FIRST DIVISION

[G.R. No. 127694. May 31, 2000]

QUIRICO MARI, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PARDO, J.:
The case before the Court is an appeal from a decision of the Court of Appeals, the
dispositive portion of which reads:
"WHEREFORE, the conviction of petitioner Quirico Mari for the offense
of serious slander by deed is hereby AFFIRMED, but with a modified
penalty of one (1) month and one (1) day of arresto mayor, as
minimum, to two (2) years and four (4) months of prision
correctional, as maximum.
"SO ORDERED."[1]
The facts, as found by the Court of Appeals, are as follows:
Complainant Norma Capintoy and petitioner Quirico Mari were co-employees in the
Department of Agriculture, with office at Digos, Davao del Sur, although
complainant occupied a higher position.
On December 6, 1991, petitioner borrowed from complainant the records of his 201
file. However, when he returned the same three days later, complainant noticed
that several papers were missing which included official communications from the
Civil Service Commission and Regional Office, Department of Agriculture, and a
copy of the complaint by the Rural Bank of Digos against petitioner. Upon
instruction of her superior officer, Honorio Lumain, complainant sent a
memorandum to petitioner asking him to explain why his 201 file was returned with
missing documents.
Instead of acknowledging receipt of the memorandum, petitioner confronted
complainant and angrily shouted at her: "Putang ina, bullshit, bugo." He banged a
chair in front of complainant and choked her. With the intervention of the security
guard, petitioner was prevailed upon to desist from further injuring complainant.
Petitioner's version is that, he borrowed from complainant his service record and not
his 201 file which contained his personal records. The service record which he

borrowed did not include the missing documents. Acknowledging that complainant
was higher in rank than him, he claimed that it was complainant who provoked him
into acting the way he did and he was just reacting to the provocation.
On January 7, 1992, complainant filed with the Municipal Trial Court, Digos, Davao
del Sur a criminal complaint against petitioner for slander by deed. [2]
On May 20, 1992, complainant filed an amended criminal complaint, adding that the
crime was aggravated by the fact that the offended party was a woman. [3]
After trial, on September 22, 1994, the Municipal Trial Court, Digos, Davao del Sur
rendered decision, the dispositive portion of which reads:
"In the light of the foregoing, the court is of the opinion that the
accused is guilty of the offense charged and that private complainant
has been slandered and embarrassed by the accused.
"Finding, therefore, accused guilty beyond reasonable doubt of the
charge filed against him and crediting in favor of the prosecution one
(1) ordinary aggravating circumstance, the Court hereby sentences the
accused to an Indeterminate Sentence of five (5) months and eleven
(11) days to two (2) years, eleven (11) months and eleven (11) days
and to pay private complainant the amount of FIVE THOUSAND
(P5,000.00) PESOS as moral damages, FIVE THOUSAND (P5,000.00)
PESOS attorneys fees and to reimburse her the cost of suit.
"Private complainant is, however, ordered to pay the docket fee
corresponding to the damages she is entitled to receive, by virtue of
this decision.
"SO ORDERED.
"Digos, Davao del Sur, September 22, 1994." [4]
In due time, petitioner appealed to the Regional Trial Court.
After due proceedings, on December 1, 1995, the Regional Trial Court, Davao del
Sur, Digos, Branch 19 rendered decision adopting the trial court's findings of fact,
and affirming the appealed decision in toto.[5]
On June 18, 1996, petitioner filed with the Court of Appeals a petition for review. [6]

On July 16, 1996, the Court of Appeals ordered respondents to file their comment on
the petition, which shall be considered as an answer in the event the petition is
given due course.[7]
On December 9, 1996, the Court of Appeals rendered decision affirming the
judgment a quo convicting petitioner of serious slander by deed, but modifying the
penalty to an indeterminate sentence of one (1) month and one (1) day of arresto
mayor, as minimum, to two (2) years and four (4) months of prision correccional, as
maximum.[8]
Hence, this appeal.[9]
At issue is whether the Court of Appeals erred in sustaining the conviction of
petitioner for serious slander by deed assailing the trial court's finding that
petitioner shouted invectives at complainant in the presence of several persons and
then choked her. Petitioner submits that the prosecution failed to prove that he
choked the complainant; that the choking was an after-thought as shown by
inconsistencies in the testimonies of the prosecution witnesses.
The issue raised is factual, which would bar us from reviewing the same in an
appeal via certiorari.[10] The findings of fact of the Court of Appeals supported by
substantial evidence are conclusive and binding on the parties and are not
reviewable by this Court,[11] unless the case falls under any of the exceptions to the
rule,[12] such as diverse factual findings of the lower courts [13] or the findings are
entirely grounded on speculations. [14] Petitioner failed to prove that the case falls
within the exceptions.[15]
However, we regret to note that the Municipal Trial Court, Digos, Davao del Sur, the
Regional Trial Court, Digos, Davao del Sur and even the Court of Appeals erred in
the proper application of the Indeterminate Sentence Law.
In the first place, the municipal trial court found the attendance of an "ordinary
aggravating circumstance." The court did not state what this aggravating
circumstance was, as required.[16]True, the amended criminal complaint alleged that
the crime had been aggravated by the fact that the offended party is a woman.
However, the mere fact that the victim is a woman is notper se an aggravating
circumstance.[17] There was no finding that the evidence proved that the accused in
fact deliberately intended to offend or insult the sex of the victim, or showed
manifest disrespect to the offended woman or displayed some specific insult or
disrespect to her womanhood. There was no proof of specific fact or circumstance,
other than the victim is a woman, showing insult or disregard of sex in order that it
may be considered as aggravating circumstance. [18] Hence, such aggravating
circumstance was not proved, and indeed, in the circumstances of this case may not
be considered as aggravating.[19] Consequently, the trial court erred in "crediting in

favor of the prosecution one (1) ordinary aggravating circumstance." On review, the
Regional Trial Court Judge did not notice the error because it did not make its own
findings of fact, and followed the line of least resistance by simply adopting the trial
courts "finding of fact as well as its reasons for making so." Neither did the Court of
Appeals notice the error, even if the Solicitor General in his comment noted that the
sentence imposed on the accused was excessive, meaning that there was no
aggravating circumstance proved.[20]
In the second place, in applying the Indeterminate Sentence Law, the court shall fix
minimum and maximum penalties.[21] If the offense is punished by the Revised Penal
Code, as in this case, the court shall sentence the accused to an indeterminate
penalty, the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the Revised Penal
Code, and the minimum term of which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense. [22] The court shall fix the
minimum penalty within the number of months or years covered by the penalty
next lower in degree to that prescribed by the Code for the offense without regard
to any modifying circumstance attendant to the commission of the crime. [23] The
court has the unqualified discretion to fix the term of the minimum penalty. [24] The
only limitation is that it must be within the range of the penalty next lower to that
prescribed by the Code for the offense committed, without regard to its three (3)
periods[25] or reference to the degrees into which it may be subdivided. [26] Then, the
court shall fix the maximum period. In doing so, the court shall now consider the
attending circumstances, finding whether any modifying circumstance attended the
commission of the crime. In this case, there was no modifying circumstance, hence,
the maximum penalty imposable must be within the range of the medium period of
the penalty prescribed by the Code for the offense. [27] The penalty prescribed by law
for serious slander by deed under Article 359 of the Revised Penal Code is arresto
mayor maximum to prision correccional minimum or four (4) months and one (1)
day to two (2) years and four (4) months or a fine ranging from P200.00 to
P1,000.00. The penalty next lower in degree is arresto mayor minimum and medium
periods, or one (1) month and one (1) day to four (4) months. Consequently, the
minimum shall be taken from any of its periods, but must be definite, say, one (1)
month and one (1) day, as minimum. The maximum shall be taken from the
medium period of the prescribed penalty, that is, within the range of one (1) year
and one (1) day to one (1) year and eight (8) months of prision correccional but also
a specific, definite, fixed period, say, one (1) year and one (1) day, as maximum.
Notice that the trial court imposed five months ofarresto mayor as minimum,
exceeding the range provided by law. However, the minimum fixed by the Court of
Appeals was correct, that is, one (1) month and one (1) day of arresto mayor. The
maximum fixed by the trial court of two (2) years, eleven (11) months and eleven
(11) days was wrong as it exceeded the prescribed range because that period is
within the maximum of the penalty prescribed by the Code, which could not be
imposed in the absence of any aggravating circumstance. The maximum penalty

fixed by the Court of Appeals (two (2) years and four (4) months of prision
correccional) was also wrong because it exceeded the range of the medium period
of the prescribed penalty.
Prescinding from the foregoing, it would serve the ends of justice better if the
petitioner were sentenced to pay a fine instead of imprisonment. The offense while
considered serious slander by deed was done in the heat of anger [28] and was in
reaction to a perceived provocation. The penalty for serious slander by deed may be
either imprisonment or a fine.[29] We opt to impose a fine.
ACCORDINGLY, the Court hereby SETS ASIDE the decision of the Court of Appeals
and in lieu thereof renders judgment finding petitioner guilty beyond reasonable
doubt of serious slander by deed defined and penalized under Article 359 of the
Revised Penal Code, and sentencing him to pay a fine of P1,000.00, with subsidiary
imprisonment in case of insolvency.
With costs.
SO ORDERED.
Puno, and Kapunan, JJ., concur.
Davide, Jr., C.J., (Chairman), on official leave.
Ynares-Santiago, J., no part.
[G.R. No. 98431. January 15, 2002]
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
TORRE, accused-appellant.

vs. JOSUE

DELA

DECISION
SANDOVAL-GUTIERREZ, J.:
Appeal from the Decision[1] dated January 28, 1991 of the Regional Trial Court
(Branch 79), Morong, Rizal, in Criminal Case No. 0656, finding Josue B. Dela Torre
guilty of the crime of rape and sentencing him to suffer the penalty of reclusion
perpetua, and to pay the costs.
The Information[2] against accused Josue Dela Torre reads:
That on or about the 5th day of November, 1989 in the Municipality of Teresa,
Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the

said accused, by means of violence and intimidation, did then and there willfully,
unlawfully, and feloniously have carnal knowledge of the complainant MARITA
CORDOVA against her will.
Contrary to law with the aggravating circumstance of the crime having been
committed in the house of said offended party who did not give any provocation for
the offense.
Upon being arraigned, the accused pleaded not guilty. [3] Thereafter, trial
ensued. In support of its case, the prosecution presented three witnesses: Marita
Cordova, the victim; Melanie Cordova, the victims 10 year-old daughter; and
Anthony Inocencio, a barriomate of the victim.
The records show that sometime in September, 1989, Marita Cordova, 35 years
old and married to Paulino Cordova, was employed as a cook at the La Fiesta Farm
owned by Mr. Arturo Alindada, located in Pantay, a barrio in the Municipality of
Teresa, Rizal.[4] Her husband and accused Josue dela Torre were also workers of the
same farm.
Anthony Inocencio[5] testified that around 7:00 to 8:00 P.M. of November 5,
1989, Paulino Cordova went to see him at his farm, also located in Barrio Pantay,
Teresa, Rizal, near the La Fiesta Farm.Paulino asked for his assistance because the
accused, then armed with a knife and bolo, was causing trouble and commotion at
the La Fiesta Farm of Mr. Alindada. Anthony responded to Paulino's call for
help. Upon arriving at the La Fiesta Farm, he learned that the accused forcibly took
the shoes and money of Mr. Alindadas workers. Marita and her children asked
Anthony whether they could stay in his farm.He obliged and they all proceeded
there. Upon reaching the farm, Marita told Anthony that she was raped by the
accused that night. Thereupon, he immediately fetched policemen from Teresa,
Rizal and accompanied them to the La Fiesta Farm where the accused was accosted.
[6]

As to how the rape was committed, Marita, the principal witness for the
prosecution, recounted her harrowing experience at the hands of the accused. She
testified that around 8:00 oclock in the evening of November 5, 1989, she was
cooking at the kitchen of the La Fiesta Farm. She was with her five (5) children then,
namely: Merly, 13 years old; Melanie, 10; Lyndon, 7; Fullimer, 4; and Johnny Boy, 1.
[7]
Suddenly, the accused, holding a knife and a bolo, appeared in the kitchen [8] and
dragged her outside and brought her towards a house under construction about 200
meters away.[9] Maritas children tried to follow but they desisted when the accused
threatened (tinakot) them.[10] So they just stayed at the kitchen. [11] While
going to the said house, Marita and the accused met Joel Villasis and Johnny Dizon,
also workers in the farm. They saw the accused poking a knife and a bolo at her.

[12]

Marita asked for their help but they did nothing because they were afraid of the
accused.[13]
Once inside the house, the accused pushed Marita to the floor, stoop down in
front of her, poked the knife at her throat and pinned her arms at her back. [14] He
then raised her dress above her breast. [15]Thereupon, he pulled down his pants, took
off her panty and placed himself on top of her.[16] Still holding the knife, he pointed it
at Maritas throat and placed the bolo on the ground. [17] Afterwards, he spread her
legs, kissed her lips down to her neck and sucked her breast. [18] He then inserted his
penis into her vagina and made push and pull movements for about eight (8)
minutes[19] and continued kissing her on the lips. [20] While he was raping her, she
was unable to resist because the knife was pointed at her throat and her arms
pinned at her back.[21] Thereafter, he stood and threatened her not to tell anybody
about the incident as he would slash her neck. [22]
That very night Marita found courage to inform Anthony Inocencio, and later her
employer, Mr. Alindada, and her husband of the sexual assault against her by the
accused.[23]
Melanie Cordova corroborated the testimony of her mother. She and her siblings
were in the kitchen of the La Fiesta Farm that night when the accused dragged their
mother towards the house under construction (sa bahay na ginagawa). At a
distance of two to three meters, she saw the accused pointing a knife at her
mothers throat and a bolo at her back. They tried to follow them but the accused
got angry. Thus, they remained at the kitchen where they all cried because of fear.
[24]

The following day, November 6, 1989, Dr. Emmanuel Aranas, a Medico-Legal

Officer at Camp Crame, Quezon City, conducted a physical examination on
Marita. Dr. Aranas Medico-Legal Report[25]discloses the following findings:
GENERAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breast are
pendulous with dark brown areola and nipples from which no secretion can be
pressed out. Abdomen is flat and lax with striae of pregnancy. The following injuries
are noted at the upper and lower extremities:
(1) Abrasion, proximal phalange of the right index finger, measuring 0.3 x
0.2 cm.;
(2) Abrasion, distal phalange of the right index finger, measuring 0.5 x 0.1
cm.;

(3) Abrasion, middle 3rd of the right leg, measuring 7 x 4 cm., along its
anterior midline.
CONCLUSION
Subject is in non-virgin state physically.
Barring unforseen complications, it is estimated that the above injuries will resolve
in 5 to 6 days.
REMARKS
Vaginal and peri-urethral smears are negative for gram-negative diplococci but
positive for spermatozoa.
Upon the other hand, the evidence for the defense is based solely on the
testimony of accused Josue Dela Torre. He never denied having sexual contact with
Marita that night of November 5, 1989. He claimed, however, that she was his
mistress and that the carnal incident between them was consensual. Their
relationship started on June 15, 1987 in Bacolod City, Negros Occidental when he
and Paulino (Maritas husband) had a drinking spree in the house of a certain
Cordova. At around 7:30 in the evening, Paulino got drunk and fell
asleep. Thereupon, he courted Marita, who then told him that she would be willing
to be his mistress if he would give her permanent support. At 3:00 in the morning of
the following day, they engaged in sexual activity. [26] Since then, their sexual affair
became frequent until September, 1989 when Marita was recruited to work at La
Fiesta Farm in Teresa, Rizal owned by Mr. Arturo Alindada. It was only in October,
1989 when he again met her at the La Fiesta Farm upon his employment there. [27]
Accused further narrated that at about 1:00 in the afternoon of November 5,
1989, he and Marita talked at the kitchen of La Fiesta Farm. They agreed to meet
about 8:00 in the evening in the nearby house under construction. He arrived first
at the place and, shortly thereafter, she followed. There, they had sexual
intercourse on the ground using sawali as mat. [28]
On January 28, 1991, the trial court rendered a Decision, [29] the dispositive
portion of which reads:
WHEREFORE, this Court finds the accused JOSUE DELA TORRE GUILTY of the crime
of RAPE under Article 335 of the Revised Penal Code, as amended, and hereby
sentences him to suffer the penalty of reclusion perpetua and to pay the costs.
SO ORDERED.

In the instant appeal, appellant ascribes to the trial court this lone assignment
of error:
THE REGIONAL TRIAL COURT IN MORONG, RIZAL (BRANCH 79) ERRED IN FINDING
ACCUSSED-APPELLANT JOSUE DELA TORRE GUILTY OF THE CRIME OF RAPE BEYOND
REASONABLE DOUBT. [30]
Appellants defense is that what transpired between him and Marita Cordova on
November 5, 1989 was consensual, she being his mistress at the time.
After a thorough and careful review of the evidence adduced by the parties, this
Court finds the appeal bereft of merit.
The incident immediately prior to the rape was described by the trial court in its
appealed decision as a reign of terror that pervaded in the La Fiesta Farm in Barrio
Pantay caused by the appellant who was running wild wielding a knife and bolo.
[31]
This created an atmosphere of great fear among those who witnessed the
incident. The records do not disclose why the appellant acted that
way.Understandably, every one seemed helpless. The assistance of the police
authorities at that very moment could not readily be secured apparently because
the police station is far, being located in the Municipality of Teresa. The incident
happened so fast that it enabled the appellant to perpetrate the unfortunate crime
against Marita.
In a candid, straightforward and categorical manner, Marita disclosed the
horrifying ordeal she endured from appellants bestiality, completely belying the
existence of consent on her part, thus:
xxx
Q On or about 8:00 oclock in the evening of November 5, 1989, Mrs. witness, do
you remember having met or seen the accused Josue dela Torre?
A Yes, sir.
Q Could you please tell the Honorable Court what incident that happened, Mrs.
Witness?
A It happened at the kitchen. He pushed me to the house under construction
(owned) by our boss (amo).
Q Who was this person who pushed you, Mrs. Witness?
A Josue dela Torre, sir.

Q And after Josue dela Torre pushed you, what happened next?
A He pointed a knife at my throat and a bolo pointed (nakatutok) at my
back.
xxx
Q Now, Mrs. Witness, what happened next after the accused pointed a knife at
your throat and a bolo at your back?
A He pushed me inside the house on the ground.
Q What happened next after he pushed you on the ground.
A With the knife on my throat and my two (2) hands at the back with the
bolo, he undressed me.
Q What kind of dress are you wearing, Mrs. Witness, at that time?
A I was wearing a dress (bestida).
Q When you said that the accused undressed you, what exactly do you mean?
A He lifted my dress up to a little bit above my breast.
Q Mrs. Witness, other than your bestida, what was you wearing at that time?
A I had only a panty.
Q What about bra?
A None, sir.
Q What happened to your panty if any at the time the accused lifted your dress?
A He took off my panty.
Q Did the accused succeed removing your panty at the time, Mrs. Witness?
A Yes, sir.
Q Now, Mrs. Witness, after the accused raised your dress above your dress and
after successfully removing your panty, what happened next?

A He sucked my breast, he inserted his penis inside my private part

(puke).
Q Now, Mrs. Witness, could you please tell us what position you assumed in time
the accused inserted his penis in your private part?
A I was lying on the ground with my back face up.
Q And what about the accused?
A He was on top of me.
Q And how long was the penis of the accused inserted at your private part?
A About ten (10) minutes.
Q Did the accused make any movement?
A He was kissing me and his body was moving up and down.
Q Did you actually feel the penis in your private part?
A Yes, sir.
Q And you said that Josue dela Torre was on top of you and his penis, after ten
minutes, what happened next?
A After he took advantage, he threatened to cut my neck for me not to
tell authorities what happened to me.[32]
Melanie, the victims 10-year old daughter, witnessed how appellant dragged her
mother to the nearby house where the crime was consummated. She testified as
follows:
FISCAL TOBIA
Q Melanie, do you know the accused Josue dela Torre?
A Yes, sir.
Q Melanie, your mother previously testified that on November 5, 1989 you saw
her being dragged by the accused Josue dela Torre at the premises of the La
Fiesta Farm, what can you say to this?
A Yes, sir.

Q How did it come about that you saw her being dragged by Josue dela
Torre on said date, Melanie?
A I was in the kitchen.
Q And do you mean to say that it was from the kitchen that the accused dela
Torre dragged your mother?
A Yes, sir.
Q And could you please tell the Honorable Court how Josue dela Torre
dragged your mother away from the kitchen?
A I saw Josue pointing a knife at my mothers throat and a bolo at my
mothers back.
xxx
Q Did you actually see your mother being brought to that house under
construction by Josue dela Torre?
A Yes, sir.
Q And on the time Josue dela Torre was still pointing a knife at the
throat of your mother and a bolo at her back?
A Yes, sir.
Q When you saw your mother being dragged by Josue dela Torre pointing a knife
and a bolo at her, what did you do?
A I cried.
Q Why did you cry?
A We have nothing to do but to cry, I was afraid. [33]
All the while when appellant was sexually gratifying himself, that same knife
was still poked at Maritas throat. This was clearly pointed out by Marita herself:
xxx
Q While he was stooping in front of you, pulling down his pants, Josue dela Torre
is no longer holding knife or bolo?

A He was still holding the knife while the bolo was in the ground near
him.
xxx
Q And while your legs were widely open and while you are being kissed by Josue
dela Torre that was the time he inserted his penis inside your genital organ?
A Yes, sir. Inside my private part.
Q And at that very moment you were no longer aware whether Josue
dela Torre was holding a knife or not?
A I still knew he was still holding a knife.
Q How did you know that he was still holding a knife at that very moment
wherein your legs were widely open and his penis was inside your genital
organ?
A He was pointing his knife at my throat.[34]
Evidently, Marita was cowed to submit to appellants sexual assault through
force and intimidation. Appellant was brandishing a knife and a bolo when he
dragged her to a nearby house being constructed.Even while appellant was raping
her, he was holding the knife pointed at her throat. After the sexual aggression, he
further threatened to cut off Maritas neck if she would tell the authorities what
happened.The act of holding a knife/bolo, a deadly weapon,[35] by itself strongly
suggests force, or intimidation, and when the same is used to threaten a woman to
ensure carnal knowledge of her, rape is certainly committed. [36]
Appellants sweetheart theory is totally unavailing. Marita is a married woman
with five children in her care. To embroil her into such kind of amorous relationship,
strong and convincing evidence is necessary to prove the same. This Court, in
several rape cases,[37] has not hesitated to sustain the defense of consensual
sex. However, in those cases, evidence like love notes, mementos and witnesses
attesting to a consensual relationship were presented. Here, other than his bare
allegation, appellant failed to present any evidence to substantiate the existence of
such illicit affair. Indeed, appellants tale of romance is a desperate attempt to justify
his claim that Marita consented to his sexual desire on November 5, 1989.
Even assuming that an illicit affair existed between them, the categorical and
spontaneous manner by which Marita and Melanie narrated appellants dastardly act
is more than enough reason to belie his claim of consensual sex on that fateful night
of November 5, 1989. In fact, this is substantially corroborated by the Medico-Legal

Report of Dr. Aranas showing that Marita sustained abrasions from her leg and
finger, which injuries could take five to six days to heal.
Of utmost significance, too, is the absence of ill-motive on the part of any
prosecution witness, much less on the part of the victim herself, to prevaricate, nay
concoct, such a shocking story of defloration.It is the settled rule that where there is
nothing to indicate that a witness was actuated by improper motives, his/her
positive and categorical declarations on the witness stand, made under solemn
oath, should be given full faith and credence. [38] Between the positive and
categorical statements of prosecution witnesses, on one hand, and the bare denial
of appellant, on the other, the former must prevail. [39]Affirmative testimony, when it
proceeds from the mouth of a credible witness, as in this case, is far stronger [40] and
more trustworthy[41] than a negative testimony.[42]
At any rate, it is highly inconceivable that Marita, a mother of five (5) children,
would falsely charge appellant with such a serious crime as rape if it were not the
plain truth. It is worthy to note that after the sexual assault, she wasted no time
relating her gruesome experience to her husband who, unfortunately, was afraid of
the appellant and left prior thereto to seek assistance from Anthony Inocencio.
[43]
Without vacillation, she submitted herself for medical and genital examination the
following day. Faced with possible public humiliation, scandal and ridicule, she
mustered the courage to expose her own and her familys honor to the rigors of
court trial. These indignities and ignominies which Marita withstood overwhelmingly
show her sincerity in vindicating the outrage to her honor and chastity.
This Court is thus convinced that appellants guilt has been established by the
prosecution beyond inditia of doubt. His conviction must be sustained.
The Information alleges the presence of the aggravating circumstance of
dwelling in the commission of the offense. This should have been appreciated by
the court a quo. It appears from the records that the kitchen at the La Fiesta Farm
where Marita was dragged by appellant is her dwelling, albeit the same does not
belong to her. In People v. Parazo,[44] this Court stressed that the dwelling
contemplated in Article 14(3) of the Revised Penal Code does not necessarily mean
that the victim owns the place where he lives or dwells. Be he a lessee, a boarder,
or a bedspacer, the place is his home, the sanctity of which the law seeks to
protect. The fact that the crime was consummated in the nearby house is also
immaterial. Marita was forcibly taken by appellant from her dwelling house (kitchen)
and then raped her.Dwelling is aggravating if the victim was taken from his house
although the offense was not completed therein. [45]
Nonetheless, the trial courts imposition of the penalty of reclusion perpetua is
in accordance with law and jurisprudence. At that time, the penalty for rape under
Article 335 of the Revised Penal Code, [46] when committed with the use of a deadly

weapon, such as the knife,[47] is reclusion perpetua to death, a penalty composed of

two indivisible penalties. Article 63, supra, provides, inter alia:
xxx
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rule shall be observed:
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
x x x (Emphasis supplied)
The presence of the generic aggravating circumstance of dwelling, with no
mitigating circumstance to offset the same, would have warranted the imposition of
the death penalty were it not for the fact that such penalty was then constitutionally
suspended.[48] Thus, the penalty of reclusion perpetua imposed by the trial court is
proper.
Now to the civil aspect of the crime. The court a quo erred in not holding
appellant civilly liable. In line with the current jurisprudence,[49] a civil indemnity in
the amount of P50,000.00 should be awarded to the victim. Also, she is entitled to
moral damages, now fixed at P50,000.00.[50] Furthermore, because of the use of a
deadly weapon in the commission of the crime, as well as the presence of the
aggravating circumstance of dwelling, both of which indicate the criminal perversity
of the appellant, the amount of P25,000.00 by way of exemplary damages is
justified. It is now well-settled that in criminal cases, the presence of an aggravating
circumstance, whether ordinary or qualifying, entitles the victim to an award of
exemplary damages insofar as the civil aspect of the crime is concerned. [51]
WHEREFORE, the appealed decision convicting JOSUE DELA TORRE of the
crime of RAPE and sentencing him to suffer the penalty of RECLUSION PERPETUA is
AFFIRMED. Insofar as the civil aspect of the crime is concerned, the appealed
decision is MODIFIED. Appellant is thus ordered to pay the victim, Marita
Cordova, P50,000.00 as civil indemnity; P50,000.00 as moral damages;
andP25,000.00 as exemplary damages. Costs against the appellant.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Carpio, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 146235-36

May 29, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MELCHOR RAFAEL y LEGASPI, MARIO RAFAEL y LEGASPI, and MAXIMO
RAFAEL y MACASIEB, accused.
MELCHOR RAFAEL y LEGASPI and MARIO RAFAEL y LEGASPI, accusedappellants.
MENDOZA, J.:
This is an appeal by way of automatic review from the decision, 1 dated December 8,
2000, of the Regional Trial Court, Branch 217, Quezon City, convicting accusedappellants, Melchor and Mario Rafael, of frustrated murder and murder in Criminal
Case Nos. Q-94-59453 and Q-94-59454, respectively. Accused-appellants were
accused with their father Maximo Rafael under the following informations alleging
In Criminal Case No. Q-94-59453 (Frustrated Murder),
That on or about the 28th day of August 1994, in Quezon City, Philippines,
the said accused, conspiring, confederating together, and mutually, helping
one another with evident premeditation, treachery, and superior strength, did
then and there, wilfully, unlawfully, and feloniously with intent to kill, attack,
assault, and employ personal violence upon the person of ALEJANDRA
MACARAEG-RAFAEL, by then and there hacking her with a bolo and hitting her
on the different parts of her body, thereby inflicting upon her serious and
mortal wounds which ordinarily would cause the death of said ALEJANDRA
MACARAEG-RAFAEL, thus performing all the acts of execution which should
have produced the crime of MURDER, as a consequence but nevertheless did
not produce it by reason of causes independent of their will, that is the timely
and able medical attendance rendered to said ALEJANDRA MACARAEG-RAFAEL
which prevented her death, to her damage and prejudice.
CONTRARY TO LAW.2
and in Criminal Case No. Q-94-59454 (Murder),

That on or about the 28th day of August 1994, in Quezon City, Philippines,
the said accused, conspiring, confederating together and mutually helping
one another, with evident premeditation, treachery and superior strength, by
then and there hacking her [GLORIA TUATIS-RAFAEL] with the use of a bolo
and hitting her on the different parts of her body, thereby inflicting upon her
serious and mortal wounds which was the direct and immediate cause of her
death, to the damage and prejudice of the heirs of said GLORIA TUATISRAFAEL.
CONTRARY TO LAW.3
Accused Maximo Rafael was tried ahead of accused-appellants as he was the only
one in custody at the time. On October 30, 1995, he was found guilty as charged
and sentenced in Criminal Case No. Q-94-59453 (frustrated murder) to the
indeterminate penalty of six (6) years of prision correccional, as minimum, to twelve
(12) years ofprision mayor, as maximum, and to death in Criminal Case No. Q-9459454 (for murder). On appeal, this Court found Maximo Rafael guilty not as a
principal but only as an accomplice in the commission of the crimes and accordingly
sentenced him to two (2) years, eleven (11) months, and eleven (11) days of prision
correccional, as minimum, to eight (8) years, eight (8) months, and one (1) day
of prision mayor, as maximum, for frustrated murder, and to eight (8) years, eight
(8) months, and one (1) day of prision mayor, as minimum, to fifteen (15) years, six
(6) months, and twenty (20) days of reclusion temporal, as maximum, for murder.4
In 1996, accused-appellants Melchor and Mario Rafael were finally arrested. 5 On
November 10, 1997, both were arraigned, each one entering a plea of not
guilty.6 Trial on the merits then ensued.
The prosecution presented the following witnesses: Rogelio Rafael, who is the
husband of Gloria and the son of Alejandra Rafael, the victim Alejandra Rafael
herself; Leonilo Hamoy, a neighbor of Rogelio Rafael; and Dr. Florante F. Baltazar,
chief of the Philippine National Police (PNP) National Capital Region Crime
Laboratory. The gist of their testimonies is as follows:
At around 8 o'clock in the evening of August 28, 1994, Alejandra Rafael and her
daughter-in-law Gloria were in the kitchen on the ground floor of their residence on
Rosal Street, Pingkian, Barangay Pasong Tamo, Quezon City. Alejandra Rafael was
setting the table, while Gloria was cooking their dinner. As Alejandra heard a
commotion outside, she opened the kitchen door to find out what it was about.
Alejandra saw accused-appellant Melchor Rafael standing outside with his brother,
accused-appellant Mario Rafael, and his father Maximo Rafael, who was slightly
behind the latter. Alejandra knew the three very well since Maximo is the brother of
her husband.

Without any warning, Melchor attacked Alejandra with a bolo, severing her left
hand. He then turned to Gloria and struck her on the head with the bolo. Wounded,
Gloria tried to run away, but she was pursued outside by Mario. Melchor for his part
continued to attack Alejandra and stopped only because he thought she was
already dead. Melchor then followed his brother outside. Before losing
consciousness, Alejandra heard Maximo Rafael telling his two sons to kill the
victims.7
Alejandra was rushed to the East Avenue Medical Center. A medical certificate (Exh.
A)8 issued to her on August 13, 1998 described her injuries as follows:
-

TRAUMATIC AMPUTATION, (L) WRIST.

HACKING WOUNDS, (R) HAND; OPEN COMPLETE FRACTURE DISTAL

PART 3RD PORTION 4TH PHALANX, PROXIMAL PART 2ND PORTION 3RD
PHALANX, (R) HAND.
Surgical Procedure:
'EMERGENCY' DEBRIDEMENT, PINNING 3RD AND 4TH PHALANGES,
TENORRHAPHY 3RD FLEXOR DIGITORUM. - (8/29/94)
Rogelio Rafael, Gloria's husband, testified that in the evening of August 28, 1994, he
was asleep in his bedroom on the second floor of their house when he was
awakened by noise outside. When he looked through the window, he saw his wife
being pursued outside their house by accused-appellants Mario and Melchor Rafael,
both of whom were armed with bolos. Accused-appellants caught up with Gloria
near the pigpen and took turns stabbing and hitting her with their bolos. Rogelio
said he cursed accused-appellants, "Putang-ina ninyo!" ("You sons of bitches!") as
he rushed downstairs to help his wife. But, by the time he got out of the house,
accused-appellants had already run away. 9
Leonilo Hamoy, whose house adjoined that of the victims, witnessed the attack on
Gloria in the evening of August 28, 1994. He was holding his child when he heard a
commotion outside. When he looked out of the window, he saw Gloria Rafael
coming out of her house being pursued by accused-appellants. He said he saw
Gloria stumble and fall to the ground, after which she was struck by accusedappellants with their bolos. Leonilo testified that he gave a sworn statement (Exh.
C)10 to the police although the prosecution did not call him to the witness stand at
the trial of Maximo Rafael.11
Dr. Florante F. Baltazar identified the medico-legal certificate (Exh. D) 12 and the
sketches of the head (Exh. E)13and body injuries (Exh. F)14 of Gloria Rafael which he

had executed.15 The medico-legal certificate (Medico-Legal Report No. M-1402-94)

issued by him stated:
Specimen Submitted:
Cadaver of Gloria Rafael, about 29 years old, 147 cm. in height, and a
resident of Pingkian Village, Quezon City.
Purpose of Laboratory Examination:
To determine the cause of death.
Findings:
Fairly developed, fairly nourished female cadaver in rigor mortis with
postmortem lividity over the dependent portions of the body.
Conjunctivae, lips and nailbeds were pale.
External Injuries: Head, Trunk, And Extremities:
1) Hacking wound, left occipital region, 5 cms. from the posterior midline,
measuring 8 x 2 x 2 cms. depth, directed downwards, anteriorwards, slightly
towards midline, fracturing the left occipital bone.
2) Hacking wound, right parieto-occipital region, 14 cms. from the midsagittal line, measuring 7 x 2 x 3.5 cms. depth, directed slightly downwards,
posteriorwards and towards midline, fracturing the right parieto-occipital
bone;
3) Stab wound, anterior right upper thorax, 116.5 cms. from the heel, 8 cms.
from the anterior midline, measuring 1.7 x 0.7 x 20 cms. depth, directed
downwards, posteriorwards, right to left, fracturing the sternum at the level
of 2nd thoracic rib, piercing the pericardium, ascending aorta, lower lobe of
the left lung, exiting at the 6th left intercostal space.
4) Stab wound, anterior right upper thorax, 118 cms. from the heel, 12 cms.
from the anterior midline, measuring 3 x 1.5 x 19 cms. depth, directed
slightly upwards, slightly posteriorwards, right to left thru the muscle tissue.
5) Stab wound, anterior right thorax, 111 cms. from the heel, passing thru the
4th right intercostal space, measuring 2 x 0.4 x 10 cms. depth, directed
downwards, posteriorwards, towards midline, piercing the lower lobe of the
right lung, right dome of the diaphragm and right lobe of the liver.

6) Stab wound, anterior right lower thorax, 108 cms. from the heel, 14 cms.
from the anterior midline, measuring 1.7 x 0.3 x 7 cms. depth, directed
downwards, posteriorwards, towards midline, thru the muscle tissue.
7) Multiple abrasions, right knee, measuring 3.5 x 1.5 cms., along its anterior
midline.
8) Linear abrasion, posterior left lumbar region, measuring 21 x 0.2 cms., 3
cms. from the posterior midline.
9) Linear abrasion, posterior right shoulder, measuring 10 x 0.3 cm., 17 cms.
from the posterior midline.
10) Multiple abrasions, anterior right deltoid region, measuring 8 x 1 cm., 6.5
cms. lateral to its anterior midline.
11) Stab wound, posterior left deltoid region, 3 cms. medial to its posterior
midline, measuring 1 x 0.4 cm., 2 cms. depth, thru the muscle tissue.
12) Incised wound, posterior distal 3rd left arm, 4 cms. lateral to its posterior
midline, measuring 6 x 2 cms.
13) Incised wound, posterior right deltoid region, measuring 5.5 x 3 cms.,
bisected by its posterior midline.
14) Stab wound, posterior middle 3rd right arm, 4 cms. lateral to its posterior
midline, measuring 2.3 x 1 cm., directed upwards, slightly anteriorwards,
right to left, exiting at the anterior middle 3rd right arm, 6 cms. medial to its
anterior midline, entry - exit measuring 7 cms.
15) Abrasion, right elbow, measuring 1.4 x 1 cm., along its posterior midline.
16) Stab wound, posterior proximal 3rd right forearm, 3.4 cms. lateral to its
posterior midline, measuring 4 x 1 cm., directed slightly downwards,
anteriorwards, towards midline, exiting at the anterior proximal 3rd right
forearm, measuring 2 x 0.5 cms., along its anterior midline, entry-exit
measuring 6 cms.
17) Stab wound, anterior middle 3rd right forearm, measuring 3.5 x 1.5 cms.,
5 cms. lateral to its anterior midline, directed downwards, anteriorwards,
towards midline, exiting at the anterior middle 3rd right forearm, measuring
2.2 x 0.6 cms., 3 cms. lateral to its anterior midline, entry-exit measuring 3
cms.

18) Multiple abrasions, left knee, measuring 4 x 2 cms., along its anterior
midline.
Internal Findings:
1. There were subdural and subarachnoidal hemorrhages.
2. Recovered from the stomach about 2 glasses of partially digested
food particles mostly of rice.
Conclusion:
Cause of death is hacking and stab wounds, head, body, and
extremity.16
Accused-appellant Mario Rafael's defense was alibi. He testified that on August 14,
1994, he left for Isabela upon learning from the mother of his common-law spouse
Myrna that one of their children was sick. He said that for the next two years he
never left Isabela.17 His claim was corroborated by his common-law wife Myrna, who
testified that when these crimes were committed on August 28, 1994, accusedappellant was with her in Malanit, Isabela, which was more than 250 kilometers
away from Quezon City. She claimed that Mario stayed on for two years working as
a cook at the "Mabuhay" restaurant, of which she was the manager, until he was
arrested sometime in September 1996.18
On the other hand, accused-appellant Melchor Rafael admitted to the crimes but
invoked the mitigating circumstances of passion and obfuscation on his part and
provocation on the part of the victims. He claimed that in the afternoon of August
28, 1994, he was invited by Rogelio Rafael, whom he called "Kuya Robert," to a
drinking session at the latter's house. He arrived there alone at around 7 o'clock in
the evening and found Rogelio Rafael drinking with two companions. He joined them
and consumed four bottles of beer. Melchor claimed that Rogelio's wife, Gloria
Rafael, arrived while they were drinking and that the couple had a quarrel shortly
thereafter. The couple then went outside. Gloria eventually returned and told
him, "Punyeta nandito ka na naman!" ("Son of a bitch, you're here again!") Then,
she allegedly told him, "Putang ina, wala na ba kayong magawa kundi ayain n[an]g
ayain ang Kuya Robert mong uminom?" ("Son of a bitch, don't you have anything
better to do than to keep inviting your Kuya Robert to drink?")
Melchor said Alejandra Rafael arrived shortly, and she too had derogatory words for
him, as she said, "Nandito na naman ang patay-gutom." ("The good-for-nothing is
here again.") At this, accused-appellant claimed he lost control of himself ("nagdilim
ang paningin ko") and got hold of "two sharp objects" and struck Alejandra Rafael
with them. When he saw Gloria Rafael running towards the door, he pursued her

outside the house. He said that when Gloria tripped near the pigpen and fell on her
back, he stabbed her "with the knife [he] was holding." He then went into hiding. On
cross-examination, Melchor denied he harbored a grudge against Gloria and
Alejandra Rafael.19
On December 8, 2000, the trial court rendered its decision, the dispositive portion of
which states:
WHEREFORE, finding accused Melchor Rafael and Mario Rafael guilty beyond
reasonable doubt in each of the offenses charged, judgment is hereby
rendered as follows:
In Criminal Case No. Q94-59454 (for Murder), accused are hereby sentenced
each to suffer the penalty of death and both are ordered to pay the heirs of
Gloria Rafael the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity,
Ninety Four Thousand Pesos (P94,000.00) as actual damages, Fifty Thousand
Pesos (P50,000.00) as moral damages, and Twenty Thousand Pesos
(P20,000.00) as exemplary damages.
In Criminal Case No. Q94-59453 (for Frustrated Murder), accused are hereby
sentenced each to suffer an indeterminate penalty of six (6) years and one
(1) day of Prision Mayor, as MINIMUM, to fourteen (14) years, eight (8)
months, and one (1) day of Reclusion Temporal, as MAXIMUM, and both are
ordered to pay Alejandra Rafael the sum of Thirty Six Thousand Five Hundred
Fifty Pesos (P36,550.00) as actual damages and Twenty Thousand Pesos
(P20,000.00) as exemplary damages.
SO ORDERED.20
The trial court held that the crimes were qualified by treachery and abuse of
superior strength, although the latter had been absorbed by the former. It also
appreciated the aggravating circumstance of dwelling with respect to the killing of
Gloria Rafael.
Hence this appeal. Accused-appellants make the following assignment of errors:
I. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANTS
OF THE CRIMES OF MURDER AND FRUSTRATED MURDER DESPITE THE
INCREDIBLE, INCONSISTENT, IF NOT CONTRADICTORY TESTIMON[IES] OF THE
PROSECUTION WITNESSES.
II. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANTS
OF THE CRIMES OF MURDER AND FRUSTRATED MURDER DESPITE THE FACT

THAT ACCUSED-APPELLANTS' GUILT WAS NOT PROVED BEYOND REASONABLE

DOUBT.21
First. Accused-appellants contend that Alejandra Rafael admitted in her testimony
that she was at all times in the kitchen during the incident and, therefore, she could
not have seen them help each other in attacking Gloria Rafael. Indeed, Alejandra
Rafael testified as follows:
ATTY. [Maximo B.] Usita [Counsel for Accused-Appellants]:
Q
You said that you [were] play[ing dead] and you were in fact in a
squatting position, and you could not even remember how many times you
were hacked and because of that condition, you did not notice what
happened outside of the kitchen?
A
I only witnessed the hacking of Gloria inside the house. The incident
that took place outside of the house, I am not aware. 22
However, accused-appellants' conviction is based not only on the testimony of
Alejandra Rafael but also on those of Rogelio Rafael and Leonilo Hamoy, both of
whom witnessed Gloria Rafael being assaulted outside her residence.
To be sure, a reading of Alejandra Rafael's testimony, particularly during her direct
examination, shows that, due to either her nervousness or the manner of
questioning by counsel or the harrowing subject of her testimony, she had difficulty
narrating the events in chronological fashion. This difficulty is apparently the basis
of accused-appellants' contention that Alejandra's testimony is inconsistent. They
point out that Alejandra testified that she was not able to set the table because she
saw all three accused standing outside the kitchen door, but she later claimed that
she heard a commotion outside and thus opened the door, implying it had been
closed beforehand. That would mean, according to accused-appellants, that she saw
them through a closed door.
This is not so. What really happened was that Alejandra heard a commotion outside
while she was setting the table so she stopped what she was doing to open the
door, and it was then that she saw accused-appellants. Thus, Alejandra said on
cross-examination:
Q:
But before you saw the three (3) accused, you first heard a
commotion, is it not?
A:

Yes, sir.

Q:
And that is the reason why you proceeded to the kitchen door to
verify the same, is it not?
A:

Yes, sir.

Q:
When you saw the three (3) accused, the kitchen door was already
opened?
A:
When I heard the sound, I went to the door immediately and I opened
it, I saw the three (3) of them, and then, Melchor Rafael immediately hacked
me.23
There is therefore no inconsistency on Alejandra's testimony, as accused-appellants
claim.
Turning now to the testimony of Leonilo Hamoy, accused-appellants find it
"surprising" that he did not shout or "do anything except watch [accused-appellants
take] turns in hacking and stabbing Gloria Rafael." The contention has no merit.
With his baby in his arms and the speed with which the events unfolded, Leonilo
Hamoy could not be expected to act with such speed and composure as to be able
to come to the aid of Gloria Rafael. In any case, as accused-appellants themselves
concede, different people react differently in a given situation. 24
Indeed, the foregoing boils down to a question of credibility of the prosecution
witnesses. But, with respect to this issue, the findings of the trial court will not be
disturbed on appeal unless it be shown that it has plainly overlooked certain facts of
substance which, if considered, might affect the result of the case. 25 This is because
the trial court, having personally heard the witnesses and observed their
deportment and manner of testifying during trial, is in a better position to decide
the question of credibility.
The Court thus finds no reason to doubt the accuracy of the identification by
prosecution witnesses Alejandra Rafael and Leonilo Hamoy of accused-appellants as
the assailants of Gloria Rafael. Indeed, the same is supported by Rogelio Rafael's
account which, curiously, accused-appellants chose not to assail in this appeal.
Against their positive identification of accused-appellants, Mario Rafael's defense of
denial and alibi cannot prevail.26
Second. Accused-appellants also contend that the prosecution failed to establish the
presence of conspiracy in this case. Corollary to this, it must be noted that accusedappellant Melchor Rafael owns sole responsibility for the crimes, albeit invoking the
mitigating circumstances of passion and obfuscation on his part and of provocation
on the part of the victims.

While in the appeal of Maximo Rafael (G.R. No. 123176), this Court found that there
was no conspiracy between him and his two sons, herein accused-appellants, the
conspiracy between the latter having been sufficiently and convincingly established
in these cases. Accused-appellants' contention that proof of a previous agreement
to commit a crime is necessary to establish conspiracy is without any basis in
law.27 For direct proof of conspiracy is rarely found, as criminals do not write down
their lawless plans and plots. 28 Certainly, conspiracy can be inferred from the acts of
the assailants before, during, and after the commission of the crime. 29
In these cases, the testimonies of Rogelio Rafael, his mother Alejandra Rafael, and
their neighbor Leonilo Hamoy clearly show that accused-appellants possessed a
common design towards the accomplishment of the same unlawful purpose.
Accused-appellants were both armed when they went to Rogelio Rafael's residence.
When Gloria Rafael, who had been seriously wounded by Melchor, tried to run away,
Mario went in pursuit of her. When accused-appellants caught up with Gloria, they
took turns in stabbing and hacking her. Afterwards, accused-appellants both fled
and went into hiding.
Melchor's claim as the sole assailant of the victim is apparently intended to shield
his brother Mario from criminal liability, in the words of the trial court, "to offer
himself as a sacrificial lamb." In contrast to Melchor, however, the prosecution
eyewitnesses do not appear to have any improper motive except to bring the
perpetrators of the crimes to justice. Their testimonies, therefore, are entitled to full
faith and credence.30
Moreover, Melchor's version of the events does not ring true because of the
following circumstances:
(1) When he said he lost control of himself ("nagdilim ang paningin ko") because of
the alleged derogatory remarks of the victims, he managed to grab not just one but
"two sharp objects," which were conveniently on hand, to enable him to
immediately commence his attack on the victims. One cannot help suspecting that
Melchor was really armed and that the "two sharp objects" correspond to his
weapon and that of his brother Mario.
(2) He testified that he "lost control of himself" so that he "was not aware [he] was
hacking Alejandra Rafael," yet he claimed he noticed Gloria running towards the
door so that he stopped hacking Alejandra and ran after Gloria. 31 These do not
appear to be the acts of a man who finds himself in the grip of passion and
obfuscation but rather of one deliberately set on committing mayhem. Passion and
obfuscation as a mitigating circumstance can only be appreciated only where there
is an act both unlawful and sufficient to produce such condition of mind and the act
which produced the obfuscation was not far removed from the commission of the
crime by a considerable length of time during which the perpetrator might recover

his moral equanimity.32 In this case, however, there is no evidence other than
Melchor's self-serving testimony that he was provoked by being berated by the
victims.
Third. The attacks on Gloria and Alejandra Rafael were clearly qualified by treachery
inasmuch as they were made without warning and by armed men against
defenseless women. The two conditions for treachery, i.e., (1) that at the time of the
attack, the victim was not in a position to defend himself and (2) that the offender
consciously adopted the particular means, method, or form of attack employed by
him,33 have thus been met in this case. This qualifying circumstance of treachery
absorbs the abuse of superior strength alleged in the informations so the latter need
not be appreciated separately.34 The crime committed as to Alejandra was clearly
frustrated murder considering that the number and severity of her wounds would
have caused her death had she not been rushed to the hospital and received timely
medical attention.35
The trial court correctly held that evident premeditation, which was alleged in the
information, was not established in this case. There is no proof of (a) the time when
the accused determined to commit the crime; (b) an act of the accused manifestly
indicating that the accused have clung to their determination; and (c) sufficient
lapse of time between such determination and execution to allow them to reflect
upon the consequences of their act.36
On the other hand, the generic aggravating circumstance of dwelling, although
proven, cannot be appreciated. To be sure, the two women were attacked inside
their house.37 Gloria Rafael was killed outside the house only because she ran
outside to avoid further attack. The aggression began in her house though it ended
outside of it.38 However, as this Court held in People v. Gallego,39 where, under R.A.
No. 7659, the effect of a generic aggravating circumstance is to raise the penalty to
death, such aggravating circumstance must be alleged in the information, otherwise
it cannot be appreciated:
The accused must . . . be afforded every opportunity to present his defense
on an aggravating circumstance that would spell the difference between life
and death in order for the Court to properly "exercise extreme caution in
reviewing the parties' evidence." This, the accused can do only if he is
apprised of the aggravating circumstance raising the penalty imposable upon
him to death. . . The death sentence being irrevocable, we cannot allow the
decision to take away life to hinge on the inadvertence or keenness of the
accused in predicting what aggravating circumstance will be appreciated
against him.

Now, under the Revised Rules of Criminal Procedure, which took effect on December
1, 2000, a generic aggravating circumstance will not be appreciated by the Court
unless alleged in the information. Rule 110 provides in pertinent parts:
SEC. 8. Designation of the offense The complaint or information shall state
the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
SEC. 9 Cause of the accusation. The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances
must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its
qualifying and aggravating circumstances and for the court to pronounce
judgment.
These provisions have been given retroactive effect 40 on the well-settled principle
that "statutes regulating the procedure of the court will be construed as applicable
to actions pending and undetermined at the time of their passage." 41
The penalty for frustrated murder under Art. 245, in relation to Arts. 50 and 61(2) of
the Revised Penal Code, isreclusion temporal. There being no mitigating
circumstance and the aggravating circumstance of dwelling not being considered in
view of the failure of the prosecution to allege the same in the information, the
maximum of accused-appellants' sentence for frustrated murder would fall within
the range of reclusion temporal medium, i.e., fourteen (14) years, eight (8) months,
and one (1) day to seventeen (17) years and four (4) months. Applying the
Indeterminate Sentence Law, the minimum of the penalty is within the range of the
penalty one degree lower thanreclusion temporal, i.e., prision mayor, which is from
six (6) years and one (1) day to twelve (12) years. The sentence imposed by the
trial court is within the foregoing range and should therefore be affirmed.
Although dwelling has not been alleged in the informations, it may nonetheless be
considered for the purpose of determining liability of accused-appellants for
exemplary damages in view of Art. 2230 of the Civil Code which provides that
exemplary damages may be awarded as a part of the civil liability of the accused in
criminal cases "when the crime was committed with one or more aggravating
circumstances."
In line with current jurisprudence, therefore, accused-appellants are civilly liable for
the following damages: (a) for the murder of Gloria Rafael - P50,000.00 moral
damages and P50,000.00 civil indemnity42 and (b) for the frustrated murder of

Alejandra Rafael - P30,000.00 civil indemnity43 and P50,000.00 moral damages.44 In

both cases, due to the presence of the qualifying circumstance of treachery and the
aggravating circumstance of dwelling, an award of P25,000.00 in exemplary
damages should also be awarded pursuant to Art. 2230 of the Civil Code. 45 The
award of actual damages for funeral and medical expenses in both cases should,
however, be deleted for lack of receipts or any documents evidencing the same, as
required by Art. 2199 of the Civil Code.46However, nominal damages of ten
thousand pesos (P10,000.00) may be awarded so that the victims' rights may be
recognized or vindicated.47
WHEREFORE, the decision of the Regional Trial Court, Branch 217, Quezon City,
finding accused-appellants Melchor and Mario Rafael guilty of the frustrated murder
of Alejandra Rafael and the murder of Gloria Rafael, is AFFIRMED with the following
MODIFICATIONS:
(1) In Criminal Case No. Q-94-59453 (frustrated murder), accused-appellants are
ordered to pay jointly and severally the victim Alejandra MacaraegRafael P30,000.00 as civil indemnity, P50,000.00 as moral damages,P25,000.00 as
exemplary damages, and P10,000.00 as nominal damages.
(2) In Criminal Case No. Q-94-59454 (murder), accused-appellants are sentenced
to reclusion perpetua and ordered to pay jointly and severally the heirs of the victim
Gloria Tuatis-Rafael P50,000.00 as civil indemnity,P50,000.00 as moral
damages, P25,000.00 as exemplary damages, and P10,000.00 as nominal damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and
Corona, JJ., concur.

EN BANC

[G.R. No. 121177. November 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. CHARLIE ALMOGUERRA and

DANTE ATON, appellants.

DECISION
PER CURIAM:
The crime involved in the instant case is despicable because innocent lives of
three (3) young children were callously taken. This gruesome incident which
occurred on the day of the barangay election last May 9, 1994 shocked the quiet
barangay of Pia, San Jacinto, Masbate. The grieving folks of that barangay branded
the killing of those children as the MasbateMassacre.
For automatic review is the Decision [1] dated May 9, 1995 of the Regional Trial
Court, Branch 50, San Jacinto, Masbate, in Criminal Case No. 561, declaring Charlie
Almoguerra and Dante Aton, appellants, guilty beyond reasonable doubt of the
special complex crime of robbery with homicide and sentencing them to suffer the
supreme penalty of death. They were also adjudged to pay Florentino and
Lily Julaton, parents of the victims, P150,000.00 as civil indemnity and P15,000.00,
the amount taken.
The Information[2] dated June 29, 1994 against appellants is quoted as follows:
That on or about May 9, 1994, in the morning thereof, at Sitio Nabarira, Barangay
Pia, Municipality of San Jacinto, Province of Masbate, Philippines, within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping each other, with intent to gain by means of violence and/or
intimidation of person, did then and there, willfully, unlawfully and feloniously rob
the residence of spouses FLORENTINO JULATON and LILY AMOR located at the
above-mentioned address by then and there taking away the amount of FIFTEEN
THOUSAND PESOS (p15,000.00) in different denominations and coins without the
consent of said spouses, to their damage and prejudice in the amount
aforementioned and that on the occasion of said Robbery and pursuant to the same
conspiracy, herein accused, with intent to kill, by means of treachery, did then and
there willfully, unlawfully and feloniously attack, assault and employ personal
violence upon the persons of GINA JULATON Y AMOR, 14 years old, LYN JULATON, 8
years old, and REY JULATON Y AMOR, 7 years old, by then and there stabbing them
with a bladed weapon (machete), hitting them on different parts of their bodies,
thereby inflicting upon them serious and mortal wounds which were the direct and
immediate cause of their untimely deaths.
Committed with the aggravating circumstance that the crime is committed in the
dwelling of the offended party.
CONTRARY TO LAW.
Upon arraignment, appellants, with the assistance of counsel, pleaded not
guilty.
During the trial, the prosecution presented the following witnesses:
SPO2 Noli Bartolay, Dr. Rosario Mores, Jessie Genova, Jr., Jessie Genova, Sr.,
Lily Julaton,
Lea Amor,
FlorentinoJulaton, Regino Esparraguerra and
Dr.
Jesus Camposano. Their testimonies are summarized below.

On May 9, 1994, spouses Florentino and Lily Julaton went to the polling precinct
at Barangay Pia, San Jacinto, Masbate, to cast their votes in the barangay elections.
[3]
Before leaving, they instructed their three (3) children, namely: Gina, 14 years
old, Lyn, 8 years old and Rey, 7 years old, to watch their store and prevent strangers
from entering their house.[4]
At around 9:30 oclock that same morning, Jessie Genova, Jr. was
gathering malunggay leaves at their farm,[5] about thirty (30) meters away from the
Julatons house,[6] when he heard appellant Dante Aton shouting and inviting him to
smoke cigarettes.[7] As he was approaching the house, he noticed that
appellant Aton was hiding his right hand behind the door while his left hand was
holding a cigarette.[8] Near the door were the bodies of two (2) dead children, Gina
and Rey.[9] When appellant Aton uttered ada na (here he comes),[10] appellant Charlie
Almoguerra immediately went down the stairs holding assorted coins at his right
hand and a bladed knife or machete at his left hand. [11] Appellant Almoguerra then
forced him (JessieGenova, Jr.) to accept the loose coins. [12] Frightened, he received
the coins, placed them inside his pocket and ran away. [13] At the moment, he heard
them shouting kon mamarita ka,papatyon ka namon hasta an iyo familya (if you tell
somebody, we will kill you and your family).[14] Upon reaching his house, he placed
the loose coins inside the cabinet.[15] Meanwhile, he and his father, Jessie Genova,
Sr., accompanied spouses Julaton in bringing the dead bodies to Ticao District
Hospital at San Jacinto.[16] Upon their return to barangay Pia, he gave the loose coins
amounting to P30.75 to his father and told him about the incident. [17] The next day,
his father convinced him to report the incident to the police. He then executed a
sworn statement.[18]
Meanwhile, upon being informed of the incident by Sonny Amor, spouses
Florentino and Lily Julaton immediately returned home.[19] Along the way, they saw
appellant Almoguerra on the upper part of the hill near their house. [20] Arriving
there, they found all their children dead. [21] They also found that their wooden chest
or baul was forcibly opened and that their cash of P15,000.00 and some loose
change were missing.[22]
SPO2 Noli Socoy Bartolay of the PNP of San Jacinto, Masbate conducted an
investigation.[23] He saw the dead bodies of Gina and Rey inside the kitchen, while
that of Lyn in the bedroom.[24] Lily Julaton informed him that their wooden chest
or, baul was forcibly opened and the amount of P15,000.00 kept therein was
missing.[25]
Dr. Rosario Mores examined the victims bodies. While on the witness stand, she
confirmed her three (3) separate Post-Mortem Reports, [26] reproduced below:
xxx
According to the hospital record, GINA A. JULATON of Pia, San Jacinto, Masbate was
examined in the hospital on May 9, 1994 with the following findings:
1. Stabbed wound, 3 cm., anterior, neck.
x x x.[27]

According to the hospital record, LYN A. JULATON of Pia, San Jacinto, Masbate was
examined in the hospital on May 9, 1994 with the following findings:
1. Stabbed wound, neck, 5 cm.
2. Stabbed wound, abdomen, 5 cm.
3. Stabbed wound, 3.5 cm., hand, left, thru and thru.
4. Stabbed wound, face, 1 cm., right.
x x x.[28]
According to the hospital record, REY A. JULATON of Pia, San Jacinto, Masbate was
examined in the hospital on May 9, 1994 with the following findings:
1. Stabbed wound, chest, 5 cm.
2. Stabbed wound, neck, 3 cm.
x x x.[29]
Dr. Mores declared that all the stab wounds were probably inflicted or caused by
a sharp pointed or edged instrument.[30]
Lea Amor testified that when she visited her cousin, Efren Magdaraog, detained
at the municipal building, she saw appellant Almoguerra, who was also detained.
When she asked him why he killed the Julaton children, he answered that they
refused to sell him cigarettes on credit.[31]
Appellant Aton merely denied the charge. He testified that on that particular
date, he was in Barangay Pia to cast his vote in the barangay election but his name
was not in the voters list. So, he decided to go to his brothers residence at
Barangay Bagahanglad that same day.
He also testified that he was investigated by the police [32] and was forced to
execute an affidavit on May 12, 1994,[33] stating that he was with appellant
Almoguerra and EfrenMagdaraog when they committed the crime, thus:
xxx
That last 9 May 1994 at about 9:30 in the morning more or less, I was on the way to
barangay Bagahanglad, San Jacinto, Masbate from sitio Guintariban, Pia, San
Jacinto, Masbate;
That during that time and date, I saw Charlie Almoguerra and Efren Magdaraog,
both drunk, at the well at sitio Nabarira, Pia, San Jacinto, Masbate about fifty (50)
meters away from the house of FlorentinoTinoy Julaton. Then Charlie Almoguerra
told me to go with them to buy cigarette at the store of Florentino Julaton, and so I
went with them and when we were already near the house of Florentino Julaton, I
heard Efren Magdaraog saying, May cuarta pa dide which, in English means, There
is money here, referring to the house of Florentino Julaton. And then when we

reached the house of the latter, immediately Charlie Almoguerra

and Efren Magdaraog entered the house. Charlie Almoguerra went directly to a
young girl about 14 years old and demanded for cigarette,
while Efren Magdaraog started searching for the money;
That because the young girl did not give cigarette to Charlie, he unsheated his
machete and stabbed the girl causing her to fall down;
That at this juncture, Jessie Genova, Jr. alias Pinoy arrived and seeing the situation
that there were two children dead, he ran away and so because I was already afraid,
I also ran away, leaving behind Charlie Almoguerra and Efren Magdaraog.
x x x.
Later, appellant Aton retracted the above affidavit on the ground that it was
obtained involuntarily and that he was not assisted by his counsel. [34] Hence,
appellant Almoguerra andMagdaraog were released from detention.[35]
Subsequently, or on May 20, 1994, he executed another affidavit [36] with the
assistance of his counsel, imputing the commission of the crime only to appellant
Almoguerra. AppellantAton, in the same affidavit, also stated that he was with
appellant Almoguerra during the incident; that the latter then intended to buy a
cigarette; that he prevented Almoguerra from stabbing the first victim;
that Almogurerra also stabbed another girl; and that he (Aton) because of fear ran
away. His affidavit is partly reproduced below:
Last 9 May 1994 at about 9:30 in the morning more or less, I was at sitio Nabarira,
Pia, San Jacinto, Masbate. That during that time and date, I saw Charlie Almoguerra
at the well about 50 meters away from the house of Florentino Tinoy Julaton, and he
told me to go with him to buy a cigarette, and when we arrived at the said house,
Charlie Almoguerra proceeded inside the house and went directly to a young girl
about 14 years old and demanded for a cigarette, and because the girl did not give
a cigarette to Charlie Almoguerra, the latter unsheated a machete and held the arm
of the young girl, and then I glanced at the window and prevented him but he did
not obey instead he stabbed the young girl causing her to fall down, then he went
to another small girl who was crying and then stabbed her again then I went near
the door and this time Jessie Genova, Jr. arrived and when he saw that there were
two children already dead, he ran away as fast as he could, then because of fear, I
also ran away.
Later, appellant Aton attempted to retract the above affidavit by asserting that
he was merely forced and tortured by SPO2 Noli Socoy Bartolay to execute and sign
it.[37]
Upon rebuttal, the prosecution presented Dr. Jesus Camposano who testified
that appellant Aton could not have been maltreated or tortured by the police; and
that when physically examined, he was found to be mentally fit with no signs of
apparent injuries on his body. [38]
For his part, appellant Charlie Almoguerra, together with his mother Josefina and
his sister Rodelyn, have a different story to tell.

On May 9, 1994, the day of the incident, at around 7:00 oclock in the morning,
Josefina Almoguerra left her house at Bagabansalan, Bartolabac, San Jacinto and
went to the polling precinct at Barangay Pia to cast her vote in the barangay
election.[39] At that time, her husband, Bienvenido, and her children, appellant
Charlie, Jerry, Darwin, and Rodelyn, were still asleep.[40] After casting her vote at
about 10:00 oclock that same morning, she heard that Florentino Julatons children
were killed.[41] She then proceeded to their residence and stayed there until 11:00
oclock noon. She saw the dead bodies. [42] After informing her family and children
about the incident,[43] her husband and their son, appellant Charlie, went to the
Julatons house where they stayed for only thirty (30) minutes because the latter had
a fever[44] caused by a boil at his left armpit. On May 12, 1994, at around 8:00
oclock in the evening, appellant was investigated by the police. [45] On July 4, 1994,
[46]
he was arrested and detained. He admitted that while he was in detention at
the Matiporon provincial jail, he escaped with a certainDonggoy and thereafter
committed another crime of robbery in Aroroy, Masbate.[47]
On May 9, 1995, the trial court rendered a Decision, the dispositive portion of
which, reads:
WHEREFORE, premises considered by proof beyond reasonable doubt, this Court
hereby convicts the accused Charlie Almoguerra and Dante Aton for the crime of
Robbery with Homicide defined and punished under Article 294 of the Revised Penal
Code, as amended by Sec. 9 of R.A. No. 7659, with the presence of aggravating
circumstances of treachery and dwelling. Charlie Almoguerra and Dante Atonare
both sentenced to suffer the maximum penalty of death and to pay the heirs of the
three (3) children the amount of FIFTY THOUSAND (P50,000.00) PESOS each or the
total amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS and to
return the amount of FIFTEEN THOUSAND (P15,000.00) PESOS taken from the
spouses Florentino and Lily Julaton.
SO ORDERED.[48]
In convicting both appellants, the trial court held:
The defense evidence consist of denials and alibis which are all considered the
weakest of all defenses. Atons testimony was that he allegedly went to
barangay Bagahanglad after he failed to see his name in the list of registered voters
in Barangay Pia, while Charlie Almoguerra alleged to have been at home not far
away from the scene of the crime allegedly being sick and asleep.
Their allegations did not help them at all. It is of judicial notice that
Barangay Bagahanglad where Aton claims to be, and Sitio Bagabansalan, Barangay
Bartolabac where Charlie claims he was, are neighboring barangays of barangay Pia
where both places could be reached in a matter of minutes. Moreover, Aton claims
to be in Barangay Pia in the morning of May 9, 1994 while the mother of Charlie was
even in Barangay Pia on that fateful morning to cast her vote. Thus, their defense of
alibi cannot be considered as it is not far-fetched that it was indeed easy to commit
the crime then hide in the safety of their homes considering the proximity of the
scene of the crime to their respective alleged whereabouts.

The alibi offered by the accused is unavailing. It is well-settled that in order for alibi
to prosper, the evidence to support it must be clear and convincing so as to
preclude the possibility of the accused presence at the scene of the crime while the
evidences to his identification must be weak and insufficient (People
vs. Damos, G.R. No. 108599, Oct. 7, 1994). As narrated above, it is not impossible
for the two accused to have been at the situs of the crime then escape to the safety
of their homes/hideouts.
xxx
It is axiomatic that a persons guilt may be established not only by direct evidence
but also by circumstantial evidence which is sufficient to convict as long as: (a)
there is more than one circumstance; (b) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt (People
vs. Ballesteros and Avestro, G.R. No. 110289, Oct. 7, 1994). The circumstances
narrated borne-out by the records indubitably point to the accused as the culprits.
This Court agrees with the prosecution that the circumstance of killing was
aggravated by treachery and dwelling. The mere fact of killing a child already
constitutes treachery. The three (3) innocent children were all hacked to death
without anyone defending for them all because of the evil minds of the accused.
Killing a child is characterized as treachery even if the manner of the assault is not
shown because the weakness of the victims due to their tender age results in the
absence of any danger to the accused (People vs. Cabarrubias, 223 SCRA 363).
Dwelling is likewise present in this case as aggravating circumstance because
robbery could not be committed without the necessity of transgressing the sanctity
of the home (People vs. Gapasin, 145 SCRA 181).[49]
Appellant Almoguerra, in his brief, ascribed to the trial court the following
errors:
I
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THE
ACCUSED-APPELLANT CHARLIE ALMOGUERRA GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF ROBBERY WITH HOMICIDE BY GIVING FULL FAITH AND CREDENCE
TO THE TESTIMONIES OF PROSECUTION WITNESSES WHICH ARE REPLETE WITH
IMPROBABILITIES.
II
THE TRIAL COURT ERRED IN ORDERING ACCUSED-APPELLANT CHARLIE
ALMOGUERRA TO PAY THE HEIRS OF THE THREE CHILDREN THE AMOUNT OF FIFTY
THOUSAND PESOS (P50,000.00) EACH OR TO THE TOTAL AMOUNT OF ONE
HUNDRED FIFTY THOUSAND PESOS (P150,000.00) AND TO RETURN THE AMOUNT
OF FIFTEEN THOUSAND PESOS (P15,000.00) TAKEN FROM THE SPOUSES
FLORENTINO AND LILY JULATON.
For his part, appellant Aton raised in his brief the following assignments of error:

I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT DANTE
ATON GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH
HOMICIDE.
II
THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT DANTE ATON TO PAY
THE HEIRS OF THE THREE CHILDREN THE AMOUNT OF FIFTY THOUSAND PESOS
(P50,000.00) EACH OR A TOTAL AMOUNT OF ONE HUNDRED FIFTY THOUSAND
PESOS (P150,000.00) AND TO RETURN THE AMOUNT OF FIFTEEN THOUSAND PESOS
(P15,000.00) TAKEN FROM THE SPOUSES FLORENTINO AND LILY JULATON.
In essence, appellants contend that the trial court erred in finding them guilty of
the crime of robbery with homicide considering that the May 11, 1994 affidavit of
prosecution witness Jessie Genova, Jr. does not mention the name of appellant
Almoguerra as one of the assailants; and that appellant Atons May 20, 1994
affidavit stating that he was with Almoguerra when the latter committed the crime
was obtained through force and maltreatment.
Articles 293 and 294(1) of the Revised Penal Code, as amended by
RA 7659, Section 9, provides:
ART. 293. Who are guilty of robbery. - Any person who, with intent to gain, shall take
any personal property belonging to another, by means of violence against or
intimidation of any person, or using force upon anything, shall be guilty of robbery.
ART. 294. Robbery with violence against or intimidations of persons - Penalties. Any person guilty of robbery with the use of violence against or intimidation of any
person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed, or when the
robbery shall have been accompanied by rape or intentional mutilation or arson.
Direct evidence of the commission of the crime charged is not the only matrix
wherefrom a court may draw its conclusions and findings of guilt. The rules on
evidence and case law sustain the conviction of appellants through circumstantial
evidence.[50]
Under Section 4, Rule 133 of the Revised Rules of Court on circumstantial
evidence, the following requisites must concur:
(1) there must be more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all circumstances is
such as to produce a conviction beyond reasonable doubt of the guilt of the
accused.
In the case at bar, the following circumstances cited by the trial court led us to
the inevitable conclusion that the prosecution proved by evidence beyond

reasonable doubt all the elements of robbery with homicide and that appellants
conspired to commit the crime, thus:
1. Appellants knew very well that May 9, 1994 was a barangay election day and
that most of the registered voters of San Jacinto, Masbate, including Florentino and
Lily Julaton, would go to the polling precincts to cast their votes;
2. That same morning, only the Julaton children were left to watch their house
and store;
3. Prosecution witness Jessie Genova, Jr. testified that on that particular day and
time, he saw appellant Aton at the Julatons house and the latter, in a loud voice,
asked him to smoke;
4. When Jessie Genova, Jr. was approaching the house, he saw
appellant Aton hiding his right arm behind the door while his left hand was holding a
cigarette. At that instance, he also saw the two (2) dead bodies of
the Julaton children;
5. And after he heard appellant Aton utter ada na (here he comes - referring to
Jessie Genova, Jr.), appellant Almoguerra went down the stairs holding a machete or
bladed knife at his left hand and loose coins at his right hand;
6. Appellant Almoguerra then forced Jessie Genova, Jr. to accept the loose coins.
The latter placed them inside his pocket and immediately ran away;
7. While
running
away,
he
heard
the
shouting kon mamarita ka, papatyon ka namon hasta an iyo familya (if
somebody, we will kill you and your family);

appellants
you
tell

8. Police investigation established that the dead bodies of Gina

and Rey Julaton were found inside the kitchen while that of Lyn Julaton was inside
the bedroom. The amount of P15,000.00 was missing from spouses Julatons
wooden chest or baul that was forcibly opened;
9. Physical examination of the victims showed that the stab wounds inflicted
upon them were caused by a sharp pointed or edged instrument;
10. Appellant Atons two (2) affidavits state that on the date of the commission
of the crime, he was with appellant Almoguerra who wanted to buy cigarette at the
Julatons store; and that he stabbed the victims;
11. Appellant Atons affidavit of May 12, 1994 reveals his and his companions
intent to rob the house of spouses Julaton. In this affidavit, appellant stated that
while
on
their
way
to
the
Julatons
residence, Edren Magdaraog said, may cuarta pa dide (there is money here);
12. Dr. Jesus Camposano who examined appellant Aton found that the latter was
physically and mentally fit with no apparent signs of injuries. Hence, his affidavits
deserve credence; and
13. Appellant Almoguerra escaped while he was detained at the provincial jail.
Worse, he even committed another crime (robbery) in another barangay.
The foregoing circumstances when viewed in their entirety are as convincing as
direct evidence and as such, negate the innocence of the appellants. Otherwise

stated, the prosecution established beyond a shadow of a doubt, through

circumstantial evidence, that both appellants conspired to commit the complex
crime of robbery with homicide. The elements of this crime are: (a) the taking of
personal property is perpetrated by means of violence or intimidation against a
person; (b) the property taken belongs to another; (c) the taking is characterized by
intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by
reason thereof, the crime of homicide, here used in its generic sense, is committed.
[51]

From the circumstantial evidence offered by the prosecution, it is clear that both
appellants, acting in conspiracy, took P15,000.00 from the Julatons by means of
violence against the three (3) children. For why should appellants kill them were it
not for their intent and determination to take the money?
Clearly, by his own account, appellant Aton placed himself squarely at the crime
scene when the killing occurred on the occasion of the robbery. However, he
vigorously contends that he cannot be held liable for robbery with homicide because
he neither took the money nor killed the victims. In fact, he prevented appellant
Almoguerra from killing the first victim.
It bears stressing that appellant Aton admitted not only once but twice in
his own affidavits that he was with appellant Almoguerra before, during, and after
the commission of the crime charged. And he even confirmed the veracity of his
statements on the witness stand.
Appellant Atons contention that he intervened when appellant Almoguerra
attacked the first victim and that thereafter, he ran away out of fear does not
deserve credence. If this were so, why did he leave only after he saw prosecution
witness Jessie Genova, Jr.?
On the whole, appellant Atons conduct affirms the fact that he consciously
concurred with appellant Almoguerra in committing the crime.
The proof of conspiracy is perhaps most frequently made by evidence of a chain
of circumstances.[52] The series of events in this case clearly show that appellants
were of one mind, not only in taking the money of spouses Julaton, but also in the
manner they committed the crime. Clearly, their concerted actions are indications
of a criminal conspiracy.
Appellants, to exculpate themselves, merely denied the commission of the
crime and interposed the defense of alibi. For this defense to stand, it must be
shown that not only were appellants somewhere else when the crime was
committed but also that it was physically impossible for them to have been at the
scene of the crime at the time it was committed. [53]
On this point, the trial court held:
x x x. Atons testimony was that he allegedly went to barangay Bagahanglad after
he failed to see his name in the list of registered voters in Barangay Pia while
Charlie Almoguerra alleged to have been at home not far away from the scene of
the crime allegedly being sick and asleep.

Their allegations did not help them at all. It is of judicial notice that
Barangay Bagahanglad where Aton claims to be, and Sitio Bagabansalan, Barangay
Bartolabac where Charlie claims he was, are neighboring barangays of barangay Pia
where both places could be reached in a matter of minutes. Moreover, Aton claims
to be in Barangay Pia in the morning of May 9, 1994 while the mother of Charlie was
even in Barangay Pia on that fateful morning to cast her vote. Thus, their defense of
alibi cannot be considered as it is not far-fetched that it was indeed easy to commit
the crime then hide in the safety of their homes considering the proximity of the
scene of the crime to their respective alleged whereabouts.
We are in accord with the trial courts finding that considering the distance
between the scene of the crime and the places where both appellants claimed they
were, it was physically possible for them to have been in the crime scene at the
time it was committed.
In sum, we find appellants defenses of denial and alibi unavailing. Alibi is
inherently weak and unreliable, unless corroborated by disinterested witnesses.
Since appellants were unable to substantiate their alibi with the testimony of a
credible witness, it is reduced to self-serving evidence undeserving of any weight in
law.[54]
Appellant Almoguerras defense is further weakened by his escape from the
provincial jail. Flight per se cannot prove his guilt. But considered in the light of
other circumstances, it may be deemed a strong indication of guilt. [55]
In fine, the trial court correctly held that the circumstances taken together point
to the fair and logical conclusion that both appellants are guilty of the crime of
robbery with homicide. The only remaining question is whether the crime was
attended by aggravating circumstances.
The aggravating circumstances of treachery and dwelling have been alleged in
the Information and proved by the prosecution by strong and convincing evidence.
In People vs. Escote,[56] we held that treachery is a generic aggravating
circumstance when the victim of homicide is killed with treachery. The killing of
minor children who, by reason of their tender years, could not be expected to put up
a defense is considered attended with treachery even if the manner of attack was
not shown.[57] Considering that the victims in this case of robbery with homicide are
young children, aged 7, 8 and 14, the killing was aggravated by treachery.
Likewise, the aggravating circumstance of dwelling is present here. Appellants
deliberate intrusion in the privacy of the Julatons domicile shows perversity.
In People vs. Feliciano,[58] dwelling is considered aggravating in robbery with
homicide because this kind of robbery cannot be committed without the necessity
of transgressing the sanctity of the house.
Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A.
No. 7659, the prescribed penalty for robbery with homicide is composed of two
indivisible penalties,reclusion perpetua to death. Considering that in the present
case, there is the aggravating circumstance of dwelling that attended the
commission of the crime, we impose upon the appellants the supreme penalty of
death.

Regarding damages, the trial court correctly awarded P150,000.00 as civil

indemnity to the victims heirs. When death occurs as a result of a crime, each
appellant should be ordered to pay the heirs of each victim P50,000.00 as civil
indemnity, without need of any evidence or proof of damages. [59]
As to Lily Julatons claim that the sum of P25,000.00 was spent for her childrens
funeral expenses, we find the same unsubstantiated. In People vs. Solamillo,[60] we
ruled that to be entitled to the award of actual damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable to the injured party. While the
prosecution failed to present any receipt to prove the claim for actual damages, we
are aware that the same were indeed incurred by the family of the deceased.
Temperate damages, in lieu of actual damages, may be recovered when the
court finds that some pecuniary loss has been suffered but its amount cannot be
proved with certainty.[61] InPeople vs. Abrazaldo,[62] we computed temperate
damages at P25,000.00. We award the same in this case.
As to moral damages, we, in similar cases, [63] awarded the victims heirs the
amount of P50,000.00 as moral damages. For verily, moral damages are not
intended to enrich the victims heirs; rather they are awarded to allow them to
obtain means for diversion that could serve to alleviate their moral and
psychological sufferings.[64] Here, Lily Julaton, mother of the victims, equivocally
described how she and her husband suffered untold wounded feelings for the loss of
their children.
Anent the award for exemplary damages, Article 2230 of the Civil Code provides
that in criminal offenses, exemplary damages may be imposed when the crime was
committed with one or more aggravating circumstances. Considering that the
aggravating circumstance of dwelling is present here, P25,000.00 [65] exemplary
damages may be awarded to spouses Julaton.
On the assigned error that the trial court erred in ordering the appellants to
return the P15,000.00 they took from the spouses Julaton, suffice it to say that the
restitution of the thing itself or the return of the P15,000.00 cash stolen by
appellants, is proper under Article 105 of the Revised Penal Code.
Three (3) members of the Court, although maintaining their adherence to the
separate opinions expressed in People vs. Echagaray that R.A. No. 7659, insofar as
it prescribes the penalty of death is unconstitutional, nevertheless submit to the
ruling of the majority that the law is constitutional and that the death penalty
should accordingly be imposed.
WHEREFORE, the assailed Decision dated May 9, 1995 of the Regional Trial
Court, Branch 50, San Jacinto, Masbate, in Criminal Case No. 561, is
hereby AFFIRMED with MODIFICATION in the sense that appellants CHARLIE
ALMOGUERRA and DANTE ATON are sentenced to suffer the penalty
of DEATH and individually ordered to pay the victims heirs (a) P150,000.00 as civil
indemnity; (b) P25,000.00 as temperate damages; (c) P50,000.00 as moral
damages; and (d) P25,000.00 as exemplary damages.
Let the records of this case, upon finality of this Decision, be forwarded to the
Office of the President for the possible exercise of her pardoning power pursuant to
Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. 7659.

Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., Azcuna, andTinga, JJ., concur.