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ART 13 MITIGATING CIRCUMSTANCES

A. PRAETER INTENTIONEM

Republic of the Philippines SUPREME COURT Manila

EN BANC

C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant. Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayorto thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed

(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.

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On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is Switzerland.

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In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another

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mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..

Ozaeta, Perfecto, and Bengzon, JJ., concur.

Separate Opinions

HILADO, J., concurring:

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

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-12883 November 26, 1917

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THE UNITED STATES, plaintiff-appellee, vs. CLEMENTE AMPAR, defendant-appellant.

Filemon A. Cosio for appellant. Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like that, I am not a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down, the accused came up behind him and struck him on the head with an ax, causing death the following day.

As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would not appear to be justified. This mitigating circumstance was that the act was committed in the immediate vindication of a grave offense to the one committing the felony.

The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied. That there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain. The Supreme court of Spain has held the words "gato que araaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in the proper light. The offense which the defendant was endeavoring to vindicate would to the average person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious matter to be made the butt of a joke in the presence of so many guests. Hence, it is believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly sentenced him to the minimum degree of the penalty provided for the crime of murder. lawph!1.net

Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one day of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against the appellant. So ordered.

Arellano, C.J., Torres, and Araullo, JJ., concur. Johnson, J., concurs in the result. Street, J., did not sign.

Separate Opinions

CARSON, J., concurring:

I concur. I think, however, that the extenuating circumstances attending the commission of the crime fall under the provisions of section 7 of the Penal Code rather than under the provisions of section 5 of that Code as indicated in the opinion.

PP v. Ignas (Sept 30, 2003)

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Republic of the Philippines SUPREME COURT

Manila

G.R. No. L-32042 December 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO BENITO y RESTUBOG accused-appellant.

R E S O L U T I O N

AQUINO, J.:

Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was qualified by treachery and aggravated by premeditation and disregard of rank. It was mitigated by plea of guilty.

After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).

Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of immediate vindication of a grave offense and that the aggravating circumstances of disregard of rank should not be appreciated against him.

Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this manner (Exh. A):

... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service ng Administrative case ng "DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong February 16, 1966.

At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang "dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of Appeals.

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Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department noon at nagagalit sa akin ang mga empleyado ng Civil Service dahil mahigpit ako sa kanila.

Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.

Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.

Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.

Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.

Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the bullets which he had fired at Moncayo.

The Police report contains the following background and description of the killing (Exh. B):

According to the suspect, he was a former employee of the Civil Service Commission at its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he was suspended for "DISHONESTY".

After two months, he was reinstated but was criminally charged for QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and administratively charged for "DISHONESTY" culminating in his dismissal from the Civil Service on February 1966.

The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the arrest of the suspect for the crime of ESTAFA.

On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409 for the arrest of the suspect for the crime of MALVERSATION OF PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative charges filed him were allegedly instigated and contrived by the victim and since the time of his dismissal, he was allegedly jobless.

On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested the victim to help him in his cases but the former allegedly uttered to the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO".

The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they met again, the victim allegedly remarked in the presence of many people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who was humiliated and incensed, left.

At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited for the victim outside the Civil Service compound at P. Paredes st. Sampaloc, Mla.

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The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No. L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, surreptitiously followed the victim and when the latter's car was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the suspect without any warning or provocation, suddenly and treacherously shot the victim eight (8) times on the head and different parts of the body at closer range which consequently caused the latter's death on the spot inside his car.

The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital. Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.

The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to E-2). The accused was a clerk in the cash section, Administrative Division of the Commission, receiving P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.

On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that Benito admitted having malversed an amount between P4,000 and P5,000 from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):

MEMORANDUM for The Commissioner Through Proper Channels

This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this Commission, who, as had previously been reported, malversed public funds in the amount of approximately P5,000.00 out of his collections from the sale of examination fee stamps.

I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of money orders received from the Provincial Treasurer of Cotabato, which were kept by him in one of the cabinets inside the Cashier's Cashier' room.

At the same time he also informed me that he suspected that Mr. Benito stole the missing money orders. His suspicion arose from the fact that he found several money orders marked "Cotabato" as their place of issue among the cash receipts turned over to him by Mr. Benito that afternoon as his collection from the sale of examination fee stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato which were turned over to him by Mr. Benito and after checking their serial numbers with the records of list of remittances on file, we were able to establish definitely the fact that the said money orders were those missing.

It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of his duties was to sell examination fee stamps to applicants for examinations. It was then the practice of the cashier to issue to Mr. Benito in the morning examination fee stamps to be sold during the day and in the afternoon he turned over to the Cashier the proceeds from the sale of stamps including the unsold stamps issued to him. After considering the work performed by Mr. Benito, it became evident that he succeeded in malversing the amount of P100.00 by substituting equivalent amount of money orders in the place of the cash extracted by him from his daily collections from the sale of examination fee stamps when he clears his accountability with the Cashier.

The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he had something to do with the loss of the fifty (50) money orders at P2.00 each. At first he denied, but when I asked him where he obtained the money orders issued in Cotabato which were included in his collections the day preceding, he admitted having stolen the missing money orders.

Having confessed his guiltk, I then asked Mr. Benito when he started committing the said irregularity and how much in all did he actually malversed out of his daily collections from the time that he started the

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anomaly. He stated in the presence of Mr. Abarquez that he started in January, 1965 and that although he did not know exactly the total amount malversed by him, he believed the amount to be between P4,000.00 to P5,000.00. He also confessed that he used the money orders remitted by the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various amounts extracted by him from his daily cash collections and used by him for personal purposes.

It appears from the records that the List of Remittances covering the money orders received from the Provincial Treasurer of Negros Occidental was duly receipted by Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said Provincial Treasurer and then turn over to the Cashier the amount involved for deposit to the National Treasurer. The said List of Remittances, duly signed by Mr. Benito, is enclosed for use as evidence in this case.

I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he pleaded that he be given first an opportunity to restore the amount before I make my report in order that the penalty that may be imposed upon him may be lessened to a certain degree. As I thought it wise in the interest of the service to recover the amount involved, I allowed him to go and see his parents in Naga City to raise the amount in question.

After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the Government Service Insurance System and that the proceeds of the said loan which he intended to use in restoring the amount malversed by him were expected to be released during the last week of May, 1965. However, when the month of May, 1965 elapsed without the amount involved having been restored, I conferred with Mr. del Prado, my immediate superior and asked him whether we should wait further for the release of the said loan in order that the amount involved may be recovered. Mr. Prado consented to giving him a little more time.

When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado, Abarquez and Gatchalian, also of this Commission, brought him before Deputy Commissioner A. L. Buenaventura and reported the entire matter to the Deputy Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted readily and voluntarily before the Deputy Commissioner the commission of the offense of malversation of public funds as stated above.

In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be suspended from office immediately considering the gravity of the offense committed by him.

(Sgd.) PEDRO R. MONCAYO Administrative Officer II

Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal purposes. The decision dismissing him from the service reads as follows (Exh. G):

This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative Division of this Office, for dishonesty.

The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service connect respondent with the alleged misappropriation of public funds representing his collection from the sale of examination fee stamps and constitute the basis of the instant case against him:

An investigation made by this Commission shows that you malversed public funds in the amount of P3,536.00 out of your collections from the sale of examination fee stamps while in the performance of your official duties as Clerk II in the Cash Section, Administrative Division of this Office. It appears that you succeeded in malversing the above-stated amount from your cash collections by substituting in lieu thereof money orders worth P3,436.00 remitted to this Commission by the Provincial Treasurer of Negros Occidental which were duly receipted for by you. It also appears that you

10

extracted from a bundle of money orders remitted by the Provincial Treasurer of Cotabato the amount of P100.00 in money orders which were kept in one of the cabinets in the Cashier's room.

Respondent denied the charge. He explained, among others, that money orders were always kept in the Cashier's safe and he had no access to them. Although he admitted having received money orders amounting to P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of Cotabato he, however, disclaimed having substituted the same for cash collections in his sale of examination fee stamps. He reasoned out further that he could not be charged with malversation of public funds inasmuch as he was not then an accountable officer.

It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling of examination fee stamps, receiving payments therefor, and receiving remittances in form of cash and/or money orders from provincial treasurers in connection with examinations held in the provinces. It was also his duty to issue official receipts for said remittances. In the course of the performance of his duties, he received said remittances from the Provincial Treasurers of Negros Occidental and Cotabato, but no official receipts were issued by him, as shown by the reply telegrams pertaining thereto. While records disclose that remittances from the province of Cotabato were submitted to the Cashier of the Civil Service Commission, there is no evidence showing that remittances from Negros Occidental were likewise submitted.

Investigation further reveals that 50 money orders were discovered missing from the remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15 money orders turned over by respondent as part of his collections in the sale of examination fee stamps were among the missing money orders. This triggered off the filing of this case against the respondent.

On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura having misappropriated an aggregate amount ranging from P3,000 to P7,000, which he spent in night clubs, pleasure spots and other personal benefits. Despite the testimonies of several witnesses regarding his confession, including that of the then Deputy Commissioner himself, respondent, when asked to take the stand, denied his previous admission.

Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission, when examined by representatives of the Auditor's Office, did not indicate any shortage and therefore there was no irregularity involved. This argument is not well taken. Inasmuch as the remittances received by respondent from said Provincial Treasurers of Negros Occidental and Cotabato were not in turn given corresponding official receipts, naturally, the same were not reflected on the Cashier's cash book.

The weakness of respondent's defense lies not so much on its failure to establish convincingly his innocence as its irreconciliability with established facts. Obviously, none of the circumstances in this case is consistent with his claim of innocence. On the contrary, all of them put together produce reasonable assurance of respondent's guilt.

In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged. Wherefore, he is dismissed from the service effective upon his receipt of this decision.

In the interest of the service this decision is executed also on the date of his receipt of this decision.

Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).

The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly made upon seeing Benito in the compound of the Civil Service Commission near the canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before the shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969).

11

Mitigating circumstance of immediate vindication of a grave offense. Benito contends that Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a man already down and to rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed to ridicule in the presence of his officemates.

Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, acquitting him of the charge of malversation in connection with his alleged misappropriation of the fees collected from the examinees of the 1974 patrolman examination. That same decision makes reference to Benito's exoneration from the administrative charge. The court's decision reads as follows:

The accused is charged with malversation under the following information:

That on or about and during the period comprised between October 17, 1964, to February, 1965, inclusive, in the City of Manila Philippines, the said accused being then employed as Clerk I of the Civil Service Commission, a branch of the government of the Republic of the Philippines, among whose duties were to accept payments of fees collected from the examinees of the 1964 Patrolman examination, and by reason of his said position received the total amount of P3,536.00, with the duty to turn over and/or account for his collections to the cashier of the Civil Service Commission immediately or upon demand but the said accused once in possession of the said amount of P3,536.00, with intent to defraud, despite repeated demands made upon him to turn over and to account for the same, did then and there willfully, unlawfully and feloniously misappropriate, misapply and convert and malverse the said amount to his own personal use and benefit, to the detriment of public interest and to the damage and prejudice of the said Civil Service Commission in the said amount of P3,536.00, Philippine currency.

Contrary to law.

The evidence shows that the accused had an appointment as clerk in the Civil Service Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others, of selling Civil Service examination- fee stamps and to receive payment therefor, as well as to receive remittances of money orders and checks from the provincial treasurers for payments of examination fee stamps (Exhibit B).

Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the information, testified in his direct examination that Benito was working in his office; that one of the duties that he assigned to him was to sell examination fee stamps; that it was customary for him to give stamps to Benito at the start of office hours in the morning and that Benito turned over to him the proceeds of the sale, as well as the unsold stamps, at the close of office hours in the afternoon; that one afternoon he noticed that Benito turned over to him 50 money orders from Cotabato, together with some cash, as proceeds of the sale of stamps for that day; that he remembered that he was missing money orders from one of his cabinets where he kept them; that when he discovered that the 50 money orders were those which were missing, he reported the matter to Pedro Moncayo, the chief administrative officer; on March 1, 1965; that the money orders were for P2.00 each, and were payments of the examination fees from Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on February 28, 1965 and reported it to Moncayo on March 1, 1965, together with the list of missing orders (Exhibit M); that after receiving the report, Moncayo called Benito to the office of Abarquez where he admitted taking the missing money orders; that Moncayo submitted a memorandum to the Commissioner, dated October 21, 1965, after giving Benito a chance to refund the value of the money orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that when Benito was confronted with the report of Moncayo and Abarquez, he admitted that he misappropriated about P3,000.00 because of bad company and that he asked for a chance to refund the money.

Under cross-examination, Abarquez elucidated his testimony in his direct examination and explained that when Benito turned over the proceeds of the sale of stamps for that particular day, he kept the sum of P100.00 and replaced it with the 50 money orders that he had taken from the cashier's office to cover up the money that he had pocketed. When he was asked when he discovered that Benito substituted the 50

12

money orders from Cotabato, he answered that he checked them the following night (March 2, 1965) with the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted with his affidavit which he executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had only verified 15 money orders missing as of April 18, 1966 and that he did not keep any record of the money and the money orders given to him by Benito on March 1, 1965.

He also admitted that the room where he kept the money orders in an unlocked drawer was also occupied by two other persons, and that this was the first time that he had not followed the usual procedure of keeping them in the safe. He further admitted that, although regular examinations were conducted during the period of October 1, 1964 to February 28, 1965 by the examiners of the Civil Service Commission and the auditors of the General Auditing Office, they did not find any shortage in the accounts of Benito.

Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that they were not deposited with the Bureau of Treasury because they were reported missing; but when pressed further, he said that he deposited them, but did not issue any official receipt for them. When asked if he had any evidence to show that they were actually deposited, he admitted that he could not even remember when he deposited them.

The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too weak and shaky to sustain a finding of guilt because of his glaring inconsistencies, contradictions and gaps in memory. The prosecution has failed to present convincing evidence that the 50 money orders were even lost: According to Abarquez he had only verified the loss of 15 on April 18, 1966, although he testified earlier that he determined the loss of 50 the night after March 1, 1965.

The examiners of the Civil Service Commission and the auditors of the General Auditing Office did not find any irregularity in the cash accountability of Benito, according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the Commission on Audit and Miguel Games, auditing examiner assigned to the Civil Service Commission, who testified for the accused. Benito was in fact exonorated the administrative charge filed against him for the time same transaction (Exhibit E).

In fact, the testimony of Abarquez under cross-examination that he has not issued any official receipt for the 50 money orders and his inability to prove that he deposited them with the bureau of Treasury gives rise to the suspicion that other persons, not the accused, may have stolen the 50 missing money orders. Even without taking into account the testimony of the accused, who denied the testimonies of the witnesses for the prosecution, the court believes that the prosecution has failed to prove the guilt of the accused.

WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.

The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating circumstance of vindication of a grave offense because it was not specifically directed at Benito. The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three hours later or at two o'clock in the afternoon and inquired from him about his case and Moncayo said that he had already submitted his report and he could not do anything more about Benito's case (26 tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of the same day.

Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances recited above for changing our prior opinion that the mitigating circumstance of "haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his emotion over said remark if he ever did resent it."

"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no ha apreciado la proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar por la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).

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The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).

The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the assassination was more than sufficient to enable Benito to recover his serenity. But instead of using that time to regain his composure, he evolved the plan of liquidating Moncayo after office hours. Benito literally ambushed Moncayo just a few minutes after the victim had left the office. He acted with treachery and evident premeditation in perpetrating the cold-blooded murder.

The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's alleged defamatory remark that the Civil Service Commission compound was a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for having exposed the alleged anomalies or defraudation committed by Benito and for obstinately refusing to change his report.

Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not be considered against him because there was no evidence that he "deliberately intended to offend or insult the rank" of Moncayo. That contention has no merit.

It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the killer was a clerk in the same office who resented the victim's condemnatory report against him. In that situation, the existence of the aggravating circumstance of "desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.

The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated the funds of the consulate, which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by disregard of rank.

WHEREFORE, the motion for reconsideration is denied.

SO ORDERED.

Teehankee, Makasiar, Antonio, Concepcion, Jr. and Martin, JJ., concur.

Castro, C. J., Fernando and Muoz Palma, JJ., concur in the result.

Separate Opinions

BARREDO, J., concurring:

Upon a review of the record, I am now convinced appellant cannot be credited with the mitigating circumstance of indication of a grave offense.

Separate Opinions

BARREDO, J., concurring:

Upon a review of the record, I am now convinced appellant cannot be credited with the mitigating circumstance of indication of a grave offense.

PP V. DAVAID (60 PHIL 93)

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B. VINDICATION OF A GRAVE OFFENSE

US V. HICKS

In the case of U.S. vs. Hicks (14 Phil., 217), the accused therein and a woman illicitly lived together. Afterward, the woman separated from him and lived with another man. Defendant, enraged by her conduct killed her. This court held that no mitigating circumstances of passion and obfuscation was present, not even loss of reason and self-control produced by jealousy as alleged by the defense, in as much as the only causes which mitigate the criminal responsibility for the loss of self-control as such as originate from legitimate feelings, not those which arise from vicious, unworthy and immoral passions.

he facts in this case are clearly distinguishable from those in the case of United States vs. Hicks (14 Phil. Rep., 217) wherein the alleged passion and obfuscation of the accused had its origin in jealousy, aroused by the fact that the woman in that case seemed to prefer the profligate attentions of the victim of the assault to those of the assailant, whose anger against his victim was not based on any act of misconduct of which the assailant might legitimately complain.

It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the convict in that case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate feelings." But in that case we found as facts that:

All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had planned to do beforehand.

SANICO V. CA (46 OG 93)

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-7094 March 29, 1912

THE UNITED STATES, plaintiff-appellee, vs. HILARIO DE LA CRUZ, defendant-appellant.

F.C. Fisher for appellant. Acting Attorney-General Harvey for appellee.

CARSON, J.:

The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below is conclusively established by the evidenced of record.

The trial court was of opinion that its commission was not marked by either aggravating or extenuating circumstances, and sentenced the convict to fourteen years eight months and one day of reclusion temporal, the medium degree of the

15

penalty prescribed by the code. Burt we are of opinion that the extenuating circumstance set out in subsection 7 of article 9 should have been taken into consideration, and that the prescribed penalty should have been imposed in its minimum degree. Subsection 7 of article 9 is as follows:

The following are extenuating circumstances:

x x x x x x x x x

That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation.

The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore been his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual acquaintance. We think that under the circumstances the convict was entitled to have this fact taken into consideration in extenuation of his offense under the provisions of the above-cited article.

This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:

Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes with another party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime with the extenuating circumstance of having acted with violent passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold and its judgment was reversed by the supreme court for the improper disregard of article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court, and which were the immediate cause of the crime by producing in the accused strong emotion which impelled him to the criminal act and even to attempt his own life, were a sufficient impulse in the natural and ordinary course to produce the violent passion and obfuscation which the law regards as a special reason for extenuation, and as the judgment did not take into consideration the 8th circumstance of article 9 of the code, the Audiencia rendering it seems to have violated this legal provision."

It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the convict in that case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate feelings." But in that case we found as facts that:

All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had planned to do beforehand.

In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect right to do; his reason for killing her being merely that he had elected to leave him and with his full knowledge to go and live with another man. In the present case however, the impulse upon which defendant acted and which naturally "produced passion and obfuscation" was not that the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another. As said by the supreme court of Spain in the above-cited decision, this was a "sufficient impulse" in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one of the extenuating circumstances to be taken into consideration by the court.

Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out in subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months and one day ofreclusion temporal to twelve years and one day of reclusion temporal, the judgment of conviction and the sentence imposed by the trial court should be and are hereby affirmed, with the costs of this instance against the appellant.

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Arellano, C.J., Torres, Johnson and Trent, JJ., concur

Separate Opinions

MORELAND, J., concurring:

I agree except as to the application of the extenuating circumstance presented by paragraph 7, article 9, Penal Code. In my judgment it is not warranted by the facts or the law.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-46530 April 10, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CATALINO RABAO, defendant-appellant.

Jose F. Oreta for appellant. Office of the Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for appellee.

IMPERIAL, J.:

This is an appeal from a judgment of the Court of First Instance of Camarines Sur convicting the appellant of the crime of parricide and sentencing him to an indeterminate penalty of from eight years and one day of prision mayor to twenty years of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.

The information filed by the acting provincial fiscal of said province charged the defendant with parricide for having killed his wife Salvacion Agawa on December 15, 1937, in the municipality of Naga, Province of Camarines Sur, which crime was committed with evident premeditation and abuse of superior strength.

The defendant and the deceased Salvacion Agawa were married before the justice of the peace of Naga on January 15, 1936 and had since been born to the marriage. Since their marriage they had made their home in the house of Urbano Rellora, who lived maritally with the mother of the accused. On the morning of December 15, 1937, when the defendant was hardly awake after staying up late the previous night on account of the elections held in the municipality of Naga, he noticed that his wife was preparing water with which to give the child a bath. He told his wife not to bathe the child because it had a cold, but the wife insisted and a quarrel arose in the heat of which the accused punched his wife on the abdomen. She fell seated on a sack of rice nearby and immediately suffered an attack of which she died in spite of the aid rendered her by the accused himself and other persons who had arrived. The following morning Dr. Vicente Roxas performed an autopsy and found that the spleen of the deceased had been hypertrophied due to an acute and chronic malaria from which she had been suffering, and that death was caused by the hemorrhage of the spleen when it was ruptured as a consequence of an external blow on the abdomen which might have been that delivered by the accused.

The defense alleges that the lower court erred in declaring that the accused hit the deceased on the abdomen, which caused her death, instead of finding him, at most, guilty of parricide through reckless imprudence.

After an examination of the evidence, we are of the opinion that the lower court did not err in finding that the accused hit the deceased on the abdomen which directly caused the rupture of her spleen producing thereby an internal hemorrhage that caused her almost instant death. Urbano Rellora who, as stated before, was the owner of the house where the defendant and the deceased lived and who maintained marital relations with the mother of the accused, testified positively that he saw the accused punched his wife on the abdomen, as a result of which she fell seated on a sack of rice and that very moment she had an attack, became unconscious and expired. This testimony is corroborated by Dr. Roxas who performed the autopsy, when he declared that the death was caused by the hemorrhage produced by the rupture of the spleen which rupture was caused by an external blow on the abdomen of the deceased. The defendant himself, in his

17

sworn declaration (Exhibit C) subscribed before the justice of the peace of Naga, voluntarily admitted having hit his wife on the abdomen with his fist when she said things that offended and made him nervous. The aggression was likewise corroborated by another eye-witness, Raymundo Hilano, who declared that he was at that time passing in front of the defendant's house when he heard and saw him quarrelling with his wife and that the defendant was delivering blows on his wife. The testimony of this witness however, seems incredible and deserves no merit for he testified having seen the aggression through a window which was three and a half meters high from the ground where he stood. Considering the height of the window and the location of the witness, it is clear that he could not have seen what was happening inside the house.

The defendant's act is not mere reckless imprudence, as the defense contends, since under article 365 of the Revised Penal Code the acts that go to make up reckless imprudence must be lawful in themselves, and the attack consisting in the blow the defendant dealt his wife is certainly not lawful, since it transgresses the Revised Penal Code itself, which expressly prohibits it under pain of punishment.

The facts proven constitute the crime of parricide defined by article 246 of the Revised Penal Code, and in its commission there were present the following mitigating circumstances considered by the lower court in favor of the defendant: lack of intention to commit so grave a crime (article 13 [3], Revised Penal Code); having acted upon an impulse so powerful as naturally to have produced passion or obfuscation (article 13 [6]); having surrendered himself to the authorities immediately after the commission of the crime (article 13 [7]); with no aggravating circumstance. As to the penalty imposed, we find that it is not in accordance with that prescribed by the law. Under article 246 of the Revised Penal Code the crime of parricide is punished with reclusion perpetua to death. These penalties are indivisible and the Revised Penal Code provides, in article 63, rule 3, that whenever there is present some mitigating circumstance with no aggravating one, the lesser penalty shall be applied. In conformity with this legal provision, the penalty that should be imposed on the accused is that of reclusion perpetua.

After reviewing the facts, we are convinced that the defendant did not really have the intention of committing so grave a crime as parricide. The quarrel that led to the aggression had its origin from the natural and justifiable desire of the defendant, as a father, to prevent his child, which was then ill, from being given a bath. If, under the circumstances, he transgressed the law by an unjust attack on his wife, he is, nevertheless, deserving of the mitigating circumstances allowed in his favor. We invoke, for this reason, article 5, paragraph 2, of the Revised Penal Code, and recommended to his Excellency, the President of the Philippines, the commutation of the penalty imposed on the defendant in this decision.

Modifying the appealed judgment, we declare the defendant Catalino Rabao guilty of the crime of parricide and hereby sentenced him to reclusion perpetua, and to the accessory penalties provided in article 41 of the Revised Penal Code, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs in both instances. So ordered.

Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion and Moran, JJ., concur.

D. VOLUNTARY SURRENDER

EN BANC

[G.R. No. 146247. September 17, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EDGAR DAWATON, accused.

D E C I S I O N

BELLOSILLO, J.:

EDGAR DAWATON was found by the trial court guilty of murder qualified by treachery and sentenced to death, ordered to

indemnify the heirs of the victim P50,000.00 plus the accessory penalties provided by law, without subsidiary

imprisonment in case of insolvency, and to pay the costs of suit.[1]

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An Information[2] for murder qualified by treachery and evident premeditation was filed against Edgar Dawaton on 11

March 1999. When first arraigned he pleaded not guilty,[3] but during the pre-trial on 7 May 1999, he offered to plead

guilty to the lesser offense of homicide but was rejected by the prosecution, hence, the case proceeded to trial.

The prosecution presented as witnesses the very persons who were with the accused and the victim during the incident,

namely, Domingo Reyes and Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the mother of the

victim, to prove the civil liability of the accused.

The evidence for the prosecution: On 20 September 1998 Esmeraldo Cortez was entertaining visitors in his house in Sitio

Garden, Brgy. Paltic, Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre Leonides Lavares dropped by at

about 12:00 o'clock noon followed by Domingo Reyes shortly after. All three (3) guests of Esmeraldo were residents of

Sitio Garden. They started drinking soon after. At about 3:00 o'clock in the afternoon and after having consumed four (4)

bottles of gin, they went to the house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters away from

Esmeraldo's house. They stayed at the balcony of the house and continued drinking. Amado Dawaton was not in.

Already drunk, Leonides decided to sleep on a papag or wooden bench, lying down on his right side facing Domingo and

Edgar using his right hand for a pillow. Edgar, Domingo and Esmeraldo continued drinking until they finished another

bottle of gin.

At about 3:30 in the afternoon, twenty (20) minutes after Leonides had gone to sleep, Edgar stood up and left for his

house. When he returned he brought with him a stainless knife with a blade 2 to 3 inches long. Without a word, he

approached Leonides who was sleeping and stabbed him near the base of his neck.[4] Awakened and surprised,

Leonides got up and blurted: "Bakit Pare, bakit?"[5] Instead of answering, Edgar again stabbed Leonides on the upper

part of his neck, spilling blood on Leonides' arm.

Leonides attempted to flee but Edgar who was much bigger grabbed the collar of his shirt and thus effectively prevented

him from running away. Edgar then repeatedly stabbed Leonides who, despite Edgar's firm hold on him, was still able to

move about twenty (20) meters away from the house of Amado Dawaton before he fell to the ground at the back of

Esmeraldo's house. But even then, Edgar still continued to stab him. Edgar only stopped stabbing Leonides when the

latter already expired. Edgar then ran away towards the house of his uncle Carlito Baras situated behind the cockpit.

Domingo and Esmeraldo were positioned a few meters away from where Leonides was sleeping when he was initially

assaulted by Edgar. They were shocked by what happened but other than pleading for Edgar to stop they were unable to

help Leonides.

Domingo left for his house soon after the stabbing started as he did not want to get involved. Nonetheless he felt pity for

Leonides so he returned a few minutes later.

19

By then, Leonides was already dead and people had already gathered at the site. The mayor who was in a nearby cement

factory arrived and instructed them not to go near the body. They pointed to the direction where Edgar fled. Edgar was

later arrested at the house of his uncle, Carlito Baras, at Sitio Aves, Brgy. Paltic, Dingalan.

Accused-appellant Edgar Dawaton was the sole witness for the defense. He did not deny that he stabbed Leonides

Lavares but insisted that he was provoked into stabbing him. Edgar claimed that the night prior to the stabbing incident, or

on 19 September 1998, his uncle Armando Ramirez went to his house to welcome his return from Cavite where he

worked as a carpenter. They started drinking gin at about 7:00 o'clock in the evening and ended at 3:00 o'clock in the

morning of the following day. He slept and woke up at 6:00 o'clock in the morning of 20 September 1998.

Apparently, he did not have enough of the prior evening's drinking orgy. He went to his uncle's house early that morning

and after his uncle bought two (2) bottles of gin they started drinking again. Domingo Reyes arrived at around 7:30 in the

morning and joined them. Esmeraldo Cortez joined them about 12:00 o'clock noon and bought two (2) more bottles of gin.

Later, the group with the exception of Armando Ramirez transferred to the house of Esmeraldo upon the latter's invitation

and drank two (2) more bottles of gin.

In Edgar's version of the stabbing incident, a drunk and angry Leonides arrived at about 2:30 in the afternoon and

demanded that they - he and Edgar - return candles (magbalikan [tayo] ng kandila).[6] Leonides was godfather of a son of

Edgar. Leonides also cursed and threatened to hang a grenade on Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako

ng granada at sasabitan kita!).[7]

According to Edgar, he tried to calm down Leonides but the latter insisted on going home purportedly to get a grenade.

Alarmed because he knew Leonides had a grenade, Edgar went home to look for a bladed weapon. He already had a

knife with him but he thought it was short. Not finding another weapon, he returned to Esmeraldo's house.

When he returned, Leonides was still in Esmeraldo's house and had joined in the drinking. He sat opposite Leonides who

resumed his tirades against him.

Again Leonides started to leave for his house purportedly to get a grenade. Afraid that Leonides would make good his

threat, Edgar held on to him and stabbed him. He did not know where and exactly how many times he struck Leonides but

he recalled doing it three (3) times before his mind went blank (nablangko).[8] Edgar also claimed that he was in this

mental condition when he left Leonides and ran to the house of Carlito Baras. He did not know that he had already killed

Leonides, only that he stabbed him thrice. He regained his senses only when he reached his uncle Carlito's house.

Edgar further said that he sought his uncle's help so he could surrender but he was told to wait because his uncle was

then taking a bath. It was while waiting for his uncle when the policemen arrived to arrest him. He maintained that he

voluntarily went with them.

The medico-legal certificate dated 24 September 1998 issued by Dr. Ernesto C. del Rosario[9] showed that the victim

sustained a stab wound at the back and ten (10) stab wounds in front. He also had slash wounds on his left hand and his

20

tongue was cut off. The immediate cause of death was determined to be "Hypovolemic Shock due to hemorrhage,

multiple stabbed (sic) wounds."[10]

On 20 October 1999 the parties entered into several stipulations which were embodied in an Order.[11] Specifically, they

admitted the veracity of the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2 Ramil D. Gamboa and

PO3 Gerry M. Fabros,[12] the police officers who arrested the accused; the genuineness and due execution of the

medico-legal certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity of the certificate of death[13] also

issued by Dr. del Rosario. Thus, the presentation of the arresting officers and Dr. del Rosario as witnesses was dispensed

with.

On 20 November 1999 the trial court convicted Edgar Dawaton of murder qualified by treachery and sentenced him to

death.

We affirm the conviction of accused-appellant; we however modify the penalty imposed on him.

The conclusion that accused-appellant murdered Leonides Lavares was sufficiently proved by the testimonies of

prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was not refuted

by the accused himself who admitted that he stabbed the victim three (3) times before his mind went blank and could no

longer recall what he did after that.

Treachery clearly attended the killing. The accused attacked the victim while the latter was in deep slumber owing to the

excessive amount of alcohol he imbibed. We are not persuaded by the version of the accused that the victim threatened

to harm him with a grenade and that it was only to prevent this from happening that he was forced to stab Leonides. We

defer instead to the judgment of the trial court which gave more credence to the version of the prosecution witnesses

inasmuch as it was in a better position to decide on the question of credibility, having heard the witnesses themselves and

observed their deportment during trial.

According to the prosecution witnesses, the victim had no chance to defend himself as he was dead drunk and fast

asleep. He had no inkling at all of what was going to happen to him since there was no prior argument or untoward

incident between him and the accused. From all indications they were on friendly terms; as in fact they were even

kumpadres. No one knew nor expected that when the accused momentarily excused himself, it was for the purpose of

looking for a knife, and without any warning, stabbing the victim who was sleeping.

There is treachery when the attack is upon an unconscious victim who could not have put up any defense whatsoever,[14]

or a person who was dead drunk and sleeping on a bench and had no chance to defend himself.[15] Clearly, the attack

was not only sudden but also deliberately adopted by the accused to ensure its execution without risk to himself.

The accused argues that trial court erred in imposing the death penalty despite the attendance of mitigating and

alternative circumstances in his favor.[16] He avers that he is entitled to the mitigating circumstance of plea of guilty. We

disagree. While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for

21

which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense

cannot be considered as an attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code because

to be voluntary the plea of guilty must be to the offense charged.[17]

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and

the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense

charged. We note that the prosecution rejected the offer of the accused.

Nor can the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted that he was

arrested at his uncle's residence.[18] The following elements must be present for voluntary surrender to be appreciated:

(a) the offender has not been actually arrested; (b) the offender surrendered himself to a person in authority, and, (c) the

surrender must be voluntary.[19]

Resorting to sophistry, the accused argues that he was not arrested but "fetched" as he voluntarily went with the

policemen when they came for him. This attempt at semantics is futile and absurd. That he did not try to escape or resist

arrest after he was taken into custody by the authorities did not amount to voluntary surrender. A surrender to be

voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities,

either because he acknowledges his guilt or because he wishes to save them the trouble and expense necessarily

included in his search and capture.[20] It is also settled that voluntary surrender cannot be appreciated where the

evidence adduced shows that it was the authorities who came looking for the accused.[21]

Moreover, the evidence submitted by the prosecution belies the claim of the accused that he intended to submit himself to

the authorities. The joint affidavit of the arresting officers, the veracity of which was admitted by the parties and evidenced

by a 20 October 1999 Order of the trial court, revealed that they chanced upon the accused trying to escape from the rear

of the cockpit building when they came looking for him.[22]

Similarly, there is no factual basis to credit the accused with the mitigating circumstance of outraged feeling analogous or

similar[23] to passion and obfuscation.[24] Other than his self-serving allegations, there was no evidence that the victim

threatened him with a grenade. Domingo Reyes and Esmeraldo Cortez testified that there was no prior altercation or

disagreement between Edgar and Leonides during the drinking spree, and they did not know of any reason for Edgar's

hostility and violence. On the contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful banter (lambingan)

during the course of their drinking[25] indicating that the attack on the accused was completely unexpected.

The accused would want us to reconsider the penalty imposed on him on account of his not being a recidivist. He

contends that an appreciation of this factor calls for a reduction of the penalty.

We are not persuaded. Recidivism is an aggravating circumstance the presence of which increases the penalty. The

converse however, that is, non-recidivism, is not a mitigating circumstance which will necessarily reduce the penalty.

Nonetheless, we hold that the trial court erred in not appreciating the alternative circumstance of intoxication in favor of

the accused. Under Art. 15 of The Revised Penal Code, intoxication of the offender shall be considered as a mitigating

22

circumstance when the offender commits a felony in a state of intoxication, if the same is not habitual or subsequent to the

plan to commit said felony. Otherwise, when habitual or intentional, it shall be considered as an aggravating circumstance.

The allegation that the accused was drunk when he committed the crime was corroborated by the prosecution witnesses.

The accused and his drinking companions had consumed four (4) bottles of gin at the house of Esmeraldo Cortez, each

one drinking at least a bottle.[26] It was also attested that while the four (4) shared another bottle of gin at the house of

Amado Dawaton, it was the accused who drank most of its contents.[27] In addition, Esmeraldo testified that when Edgar

and Leonides arrived at his house that noon, they were already intoxicated.[28] There being no indication that the

accused was a habitual drunkard or that his alcoholic intake was intended to fortify his resolve to commit the crime, the

circumstance of intoxication should be credited in his favor.

Consequently, we find that the trial court erroneously imposed the penalty of death. The accused was charged with

murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The Revised Penal

Code, in all cases in which the law prescribes a penalty composed of two (2) indivisible penalties, such as in this case,

when the commission of the act is attended by a mitigating circumstance and there is no aggravating circumstance, the

lesser penalty shall be applied. Since no aggravating circumstance attended the killing but there existed the mitigating

circumstance of intoxication, the accused should be sentenced only to the lesser penalty of reclusion perpetua.

The trial court correctly ordered the accused to pay civil indemnity in the amount of P50,000.00 to the heirs of the victim

without need of proof other than the fact that a crime was committed resulting in the death of the victim and that the

accused was responsible therefor.[29] The heirs are also entitled to moral damages pursuant to Art. 2206 of the New Civil

Code on account of the mental anguish which they suffered, and the amount of P50,000.00 is considered reasonable

according to existing jurisprudence.[30]

WHEREFORE, the assailed Decision of the court a quo finding the accused EDGAR DAWATON guilty of MURDER

qualified by treachery is AFFIRMED with the modification that the penalty is reduced from death to reclusion perpetua.

The accused is ordered to pay the heirs of Leonides Lavares P50,000.00 in civil indemnity and P50,000.00 in moral

damages.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-

Martinez, Corona, Morales, and Callejo, Sr., JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. Nos. 136733-35 December 13, 2001

23

PEOPLE OF THE PHILIPPINES, appellee, vs. ELADIO VIERNES y ILDEFONSO, appellant.

PANGANIBAN, J.:

Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a more severe penalty than that imposed in the original decision. This is especially true in a case in which the new and amended penalty imposed is death.

The Case

Before us is an appeal1 from the April 6, 1998 Decision and the May 21, 1998 Order

2 of the Regional Trial Court (RTC) of

Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 0534-97. The assailed Decision convicted appellant of two counts of rape and one count of attempted rape. It disposed as follows:

"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows:

"1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit;

"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4) YEAR, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of