstance, unlawful aggression must exist. In People v. Manulit,27 People v.
Mortera,28 and Mendoza v. People,29 We reiterated the well-settled rule that
unlawful aggression is an indispensable requisite in appreciating an incomplete
self-defense. It is any one of the two other elements of self-defense that could be
wanting in an incomplete self-defense, i.e., reasonable necessity of the means to
employed to prevent or repel it; or lack of sufficient provocation on the part of the
person defending himself; but it can never be unlawful aggression.30

Unlawful aggression is defined as "an actual physical assault, or at least a threat

to inflict real imminent injury, upon a person. In case of threat, it must be offensive
and strong, positively showing the wrongful intent to cause injury. It presupposes
actual, sudden, unexpected or imminent danger––not merely threatening and
intimidating action. It is present only when the one attacked faces real and
immediate threat to one’s life."31

In granting the privileged mitigating circumstance of incomplete self-defense, the

burden to prove the elements during trial is incumbent upon the accused.32 It,
therefore, follows that accused-appellant must prove before the RTC that there
was indeed an unlawful aggression on the part of the victim, Balano.

In this case, accused-appellant failed to demonstrate the existence of unlawful

aggression that would warrant an incomplete self-defense. As properly pointed
out by the RTC, the testimony of accused-appellant on cross-examination
establishes this failure, thus:

Q: According to you, it was Tap-ing Fernandez who threw stone to you, is that
correct?

WITNESS

A: Yes, sir.

Q: And you were hit on your forehead, is that correct?

A: No, sir, on the top of my head.

COURT INTERPRETER

Witness pointing to the top of his head.

FISCAL MOTALLA

Q: And you became groggy according to you, is that correct?

A: Yes, sir.

Q: And you fell to the ground.

A: No, sir.

Q: So you did not fall to the ground, is that what you mean?

A: No, sir, I felt groggy.

Q: You said you saw the victim approached [sic] you with an ice pick, is that
correct?

A: Yes, sir.

Q: And you immediately stabbed him?

A: Yes, sir.

Q: Meaning, he was not able to stab you because you immediately stabbed him, is
that correct?

A: Yes, sir.

Q: But according to you, when the victim, was hit he went to a nearby coconut tree
and stabbed the coconut tree, is that correct?

A: Yes, sir.

Q: And you were just two-arms length away from him, is that correct?

A: Yes, sir.
Q: He did not thrust towards you, he was only stabbing the coconut tree, is that
correct?

A: He did not thrust towards me.

Q: He only kept on stabbing the coconut tree, is that correct?

A: Yes, sir.

Q: Despite the fact that you were near to him?

A: Yes, sir.

Q: And he was already wounded by you when he was stabbing the coconut tree?

A: He was already wounded.33

From the foregoing testimony of accused-appellant himself, it is clear that there

was no unlawful aggression on the part of Balano that would justify accused-
appellant to stab him. To justify an incomplete self-defense, the unlawful
aggression must come from the victim himself against the person who resorted to
self-defense.34 In this case, if there was any, the unlawful aggression came from
Tap-ing, who was the one who threw a stone and hit accused-appellant. The mere
fact that Balano was alleged to be approaching accused-appellant with an ice pick
does not constitute a real and imminent threat to one’s life sufficient to create an
unlawful aggression. Unlawful aggression requires more than that. In People v.
Arnante, as it is here, the "mere perception of an impending attack is not sufficient
to constitute unlawful aggression."35 In this case, there was not even any attempt
on the part of Balano to strike or stab accused-appellant. If at all and assuming to
be true, Balano’s demeanor could be deemed as an intimidating attitude that is
certainly short of the imminence that could give rise to the existence of unlawful
aggression.36 What is more, it was not him, but Tap-ing who had previously hit
accused-appellant. Accused-appellant’s own testimony also negates any intention
on the part of Balano to cause him any harm. As he testified, even after he stabbed
Balano, the latter never retaliated and struck back. Instead, he stabbed the
coconut tree notwithstanding the fact that accused-appellant was within his reach.
Certainly, nothing in the facts indicate any circumstance that could justify the
stabbing and the ultimate taking of Balano’s life. Accordingly, as We are not
convinced that there was an unlawful aggression in this case on the part of the
victim, Balano, an incomplete self-defense is wanting and accused-appellant’s
offense, therefore, cannot be mitigated.

Accused is liable for damages and interest

The penalty of murder under Art. 248 of the RPC is reclusion perpetua to death.
Considering that the offense committed in this case is murder and there being
neither aggravating nor mitigating circumstances, the RTC was correct in
imposing the lesser penalty of reclusion perpetua.37
 It is now settled that as a general rule, the Court awards civil indemnity, as well as
moral and exemplary damages.38 And We have held in People v. Combate that
"when the circumstances surrounding the crime call for the imposition of
reclusion perpetua only, the Court has ruled that the proper amounts should be
PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 30,000 as
exemplary damages."39

Accordingly, We increase the PhP 65,000 damages awarded by the RTC and
affirmed by the CA as follows: PhP 50,000 in civil indemnity, PhP 50,000 in moral
damages, and PhP 30,000 in exemplary damages, with an interest of six percent
(6%) per annum,40 in line with Our current jurisprudence.1avvphi1

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CEB CR-H.C. No.
00731 finding accused-appellant Allan Gabrino guilty of the crime charged is
AFFIRMED with MODIFICATION. As modified, the ruling of the trial court should
read as follows:

WHEREFORE, finding the accused, Allan Gabrino, guilty beyond reasonable doubt
of the crime of MURDER, this Court hereby sentences accused to suffer the
penalty of RECLUSION PERPETUA and is ordered to indemnify the heirs of the
late Joseph Balano the sum of PhP 50,000 as civil indemnity, PhP 50,000 as moral
damages, PhP 30,000 as exemplary damages, and interest on all damages at the
rate of six percent (6%) per annum from the finality of judgment until fully paid.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

Defense of strangers
- Cabuslay vs. People, 471 SCRA 241 (2005)

G.R. No. 129875 September 30, 2005

JOVITO CABUSLAY, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division), Respondent.

DECISION

Tinga, J.:

Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil Procedure is
the Decision2 dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586
finding Jovito Cabuslay, petitioner herein, guilty beyond reasonable doubt of the crime of
homicide and sentencing him as follows:
WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry
Cane are ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY
beyond reasonable doubt of the crime of homicide and is sentenced to an indeterminate
penalty of imprisonment of Ten (10) years and One (1) Day of prision mayor as minimum,
to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as
maximum, with all the accessory penalties provided for by law, and to indemnify the
heirs of Pacquito Umas-as in the amount of Fifty Thousand Pesos (₱50,000.00) for actual
damages and Fifty Thousand Pesos (₱50,000.00) for moral damages, and to pay the
costs.

SO ORDERED.3

In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior
Inspector Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico
Montebon and C2C Gerry Orillaneda Cane were charged with murder, committed as
follows:

That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the
jurisdiction of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G.
REGENCIA, SPO4 ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON
AND C2C GERRY CANE, all public officers, being then members of the Philippine
National Police assigned at the PNP Provincial Headquarters of Lanao del Norte, acting
in the capacities aforesaid and conspiring, confederating and helping one another, while
manning a

mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing the offense
in relation to office, and with intent to kill, did then and there wilfully, unlawfully,
feloniously and treacherously shoot PAQUITO UMAS-AS, with their firearms, thereby
inflicting mortal wounds upon the latter which caused his instantaneous death.5

On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial
ensued with the prosecution presenting as witnesses Dr. Tammy Uy, Bernabe
Purificacion Arenga, Leoncio Tagapulot Zaragosa and Generoso Caayao Umas-as.

The prosecution presented evidence proving the following as facts:

Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua,
Cagayan de Oro City. Still single, Paquito earned a living as a collector of payments for
assorted articles such as jackets, mats, thermos and plates that he sold on credit.
Paquito collected as much as ₱70,000.00 for a period of four months and the net profit of
such collections was divided equally between him and his employer. 6

In collecting payments, Paquito used a motorcycle he bought on credit from his

employer.7 His collection brought him to such places as Manticao, Iligan and
Kolambogan.8 He rented a house in Iligan City but every fifteenth (15th) day of the
month, Paquito would go home to his family to give them a sack of rice.9

At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a

refrigeration technician helper and resident of Roosevelt Street, Iligan City, was
conversing with Felix Lauriana10 near the school building in Lapayan, Libertad,
Kauswagan, Lanao del Norte when a Hammer (Hummer) truck parked in front of them.11
Four policemen alighted, followed by a driver. The police thereafter halted the collector
who was riding a motorcycle from Lapayan. The collector was wearing a blue denim
jacket with folded sleeves and blue denim pants.12

The police asked the collector to show his identification card (ID). The collector took the
ID out of his left pocket and when it reached the "front man," one of the policemen, who
Zaragosa later verified as the petitioner, opened fire at the collector whose right hand
was then raised. The four other policemen meanwhile had their firearms pointed at the
collector. 13

Petitioner, who was four meters away from the collector, consumed the entire magazine
of his M-16 armalite in firing at him. The collector fell to the ground and was still moving
when the police placed him on board a vehicle and brought him to Kolambugan.14 One
of the policemen rode on the collector’s motorcycle and likewise headed for
Kolambugan.15

Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro
City,16 NBI forensic chemist Bernabe P. Arenga examined the victim’s body, later
identified as Paquito Umas-as, on 10 August 1992 to determine the presence of
gunpowder nitrates on his hands. Arenga’s report revealed that the victim was negative
for gunpowder nitrates.17 Arenga opined that on the average, nitrates would be lost
within a seventy-two (72)-hour period; that there had been instances when the substance
would remain on a living person up to nine days; that nitrates could not penetrate rubber
gloves; that no amount of washing can remove the nitrates; and that even the application
of formalin does not affect the presence of nitrates in the hands of a person.18

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro
City, conducted a post-mortem examination on the body of Paquito Umas-as. At the time
of examination, the victim’s body had already been cleaned and embalmed. Dr. Uy’s
examination disclosed that the cause of death was severe hemorrhage secondary to
multiple gunshot wounds. There were eight (8) gunshot wounds and each wound was
considered fatal.19

To prove damages, Generoso Umas-as testified that he lost consciousness upon

learning of the death of his son Paquito. Paquito’s family spent ₱8,000.00 for the wake
and ₱10,000.00 for his burial. Paquito had left his father ₱12,000.00 to pay for some
appliances the former had bought; but the latter, to underwrite funeral expenses, still had
to sell his land for ₱100,000.00 only ₱25,000.00 of which had been paid in advance by the
buyer. However, Generoso could not remember where he placed the receipts for the
wake and burial expenses.20

The defense presented a different version of the commission of the crime. Petitioner
presented as witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito
Luna Cabuslay.

Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National

Police (PNP), Lanao del Norte Command stated that he had received a reliable
intelligence report of a plot to assassinate the Mayor and Vice-Mayor of Kauswagan,
Lanao del Norte and Governor Abalos and his family. In response to the intelligence
report, he dispatched a team of PNP personnel to conduct mobile checkpoints along the
national highways in several municipalities and to check on people who would possibly
carry out the plot. Jubail claims that the intelligence report was proven accurate after a
few months because the Vice-Mayor of Kauswagan was killed in Samborong, Linamon
and in December of the same year, Governor Abalos was assassinated in Iligan City.21
The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy,
SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of
responsibility consisted of the twenty-two (22) municipalities of Lanao del Norte. In full
military outfit, save for Canoy as he was assigned to the Intelligence Operatives
Command, the men established a mobile checkpoint on 5 August 1992 at the national
highway, Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of intercepting
armed men who intend to carry out the assassination plot.22

At about 8:30 in the morning, a man riding on a red Honda motorcycle23 going to the
direction of Pagadian City approached the mobile checkpoint. The motorcycle rider was
allegedly wearing a black bonnet, sunglasses, sweatshirt and gloves that covered the
half portion of his fingers.24

Regencia testified that he signaled the motorcycle rider to stop at the right side of the
road. He asked for the identification card of the motorcycle rider who pretended to reach
for his wallet, but instead pulled out a gun. He heard a shot and his thigh went numb. As
he rolled to the ground, he heard a volley of gunshots after which petitioner approached
him. Regencia then approached the motorcyclist and removed his bonnet to be able to
identify him. Regencia later found out that the motorcyle rider was shot by petitioner. 25

Regencia ordered his men to load the motorcycle rider to the truck. The victim later
identified as Paquito Umas-as was still alive when he was loaded on the hummer vehicle
to be brought to a hospital, but was pronounced dead on arrival by Dr. Caga, the
attending physician. Regencia then asked that he be given first-aid treatment for the
wounds he sustained. He thereafter turned over the rider’s motorcycle, sunglasses and
revolver to the police station at Kauswagan. And after bringing the victim’s body to a
funeral home in Kolambugan, he proceeded to Baroy General Hospital where his wounds
were treated by a certain Dr. Fabin.26

To prove that he was wounded during the incident, Regencia showed to the court a quo
the scars caused by the gunshot wounds. There were three scars, one of which was the
entry of the bullet and the other two were splinter wounds. He said that the bullet used
was the kind that splinters upon hitting an object. He presented a medical certificate
under the signature of Dr. Demterio U. Opamen, Jr.27

For his defense, petitioner confirmed Regencia’s testimony that the latter had directed an
approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask
the motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw
Paquito Umas-as shoot Celso Regencia. This and his belief that he was the next target
prompted him to shoot the motorcycle rider with his M-16.28

Police Superintendent Jubail was immediately informed of the incident and on the basis
of Regencia’s account, he sent out a "Spot Report"29 to inform Recon 9 and 13. The
report is couched as follows:

"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S BACK-UP
OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED)
PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE
SPOT PD RESPONDING PNP ELEMETS RECOVERED FROM THE VICTIM’S BODY ALFA
CAL. 38 REVOLVER SMITH AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL
AND 5 UNSPENT AMMO x x x "
The incident found its way to the police blotter of the police station of Kauswagan, Lanao
del Norte.30 It is embodied in a Certification31 signed by Inspector Fulgencio dela Pena
Raguine, Chief of Police, issued at the request of Atty. Arthur Abundiente for trial
purposes and formulated in this wise:

Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=

050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements
from Lanao del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded
to Libertad, Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor
Myron B. Rico of Kaus, LN.

050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed that suspects
were intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and
shot INSPECTOR CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade)
hitting on his right thigh prompting SPO3 Cabustay (sic), fired back to the suspect hitting
at the chest causing the instantaneous death of the suspect. One cal. 38 revolber (sic)
(Homemade) with 5 live ammos and one empty shell at the chamber, one rayban
(sunglass) and one motorcycle (Honda-Camel backtype) color red with out plate Nr.

Police Blotter Page Nr. 497- Entry Nr.9191=

081240H Aug 1992 – Romeo Umas-as, 42 years old x x x.

Police Blotter Page Nr. 501-Entry Nr.9228=

251315H Aug 1992 – Impounded Honda Motorcycle x x x.

Police Blotter Page Nr. 508-Entry Nr. 9100=

021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/
(4) four live ammo and one empty shell past 30th day of Sep 92 for NBI examination at
Cagayan de Oro City.

Petitioner justified the shooting of Paquito Umas-as because he believed that he would
be the next person to be shot at by the victim; and having acted in defense of his person
and that of his superior officer, he asserted before the court a quo that he has no
criminal liability because of the attendance of the following circumstances: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means employed to
prevent or repel the unlawful aggression of the victim; (c) lack of sufficient provocation
on his part, and in the case of defense of his superior officer, he was not induced by
revenge, resentment, or other evil motives. All of these requisites being present,
petitioner claimed there was legal justification for shooting Paquito Umas-as.32

The Sandiganbayan however grave credence to the version of the prosecution and
rejected the version of petitioner. So, it found him guilty beyond reasonable doubt of the
crime of homicide. It accorded full faith and credence to the testimony of Zaragosa as it
was "categorical, straightforward, spontaneous and consistent." Moreover, it observed
that no proof was adduced to show that Zaragosa was moved by some evil motive to
falsely testify against the accused Cabuslay.33
The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as
follows: (1) The physical existence of the handgun allegedly used by the victim Paquito
was not established as the same was not presented before the court during the trial;34
(2) The affidavit executed by Gualberto Dayot Pasco-presented by the defense to
impeach the credibility of Zaragosa-was taken under intimidating and dubious
circumstances, which fact creates doubt as to the affidavit’s voluntariness and
credibility;35 (3) The medical certificate purportedly evidencing that Regencia had been
shot has no probative value as the doctor who executed the same did not testify during
trial. Notably, the medical certificate was executed by a doctor different from the one who
treated Regencia’s wound;36 (4) The number of gunshot wounds inflicted upon the
victim betrays petitioner’s claim of reasonable necessity of the means used to repel the
unlawful aggression allegedly displayed by the victim.37

Hence, petitioner filed the instant petition before the Court, insisting that the
Sandiganbayan erred in not crediting him the justifying circumstance of self-defense or
defense of a stranger or the lawful exercise of a right or office.38

Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office of the Solicitor
General (OSG) submitted before the Court a Manifestation and Motion In Lieu Of
Comment40 to aid the resolution of the instant petition. In said manifestation, the OSG
stated that it is the Office of the Ombudsman which should represent the People in cases
elevated to the Court from the Sandiganbayan except in cases filed under Executive
Orders Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the conviction
of petitioner should be reversed because the evidence of the prosecution when pitted
against that of the defense "may not stand close scrutiny." It also asserted that the
ponente of the appealed decision was not yet a member of the Third Division when the
witnesses testified and when the parties presented their evidence; hence, the
applicability of the
Court’s ruling in People v. Gutual,41 that no respect can be accorded to the trial court’s
findings of fact where the judge who penned the questioned decision heard only one of
the witnesses and only at the sur-rebuttal stage.42

In its Comment,43 the Office of the Ombudsman through the Office of the Special
Prosecutor seeks the denial of the instant petition on the ground that the defense failed
to impeach the credibility of Zaragosa. It agrees with respondent court that petitioner’s
story was contrary to human experience and hence, it correctly debunked self-defense
and defense of a stranger as grounds for petitioner’s acquittal.44

The petition is without merit.

While the rule that the factual findings of the court a quo are generally not disturbed on
appeal because the trial judge had the best opportunity to observe them and the manner
by which they testify is concededly not applicable to the instant case considering that
the ponente of the assailed Decision was not the one who heard all the witnesses,
nevertheless, after a careful review of the records of the case, the Court finds no reason
to disturb the conclusions reached by respondent court. As held in Hugo v. Court of
Appeals,45 "the efficacy of a decision is not necessarily impaired by the fact that the
ponente only took over from a colleague who had earlier presided over the trial. For it
does not follow that a judge who was not present during the trial cannot render a valid
and just decision."

Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of

three Justices each, is a collegial body which arrives at its decisions only after
deliberation, the exchange of view and ideas, and the concurrence of the required
majority vote.46

Simply put, the ponente of the assailed Decision is not the Third Division of the
Sandiganbayan. He alone does not speak for and on behalf of his Division. Each Division
of the Sandiganbayan is a three-man body whose members each have one vote to cast in
every deliberation concerning a case or any incident therein that is within its jurisdiction.

We have minutely scrutinized the assailed Decision and find it amply supported by the
evidence on record.

Petitioner claims that he acted in self-defense and in defense of Regencia.

One who invokes self-defense admits responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must then prove the justifying circumstance.
He must show by clear and convincing evidence that he indeed acted in self-defense, or
in defense of a relative or a stranger. With clear and convincing evidence, all the
following elements of self-defense must be established: (1) unlawful aggression on the
part of the victim; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person claiming self-defense.47

Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in

this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on
the deceased, it is incumbent upon him in order to avoid criminal 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 the strength of his own
evidence, "for even if the evidence of the prosecution were weak it could not be
disbelieved after the accused himself had admitted the killing."48 Thus, petitioner must
establish with clear and convincing evidence that the killing was justified, and that he
incurred no criminal liability therefor.

In order that defense of a stranger may be appreciated, the following requisites must
concur: (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.49

Unlawful aggression is the first and primordial element of self-defense. Of the three
requisites, it is the most important. Without it, the justifying circumstance cannot be
invoked. If there is no unlawful aggression, there is nothing to prevent or repel.50

Unlawful aggression refers to an attack or a threat to attack, positively showing the intent
of the aggressor to cause injury. It presupposes not merely a threatening or an
intimidating attitude, but an actual, sudden and unexpected attack or an imminent danger
thereof, which imperils one’s life or limb. Thus, when there is no peril, there is no
unlawful aggression.51

It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this
question in the negative. Aggression to be unlawful, must be actual and imminent, such
that there is a real threat of bodily harm to the person resorting to self-defense or to
others whom that person is seeking to defend.
Petitioner asserts that he was the victim’s next target, thus the need to shoot the victim
in self-defense. His claim should be disbelieved. As he himself had explicitly testified
before respondent court, the hummer jeep was behind him and was parked about three
to four meters from the national highway.52 He also stated that Paquito could not have
seen the hummer jeep because it was obscured by Muslim houses.53 It only follows that
if from Paquito’s perspective, he cannot see the hummer jeep which is a fairly large
vehicle, then he could not have seen petitioner as well. If Paquito cannot see petitioner
from where he was positioned, then Paquito could not have possibly aimed to shoot at
petitioner. Petitioner’s contention therefore that there was an imminent threat of bodily
harm coming from Paquito upon his person is at best illusory. There was no peril, ergo,
there was no unlawful aggression.

It should also be recalled that at the time, Cane was on top of the hummer jeep manning
the machine gun.54 If Regencia had indeed been shot as the defense insists, then Cane
was better situated to defend Regencia. It is implausible how an officer like him, in such
a strategic position and trained in the operation of the said weapon could have omitted
firing a shot in Regencia’s defense. More to the point, it is beyond credulity that the
outbursts of gunfire hardly elicited any reaction from the other police officers who were
only a few meters away from the crime scene and who continued conducting their search
on the bus which was then about to pass the checkpoint.55

Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing
that Paquito was still alive56 and in all probability was still holding a handgun,57
petitioner chose to assist Regencia instead of making sure that Paquito had been
immobilized and disarmed, basic to a policeman’s training.

In addition, the claim of the defense that Paquito shot Regencia on his right thigh is
untenable. Petitioner would have the Court believe that Paquito dared challenge five
policemen, four of them in full battlegear, at a checkpoint and armed with only a
handgun. This is contrary to ordinary human experience, as well as the human instinct
which is to flee for dear life and seek safety. If indeed Paquito was armed and had
criminal designs in his mind, the natural tendency upon seeing a checkpoint ahead
would be to abort one’s plans and leave the premises immediately. Petitioner’s story not
only was contrary to the ordinary course of nature and the ordinary habits of life, in all
appearances it was also contrived.58 Respondent court was correct in rejecting it.

We also confirm that the medical certificate presented by Regencia to prove that he had
been shot by the victim has no probative value. The physician who signed the same was
never presented as witness for the defense. We also note that the physician who signed
said medical certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the
doctor who according to Regencia had treated his wounds.59

It is also worthy of note that the defense never presented in evidence the gun Paquito
allegedly use to shoot Regencia. The gun was also not clearly identified. Unlawful
aggression on the part of the victim must be positively proved and said gun would have
been a vital evidence to establish this requisite.

Petitioner, however, insists that he would have presented the gun had not respondent
court pressured him to rest his case and submit it for decision. Such contention hardly
inspires belief. Records reveal that petitioner never made it known to respondent court
that the defense would be presenting the gun allegedly used by Paquito. What the
defense did manifest was their intention to present one Major Bartolino to testify that he
had received the gun allegedly used by Paquito and that he had brought it to the NBI on
30 September 1992 for examination. It should be underscored that the defense was not
even sure that there was an NBI report on said examination. The counsel for the defense
manifested before respondent court, as follows:
ATTY. ABUNDIENTE:

xxx

I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who
received the gun and he will testify on this particular testimony that he was the Station
Commander of the municipality of Kauswagan, Lanao del Norte at the time of the incident
and then he received this gun from the team of Capt. Regencia on August 5, 19 (sic) and
that he took the gun for NBI Examination sometime in the month of October, 1992, no, on
the 30th day of September, 1992.

CHAIRMAN:

This was covered by police blotter?

ATTY. ABUNDIENTE:

Yes, Your Honor.

CHAIRMAN:

You don’t need the testimony of Bartolini, but do you have the report of the NBI?

ATTY. ABUNDIENTE:

That is why, Your Honor, because we have not received any communication from
Bartolini . . .

CHAIRMAN:

How did you come to know that Bartolini sent this firearm to the NBI for examination? . . .

ATTY. ABUNDIENTE:

Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI
examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .

CHAIRMAN:

Does it matter – whether you can prove the examination report of the NBI or not?
ATTY. ABUNDIENTE:

I don’t know if there was a report of the NBI examination . . .

CHAIRMAN:

Precisely . . ."60

The defense was well aware of the relevance of the NBI report to prove their allegations
that the victim was carrying a gun and used the same on Regencia, especially since the
victim was reported to be negative of nitrates on his hands. No cogent reason could be
thought of for the failure to secure a copy of the report or even know of its existence. It
should be noted that the examination was made as early as September 1992. A party’s
failure to produce evidence, which if favorable would naturally have been produced, is
open to the inference that the facts were unfavorable to his case.61 This Court can only
conclude that said gun never existed, and this explains the failure of the defense to
present it before respondent court. Thus, it is immaterial to delve on the issue raised by
the petitioner on the discrepancy of the make of the gun as noted by respondent court in
its Decision.

Parenthetically, petitioner stresses that the victim had tested negative for gunpowder
nitrates as the latter had been wearing gloves at the time of the incident. This claim runs
counter to his62 and Regencia’s63 testimony that the only things recovered from Paquito
and which were turned over to the Provincial Police Command were the victim’s
motorcycle, sunglasses and the alleged gun. The police blotter reporting the incident
confirms their testimonies. Interestingly, said police blotter also makes no mention that
gloves were recovered from the victim.64

Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony
the version of the prosecution is anchored, we find that petitioner failed to impeach his
credibility. No evidence was shown that Zaragoza was actuated by an improper motive.
As such, there is no cogent reason why the Court should deny Zaragoza’s testimony the
full faith and credit it deserves.

On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to state that a

witness is not expected to remember an occurrence with perfect recollection of the
minute details. Thus, even the most

truthful of witnesses may err and often give confusing statements. What is important is
that Zaragosa unwaveringly, forthrightly and unequivocally declared that petitioner shot
at the victim. Neither did he falter in identifying the gunman.65

All in all, petitioner has failed to prove unlawful aggression on the part of the victim.
Without this essential element, petitioner cannot successfully invoke self-defense. Even
assuming that he tried to defend a stranger, his defense would not prosper. In defense of
a stranger, unlawful aggression on the part of the victim is also indispensable. In both
self-defense and defense of a stranger, unlawful aggression is a primordial element.

Granting arguendo that there was unlawful aggression, we find that petitioner’s
contention that he employed reasonable means to repel the aggression must fail. It is
settled that reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law requires is
rational equivalence.66

Also, the nature and number of wounds suffered by Paquito negate any claim of self-
defense or defense of a stranger. The Court notes that the victim sustained eight
gunshot wounds which were all fatal as they affected vital organs.67 Petitioner testified
that he pulled the trigger of his armalite twice.68 He aimed at "the front of his body, at the
chest, up to the stomach."69 Had petitioner merely defended himself from the victim’s
unlawful aggression, one shot to immobilize him would have been enough. There was no
reason for petitioner to shoot him seven more times, even aiming at his vital organs. It
bears repeating that the nature and number of wounds inflicted by the accused are
constantly and unremittingly considered as important indicia which disprove a plea for
self-defense or defense of stranger because they demonstrate a determined effort to kill
the victim and not just defend oneself.70 In the instant case, Paquito’s wounds serve to
tell us that petitioner was induced by revenge, resentment or other evil motive and that
he was set on killing the victim.

Petitioner’s avowal that his first shot was single but went automatic on the second shot
is likewise unbelievable.71 Petitioner’s armalite has a selector that switches it from
single shot to automatic. Since it was petitioner who was in possession of the firearm
and he admitted that he fired the shots, we reasonably conclude that it was he who
switched the firearm to automatic firing.

All told, petitioner failed to satisfy the requirements of self-defense and defense of a
stranger to justify the shooting of Paquito.

Next, petitioner contends that the killing of Paquito resulted from the lawful performance
of his duty as police officer. However, such justifying circumstance may be invoked only
after the defense successfully proves that the accused acted in the performance of a
duty, and the injury or offense committed is the necessary consequence of the due
performance or lawful exercise of such duty.72 These two requisites are wanting in this
case. The victim was not committing any offense at the time. Petitioner has not
sufficiently proven that the victim had indeed fired at Regencia. Killing the victim under
the circumstances of this case cannot in any wise be considered a valid performance of
a lawful duty by a man who had sworn to maintain peace and order and to protect the
lives of the people. As aptly held in People v. de la Cruz,73 "Performance of duties does
not include murder…. Murder is never justified, regardless of the victim."

A final word on the civil liability. An appeal in a criminal proceeding throws the whole
case open for review and it becomes the duty of the Court to correct any error in the
appealed judgment, whether it is made the subject of an assignment of error or not.
Therefore, we delete the award of ₱50,000.00 as actual damages. To seek recovery of
actual damages, it is necessary to prove the actual amount of loss with reasonable
degree of certainty premised upon competent proof and on the best evidence obtainable.
Since the prosecution did not present receipts to prove the actual losses suffered, such
actual damages cannot be awarded.74

On the other hand, consistent with prevailing jurisprudence, we award ₱50,000.00 by way
of indemnity ex delicto to the heirs of Paquito. When death occurs as a result of a crime,
the heirs of the deceased are entitled to such amount as indemnity for death without
need of any evidence or proof of damages.75

We also affirm the award of moral damages in view of the finding that Generoso Umas-as
lost consciousness and suffered anguish and sorrow because of the incident.
WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in
Criminal Case No. 19586 finding petitioner GUILTY of homicide is partially AFFIRMED
with the following MODIFICATIONS: (a) the award of Fifty Thousand Pesos (₱50,000.00)
as actual damages is deleted; and (b) petitioner is ordered to pay fifty thousand pesos
(₱50,000.00) as indemnity ex delicto. No costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

Avoidance of greater evil

- People v. Ricohermoso, 56 SCRA 431

G.R. Nos. L-30527-28 March 29, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL, ROSENDO
PERPEÑAN, MACARIO MONTEREY and RITO MONTEREY, defendants, JUAN
PADERNAL and SEVERO PADERNAL, defendants-appellants.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General

Antonio A. Torres and Trial Attorney Lolita C. Dumlao for plaintiff-appellee.

Rogerio S. T. Cadag for defendants-appellants.

AQUINO, J.:p

Severo Padernal and Juan Padernal appealed from the decision of the Circuit
Criminal Court at Lucena City, convicting them of murder, sentencing each of
them to reclusion perpetua and ordering them to pay solidarily the sum of
twelve thousand pesos to the heirs of Geminiano de Leon and to pay the costs
(Criminal Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca).

In the same decision they were convicted of lesiones leves. Each one was
sentenced to suffer the penalty of fifteen (15) days of arresto menor and to pay
the costs. Rosendo Perpeñan, Rito Monterey and Macario Monterey were
acquitted (Criminal Case No. CCC-IX-38-Quezon or 1923-CFI-Gumaca).

The facts disclosed in the prosecution's evidence, on which the judgment of

conviction was based, are as follows:

At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon,
together with his thirty-three-year old common-law wife Fabiana Rosales, his
twenty-four-year old son Marianito de Leon and one Rizal Rosales, encountered
Pio Ricohermoso in Barrio Tagbacan Silangan, Catanauan, Quezon.

Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated

as kaingin. Geminiano asked Ricohermoso about his share of the palay harvest.
He added that he should at least be allowed to taste the palay harvested from
his land. Ricohermoso answered that Geminiano could go to his house anytime
and he would give the latter palay. Geminiano rejoined that he could not get the
palay that morning because he was on his way to Barrio Bagobasin but, on his
return, he would stop at Ricohermoso's house and get the palay.

When Geminiano returned to Barrio Tagbacan Silangan, he stopped at

Ricohermoso's place. It was about two o'clock in the afternoon. Geminiano sat
on a sack beside Fabiana Rosales in front of the house while Marianito stood
about three meters behind his father. A .22 caliber rifle was slung on
Marianito's right shoulder. Ricohermoso stood near the door of his house while
Severo Padernal was stationed near the eaves of the house.

Geminiano asked Ricohermoso about the palay. The latter, no longer

conciliatory and evidently hostile, answered in a defiant tone: "Whatever
happens, I will not give you palay." Geminiano remonstrated: "Why did you tell
us to pass by your house, if you were not willing to give the palay?"

At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo

and approached Geminiano from the left, while Severo Padernal (Ricohermoso's
father-in-law) got an axe and approached Geminiano from the right. The latter
looked up to the sexagenarian Severo Padernal, with both hands raised and
pleaded: "Mamay (Grandpa), why will you do this to us. We will not fight you."
While Geminiano was still looking up to Severo Padernal on his right,
Ricohermoso walked to Geminiano's left, and, when about one meter from him,
stabbed him on the neck with his bolo. Geminiano fell face downward on the
ground. While in that helpless position, he was hacked on the back with an axe
by Severo Padernal.
At that same place and time, while Severo Padernal and Ricohermoso were
assaulting Geminiano de Leon, another episode was taking place. Juan Padernal
(Ricohermoso's brother-in-law and the son of Severo) suddenly embraced
Marianito de Leon from behind, with his right arm locked around Marianito's
neck and his left hand pressing Marianito's left forearm. They grappled and
rolled downhill towards a camote patch. Marianito passed out. When he
regained consciousness, his rifle was gone. He walked uphill, saw his mortally
wounded father Geminiano in his death throes, and embraced him. He carried
Geminiano for a short distance. The fifty-one year old Geminiano died at two
o'clock on that same day.

Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the

following wounds:

1. Wound, incised, neck, lateral aspect, left, cutting the carotid artery and
jugular vein, 4 inches in length crosswise with fracture of the cervical vertebra.

2. Wound, incised, back lumbar region, left, 4 ½ inches, directed anteriorly, 3

inches deep.

3. Wound, incised, waist, dorsal, 1 ½ inches, skin only.

4. Hematoma, forearm, upper third, left. (Exh. B).

Doctor Matundan said that the first wound was fatal. It could have caused
instantaneous death because it was a deep wound which pierced the carotid
artery and jugular vein (Exh. C). The second wound on the back could likewise
have caused the victim's death if it had penetrated the kidney.

Doctor Matundan found that Marianito de Leon sustained multiple abrasions on

the neck and abdomen and a lacerated wound on the left foot which would heal
from one to nine days even without medical treatment.

Appellants' version is that in the afternoon of January 30, 1965, when

Ricohermoso refused to give any palay to Geminiano de Leon, because the land
tilled by the former was allegedly a public land, Geminiano approached
Ricohermoso. When Geminiano unsheathed his bolo, Ricohermoso met him,
drew his bolo and struck Geminiano on the left side of the neck. The latter tried
to parry the blow. He was wounded in the wrist. As Geminiano turned right to
flee, Ricohermoso struck him again on the left side of his body, causing him to
fall on the ground. Geminiano died on the spot due to the bleeding from the
wound on his neck.

While Geminiano was being assaulted, his son Marianito tried to shoot with his
rifle but Juan Padernal disabled him and wrested the gun. Marianito suffered
abrasions on the neck and other parts of the body (Pages 1 to 3, appellants'
brief).

It is manifest that the defendants fashioned their version in such a way as to

shift the responsibility for the killing to Ricohermoso, a fugitive from justice who
has not been tried. They also tried to exculpate Severo Padernal and to prove
that Ricohermoso acted in self-defense.

The appellants filed their brief on February 6, 1970. Later, Severo Padernal
withdrew his appeal. The withdrawal was granted in the resolution dated
November 3, 1970 (Page 206, Rollo). That withdrawal strengthened the case for
the prosecution or the appellee and rendered inoperative appellants' version of
the case. Severo Padernal in effect accepted as correct the prosecution's version
of the tragic incident and the trial court's finding that he conspired with
Ricohermoso and his son, Juan, to kill Geminiano de Leon.

The only issue in this appeal, which concerns Juan Padernal, is whether he
conspired with Ricohermoso and Severo Padernal to kill Geminiano de Leon.

The trial court rationalized its conclusion that there was conspiracy by stating
that their conduct revealed unity of purpose and a concerted effort to
encompass Geminiano's death.

Appellant Juan Padernal invokes the justifying circumstance of avoidance of a

greater evil or injury (par. 4, Art. 11, Revised Penal Code) in explaining his act of
preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal.
His reliance on that justifying circumstance is erroneous. The act of Juan
Padernal in preventing Marianito de Leon from shooting Ricohermoso and
Severo Padernal, who were the aggressors, was designed to insure the killing of
Geminiano de Leon without any risk to his assailants.

Juan Padernal was not avoiding any evil when he sought to disable Marianito.
Padernal's malicious intention was to forestall any interference in the felonious
assault made by his father and brother-in-law on Geminiano. That situation is
unarguably not the case envisaged in paragraph 4 of article 11.

Juan Padernal contends that he was not a co-principal because he did not take
any direct part in the killing of Geminiano, that he did not force or induce
Ricohermoso to stab Geminiano and that he allegedly did not cooperate in its
commission. That contention is not well-taken.

It should be recalled that, in the morning, Geminiano had an understanding

with Ricohermoso that he (Geminiano) would return in the afternoon to get his
share of the palay harvest. Ricohermoso gave Geminiano the impression that he
(Ricohermoso) was amenable to giving Geminiano his share of the harvest.
However, during the interval, Ricohermoso changed his mind. Instead of
remaining steadfast to his original intention to give Geminiano palay,
Ricohermoso planned with his father-in-law, Severo Padernal, and his brother-
in-law, appellant Juan Padernal, the manner of liquidating Geminiano as to stop
him from pestering Ricohermoso with demands for a share in the harvest.

So, when Geminiano reappeared at Ricohermoso's place in the afternoon,

Severo Padernal, Ricohermoso Juan Padernal, like actors in a well-rehearsed
play, performed their assigned roles with dramatic precision. Severo Padernal
and Ricohermoso, one armed with an axe and the other with a bolo, in a pincer
movement, confronted Geminiano de Leon. Simultaneously with that
maneuver, the thirty-five-year old Juan Padernal embraced Marianito de Leon
and prevented him from firing at Severo Padernal and Ricohermoso or from
helping his father.

Considering the trio's behavior and appellant Juan Padernal's close relationship
to Ricohermoso and Severo Padernal, the ineluctable conclusion is that he acted
in conspiracy with them. He coordinated and timed his seizure of Marianito with
the assault of Ricohermoso and Severo Padernal on Geminiano. It is doubtful if
the assailants could have consummated the killing of Geminiano, without their
suffering any injury, if Marianito had not been rendered helpless by appellant
Juan Padernal.

The circumstances surrounding the killing of Geminiano de Leon alevosia or

treachery. His hands were raised and he was pleading for mercy with Severo
Padernal, when Ricohermoso struck him on the neck with a bolo. The fact that
an exchange of words preceded the assault would not negate the treacherous
character of the attack. Geminiano did not expect that Ricohermoso would
renege on his promise to give him palay and that he would adopt a bellicose
attitude. Juan Padernal's role of weakening the defense, by disabling Marianito
de Leon, was part and parcel of the means of execution deliberately resorted to
by the assailants to insure the assassination of Geminiano de Leon without any
risk to themselves (Par. 16, Article 14, Revised Penal Code).

Treachery was appreciated in a case where the accused fired at the victim who,
with hands upraised, pleaded in a loud voice: "Do not shoot me; investigate first
what was my fault" (People vs. Barba, 97 Phil. 991. See People vs. Dagundong,
108 Phil. 682, 684, 693).

As to the other case, L-30528, the charge against the appellants was attempted
murder with respect to Marianito de Leon. The trial court convicted them
lesiones leves. The case was included in this appeal apparently pursuant to the
provision in section 17(1) of the Judiciary Law that a case arising out of the same
occurrence, as that in which reclusion perpetua was imposed, is appealable to
this Court.

Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his
brief, he, like his father Severo, seems to have acquiesced in the correctness of
the trial court's decision.

WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is

affirmed with costs against him.

SO ORDERED.

- Ty v. People (27 Sept 2004

G.R. No. 149275 September 27, 2004

VICKY C. TY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:
Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule 45,
seeking to set aside the Decision1 of the Court of Appeals Eighth Division in CA-
G.R. CR No. 20995, promulgated on 31 July 2001. The Decision affirmed with
modification the judgment of the Regional Trial Court (RTC) of Manila, Branch
19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of
Batas Pambansa Blg. 222 (B.P. 22), otherwise known as the Bouncing Checks
Law.

This case stemmed from the filing of seven (7) Informations for violation of B.P.
22 against Ty before the RTC of Manila. The Informations were docketed as
Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion of the
Information in Criminal Case No. 93-130465 reads as follows:

That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors’ Hospital to apply on account or for value to Editha
L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila
Doctors Hospital in the amount of ₱30,000.00, said accused well knowing that at
the time of issue she did not have sufficient funds in or credit with the drawee
bank for payment of such check in full upon its presentment, which check when
presented for payment within ninety (90) days from the date hereof, was
subsequently dishonored by the drawee bank for "Account Closed" and despite
receipt of notice of such dishonor, said accused failed to pay said Manila
Doctors Hospital the amount of the check or to make arrangement for full
payment of the same within five (5) banking days after receiving said notice.

Contrary to law.3

The other Informations are similarly worded except for the number of the
checks and dates of issue. The data are hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount

93-130459 487710 30 March 1993 ₱30,000.00
93-130460 487711 30 April 1993 ₱30,000.00
93-130461 487709 01 March 1993 ₱30,000.00
93-130462 487707 30 December 1992 ₱30,000.00
93-130463 487706 30 November 1992 ₱30,000.00
93-130464 487708 30 January 1993 ₱30,000.00
93-130465 487712 30 May 1993 ₱30,000.004
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded
not guilty.5

The evidence for the prosecution shows that Ty’s mother Chua Lao So Un was
confined at the Manila Doctors’ Hospital (hospital) from 30 October 1990 until 4
June 1992. Being the patient’s daughter, Ty signed the "Acknowledgment of
Responsibility for Payment" in the Contract of Admission dated 30 October
1990.6 As of 4 June 1992, the Statement of Account7 shows the total liability of
the mother in the amount of ₱657,182.40. Ty’s sister, Judy Chua, was also
confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital
bills in the amount of ₱418,410.55.8 The total hospital bills of the two patients
amounted to ₱1,075,592.95. On 5 June 1992, Ty executed a promissory note
wherein she assumed payment of the obligation in installments.9 To assure
payment of the obligation, she drew several postdated checks against
Metrobank payable to the hospital. The seven (7) checks, each covering the
amount of ₱30,000.00, were all deposited on their due dates. But they were all
dishonored by the drawee bank and returned unpaid to the hospital due to
insufficiency of funds, with the "Account Closed" advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail. As the
demand letters were not heeded, complainant filed the seven (7) Informations
subject of the instant case.10

For her defense, Ty claimed that she issued the checks because of "an
uncontrollable fear of a greater injury." She averred that she was forced to issue
the checks to obtain release for her mother whom the hospital inhumanely and
harshly treated and would not discharge unless the hospital bills are paid. She
alleged that her mother was deprived of room facilities, such as the air-
condition unit, refrigerator and television set, and subject to inconveniences
such as the cutting off of the telephone line, late delivery of her mother’s food
and refusal to change the latter’s gown and bedsheets. She also bewailed the
hospital’s suspending medical treatment of her mother. The "debasing
treatment," she pointed out, so affected her mother’s mental, psychological and
physical health that the latter contemplated suicide if she would not be
discharged from the hospital. Fearing the worst for her mother, and to comply
with the demands of the hospital, Ty was compelled to sign a promissory note,
open an account with Metrobank and issue the checks to effect her mother’s
immediate discharge.11

Giving full faith and credence to the evidence offered by the prosecution, the
trial court found that Ty issued the checks subject of the case in payment of the
hospital bills of her mother and rejected the theory of the defense.12 Thus, on
21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7)
counts of violation of B.P. 22 and sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks
in payment of a valid obligation, which turned unfounded on their respective
dates of maturity, is found guilty of seven (7) counts of violations of Batas
Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.

SO ORDERED.13

Ty interposed an appeal from the Decision of the trial court. Before the Court of
Appeals, Ty reiterated her defense that she issued the checks "under the
impulse of an uncontrollable fear of a greater injury or in avoidance of a greater
evil or injury." She also argued that the trial court erred in finding her guilty
when evidence showed there was absence of valuable consideration for the
issuance of the checks and the payee had knowledge of the insufficiency of
funds in the account. She protested that the trial court should not have applied
the law mechanically, without due regard to the principles of justice and
equity.14

In its Decision dated 31 July 2001, the appellate court affirmed the judgment of
the trial court with modification. It set aside the penalty of imprisonment and
instead sentenced Ty "to pay a fine of sixty thousand pesos (₱60,000.00)
equivalent to double the amount of the check, in each case."15

In its assailed Decision, the Court of Appeals rejected Ty’s defenses of

involuntariness in the issuance of the checks and the hospital’s knowledge of
her checking account’s lack of funds. It held that B.P. 22 makes the mere act of
issuing a worthless check punishable as a special offense, it being a malum
prohibitum. What the law punishes is the issuance of a bouncing check and not
the purpose for which it was issued nor the terms and conditions relating to its
issuance.16

Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in payment of
the hospital bills of Ty’s mother.17

In sentencing Ty to pay a fine instead of a prison term, the appellate court

applied the case of Vaca v. Court of Appeals18 wherein this Court declared that
in determining the penalty imposed for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence Law should be observed, i.e., redeeming
valuable human material and preventing unnecessary deprivation of personal
liberty and economic usefulness, with due regard to the protection of the social
order.19

Petitioner now comes to this Court basically alleging the same issues raised
before the Court of Appeals. More specifically, she ascribed errors to the
appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED

TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF
THE SUBJECT CHECKS.

B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE

FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE

CONSIDERATION IN THE ISSUANCE OF THE SUBJECT CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY

AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL

COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY,
WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.

In its Memorandum,20 the Office of the Solicitor General (OSG), citing

jurisprudence, contends that a check issued as an evidence of debt, though not
intended to be presented for payment, has the same effect as an ordinary
check; hence, it falls within the ambit of B.P. 22. And when a check is presented
for payment, the drawee bank will generally accept the same, regardless of
whether it was issued in payment of an obligation or merely to guarantee said
obligation. What the law punishes is the issuance of a bouncing check, not the
purpose for which it was issued nor the terms and conditions relating to its
issuance. The mere act of issuing a worthless check is malum prohibitum.21

We find the petition to be without merit and accordingly sustain Ty’s conviction.

Well-settled is the rule that the factual findings and conclusions of the trial court
and the Court of Appeals are entitled to great weight and respect, and will not
be disturbed on appeal in the absence of any clear showing that the trial court
overlooked certain facts or circumstances which would substantially affect the
disposition of the case.22 Jurisdiction of this Court over cases elevated from the
Court of Appeals is limited to reviewing or revising errors of law ascribed to the
Court of Appeals whose factual findings are conclusive, and carry even more
weight when said court affirms the findings of the trial court, absent any
showing that the findings are totally devoid of support in the record or that they
are so glaringly erroneous as to constitute serious abuse of discretion.23

In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of
Appeals.

Ty does not deny having issued the seven (7) checks subject of this case. She,
however, claims that the issuance of the checks was under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a greater evil or injury.
She would also have the Court believe that there was no valuable consideration
in the issuance of the checks.

However, except for the defense’s claim of uncontrollable fear of a greater

injury or avoidance of a greater evil or injury, all the grounds raised involve
factual issues which are best determined by the trial court. And, as previously
intimated, the trial court had in fact discarded the theory of the defense and
rendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments unsuccessfully

raised before the trial court and the Court of Appeals. They likewise put to issue
factual questions already passed upon twice below, rather than questions of
law appropriate for review under a Rule 45 petition.

The only question of law raised--whether the defense of uncontrollable fear is

tenable to warrant her exemption from criminal liability--has to be resolved in
the negative. For this exempting circumstance to be invoked successfully, the
following requisites must concur: (1) existence of an uncontrollable fear; (2) the
fear must be real and imminent; and (3) the fear of an injury is greater than or
at least equal to that committed.24

It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to it.25 It
should be based on a real, imminent or reasonable fear for one’s life or limb.26
A mere threat of a future injury is not enough. It should not be speculative,
fanciful, or remote.27 A person invoking uncontrollable fear must show
therefore that the compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as well.28 It must be
of such character as to leave no opportunity to the accused for escape.29

In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checks--a condition the
hospital allegedly demanded of her before her mother could be discharged--for
fear that her mother’s health might deteriorate further due to the inhumane
treatment of the hospital or worse, her mother might commit suicide. This is
speculative fear; it is not the uncontrollable fear contemplated by law.

To begin with, there was no showing that the mother’s illness was so life-
threatening such that her continued stay in the hospital suffering all its alleged
unethical treatment would induce a well-grounded apprehension of her death.
Secondly, it is not the law’s intent to say that any fear exempts one from
criminal liability much less petitioner’s flimsy fear that her mother might
commit suicide. In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere instrument
without will, moved exclusively by the hospital’s threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to
commit a crime. She did not take advantage of the many opportunities available
to her to avoid committing one. By her very own words, she admitted that the
collateral or security the hospital required prior to the discharge of her mother
may be in the form of postdated checks or jewelry.30 And if indeed she was
coerced to open an account with the bank and issue the checks, she had all the
opportunity to leave the scene to avoid involvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks

without funds may result in a violation of B.P. 22. She even testified that her
counsel advised her not to open a current account nor issue postdated checks
"because the moment I will not have funds it will be a big problem."31 Besides,
apart from petitioner’s bare assertion, the record is bereft of any evidence to
corroborate and bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospital’s demands.

Ty likewise suggests in the prefatory statement of her Petition and

Memorandum that the justifying circumstance of state of necessity under par. 4,
Art. 11 of the Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to exempt
the actor from liability under this paragraph: (1) that the evil sought to be
avoided actually exists; (2) that the injury feared be greater than the one done
to avoid it; (3) that there be no other practical and less harmful means of
preventing it.32

In the instant case, the evil sought to be avoided is merely expected or

anticipated. If the evil sought to be avoided is merely expected or anticipated or
may happen in the future, this defense is not applicable.33 Ty could have taken
advantage of an available option to avoid committing a crime. By her own
admission, she had the choice to give jewelry or other forms of security instead
of postdated checks to secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater injury
feared should not have been brought about by the negligence or imprudence,
more so, the willful inaction of the actor.34 In this case, the issuance of the
bounced checks was brought about by Ty’s own failure to pay her mother’s
hospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state of
necessity to absolve her of liability. It would not have been half as bizarre had
Ty been able to prove that the issuance of the bounced checks was done
without her full volition. Under the circumstances, however, it is quite clear that
neither uncontrollable fear nor avoidance of a greater evil or injury prompted
the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil
Case35 for damages filed by Ty’s mother against the hospital is wholly irrelevant
for purposes of disposing the case at bench. While the findings therein may
establish a claim for damages which, we may add, need only be supported by a
preponderance of evidence, it does not necessarily engender reasonable doubt
as to free Ty from liability.

As to the issue of consideration, it is presumed, upon issuance of the checks, in

the absence of evidence to the contrary, that the same was issued for valuable
consideration.36 Section 2437 of the Negotiable Instruments Law creates a
presumption that every party to an instrument acquired the same for a
consideration38 or for value.39 In alleging otherwise, Ty has the onus to prove
that the checks were issued without consideration. She must present convincing
evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her burden
of proof. "Valuable consideration may in general terms, be said to consist either
in some right, interest, profit, or benefit accruing to the party who makes the
contract, or some forbearance, detriment, loss or some responsibility, to act, or
labor, or service given, suffered or undertaken by the other aide. Simply
defined, valuable consideration means an obligation to give, to do, or not to do
in favor of the party who makes the contract, such as the maker or indorser."40

In this case, Ty’s mother and sister availed of the services and the facilities of
the hospital. For the care given to her kin, Ty had a legitimate obligation to pay
the hospital by virtue of her relationship with them and by force of her
signature on her mother’s Contract of Admission acknowledging responsibility
for payment, and on the promissory note she executed in favor of the hospital.

Anent Ty’s claim that the obligation to pay the hospital bills was not her
personal obligation because she was not the patient, and therefore there was
no consideration for the checks, the case of Bridges v. Vann, et al.41 tells us that
"it is no defense to an action on a promissory note for the maker to say that
there was no consideration which was beneficial to him personally; it is
sufficient if the consideration was a benefit conferred upon a third person, or a
detriment suffered by the promisee, at the instance of the promissor. It is
enough if the obligee foregoes some right or privilege or suffers some detriment
and the release and extinguishment of the original obligation of George Vann,
Sr., for that of appellants meets the requirement. Appellee accepted one debtor
in place of another and gave up a valid, subsisting obligation for the note
executed by the appellants. This, of itself, is sufficient consideration for the new
notes."

At any rate, the law punishes the mere act of issuing a bouncing check, not the
purpose for which it was issued nor the terms and conditions relating to its
issuance.42 B.P. 22 does not make any distinction as to whether the checks
within its contemplation are issued in payment of an obligation or to merely
guarantee the obligation.43 The thrust of the law is to prohibit the making of
worthless checks and putting them into circulation.44 As this Court held in Lim
v. People of the Philippines,45 "what is primordial is that such issued checks
were worthless and the fact of its worthlessness is known to the appellant at
the time of their issuance, a required element under B.P. Blg. 22."

The law itself creates a prima facie presumption of knowledge of insufficiency of

funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The making, drawing
and issuance of a check payment of which is refused by the drawee bank
because of insufficient funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer
pays the holder thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.

Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.46 If not rebutted, it suffices to sustain a conviction.47

Petitioner likewise opines that the payee was aware of the fact that she did not
have sufficient funds with the drawee bank and such knowledge necessarily
exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the drawer
with the drawee bank is immaterial as deceit is not an essential element of an
offense penalized by B.P. 22. The gravamen of the offense is the issuance of a
bad check, hence, malice and intent in the issuance thereof is
inconsequential.48

In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this

Court inquired into the true nature of transaction between the drawer and the
payee and finally acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special attention and do not
warrant a strict and mechanical application of the law.

Petitioner’s reliance on the case is misplaced. The material operative facts

therein obtaining are different from those established in the instant petition. In
the 1992 case, the bounced checks were issued to cover a "warranty deposit" in
a lease contract, where the lessor-supplier was also the financier of the deposit.
It was a modus operandi whereby the supplier was able to sell or lease the
goods while privately financing those in desperate need so they may be
accommodated. The maker of the check thus became an unwilling victim of a
lease agreement under the guise of a lease-purchase agreement. The maker did
not benefit at all from the deposit, since the checks were used as collateral for
an accommodation and not to cover the receipt of an actual account or credit
for value.
In the case at bar, the checks were issued to cover the receipt of an actual
"account or for value." Substantial evidence, as found by the trial court and
Court of Appeals, has established that the checks were issued in payment of the
hospital bills of Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the penalty of

imprisonment, absent any proof that petitioner was not a first-time offender
nor that she acted in bad faith. Administrative Circular 12-2000,50 adopting the
rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the non-
imposition of the penalty of imprisonment in B.P. 22 cases subject to certain
conditions. However, the Court resolves to modify the penalty in view of
Administrative Circular 13-200153 which clarified Administrative 12-2000. It is
stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.

Thus, Administrative Circular 12-2000 establishes a rule of preference in the

application of the penal provisions of B.P. Blg. 22 such that where the
circumstances of both the offense and the offender clearly indicate good faith or
a clear mistake of fact without taint of negligence, the imposition of a fine alone
should be considered as the more appropriate penalty. Needless to say, the
determination of whether circumstances warrant the imposition of a fine alone
rests solely upon the Judge. Should the judge decide that imprisonment is the
more appropriate penalty, Administrative Circular No. 12-2000 ought not be
deemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000 does not

remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the
judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice, or whether
forbearing to impose imprisonment would depreciate the seriousness of the
offense, work violence on the social order, or otherwise be contrary to the
imperatives of justice; (3) should only a fine be imposed and the accused unable
to pay the fine, there is no legal obstacle to the application of the Revised Penal
Code provisions on subsidiary imprisonment.54

WHEREFORE, the instant Petition is DENIED and the assailed Decision of the
Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of
violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS.
Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the
amount of each dishonored check subject of the seven cases at bar with
subsidiary imprisonment in case of insolvency in accordance with Article 39 of
the Revised Penal Code. She is also ordered to pay private complainant, Manila
Doctors’ Hospital, the amount of Two Hundred Ten Thousand Pesos
(₱210,000.00) representing the total amount of the dishonored checks. Costs
against the petitioner.

SO ORDERED.

Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario*, JJ., concur.

Footnotes

1 Penned by Justice Perlita J. Tria Tirona, concurred in by Justices Eugenio S.

Labitoria and Eloy R. Bello, Jr.

2 Entitled "An Act Penalizing the Making or Drawing and Issuance of a Check
Without Sufficient Funds or Credit and for Other Purposes."

3 Rollo, p. 44; See also Rollo, pp. 92 and 109.

4 Ibid; See also Rollo, pp. 62 and 93.

5 Id. at 44, 62, 93.

6 Id. at 46; Exhibits C and C-1.

7 Ibid.; Exhibits D, D-1 to D-3.

8 Exhibit D-4.

9 Supra, note 3 at 61, citing Exhibits E and E-1.

10 Id. at 46-47; See also Respondent’s Comment, Rollo, pp. 60-61 and
Respondent’s Memorandum, Rollo, pp. 90-91.

11 Id. at 47 and 49.

12 Id. at 48.

13 Id. at 44-45; Written by Honorable Zenaida R. Daguna, Presiding Judge.

14 Id. at 51.

15 Id. at 53.

16 Id. at 51-52; Citations omitted.

17 Id. at 51.

18 G.R. No. 131714, 16 November 1998, 298 SCRA 656, 659.

19 Supra, note 3 at 53.

20 Id. at 90-102; Dated 11 September 2002.

21 Id. at 95-96; Citations omitted.

22 Spouses Villarico v. Court of Appeals, G.R. No. 105912, 28 June 1999, 309
SCRA 193; Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436.

23 Alipoon v. Court of Appeals, G.R. No. 127523, 22 March 1999, 305 SCRA 118;
Perez v. Court of Appeals, G.R. No. 107737, 1 October 1999, 316 SCRA 43; Baguio
v. Republic of the Philippines, G.R. No. 119682, 21 January 1999, 301 SCRA 450;
Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436.

24 People v. Petenia, No. L-51256, 12 August 1986, 143 SCRA 361, 369.
25 U.S. v. Elicanal, No. 11439, 35 Phil 209, 212, 213 (1916).

26 People v. Abanes, No. L-30609, 28 September 1976, 73 SCRA 44, 47; People v.
Loreno, No. L-54414, 9 July 1984, 130 SCRA 311, 321, 322; People v. Serrano, No.
L-45382, 13 May 1985, 136 SCRA 399, 405.

27 People v. Jesus, No. L-2313, 88 Phil. 53, 56 (1951); People v. Palencia, No. L-
38957, 30 April 1976, 71 SCRA 679, 690; See also Aquino, The Revised Penal
Code, 1997 Edition, Vol. 1, p. 234 and Gregorio, Fundamentals of Criminal Law
Review, 1997 Edition, p. 79.

28 People v. Tami, G.R. Nos. 101801-03, 2 May 1995, 244 SCRA 1, 23.

29 People v. Villanueva, No. L-9529, 104 Phil. 450, 464 (1958), Citation omitted;
People v. De Los Reyes, G.R. No. 44112, 22 October 1992, 215 SCRA 63, 70; See
also People v. Nuñez, G.R. Nos. 112429-30, 341 Phil 817, 828 (1997).

30 Supra, note 3 at 15 and 112; See also TSN dated September 19, 1994, p. 24.

31 TSN dated September 19, 1994, p. 25.

32 Par. 4, Art. 11, Revised Penal Code.

33 Reyes, The Revised Penal Code, 1998 Edition, Book 1, p. 191.

34 Id. at 192.

35 Entitled "So Un Chua v. Manila Doctors’ Hospital," Civil Case No. 63958,
Regional Trial Court of Pasig, Branch 159.

36 Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436; Sec. 24, The
Negotiable Instruments Law.

37 SEC. 24. Presumption of consideration.- Every negotiable instrument is

deemed prima facie to have been issued for valuable consideration; and every
person whose signature appears thereon to have become a party thereto, for
value.

38 SEC. 25. Value; What constitutes.- Value is any consideration sufficient to

support a simple contract. An antecedent or pre-existing debt constitutes value,
and is deemed such whether the instrument is payable on demand or at a
future date.

39 SEC. 191. Definitions and meaning of terms.- In this Act, unless the context
otherwise requires:

xxx

"Value" means valuable consideration.

40 Agbayani, Aguedo, Commentaries and Jurisprudence on the Commercial

Laws of the Philippines, 1992 Edition, p. 235; Citations omitted.

41 88 Kan 98, 127 Pacific Reporter 604, 9 November 1912; Citations omitted.

42 Llamado v. Court of Appeals, G.R. No. 99032, 26 March 1997, 270 SCRA 423;
Aguirre v. People, G.R. No. 144142, 23 August 2001, 363 SCRA 672; Abarquez v.
Court of Appeals, G.R. No. 148557, 7 August 2003, 408 SCRA 500; Lazaro v. Court
of Appeals. G.R. No. 105461, 11 November 1993, 227 SCRA 723.

43 Llamado v. Court of Appeals, supra.

44 Caram Resources Corp. v. Contreras, Adm. Matter No. MJT-93-849, 26

October 1994, 237 SCRA 724; Cruz v. Court of Appeals, G.R. No. 108738, 17 June
1994, 233 SCRA 301.

45 G.R. No. 143231, 26 October 2001, 368 SCRA 436.

46 Meriz v. People, G.R. No. 134498, 13 November 2001, 368 SCRA 524.

47 Rosa Lim v. People. G.R. No. 130038, 18 September 2000, 340 SCRA 497.
48 Cruz v. Court of Appeals, G.R. No. 108738, 17 June 1994, 233 SCRA 301.

49 G.R. No. 96132, 26 June 1992, 210 SCRA 471.

50 Issued on 21 November 2000.

51 Supra note 14.

52 Supra note 27.

53 Issued on 14 February 2001.

54 Abarquez v. Court of Appeals, G.R. No. 148557, 7 August 2003, 408 SCRA 500.

Fulfillment of duty or lawful exercise of right/office

- People v. Delima (1922)

G.R. No. L-18660 December 22, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him,
found him in the house of Jorge Alegria, armed with a pointed piece of bamboo
in the shape of a lance, and demanded his surrender. The fugitive answered
with a stroke of his lance. The policeman dodged, it, and to impose his authority
fired his revolver, but the 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.

The policeman was tried and convicted for homicide and sentenced to reclusion
temporal and the accessory penalties. He appeals from that judgment which
must be reversed.

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 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, was justified by the circumstances.lawphil.net

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.

- Mamagun v. People (2007)

G.R. No. 149152 February 2, 2007

RUFINO S. MAMANGUN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino
Mamangun y Silverio seeks the reversal of the Decision1 dated January 19, 2001
(promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case
No. 21131, convicting him of the crime of Homicide.

The factual backdrop:

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 Information,2 docketed as Criminal Case No. 21131, as follows:

That on or about the 31st day of July 1992, in the Municipality of Meycauyan,
(sic) Province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, 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, with intent to kill, did then and there willfully,
unlawfully and feloniously, with treachery, evident premeditation and abuse of
superior strength, attack, assault and 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.

CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel de

oficio, entered a plea of "Not Guilty."

In the ensuing trial, the prosecution presented in evidence the testimonies of

Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then
the designated Medico-Legal Officer of Bulacan who performed an autopsy on
the cadaver of the victim.

For its part, the defense adduced in evidence the testimonies of the accused
himself, 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. 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, owner of the house on which rooftop the shooting of the
victim took place.

It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy.
Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
"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.

At about 9:00 o’clock that same evening, the desk officer of the Meycauayan
PNP 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 Patrol Car No. 601 composed of Team Leader SPO1 Andres Legaspi,
with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and
Patrol Car No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with
PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of Abacan,
petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house
whereat the suspect was allegedly taking refuge.

The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn
handgun, searched the rooftop. There, they saw a man whom they thought was
the robbery suspect. At that instance, petitioner Mamangun, who was walking
ahead of the group, fired his handgun once, hitting the man. The man turned
out to be Gener Contreras (Contreras) who was not the robbery suspect.

Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito
B. Caballero yielded the following findings:

The cause of death was "Shock due to massive external and internal
hemorrhage due to multiple gunshot wounds in the left arm side of the thorax,
penetrating the left lung and vertebral column." There were several wounds
caused by one (1) bullet.

As shown on the sketch of human body attached to the Certificate of Death, and
as 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 where the slug was found." From a layman’s appreciation of
the sketch, the bullet entered the outer, upper left arm of the victim, exited
through the inner side of the said upper left arm, a little lower than the left
armpit and the slug lodging on the victim’s back where it was recovered at the
vertebral column.3

From the foregoing admitted or undisputed facts, the prosecution and the
defense presented conflicting versions as to how the fatal shooting of Contreras
by petitioner Mamangun actually happened.

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 was following petitioner Mamangun who was ahead of the group.
They passed through the second-floor door of the house to the rooftop. The
roof was lighted by an incandescent bulb from an adjacent house. He was
beside Mamangun when they saw, some four to five arms-length away, a man
whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45
cal. pistol at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which
Mamangun replied, "Anong hindi ako?" Before he (Ayson) could say anything,
Mamangun fired his gun, hitting the man who turned out to be Contreras. He
(witness) approached the victim who was then lying on 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.

The defense has its own account of what purportedly actually

transpired.1awphi1.net

PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of
Ayson at the rooftop during the shooting incident. Corroborating one another,
the three testified that they were the only ones at the scene of the shooting,
and that it was dark. They claimed that each of them, with Mamangun on the
lead, went on separate 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. Thinking that the person was the suspect they
were looking for, Mamangun chased said person. They announced that they
were police officers but the person continued to run in a crouching position until
Mamangun caught up with him and shouted, "Pulis. Tigil," whereupon the
person suddenly stopped, turned around, faced Mamangun, 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 who told them, "Hindi ako. Hindi ako." Mamangun went near
Contreras and 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 incident, Mamangun reported the same to the desk
officer, POI Filomeno de Luna, who advised him to remain in the police station.
De Luna directed Police Investigator 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 about three (3) feet long on the
depressed portion of the roof.

On January 19, 2001, after due proceedings, the Sandiganbayan came out with
its decision4 finding the petitioner guilty beyond reasonable doubt of only the
crime of Homicide. In so finding, the Sandiganbayan did not appreciate the
presence of the aggravating circumstances of treachery, evident premeditation
and abuse of superior 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 that the crime of Homicide was attended by an
incomplete justifying circumstance of the petitioner having acted in the
performance of his duty as a policeman, and also appreciated in his favor the
generic mitigating circumstance of voluntary surrender. Dispositively, the
decision reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY

beyond reasonable doubt of the crime of Homicide, defined and penalized
under Article 249, Revised Penal Code, and taking into account the attendance
of one (1) privileged mitigation (sic) circumstance, one generic circumstance and
no aggravating circumstance, he is hereby sentenced under the Indeterminate
Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years
and Three (3) Months of prision correctional as minimum, to Seven (7) years of
prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras
in the total amount of P352,025.00, and to past the costs.

SO ORDERED.

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 to apply paragraph 5, Article 11, of the Revised Penal Code,
which would have absolved him from criminal liability on the basis of his
submission that the shooting in question was done in the performance of a duty
or in the lawful exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the demise
of Contreras, was justified because he was repelling Contreras’ unlawful attack
on his person, as Contreras was then about to strike him on the head with a
steel pipe.

We are not persuaded.

Well-settled is the rule that factual findings of the Sandiganbayan are conclusive
upon the Court except where: (1) the conclusion is a finding grounded entirely
on speculations, surmises and conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on
misapprehension of facts and the findings of fact are premised on the absence
of evidence and are contradicted by the evidence on record.5 None of these
exceptions obtains in this case.

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 the killing was done in the fulfillment of his duty as a policeman.
The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of
the Revised Penal Code may be invoked only after the defense successfully
proves that: (1) the accused acted in the performance of a duty; and (2) the
injury inflicted or offense committed is the necessary consequence of the due
performance or lawful exercise of such duty.7

Concededly, the first requisite is present in this case. Petitioner, a police officer,
was responding to a robbery-holdup incident. His presence at the situs of the
crime was in accordance with the performance of his duty. However, proof that
the shooting and ultimate death of Contreras was a necessary consequence of
the due performance of his duty as a policeman is essential to exempt him from
criminal liability.

As we see it, petitioner’s posturing that he shot Contreras because the latter
tried to strike him with a steel pipe was a mere afterthought to exempt him
from criminal liability.

We see no plausible basis to depart from the Sandiganbayan’s findings that

there was no reason for the petitioner to shoot Contreras. The latter was
unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the
petitioner fatally shot him on the left arm. Prosecution witness Ayson, who was
then behind the petitioner when the latter shot Contreras, testified that to the
victim’s utterances, the petitioner even responded, "Anong hindi ako," and
immediately shot Contreras.8 As correctly observed by the Sandiganbayan:

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-
policemen-witnesses that the victim (Contreras) attacked the said accused and
(2) their seemingly "positive" identification of the stainless steel pipe (more of a
rod) as his weapon, to be of doubtful credibility, for the following reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz,
the three policemen appropriately identified themselves as police officers as
they started chasing the man they saw "crouching," and, as claimed by accused
PO2 Rufino Mamangun, that, as he was about to catch up with said man, he
shouted, "Pulis! Tigil!" With all these introductions and forewarnings, it is
utterly incredible and contrary to human experience that, that man, later
identified to be Gener Contreras and admittedly not the person they were
looking for, purportedly armed only with a stainless steel "lead" pipe (more of a
rod) would suddenly stop, turn around and attack one of the three policemen
who were chasing him, one after the other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after being shot by accused
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 are not
the one?" This admission clearly belies the claim of the police-witnesses that
Gener Contreras attacked the accused policeman with an iron pipe when he was
shot, for the accused should have asked the latter question.

(3) The location of the entry of the bullet fired by accused Mamangun which is
at the outer left arm at about the bicep of the victim and its trajectory as it
penetrated his body hitting his vital organs along the way belies the claim of the
accused that the victim was facing him and had just missed his head with an
iron pipe, as instead the victim must have instinctively shielded his body with
his left arm.

Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is
intriguing. As it is, petitioner did not report the same to Police Investigator
Banez 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 petitioner conveniently remembered Contreras trying to hit
him with a pipe. Such a vital information could not have escaped the
petitioner’s mind. We are thus inclined to believe that the alleged actuation of
Contreras, which could have justified petitioner’s shooting him, was nothing but
a concocted story to evade criminal liability. Indeed, knowing that he shot
Contreras, the least that the petitioner should have done was to bring with him
to the police station the very pipe with which Contreras tried to attack him. As
borne by the evidence, however, it was only after a police investigator referred
to the scene that the lead pipe surfaced.

Petitioner would likewise argue that the testimony of prosecution witness

Ayson was incredible and riddled with inconsistencies.

The alleged contradictions cited by the petitioner, i.e. where the victim was
shot, where he died, and as to whether Ayson left his house after the shooting
incident, are 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 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 rehearsed.9
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 clarified that the victim was already at the rooftop even before the arrival
of the police officers. As to why he was not able to warn Mamangun that the
victim was his 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 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 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 would detain him.12

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

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 the victim to justify a claim of self defense was absent.
Lacking this essential and primary element of unlawful aggression, petitioner’s
plea of self-defense, complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completely

justify the petitioner’s firing the fatal gunshot at the victim. True, petitioner, as
one of the 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 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 duty, there can only be
incomplete justification, a privileged mitigating circumstance under Articles 13
and 69 of the Revised Penal Code.

There can be no quibbling that there was no rational necessity for the killing of
Contreras. Petitioner could have first fired a warning shot before pulling the
trigger against Contreras who was one of the residents chasing the suspected
robber.

All told, we find no reversible error committed by the Sandiganbayan in

convicting the petitioner of the crime of Homicide attended by the privileged
mitigating circumstance of incomplete justifying circumstance of having acted in
the performance of his duty as a policeman and the generic mitigating
circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of
the Sandiganbayan is AFFIRMED in all respects.

No pronouncement as to costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

Obedience to an order issued for some lawful purpose

- People v. Beronilla 96 SCRA 566
G.R. No. L-4445 February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO
ADRIATICO, defendants-appellants.

Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.

Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles
and Martiniano P. Vivo for appellee.

REYES, J.B.L., J.:

This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino

Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance
of Abra (Criminal Case No. 70) convicting them of murder for the execution of
Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province
of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war,
and continued to serve as Mayor during the Japanese occupation, until March
10, 1943, when he moved to Bangued because of an attempt upon his life by
unknown persons. On December 18, 1944, appellant Manuel Beronilla was
appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental
commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit
in the province of Abra. Simultaneously with his appointment as Military Mayor,
Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all
Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12
bolomen to try persons accused of treason, espionage, or the aiding and
abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of
the 15th Infantry a list of all puppet government officials of the province of Abra
(which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum
instructing all Military Mayors to investigate said persons and gather against
them complaints from people of the municipality for collaboration with the
enemy (Exhibit 12-a).

Sometime in March, 1945, while the operations for the liberation of the
province of Abra were in progress, Arsenio Borjal returned to La Paz with his
family in order to escape the bombing of Bangued. Beronilla, pursuant to his
instructions, placed Borjal under custody and asked the residents of La Paz to
file complaints against him. In no time, charges of espionage, aiding the enemy,
and abuse of authority were filed against Borjal; a 12-man jury was appointed
by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico,
Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos,
Mariano Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin
Labuguen as members; while Felix Alverne and Juan Balmaceda were named
prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as
counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and
served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for
several days upon instructions of Headquarters, 15th Infantry. The trial lasted
19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and
imposed upon him instruction from his superiors. Mayor Beronilla forwarded
the records of the case to the Headquarters of the 15th Infantry for review. Said
records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the
following instructions:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field

16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.
1. Returned herewith are the papers on the case of Arsenio Borjal.
2. This is a matter best handled by your government and whatever disposition
you make of the case is hereby approved.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 18, 1945, 10:35 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the
execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope
as grave digger. Father Luding of the Roman Catholic Church was asked to
administer the last confession to the prisoner, while Father Filipino Velasco of
the Aglipayan Church performed the last rites over Borjal's remains.
Immediately after the execution, Beronilla reported the matter to Col. Arnold
who in reply to Beronilla's report, sent him the following message:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field

22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case
To: Military Mayor Beronilla

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because of
a query from Higher Headquarters regarding same. Actually, I believe there was
no doubt as to the treasonable acts of the accused Arsenio Borjal and I know
that your trial was absolutely impartial and fair. Consequently, I Can only
compliment you for your impartial independent way of handling the whole
case.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 26, 1947 7:00 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as

Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus
Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos,
Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy,
Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico
as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an
alleged conspirator, were indicted in the Court of First Instance of Abra for
murder, for allegedly conspiring and confederating in the execution of Arsenio
Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive
Proclamation No. 8, granting amnesty to all persons who committed acts
penalized under the Revised Penal Code in furtherance of the resistance to the
enemy against persons aiding in the war efforts of the enemy. Defendant Jesus
Labuguen, then a master sergeant in the Philippine Army, applied for and was
granted amnesty by the Amnesty Commission, Armed Forces of the Philippines
(Records, pp. 618-20). The rest of the defendant filed their application for
amnesty with the Second Guerrilla Amnesty Commission, who denied their
application on the ground that the crime had been inspired by purely personal
motives, and remanded the case to the Court of First Instance of Abra for trial
on the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen,
who had been granted amnesty by the Amnesty Commission of the Armed
Forces of the Philippines, was ordered provisionally dismissed: defendant Juan
Balmaceda was discharged from the information so that he might be utilized as
state witness, although actually he was not called to testify; while the case
against defendants Antonio Palope (the grave digger) and Demetrio Afos( a
boloman) was dismissed for lack of sufficient evidence.

Trial proceeded against the rest of the defendants; and on July 10, 1950, the
Court below rendered judgment, acquitting the members of the jury and the
grave digger Antonio Palope on the ground that they did not participated in the
killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne,
Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their
participation in the crime; but convicting defendants Manuel Beronilla,
Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-
principals of the crime of murder, and sentencing them to suffer imprisonment
of from 17 years, 4 months and 1 day of reclusion temporal to reclusion
perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the
amount of P4,000 with subsidiary imprisonment in case of insolvency, and each
to pay one fourth of the costs. In convicting said defendants the Court a quo
found that while the crime committed by them fell within the provisions of the
Amnesty Proclamation, they were not entitled to the benefits thereof because
the crime was committed after the expiration of the time limit fixed by the
amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed
after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla,
Paculdo, Velasco and Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest,
prosecution and trial of the late Arsenio Borjal were done pursuant to express
orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all
military mayors under its jurisdiction to gather evidence against puppet officials
and to appoint juries of at least 12 bolomen to try the accused and find them
guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically
named in the list of civilian officials to be prosecuted (Exhibit 12-b).

In truth, the prosecution does not seriously dispute that the trial and sentencing
of Borjal was done in accordance with instructions of superior military
authorities, altho it point to irregularities that were due more to ignorance of
legal processes than personal animosity against Borjal. The state, however,
predicates its case principally on the existence of the radiogram Exhibit H from
Col. Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling
attention to the illegality of Borjal's conviction and sentence, and which the
prosecution claims was known to the accused Beronilla. Said message is as
follows:

"Message:

VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA

HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND
CANNOT TRY PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO
YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE ARSENIO
BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO
BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG
BEGINS CLN"

(EXH. H)

The crucial question thus becomes whether or not this message, originally sent
to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to
appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together
with the package of records of Borjal's trial that was admittedly returned to and
received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-
a). Obviously, if the Volckmann message was known to Beronilla, his ordering
the execution of Borjal on the night of April 18, 1945 can not be justified.

We have carefully examined the evidence on this important issue, and find no
satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or
any copy thereof. The accused roundly denied it. The messenger, or "runner",
Pedro Molina could not state what papers were enclosed in the package he
delivered to Beronilla on that morning in question, nor could Francisco Bayquen
(or Bayken), who claimed to have been present at the delivery of the message,
state the contents thereof.

The only witness who asserted that Beronilla received and read the Volckmann
message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to
have been, as Beronilla's bodyguard, present at the receipt of the message and
to have read it over Beronilla's shoulder. This testimony, however, can not be
accorded credence, for the reason that in the affidavit executed by this witness
before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention
of the reading, or even the receipt, of the message. In the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual occurrence that
transpired in La Paz, Abra? — A. Yes, sir.

Q. Will you state what is the event? — A. On April 17, 1945, I was assigned as
guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of
April, 1945, six bolomen came to me while I was on duty as guard, that Mayor
Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to
know the reason why he would be tied, as he had not yet learned of the
decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla,
asking the reason for his being ordered to be tied. I personally delivered the
note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but
instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he
cannot escape. I returned to the Presidencia, and Mayor Borjal was tied, as that
was the ordered of Mayor Beronilla.

The plain import of the affidavit is that the witness Rafael Balmaceda was not
with Beronilla when the message arrived, otherwise Beronilla would have given
him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it
is difficult to believe that having learned of the contents of the Volckmann
message, Balmaceda should not have relayed it to Borjal , or to some member
of the latter's family, considering that they were relatives. In addition to
Balmaceda was contradicted by Bayken, another prosecution witness, as to the
hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the
accused-appellants decided to kill Borjal in the early evening of April 18, while
Bayken testified that the agreement was made about ten o'clock in the
morning, shortly after the accused had denied Borjal's petition to be allowed to
hear mass.

Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann
message. Had he executed Borjal in violation of superior orders, he would not
have dared to report it to Arnold's headquarters on the very same day, April
18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is
even more important, if Borjal was executed contrary to instructions, how could
Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only
compliment you for your impartial but independent way of handling the whole
case" instead of berating Beronilla and ordering his court martial for
disobedience?

Our conclusion is that Lt. Col. Arnold, for some reason that can not now be
ascertained, failed to transmit the Volckmann message to Beronilla. And this
being so, the charge of criminal conspiracy to do away with Borjal must be
rejected, because the accused had no need to conspire against a man who was,
to their knowledge, duly sentenced to death.
The state claims that the appellants held grudges against the late Borjal. Even
so, it has been already decided that the concurrence of personal hatred and
collaboration with the enemy as motives for a liquidation does not operate to
exclude the case from the benefits of the Amnesty claimed by appellants, since
then "it may not be held that the manslaughter stemmed from purely personal
motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951).
Actually, the conduct of the appellants does not dispose that these appellants
were impelled by malice (dolo). The arrest and trial of Borjal were made upon
express orders of the higher command; the appellants allowed Borjal to be
defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's
sister; the trial lasted nineteen (19) days; it was suspended when doubts arose
about its legality, and it was not resumed until headquarters (then in
Langangilang, Abra) authorized its resumption and sent an observer (Esteban
Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure
were followed; and when the verdict of guilty was rendered and death sentence
imposed, the records were sent to Arnold's headquarters for review, and Borjal
was not punished until the records were returned eight days later with the
statement of Arnold that "whatever disposition you make of the case is hereby
approved" (Exhibit 8), which on its face was an assent to the verdict and the
sentence. The lower Court, after finding that the late Arsenio Borjal had really
committed treasonable acts, (causing soldiers and civilians to be tortured, and
hidden American officers to be captured by the Japanese) expressly declared
that "the Court is convinced that it was not for political or personal reason that
the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).

It appearing that the charge is the heinous crime of murder, and that the
accused-appellants acted upon orders, of a superior officers that they, as
military subordinates, could not question, and obeyed in good faith, without
being aware of their illegality, without any fault or negligence on their part, we
can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil.,
507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July
1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non
facit reum nisi mens si rea.

To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequence, as, in law, is equivalent to criminal
intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not
committed if the minds of the person performing the act complained of be
innocent. (U. S. vs. Catolico, 18 Phil., 507).
But even assuming that the accused-appellant did commit crime with they are
charged, the Court below should not have denied their claim to the benefits of
the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that
the slaying of Arsenio Borjal took place after actual liberation of the area from
enemy control and occupation. The evidence on record regarding the date of
liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission
that decided the case of one of the original accused Jesus Labuguen, held that La
Paz, Abra, was liberated on July 1, 1945, according to its records; and this
finding was accepted by Judge Letargo when he dismissed the case against said
accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who
subsequently took cognizance of the case, relied on Department Order No. 25,
of the Department of the Interior, dated August 12, 1948, setting the liberation
of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The
two dates are not strictly contradictory; but given the benefit of the Presidential
directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946)
that "any reasonable doubt as to whether a given case falls within the
(amnesty) proclamation shall be resolved in favor of the accused" (42 Off. Gaz.,
2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.

For the reasons stated, the judgment appealed from is reversed and the
appellants are acquitted, with costs de oficio.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo and Concepcion, JJ., concur.

Footnotes

* 89 Phil., 414.

Battered woman syndrome as self-defense

- People vs. Genosa, 341 SCRA 493

G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION
PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes 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.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of 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 child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial
1 

Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"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 indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages." 2

The Information charged appellant with parricide as follows:

3 

"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 kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.
 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death." 4

With the assistance of her counsel, appellant pleaded not guilty during her arraignment on March 3,
5 

1997. In due course, she was tried for and convicted of parricide.
6 

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time,
Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store 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 of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, 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 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 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. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben 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 side of an aparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom
was not in disarray.
 "About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible
for medico-legal cases, 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 yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded
that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her
to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their 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 the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged 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 testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not 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 hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second 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 wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait '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 the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben '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 him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to 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.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos. )8 

'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 of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the
spouses grappling with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work as he was to go
fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. 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 would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed 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 voluntarily testified only that morning.

'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 house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was 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) Miss
Arano testified that this was not the first time Marivic had asked her to 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 at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx   xxx   xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure 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 hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone 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 Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.
'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 him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'

"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. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of 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 of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a 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.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the 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
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel 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 with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of 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 Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic 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' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic 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 disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when 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 physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex 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 become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx   xxx   xxx

"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 at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"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 (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
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 twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"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 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.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty 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 Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined.
The affliction of Post-Traumatic 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
induce the disorder; if the psychological stamina and physiologic 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.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx
 "Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her 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-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love 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 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.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-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 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
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 involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated." 9

Ruling of the Trial Court

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 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.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

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 and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic
10  11 

violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"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 in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death." 13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.
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 the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the 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 failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the 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 against him, much less used to condemn him for being unduly
hasty. If at all, the 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

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, this
16 

Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased 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 to."

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. The defense raised no objection to
17 

these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben. Axiomatic is the rule that a judicial admission is conclusive upon
18 

the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made. Other than merely attacking the non-
19 

presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that 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
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, 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 personal
character, especially his past behavior, did not constitute vital evidence at the time.

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 actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. As the former further points out, neither the trial court nor the
20 

prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. Well-settled is the rule
21 

that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

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 foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
23 

defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."
24

A battered woman has been defined as a woman "who is repeatedly subjected to any 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 wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman." 25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence," which has three phases: (1) the tension-building phase; (2) the acute battering incident;
27 

and (3) the tranquil, loving (or, at least, nonviolent) phase.

28

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 of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

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 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 more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident.
29

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, 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.

At this stage, she has a sense of detachment from the attack and the terrible pain, 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 stronger physically, and she knows from her
past painful experience that it is futile to 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

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 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 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 partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.
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 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 getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

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 each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this 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

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

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 manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.
 Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

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

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
33 

bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What
do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

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 You mean, Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.
 Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to 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 For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 

34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in 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 were inflicted upon her by Ben.
35

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the
36 

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 about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

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 sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling. Marivic relates in detail the following backdrop of the fateful night
37 

when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached 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 was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with 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 me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

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

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if
any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to 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 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 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 What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

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

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

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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 nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

 A Yes, sir.

Q What happened when you were brought to that drawer?

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 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 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 everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

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 Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

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 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:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?
 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 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, going out with barkadas, drinking, even womanizing being involved in cockfight and
going home very angry and which will trigger a lot of physical 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 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 in and day out."  39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"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 you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

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?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and 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 became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

 A Sir, it is an extreme form of battering. Yes. 40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

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 person.

Q What do you mean by that?

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 And what did you discover on the basis of this objective personality test?

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

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that
42 

during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben 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 sprees."

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 abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x." 43

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.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the 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
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'" 44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common
myths and misconceptions about battered women. 45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United 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 latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." In her years of research, Dr. Walker found that "the abuse
46 

often escalates at the point of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "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 Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness. 50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely
51 

abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect." 52

A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
53 

"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "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 outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances." 54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape. Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
55 

relationship. Unless a shelter is available, she stays with her husband, not only because she
56 

typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence 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 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 presence of the essential characteristics of BWS.

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 there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical 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.

How did the tension between the partners usually arise or build up prior to acute 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?

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 father's house; that Ben would seek
58 

her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.
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 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? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
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.

We emphasize that in criminal cases, all the elements of a modifying circumstance 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 manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense. 59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense -- she must have
60 

actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

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. Thus, the Revised Penal Code provides the following requisites and effect of self-
61 

defense: 62

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

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

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden
63 

and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the
64 

present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already 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. 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.'" Still, impending danger
65 

(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger. Considering such circumstances and the existence of BWS, self-defense may
66 

be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the
67 

absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim. Thus, Marivic's killing of Ben was not completely justified under the circumstances.
68 

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and 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

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part."  70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. Expounding thereon, he said:
71 

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is
the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....

xxx   xxx   xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

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 that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, 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 fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [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 personality of these
cases of post[t]raumatic stress disorder."  72
Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated." 73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power 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 paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this
74  75 

circumstance should be taken in her favor and considered as a mitigating factor.  76

In addition, we also find in favor of appellant the extenuating circumstance of having 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 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. To appreciate this circumstance, the following requisites should concur: (1) there
77 

is an 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, during which the
accused might recover her normal equanimity. 78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. His abusive and violent acts, an
79 

aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

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 equanimity. Helpful is Dr. Pajarillo's
testimony that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
80 

[or] trauma" -- the victim 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 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 her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the 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 was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight 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 passion and obfuscation on her part.

Second Legal Issue:

Treachery
There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. In order to qualify an act as treacherous, the circumstances invoked
81 

must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. Because of the gravity of the
82 

resulting offense, treachery must be proved as conclusively as the killing itself.

83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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 nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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 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 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 everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx
 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 Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I
ran to the other room.

Q What else happened?

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 know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. 85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked. There is no
86 

showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no 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 paragraph 5 of the same Code. The penalty of reclusion temporal in its
88  89 

medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. Under the Indeterminate Sentence Law, the
90 

minimum of the penalty shall be within the 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.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 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

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was 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 -- 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 conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

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 them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.

However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty 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.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio
V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from
"Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I
register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of
self-defense. It operates upon the premise that a woman who has been cyclically abused and
controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or
death, she knows that future beatings are almost certain to occur and will escalate over time. Her
intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive
possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an
existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate
on her acts and to choose a less fatal means of eliminating her sufferings. 1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to

wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical
abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering incident phase which is
characterized by brutality, destructiveness and sometimes, death. The battered woman usually
realizes that she cannot reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief and the batterer may
show a tender and nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more
than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's
witnesses clearly reveal that she knew exactly when she would once again be subjected to acute
battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she
was afraid every time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo
Tero, also testified that appellant sought his help two months before she killed her husband, again
demonstrating that she was in the tension-building phase and was attempting to prevent another
incident of acute battery. Appellant presented evidence to prove that the tension-building phase
would occur whenever her husband would go out looking for other women, would lose at cockfights
or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by
some witnesses for the prosecution, even shouted back, fought off or even injured her husband
during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to
the death of her husband, i.e., when she knew or felt that she was going to be killed by the
deceased. She could not possibly have testified with clarity as to prior tension-building phases in the
cycle as she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant
would seek shelter in her mother's or her father's house after an acute battering incident, after which
would begin the process of begging for forgiveness, promises of change in behavior and return to
the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove whether the deceased felt provoked into battering
by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole
support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped
and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or
did help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The
physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage, 3 six
incidents of which were documented by the 1990-1995 medical records of Marivic. They included,
among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on
the different parts of her body even during her pregnancy in 1995. 4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than
5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive
the latter every time he would fetch her and promise to change. 5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in
the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her
death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before
she was examined by experts on BWS. Unaware of the significance of her declarations, she
candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

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. [T]hen he pulled his 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 that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

xxx       xxx       xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was
frightened I was about to die because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and
I felt I was about to die also because of my blood pressure and the baby, so I got the gun
and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic
before the lower court but only here on automatic review. This makes the foregoing testimony more
worthy of great weight and credence considering that the same could not have been cunningly given
to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino
Caing testified that he treated Marivic for hypertension due to domestically related emotional stress
on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe
hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined
Marivic, assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional
anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and...
physical abuse. The husband had 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, going out
 with barkadas, drinking, even womanizing, being involved in cockfighting and in going home
very angry which... triggered a lot of physical abuse. She also had the experience 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 angry,
she was at the same time very depressed because she .. .[felt] almost like living in purgatory
or even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties,
they were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun
her around. She tried to fight him so there was a lot of fight and when she was able to
escape, she went to another room and she locked herself with the children. And when the
husband was for a while very angry he calms down then and then (sic). But I remember
before that the husband was looking for the gun and I think he was not able to open the
cabinet because she had the key. So during that time, I remember, that she was very much
afraid of him, so when the husband calmed down and he was asleep, all she was concerned
was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational. 9

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this
case that the books you studied in the expertise in line and in the 77 hour contact with
appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on
her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to
survive with her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the
victim (sic)?

A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that
it was an apprehension of death and the instinct to defend her and her unborn child's life that drove
her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter.
Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack
must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-
a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear
for their life and thus respond in self-defense. Once BWS and an impending danger based on the
conduct of the deceased in previous battering episodes are established, actual occurrence of an
assault is no longer a condition sine qua non before self defense may be upheld. Threatening
behavior or communication can satisfy the required imminence of danger. As stated in
the ponencia, 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.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the
physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place
of unlawful aggression, thus entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because the latter was verbally
threatening to kill her while attempting to get a gun from the drawer, but more importantly because
the deceased wounded her on the wrist with a bolo, and because of the deceased's previous
conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder
are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx       xxx       xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble
for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d]
hi[s] provocation and he switch off 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 their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and
he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

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

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying
to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?
A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the
following day I will leave, I was afraid and I want to make sure I would deliver my baby
safely.14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes,
then he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag...
you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me
that "you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

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. [T]hen he pulled his 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 that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

xxx       xxx       xxx

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 Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me. 15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two
(2) hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

 Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In
the case at bar, there is more than sufficient physical evidence presented by the appellant from
which her mental state can be inferred. The prosecution did not object to the presentation of these
physical and testimonial pieces of evidence, namely, the medical records of 23 instances of
domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay
captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to
kill her spouse in the first place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster their attempts to
employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of

passion and obfuscation. This, at the very least, supports a finding that the acts of violence and
battery committed by the deceased were illegal and unlawful and were committed immediately
before appellant could recover her natural equanimity. But what is the natural equanimity of a
battered woman? Appellant was not a normal married woman. She can never be in a state of natural
equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted with diminished
will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the
claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This Court can hardly rely on the
bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which diminished
his exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that
she was a battered woman for 13-14 years and that she suffered from the "Battered Woman
Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus
presented is to make impossible the proof of mental state. Evidence as to the mental state need not
be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes
was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS
justified the killing of the deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the circumstances, the natural response of
the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is

a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes
to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered
Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the
charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Footnotes
 Penned by Judge Fortunito L. Madrona.
1 

Assailed Decision, p. 17; rollo, p. 43.

2 

Signed by Provincial Prosecutor I Rosario D. Beleta.

3 

Rollo, p. 9.
4 

Atty. Joventino Isidro. The accused was also represented later by Atty. Gil Marvel P.
5 

Tabucanon.

Records, p. 65.
6 

Appellee's Brief, pp. 5-13; rollo, pp. 435-443. Signed by Solicitor General Alfredo L.
7 

Benipayo, Assistant Solicitor General Karl B. Miranda, and Solicitor Ma. Ana C. Rivera.

Spelled as "Basobas" in some parts of the record.

8 

Appellant's Brief, pp. 10-71; rollo, pp. 284-345; signed by Atty. Katrina Legarda. Citations
9 

omitted.

Qualifying her expertise, Dra. Dayan stated that she had been a practising clinical
10 

psychologist for over twenty (20) years. Currently, she is a professor at the De La Salle
University. Prior thereto, she was the head of the Psychology Department of the Assumption
College; a member of the faculty of Psychology of the Ateneo de Manila University and St.
Joseph's College; and the counseling psychologist of the National Defense College. She
obtained her bachelor's degree in psychology from the University of the Philippines (UP), her
Master of Arts in Clinical Counseling from Ateneo, and her Ph.D. also from UP. She is the
secretary of the International Council of Psychologists, comprised of members from about 68
countries; and was the past president of the Psychological Association of the Philippines.
She is a member of the Forensic Psychology Association, the American Psychological
Association, and the ASEAN Counseling Association. She authored the book entitled Energy
Global Psychology (together with Drs. Allen Tan and Allan Bernardo). Dra. Dayan also
lectures at the Philippine Judicial Academy, recently on the socio-demographic and
psychological profiles of families involved in domestic violence cases. On the subject, she
had conducted, for over a period of ten years, research on the profiles of about 500 families
involved in domestic violence.

Dr. Pajarillo obtained his medical degree from the University of Santo Tomas and has been
11 

in the practice of psychiatry for thirty-eight years. He honed his practice in psychiatry and
neurology during his stint with the Veterans Memorial Medical Centre. Thereafter, he was
called to active duty in the Armed Forces of the Philippines and was assigned at the V. Luna
Medical Center for twenty-six years. He was a diplomate of the Philippine Board of
Psychiatry; and a fellow of the Philippine Board of Psychiatry and the Philippine Psychiatry
Association. He was also a member of the World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association
of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954-1978, which was presented twice in
international congresses. He also authored "The Mental Health of the Armed Forces of the
Philippines 2000," which was likewise published internationally and locally. On a Parke-Davis
grant, he published a medical textbook on the use of Prasepam; on an ER Squibb grant, he
was the first to use Enanthate (siquiline); and he published the use of the drug Zopiclom in
1985-86. Prior to his retirement from government service, he obtained the rank of Brigadier
General. (TSN, February 9, 2001, pp. 6-9; Exhibits "F"-"F-9"-Appellant (Bio-Data of Dr.
Pajarillo).

This case was deemed submitted for resolution on April 4, 2003, upon receipt by this Court
12 

of appellee's Brief. Appellant's Brief was filed on December 2, 2002.

13 
Appellant's Brief, rollo, pp. 346-347. Original in upper case.

Caca v. Court of Appeals and People, 341 Phil. 114, July 7, 1997; People v. Paragua, 326
14 

Phil. 923, May 24, 1996; People v. Tanoy, 387 Phil. 750, May 12, 2000; People v. Magaro,
353 Phil. 862, July 2, 1998.

15 
§15 of Art. VIII of the Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be
decided or resolved within x x x three months for all other lower courts.
"(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required by the Rules of Court or by the court itself."

16 
333 Phil. 20, December 2, 1996, per Puno, J.

17 
TSN, September 23, 1997, pp. 11-12 & 14; TSN, November 12, 1997, pp. 29 & 33.

18 
TSN, August 6, 1998, pp. 7-8.

19 
People v. Sarabia, 376 Phil. 32, October 29, 1999.

Appellee's Brief, p. 26, citing People v. De los Reyes, 229 SCRA 439, January 21,
20 

1994. See also §5 of Rule 110 of the New Rules of Criminal Procedure and People v.
Vergara, 221 SCRA 560, April 28, 1993.

People v. Rabanal, 349 SCRA 655, January 19, 2001; People v. Cario, 351 Phil. 644,
21 

March 31, 1998; People v. Baniel, 341 Phil. 471, July 15, 1997.

22 
People v. Peralta, 350 SCRA 198, January 24, 2001.

See Ibn-Tamas v. US, 477 A.2d 626, 1979 DC App. LEXIS 457; McLuckie v. Abbott, 337
23 

F.3d 1193; 2003 US App. LEXIS 15240; DePetris v. Kuykendall, 239 F.3d 1057; 2001 US
App. LEXIS 1062; State v. Kelley, 478 A.2d 364 (1984); McMaugh v. State, 612 A.2d 725 (RI
1992); State v. Frost, 577 A.2d 1282 (NJ Super. Ct. App. Div. 1990); State v. Gallegos, 719
P.2d 1268 (NM Ct. App. 1986); R. v. Lavallee (1990) 1 SCR; Reilly v. The Queen, (1984) 2
SCR 396.

Symposium on Domestic Violence. Article: "Providing Legal Protection for Battered Women:
24 

An Analysis of State Statutes and Case Law," LEXSEE 21 Hofstra L. Rev. 801 (Summer
1993), 1161.

McMaugh v. State, 612 A.2d 725, 731, quoting L. Walker, The Battered Woman, at XV
25 

(1979).

26 
People v. Torres, 128 Misc2d, 129, 488 NYS2d 358; McMaugh v. State, 612 A.2d 725.

Walker, Lenore, The Battered Woman Syndrome (1984), pp. 95-96. Dr. Walker, a clinical
27 

psychologist, is an acknowledged expert on BWS in the United States. She is a pioneer

researcher in the field. In this book, she reports the results of her study involving 400
battered women. Her research was designed to test empirically the theories expounded in
her earlier book, The Battered Woman (1979). In 1989, she also wrote Terrifying Love: Why
Battered Women Kill and How Society Responds.

Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (Harper
28 

Perennial, 1989), p. 42.

29 
Ibid. See also R. v. Lavallee, supra; Ibn-Tamas v. US, supra.

30 
Ibid.

31 
Ibid.

32 
TSN, August 6, 1998, pp. 12-19.

33 
Exhibits 1 & 1-A; records, p. 44.

34 
TSN, August 5, 1998, pp. 14-23, 27-31.

35 
TSN, December 16, 1997, pp. 15-17 & 20-21.

36 
TSN, May 22, 1998, pp. 2-20.

TSN (Arturo Basobas), July 21, 1997, pp. 13, 15 & 21; TSN (Jose Barrientos), December
37 

15, 1997, pp. 17-20; TSN (Junnie Barrientos), December 15, 1997, pp. 35-37; TSN (Ecel
Arano), May 22, 1998, pp. 10 & 20.

38 
TSN, August 6, 1998, pp. 19-32.
39 
TSN, January 15, 2001, pp. 37-38.

40 
Id., pp. 51-53.

41 
Id., p. 36.

42 
Exhibits "G"-"G-3" - Appellant.

43 
Ibid.

44 
In R. v. Lavallee, supra.

45 
Ibid.

Fiona E. Raitt and M. Suzanne Zeedyk, The Implicit Relation of Psychology and Law:
46 

Women and Syndrome Evidence, pp. 66-67 (Exh. D).

47 
Walker, Terrifying Love, p. 47.

48 
TSN, January 15, 2001, p. 18.

49 
Id., p. 20.

50 
TSN, February 9, 2001, pp. 11-13.

51 
Id., p. 14.

52 
Walker, Terrifying Love, p. 48.

53 
Id., pp. 49-50.

54 
Ibid.

55 
Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

Psychologist Nancy Kaser-Boyd testifying as an expert on the battered woman syndrome

56 

in Depetris, supra.

57 
Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

58 
Her biological parents lived separately.

59 
State v. Kelly, 655 P.2d 1202, 1203 (1982).

"The case would rise or fall on whether . . . [appellant] acted in actual fear of imminent harm
60 

from her husband when she shot [or injured] him . . . ." Depetris v. Kuykendall, supra. See
also People v. Torres, 128 Misc2d 129, 488 NYS.2d 358.

61 
People v. PO3 Langres, 375 Phil. 240, 258, October 13, 1999.

See also People v. Plazo, 350 SCRA 433, January 29, 2001; People v. Cario, 351 Phil.
62 

644, March 31, 1998; People v. Timblor, 348 Phil. 847, January 27, 1998.

63 
People v. Saul, 372 SCRA 636, December 19, 2001.

People v. Galapin, 355 Phil. 212, July 31, 1998; People v. Panes, 343 Phil. 878, August 29,
64 

1997.

State v. Gallegos, 104 NM 247, 719 P.2d 1268, citing Eber, The Battered Wife's Dilemma:
65 

To Kill or To Be Killed, 32 Hasting LJ 895, 928 (1981).

66 
Id., citing State v. Walker, 40 Wash.App. 658, 700 P.2d 1168 (1985).

67 
People v. Saul, supra.

68 
People v. Bato, 348 SCRA 253, December 15, 2000.
 People v. Maquiling, 368 Phil. 169, June 21, 1999; People v. Discalsota, GR No. 136892,
69 

April 11, 2002.

70 
Exhibits "B" et seq. - Appellant, p. 10.

71 
TSN, February 9, 2001, p. 19.

72 
Id., pp. 15-17.

73 
Id., p. 54.

74 
"Art. 13. Mitigating Circumstances. – The following are mitigating circumstances:

xxx   xxx   xxx

"9. Such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of the consciousness of his acts."

"10. And, finally, any other circumstances of a similar nature and analogous to those above
75 

mentioned."

See People v. Javier, 370 Phil. 596, July 28, 1999; People v. Amit, 82 Phil. 820, February
76 

15, 1949; People v. Francisco, 78 Phil. 694, July 16, 1947; People v. Balneg, 79 Phil. 805,
January 9, 1948.

People v. Lobino, 375 Phil. 1065, October 28, 1999; People v. Valles, 334 Phil. 763,
77 

January 28, 1997.

78 
I Reyes, The Revised Penal Code, p. 272 (1998).

According to Dr. Lenore Walker, batterers commonly "escalate their abusiveness" when
79 

their wives are pregnant.

80 
Id., pp. 17-18.

81 
People v. Cabande, 381 Phil. 889, February 8, 2000.

82 
People v. Llanes, 381 Phil. 733, February 4, 2000.

People v. Albao, 383 Phil. 873, March 2, 2000; People v. Aguilar, 354 Phil. 360, July 10,
83 

1998.

84 
TSN, August 6, 1998, pp. 26-32.

People v. Buluran, 382 Phil. 364, February 15, 2000; People v. Ereño, 383 Phil. 30,
85 

February 22, 2000.

People v. Cañete, 44 Phil. 478, February 5, 1923; People v. Narvaez, 206 Phil. 314, April
86 

20, 1983.

87 
People v. Aguilar, supra.

88 
"Art. 64. Rules for the application of penalties which contain three periods.

xxx   xxx   xxx

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

xxx   xxx   xxx

People v. Narvaez, 206 Phil. 314, April 20, 1983; Guevarra v. Court of Appeals, 187 SCRA
89 

484, July 16, 1990.

90 
Basan v. People, 61 SCRA 275, November 29, 1974.
 91 
§5, Indeterminate Sentence Law (Act 4103, as amended).

YNARES-SANTIAGO, J.:

1
 People v. Genosa, G.R. No. 135981, 29 September 2000, 341 SCRA 493, 498.

2
 TSN, August 6, 1998, pp. 22-30; 47-49; 50-51.

3
 Id., pp. 8-13, 18.

4
 Exhibit 1, Compilation of Exhibits, p. 44.

5
 TSN, August 6, 1998, pp. 12-13; 36-37.

6
 Id., pp. 27-28.

7
 Id., pp. 31-32.

8
 TSN, August 5, 1998, pp. 21-31.

9
 TSN, January 15, 2001, pp. 38-40.

10
 Id., pp. 74-75.

11
 TSN, August 6, 1998, pp. 22-25.

12
 Id., pp. 47-49.

13
 Id., pp. 25-26.

14
 Id., p. 34.

15
 Id., pp. 26-30.

16
 Id., pp. 50-51.

17
 G.R. No. 130654, 28 July 1999.

18
 Supra, at 581-582.