Round Five Cases Full Text (Article 13) Criminal Law

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rRepublic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 132547 September 20, 2000PEOPLE OF THE PHLPPNES, plaintiff-appellee,

vs.

SPO1 ERNESTO ULEP, accused-appellant.

D E C I I ! N

!ELLOSLLO, J.:

In the after"ath of an incident #here a certain Buenaventura $apili% #ent

berser& at Mundo' ubdivision, Poblacion (idapa#an, Cotabato, in the earl)

"ornin' of ** Dece"ber %++, Police !fficer Ernesto lep #as found 'uilt) of

"urder and sentenced to death b) the trial court for &illin' $apili. lep #as also

ordered to inde"nif) the heirs of the victi" in the a"ount of P,. and to

pa) the costs.*

/he evidence sho#s that at around t#o o0 cloc& in the "ornin' of ** Dece"ber

%++ Buenaventura $apili #as havin' a hi'h fever and #as heard tal&in'

insensibl) to hi"self in his roo". 1is brother-in-la#, Dario 2e)dan, convinced hi"

to co"e out of his roo" and tal& to hi", but $apili told 2e)dan that he could not

reall) understand hi"self. After a #hile, $apili #ent bac& to his roo" and turned

off the li'hts. Mo"ents later, the li'hts #ent on a'ain and 2e)dan heard a

disturbance inside the roo", as if $apili #as s"ashin' the furniture.3 nable to

pacif) $apili, 2e)dan called Pastor Bonid of the Alliance Church of (idapa#an to

help hi" 4pra) over4 $apili, but the) could not enter the latter0s roo" as he

beca"e #ild and violent. uddenl), $apili bolted out of his roo" na&ed and

chased 2e)dan. /hereafter, 2e)dan #ith the aid of t#o 5*6 of his nei'hbors

atte"pted to tie $apili #ith a rope but #as unsuccessful as $apili #as "uch

bi''er in built and stron'er than an)one of the".7 $apili, #ho appeared to have

co"pletel) 'one cra8), &ept on runnin' #ithout an) particular direction.

/hus, 2e)dan #ent to the house of police#o"an Nor"a Plando, a nei'hbor, and

as&ed for assistance. As $apili passed b) the house of Plando, he ban'edPlando0s vehicle par&ed outside. sin' a hand-held radio, Plando then contacted

P!% Ernesto lep, P!% Edilberto Espadera and P!* Crispin Pillo, all

"e"bers of the PNP assi'ned to secure the pre"ises of the nearb) Ro"an

Catholic Church of (idapa#an.

At around four o0cloc& in the "ornin' of the sa"e da), P!% lep to'ether #ith

P!% Espadera and P!* Pillo arrived at the scene on board an Anfra police

service 9eep. /he three 536 police officers, all ar"ed #ith M-%: rifles, ali'hted fro"

the 9eep #hen the) sa# the na&ed $apili approachin' the". /he &ind of #eapon

$apili #as ar"ed #ith is disputed. /he police clai"ed that he #as ar"ed #ith a

bolo and a rattan stool, #hile $apili0s relatives and nei'hbors said he had no

bolo, but onl) a rattan stool.

P!% lep fired a #arnin' shot in the air and told $apili to put do#n his

#eapons or the) #ould shoot hi". But $apili retorted 4 pusila;4 54fire;46 and

continued advancin' to#ards the police officers. $hen $apili #as onl) about t#o

5*6 to three 536 "eters a#a) fro" the", P!% lep shot the victi" #ith his M-%:

rifle, hittin' hi" in various parts of his bod). As the victi" slu"ped to the 'round,

P!% lep ca"e closer and pu"ped another bullet into his head and literall)

ble# his brains out.:

/he post mortem e<a"ination of the bod) conducted b) Dr. Roberto A.

!"andac, Municipal 1ealth !fficer of (idapa#an, sho#ed that $apili sustained

five 56 'unshot #ounds= one 5%6 on the ri'ht portion of the head, one 5%6 on the

ri'ht chee&, one 5%6 on the abdo"en and t#o 5*6 on the ri'ht thi'h= 1EEN/ -

'unshot #ound on the ri'ht parietal area #ith fractures of the ri'ht

te"poroparietal bones #ith evisceration of brain tissues, ri'ht 8)'o"atic bone

and ri'ht "andible, lateral aspect> C1E/ AND BAC( - #ith po#der burns on the

ri'ht posterior chest> ABD!MEN - 'unshot #ound on the ri'ht upper ?uadrant

"easurin' . c". in dia"eter 5point of entr)6 #ith "ultiple po#der burns around

the #ound and on the ri'ht lu"bar area 5point of e<it6. @unshot #ound on the

suprapubic area 5point of entr)6> E/REME/IE - #ith 'unshot #ounds on the

ri'ht thi'h, upper third, anterior aspect "easurin' . c". in dia"eter #ith

po#der burns 5point of entr)6 and ri'ht buttoc&s "easurin' . c". in dia"eter

5point of e<it6> 'unshot #ound on the ri'ht thi'h, upper third, posterolateral

aspect> CAE ! DEA/1 - "ultiple 'unshot #ounds.

Dr. !"andac concluded that the shots #ere fired at close ran'e, perhaps #ithin

t#ent)-four 5*76 inches, 9ud'in' fro" the po#der burns found around so"e of the

#ounds in the bod) of the victi", and that the #ound in the head, #hich caused

the victi"0s instantaneous death, #as inflicted #hile 4the victi" #as in a l)in'

position.4+

/he !ffice of the !"buds"an for the Militar) filed an Infor"ation for "urder a'ainst P!% lep.1âwphi1 /he accused pleaded not 'uilt) to the char'e on

arrai'n"ent, and insisted durin' the trial that he acted in self-defense. 1o#ever,

on * !ctober %++, the trial court rendered 9ud'"ent convictin' the accused of

"urder and sentencin' hi" to death -

/he "eans e"plo)ed b) the accused to prevent or repel the alle'ed a''ression

is not reasonable because the victi", Buenaventura $apili, #as alread) on the

'round, therefore, there #as no necessit) for the accused to pu"p another shot



on the bac& portion of the victi"0s head. Clearl) the 'ravit) of the #ounds

sustained b) the victi" belies the pretension of the accused that he acted in self-

defense. It indicates his deter"ined effort to &ill the victi". It is established that

accused 5sic6 #as alread) in the 'round that #ould no lon'er i"peril the

accused0s life. /he "ost lo'ical option open to the accused #as to inflict on the

victi" such in9ur) that #ould prevent the victi" fro" further har"in' hi". /he

court is not persuaded b) the accused0s version because if it is true that the

victi" attac&ed hi" and his life #as endan'ered - )et his t#o 5*6 co"panions

P!% Espadera and P!* Pillo did not do an)thin' to help hi" but 9ust #itness

the incident - #hich is unbelievable and unnatural behavior of police officers < < <

<

$1ERE!RE, prescindin' fro" the fore'oin', 9ud'"ent is hereb) rendered

findin' the accused Ernesto lep 'uilt) be)ond reasonable doubt of the cri"e of

Murder, the accused is hereb) sentenced to suffer the e<tre"e penalt) of Death,

to inde"nif) the heirs of Buenaventura $apili the a"ount of P,. #ithout

subsidiar) i"prison"ent in case of insolvenc) and to pa) the costs.

Death penalt) havin' been i"posed b) the trial court, the case is no# before us

on auto"atic revie#. Accused-appellant pra)s for his ac?uittal "ainl) on the

basis of his clai" that the &illin' of the victi" #as in the course of the

perfor"ance of his official dut) as a police officer, and in self-defense.

Preli"inaril), havin' ad"itted the &illin' of $apili, accused-appellant assu"ed

the burden of provin' le'al 9ustification therefor. 1e "ust establish clearl) and

convincin'l) ho# he acted in fulfill"ent of his official dut) andor in co"plete self-

defense, as clai"ed b) hi"> other#ise, he "ust suffer all the conse?uences of

his "alefaction. 1e has to rel) on the ?uantitative and ?ualitative stren'th of his

o#n evidence, not on the #ea&ness of the prosecution> for even if it #ere #ea& it

could not be disbelieved after he had ad"itted the &illin'.%

Before the 9ustif)in' circu"stance of fulfill"ent of a dut) under Art. %%, par. , of

The Revised Penal Code "a) be successfull) invo&ed, the accused "ust prove

the presence of t#o 5*6 re?uisites, na"el), that he acted in the perfor"ance of a

dut) or in the la#ful e<ercise of a ri'ht or an office, and that the in9ur) caused or

the offense co""itted be the necessar) conse?uence of the due perfor"ance of dut) or the la#ful e<ercise of such ri'ht or office. /he second re?uisite is lac&in'

in the instant case.

Accused-appellant and the other police officers involved ori'inall) set out to

perfor" a le'al dut)= to render police assistance, and restore peace and order at

Mundo' ubdivision #here the victi" #as then runnin' a"uc&. /here #ere t#o

5*6 sta'es of the incident at Mundo' ubdivision. Durin' the first sta'e, the victi"

threatened the safet) of the police officers b) "enacin'l) advancin' to#ards

the", not#ithstandin' accused-appellant0s previous #arnin' shot and verbal

ad"onition to the victi" to la) do#n his #eapon or he #ould be shot. As a police

officer, it is to be e<pected that accused-appellant #ould stand his 'round. p to

that point, his decision to respond #ith a barra'e of 'unfire to halt the victi"0s

further advance #as 9ustified under the circu"stances. After all, a police officer is

not re?uired to afford the victi" the opportunit) to fi'ht bac&. Neither is he

e<pected - #hen hard pressed and in the heat of such an encounter at close

?uarters - to pause for a lon' "o"ent and reflect cooll) at his peril, or to #ait

after each blo# to deter"ine the effects thereof.

1o#ever, #hile accused-appellant is to be co""ended for pro"ptl) respondin'

to the call of dut) #hen he stopped the victi" fro" his potentiall) violent conduct

and a''ressive behavior, he cannot be e<onerated fro" overdoin' his dut)

durin' the second sta'e of the incident - #hen he fatall) shot the victi" in the

head, perhaps in his desire to ta&e no chances, even after the latter slu"ped to

the 'round due to "ultiple 'unshot #ounds sustained #hile char'in' at the police

officers. ound discretion and restraint dictated that accused-appellant, a veteran

police"an,%% should have ceased firin' at the victi" the "o"ent he sa# the latter

fall to the 'round. /he victi" at that point no lon'er posed a threat and #as

alread) incapable of "ountin' an a''ression a'ainst the police officers. hootin'

hi" in the head #as obviousl) unnecessar). As succinctl) observed b) the trial

court -

!nce he sa# the victi" he f ired a #arnin' shot then shot the victi" hittin' hi" on

the different parts of the bod) causin' hi" to fall to the 'round and in that

position the accused shot the victi" a'ain hittin' the bac& portion of the victi"0s

head causin' the brain to scatter on the 'round < < < < the victi", Buenaventura

$apili, #as alread) on the 'round. /herefore, there #as no necessit) for the

accused to pu"p another shot on the bac& portion of the victi"0s head.

It cannot therefore be said that the fatal #ound in the head of the victi" #as a

necessar) conse?uence of accused-appellant0s due perfor"ance of a dut) or the

la#ful e<ercise of a ri'ht or office.

2i&e#ise, the evidence at hand does not favor his clai" of self-defense. /he

ele"ents in order for self-defense to be appreciated are= 5a6 unla#ful a''ressionon the part of the person in9ured or &illed b) the accused> 5b6 reasonable

necessit) of the "eans e"plo)ed to prevent or repel it> and, 5c6 lac& of sufficient

provocation on the part of the person defendin' hi"self.%*

/he presence of unla#ful a''ression is a condition sine qua non. /here can be

no self-defense, co"plete or inco"plete, unless the victi" has co""itted an

unla#ful a''ression a'ainst the person defendin' hi"self. %3 In the present case,

the records sho# that the victi" #as l)in' in a prone position on the 'round -



bleedin' fro" the bullet #ounds he sustained, and possibl) unconscious - #hen

accused-appellant shot hi" in the head. /he a''ression that #as initiall) be'un

b) the victi" alread) ceased #hen accused-appellant attac&ed hi". ro" that

"o"ent, there #as no lon'er an) dan'er to his life.

/his Court disa'rees #ith the conclusion of the court a quo that the &illin' of

$apili b) accused-appellant #as attended b) treacher), thus ?ualif)in' the

offense to "urder. $e discern nothin' fro" the evidence that the assault #as so

sudden and une<pected and that accused-appellant deliberatel) adopted a "ode

of attac& intended to insure the &illin' of $apili, #ithout the victi" havin' the

opportunit) to defend hi"self.

!n the contrar), the victi" could not have been ta&en b) surprise as he #as

'iven "ore than sufficient #arnin' b) accused-appellant before he #as shot, i.e.,

accused-appellant fired a #arnin' shot in the air, and specificall) ordered hi" to

lo#er his #eapons or he #ould be shot. /he &illin' of $apili #as not sou'ht on

purpose. Accused-appellant #ent to the scene in pursuance of his official dut) as

a police officer after havin' been su""oned for assistance. /he situation that the

victi", at the ti"e accused-appellant shot hi" in the head, #as prostrate on the

'round is of no "o"ent #hen considerin' the presence of treacher). /he

decision to &ill #as "ade in an instant and the victi"0s helpless position #as

"erel) incidental to his havin' been previousl) shot b) accused-appellant in the

perfor"ance of his official dut)./here is treacher) #hen the offender co""its an) of the cri"es a'ainst persons,

e"plo)in' "eans, "ethods, or for"s in the e<ecution thereof #hich tend directl)

and speciall) to insure its e<ecution, #ithout ris& to hi"self arisin' fro" the

defense #hich the offended part) "i'ht "a&e.%7 Considerin' the rule that

treacher) cannot be inferred but "ust be proved as full) and convincin'l) as the

cri"e itself, an) doubt as to its e<istence "ust be resolved in favor of accused-

appellant. Accordin'l), for failure of the prosecution to prove treacher) to ?ualif)

the &illin' to "urder, accused-appellant "a) onl) be convicted of ho"icide.

Indeed, to hold hi" cri"inall) liable for "urder and sentence hi" to death under

the circu"stances #ould certainl) have the effect of de"orali8in' other police

officers #ho "a) be called upon to dischar'e official functions under si"ilar or identical conditions. $e #ould then have a dispirited police force #ho "a) be

half-hearted, if not totall) un#illin', to perfor" their assi'ned duties for fear that

the) #ould suffer the sa"e fate as that of accused-appellant.

/his brin's us to the i"position of the proper penalt).

$e find in favor of accused-appellant the inco"plete 9ustif)in' circu"stance of

fulfill"ent of a dut) or la#ful e<ercise of a ri'ht. nder Art. :+ of The Revised

Penal Code, 4a penalt) lo#er b) one or t#o de'rees than that prescribed b) la#

shall be i"posed if the deed is not #holl) e<cusable b) reason of the lac& of

so"e of the conditions re?uired to 9ustif) the sa"e or to e<e"pt fro" cri"inal

liabilit) in the several cases "entioned in Arts. %% and %*, provided that the

"a9orit) of such conditions be present. /he courts shall i"pose the penalt) in the

period #hich "a) be dee"ed proper, in vie# of the nu"ber and nature of the

conditions of e<e"ption present or lac&in'.4

Inco"plete 9ustification is a special or privile'ed "iti'atin' circu"stance, #hich,

not onl) cannot be offset b) a''ravatin' circu"stances but also reduces the

penalt) b) one or t#o de'rees than that prescribed b) la#.% ndoubtedl), the

instant case #ould have fallen under Art. %%, par. of The Revised Penal Code

had the t#o 5*6 conditions therefor concurred #hich, to reiterate= first , that the

accused acted in the perfor"ance of a dut) or the la#ful e<ercise of a ri'ht or

office> and second , that the in9ur) or offense co""itted be the necessar)

conse?uence of the due perfor"ance of such dut) or the la#ful e<ercise of such

ri'ht or office. But here, onl) the first condition #as fulfilled. 1ence, Art. :+ is

applicable, althou'h its 4that the "a9orit) of such conditions be present,4 is

i""aterial since there are onl) t#o 5*6 conditions that "a) be ta&en into account

under Art. %%, par. . Article :+ is obviousl) in favor of the accused as it provides

for a penalt) lo#er than that prescribed b) la# #hen the cri"e co""itted is not

#holl) 9ustifiable. /he intention of the le'islature, obviousl), is to "iti'ate the

penalt) b) reason of the di"inution of either freedo" of action, intelli'ence, or intent, or of the lesser perversit) of the offender.%:

$e li&e#ise credit in favor of accused-appellant the "iti'atin' circu"stance of

voluntar) surrender. /he police blotter of (idapa#an Municipal Police tation

sho#s that i""ediatel) after &illin' $apili, accused-appellant reported to the

police head?uarters and voluntaril) surrendered hi"self.%

Article *7+ of The Revised Penal Code prescribes for the cri"e of ho"icide the

penalt) of reclusion temporal , the ran'e of #hich is t#elve 5%*6 )ears and one 5%6

da) to t#ent) 5*6 )ears. /here bein' an inco"plete 9ustif)in' circu"stance of

fulfill"ent of a dut), the penalt) should be one 5%6 de'ree lo#er, i.e., fro"

reclusion temporal to prision mayor , pursuant to Art. :+, in relation to Art. :%, par.

*, and Art. %, of the Code, to be i"posed in its "ini"u" period since accused-appellant voluntaril) surrendered to the authorities and there #as no a''ravatin'

circu"stance to offset this "iti'atin' circu"stance. Appl)in' the Indeter"inate

entence 2a#, the "a<i"u" of the penalt) shall be ta&en fro" the "ini"u"

period of prision mayor , the ran'e of #hich is si< 5:6 )ears and one 5%6 da) to

ei'ht 56 )ears, #hile the "ini"u" shall be ta&en fro" the penalt) ne<t lo#er in

de'ree #hich is prision correccional , in an) of its periods, the ran'e of #hich is

si< 5:6 "onths and one 5%6 da) to si< 5:6 )ears.



/he ri'ht to &ill an offender is not absolute, and "a) be used onl) as a last resort,

and under circu"stances indicatin' that the offender cannot other#ise be ta&en

#ithout bloodshed. /he la# does not clothe police officers #ith authorit) to

arbitraril) 9ud'e the necessit) to &ill.% It "a) be true that police officers

so"eti"es find the"selves in a dile""a #hen pressured b) a situation #here an

i""ediate and decisive, but le'al, action is needed. 1o#ever, it "ust be stressed

that the 9ud'"ent and discretion of police officers in the perfor"ance of their

duties "ust be e<ercised neither capriciousl) nor oppressivel), but #ithin

reasonable li"its. In the absence of a clear and le'al provision to the contrar),

the) "ust act in confor"it) #ith the dictates of a sound discretion, and #ithin the

spirit and purpose of the la#.%+ $e cannot countenance tri''er-happ) la#

enforce"ent officers #ho indiscri"inatel) e"plo) force and violence upon the

persons the) are apprehendin'. /he) "ust al#a)s bear in "ind that althou'h

the) are dealin' #ith cri"inal ele"ents a'ainst #ho" societ) "ust be protected,

these cri"inals are also hu"an bein's #ith hu"an ri'hts.

"HEREFORE, the appealed Judgment is M!DIIED. Accused-appellant P!%

ERNE/! 2EP is found 'uilt) of 1!MICIDE, instead of Murder, and is

sentenced to an indeter"inate prison ter" of four 576 )ears, t#o 5*6 "onths and

ten 5%6 da)s of prision correccional "ediu" as "ini"u", to si< 5:6 )ears, four

576 "onths and t#ent) 5*6 da)s of prision mayor "ini"u" as "a<i"u". 1e is

further ordered to inde"nif) the heirs of Buenaventura $apili in the a"ount of P,., and to pa) the costs.

! !RDERED.

Davide, Fr., C.F., Melo, Puno, Gitu', (apunan, Mendo8a, Pan'aniban,

Huisu"bin', Purisi"a, Pardo, Buena, @on8a'a-Re)es, and De 2eon, Fr., FF.,

concur.

nares-antia'o, F., on leave.

Foot#ote$% o"eti"es spelled 4$apille.4* Decision penned b) Fud'e Rodolfo M. errano, R/C-Br. %, (idapa#an,

Cotabato, pro". * !ctober %++.3 /N, %7 Fanuar) %++, pp. -+7 d ., p. *. /N, + epte"ber %++, pp. -.: /N, %* ebruar) %++, p. %%. Records, pp. +-:. /N, : Fune %++, p. %.+ d ., p. 3.

% People v. Cario, @.R. No. %*33*, 3% March %++, * CRA 77.%% Appellant has been in the service for % )ears and has several co""endations.%* People v . a8on, @.R. No. +:7, % epte"ber %++, %+ CRA .%3 !id .%7 People v. Gille'as, @.R. No. %%:3, epte"ber *3, %++:, *:* CRA 3%7.% ee 2acanilao v . Court of Appeals, No. 2-37+7, Fune *, %+, %:* CRA

:3.%: !id .% Records, p. 7%3> E<h. 4E.4% :7 C.F.. J 7+.%+ ee People v . Pinto, @.R. No. 3+%+, *% Nove"ber %++%, *7 CRA +.

Republic of the Philippines



SUPREME COURTManila

SECON% %&SONG.R. No. 1532'7 ()#e 30, 200'NOEL GULLERMO * !+SL+NO, petitioner,

vs.

PEOPLE OF THE PHLPPNES, respondent.

% E C S O N!RON, J.or our revie# is the petition% filed b) the petitioner Noel @uiller"o ) Basiliano

5 petitioner 6 a'ainst the decision* dated Nove"ber %, *% and the resolution 3

dated April , ** of the Court of Appeals 5CA6 in C+-G.R. CR No. 241'1. /he

challen'ed decision7 affir"ed the decision of the Re'ional /rial Court 5R/C6,

Branch %, Ro<as Cit) convictin' and penali8in' the petitioner for the cri"e of

ho"icide #ith an indeter"inate sentence of si< 5:6 )ears of prision correccional ,

as "ini"u", to ten 5%6 )ears of prision mayor , as "a<i"u". /he assailed

resolution, on the other hand, denied the petitionerKs "otion for reconsideration.

!+CGROUN%or the death of one $innie Alon 5"innie6, the prosecution char'ed Arnaldo

ocias, Foe"ar Pal"a, and the petitioner #ith the cri"e of ho"icide under an

Infor"ation that states=< < <

/hat at or about =7 oKcloc& in the afternoon, on or about Ful) *%, %++:, at Br').

Poblacion /a&as, Municipalit) of Cuartero, Province of Capi8, Philippines, and

#ithin the 9urisdiction of this 1onorable Court, the above-na"ed accused,

conspirin', confederatin'L, and "utuall) helpin' one another, ar"ed #ith &nives

and #ith intent to &ill, did then and there #illfull), unla#full) and feloniousl)

assault, attac& and stab one $INNIE A2!N ) BI22ANE, hittin' the latter and

inflictin' "ultiple stab #ounds on the different parts of his bod), #hich in9uries

caused his death shortl) thereafter.

/hat due to the unti"el) death of $innie Alon ) BillanesL, his heirs are entitled to

death inde"nit) in the a"ount of P,. and other da"a'es pursuant to theprovisions of the Civil Code of the Philippines.

AC/ C!N/RAR /! 2A$.:

/he petitioner and his co-accused #ere arrai'ned and pleaded not 'uilt) to the

offense char'ed #ith the assistance of their counsel de parte. /he prosecution

presented Gicente Alon 5#icente6 and Eddie Ro?ue 5$ddie6 as #itnesses in the

trial that follo#ed> Dr. Ricardo Betita, Fr. 5%r. &etita6, Bab) 2ou elipe 5&a!y 'ou6,

and the three accused the petitioner, Arnaldo ocias, and Foe"ar Pal"a too&

the #itness stand for the defense.

/he "aterial points in the testi"on) of Gicente #ere su""ari8ed b) the trial court

in its decision as follo#s=

Gicente Alon averred that at =7 in the afternoon of Ful) *%, %++:, $innie Alon,

$ilfredo Cabison, Eddie Ro?ue, and hi" Lsic #ere at the public "ar&et of

Cuartero, at Lsic the restaurant of Melecio 1e)res to eat. Noel @uiller"o, Arnel

ocias, and Foe"ar Pal"a #ere at the restaurant drin&in' beer. Noel @uiller"o

and Arnel ocias are &no#n to hi" since childhood since the) co"e fro" the

sa"e baran'a).+ Foe"ar Pal"a is &no#n to hi" onl) recentl) in that incident.%

$hile sittin' at the table inside the restaurant, an altercation bet#een Arnel

ocias and $innie Alon re'ardin' the cuttin' of #ood b) a chain sa# Lsic

transpired. Noel @uiller"o suddenl) too& hold of $innie Alon and stabbed the

latter at the nec& three 536 ti"es.%% Foe"ar Pal"a #ent to the &itchen and 'ot a

&nife. Arnel ocias hit hi" #ith a bottle of beer b) Lsic the head. 1e fell do#n and

lost consciousness.%* Lootnotes referrin' to the pertinent parts of the record

supplied

i'nificantl), Gicente ad"itted on cross-e<a"ination that he and $innie #ere

alread) drun& even before the) #ent to the restaurant #here the stabbin' too&

place.%3

Eddie corroborated the testi"on) of Gicente on "aterial points, particularl) on the

state of their into<ication even before 'oin' to the scene of the stabbin'. 1istesti"on) on #hat transpired at the restaurant #as su""ari8ed in the R/C

decision%7 as follo#s=

Eddie Ro?ue alle'ed that at around =7 oKcloc& in the afternoon of Ful) *%,

%++:, he, to'ether #ith $innie Alon, Gicente Alon and $ilfredo Cabison, #ere

Lsic inside the restaurant of Mrs. 1e)res at Cuartero Public Mar&et to leave their

tools of the chain sa# Lsic and to eat and drin&.% Noel @uiller"o, Arnel ocias,

and Foe"er Pal"a #ere ahead of the" to Lsic the restaurant and #ere drin&in'

beer. /he) invited the" and the) 9oined the".%: Before each of the" could full)

consu"e a bottle served upon each of the", $innie Alon and Arnel ocias

ar'ued about the cuttin' of #ood b) "eans of a chain sa# Lsic. /he ar'u"ent

#as so heated that each of the prota'onists stood up and Arnel ocias too& *bottles #hich #ere thro#n to Gicente Alon #ho #as hit on the forehead.%

Noel @uiller"o hu''ed or e"braced $innie Alon and stabbed hi" three ti"es 536

on Lsic the nec& #ith a Batan'ueOo &nife. Arnel ocias #ent around, then

behind, and stabbed $innie Alon once, on the left side of his bod), 9ust belo# his

left ar"pit, #ith a pointed ob9ect, but he could not deter"ine #hat #eapon #as

used. Foe"ar Pal"a also helped in stabbin' $innie Alon once, hittin' hi" at the

ri'ht side of his bod).%



$innie Alon resisted tr)in' to stru''le Lsic, but could not "ove because he #as

'an'ed up b) the three.%+ Lootnotes referrin' to the pertinent parts of the record

supplied

Dr. Betita, rural health ph)sician of Cuartero, Capi8, declared on the #itness

stand that he conducted on Ful) **, %++: a post"orte" e<a"ination on the bod)

of $innie* and "ade the follo#in' findin's=

P!/M!R/EM EAMINA/I!N

/he post"orte" e<a"ination is done on the re"ains of $innie Alon, 3% )ears

old, sin'le, fro" Mala'ab-i, Cuartero, Capi8, #as stab Lsic to death at about =7

P.M. at Pob. /a&as, Public Mar&et, Cuartero, Capi8 sustainin' the follo#in'

in9uries=

%. tab #ound %. < 3 c" #ith :- c" depth L2eft anterior chest at level of th rib

"id clavicular area.

*. tab #ound * < 3 c" #ith c" depth anterior nec& 9ust above the sternu".

3. tab #ound * < 3 c" #ith 3- c" depth at epi'astric area.

/he "ost probable cause of death #as "assive L1e"orrha'e secondar) to

"ultiple stab #ounds.*%

Accordin' to Dr. Betita, the cause of death #as "assive he"orrha'e due to

"ultiple stab #ounds.** 1e added that the three 536 stab #ounds #ere probabl)

caused b) a sharp-bladed instru"ent li&e a &nife.*3

/he petitioner 'ave a different version of the events, su""ari8ed in the R/Cdecision as follo#s=

Noel @uiller"o testified that at =3 in the afternoon of Ful) *%, %++:, he #as in

Cuartero at the restaurant of Melecio 1e)res, husband of @ertrudes 1e)res,

to'ether #ith Arnel ocias and Foe"ar Pal"a drin&in' beer, consu"in' onl)

about half a bottle, #hen $innie Alon, Eddie Ro?ue, Gicente Alon, and $ilfredo

Cabison arrived and ordered beer fro" Bab)lou elipe. $innie Alon ca"e to hi"

and re?uested to 9oin the" in their table #hich he affir"ativel) ans#ered. $innie

Alon then had an altercation #ith Arnel ocias re'ardin' 4 la!ti( 4 5strin' used in

"ar&in' #ood to be cut6.*7

$innie Alon challen'ed Arnel ocias to a contest on clean or strai'ht cuttin' of

#ood. Arnel declined the challen'e clai"in' that he is onl) an assistant to hisbrother-in-la#. $innie Alon 'ot an'r) and told hi" that he has lon' been in Lthe

chain sa# Lsic business but 4)ouKre stupid4 54gago (a) 46. Arnel responded= 4If the

#ood is croo&ed and )ou #ould deviate fro" line, )ouKre stupid.4*

$innie Alon suddenl) stood up and said to Arnel= 4DonKt ever call "e stupid,4

pointin' his fin'er to Arnel. 1e told the" to settle the "atter peacefull) as the)

are friend Lsic, but $innie Alon #as so furious and 'rabbed Arnel ocias b) the

collar. Arnel tried to release the hold of $innie fro" his collar. $hile he #as

pacif)in' the t#o tellin' the" to settle the "atter peacefull), $innie Alon turned

to hi" and said= 4)ou also,4 then struc& hi" #ith a beer bottle. 1e #as hit at the

ri'ht top of his head thrice. 1e stood up and bo<ed $innie #ho a'ain pic&ed up a

bottle brea& Lsic it a'ainst the #all, and struc& hi" #ith the bro&en bottle. 1e

stepped bac&, pulled his &nife, and stabbed hi" three 536 ti"es but cannot

re"e"ber #hat part of his bod) #as hit b) his successive stabs.*: < < <

Lootnotes referrin' to the pertinent parts of the record supplied

Bab) 2ou, a #aitress at the restaurant of Melecio 1e)res, narrated that in the

afternoon of Ful) *%, %++:, the petitioner, to'ether #ith Arnaldo and Foe"ar,

arrived at the restaurant and ordered beer.* A fe# "inutes later, Gicente, Eddie,

$innie, and $ilfredo Cabison arrived and also ordered beer. he then sa# the

'roup of $innie transfer to the table occupied b) the petitioner and his

co"panions. /hereafter, the 'roup had a heated ar'u"ent a"on' the"selves

re'ardin' 4la!ti( .4* In the course of the e<chan'e, she sa# $innie stri&e the

petitioner on the head #ith a bottle. $innie and the petitioner then 'rappled #ith

each other. At that point, she hid behind the refri'erator and did not see #hat

happened ne<t. After#ards, she sa# the bloodied bod) of $innie l)in' outside

the restaurant.*+ he li&e#ise sa# the petitioner outside the restaurant> his shirt

#as splattered #ith blood.3

Dr. Betita, this ti"e testif)in' as defense #itness, stated, a"on' others, that the

contusion he"ato"a suffered b) the petitioner could have been caused b) ahard ob9ect li&e a beer bottle, #hile the linear abrasion could have been caused

b) a fin'ernail.3%

Arnaldo ocias testified that on Ful) *% %++:, he, to'ether #ith the petitioner and

Foe"ar, #as drin&in' beer at the restaurant of Melecio 1e)res3* #hen $innie

stood up and as&ed if the) 5$innieKs 'roup6 could 9oin the" at their table. Arnaldo

and his co"panions a'reed. $innieKs 'roup then transferred to the table of

ArnaldoKs 'roup.33

/he discussion too& a bad turn #hen the "atter of cuttin' b) chainsa# #as

raised. $innie challen'ed Arnaldo to a contest to deter"ine #ho could do the

cleanest cut. 1e declined and clai"ed he does not &no# ho# to operate a

chainsa#. /o this, $innie retorted, 4ou are alread) old in that business, but )our finished product is still croo&ed. ou are all du"b.4 1e countered, 4If the #ood

itself is croo&ed, )ou cannot have a strai'ht lu"ber. ou are du"b if )ou insist

)ou can.4 At that point, $innie stood up and 'rabbed hi" b) the collar. /he

petitioner intervened and told the" to settle their differences peacefull). $innie

then 'rabbed a bottle and struc& the petitioner on the head three ti"es.37 Arnaldo

added that he did not see #ho stabbed $innie, because #hile the petitioner and

$innie #ere 'rapplin', he #as bus) fi'htin' #ith Gicente.3



Foe"ar Pal"a testified that in the afternoon of Ful) *%, %++:, the petitioner,

Arnaldo, and he #ere drin&in' beer at the restaurant of Mr. 1e)res #hen four

persons, #ho appeared to be drun& 5later identified as Gicente, Eddie, $innie,

and $ilfredo Cabison6, entered the restaurant and ordered beer. 3: After the latter

'roup 9oined the" at their table, $innie and Arnaldo had a heated discussion

re'ardin' e<pertise in operatin' a chainsa#. $innie 'rabbed the shirt collar of

Arnaldo in the course of the heated e<chan'e.3 /he petitioner advised the" to

cal" do#n, but $innie struc& hi" 5petitioner6 on the head #ith a beer bottle three

ti"es. Gicente also tried to stri&e Arnaldo, but the latter "ana'ed to duc& and so

he 5Foe"ar6 too& the hit instead. /hereafter, he and Arnaldo en'a'ed Gicente.3

/he R/C, in its decision of Fanuar) , *, convicted the petitioner of the cri"e

of ho"icide, but ac?uitted Arnaldo and Foe"ar. /he dispositive portion of the

decision reads=

"HEREFORE, the evidence on record havin' established the 'uilt of Noel

@uiller"o as principal in the cri"e of ho"icide for stabbin' three 536 ti"es $innie

Alon #hich caused the latterKs death, attended b) a special or privile'ed

"iti'atin' circu"stance of inco"plete 9ustification, and #ithout an) a''ravatin'

or "iti'atin' circu"stances attendant, he is i"posed an indeter"inate sentence

of si< 5:6 )ears of prision correccional , as "ini"u", to ten 5%6 )ears of prision

mayor , as "a<i"u", #ith the correspondin' accessor) penalties, and to pa)

death inde"nit) of P,. to the heirs of $innie Alon, in the service of hissentence he shall be credited the period that he under'one Lsic preventive

i"prison"ent, confor"abl) #ith Art. *+ of the Code.

Costs a'ainst the accused.

or insufficienc) of evidence, the accused Arnaldo ocias and Foe"ar Pal"a are

ac?uitted of the cri"e char'ed. /he bail bond for their provisional libert) is

C+NCELLE% +N% %SCH+RGE%.SO OR%ERE%.3+ LE"phasis in the ori'inal

/he petitioner appealed to the CA #hose decision is no# assailed in the present

petition. /he petitioner essentiall) clai"s that the R/C and the CA erred in failin'

to reco'ni8e the e<istence of all the ele"ents of self-defense.

THE COURT/S RULNG"e re$oe to e#* te petto# or 68 o mert.Pe6 o Se-%ee#$e$e note at the outset that the petitioner does not den) that he &illed $innie. 1e

e<pressl) "ade this ad"ission in his testi"on) of Ful) %, %+++=

A//. GI22AREA2=

H= And #hat did )ou do #hen he struc& )ou #ith the bottle

N!E2 @I22ERM!=

A= I #as able to "ove bac&#ard and I reali8ed that I have a &nife on Lsic the bac&

of ") #aist.

H= And #hat did )ou do #ith )our &nife

+ te# $t6bbe m.H= 1o# "an) ti"es

A= About three ti"es as far as I can re"e"ber.7 LE"phasis supplied

/he petitioner 9ustifies the stabbin' as an act of self-defense.

As the lo#er courts did, #e do not reco'ni8e that the petitioner full) acted in self-

defense.

As a rule, the prosecution bears the burden of establishin' the 'uilt of the

accused be)ond reasonable doubt. 1o#ever, #hen the accused ad"its the &illin'

and, b) #a) of 9ustification, pleads self-defense, the burden of evidence shifts> he

"ust then sho# b) clear and convincin' evidence that he indeed acted in self-

defense. or that purpose, he "ust rel) on the stren'th of his o#n evidence and

not on the #ea&ness of the prosecutionKs evidence.7%

/he ele"ents that the accused "ust establish b) clear and convincin' evidence

to successfull) plead self-defense are enu"erated under Article %%5%6 of the

Revised Penal Code=

AR/. %%. Fustif)in' circu"stances. /he follo#in' do not incur an) cri"inal

liabilit)=

%. +#*o#e 9o 6t$ # ee#$e o $ per$o# or r:t$, proe t6t teoo9#: r)m$t6#e$ o#)r;First . U#69) 6::re$$o#;Second . Re6$o#6be #ee$$t* o te me6#$ empo*e to pree#t or repet;Third . L68 o $)e#t proo6to# o# te p6rt o te per$o# ee##:m$e. As a 9ustif)in' circu"stance, self-defense "a) be co"plete or inco"plete. It is

co"plete #hen all the three essential re?uisites are present> it is inco"plete

#hen the mandatory element of unlawful aggression b) the victi" is present, plus

any one of the two essential requisites.7*

In the present case, #e find it be)ond dispute that the victi" $innie started thefi'ht that ended in his death> he struc& the petitioner on the head #hen the latter

intervened to pacif) the ?uarrel bet#een $innie and Arnaldo. In short, the victi"

#as the unla#ful a''ressor #hile the petitioner #as in the la#ful act of pacif)in'

the ?uarrelin' parties> thus, the latter has in his favor the ele"ent of )#69)6::re$$o# b) the victi".

$e consider it also established that the petitioner did not provo&e the fi'ht that

ensued> he #as a third part) to the ?uarrel bet#een the ori'inal prota'onists



$innie and Arnaldo and did not at all initiate an) provocation to i'nite the

?uarrel. /hus, the petitioner also has the ele"ent of 68 o $)e#tproo6to# in his favor.

/he third ele"ent the reasonableness of the "eans to repel the a''ression is

the critical ele"ent that the lo#er courts found lac&in' in the petitionerKs case.

@enerall), reasonableness is a function of the nature or severit) of the attac& or

a''ression confrontin' the accused, the "eans e"plo)ed to repel this attac&, the

surroundin' circu"stances of the attac& such as its place and occasion, the

#eapons used, and the ph)sical condition of the parties #hich, #hen vie#ed as

"aterial considerations, "ust sho# rational e?uivalence bet#een the attac& and

the defense.73 In People v. $scarlos,77 this Court held that the "eans e"plo)ed

b) a person invo&in' self-defense "ust be reasonabl) co""ensurate to the

nature and the e<tent of the attac& sou'ht to be averted. In *ienes v. People,7

#e considered the nature and nu"ber of #ounds inflicted on the victi" as

i"portant indicia "aterial to a plea for self-defense.

In the present case, the attac& on the petitioner ca"e as he intervened in a

?uarrel bet#een the victi" and another part). As #e concluded above, #e dee"

it established that the victi" #as the unla#ful a''ressor #ho attac&ed the

petitioner. Ph)sical evidence sho#s that indeed the petitioner suffered the

follo#in' in9uries=

%. Contusion 1e"ato"a * < 3 left parital area 9ust above the left ear.*. 2inear abrasion 3 7 c" left hand "edial side.

3. 2inear abrasion * 3 c" left head ulnar side.7:

/he #eapons that caused these in9uries #ere a beer bottle and, ?uite possibl),

fin'ernails as the victi" and the appellant 'rappled #ith each other. 7 In contrast,

the victi" suffered three stab #ounds= at the nec&, at the abdo"en and in the

chest. /he #eapon used #as a Batan'as &nife that ad"ittedl) belon'ed to the

petitioner. /hus, the ph)sical evidence in the case stands.

/he petitioner clai"s self-defense on the position that $innie, after hittin' hi" on

the head three ti"es #ith an e"pt) bottle, 'rabbed another bottle, bro&e it

a'ainst the #all, and thrust it to#ards hi". It #as at this point that the petitioner

used his &nife to inflict $innieKs fatal #ounds. Clearl), the petitioner #ants toi"press upon us that his response to $innieKs attac& #as reasonable> he used a

&nife to repel an attac&er ar"ed #ith a bro&en beer bottle.

everal reasons "ilitate a'ainst our acceptance of the petitionerKs version and

interpretation of events.

+irst , there is intrinsic disproportion bet#een a Batan'as &nife and a bro&en beer

bottle. Althou'h this disproportion is not conclusive and "a) )ield a contrar)

conclusion dependin' on the circu"stances, #e "ention this disproportionalit)

because #e do not believe that the circu"stances of the case dictate a contrar)

conclusion.

*econd , ph)sical evidence sho#s that the petitioner suffered onl) one contusion

he"ato"a at the parietal area above the left ear. nless the three 536 beer bottle

blo#s that the petitioner alle'ed all landed on the sa"e site a situation that

could have incapacitated the petitioner the "ore plausible conclusion fro" the

ph)sical evidence is that the petitioner received onl) one blo#, not three as he

clai"ed. Contrar) to #hat the petitioner #ishes to i"pl), he could not have been

a defender reelin' fro" successive head blo#s inflicted b) the victi".

Third , the victi", Gicente, and Eddie, #ere alread) drun& #hen the) arrived at the

restaurant before the fatal fi'ht. /his state of into<ication, #hile not criticall)

"aterial to the stabbin' that transpired, is still "aterial for purposes of definin' its

surroundin' circu"stances, particularl) the fact that a bro&en beer bottle "i'ht

not have been a potent #eapon in the hands of a drun& #ielder.

+ourth, and as the CA aptl) observed as #ell, the &nife #ounds #ere all ai"ed at

vital parts of the bod), thus pointin' a'ainst a conclusion that the petitioner #as

si"pl) #ardin' off bro&en beer bottle thrusts and used his &nife as a "eans

co""ensurate to the thrusts he avoided. /o be precise, the petitioner inflicted on

the victi"= o#e $t6b 9o)# 6t te e$t, <-' m$. eep , at the th rib clavicular

area, or in plainer ter"s, in the area of the victi"Ks heart> 6#oter 96$ 6t te

#e8, 5 m$. eep, 9ust above the breastbone> and a 6$t o#e 96$ # te6bom#6 6re6, 3-5 m$. eep. /he depth of these #ounds sho#s the force

e<erted in the petitionerKs thrusts #hile the locations are indicative that the thrusts

#ere all "eant to &ill, not "erel) to disable the victi" and thereb) avoid his

drun&en thrusts.

+ifth, in appreciatin' the facts, the R/C and the CA #ere one in the conclusion to

disbelieve the petitionerKs alle'ation of co"plete self-defense, as reflected in the

CAKs further co'ent observations that=

5b6 If, indeed the deceased pic&ed up another bottle of beer, hit the sa"e a'ainst

the #all, resultin' in the brea&a'e of the bottle, and #ith it, hit the Appellant ane#,

it behooved the Appellant to have rushed posthaste to the police station and

report the stabbin', #ith the re?uest that a police"an be dispatched to the locuscriminis and confir" the presence of bro&en pieces of beer bottle in the

restaurant. /he Appellant did not. 1e and his co"panions, Arnaldo and Foe"ar,

fled fro" the scene, via the bac& door, and escaped on board a "otorc)cle.

5c6 Neither Arnaldo, Foe"ar, or Bab)lou corroborated the clai" of the Appellant

that, after the Appellant bo<ed $innie, #ho lost his hold of the bottle of beer, he

pic&ed up another bottle and struc& the bottle of beer a'ainst the #all and hit the

Appellant #ith the bottle. /he appellant relied solel) on is o#n testi"on) to



buttress his defense.

5d6 /he Municipal /rial Court conducted a preli"inar) investi'ation of the

4Cri"inal Co"plaint4 filed a'ainst the

Appellant, Arnaldo, and Foe"ar. 1o#ever,

the Appellant did not sub"it an) 4Counter-

Affidavit4 clai"in' that he #as i"pelled to

stab $innie three 536 successive ti"es on

"ortal parts of his bod) and &illin' Lsic hi"

because $innie pic&ed up a bottle, hit the

sa"e a'ainst a #all and hit the Appellant

ane# #ith the bro&en bottle.7

Lnderscorin' in the ori'inal

$e see no reason to disturb these findin's

as the) are based on e<istin' evidence, and the conclusions dra#n therefro" are

patentl) reasonable. $e have ti"e and a'ain held that the findin's of facts of the

trial court, its assess"ent of the credibilit) of #itnesses and the probative #ei'ht

of their testi"onies, and the conclusions based on the these factual findin's are

to be 'iven the hi'hest respect> the trial court en9o)s the uni?ue advanta'e of

bein' able to observe, at close ran'e, the conduct and deport"ent of #itnesses

as the) testif). /hese factual findin's, #hen adopted and confir"ed b) the CA,

are final and conclusive and need not be revie#ed on the appeal to us. $e arenot a trier of facts> as a rule, #e do not #ei'h ane# the evidence alread) passed

on b) the trial court and affir"ed b) the CA. 7+ !nl) after a sho#in' that the courts

belo# i'nored, overloo&ed, "isinterpreted, or "isconstrued co'ent facts and

circu"stances of substance that #ould alter the outco"e of the case, are #e

9ustified in underta&in' a factual revie#. No such e<ceptional 'rounds obtain in

this case.

In su", #e rule that there #as #o r6to#6 e=)6e#e bet#een the "eans of

the attac& and the "eans of defense sufficient to characteri8e the latter as

reasonable.

Te Proper Pe#6t*

/he i"posable penalt) for ho"icide under Article *7+ of the Revised Penal Codeis reclusion temporal in its full ran'e. Article :+ of the Code ho#ever provides

that=

AR/. :+. Penalty to !e imposed when the crime committed is not wholly

e,cusa!le. Q A penalt) lo#er b) one or t#o de'rees than that prescribed b) la#

shall be i"posed if the deed is not #holl) e<cusable b) reason of the lac& of

so"e of the conditions re?uired to 9ustif) the sa"e or to e<e"pt fro" cri"inal

liabilit) in the several cases "entioned in Articles %% and %*, provided that the

"a9orit) of such conditions be present. /he courts shall i"pose the penalt) in the

period #hich "a) be dee"ed proper, in vie# of the nu"ber and nature of the

conditions of e<e"ption present

or lac&in'.

ince the petitionerKs plea of self-

defense lac&s onl) the ele"ent

of 4reasonable "eans,4 the

petitioner is, therefore, entitled to

the privi le'ed "it i'at in'

circu"stance of inco"plete self-

defense. Conse?uentl), the

penalt) for ho"icide "a) be

lo#ered b) one or t#o de'rees,

at the discretion of the court.

/he penalt) #hich the R/C i"posed and #hich the CA affir"ed lo#ered the

penalt) of reclusion temporal b) one de'ree, #hich )ields the penalt) of prision

mayor . ro" this penalt), the "a<i"u" of the indeter"inate penalt) is

deter"ined b) ta&in' into account the attendant "odif)in' circu"stances,

appl)in' Article :7 of the Revised Penal Code.% ince no a''ravatin' nor

"iti'atin' circu"stance intervened, the "a<i"u" of the indeter"inate penalt)

shall be prision mayor in its "ediu" period #hose ran'e is fro" )ears and %da) to % )ears.

/o deter"ine the "ini"u" of the indeter"inate penalt), prision mayor has to be

reduced b) one de'ree #ithout ta&in' into account the attendant "odif)in'

circu"stances. /he penalt) lo#er b) one de'ree is prision correccional #hose

ran'e is fro" : "onths and % da) to : )ears. /he trial court is 'iven the #idest

discretion to fi< the "ini"u" of the indeter"inate penalt) provided that such

penalt) is #ithin the ran'e of prision correccional .

/he CA affir"ed the indeter"inate penalt) of si< 5:6 )ears prision correccional , as

"ini"u", to ten 5%6 )ears of prision mayor , as "a<i"u", as i"posed b) the

R/C on petitioner. $e affir" this to be the le'all) correct and proper penalt) to

be i"posed upon petitioner.$e also affir" the P,. death inde"nit) a#arded to $innieKs heirs, in

accordance #ith prevailin' 9urisprudence.*

$e add that "oral da"a'es should be a#arded as the) are "andator) in "urder

and ho"icide cases #ithout need of alle'ation and proof other than the death of

the victi".3 /he a#ard of P,. as "oral da"a'es is, therefore, in order.

"HEREFORE, in li'ht of all the fore'oin', #e %EN> the petition. /he assailed

decision and resolution of the CA dated Nove"ber %, *% and April , **,

LEON+R%O +. ?USUM!NG Associate Fustice

Chairperson

CONCHT+ C+RPO MOR+LES Associate Fustice

%+NTE O. TNG+ Associate Fustice

PRES!TERO (. &EL+SCO, (R. Associate Fustice



respectivel), in [email protected]. CR No. *7%% are +FFRME% #ith the MO%FC+TONthat the petitioner is ordered to pa) the heirs of $innie Alon the a"ount of

P,. as "oral da"a'es. Costs a'ainst the petitioner.

SO OR%ERE%.

+RTURO %. !RON Associate Fustice

$E C!NCR=

+TTEST+TONI attest that the conclusions in the above Decision had been reached in

consultation before the case #as assi'ned to the #riter of the opinion of the

CourtKs Division.


Chairperson

CERTFC+TONPursuant to ection %3, Article GIII of the Constitution, and the Division

ChairpersonKs Attestation, it is hereb) certified that the conclusions in the aboveDecision #ere reached in consultation before the case #as assi'ned to the #riter

of the opinion of the CourtKs Division.

RE>N+TO S. PUNOChief Fustice

Foot#ote$% Petition for Revie# on Certiorari under Rule 7 of the Revised Rules of Court.* Penned b) Associate Fustice 5no# retired upre"e Court Fustice6 Ro"eo F.

Calle9o, r. and concurred in b) Associate Fustice Re"edios ala8ar-ernando

and Associate Fustice Fosefina @uevarra-alon'a> rollo, pp. *%-3.7

Penned b) Fud'e Charlito . antilanan> id., pp. 3%-7:. In so"e parts of the record, he is also referred to as Arnold or Arnel ocias. Dated Fanuar) , *> rollo, pp. 3%-7:. /N, Fune *3, %++, p. 3.7% People v. antillana, @.R. No. %*%, Fune +, %+++, 3 CRA %7.7* eno9a v. People, @.R. No. %:37%, !ctober %+, *7, 77 CRA :+, 3.73 ee People v. Enco"ienda, @.R. No. 2-*:, Au'ust %, %+*, 7: CRA **>

Eslabon v. People, @.R. No. 2-::**, ebruar) *7, %+7, %* CRA .

77 @.R. No. %7+%*, epte"ber %, *3, 7% CRA 7:3.7 @.R. No. %3*+*, Dece"ber %3, *:, %% CRA %3.7: E<hibit 4%,4 records, p. 37.7 Anne< 4A,4 rollo, p. *+.7+ Chua v. People, @.R. Nos. %+*: and 3, March :, *:, 77 CRA %:%,

%:. Article *7+. 1o"icide. An) person #ho, not fallin' #ithin the provisions of

article *7:, shall &ill another, #ithout the attendance of an) of the circu"stances

enu"erated in the ne<t precedin' article, shall be dee"ed 'uilt) of ho"icide and

be punished b) reclusion te"poral.% Article :7. Rules for the application of penalties #hich contain three periods.

In cases in #hich the penalties prescribed b) la# contain three periods, #hether

it be a sin'le divisible penalt) or co"posed of three different penalties, each one

of #hich for"s a period in accordance #ith the provisions of Articles : and ,

the courts shall observe for the application of the penalt) the follo#in' rules,

accordin' to #hether there are or are no "iti'atin' or a''ravatin' circu"stances=

%. $hen there are neither a''ravatin' nor "iti'atin' circu"stances, the) shall

i"pose the penalt) prescribed b) la# in its "ediu" period.

*. $hen onl) a "iti'atin' circu"stance is present in the co""ission of the act,

the) shall i"pose the penalt) in its "ini"u" period.

3. $hen onl) an a''ravatin' circu"stance is present in the co""ission of theact, the) shall i"pose the penalt) in its "a<i"u" period.

7. $hen both "iti'atin' and a''ravatin' circu"stances are present, the court

shall reasonabl) offset those of one class a'ainst the other accordin' to their

relative #ei'ht.

. $hen there are t#o or "ore "iti'atin' circu"stances and no a''ravatin'

circu"stances are present, the court shall i"pose the penalt) ne<t lo#er to that

prescribed b) la#, in the period that it "a) dee" applicable, accordin' to the

nu"ber and nature of such circu"stances.

:. $hatever "a) be the nu"ber and nature of the a''ravatin' circu"stances,

the courts shall not i"pose a 'reater penalt) than that prescribed b) la#, in its

"a<i"u" period.. $ithin the li"its of each period, the courts shall deter"ine the e<tent of the

penalt) accordin' to the nu"ber and nature of the a''ravatin' and "iti'atin'

circu"stances and the 'reater or lesser e<tent of the evil produced b) the cri"e.* ee People v. /abuelo', @.R. No. %+, Fanuar) **, *> 2ic)a)o v.

People, @.R. No. %:+7*, March 7, *.3 People v. Rodas, @.R. No. %%, Au'ust *, *, 3% CRA 7, 3,

citin' People v. &a-ar , 7%7 CRA 7+7, % 5*36.

http://www.lawphil.net/judjuris/juri1999/jun1999/gr_127815_1999.html


http://www.lawphil.net/judjuris/juri2004/oct2004/gr_160341_2004.html

http://www.lawphil.net/judjuris/juri1972/aug1972/gr_l_26750_1972.html


http://www.lawphil.net/judjuris/juri1984/feb1984/gr_l66202_1984.html


http://www.lawphil.net/judjuris/juri2003/sep2003/gr_148912_2003.html


http://www.lawphil.net/judjuris/juri2006/dec2006/gr_132925_2006.html


http://www.lawphil.net/judjuris/juri2006/mar2006/gr_150926_2006.html

http://www.lawphil.net/judjuris/juri2008/jan2008/gr_178059_2008.html




http://www.lawphil.net/judjuris/juri2007/aug2007/gr_175881_2007.html







http://www.lawphil.net/judjuris/juri2008/jan2008/gr_178059_2008.html



http://www.lawphil.net/judjuris/juri2007/aug2007/gr_175881_2007.html





SUPREME COURTManila

EC!ND DIGII!N

G.R. No. L-30'01 M6r 27, 1@74

THE PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs.

%OMNGO UR+L, accused-appellant.

ffice of the *olicitor /eneral +eli, 0. Antonio Assistant *olicitor /eneral

Antonio A. Torres and *olicitor #icente P. $vangelista for plaintiff2appellee.

#icente Cerilles and $meliano %eleverio for accused2appellant.

+?UNO, J.: p

/his is an appeal of defendant Do"in'o ral fro" the decision of Fud'e Gicente

@. Ericta of the Court of irst Instance of a"boan'a del ur, convictin' hi" of

"urder, sentencin' hi" to reclusion perpetua, and orderin' hi" to inde"nif) the

heirs of eli< Napola in the su" of t#elve thousand pesos and to pa) the costs5Cri"inal Case No. 3*6.

/he 9ud'"ent of conviction #as based on the testi"on) of Bri'ido Alberto, a

t#ent)-si< )ear old for"er detention prisoner in Buu', a"boan'a del ur. 1e

had been accused of "urder and then set at libert) on Fune +, %+:: after postin'

bail. 1e #ent to Barrio Ca"on'o, Du"alinao #here his father resided. !n Ful)

3%, %+::, he intended to 'o to his residence at Barrio pper 2a"ari, Buu' but

ni'ht overtoo& hi" in the to#n. 1e decided to sleep in the Buu' "unicipal

buildin' #here there #ould be "ore securit).

pon arrival in the "unicipal buildin' at around ei'ht o0cloc&, he #itnessed an

e<traordinar) occurrence. 1e sa# Police"an ral 5#ith #ho" he #as alread)

ac?uainted6 inside the 9ail. ral #as bo<in' the detention prisoner, eli< Napola. As a conse?uence of the fistic blo#s, Napola collapsed on the floor. ral, the

tor"entor, stepped on his prostrate bod).

ral #ent out of the cell. After a short interval, he returned #ith a bottle. 1e

poured its contents on Napola0s recu"bent bod). /hen, he i'nited it #ith a "atch

and left the cell. Napola screa"ed in a'on). 1e shouted for help. Nobod) ca"e

to succor hi".

Much perturbed b) the barbarit) #hich he had 9ust seen, Alberto left the "unicipal

buildin'. Before his departure, ral cautioned hi"= 4ou better &eep ?uiet of #hat

I have done4 5sic6. Alberto did not sleep an)"ore that ni'ht. ro" the "unicipal

buildin', he #ent to the crossin', #here the car'o truc&s passed. 1e hitchhi&ed

in a truc& haulin' iron ore and #ent ho"e.

Doctor 2u8onia R. Ba&il, the "unicipal health officer, certified that the thirt)-)ear

old victi", #ho" she treated t#ice, sustained second-de'ree burns on the ar"s,

nec&, left side of the face and one-half of the bod) includin' the bac& 5E<h. A6.

he testified that his der"is and epider"is #ere burned. If the burns #ere not

properl) treated, death #ould unsue fro" to<e"ia and tetanus infection. 4$ithout

an) "edical intervention4, the burns #ould cause death4, she said. he e<plainedthat, because there #as #ater in the burnt area, secondar) infection #ould set in,

or there #ould be co"plications.

Napola died on Au'ust *, %+::. /he sanitar) inspector issued a certificate of

death indicatin' 4burn4 as the cause of death 5E<h. B6.

/he trial court fittin'l) deplored the half-hearted "anner in #hich the prosecution

5represented b) iscal Ro?ue and the private prosecutor, Delfin A'bu6 handled

the case. It be#ailed the prosecution0s failure to present as #itnesses Fuanito de

la erna and Ernesto !'oc, the detention prisoners #ho sa# the burnin' of

Napola. /he) had e<ecuted a 9oint affidavit #hich #as one of the bases of the

infor"ation for "urder. 1

It noted that Rufina Paler, the victi"0s #ido#, #ho #as present in court, #as avital #itness #ho should have been presented as a #itness to prove the victi"0s

d)in' declaration or his state"ents #hich #ere part of the res gestae. 2

In this appeal appellant0s three assi'n"ent of error "a) be condensed into the

issue of credibilit) or the sufficienc) of the prosecution0s evidence to prove his

'uilt be)ond reasonable doubt.

1is stor) is that at around nine o0cloc& in the evenin' of Ful) 3%, %+:: he #as in

the "unicipal 9ail on 'uard dut). 1e heard a screa" for help fro" Napola. 1e

entered the cell and found Napola0s shirt in fla"es. $ith the assistance of

Ernesto !'oc and Anecio iton, ral re"oved Napola0s shirt. ral did not

su""on a doctor because, accordin' to Napola, the burns #ere not serious.

Besides, he 5ral6 #as alone in the "unicipal buildin'.elicisi"a Escareal, !'oc0s co""on-la# #ife, #ho" the trial court branded 4as a

co"plete liar4, testified that she heard Napola0s screa" for help. he sa# that

Napola0s shirt #as burnin' but she did not &no# ho# it happened to be burned.

he said that ral and iton re"oved the shirt of Napola and put out the fire.

/eofilo Matu'as, a police"an, declared that he #as relieved as 'uard b) ral at

ei'ht-thirt) in the evenin' of Ful) 3%st. Matu'as denied that Alberio #as in the

"unicipal buildin' at ei'ht o0cloc&.



/he trial court held that ral0s denials cannot prevail over the positive testi"on)

of Alberio. It observed that ral0s alle'ed act of re"ovin' Napola0s burnin' shirt

#as at "ost an indication that he #as 4belatedl) alar"ed b) the conse?uence of

his evil act4 but #ould not "ean that he #as not the incendiar).

Appellant ral 5he #as thirt)-four )ears old in March, %+:+6, in assailin' the

credibilit) of Alberio, pointed out that he #as not listed as a prosecution #itness

and that he #as convicted of "urder.

/hose circu"stances #ould not preclude Alberio fro" bein' a credible #itness. It

should be noted that the accused #as a police"an. !rdinaril), a cri"e should be

investi'ated b) the police. In this case, there #as no police investi'ation. /hecri"e #as investi'ated b) a special counsel of the fiscal0s office. /hat "i'ht

e<plain #h) it #as not i""ediatel) discovered that Alberio #as an e)e#itness of

the atrocit) perpetrated b) ral.

/he testi"onies of elicisi"a Escareal, !'oc0s co""on-la# #ife, and Police"an

Matu'as are co"patible #ith the prosecution0s theor) that ral burned Napola0s

shirt. lti"atel), the factual issue is= #ho should be 'iven credence, Alberio or

ral As alread) stated, the trial court #hich had the advanta'e of seein' their

de"eanor and behavior on the #itness stand, chose to believe Alberio. /his

Court, after a searchin' scrutin) of the #hole record, does not find an)

9ustification for disbelievin' Alberio.

/his case is covered b) article 7 of the Revised Penal code #hich provides that4cri"inal liabilit) shall be incurred b) an) person co""ittin' a felon) 3delito4

althou'h the #ron'ful act done be different fro" that #hich he intended4. /he

presu"ption is 4that a person intends the ordinar) conse?uences of his voluntar)

act4 5ec. Lc, Rule %3%, Rules of Court6.

/he rationale of the rule in article 7 is found in the doctrine that 4el ?ue es causa

de la causa es causa del "al causado4 5he #ho is the cause of the cause is the

cause of the evil caused6.4Confor"e a dicha doctrina no alteran la relacion de

causalidad las condiciones pree<istentes 5co"o las condiciones patolo'icasdel

lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.6> ni

las condiciones sobrevenidas 5co"o el tetanos, la pul"onia, o la 'an'rena

sobrevenidos a conse?uencia de la herida64 5% Cuello Calon, Codi'o Penal, %*thEd., %+:, p. 33-33:6.

/he si"ilar rule in A"erican 9urisprudence is that 4if the act of the accused #as

the cause of the cause of death, no "ore is re?uired4 57 C.F.. 76. o, #here

durin' a ?uarrel, the accused struc& the victi" #ith a li'hted la"p, #hich bro&e

and fell to the floor, causin' the oil to i'nite and set fire to the ru', and, in the

course of the scuffle, #hich ensued on the floor, the victi"0s clothes cau'ht fire,

resultin' in burns fro" #hich he died, there #as a sufficient causal relation

bet#een the death and the acts of the accused to #arrant a conviction of

ho"icide 5$illia"s vs. .., * ed. *nd *:+, 7 C.F.. 7, note +6.

/here is a rule that 4an individual #ho unla#full) inflicts #ounds upon another

person, #hich result in the death of the latter, is 'uilt) of the cri"e of ho"icide,

and the fact that the in9ured person did not receive proper "edical attendance

does not affect the cri"inal responsibilit)4 5.. vs. Escalona, %* Phil. 76. In the

$scalona case, the victi" #as #ounded on the #rist. It #ould not have caused

death had it been properl) treated. /he victi" died si<t) da)s after the infliction of

the #ound. It #as held that lac& of "edical care could not be attributed to the

#ounded "an. /he person #ho inflicted the #ound #as responsible for the resultthereof.

/he cri"e co""itted b) appellant ral #as "urder b) "eans of fire 3incendio4

5Par. 3, Art. *7, Revised Penal Code> People vs. Masin, :7 Phil. > .. vs.

Burns, 7% Phil. 7%, 73*, 776. 3

/he trial court correctl) held that the accused too& advanta'e of his public

position 5Par. %, Art. %7, Revised Penal Code6. 1e could not have "altreated

Napola if he #as not a police"an on 'uard dut). Because of his position, he had

access to the cell #here Napola #as confined. /he prisoner #as under his

custod). 4/he police"an, #ho ta&in' advanta'e of his public position "altreats a

private citi8en, "erits no 9udicial lenienc). /he "ethods sanctioned b) "edieval

practice are surel) not appropriate for an enli'htened de"ocratic civili8ation.$hile the la# protects the police officer in the proper dischar'e of his duties, it

"ust at the sa"e ti"e 9ust as effectivel) protect the individual fro" the abuse of

the police.4 .. vs. Pabalan, 3 Phil. 3*6.

But the trial court failed to appreciate the "iti'atin' circu"stance 4that the

offender had no intention to co""it so 'rave a #ron' as that co""itted4 5Par. 3,

Art. %3, Revised Penal Code6. It is "anifest f ro" the proven facts that appellant

ral had no intent to &ill Napola. 1is desi'n #as onl) to "altreat hi" "a) be

because in his drun&en condition he #as "a&in' a nuisance of hi"self inside the

detention cell. $hen ral reali8ed the fearful conse?uences of his felonious act,

he allo#ed Napola to secure "edical treat"ent at the "unicipal dispensar).

2ac& of intent to co""it so 'rave a #ron' offsets the 'eneric a''ravatin',circu"stance of abuse of his official position. /he trial court properl) i"posed the

penalt) of reclusion perpetua #hich is the "ediu" period of the penalt) for

"urder 5Arts. :7L7 and *7, Revised Penal Code6.

indin' no error in the trial court0s 9ud'"ent, the sa"e is affir"ed #ith costs

a'ainst the appellant.

o ordered.

5aldivar 3Chairman4 and +ernande6 JJ. concur.



Antonio J. too( no part.

Sep6r6te Op#o#$

!+RRE%O, J., concurrin'=

E<cept for the unnecessar) reference to the supposed state"ent of the deceased

to his #ife and the 9oint affidavit of !'oc and De la erna, all of #hich #ere not

properl) presented in evidence, hence it is preferable not to "ention the" in

order to avoid an) suspicion that our 9ud'"ent has been influenced b) factorsother than evidence dul) presented in court, I concur.

+ernando J. concurs.

Foot#ote$% Republic of the Philippines ...

Province of a"boan'a del ur ...6

Municipalit) of Pa'adian

F!IN/-AIDAGI/

$E, ERNE/! !@!C "arried, and FANI/! DE 2A CERNA, sin'le, both of

le'al a'e, far"ers, residents of 2a&e#ood, 2apu)an, a"boan'a del ur and at

Buu' a"boan'a del ur, respectivel), after havin' been dul) s#orn to inaccordance #ith la# hereb) depose and sa)=

/hat both of us #ere confined inside the "unicipal 9ail of Buu' a"boan'a del

ur on Ful) 3%, %+:: for offenses alle'edl) co""itted b) us and on sa"e date

our co"panions inside the said 9ail #ere Anisio iton and eli< Napola, the latter

bein' confined for bein' drun&>

/hat at about = o0cloc& in the evenin', "ore or less on Ful) 3%, %+::, our

police"an 'uard b) the na"e of Do"in'o ral entered the 9ail and called for

eli< Napola. 1e called for hi" and told hi" that eli< Napola is a''ressive.

$hen eli< Napola #ent near Do"in'o ral, the latter bo<ed hi" at his lo#er

chin and he fell to the ce"ent floor of the 9ail. 1e &ic&ed hi" also at the sa"e

spot after eli< Napola fell to the floor. Because eli< Napola cannot standan)"ore, Do"in'o ral 'ot a bottle and poured the contents of said bottle to the

dress of eli< Napola. Do"in'o ral li'hted a "atch and burned the spot #here

the substance in the bottle #as poured in the dress of eli< Napola. /he dress of

eli< Napola 'ot burned and eli< Napola 'ot burned. 1e #as forced to stand up

and as&ed "erc) fro" Do"in'o ral. Instead Do"in'o ral loc&ed the 9ail and

#ent out and Do"in'o ral threatened us not to tal& about the burnin' of eli<

Napola to an)bod) or else he #ill burn us also.

$hen eli< Napola #as alread) sufferin' "uch fro" the burns he sustained, ral

beca"e fri'htened and he and Anisio iton helped put out the fire.

Affiants further sa)eth none.

[email protected] Ernesto !'oc [email protected] Fuanito de la Cerna

ERNE/! !@!C FANI/! DE 2A CERNA

5Affiant6 5Affiant6

BCRIBED AND $!RN to before "e this %+th da) of epte"ber, %+:: here

at Pa'adian, a"boan'a del [email protected] Basilio /. Ro?ue

BAI2I! /. R!HE

pecial Counsel

* Mrs. Napola 5Mapola6 testified at the preli"inar) investi'ation conducted b)

Basilio /. Ro?ue, a special counsel, that she learned fro" a nei'hbor that her

husband suffered burns in the "unicipal 9ail in the evenin' of Ful) 3%, %+::. 1er

husband told her that Police"an ral had burned hi". ral allo#ed her to brin'

Napola to the dispensar) #here he #as treated. Because of the in9uries on his

"outh and his s#ollen 'u"s, he could not eat and "ove his head. 1e #as

confined in 9ail due to drun&enness. 1e #as burned fro" the #aist up to the nec&and on the bac& and ri'ht ar". he reported the case to the "a)or. /hat

functionar) said that he #ould not ta&e an) hand in the case. Mrs. Napola #as

cross-e<a"ined b) ral0s counsel.

At the sa"e preli"inar) investi'ation the #itnesses, Ernesto !'oc and Fuanita

de la erna, testified and #ere cross-e<a"ined b) ral0s counsel. /he accused

presented evidence at the preli"inar) investi'ation.

3 4n su9eto, despues de cohabitar con una prostituta, encendio un "i<to ?ue

aplico a uno de los latones de petroleo ?ue habia pro<i"os a la ca"a en ?ue

)acieron, infla"andose el contenido de a?uel ) ca)endo el li?uido sobre la

prostituta, ?ue fallecio a conse?uencia de las ?ue"aduras.

El /ribunal upre"e declara=Hue se'un el articulo 7% del Codi'o penal, es reo de asesinato el ?ue por

"edio de incendio "ata a persona ?ue no le este li'ada por al'uno de los

vinculos fa"iliares senalados en el art. 7%, entendiendose e"pleado el incendio

en este concepto 9uridico cuando se "ata o intenta "atar por "edio de fue'o

aplicado directa o i""edia"ente sobre la persona ob9eto de la accion cri"inal,

sie"pre?ue lo sea con ries'o de propa'acion a cosas distintas, en cual?uiera de

las condiciones previstas en el capitulo , titulo %3 del libro *. del Codi'o penal>



cu)o "edio de e9ecucion de a?uel delito, principal en la intencion del culpable

esti"a la le) con el 'rave caracter ?ue atribu)e ta"bien a la inundacion ) al

e"pleo del veneno, no solo por los peli'ros ?ue i"plica, sino i'ual"ente por la

notoria "alicia, se"e9ante a la alevosia, ?ue revela la accion ?ue para su e<ito

no se detiene ante el respeto de otros derechos ?ue pone en in"inente ries'o o

?uebranta ) lesion a i"pulso de decidia resolucion.

Hue todas estas consideraciones aparecen "anifiestas en el acto e9ecutado por

el procesado, puesto ?ue voluntaria"ente e"pleo el petroleo infla"ado para

lesionar a la interfecta, poniendo el fue'o, ?ue por su natural poder se propa'o al

local en ?ue se co"etio el delito, al servicio de su proposito punible>constitu)endo por esto el incendio, ele"ento inte'rante del delito de

asesinato, ... 5entencia de *+ de Novie"bre de %, %% 1idal'o, Codi'o Penal,

%6.



Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

@.R. No. %3+7* Fune *%, *%PE!P2E ! /1E P1I2IPPINE, plaintiff-appellee,

vs.NOCENCO GONA+LEA, (R., accused-appellant.%SSENTNG OPNONGONA+G+-RE>ES, J.:

Man) unfortunate tra'edies #ould not have happened if the i"provident use of afirear" did not e<acerbate a si"ple altercation over traffic. /his is one of the".!n a da) intended to pa) ho"a'e to the dead, a pre'nant #o"an #as shot todeath in the course of her husbandKs altercation #ith the accused-appellant andhis son alon' the @arden of Re"e"brance #ithin the 2o)ola Me"orial Par& inMari&ina. /he trial court found the accused 'uilt) of the co"ple< cri"e of "urder and t#o counts of frustrated "urder and accordin'l) sentenced hi" to death./his case is before us on auto"atic revie#./he details of #hat actuall) transpired in the fe# seconds i""ediatel) precedin'the shootin' are controverted b) both parties but the events leadin' to thistra'ed) are not disputed.In the afternoon of !ctober 3%, %++ at about *=3 p.". both the fa"ilies of theprivate co"plainant Noel Andres and that of the accused-appellant Inocencio@on8ale8 #ere on their #a) to the e<it of the 2o)ola Me"orial Par&. /heappellant #as drivin' a #hite Isu8u Estee" #ith his 'randson and threehouse"aids, #hile the private co"plainant #as drivin' a "aroon /o)ota #ithhis pre'nant #ife eliber Andres, his t#o )ear old son, (enneth, his nephe#(evin and his sister-in-la#, rancar Galde8. At the intersection near the @arden of Re"e"brance, #hile the accused-appellant @on8ale8 #as turnin' left to#ardsthe e<it and the co"plainant Noel Andres #as headed strai'ht alon' the road tothe e<it their t#o vehicles al"ost collided. Noel Andres #as able to ti"el) step on

the bra&es. /he appellant continued drivin' alon' his #a) #hile Noel Andresdrove behind the appellantKs vehicle for so"e ti"e and cut hi" off #hen he foundthe opportunit) to do so.% Noel Andres then 'ot out of his vehicle and &noc&ed onthe appellantKs car #indo#.* /his is as far as their versions of the incidentcoincide./he prosecutionKs version of the incident is that Noel Andres cal"l) told theappellant to be careful #ith his drivin' and infor"ed the latter that he, Andres, is#ith his fa"il) and to this @on8ale8 alle'edl) replied, 4Accidents are accidents,#hatKs )our proble".4 Andres stated that he sa# the appellant turnin' red inan'er so he decided to 'o bac& to his vehicle #hen he #as bloc&ed b) the

appellantKs son #ho said, 4Anon' proble"a "o sa erpat &o.4 Andres testified thathe felt threatened and so he i""ediatel) boarded his vehicle, sat at the driverKsseat, closed the door, and partiall) opened the car #indo# 9ust #ide enou'h total& bac& to appellantKs son, Dino. uddenl), one of his passen'ers said 4Binaril&a"i4. 1e turned to his #ife eliber Andres and sa# her bloodied andunconscious. 1e turned around and sa# his son (enneth and nephe# (evin#ere also #ounded. Andres ad"itted in court that he and Dino #ere shoutin' ateach other so that he did not hear the shot. Andres then 'ot out of his vehicle to#arn the appellant not to flee. 1e then too& the #ounded "e"bers of his fa"il)to the e<it #here there #as an a"bulance standin' b). /he three #ere then ta&en

to the ta. Monica 1ospital and #ere later transferred to the Hue8on Cit) MedicalCenter./he defenseKs version of the incident is that Andres cut the appellantKs path b)positionin' his obli?uel) alon' the appellantKs lane fro" the latterKs left side. Andres then 'ot out of his vehicle, stood beside the appellantKs car #indo#, andrepeatedl) cursed the appellant, 4Putan' ina "o, an' tanda-tanda "o na hindi &apa "arunon' "a'"aneho. An' bobo-bobo "o.4 3 /he appellant sta)ed inside hiscar and alle'edl) replied, 4Pasensi)a &a na hindi &ita na&ita, nasila# a&o. A&sidente lan'.4 /he appellant @on8ale8 and another #itness for the defense,Huidic, testified that Noel Andres #ent bac& to his vehicle to "ove it in such a#a) that it is strai'ht in front of the appellantKs car. Andres alle'edl) 'ot out of hisvehicle a'ain and continued shoutin' and cursin' at the appellant. 7 Dino, theappellantKs son, #ho rode in another vehicle decided to 'o bac& #hen he did not

see his fatherKs car behind hi". $hen Dino arrived at the scene he confronted Andres and the t#o had an altercation. Both Dino and the appellant stated that Andres re"ained outside his vehicle durin' the altercation #ith Dino. $hen Andres suddenl) reached for so"ethin' inside his vehicle, Dino fro8e on the spot#here he stood. /his pro"pted the appellant to 'et his 'un fro" the 'loveco"part"ent and feelin' that his son #as threatened he 'ot out of his car read)to shoot. $hen he sa# that Andres did not have a #eapon he put do#n his handholdin' the 'un. /his is #hen the appellantKs dau'hter /risha #ho #as ridin' inDinoKs car arrived at the scene, #al&ed past Dino and Andres, and pushed theappellant a#a). he hu''ed her father and in the process held his hand holdin'the 'un. /he appellant tried to free his hand and #ith /rishaKs substantial bod)#ei'ht pushin' a'ainst hi" the appellant lost his balance and the 'unaccidentall) fired. /he accused stated that he did not &no# he shot so"ebod)

until the private co"plainantKs sister-in-la#, rancar Galde8, 'ot out of the vehiclecarr)in' a bloodied s"all bo). /he defense clai"s that the appellant did not tr) toflee and even told the co"plainantKs sister-in-la# to ta&e the #ounded to thehospital.!n Nove"ber 7, %++ an Infor"ation for the co"ple< cri"e of Murder, Doublerustrated Murder and Atte"pted Murder #as filed a'ainst herein accused-appellant=4/hat on or about the 3%st da) of !ctober %++, in the cit) of Mari&ina,Philippines and #ithin the 9urisdiction of this 1onorable Court, the above-na"ed



accused, did then and there #illfull), unla#full) and feloniousl) #ith intent to &ill,attac&, assault and e"plo) personal violence b) "eans of treacher) and abuseof superior stren'th upon the person of Noel Andres ) /o"as, b) then and thereshootin' hi" #ith a @loc& cal. +"" pistol but instead hittin' one eliber Andres )!rdoOo, on the left bac& portion of her head, thereb) inflictin' upon her seriousand "ortal #ound #hich directl) caused her death, as #ell as hittin' Fohn(enneth Andres ) !rdoOo and (evin Galde8 ) !rdoOo ph)sical in9uries #hichordinaril) #ould have caused their death, thus perfor"in' all the acts of e<ecution #hich #ould have produced the cri"e of "urder as a conse?uence,but nevertheless did not produce it b) reason of so"e cause or causes,

independent of their #ill, that is, the ti"el) and able "edical assistance renderedto Fohn (enneth Andres ) !rdoOo and (evin Galde8 ) !rdoOo to their da"a'eand pre9udice as #ell as to the da"a'e and pre9udice of the heirs of eliber Andres ) !rdoOo.4!n arrai'n"ent the accused-appellant pleaded 4not 'uilt)4 to the cri"es char'ed./he case records sho# that eliber Andres, the #ife of Noel Andres did not dieinstantaneousl). he lived to 'ive birth to a bab) 'irl b) caesarian section anddied the follo#in' "ornin' on Nove"ber %, %++. /he Autops) Report: states=4INDIN@= airl) nourished, fairl) developed fe"ale cadaver, #ith post "orte"lividit). Con9unctivae are pale. 2ips and nail beds are c)anotic. ur'ical incisions#ere noted at left te"pero-parietal re'ion. ur'ical incisions is also noted at theabdo"inal re'ion secondar) to a caesarian section.1EAD= 5%6 'unshot #ound, point of entr), left fronto-te"poral re'ion, "easurin' %

b) .+ c", + c" fro" the anterior "idline, #ith a unifor" abraided collar "easurin' .* c"., directed posterior#ards, sli'htl) do#n#ards, and"edial#ards, fracturin' the frontal, and left te"poral bones, laceratin' the leftcerebral he"isphere, #ith a defor"ed slu' fra'"ent e"bedded and recovered atthe posterior lobe of the left cerebral he"isphere. 5*6 he"ato"a, left orbitalre'ion, "easurin' 7. b) * c", 7 c" fro" the anterior "idline. /here aresubdural and subarachnoidal he"orra'es. to"ach contains % S 'lassful of partiall) di'ested food particles "ostl) rice and "eat) "aterial.C!NC2I!N= Cause of death is 'unshot #ound on the head.4(enneth and (evin #ere treated for e<traction of "etallic fra'"ents on their faces. /he) #ere dischar'ed fro" the hospital si< da)s later or on Nove"ber :,%++.!n Fune *, %+++ the trial court rendered 9ud'e"ent findin' that the shootin'

#as attended b) the ?ualif)in' circu"stance of treacher) and held the appellant'uilt) of the co"ple< cri"e of "urder for the death of eliber Andres and for t#ocounts of frustrated "urder for the in9uries sustained b) (enneth Andres and(evin Galde8 and sentenced the appellant to the "a<i"u" of the i"posablepenalt) #hich is death. /he trial court held=4Beforehand, the Court ta&es note of the 9udicial ad"issions on the verbaldeclarations of the accused that the court Ta ?uoK has 9urisdiction over the case>that he o#ns the blac& @luc& + "". auto"atic pistol> that the said 'un #ill never fire even if he drops it> that onl) one bullet #as fired fro" his 'un> and that the

victi" eliber Andres is alread) dead. $ith this e<e'esis and the declarations inopen court of the e)e#itness of both the prosecution and so"e of the defense,there is no real dispute on the antecedent facts sho#in' that the accused fired onNoel Andres but instead hit and caused the fatal in9uries to the victi"s Fohn(enneth Andres, (evin Galde8 and eliber Andres resultin' to the ulti"ate deathof the latter. /he court ta&es further 9udicial ad"issions of the accused "ade intheir "e"orandu" de"onstratin' the e<istence of five 56 se?uences of eventsleadin' to the death of eliber Andres and the #oundin' of Fohn (enneth Andresand (evin Galde8 #hich are as follo#s= irst is #hen Noel Andres overtoo& thecar driven of the accused and cut cross his path> econd is #hen Noel Andres

ali'hted fro" his vehicle and confronted Inocencio> /hird is #hen Noel had anar'u"ent #ith Dino @on8ale8, the son of the accused> orth is #hen, Inocencioseein' his son havin' confrontation #ith Noel, 'ot his 'un to protect Dino> andifth is #hen Inocencio had a stru''le #ith his dau'hter. /risha @on8ale8, #hotried to reach for the 'un and as a result of #hich Inocencio lost his balance andas he #as fallin' bac&#ard to his side, his ri'ht ar" holdin' the 'un hit the rear #indo# of the /a"ara# van and the 'un accidentall) #ent off hittin' thevicti", #ho #ere all then inside the van./he court li&e#ise ta&e 9udicial notice on the feature of the auto"atic pistol usedin this case #hich is capable of un?uestionable de"onstration or ou'ht to be&no#n to 9ud'es because of their 9udicial functions. Practicall), the sta'es beforean auto"atic firear" #ould be capable of firin' are as follo#s= %6 the loadin' of abullet into the cha"ber of the 'un> *6 the coc&in' of the ha""er, if uncoc&ed> 36

the releasin' of the safet) pin> 76 the pressin' of the tri''er to unleash theha""er so that the firin' pin #ill hit the cartrid'e to propel the bullet out to hit thetar'et. Realisticall), it de"onstrates that a 'un #ill not fire even if the bullet isloaded in its cha"ber if the ha""er is uncoc&ed> or even if coc&ed if the safet)pin is en'a'ed> or even if the safet) pin is disen'a'ed if the tri''er #ill not bepressed. 1o#ever, even if the 'un is fired if it is not ai"ed and leveled to thetar'et, the purpose of firin' it shall not be achieved. Contraril), once a 'un isdra#n a'ainst a person, the "eans "ethods and for"s e"plo)ed for itse<ecution is alread) conceived. And once it is tended directl) and specificall) toinsure its e<ecution, it conse?uentl) produces the conscious and deliberateintention. inall) if all the acts of e<ecution had been effectivel) done #ithout ris&on the part of the offender arisin' fro" an) defense co"in' fro" the offendedpart), treacher) results. In brief, there is treacher) #hen the offender co""its

an) cri"e a'ainst persons, e"plo)in' "eans, "ethods and for"s in thee<ecution thereof #hich tend directl) and speciall) to insure its e<ecution, #ithoutris& to hi"self arisin' fro" an) defense #hich the offended part) "i'ht "a&e5People vs. Mesa *: CRA 7> People vs. Carlos Patrolla, Fr. @. R. No.%%*77, March , %++:6. /o appreciate treacher) t#o 5*6 conditions "ust bepresent, to #it= %6 the e"plo)"ent of "eans of e<ecution that 'ive the personattac&ed no opportunit) to defend hi"self or retaliate> and *6 the "eans of e<ecution #ere deliberatel) or consciousl) adopted. 5People vs. A8u'ue, *:CRA %%> People vs. PeOa, @. R. No. %%:**, Ful) %, %++, p. %6



In the case at bar and 'uided #ith the above-?uoted doctrinal cases, lo'icall), theaccused is positive of the cri"e char'ed a'ainst hi". $hen he ali'hted #ith adra#n 'un to protect his son and released all the safet) "easures of his 'un ashe fired and "issed at Noel #ho #as then unar"ed, but instead hit (evin Galde8,Fohn (enneth Andres and eliber Andres #hich resulted to the death of the latter,de"onstrate that the accused has e<ecuted the t#o 5*6 conditions to 'eneratetreacher) enou'h to ?ualif) the cri"e co""itted to "urder.4 4$1ERE!RE, fore'oin' pre"ises considered, the accused Inocencio@on8ale8, Fr., ) Es?uivel is hereb) found 'uilt) be)ond reasonable doubt of the

co"ple< cri"e of Murder #ith Double rustrated Murder and Atte"pted Murder penali8ed under Art. *7, as a"ended b) Republic Act No. :+ in relation to Article 7 of the Revised Penal Code and is sentenced to suffer the "a<i"u"penalt) of Death b) lethal in9ection./he accused is further ordered to pa) the follo#in' civil liabilities=%. /o the private co"plainant Noel Andres=a6 the a"ount of P,. as inde"nit) for the death of eliber Andres>b6 the a"ount of P3,3:3,::3.: as inde"nit) for the loss of earnin' capacit) of the deceased eliber Andres>c6 the a"ount of P+,37.%+ as funeral e<penses>d6 the a"ount of P*%,.: for the hospitali8ation e<penses incurred for thein9uries sustained b) the deceased eliber Andres and the a"ount of P*3,:**.representin' the e<penses for the unti"el) deliver) of the child Ma. Clarisse

Andres>e6 the a"ount of P%,::. representin' the hospitali8ation e<penses for thein9uries sustained b) the victi" Fohn (enneth Andres>f6 the a"ount of P%,. as "oral da"a'es suffered for the unti"el) deathof his #ife eliber Andres and for the in9uries caused to his son Fohn (enneth Andres>'6 the a"ount of P,. as and b) #a) of attorne)Ks fees and a fee of P*,. per appearance> andh6 the costs of the suit.*. /o the private co"plainant Nicasio Galde8=a6 the a"ount of P3,*7. as actual da"a'es for the in9uries sustained b) thevicti" (evin Galde8> andb6 the a"ount of P,. as and b) #a) of "oral da"a'es.

! !RDERED.4In his appeal, @on8ale8 sub"its the follo#in' assi'n"ents of error=4%. /he trial court co""itted reversible error #hen it found that treacher) #aspresent.*. /he trial court co""itted reversible error #hen it presu"ed that there #astreacher) b) ta&in' 9udicial notice of the feature of the auto"atic pistol involved inthis case.3. /he trial court co""itted reversible error #hen it violated the constitutionalri'ht of the accused-appellant to due process #hen it too& 9udicial notice of the

feature of the auto"atic pistol involved in this case #ithout notice.7. /he trial court co""itted reversible error #hen it found Accused-Appellant'uilt) be)ond reasonable doubt of the co"ple< cri"e of Murder #ith Doublerustrated Murder.. /he trial court co""itted reversible error #hen it failed to appreciate the"iti'atin' circu"stances of passion or obfuscation, lac& of intention to co""it so'rave a #ron', provocation or threat on the part of the offended part)i""ediatel) preceded the act, inco"plete defense of relative, and voluntar)surrender.:. /he trial court co""itted reversible error #hen it failed to find that the shootin'

incident #as accidental.. /he trial court co""itted reversible error #hen it 'ave credence to thetesti"onies of prosecution #itnesses El"er Ra"os and Moises Castro.. /he trial court co""itted reversible error #hen it disre'arded the basicprinciple that the accused is presu"ed innocent and his 'uilt "ust be provenbe)ond reasonable doubt.+. /he trial court co""itted reversible error #hen it ordered Accused-Appellant topa) for the civil liabilities.4/he appellant see&s a reversal and pra)s that 9ud'"ent be rendered e<e"ptin'hi" fro" cri"inal and civil liabilities. Appellant declared that he had no intentionto shoot Noel Andres "uch less his #ife nor the children. 1e lost his balance#hen his dau'hter /risha approached and pushed hi" bac&#ards to stop hi"fro" 9oinin' Dino and Noel Andres but the appellant tried to free his ri'ht hand

holdin' the 'un and it accidentall) fired. /he sin'le bullet fired hit the last #indo#on the left side of the /a"ara# . /he appellant clai"s that he did not see thepassen'ers inside the vehicle at the ti"e of the shootin'. /his is corroborated b)the testi"on) of t#o #itnesses for the prosecution #ho testified that the #indo#sof AndresK vehicle are heavil) tinted so that a person outside the vehicle #ouldnot be able to see if there are people inside. It is also ar'ued that had theappellant intended to shoot Noel Andres he could have si"pl) done so b)shootin' at hi" directl). /he defense asserts that the evidence for theprosecution failed to establish the attendance of treacher) and #ithout theattendance of the said ?ualif)in' circu"stance the cri"e co""itted is ho"icide,not "urder./he appellant also points out that the trial court "ade the factual findin' that theshootin' happened in a "atter of seconds and that it #as preceded b) a heated

ar'u"ent bet#een the parties. uch bein' the case, it is ar'ued that the shootin'could not have been attended b) treacher). /here #as no ti"e for the appellantto consciousl) and deliberatel) e"plo) the "ode of attac& a'ainst Noel Andres,nor a'ainst an) one of the actual victi"s, to insure its e<ecution and at the sa"eti"e to eli"inate an) for" of retaliation fro" the alle'ed intended victi". And )et,the trial court, contrar) to the evidence on record, held that the loadin' of thebullet into the cha"ber of the 'un, the coc&in' of the ha""er, the release of thesafet) pin and the pullin' of the tri''er b) the appellant of his auto"atic pistolconstitute conscious and deliberate effort to e"plo) the 'un as a "eans of



co""ittin' the cri"e and resultantl), ?ualified its co""ission b) treacher). ucha findin' presupposes that the appellant loaded the 'un to shoot Noel Andresonl) that ver) "o"ent #hen his son Dino and Noel Andres #ere ar'uin'. /hisconclusion has no basis on record. /he appellant testified that his 'un #asloaded before he left the house and t#o #itnesses for prosecution stated in courtthat a fe# seconds after Noel Andres and Dino started shoutin' at each other, theappellant 'ot out of his car and shot at the last #indo# on the left side of theco"plainantKs vehicle. urther, the appellant assi'ns as error the procedureadopted b) the trial court in ta&in' 9udicial notice that the 'un used b) theappellant is an auto"atic pistol and as such, it #ill not fire unless ai"ed at the

intended tar'et. /he procedure ta&en b) the trial court is contrar) to ection 3,Rule %*+ of the Rules of Court. /he trial court should have 'iven both parties theopportunit) to present evidence, e<pert evidence, if necessar), to infor" the courton the sub9ect "atter. /he appellant ar'ues that the factual findin' borne b) sucherroneous procedure is e?uall) erroneous. /he 'un used b) the appellant is ase"i-auto"atic and not an auto"atic pistol #hich "eans that the pistol used hasno e<ternal safet) pin to be released and that the ha""er need not be coc&ed./he pullin' of the tri''er, intentional or not, #ill fire the 'un. /he use of a se"i-auto"atic pistol does not necessaril) i"pl) treacher). Appellant also ar'ues that the testi"onies of prosecution #itnesses Castro andRa"os #ere i"properl) 'iven credence b) the trial court. /he appellant contendsthat a readin' of their testi"onies #ould sho# that their narration of the incidentis rather absurd and #ould sho# that the) did not #itness the actual shootin'.

Defense #itnesses, @on8ale8 and his dau'hter, /risha, on the other hand,testified that Castro and Ra"os arrived at the scene onl) after the shootin'. As re'ards the in9uries sustained b) (evin and (enneth, it is ar'ued thatconsiderin' that there #as no intent to &ill and that the) sta)ed in the hospitalonl) for si< da)s, the cri"e co""itted is ph)sical in9uries. It is ar'ued that the trialcourt erred in a#ardin' da"a'es. /he bunch of receipts alle'edl) representin'the "edical e<penses incurred for the in9uries sustained b) the victi"s #aserroneousl) ad"itted in evidence, #ithout first re?uirin' the prosecution toestablish the authenticit) of the receipts. /he appellant also points out that thea#ard for loss of earnin' capacit) has no basis as the deceased #asune"plo)ed at the ti"e of the incident.inall), the appellant assi'ns as error the trial courtKs re9ection of the "iti'atin'circu"stances pleaded b) the defense #hich alle'edl) attended the co""ission

of the cri"e, i.e., lac& of intent to co""it so 'rave a #ron', passion andobfuscation, inco"plete defense of a relative and voluntar) surrender. /heappellant asserts that these "iti'atin' circu"stances #ere dul) proven durin' thetrial and are supported b) the evidence on record. /he private co"plainant Noel Andres testified that he sa# the appellant 'ettin' red in an'er after the), Andresand the appellant, had a heated ar'u"ent i""ediatel) prior to the shootin'./hese ad"itted circu"stances sho# that the appellant #as not in his proper stateof "ind at the ti"e of the shootin'. irst, he #as an'ered b) AndresK abusivelan'ua'e and later he 'ot out of his car #ith a loaded 'un to protect his son fro"

a perceived dan'er. /he appellant cla"s that his #illin'ness to help the in9uredand his voluntar) surrender to the police should li&e#ise be considered as"iti'atin' circu"stances in the i"position of penalties./he olicitor-@eneral a'rees #ith the appellant that the cri"e #as not attendedb) the ?ualif)in' circu"stance of treacher) and hence the cri"e co""itted b)the appellant for the death of eliber Andres is ho"icide, not "urder. /heappellee ta&es into consideration that the shootin' #as preceded b) a heatedar'u"ent and that the supposed victi" #as placed on 'uard that attac& #asi""inent. It also appears that the shootin' #as done i"pulsivel). /here is noevidence that the appellant deliberatel) e"plo)ed the "eans of attac& to insure

e<ecution of the cri"e and at the sa"e ti"e eli"inate the ris& of retaliation fro"the private co"plainant. /he appellee also a'rees #ith the appellant that the trialcourt erred in e?uatin' the use of an auto"atic pistol #ith treacher). /he trialcourt "ade the factual findin' that the appellantKs auto"atic pistol #ould not fireunless ai"ed and the tri''er is deliberatel) pulled and hence treacher) attendedthe shootin'. /he appellee sub"its that if #e follo# the reasonin' of the trialcourt it #ould appear that the appellant intended to shoot at the co"plainantKsvehicle onl) as the shot #as fired at the last #indo# on the left side of the a#a) fro" #here Andres #as alle'edl) seated. /he fact that the 'un #as dra#nand fired does not "ean that the "ode of attac& #as consciousl) and deliberatel)e"plo)ed.1o#ever, #ith respect to the in9uries sustained b) (evin and (enneth, theappellee disa'rees #ith the contention that the appellant is liable onl) for sli'ht

ph)sical in9uries. /he in9uries sustained b) both children are head in9uries andcould have caused their death if not for the i""ediate "edical attention 'iventhe". /he nu"ber of da)s spent in the hospital is not deter"inative of theseverit) of the #ounds. /heir nature and location should instead be considered./he appellant cannot escape liabilit) for frustrated ho"icide for the in9uries of thet#o children on the 'round that he fired a sin'le shot at the vehicle of Noel Andres. 1e is liable for all the conse?uences of his unla#ful act even if the cri"eco""itted is different fro" that intended. As re'ards the pleaded "iti'atin' circu"stances, appellee asserts that none canbe considered in favor of the appellant. /here is evidence on record that theappellant did not voluntaril) surrender to the police and it appears fro" thetesti"onies of #itnesses that he entertained the possibilit) of fli'ht but his car #as stuc& in traffic alon' the e<it of the "e"orial par&. 1is pretense of

inco"plete defense of a relative is belied b) his o#n ad"ission that #hen he sa#that Noel Andres did not have a 'un he lo#ered his hand holdin' the 'un. /here#as alle'edl) no threat on the life of his son at the ti"e of the shootin', nouncontrollable fear nor irresistible force that #ould "iti'ate the co""ission of theoffense./he olicitor-@eneral also see&s to uphold the pecuniar) a#ards 'ranted b) thetrial court. /he appellee alle'es that it is not denied b) the appellant that eliber Andres #as a 3 )ear old re'istered nurse at the ti"e of the shootin'. Althou'hshe #as then une"plo)ed on account of her pre'nanc), she still had earnin'



capacit) and the trial court properl) applied the salar) of a 'overn"ent nurseunder the salar) standardi8ation sche"e in the co"putation of da"a'es for theloss of earnin' capacit). /he receipts presented in evidence b) the prosecution toestablish hospitali8ation and other "edical e<penses incurred b) the privateco"plainants b) reason of the in9uries suffered b) the victi"s #ere dul)authenticated b) the prosecution #itnesses and there is no dispute that the) aree<act copies of the ori'inal receipts presented in court. /he ob9ections raised b)the appellant in this re'ard #ere dul) "et b) the evidence presented b) theprivate co"plainants.In su", the appellee asserts that considerin' that the appellant fired a sin'le shot

and in the process co""itted four offenses the appellant should be held liable for the co"ple< cri"e of ho"icide for the death of eliber Andres, double frustratedho"icide a'ainst (evin and (enneth and atte"pted ho"icide a'ainst Noel Andres. nder the rules on co"ple< cri"es the penalt) for the 'ravest offense,i.e., reclusion temporal for ho"icide, should be i"posed in its "a<i"u" period./he appeal has "erit./reacher) under par.%: of Article %7 of the Revised Penal Code is defined as thedeliberate e"plo)"ent of "eans, "ethods or for"s in the e<ecution of a cri"ea'ainst persons #hich tend directl) and speciall) to insure its e<ecution, #ithoutris& to the offender arisin' fro" the defense #hich the intended victi" "i'htraise. or treacher) to be appreciated t#o ele"ents "ust concur= %6 thee"plo)"ent of "eans of e<ecution that #ould insure the safet) of the accusedfro" retaliator) acts of the intended victi" and leavin' the latter #ithout an

opportunit) to defend hi"self and *6 the "eans e"plo)ed #ere deliberatel) or consciousl) adopted b) the offender. /he suddenness of the attac&, the inflictionof the #ound fro" behind the victi", the vulnerable position of the victi" at theti"e the attac& #as "ade or the fact that the victi" #as unar"ed do not b)the"selves render the attac& as treacherous. + /his is of particular si'nificance ina case of an instantaneous attac& "ade b) the accused #hereb) he 'ained anadvanta'eous position over the victi" #hen the latter accidentall) fell and #asrendered defenseless.% /he "eans e"plo)ed for the co""ission of the cri"e or the "ode of attac& "ust be sho#n to have been consciousl) or deliberatel)adopted b) the accused to insure the consu""ation of the cri"e and at thesa"e ti"e eli"inate or reduce the ris& of retaliation fro" the intended victi".%%

Accordin'l), it has been consistentl) held b) this court that chance encounters,i"pulse &illin' or cri"es co""itted at the spur of the "o"ent or that #ere

preceded b) heated altercations are 'enerall) not attended b) treacher) for lac&of opportunit) of the accused to deliberatel) e"plo) a treacherous "ode of attac&.%* /hus, the sudden attac& "ade b) the accused due to his infuriation b)reason of the victi"Ks provocation #as held to be #ithout treacher). uddenattac&s "ade b) the accused preceded b) curses and insults b) the victi" or acts tauntin' the accused to retaliate or the rebellious or a''ressive behavior of the victi" #ere held to be #ithout treacher) as the victi" #as sufficientl)fore#arned of reprisal.%3 or the rules on treacher) to appl) the sudden attac&"ust have been preconceived b) the accused, une<pected b) the victi" and

#ithout provocation on the part of the latter.%7

/his Court has also had occasion to state that #hether or not the attac& succeedsa'ainst its intended victi" or in9ures another or #hether the cri"e co""itted is'raver than that intended is i""aterial, as lon' as it is sho#n that the attac& isattended b) treacher), the said ?ualif)in' circu"stance "a) still be consideredb) the court.% /hus, the deter"inin' factor on #hether or not the co""ission of acri"e is attended b) treacher) is not the resultin' cri"e co""itted but the "odeof attac& e"plo)ed in its e<ecution.%:

/reacher) is never presu"ed. It is re?uired that the "anner of attac& "ust besho#n to have been attended b) treacher) as conclusivel) as the cri"e itself.%

$e affir" the reco""endation of the olicitor-@eneral that the shootin' #as notattended b) treacher) and accordin'l) the cri"e co""itted for the death of eliber Andres is ho"icide and not "urder./he encounter bet#een Noel Andres and the appellant #as a chance encounter./he) #ere total stran'ers before their vehicles al"ost collided at an intersectioninside the "e"orial par&. nfortunatel), heated e<chan'e of re"ar&s thatfollo#ed the near collision #as fanned b) a short te"per, #hich in the case of theappellant, #as au'"ented b) the i"provident use of a firear".ro" a readin' of the transcript of the testi"onies of the #itnesses, it #ouldappear that Noel Andres, #ho had his pre'nant #ife and child #ith hi", a"on'others, on board the /a"ara# provo&ed the altercation. After the near collision of his vehicle #ith that of the appellant, he tailed behind the latterKs car to#ards the e<it until he had the chance to cut hi" off to scold hi" for his failure

to observe traffic rules.%

Andres stated in court that he cal"l) told the appellantto be careful #ith his drivin' and denied that he #as an'r) #hen he ali'hted fro"his vehicle to confront the appellant.%+ 1is state"ent is belied b) the #itnesses,t#o prosecution #itnesses included, #ho unifor"l) testified that Andres ?uarreled#ith or shouted and cursed at the appellant for the latterKs rec&lessness at theintersection.* /he appellant narrated in court that Andres repeatedl) shouted athi", 4Putan' ina "o, an' tanda-tanda "o na 'a'o &a pa4. *% AndresK hostilebehavior to#ards the appellant is evident fro" his state"ent in court that henoticed the appellant turnin' red in an'er.** It is hi'hl) i"probable for @on8ale8 tohave turned red in an'er had Andres been polite, as he clai"s he #as, inscoldin' @on8ale8. Andres could have si"pl) co""unicated to the appellant hisdis'ust for the latterKs bad drivin' #hen he overtoo& the appellantKs car near thescene of the shootin' but instead he chose to bloc& the appellantKs path, insult

and virtuall) provo&e the appellant to retaliate. Andres stated in court that #hen he noticed @on8ale8K infuriation he i""ediatel)#al&ed to#ards his vehicle, because accordin' to hi" the altercation #as over.!n his #a) to his he "et another "an, #ho" he later found out to be theappellantKs son, Dino. It appears that the altercation #as far fro" over becausea'ain Andres had a shoutin' "atch this ti"e #ith Dino. *3 In a "atter of seconds,the appellant ali'hted fro" his car and fired a sin'le shot at the last #indo# onthe left side of AndresK vehicle at an an'le a#a) fro" Noel Andres. /he sin'lebullet fired hit eliber Andres on the forehead near the te"poral re'ion above the



left e)e and the t#o children #ith "etallic fra'"ents of the bullet on their faces,one at the chee& and the other belo# his left e)e./he prosecution did not present evidence as to the e<act seatin' arran'e"ent of the victi"s inside the vehicle> suffice it to sa), that an e<a"ination of the picturesof the vehicle*7 one of #hich sho#s a "ass of blood stains on the left side5to#ards the driverKs seat6 of the #hite seat cover belo# the head rest *, #ouldsho# that the deceased eliber "ust have been seated at the front passen'erKsseat and the children at the "iddle ro# behind the driverKs seat. *: Another picturesho#s a bullet hole on the last #indo# on the left side of the vehicle * andanother sho#s that the front #indshield appears unda"a'ed. * A ballistics e<pert

appeared in court for the prosecution and testified that the bullet fired at the ca"e fro" the appellantKs 'un, #hich fact #as ad"itted b) the defense. /heprosecution did not in?uire fro" the ballistics e<pert re'ardin' the tra9ector) of the bullet or the appro<i"ate distance of the appellant fro" the #hen he firedhis 'un to establish #hether or not the appellant ai"ed for Noel or eliber or si"pl) fired indiscri"inatel) at the latterKs vehicle.*+

At first blush it #ould see" that the shootin' of eliber Andres #as attended b)treacher) as she #as inside the #itnessin' her husbandKs altercation, first,#ith the appellant then #ith the appellantKs son, totall) defenseless fro" the shotthat ca"e suddenl) fro" her left side. Public outra'e over the death of eliber #as hei'htened b) the fact that she #as then pre'nant #ith her second child andher death left a ne# born bab) 'irl and a t#o )ear old bo) "otherless.1o#ever, a "eticulous revie# of the evidence prevents a conclusive findin' of

treacher) and an) doubt "ust be resolved, li&e the fact of the co""ission of anoffense, in favor of the accused. /he pictures indicate that @on8ale8 fired at the at an an'le a#a) fro" Noel Andres and that @on8ale8 #as not ai"in' atan)bod) in particular. It is not disputed that the appellantKs car #as directl)behind the co"plainantKs and that @on8ale8 #ho #as then seated at thedriverKs seat ali'hted fro" his car, too& a fe# steps then fired at the left side of the . $hether Noel Andres #as seated at the driverKs seat inside his vehicle#hen @on8ale8 fired at the , as the prosecution asserts, or #as standin' b)the door of the driverKs seat outside his vehicle, as the defense sub"its, it is clear that the shot #as fired a#a) fro" Noel Andres. /he bullet hit eliber near her te"ple above the left e)e indicatin' that she #as facin' left to#ards her husband#hen the shot #as fired.3 /he direct hit on eliberKs head sho#s that the an'le of the shot #as indeed a#a) fro" Noel Andres. Even the e)e#itness for the

prosecution testified that had the appellant intended to &ill Noel Andres he couldhave shot directl) at hi", considerin' that Noel Andres #as 9ust a fe# steps a#a)fro" hi"3% and that Noel Andres #as visible fro" the outside because his #indo##as partiall) open.3* /he pictures sho# that the bullet hole #as on the third#indo# on the left side of the /a"ara# 33 bel)in' an) atte"pt to shoot Noel Andres. /#o prosecution #itnesses Ra"os and Castro une?uivocall) declaredthat 4nothin' or no one4 prevented @on8ale8 fro" shootin' directl) at Noel Andres and that @on8ale8 could have si"pl) done so if he #anted to. But after ali'htin' fro" his car, @on8ale8 too& a fe# steps and shot at the left side #indo#

of the .37

/he fact that the appellant fired his 'un fro" behind the victi" does not b) itself a"ount to treacher). /here is no evidence on record that the appellantdeliberatel) positioned hi"self behind the victi" to 'ain advanta'e over hi"#hen he fired the shot. !n the contrar), the evidence before us reveals that theposition of the appellantKs car #as not of his o#n doin' but it beca"e so #henNoel Andres overtoo& his car and cut off his path.$e note further, that the appellant did not act belli'erentl) to#ards Noel Andreseven after the latter cut off the appellantKs path. Andres stated in court that theappellant did not ali'ht fro" his car nor opened his #indo# until he, Andres,

tapped on it.

3

or his part @on8ale8 cate'oricall) stated in court that he did notpoint his 'un nor threatened Andres durin' their short spat. 3: @on8ale8, althou'hhe had his 'un in his car, did not react to AndresK cursin' until the latter #ashavin' an altercation #ith the appellantKs son, Dino. @on8ale8 clai"ed that heperceived that his son #as in i""inent dan'er.3 $hether he overreacted or heshot at AndresK vehicle out of ra'e over AndresK a''ressive behavior, one thin'appears clear to us, that the shootin' #as not done in cold blood. It is undisputedthat the #indo#s of the are heavil) or dar&l) tinted so that a person outside#ould not see if an)bod) #as inside.3 /he pictures of the 3+ on record confir"the testi"onies of both prosecution and defense #itnesses that the other passen'ers of the #ere not visible fro" the outside. @on8ale8 ad"itted incourt that Noel Andres "entioned that he has passen'ers #ith hi" #hile he #asshoutin' and cursin' at @on8ale8 but there is no indication that @on8ale8 had

an) opportunit) to see the passen'ers #hen he fired the shot. /he totalit) of theevidence on record fails to support a conclusion that @on8ale8 deliberatel)e"plo)ed the "ode of attac& to 'ain undue advanta'e over the intended nor theactual victi". $ithout an) decisive evidence to the contrar), treacher) cannot beconsidered> thus the cri"e co""itted is ho"icide.7

/he trial courtKs findin' that the loadin' of the 'un, the coc&in' of the ha""er and finall) the pullin' of the tri''er constitute a deliberate effort on the part of appellant to use the 'un as a "eans of a treacherous attac& is patentl)erroneous. A sin'le and continuous attac& cannot be divided into sta'es to "a&eit appear that treacher) #as involved.7% /he entire incident happened in a "atter of "inutes, as testified to b) #itnesses, and as noted b) the trial court. 7* It #aserror to our "ind for the trial court to divide the assault in sta'es to arrive at theconclusion that the "ode of attac& #as consciousl) e"plo)ed b) the appellant.

Contrar) to the findin' of the trial court that the appellant prepared the 'un before'ettin' out of his car, the appellant testified that he loaded his 'un before he leftthe house and that it #as read) to fire #hen he ali'hted his car. /here #as noti"e for hi" to reflect on the "ode of attac& since he 9ust pic&ed up his 'un andali'hted fro" his car and shot at the a fe# seconds after Dino and Noel Andres started shoutin' at each other.73 $e note further that the trial courtpointed out that fro" the fact that the appellant prepared his 'un to shoot, this#as an indication of the deliberate e"plo)"ent of the 'un as a "eans to &ill> i.e.that the use of an auto"atic pistol sho#s that the shootin' #as attended b)



treacher).$e do not a'ree that the #eapon used, b) itself, is deter"inative of treacher),unless it is sho#n, and it is not herein sho#n, that the appellant deliberatel) usedthe 'un to insure the co""ission of the cri"e and to render the unar"ed victi"defenseless. As discussed above, the encounter bet#een the appellant and the Andresses #as a chance encounter and the appellantKs 'un #as in the 'loveco"part"ent of his car even before he left his house. /he shootin' #as clearl) aspur of the "o"ent or i"pulsive decision "ade b) the appellant preceded b) aheated altercation at the instance of the private co"plainant. Furisprudenceteaches us that under the circu"stances, treacher) is not obtainin'. In the caseof People vs. Galles,77 the accused, a securit) 'uard, fired his Ar"alite and"ortall) #ounded the victi" #hen the latter approached the accused four ti"esinsistin' on enterin' the #or&place #earin' i"proper unifor", then cursed andinsulted and challen'ed the accused to a fi'ht. $e held that the shootin' #as notattended b) treacher) as the shootin' #as preceded b) a heated altercation atthe instance of the victi". It is to be noted that the &ind of #eapon used a'ainstan unar"ed victi" #as not ta&en into consideration in deter"inin' theattendance of treacher)> it is the "ode of attac& e"plo)ed b) the accused under the particular circu"stances of a case that deter"ines its attendance in theco""ission of a cri"e. $e find that the prosecution has not dischar'ed itsburden to sho# that the shootin' #as attended b) treacher) and #e areconvinced that the cri"e co""itted for the death of eliber Andres is ho"icide. As re'ards the in9uries sustained b) the t#o children #e find that the cri"e

co""itted are t#o counts of sli'ht ph)sical in9uries. /he intent to &ill deter"ines#hether the cri"e co""itted is ph)sical in9uries or ho"icide and such intent is"ade "anifest b) the acts of the accused #hich are undoubtedl) intended to &illthe victi".7 In a case #herein the accused did not &no# that a person #as hidin'behind a table #ho #as hit b) a stra) bullet causin' superficial in9uries re?uirin'treat"ent for three da)s, the cri"e co""itted is sli'ht ph)sical in9uries.7: In caseof doubt as to the ho"icidal intent of the accused, he should be convicted of thelesser offense of ph)sical in9uries.7 $e have earlier pointed out that the intent to&ill is absent in this case. It #as also found that one s"all "etallic fra'"ent #ase<tracted fro" (enneth belo# his left e)e #hile another fra'"ent #as e<tractedfro" (evin 4i""ediatel) belo# the level of his s&in before the chee& bone4. 7 Ane<a"ination of the testi"onies of the attendin' ph)sicians, sho#ed that the#ounds sustained b) the t#o children fro" the "etallic fra'"ents are not in

the"selves fatal but "a) cause death if left untreated. !ne of the attendin'ph)sician testified in court that the fra'"ents the"selves 4#ill not causeco"plication, it is the entr) of the fra'"ent4 or the open #ound that is susceptibleto infection.7+ /#o s"all fra'"ents #ere no lon'er e<tracted fro" the face of (evin Galde8, as the doctor dee"ed it to be #ithout dan'er of co"plication. $enote that the various si8es of the "etallic fra'"ents #ere not established, at leastto 'ive an indication of the severit) of the #ounds sustained. Both children #eredischar'ed after si< da)s of treat"ent and there is no sho#in' that the) re?uiredsubse?uent treat"ent or that the) #ere i""obili8ed for a 'reater nu"ber of da)s

b) reason of the in9uries sustained. Considerin' the nature and location of their in9uries and the nu"ber of da)s re?uired for their treat"ent, #e find that thecri"e co""itted for the in9uries sustained b) the children are t#o counts of sli'htph)sical in9uries under Art. *:: of the Revised Penal Code #hich i"poses apenalt) of arresto "enor or i"prison"ent for % to 3 da)s for in9uries sustainedthat has incapacitated the victi" for one to nine da)s or re?uired "edicalattendance for the sa"e period. or evident lac& of cri"inal intent to &ill theco"plainant, Noel Andres, as above stated, the infor"ation for atte"ptedho"icide "ust fail./he "iti'atin' circu"stances of voluntar) surrender, passion and obfuscation,inco"plete defense of a relative and lac& of intent to co""it so 'rave a #ron',pleaded b) the defense, #ere not convincin'l) proved and none can beconsidered in the i"position of penalties. /he testi"on) of prosecution #itnesscontradicts the appellantKs pretense of voluntar) surrender. $itness Ra"ostestified that the appellant drove a#a) to#ards the 'ate of the "e"orial par&#hile he #as ?uestionin' hi" after the shootin' and had not Noel Andres andonloo&ers bloc&ed his path the appellant could have fled the scene of the cri"e.%

/he "iti'atin' circu"stance of passion and obfuscation is also not obtainin'. or this "iti'atin' circu"stance to be considered, it "ust be sho#n that 5%6 anunla#ful act sufficient to produce passion and obfuscation #as co""itted b) theintended victi"> 5*6 that the cri"e #as co""itted #ithin a reasonable len'th of ti"e fro" the co""ission of the unla#ful act that produced the obfuscation in theaccusedKs "ind> and that 536 4the passion and obfuscation arose fro" la#ful

senti"ents and not fro" a spirit of la#lessness or reven'e4.*

Noel AndresK act of shoutin' at the appellantKs son, #ho #as then a nurse and of le'al a'e, is notsufficient to produce passion and obfuscation as it is clai"ed b) the accused.Besides, the appellantKs son, Dino #as shoutin' bac& at Noel Andres. It #as not acase #herein the appellantKs son appeared helpless and oppressed that theappellant lost his reason and shot at the of Noel Andres. /he sa"e holds truefor the appellantKs clai" of provocation on the part of Noel Andres. Provocation"ust be sufficient to e<cite a person to co""it the #ron' co""itted and that theprovocation "ust be co""ensurate to the cri"e co""itted. /he sufficienc) of provocation varies accordin' to the circu"stances of the case.3 /he a''ressivebehavior of Noel Andres to#ards the appellant and his son "a) be de"eanin' or hu"iliatin' but it is not sufficient provocation to shoot at the co"plainantKsvehicle.

/he plea for the appreciation of the "iti'atin' circu"stance of inco"pletedefense of a relative is also un"eritorious since the act of Andres in cursin' andshoutin' at the appellant and his son do not a"ount to an unla#ful a''ressiona'ainst the", Dino @on8ale8. inall), the plea for the appreciation of the"iti'atin' circu"stance of lac& of intent to co""it so 'rave a #ron' is li&e#isedevoid of "erit. /his "iti'atin' circu"stance is obtainin' #hen there is a notabledisparit) bet#een the "eans e"plo)ed b) the accused to co""it a #ron' andthe resultin' cri"e co""itted. /he intention of the accused at the ti"e of theco""ission of the cri"e is "anifested fro" the #eapon used, the "ode of attac&

7



e"plo)ed and the in9ur) sustained b) the victi".7 /he appellantKs use of a 'un,althou'h not deliberatel) sou'ht nor e"plo)ed in the shootin', should havereasonabl) placed the appellant on 'uard of the possible conse?uences of hisact. /he use of a 'un is sufficient to produce the resultin' cri"es co""itted.or the death of eliber Andres, and in the absence of an) "iti'atin'circu"stance, the appellant is hereb) sentenced to an indeter"inate sentence of )ears and % da) of prision "a)or, in its "ediu" period, as "ini"u" to %7 )ears "onths and % da) of reclusion te"poral in its "ediu" period, as "a<i"u". or each count of the sli'ht ph)sical in9uries co""itted a'ainst (enneth Andres and(evin Galde8, the appellant is hereb) sentenced to * da)s of arresto "enor inits "ediu" period./he rules on the i"position of penalties for co"ple< cri"es under Art. 7 of theRevised Penal Code are not applicable in this case. Art. 7 applies if a sin'le actconstitutes t#o or "ore 'rave and less 'rave felonies or #hen an offense is anecessar) "eans of co""ittin' another> in such a case, the penalt) for the "ostserious offense shall be i"posed in its "a<i"u" period. Art. + of the RevisedPenal Code in relation to Art. * defines 'rave felonies as those to #hich the la#attaches the capital punish"ent or afflictive penalties fro" reclusion perpetua toprision "a)or> less 'rave felonies are those to #hich the la# attaches a penalt)#hich in its "a<i"u" period falls under correctional penalties> and li'ht feloniesare those punishable b) arresto "enor or fine not e<ceedin' t#o hundred pesos.Considerin' that the offenses co""itted b) the act of the appellant of firin' asin'le shot are one count of ho"icide, a 'rave felon), and t#o counts of sli'ht

ph)sical in9uries, a li'ht felon), the rules on the i"position of penalties for co"ple< cri"es, #hich re?uires t#o or "ore 'rave andor less 'rave felonies, #illnot appl)./he pecuniar) a#ard 'ranted b) the trial court for actual da"a'es #as dul)established b) the testi"onies of the prosecution #itnesses as supported b) theori'inal receipts for hospitali8ation and other "edical e<penses presented inevidence b) the prosecution. /he a#ard for loss of earnin' capacit) is li&e#isesustained for the reason that #hile eliber Andres #as pre'nant and #asune"plo)ed at the ti"e of death, it is not disputed that she #as a re'isterednurse and had earnin' capacit). Noel Andres also testified that he and his #ifehad plans to 'o bac& to audi Arabia to #or& after eliber had 'iven birth to their second bab). $hile there is no evidence as to eliberKs actual inco"e at the ti"eof her death, in vie# of her te"porar) separation fro" #or& because of her

pre'nanc), #e do not consider it reversible error for the trial court to pe' her earnin' capacit) to that of the salar) of a 'overn"ent nurse under the salar)standardi8ation la#, as a fair esti"ate or reasonable assess"ent of her earnin'capacit) at the ti"e of her death. It #ould be 'rossl) ine?uitous to den) her spouse and her "inor children da"a'es for the support that the) #ould havereceived, considerin' clear evidence on record that she did have earnin'capacit) at the ti"e of her death./he a#ards for "oral da"a'es for the death of eliber Andres and for the in9uriessustained b) the t#o children, #hich under the circu"stances are reasonable,

are li&e#ise sustained.$1ERE!RE, the decision of the trial court is hereb) M!DIIED. /he appellantis hereb) found 'uilt) of ho"icide for the death of eliber Andres and issentenced to an indeter"inate sentence of )ears and % da) of prision "a)or inits "ediu" period, as "ini"u", to %7 )ears "onths and % da) of reclusionte"poral in its "ediu" period, as "a<i"u". or each count of the sli'ht ph)sicalin9uries co""itted a'ainst (enneth Andres and (evin Galde8, the appellant ishereb) sentenced to * da)s of arresto "enor./he pecuniar) a#ards 'ranted b) the trial court are hereb) sustained.! !RDERED.%avide Jr. C.J. &ellosillo 7elo #itug 7endo6a 0uisum!ing &uena 8nares2*antiago %e 'eon Jr. *andoval2/utierre6 JJ. concur.Pardo J. dissentin' opinion.Puno 9apunan Pangani!an JJ. 9oins the dissentin' opinion of F. Pardo.

Foot#ote% Andres, tsn., March %:, %+++, pp. %7-%> @on8ales, tsn., Ma) *, %+++, pp.%-**.* Andres, ibid., p. *:.3 A"aba, tsn., Ma) %%, %+++, p. *:.7 @on8ale8, tsn., ibid., pp. *3-33> Huidic, tsn., March **, %+++, pp. > %-**. na"ed Ma. Clarisse.: E<h. 4B4, p. *, older of E<hibits.

4ec. 3. Fudicial notice, #hen hearin' necessar). -Durin' the trial, the court, onits o#n initiative, or on re?uest of a part), "a) announce its intention to ta&e 9udicial notice of an) "atter and allo# the parties to be heard thereon. After the trial, and before 9ud'"ent or on appeal, the proper court, on its o#ninitiative or on re?uest of a part), "a) ta&e 9udicial notice of an) "atter to beheard thereon if such "atter is decisive of a "aterial issue in this case.4 People vs. Cabodoc, *:3 CRA %> People vs. Malaba'o, *: CRA %+.+ Re)es, Revised Penal Code, vol I, %++ ed., pp. 7+-7%.% People vs. Cada), * CRA 3> People vs. Ardisa, CRA *7> People vs.@enial, ** CRA *3.%% Re'alado, Cri"inal 2a# Conspectus, * ed., p. +:> A?uino, Revised PenalCode, vol. II, %++ ed., p. 3.%* People vs. de Fesus, %% CRA %:> People vs. Ma'adattu, %*7 CRA +7.%3

People vs. Manlapa8, CRA +> People vs. Galles, *: CRA %3> Peoplevs. Real, *7* CRA :%.%7 ison vs. People, * CRA , citin', People vs. Abapo, *3+ CRA 7:+.% .. vs. Mabu'-at, % Phil. +:> People vs. Ca'oco, Phil *7.%: A?uino, Revised Penal Code, %++ ed., vol.*, pp. -:.% People vs. Manalo, %7 CRA +.% Andres, tsn., March %:, %+++, pp. %:-%+, @on8ales, tsn. Ma) *, %+++, p. %-*3.%+ Ibid., p. ::.

* R t M h % %+++ :7 : C t t M h % %+++ %37 th h l &illi



* Ra"os, tsn., March %, %+++, pp. :7-:> Castro, tsn., March %, %+++, p. %37.*% @on8ales, tsn., Ma) *, %+++, pp. 3:-3+.** Andres, ibid., p. +.*3 Ibid., tsn., pp. -.*7 E<hibit P and its sub"ar&in's, pp. +-%, older of E<hibits.* E<h. 4PP-4, p. , folder of E<hibits.*: ee also, Andres, tsn., March %:, %+++, pp. 3*-33.* E<h. 4PP4, p. +, older of E<hibits.* E<h. 4PP-34, ibid.*+ Insp ala"at, tsn., April %7, %+++, pp. -.3 Autops) Report, supra.3% Ra"os, tsn., March %, %+++, p. *3.3* Andres, tsn., March %:, %+++, p. .33 ee E<h. 4PP-4, p. %, older of E<hibits.37 Ra"os, ibid., p. %**> Castro, tsn, March %, %+++, pp. %:-%.3 Andres, tsn, March %:, %+++, p. *:> Ra"os, ibid., p. %3.3: Andres, tsn., March %:, %+++, p. :> @on8ales, tsn., i!id., pp. 3+-7%.3 @on8ales, ibid., p. 73.3 Ra"os, tsn., p. %> Castro, tsn., pp. %7-%.3+ E<h. 4PP to PP-*4, p. +, older of E<hibits.7 A?uino, Revised Penal Code, %++ ed., vol. %, p. 7%.7% A?uino, ibid., %++ ed., vol % , p. 7*:.7* Ra"os, tsn., March %, %+++, p. > A"aba, tsn., Ma) %%. %+++, p.3+> R/C

Decision, p. *.73 Ra"os, ibid.77 *: CRA %3.7 People vs. 2isterio, @.R No. %**++, Ful) , *.7: People vs. Giolin, *:: CRA **7.7 A?uino, Revised Penal Code, vol *, %++ ed., pp. :*-:*.7 Dr. 2)ndon !n', tsn., ebruar) *3, %+++, pp. 3-, %> Dr. Antonio Chua, tsn.,ebruar) *3, %+++, pp. 33-7> +-:.7+ Dr. Chua, tsn., ebruar) *3, %+++, pp. :%-:7.

EN !+NCG.R. No. 13@542 ()#e 21, 2001PEOPLE OF THE PHLPPNES, plaintiff-appellee,

vs.NOCENCO GONA+LEA, (R. * ES?U&EL, accused-appellant.%SSENTNG OPNON

P+R%O, J .$e a'ree that there are indeed "an) unfortunate tra'edies that have happenedbecause of the i"provident use of a firear" to e<acerbate a si"ple altercationover traffic. !ne #as the Rolito @o case. 1e shot in cold blood a colle'e 'raduateof De 2a alle niversit)% after their cars nearl) collided in a one-#a) street,snuffin' the )oun' life of the victi". 1e #as convicted of "urder. /his case is

another such senseless &illin'./his case occurred on the eve of All aints Da) %++, alon' the @arden ofRe"e"brance #ithin 2o)ola Me"orial Par&, Mari&ina Cit), Metro Manila. /hetrial court convicted the accused of "urder and sentenced hi" to death. /hecase is no# before us on auto"atic revie#. /he "a9orit) #ould convict theaccused onl) of ho"icide, not of "urder. I re'ret that I cannot 'ive ")concurrence.In the afternoon of !ctober 3%, %++, at about *=3, both the fa"il) ofco"plainant Noel Andres and that of accused Inocencio @on8ales #ere on their#a) to the e<it of the 2o)ola Me"orial Par&, Mari&ina. /he accused #as drivin' a#hite Isu8u Estee" van #ith his 'randson and three house"aids, #hile theco"plainant #as drivin' a "aroon /o)ota #ith his pre'nant #ife eliber Andres, his t#o )ear old son, (enneth, his nephe# (evin and his sister-in-la#,rancar Galde8. At the intersection near the @arden of Re"e"brance, theaccused @on8ale8 #as turnin' left to#ard the e<it #hile the co"plainant Noel Andres #as headed strai'ht alon' the road to the e<it> their t#o vehicles al"ostcollided. Noel Andres #as able to step ti"el) on the bra&es. /he accusedcontinued drivin' alon' his #a) #hile Noel Andres drove behind accusedKsvehicle for so"e ti"e and cut hi" off #hen he found the opportunit) to do so.* Noel Andres 'ot out of his vehicle and &noc&ed on the accused carKs #indo#.3

Accordin' to co"plainant Noel Andres, he cal"l) told the accused to be careful#ith his drivin' and infor"ed the latter that he #as #ith his fa"il). /o this,accused replied 4Accidents are accidents, #hatKs )our proble".4 Andres sa# the

accused turnin' red in an'er, so he decided to 'o bac& to his vehicle #hen he#as bloc&ed b) accusedKs son #ho said 4Anon' proble"a "o sa erpat &o.4eelin' threatened, Andres i""ediatel) boarded his vehicle, sat at the driverKsseat, closed the door and partiall) opened the car #indo# 9ust #ide enou'h total& bac& to accusedKs son. uddenl), one of his passen'ers said 4Binaril &a"i.41e turned to his #ife eliber Andres and sa# her bloodied and unconscious. 1eturned around and sa# his son (enneth and nephe# (evin also #ounded. Noel Andres did not hear the shot. 1e 'ot out of his vehicle to #arn the accused not toflee. 1e then too& the #ounded "e"bers of his fa"il) to the e<it #here there #asan a"bulance standin' b) and the three in9ured #ere boarded in the a"bulanceto be brou'ht to the ta. Monica 1ospital and later transferred to the Hue8on Cit)Medical Center. Accordin' to the accused, co"plainant Andres 'ot out of his vehicle and

repeatedl) cursed the accused #hile he stood beside the accused carKs #indo#./he accused sta)ed inside his car and replied. 4Pasensi)a &a na hindi &ita na&ita,nasila# a&o. A&sidente lan'.4 /he co"plainant #ould not stop shoutin' andcursin' at hi". Dino, the accusedKs son, #ho rode in another vehicle arrived atthe scene, confronted co"plainant Andres and the t#o had an altercation.Co"plainant Andres re"ained outside his vehicle durin' the altercation #ithDino. $hen co"plainant Andres tried to reached for so"ethin' inside his vehicle,Dino fro8e #here he stood. /his pro"pted the accused to 'et his 'un fro" the'love co"part"ent and feelin' that his son #as threatened, 'ot out of his car

read) to shoot the co"plainant $hen he sa# that co"plainant Andres #as not Article 7 of the Revised Penal Code and is sentenced to suffer the "a<i"u"



read) to shoot the co"plainant. $hen he sa# that co"plainant Andres #as notar"ed, he put do#n his 'un. At this point, accusedKs dau'hter /risha arrived atthe scene, #al&ed past Andres and pushed her father, the accused, a#a). hehu''ed hi" and in the process he fired the 'un accidentall). /he accused did not&no# that he hit so"ebod) until the co"plainantKs sister-in-la#, rancar Galde8'ot out of the vehicle carr)in' a bloodied s"all bo). /he accused clai"ed that hedid not tr) to flee and even pharisaicall) told the co"plainantKs sister-in-la# tobrin' the #ounded to the hospital. Perhaps he "eant the ce"eter).!n Nove"ber 7, %++, the prosecution filed #ith the Re'ional /rial Court,Mari&ina Cit), an Infor"ation char'in' the accused #ith the co"ple< cri"e of"urder, double frustrated "urder and atte"pted "urder, as follo#s=4/hat on or about the 3%st da) of !ctober %++, in the cit) of Mari&ina,Philippines and #ithin the 9urisdiction of this 1onorable Court, the above-na"edaccused, did then and there #illfull), unla#full) and feloniousl) #ith intent to &ill,attac&, assault and e"plo) personal violence b) "eans of treacher) and abuseof superior stren'th upon the person of Noel Andres ) /o"as, b) then and thereshootin' hi" #ith a @loc& cal. +"" pistol but instead hittin' one eliber Andres )!rdoOo, on the left bac& portion of her head, thereb) inflictin' upon her seriousand "ortal #ound #hich directl) caused her death, as #ell as hittin' Fohn(enneth Andres ) !rdoOo and (evin Galde8 ) !rdoOo ph)sical in9uries #hichordinaril) #ould have caused their death, thus perfor"in' all the acts ofe<ecution #hich #ould have produced the cri"e of "urder as a conse?uence,but nevertheless did not produce it b) reason of so"e cause or causes,

independent of their #ill, that is, the ti"el) and able "edical assistance renderedto Fohn (enneth Andres ) !rdoOo and (evin Galde8 ) !rdoOo to their da"a'eand pre9udice as #ell as to the da"a'e and pre9udice of the heirs of eliber Andres ) !rdoOo.4!n arrai'n"ent, the accused pleaded 4not 'uilt)4 to the char'es. /rial ensued.eliber Andres, #ife of co"plainant Noel Andres did not die instantaneousl). helived to 'ive birth to a bab) 'irl7 b) caesarian section and died the follo#in'"ornin' on Nove"ber %, %++. Cause of death #as a 'unshot #ound on thehead.

Doctors treated (enneth and (evin for e<traction of "etallic fra'"ents on theirfaces. /he) #ere dischar'ed fro" the hospital si< da)s later on Nove"ber :,%++. After due trial, on Fune *, %+++, the trial court rendered a decision findin' that

the &illin' #as attended b) the ?ualif)in' circu"stance of treacher) and holdin'the accused 'uilt) of the co"ple< cri"e of "urder for the &illin' of eliber Andresand for t#o counts of frustrated "urder for the in9uries sustained b) (enneth Andres and (evin Galde8 and sentenced the accused to death. /he dispositiveportion of the decision reads as follo#s=4$1ERE!RE, fore'oin' pre"ises considered, the accused Inocencio@on8ale8, Fr., ) Es?uivel is hereb) found 'uilt) be)ond reasonable doubt of theco"ple< cri"e of Murder #ith Double rustrated Murder and Atte"pted Murderpenali8ed under Art. *7, as a"ended b) Republic Act No. :+ in relation to

Article 7 of the Revised Penal Code and is sentenced to suffer the "a<i"u"penalt) of Death b) lethal in9ection.4/he accused is further ordered to pa) the follo#in' civil liabilities=%. /o the private co"plainant Noel Andres=a6 the a"ount of P,. as inde"nit) for the death of eliber Andres>b6 the a"ount of P3,3:3,::3.: as inde"nit) for the loss of earnin' capacit) ofthe deceased eliber Andres>c6 the a"ount of P+,37.%+ as funeral e<penses>d6 the a"ount of P*%,.: for the hospitali8ation e<penses incurred for thein9uries sustained b) the deceased eliber Andres and the a"ount of P*3,:**.representin' the e<penses for the unti"el) deliver) of the child Ma. Clarisse Andres>e6 the a"ount of P%,::. representin' the hospitali8ation e<penses for thein9uries sustained b) the victi" Fohn (enneth Andres>f6 the a"ount of P%,. as "oral da"a'es suffered for the unti"el) deathof his #ife eliber Andres and for the in9uries caused to his son Fohn (enneth Andres>'6 the a"ount of P,. as and b) #a) of attorne)Ks fees and a fee ofP*,. per appearance> andh6 the costs of the suit.*. /o the private co"plainant Nicasio Galde8=a6 the a"ount of P3,*7. as actual da"a'es for the in9uries sustained b) thevicti" (evin Galde8> and

b6 the a"ount of P,. as and b) #a) of "oral da"a'es.4! !RDERED.4In this revie#, the accused clai"ed that the shootin' #as purel) accidental. /hisis another of his false pretensions. 1e declared that he had no intention to shootNoel Andres "uch less his #ife nor the children. 1e lost his balance #hen hisdau'hter /risha pushed hi" bac&#ard to stop hi" fro" 9oinin' the confrontationbet#een Dino and Noel Andres. 1e tried to free his ri'ht hand holdin' the 'unand it accidentall) fired hittin' the rear #indo# of the left side of the /a"ara# .1e clai"ed that he did not see the passen'ers inside the vehicle at the ti"e ofthe shootin'. /he accused asserted that the prosecution failed to establish theattendance of treacher) and #ithout said ?ualif)in' circu"stance, the cri"eco""itted #as ho"icide, not "urder. $e find such pretenses to be utterl) falseand bi'oted. /he evidence plainl) sho#s that he directl) ai"ed his pre-loaded

pistol #ith "ulti-"issile bullets, released its safet) tri''er and deliberatel) pulledthe tri''er ai"in' the 'un at co"plainant Andres. $hat a poor shot he #as. /hebullet hit the innocent pre'nant #ife of co"plainant. he did not die instantl),althou'h she could have. Divine intervention enabled her to 'ive li'ht to a bab)'irl born the ne<t da)./he trial court held that the accusedKs act of loadin' the bullet into the cha"ber of the 'un and the coc&in' of the tri''er of his auto"atic pistol constitute consciousand deliberate effort to e"plo) the 'un as a "eans of co""ittin' the cri"e andresultantl), treacher) ?ualified its co""ission. /he accused testified that his 'un

#as loaded before he left the house and he 'ot out of his car and shot at the rear disa'reed #ith the accused that he #as liable onl) for sli'ht ph)sical in9uries /he



#as loaded before he left the house and he 'ot out of his car and shot at the rear#indo# on the left side of the co"plainantKs vehicle. /his testi"on) could not betrue, unless the accused #as an instinctive &iller #ho envisioned that he #oulduse his 'un to &ill so"eone as he left his house to 'o to the ce"eter). /heaccused also ar'ued that the 'un he used #as a se"i-auto"atic, not anauto"atic pistol #hich "eant that the pistol used had no e<ternal safet) pin to bereleased and that the ha""er need not be coc&ed. /he pullin' of the tri''er,intentional or not, #ould fire the 'un. /his is another prevarication. Even a se"iauto"atic pistol has to be coc&ed to cha"ber load the sa"e #ith a bullet andactivate the tri''er-ha""er. In the @loc& se"i-auto"atic +"" pistol as the oneaccused used, the tri''er has a built-in safet) lever and "ust be coc&ed and thetri''er purposel) pulled to fire the 'un. Accused ar'ued that the trial court i"properl) 'ave credence to the testi"oniesof prosecution #itnesses Castro and Ra"os. /heir narration of the incident #asrather absurd and #ould sho# that the) did not #itness the actual shootin'.Defense #itnesses, on the other hand, testified that Castro and Ra"os arrived atthe scene onl) after the shootin'. As re'ards the in9uries sustained b) (evin and (enneth, the accused ar'ued thatthere #as no intent to &ill and that the) sta)ed in the hospital onl) for si< da)s,the cri"es co""itted #ere t#o counts of sli'ht ph)sical in9uries. /he trial courterred in a#ardin' da"a'es and in ad"ittin' in evidence the bunch of receiptsrepresentin' the "edical e<penses incurred for the in9uries sustained b) thevicti"s, #ithout first re?uirin' the prosecution to establish the authenticit) of the

receipts. /he accused also pointed out that the a#ard for loss of earnin' capacit)had no basis as the deceased #as une"plo)ed at the ti"e of the incident.inall), the accused sub"itted that the trial court erred in re9ectin' the "iti'atin'circu"stances pleaded b) the defense #hich attended the co""ission of thecri"e, i.e., lac& of intent to co""it so 'rave a #ron', passion and obfuscation,inco"plete defense of a relative and voluntar) surrender. /he accused assertedthat the "iti'ation circu"stances #ere dul) proven and supported b) theevidence. /he co"plainant Noel Andres testified that he sa# the accused 'ettin'red in an'er after the) had a heated ar'u"ent i""ediatel) prior to the shootin'./hese circu"stances sho#ed that the accused #as not in his proper state of"ind at the ti"e of the shootin'. 1e #as an'ered b) AndresK abusive lan'ua'edirected at hi" and he 'ot out of his car #ith a loaded 'un to protect his son fro"a perceived dan'er. /he accused clai"ed that his #illin'ness to help the in9ured

and his voluntar) surrender to the police should li&e#ise be considered as"iti'atin' circu"stances in the i"position of the penalties./he olicitor @eneral a'reed #ith the accused that the cri"e #as not attended b)treacher), and hence, the &illin' of eliber Andres #as ho"icide, not "urder. /heolicitor @eneral #as of the vie# that the shootin' #as preceded b) a heatedar'u"ent and that the victi" #as placed on 'uard that attac& #as i""inent./here #as no evidence that the accused deliberatel) e"plo)ed the "eans ofattac& to insure e<ecution #it out dan'er of retaliation fro" the victi". 1o#ever,#ith respect to the in9uries sustained b) (evin and (enneth, the olicitor @eneral

disa'reed #ith the accused that he #as liable onl) for sli'ht ph)sical in9uries. /hein9uries sustained b) both children #ere head in9uries and could have causedtheir death if not for the i""ediate "edical attention 'iven the". /he nu"ber ofda)s the) spent in the hospital is not deter"inative of the severit) of the #ounds./he accused is liable for f rustrated ho"icide for the in9uries of the t#o s"allchildren because he fired the shot at Noel Andres that hit instead his pre'nant#ife and t#o s"all children. 1e is liable for all the conse?uences of his unla#fulact even if the cri"e co""itted is different fro" that intended 5a!erratio ictus4. As re'ards the "iti'atin' circu"stances, the olicitor @eneral asserted that nonecan be considered in favor of the accused. /he accused did not voluntaril)surrender to the police and he even entertained the possibilit) of fli'ht but his car#as stuc& in traffic alon' the e<it of the "e"orial par&. 1is clai" of inco"pletedefense of relative #as belied b) his o#n ad"ission that co"plainant Noel Andres did not have a 'un and there #as no unla#ful a''ression on his part./here #as no threat to his life or the life of his son at the ti"e of the shootin', nouncontrollable fear nor irresistible force that #ould "iti'ate the co""ission of theoffense./he olicitor @eneral also a'reed #ith the pecuniar) a#ards the trial court'ranted. 1e a'reed that the late eliber Andres #as a 3-)ear old re'isterednurse at the ti"e of the &illin'. Althou'h she #as then not e"plo)ed because she#as pre'nant, she still had earnin' capacit) and the trial court properl) appliedthe salar) of a 'overn"ent nurse under the salar) standardi8ation sche"e in theco"putation of da"a'es for the loss of earnin' capacit). /he receipts presented

in evidence b) the prosecution to establish hospitali8ation and other "edicale<penses incurred b) the co"plainant b) reason of the in9uries suffered b) thevicti"s #ere dul) authenticated b) the prosecution #itnesses and there is nodispute that the) are e<act copies of the ori'inal receipts presented in court.In su", the olicitor @eneral asserted that the accused fired a sin'le shot butbecause of the "ultiple "issile bullet that he used co""itted four offenses. 1e isliable for the co"ple< cri"e of ho"icide for the death of eliber Andres, doublefrustrated ho"icide a'ainst (evin and (enneth and atte"pted ho"icide a'ainstNoel Andres, and that the penalt) for the 'ravest offense, that is, ho"icide, shallbe i"posed, in its "a<i"u" period, #hich is seventeen 5%6 )ears, four 576"onths and one 5%6 da) to t#ent) 5*6 )ears reclusion te"poral.$e find the appeal #ithout "erit. $e do not a'ree #ith the vie#s of the olicitor@eneral.

/reacher) under Article %7, para'raph : of the Revised Penal Code is defined asthe deliberate e"plo)"ent of "eans, "ethods or for"s in the e<ecution of acri"e a'ainst persons #hich tend directl) and speciall) to insure its e<ecution#ithout ris& to the offender arisin' fro" the defense #hich the intended victi""i'ht raise.: or treacher) to be appreciated, t#o ele"ents "ust concur= 5%6 thee"plo)"ent of "eans of e<ecution that #ould insure the safet) of the accusedfro" retaliator) acts of the intended victi" and leavin' the latter #ithout anopportunit) to defend hi"self or retaliate> and 5*6 the "eans of e<ecutione"plo)ed #ere deliberatel) or consciousl) adopted b) the offender. /he "eans

e"plo)ed for the co""ission of the cri"e or the "ode of attac& "ust be sho#n #as attended b) treacher) that ?ualified the cri"e of "urder a''ravated b) the



e"plo)ed for the co""ission of the cri"e or the "ode of attac& "ust be sho#nto have been consciousl) or deliberatel) adopted b) the accused to insure theconsu""ation of the cri"e and at the sa"e ti"e eli"inate or reduce the ris& ofretaliation b) the victi". At the ti"e of the shootin', the co"plainant #as havin'a tiff #ith accusedKs son. 1e &ne# that the co"plainant #as not ar"ed and there#as no i""inent and 'rave dan'er to the life of his son. 1is conscious use of afirear" #ith pre-loaded "ultiple "issile bullets a'ainst a defenseless "an #ho#as totall) una#are of the dan'er to his life, as the events "oved fast and he didnot even hear the shot constitutes treacher). Accused insured the success of thecri"e #ithout ris& to hi"self arisin' fro" defense or retaliation. /he co"plainantcould not defend hi"self fro" such firepo#er, "uch less retaliate. 1e #as #ithoutan) firear". Even if the attac& #as frontal, it #as sudden and the victi" #asunar"ed.$hether or not the attac& succeeds a'ainst its intended victi" or in9ures another,or #hether the cri"e co""itted is 'raver than that intended is i""aterial, as lon'as it is sho#n that the attac& is attended b) treacher), the ?ualif)in' circu"stance"a) still be considered.$e can not a'ree #ith the accused or the vie# of the olicitor @eneral that theshootin' #as not attended b) treacher). Noel Andres, #ho had his pre'nant #ifeand child #ith hi" in his /a"ara# could have provo&ed the situation but #asnot an a''ressor. Initiall) he touted the accused for his failure to observe trafficrules.1o#ever, after the altercation, co"plainant Andres #al&ed to#ard his vehiclebecause the altercation #as over. !n his #a) to the /a"ara# , he "et another "an, #ho #as the accusedKs son. It appears that Andres had another shoutin'"atch #ith accusedKs son. $ithout ado, accused 'ot his alread) pre-loadedpistol, ali'hted fro" his car and fired a sin'le shot at co"plainant Noel Andres.1e #as a poor shot. /he sin'le bullet hit instead eliber Andres on the foreheadnear the te"poral re'ion above the left e)e and the splittin' "etallic shrapnels hitt#o innocent children on their faces, one on the chee& and the other belo# theleft e)e. /he intent to &ill Noel Andres #as evident #hen accused fired a#a) athi". Accused &ne# that his son #as not ph)sicall) threatened. $hether Noel Andres #as seated at the driverKs seat inside his vehicle #hen accused @on8alesfired, as the prosecution contends or #as standin' b) the door of the driverKs seatoutside his vehicle, as the defense sub"its, there is no ?uestion that the shot#as directed at co"plainant Noel Andres. 1o#ever, as heretofore stated, the

accused #as a poor shot. 1e "ade up b) ar"in' hi"self #ith a se"i-auto"aticpistol loaded #ith "ulti-"issile bullet that splintered li&e a shot'un bullet. 1is son#as not in dan'er. 1e &ne# that co"plainant could easil) be pacified #ithoutresortin' to shootin'. $hether accused over-reacted or he shot at Andres out ofra'e, one thin' appears clear to us= the accused deliberatel) shot co"plainantNoel Andres treacherousl) in cold blood. 1o#ever, it #as his #ife #ho #as fatall)hit in the head 5aberratio ictus6 and shrapnels hit t#o )oun' innocent children. B)an act of @od, she delivered a bab) 'irl alive but 'ave her life to 1i". /heshootin' #as a deliberate act of the accused. $e are convinced that the shootin'

#as attended b) treacher) that ?ualified the cri"e of "urder a''ravated b) theuse of a se"i-auto"atic pistol specificall) fitted #ith "urderous "issile. /hecri"e co""itted for the &illin' of eliber Andres #as "urder, ?ualified b)treacher) and a''ravated b) the use of firear". As re'ards the in9uries suffered b) the t#o children, #e a'ree #ith the olicitor@eneral that the cri"e co""itted #as t#o counts of frustrated ho"icide. /heintent to &ill #as evident #ith the use of deadl) #eapon speciall) loaded #ith"ulti-"issile bullets and such intent #as clearl) "ade "anifest b) the acts of theaccused undoubtedl) intended to &ill the victi"s. An e<a"ination of the testi"onies of the attendin' ph)sicians sho#ed that the#ounds sustained b) the t#o children fro" the "etallic fra'"ents "a) causedeath if left untreated. !ne of the attendin' ph)sicians testified that the fra'"entsthe"selves #ill not cause co"plications> ho#ever, it is the entr) of the fra'"entsor the open #ound that is susceptible to infection. /#o s"all fra'"ents #ere nolon'er e<tracted fro" the face of (evin Galde8 as the doctors dee"ed it to be#ithout dan'er of co"plication, but this could still be life threatenin'.None of the "iti'atin' circu"stances pleaded b) the accused #as convincin'l)proved to be attendant and none "a) be considered in the i"position of thepenalties.N &E" "HEREOF, I vote to affir" the decision of the trial Court findin'accused 'uilt) of MRDER, ?ualified b) treacher) and a''ravated b) the use of firear" for the &illin' of eliber Andres and sentencin' hi" to reclusion perpetua,#ith the accessor) penalties of the la#.or each count of frustrated ho"icide co""itted a'ainst (enneth Andres and(evin Galde8, the accused "ust be sentenced to the indeter"inate penalt) of ten5%6 )ears and one 5%6 da) of prison "a)or, as "ini"u", to seventeen 5%6 )earsand four 576 "onths of reclusion te"poral, as "a<i"u"> to inde"nif) theoffended parties (enneth Andres and (evin Galde8 in the a"ount of P*,.each.Foot#ote% Rolito @o v. Court of Appeals, *: CRA %3 L%++*.* /N, March %:, %+++, pp. %7-%> /N, ibid. pp. *-*3.7 Na"ed Ma. Clarisse. E<hibit 4B4, Autops) Report, older of E<hibits, p. *. "&ii: People v. Basco, 3% CRA :% L%+++> People v. Man'ahas, 3%% CRA 37L%+++> People v. Mallari, 3% CRA :*% L%+++> People v. u"alpon, *7 CRA

7:7 L%++. People v. Cabodoc, *:3 CRA % L%+++> People v. Malaba'o, *: CRA %+L%++> People v. Gillablanca, 3%: CRA %3 L%+++> People v. Marcelino, 3%:CRA %7 L%+++> People v. Bernas, 3+ CRA 7% L%+++> People v.Penaflorida, 3%3 CRA :3 L%+++> People v. Bautista, 3%* CRA 7 L%+++>People v. Molina, 3%* CRA %3 L%+++> People v. Bu"er, 3%+ CRA 3+ L%+++. Re'alado, Cri"inal 2a# Conspectus, * ed., p. +:> A?uino, Revised Penal

Code, Gol. II, %++ ed. p. 3.

Court=




ManilaEN BANC

G.R. No. L-32040 Otober 25, 1@77THE PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs.PE%RO P+G+L * M+RCELNO 6# (OSE TORCELNO * TOR+AO,defendants-appellants.*olicitor /eneral +eli, 0. Antonio Assistant *olicitor /eneral Crispin #. &autistaand *olicitor 'eonardo '. Cru6 for appellee.Ciriaco 'ope6 Jr. for appellants. CONCEPCON, JR. J.:

In Cri"inal Case No. CCC-GI- 56 of the Circuit Cri"inal Court of Manila, theaccused, Pedro Pa'al ) Marcelino and Fose /orcelino ) /ora8o #ere char'ed#ith the cri"e of robber) #ith ho"icide, co""itted as follo#s=

/hat on or about Dece"ber *:, %+:+, in the Cit) of Manila, Philippines,the said accused, conspirin' and confederatin' to'ether and "utuall)helpin' each other, did then and there #ilfull), unla#full) and feloniousl),#ith intent to 'ain, and b) "eans of violence, ta&e a#a) fro" the personof one @au @uan, cash a"ountin' Pl,*%.. Philippine currenc), to the

da"a'e and pre9udice of the said @au @uan in the said su" of Pl,*%.> that on the occasion of the said robber) and for the purpose of enablin' the" to ta&e, steal and carr) a#a) the said a"ount of P%,*%., the herein accused, in pursuance of their conspirac), did thenand there #ilfull), unla#full) and feloniousl), #ith intent to &ill and ta&in'advanta'e of their superior stren'th, treacherousl) attac&, assault anduse personal violence upon the said @au @uan, b) then and therestabbin' hi" #ith an icepic& and clubbin' hi" #ith an iron pipe ondifferent parts of his bod), thereb) inflictin' upon hi" "ortal #ounds#hich #ere the direct and i""ediate cause of his death thereafter.Contrar) to la#, and #ith the 'eneric a''ravatin' circu"stances of 5%6ni'hti"e purposel) sou'ht to better acco"plish their cri"inal desi'n> 5*6evident pre"editation> 536 in disre'ard of the respect due the offended

part)> and 576 #ith abuse of confidence, the accused bein' thene"plo)ees of the offended part). 1

$hen the case #as called for affai'"nent, counsel de oficio for the accusedinfo"red said court of their intention to enter a plea of 'uilt) provided that the) beallo#ed after#ards to prove the "iti'atin' circu"stances of sufficient provocationor threat on the part of the offended part) i""ediatel) precedin' the act, and thatof havin' acted upon an i"pulse so po#erful as to produce passion andobfuscation. 2 /herafter, the trial 9ud'e propounded to the" the ?uestions and theaccused 'ave the ans#ers ?uoted hereunder= :;<.=>wph)1

Court=our la#)er here has "anifested )our desire to enter a plea of 'uilt) to the offense char'ed, robber) #ith ho"icide. Do )ou&no# that b) a'reein' to that "anifestation of )our la#)er, )ou#ill be ad"ittin' the co""ission of the cri"e char'ed Accused=$e a'ree, )our honor, to #hat our la#)er said, but #e #ould li&eto e<plain so"ethin'.Court=our la#)er here has stated that )ou #ill still prove "iti'atin'circu"stances. Is that #hat )ou li&e to e<plain Accused=es, )our honor.Court=If that is the case, I #ill 'ive )ou a chance. Accused=es, )our honor.Court=Do )ou &no# that b) a'reein' to that "anifestation, )ou #ill bead"ittin' the co""ission of the cri"e char'ed, robber) #it,.ho"icide Accused=es, )our honor.Court= And for #hich this court "i'ht sentence )ou to death or lifei"prison"ent Accused=es, )our honor.Court= And not#ithstandin' #hat is e<plained to )ou, )ou still insist in)our desire to enter a plea of 'uilt) to the offense char'ed Accused=es, )our honor.Court=H Not#ithstandin' a'ain the #arnin' of the court that the"a<i"u" penalt) i"possable is death

A es, )our honor.Court= Arrai'n the accused.

5At this sta'e, both accused #ere arrai'ned and both pleaded 'uilt) tothe offense char'ed6. 3

/hereafter, the accused presented evidence to prove the "iti'atin'circu"stances of sufficient provocation on the part of the victi" i""ediatel)precedin' the act and actin' upon an i"pulse so po#erful as to produce passionand obfuscation. After the accused had rested their case, the prosecution

presented the state"ents 4 of the accused, and other pertinent docu"ents should have been esti"ated in their favor, because the death of the victi" therein



p , pre'ardin' the investi'ation of the case. 5

After the trial, the court a quo rendered its decision, the dispositive portion of #hich reads as follo#s= :;<.=>wph)1

$1ERE!RE, both accused are hereb) found 'uilt) be)ondreasaonable doubt as principals of the cri"e of robber) #ith ho"icideand there bein' proven the a''ravatin' circu"stances of ni'htti"e,evident pre"editation and disre'ard of respect due the offended part)offset onl) b) the "iti'atin' circu"stance of their plea of 'uilt),sentences each one of the" to DEA/1, 9ointl) and severall) inde"nif)the heirs of the deceased @au @uan> P%,. for "oral da"a'es>

P%,. for e<e"plar) da"a'es, all a"ounts to bear interest untilthe) shall have been full) paid> the su" of P%,*%. represntin' thea"ount ta&en fro" the victi"> and to pa) proportionatel) the costs. <

/he case is no# before this Court for "andator) revie# on account of the deathpenalt) i"posed upon the accused./he appellant Pedro Pa'al contends that the trial court erred in convictin' hi" of the cri"e of robber) #ith ho"icide instead of declarin' hi" liable onl) for hisindividual acts, clai"in' that the record is bereft of an) proof or evidence that heand his co-appellant Fose /orcelino conspired to co""it the cri"e of robber) #ithho"icide./he appellant0s position is not #ell-ta&en. 1is denial of conspirac) #ith his co-appellant Fose /orcelino cannot be 'iven credence in vie# of the clear andconvincin' confession of his 'uilt in his state"ent 7 si'ned b) hi" before thepolice investi'ators several hours after the co""ission of the cri"e. Besides,#hen he pleaded 'uilt) to the char'e, he is dee"ed to have ad"itted all the"aterial facts alle'ed in the infor"ation. ' B) his plea, the appellant ad"itted notonl) the co""ission of the cri"e but also the circu"stances surroundin' itsco""ission, includin' the alle'ations of conspirac). A plea of 'uilt) #hen for"all)entered on arrai'n"ent, is sufficient to sustain a conviction even for a capitaloffense #ithout the introduction of further evidence, @ the re?uisite proofs havin'been supplied b) the accused hi"self. 10 $e find, therefore, that the trial court didnot co""it an) error in convictin' the appellant Pedro pa'al of the cri"e of robber) #ith ho"icide./he appellants further assail the trial court in not appreciatin' in their favor the"iti'atin' circu"stances of sufficient provocation, and passion or obfuscation.

A'ain, the appeflants0contention is devoid of "erit. irstl), since the alle'edprovocation #hich caused the obfuscation of the appellants arose fro" the sa"eincident, that is, the alle'ed "altreat"ent andor ill-treat"ent of the appellants b)the deceased, these t#o "iti'atin' circu"stances cannot be considered as t#odistinct and separate circu"stances but should be treated as one. 11 econdl),the circu"stance of passion and obfuscation cannot be "iti'atin' in a cri"e#hich Q as in the case at bar Q is planned and cal"l) "editated before itse<ecution. /hus, in People vs. %aos, 12 a case of robber) #ith ho"icide, thisCourt re9ected the clai" of the appellants therein that passion and obfuscation

,too& place on the occasion of a robber), #hich, before its e<ecut,.on, had beenplanned and cal"l) "editated b) the appellants. /hirdl), the "altreat"ent thatappellants clai" the victi" to have co""itted a'ainst the" occurred "uch earlier than the date of the co""ission of the cri"e. Provocation in order to be a"iti'atin' circu"stance "ust be sufficient and i""ediatel) proceedin' the act.$e hold that the trial court did not co""it an) error in not appreciatin' the said"iti'atin' circu"stances in favor of the appellants.inall), the appellants clai" that the trial court erred in considerin' thea''ravatin' circu"stances of ni'htti"e, evident pre"editation, and disre'ard of the respect due the offended part) on account of his ran& and a'e.

Althou'h the trial court correctl) considered the a''ravatin' circu"stance of nocturnit) because the sa"e #as purposel) and deliberatel) sou'ht b) thea,6pellants to facilitate the co""ission of the cri"e, nevertheless, $e disa'ree#ith its conclusion that evident pre"editation and disre'ard of the respect duethe offended part) #ere present in the co""ission of the cri"e.Evident pre"editation is inherent in the cri"e of robber). 13 1o#ever, in the cri"eof robber) #ith ho"icide, if there is evident pre"editation to &ill besides stealin',it is considered as an a''ravatin' circu"stance. 14 In other #ords, evidentpre"editation #ill onl) be a''ravatin' in a co"ple< cri"e of robber) #ithho"icide if it is proved that the plan is not onl) to rob, but also to &ill. 15 In thecase at bar, a perusal of the #ritten state"ents 1< of the appellants before thepolice investi'ators sho# that their ori'inal plan #as onl) to rob, and that, the)&illed the deceased onl) #hen the latter refused to open the 4&aha de )ero4, andfou'ht #ith the". /he trial court, therefore, erred in ta&in' into consideration thea''ravatin' circu"stance of evident pre"editation./he a''ravatin' circu"stance that the cri"e #as co""itted #ith insult or indisre'ard of the respect due the offended part) on account of his ran&, a'e or se<"a) be ta&en into account onl) in cri"es a'ainst persons or honor, #hen in theco""ission of the cri"e there is so"e insult or disrespect sho#n to ran&, a'e, or se<. 17 lt is not proper to consider this a''ravatin' circu"stance in cri"es a'ainstpropert). 1' Robber) #ith ho"icide is pri"aril) a cri"e a'ainst propert) and nota'ainst persons. 1o"icide is a "ere incident of the robber), the latter bein' the"ain purpose and ob9ect of the cri"inal. 1@ /he trial court erred in ta&in' intoaccount this a''ravatin' circu"stance.It results that in the co""ission of the cri"e, there is onl) 'eneric a''ravatin'

circu"stance, i.e., ni'htti"e or nocturnit).Robber) #ith ho"icide is punished b) reclusion perpetua to death. 20 ince thea''ravatin' circu"stance of ni'htti"e is offset b) the "iti'atin' circu"stance of plea of 'uilt), the lesser penalt), #hich is reclusion perpetua, should be i"posedupon the appellants. 21

ACC!RDIN@2, the 9ud'"ent of the trial court is "odified and the appellntsPedro Pa'al ) Marcelino and Fose /orcefino ) /ora8o are hereb) sentenced tosuffer each the penalt) of reclusion perpetua. In all other respects, the 9ud'"entof the trial court is affir"ed. $ith costs a'ainst the appellants.

! !RDERED. %+ !id , Gol. III, %+: Ed., p. %737, citin' .. vs. Ipil, * Phil. 3, 3.



Castro C.J. +ernando Aquino 7artin *antos +ernande6 and /uerrero JJ.concur.1?wph@1.:t Teehan(ee and 7a(asiar JJ. concur in the result. Antonio J. too( no part. Sep6r6te Op#o#$MUBOA P+LM+, J., concurin'=I #ould state ho#ever that the rulin's in People vs. Parete and People vs.antos, et al., cited in pa'e of the !pinion "ust be ta&en in con9unction #ithrecent 9urisprudence that e<tra solicitous care is re?uired in the ad"ission of a

plea of 'uilt) and that the ta&in' of testi"on) and other evidence not#ithstandin'a plea of 'uilt) is the prudent and proper course to follo# b) trial 9ud'es. 5Peoplevs. Gillafuerte, March *, %+7, citin' nu"erous cases> People vs. 1ondolero, Au'ust *, %+:6. /hese safe'uards appear to have been ta&en in the instantcase.

!+RRE%O, J., concurrin'=$hile I a" not full) satisfied that appellants #ere entirel) a#are of the "eanin'of their plea of 'uilt), I find that the rebuttal evidence of the prosecution provedtheir 'uilt, #hich evidence the appellants did not dispute. Foot#ote$% p. *, Record.* p. 3, t.s.n., Fanuar) , %+.3 pp. 3-7, t.s.n., Fanuar) , %+.7 E<hibits 4A4 U 4B4, pp. 7, , Record. E<hibits 4C4, 4D4, 4E4, 44 and 4%4, pp. +, %, %%, %7, %, Record.: pp. *:-*, Record. E<hibit 4B4, supra. People vs. Roldan, 2-**3, Ma) *+, %+:, *3 CRA +> People vs. Arpa, 2-*:+, April *, %+:+, *+ CRA %3.+ People vs. Perete, % CRA %*+.% People vs. antos and Gicente, %3 Phil. 7.%% People vs. Re)es, 2-33%7, ebruar) *, %+:, :+ CRA 77.%* : Phil. %73.

%3 .. vs. Blanco, % Phil. *+> People vs. Daos, : Phil. %73> People vs.Pulido, Phil. :+> People vs. Galeriano, + phil. %.%7 People vs. Nabual, 2-%*, Ful) %7, %+:+, * CRA 7.% People vs. Atencio, 2-**%3, Fan. %, %+:, ** CRA .%: E<hibits 4A4 and 4B4, pp. 7, , Record.% Albert, Revised Penal Code, %+7: Ed., p. %+> Re)es, Revised Penal Code,%+7 Ed., Gol. I, p. *+.% A?uino, Revised Penal Code, %+: Ed., Gol. I, p. *:, citin' .. vs. a"onte, Phil. *:.

* Article *+7, par % revised Penal Code.*% Article :3, 576 and 5*6, Revised Penal Code.

R bli f th Phili iC!N/RAR to Article *7+ of the Revised Penal Code.




ManilaEC!ND DIGII!N

G.R. No. 1'2750 (6#)6r* 20, 200@RO%EL UR!+NO, Petitioner,vs.PEOPLE OF THE PHLPPNES, Respondent.

D E C I I ! N&EL+SCO, (R., J.:

/his petition for revie# under Rule 7 see&s to reverse and set aside theDecision% dated Fanuar) *, * of the Court of Appeals 5CA6 in [email protected]. CRNo. *3% #hich affir"ed #ith "odification the April 3, *% Decision* of theRe'ional /rial Court 5R/C6, Branch 3+ in 2in'a)en, Pan'asinan in Cri"inal CaseNo. 2-*. /he R/C found petitioner Rodel rbano 'uilt) be)ond reasonabledoubt of the cri"e of 1o"icide.

Te F6t$In an Infor"ation filed before the R/C, petitioner #as char'ed #ith 1o"icide,co""itted as follo#s=

/hat on or about the *th of epte"ber %++3 in the evenin', in Baran'a)Poblacion, Municipalit) of 2in'a)en, Province of Pan'asinan, Philippines and#ithin the 9urisdiction of this 1onorable Court, the above-na"ed accused, #ithintent to &ill, did then and there #illfull), unla#full) and feloniousl) attac&, assault,hit and "aul Bri'ido /o"elden, inflictin' upon hi" "ortal in9uries and as borneout fro" the autops) report the follo#in' findin's=

E/ERNA2 INDIN@= A- oftened portion of the scalp over 5R6 occipito-te"poral area about inchesabove and posterior to the 5R6 ear.B- Clotted blood over the 5R6 occipito-te"poral area.C- No lacerations noted.

IN/ERNA2 INDIN@= A- !n openin' the s&ull there is oo8in' of dar& colored blood fro" the brain

substances.B- More dar&ed blood vessels at the 526 side of the brain.

CAE ! DEA/1=Cardio-respirator) arrest secondar) to cerebral concussion #ith resultant cerebralhe"orrha'e due to "aulin' incident.$hich directl) caused his death, to the da"a'e and pre9udice of the heirs of thesaid Bri'ido /o"elden.

Petitioner, #hen arrai'ned, pleaded not 'uilt) to the char'e. ollo#in' the partiesK#aiver of pre-trial, trial on the "erits then ensued.

As su""ari8ed in the decision sub9ect of revie#, the prosecutionKs evidenceestablished the follo#in' facts=

!n epte"ber *, %++3, at around = p."., the victi" Bri'ido /o"elden andpetitioner #ere at the co"pound of the 2in'a)en $ater District 52I$AD6 in2in'a)en, Pan'asinan, havin' 9ust arrived fro" a picnic in the nearb) to#n of

Bu'allon, Pan'asinan, #here, #ith so"e other co-#or&ers, the) drun& beer in arestaurant. $hile inside the co"pound, the t#o had a heated altercation in thecourse of #hich /o"elden hurled insultin' re"ar&s at petitioner. Reactin',petitioner as&ed #h) /o"elden, #hen drun&, has the penchant of insultin'petitioner./he e<chan'e of #ords led to an e<chan'e of blo#s. Cooler heads succeeded inbrea&in' up the fi'ht, but onl) for a brief "o"ent as the prota'onists refused tobe pacified and continued thro#in' fist blo#s at each other. /hen petitioner delivered a 4luc&) punch,4 as described b) e)e#itness !r9e ala8ar, on/o"eldenKs face, #hich "ade /o"elden topple do#n. /o"elden #as on thever'e of hittin' his head on the 'round had their co"panions not cau'ht hi" andprevented the fall. /he blo#, ho#ever, caused /o"eldenKs nose to bleed andrendered hi" unconscious.Petitioner and his other co-#or&ers brou'ht /o"elden to the office of the 2I$AD'eneral "ana'er #here he spent the ni'ht. 1e re"ained in the co"pound thefollo#in' da), epte"ber *+, %++3. pon arrivin' ho"e at around := p.". of that da), /o"elden infor"ed his #ife, Rosario, of the fi'ht the previous ni'ht andof his havin' been rendered unconscious. 1e co"plained of pain in his nape,head, and ear #hich i"pelled Rosario to i""ediatel) brin' hi" to the 2in'a)enCo""unit) 1ospital #here Dr. Dais) Arellano e<a"ined hi" and treated hislacerated left inde< fin'er, contusions, and he"ato"a at the ri'ht cerebru".!n !ctober * and , %++3, /o"elden #ent bac& to the hospital co"plainin' of di88iness, headache, and other pains. /he attendin' doctors observed the patientto be in a state of dro#siness and fre?uent vo"itin'. !n !ctober , %++3,Rosario brou'ht /o"elden to the ison Me"orial Provincial 1ospital in Da'upan

Cit), #here the attendin' ph)sician, Dr. Ra"on Ra"os, dia'nosed /o"eldensufferin' fro" 4brain in9ur), secondar) to "aulin' to consider cerebralhe"orrha'e.43

/o"elden #as confined in the provincial hospital until 3= p.". of !ctober %,%++3, and, due to financial constraints, #as thereafter dischar'ed despite si'nsne'atin' ph)sical condition i"prove"ent. pon reachin' their house, ho#ever,/o"elden a'ain co"plained of e<tre"e head pain, pro"ptin' his #ife to brin'hi" bac& to the 2in'a)en Co""unit) 1ospital #here Dr. Arellano a'ain attendedto hi". /his ti"e, thin's turned for the #orst, the doctor notin' that /o"elden

appeared to be se"i-conscious, sleep), uncooperative, and not respondin' toti l t / ld di d t + f th t d d D A ll t

ollo#in' the denial of petitionerKs "otion for reconsideration, per the CAR l ti f A il *7 * h i t d thi titi



an) sti"ulant. /o"elden died at += p.". of that da) due, per Dr. Arellano, to4cardio-respirator) arrest secondar) to cerebral concussion #ith resultantcerebral he"orrha'e due to "aulin' incident.4/he defense presented petitioner #ho denied havin' an) intention to &ill,assertin' that h)pertension, for #hich /o"elden #as receivin' treat"ent, #as thecause of the latterKs death.

/he Rulin' of the R/C

!n April 3, *%, the R/C rendered 9ud'"ent findin' petitioner 'uilt) as

char'ed. /he fallo of the R/CKs decision reads=

$1ERE!RE, the prosecution havin' established be)ond reasonable doubt the'uilt of the accused of the cri"e of 1!MICIDE as defined and penali8ed under Art. *7+ of the Revised Penal Code, this Court in the absence of an) "odif)in'circu"stances, hereb) sentences said accused to suffer the indeter"inate prisonter" of ei'ht 56 )ears and one 5%6 da) of Prision Ma)or as "ini"u" toseventeen 5%6 )ears and four 576 "onths of Reclusion /e"poral as "a<i"u"and to inde"nif) the le'al heirs of the victi" in the a"ount of P1P,., pluscost of the suit./he period of preventive i"prison"ent suffered b) the accused shall be creditedin full in the service of his sentence in accordance #ith Art. *+ of the RevisedPenal Code.7

/herefro", petitioner appealed to the CA, his recourse doc&eted as [email protected]. CRNo. *3%.

/he Rulin' of the CA

!n Fanuar) *, *, the CA rendered a decision, affir"in' the conviction of petitioner, but a#ardin' "oral da"a'es to the heirs of /o"elden, disposin' asfollo#s=

$1ERE!RE, in the li'ht of the fore'oin', the appeal of the accused-appellantis DIMIED. /he decision appealed fro" is AIRMED #ith M!DIICA/I!Nthat an a#ard of P,. "oral da"a'es is @RAN/ED.

Re"and of the records should i""ediatel) follo# finalit) for the conse?uente<ecution of the decision.

/he appellate court held that the co""ission b) petitioner of the cri"e of ho"icide, as defined and penali8ed under Article *7+: of the Revised Penal Code5RPC6, had been proved be)ond "oral certaint) of doubt, pointin' to the luc&)punch as the pro<i"ate cause of /o"eldenKs hospitali8ation and ulti"atel) hisdeath. And li&e the R/C, the CA found no ?ualif)in' circu"stance to increase or lo#er the penalt).

Resolution of April *7, *, he interposed this petition.

/he Issues

!n essentiall) the sa"e issues raised before the CA, petitioner no# ur'es theCourt to set aside the appealed decision, or at least "odif) it, "aintainin' that theappellate court=I. < < < erred in affir"in' the decision of the LR/C findin' Lhi" 'uilt) be)ondreasonable doubt of the cri"e char'ed.II. < < < erred in not appreciatin' the "iti'atin' circu"stances of sufficient

provocation on the part of the victi" and lac& of intent to co""it so 'rave a#ron' in favor of the petitioner.

Te Co)rt/$ R)#:

/he petition is partl) "eritorious.Home %)* ProeIt is petitionerKs threshold posture that the fistic in9ur) /o"elden sustained #asnot 4the "ain underl)in' cause of his death.4 + In this re'ard, petitioner dra#sattention to the fact that the fist fi'ht in ?uestion happened on epte"ber *,%++3. /o"elden, ho#ever, died onl) on !ctober %, %++3 or %* da)s thereafter and that, durin' the intervenin' da)s, particularl) epte"ber *+, %++3, thedeceased re'ularl) reported for #or&. Moreover, petitioner avers that da)s prior to the fateful incident of epte"ber *, %++3, /o"elden failed to co"e to #or& ashe #as sufferin' fro" "ali'nant h)pertension and that this circu"stance 'reatl)en'enders doubt as to the pro<i"ate cause of the victi"Ks death. Petitioner, thus,contends that he could onl) be ad9ud'ed 'uilt) of ph)sical in9uries.%

$e are not persuaded./he prosecution #itness, ala8ar, testified about petitionerKs luc&) punch hittin'/o"elden ri'ht s"ac& on the face. And even if /o"eldenKs head did not hit the'round as his co-#or&ers averted that actualit), that punch 'ave hi" a bleedin'nose and rendered hi" unconscious ri'ht after the epte"ber *, %++3 fi'ht.ro" then on, /o"elden #as in and out of the hospital co"plainin' of headache,a"on' other pains, until his de"ise on !ctober %, %++3, or %* da)s after theblo# that "ade /o"elden unconscious.i'nificantl), Dr. Arellano testified conductin' an autops) on the bod) of /o"elden and stressed that the 4softened portion of the scalp over 5R6 occipito-te"poral area about inches above and posterior to the 5R6 ear4 of the victi"could have been caused b) a fist blo#. he also opined that the fist blo# #hichlanded on /o"eldenKs head could have sha&en his brain #hich caused thecerebral concussion> and that the cause of the victi"Ks death #as 4cardio-respirator) arrest secondar) to cerebral concussion #ith resultant cerebralhe"orrha'e due to "aulin' incident.4/he co"bined effects of the testi"onies of ala8ar and Dr. Arellano, buttressed

b) that of Rosario #ho related about her husbandKs post epte"ber *, %++3severe head pain clearl) establish be)ond cavil the cause of /o"eldenKs death

576 #hen even if a provocation #as 'iven b) the person defendin' hi"self, it #asnot pro<i"ate and i""ediate to the act of a''ression %:



severe head pain, clearl) establish be)ond cavil the cause of /o"elden s deathand #ho #as liable for it./he CA observed aptl)=It #as throu'h the direct accounts of the prosecution #itnesses of the events thattranspired durin' the fisticuff incident < < < "ore specificall) the landin' of the4luc&) punch4 on the face of L/o"elden, ta&en to'ether #ith the result of the"edical e<a"inations and autops) report #hich described the death of the victi"as 4cardio-respirator) arrest secondar) to cerebral concussion #ith resultantcerebral he"orrha'e due to "aulin' incident4 that #e are convinced that the4luc&) punch4 #as the pro<i"ate cause of L/o"eldenKs death. /he prosecution

had satisfactoril) proven that it #as onl) after the incident that transpired onepte"ber *, %++3 that the victi" #as hospitali8ed on several occasions untilhe e<pired, t#elve da)s later < < <. It is "oreover of no conse?uence #hether thevicti" #as able to report for #or& durin' the intervenin' da)s < < <.$e find no reason to depart fro" the doctrinal rule that 'reat #ei'ht is accordedthe factual findin's of the trial court, particularl) #ith respect to the ascertain"entof the credibilit) of #itnesses. /here #as absence of an) ill "otive on the part of < < < ala8ar #ho in fact testified that he #as a friend of both Lpetitioner andL/o"elden> "ore so on the part of the attendin' ph)sicians.%% < < <PetitionerKs su''estion that /o"elden succu"bed to heart ail"ent andor that hisdeath #as the result of his "ali'nant h)pertension is untenable, 'iven that thepost-"orte" report )ields no positive indication that he died fro" such "alad).

Mt:6t#: Cr)m$t6#e$ Pre$e#tPetitioner ne<t contends that the "iti'atin' circu"stances of no intention toco""it so 'rave a #ron' and sufficient provocation on the part of the victi"ou'ht to be appreciated in petitionerKs favor.!n this score, #e a'ree #ith petitioner.Para'raphs 3 and 7 of Art. %3, RPC provide as follo#s= Art. %3. Miti'atin' circu"stances./he follo#in' are "iti'atin' circu"stances=< < < <3. /hat the offender had no intention to co""it so 'rave a #ron' as thatco""itted.7. /hat sufficient provocation or threat on the part of the offended part)i""ediatel) preceded the act.$hen the la# spea&s of provocation either as a "iti'atin' circu"stance or as anessential ele"ent of self-defense, the reference is to an un9ust or i"proper conduct of the offended part) capable of e<citin', incitin', or irritatin' an)one> %* itis not enou'h that the provocative act be unreasonable or anno)in'>%3 theprovocation "ust be sufficient to e<cite one to co""it the #ron'ful act %7 andshould i""ediatel) precede the act.% /his third re?uisite of self-defense ispresent= 5%6 #hen no provocation at all #as 'iven to the a''ressor> 5*6 #hen,even if provocation #as 'iven, it #as not sufficient> 536 #hen even if theprovocation #as sufficient, it #as not 'iven b) the person defendin' hi"self> or

not pro<i"ate and i""ediate to the act of a''ression.%:

In the instant case, /o"eldenKs insultin' re"ar&s directed at petitioner anduttered i""ediatel) before the fist fi'ht constituted sufficient provocation. /his isnot to "ention other irritatin' state"ents "ade b) the deceased #hile the) #erehavin' beer in Bu'allon. Petitioner #as the one provo&ed and challen'ed to a fistfi'ht.PetitionerKs unrebutted testi"on) on the events i""ediatel) precedin' thefisticuff and earlier dovetails #ith the testi"on) of ala8ar.In 'ist, petitioner testified bein', in the afternoon of epte"ber *, %++3, in thenearb) to#n of Bu'allon for a picnic. 1e #as #ith /o"elden and several others,

includin' Do"inador Navarro, Chairperson of 2I$AD. At a restaurant in Bu'allon,the 'roup ordered 'oatKs "eat and dran& beer. $hen it #as ti"e to depart,Navarro as&ed petitioner to infor" /o"elden, then seated in another table, toprepare to leave.$hen so infor"ed, /o"elden insulted petitioner, tellin' the latter he had nobusiness stoppin' hi" fro" further drin&in' as he #as pa)in' for his share of thebill. Chastised, petitioner returned to his table to report to Navarro. At that ti"e,petitioner sa# that /o"elden had alread) consu"ed % bottles of beer. In all, the'roup sta)ed at the picnic place for three and a half hours before returnin' to the2I$AD.pon reachin' the 2I$AD co"pound, /o"elden alle'edl) slapped and hurledinsults at hi", callin' hi" 4sipsip4 9ust to "aintain his e"plo)"ent as NavarroKstric)cle driver. /o"elden alle'edl) then delivered several fist and &ic& blo#s atpetitioner, a couple of #hich hit hi" despite his evasive actions. Petitioner "aintained that he onl) bo<ed the victi" in retaliation, landin' that luc&) punch inthe course of parr)in' the latterKs blo#s./he follo#in' testi"on) of ala8ar attests to the provocative acts of /o"eldenand to his bein' the a''ressor=PR!EC/!R C1I!N@H After )ou heard fro" the accused those re"ar&s, #hat if an) did the victi"replied if an)$I/NE A /he) e<chan'ed an'r) #ords, sir.H $hat #ere these #ords A Rodel rbano said, 4"e# *o)/re 6re6* r)#8, *o) 8eep o# #$)t#:me.4H And #hat #as the repl) if an) A TA&ina tua lanti4.PR!. C1I!N@H $ho said that$I/NE A It #as Bri'ido /o"elden, sir.H And #hat transpired ne<t A After that the) e<chan'e #ords, sir. 4 If )ou li&e #e #ill have a fist fi'ht4 he said.

H $ho said thatA Bri'ido /o"elden said

"iti'atin' factor "a) still be considered #hen attendant facts and circu"stancesso #arrant as in the instant case Consider= Petitioner tried to avoid the fi'ht



A Bri'ido /o"elden said.H At that ti"e, #ere )ou alread) inside the co"pound of the 2I$AD A es, sir.H After the victi" alle'edl) told the accused, 4If )ou #ant a fist fi'ht,4 #hattranspired ne<t A Rodel rbano said, 4if it is a fist fi'ht #e fi'ht.4%

H And #hen )ou #ere alread) in the co"pound of 2I$AD !ffice, !r:oTomee# 96$ 6e#:#: te 6)$e or 6 $t :t A es, sir.H And the 6)$e re)$e to 6ept te 6e#:e

A es be6)$e Mr. !r:o Tomee# $ er* m) b::er t6# Mr. RoeUrb6#o. He $ $to)ter t6# te 6)$e.H But finall) the fist fi'ht too& place A es, sir.%

PR!. C1I!N@H $hen the victi" and this accused had this fi'ht, fist fi'ht, the) e<chan'edblo#s, but there #as this luc&) punch that hit the victi" because the victi" falldo#n, is that correct A $hen I stop pacif)in' the" < < <, I sa# Birin' the late !r:o Tomee#, e96$ m) 6::re$$e t6# te 6)$e,sir.H ou "ean that althou'h it #as the victi"#ho #as "ore a''ressive than the accused

here, he also Lthre# punches but so"eti"e so"e of his punches "ost of #hichdid not hit the victi" A 1e tried to parr) the blo#s of the late Bri'ido /o"elden, sir.H Because he tried to parr) the blo# of the Bri'ido /o"elden, #hen the accusedthro# punches, the punch #as directed to the victi" but "ost of the" did not hitthe victi", is that #hat )ou sa# A es, sir.%+ 5E"phasis added.6It is abundantl) clear fro" the above transcript that the provocation ca"e fro"/o"elden. In fact, petitioner, bein' ver) "uch s"aller in hei'ht and heft, had the'ood sense of tr)in' to avoid a fi'ht. But as events turned out, a fisticuff stillensued, suddenl) endin' #hen petitionerKs luc&) punch found its "ar&. In Peoplev. Macaso,* a case #here the accused police officer shot and &illed a "otorist for repeatedl) tauntin' hi" #ith defiant #ords, the Court appreciated the "iti'atin'circu"stance of sufficient provocation or threat on the part of the offended part)i""ediatel) precedin' the shootin'. /he Court had the sa"e attitude in Navarrov. Court of Appeals,*% a case also involvin' a police"an #ho &illed a "an after the latter challen'ed hi" to a fi'ht. 1ence, there is no rh)"e or reason #h) thesa"e "iti'atin' circu"stance should not be considered in favor of petitioner.Moreover, the "iti'atin' circu"stance that petitioner had no intention to co""itso 'rave a #ron' as that co""itted should also be appreciated in his favor.$hile intent to &ill "a) be presu"ed fro" the fact of the death of the victi", this

so #arrant, as in the instant case. Consider= Petitioner tried to avoid the fi'ht,bein' ver) "uch s"aller than /o"elden. 1e tried to parr) the blo#s of /o"elden,albeit he #as able, durin' the scuffle, to connect a luc&) punch that ended thefi'ht. And lest it be overloo&ed, petitioner helped carr) his unconscious co-#or&er to the office of the 2I$ADKs 'eneral "ana'er. urel), such 'esture cannotreasonabl) be e<pected fro", and #ould be unbeco"in' of, one intendin' toco""it so 'rave a #ron' as &illin' the victi". A bare-&nuc&le fi'ht as a "eans toparr) the challen'e issued b) /o"elden #as co""ensurate to the potentialviolence petitioner #as facin'. It #as 9ust unfortunate that /o"elden died fro"that luc&) punch, an eventualit) that could have possibl) been averted had he

had the financial "eans to 'et the proper "edical attention. /hus, it is clear thatthe "iti'atin' circu"stance of 4no intention to co""it so 'rave a #ron' as thatco""itted4 "ust also be appreciated in favor of petitioner #hile findin' hi" 'uilt)of ho"icide. /hat petitioner landed a luc&) punch at /o"eldenKs face #hile their co-#or&ers #ere tr)in' to separate the" is a co"pellin' indiciu" that he never intended so 'rave a #ron' as to &ill the victi".$ithal, #ith no a''ravatin' circu"stance and t#o "iti'atin' circu"stancesappreciable in favor of petitioner, #e appl) par. of Art. :7, RPC, #hichpertinentl) provides=

Art. :7. Rules for the application of penalties #hich contain three periods.In cases in #hich the penaltiesprescribed b) la# contain three periods,

#hether it be a sin'le divisible penalt) or co"posed of three different penalties,each one of #hich for"s a period in accordance #ith the provisions of Articles :and , the courts shall observe for the application of the penalt) the follo#in'rules, accordin' to #hether there are or are no "iti'atin' or a''ravatin'circu"stances=< < < <. $hen there are t#o or "ore "iti'atin' circu"stances and no a''ravatin'circu"stances are present, the court shall i"pose the penalt) ne<t lo#er to thatprescribed b) la#, in the period that it "a) dee" applicable, accordin' to thenu"ber and nature of such circu"stances./he prescribed penalt) for ho"icide under Art. *7+ of the RPC is reclusionte"poral or fro" %* )ears and one da) to * )ears. $ith the appreciation of t#o"iti'atin' circu"stances of no intention to co""it so 'rave a #ron' as thatco""itted and of sufficient provocation fro" the victi", and the application of par. of Art. :7, RPC, the i"posable penalt) #ould, thus, be the ne<t lo#er penalt) prescribed for ho"icide and this should be prision "a)or or fro" si<)ears and one da) to %* )ears. Conse?uentl), #ith the application of theIndeter"inate entence 2a#, petitioner ou'ht to be incarcerated fro" prisioncorreccional as "ini"u" and prision mayor as "a<i"u". In vie# of thecircu"stances of the case, considerin' that the petitioner never "eant or intended to &ill the victi", a prison ter" of ei'ht 56 )ears and one 5%6 da) of

CONCHT+ C+RPO MOR+LES Associate Fustice

%+NTE O. TNG+ Associate Fustice

prision mayor as "a<i"u" period is proper #hile the period of t#o 5*6 )ears andfour 576 "onths of prision correccional as "ini"u" period is reasonable

: Art. *7+. 1o"icide.An) person #ho, not fallin' #ithin the provisions of Art.*7: shall &ill another #ithout the attendance of an) of the circu"stances



four 576 "onths of prision correccional as "ini"u" period is reasonable.$e find no reason to "odif) the a#ard of civil inde"nit) and "oral da"a'es.$1ERE!RE, the CA Decision dated Fanuar) *, * in [email protected]. CR No.*3% is, in the li'ht of the presence and the appreciation of t#o "iti'atin'circu"stances in favor of petitioner, hereb) MO%FE% b) decreasin' the ter" of i"prison"ent. As thus "odified, petitioner Rodel rbano is hereb) sentenced toserve an indeter"inate prison ter" of fro" t#o 5*6 )ears and four 576 "onths of prision correccional , as "ini"u", to ei'ht 56 )ears and one 5%6 da) of prisionmayor , as "a<i"u", #ith #hatever i"prison"ent he has alread) served full)credited in the service of this sentence. /he rest of the 9ud'"ent is hereb)

+FFRME%.No pronounce"ent as to costs.! !RDERED.

PRES!TERO (. &EL+SCO, (R. Associate Fustice

$E C!NCR=LEON+R%O +. ?USUM!NG

Associate FusticeChairperson

+RTURO %. !RON Associate Fustice

A / / E / A / I ! NI attest that the conclusions in the above Decision had been reached in

consultation before the case #as assi'ned to the #riter of the opinion of theCourtKs Division.


ChairpersonC E R / I I C A / I ! N

Pursuant to ection %3, Article GIII of the Constitution, and the DivisionChairpersonKs Attestation, I certif) that the conclusions in the above Decision hadbeen reached in consultation before the case #as assi'ned to the #riter of theopinion of the CourtKs Division.

RE>N+TO S. PUNOChief Fustice

Foot#ote$% Rollo, pp. :-%%. Penned b) Associate Fustice Apolinario D. Bruselas, Fr. andconcurred in b) Associate Fustices Bienvenido 2. Re)es and Monina Arevaloenarosa.* Id. at %-:. Penned b) Fud'e Dionisio C. ison.3 Id. at +.7 upra note *, at +-:. upra note %, at %.

*7:, shall &ill another #ithout the attendance of an) of the circu"stancesenu"erated in the ne<t precedin' article, shall be dee"ed 'uilt) of ho"icide andbe punished b) reclusion te"poral. Rollo, p. %%. Id. at %.+ Id. at %.% Id. at %+.%% upra note %, at +:-+.%* Navarro v. Court of Appeals, @.R. No. %*%, Au'ust *:, %+++, 3%3 CRA%3, %::> citin' Pepito v. CA, @.R. No. %%++7*, Ful) , %+++, 3% CRA %*.%3 Cano v. People, @.R. No. %*, !ctober , *3, 7%3 CRA +*, %> citin' % A?uino, Revised Penal Code %%: 5%++6.%7 Navarro, supra> citin' People v. Nabora, 3 Phil. 737 5%+7%6.% Id.> citin' People v. Pa'a, No. 2-3*7, !ctober *, %+, + CRA .%: Cano, supra note %3> citin' % 2.B. Re)es, /he Revised Penal Code %+-%5%7th revised ed., %++6.% /N, Nove"ber *, %++, pp. :-.% /N, Dece"ber %, %++, p. 7.%+ /N, Fanuar) 3%, *, pp. *%-**.* No. 2-37+, Fune 3, %+, :7 CRA :+.*% upra note %*.


order4 ni Co""issioner ubido a) inapela &o sa Civil ervice Board of Appeals.




Manila

G.R. No. L-32042 %eember 17, 1@7<THE PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs.+L!ERTO !ENTO * RESTU!OG accused-appellant.

R E ! 2 / I ! N+?UNO, J.:

Alberto Benito #as sentenced to death b) the Circuit Cri"inal Court of Manilaafter he pleaded 'uilt) to the char'e of "urder for havin' shot #ith a .** caliber revolver Pedro Monca)o, Fr. on Dece"ber %*, %+:+. /he &illin' #as ?ualified b)treacher) and a''ravated b) pre"editation and disre'ard of ran&. It #as"iti'ated b) plea of 'uilt). After a "andator) revie# of the death sentence, this Court in its decision of ebruar) %3, %+ affir"ed the 9ud'"ent of conviction. It appreciated in Benito0sfavor the "iti'atin' circu"stance of voluntar) surrender. /he penalt) #asreduced to reclusion perpetua. 5People vs. Benito, :* CRA 3%6.Benito filed a "otion for reconsideration. 1e contends that he is entitled to the"iti'atin' circu"stance of i""ediate vindication of a 'rave offense and that thea''ravatin' circu"stances of disre'ard of ran& should not be appreciated a'ainsthi".Benito, *:, a native of Na'a Cit), in his s#orn state"ent , #hich #as ta&en, aboutfive hours after the shootin', b) Corporal E. Corte8 and Patrol"en F. de la Cru8,Fr., and1. Ro<as of the Manila Police, recounted the bac&'round and circu"stances ofthe tra'ic incident in this "anner 5E<h. A6=

... ala" nin)o ho, a&o a) datin' e"ple)ado n' Civil ervice Co""issionsa &al)e P. Paredes, a"paloc, Ma)nila, at a&o a) Cler& * sa Ad"inistrative Division at a&o a) na'u"pisa n' pa'tratrabaho sa Civilervice "a'"ula pa noon' Nove"ber, %+: n' a&o a) nasuspende saa&in' trabaho dahil &inar'ohan nila a&o n' 4DI1!NE/4 atnasuspende a&o n' : da)s at nabali& a&o sa trabaho noon' Fanuar)%+:: pero &inar'uhan uli nila a&o n' 4MA2GERAR/I!N ! PB2IC

ND, HA2IIED /1E/, E/AA at A2IICA/I!N ! PB2ICD!CMEN/ at dini"anda din a&o n' Civil ervice n' Ad"inistrativecase n' 4DI1!NE/4 at dinis"iss na a&o sa trabaho niCo""issioner ubido noon' ebruar) %:, %+::. At "a'"ula noon a) na#alan na a&o n' trabaho pero lahat ho noon'&inar'o nila sa a&in na sinabi &o sa in)o a) 4fabricated4 lan' an' "'aevidensi)a at an' 'u"a#a ho noon' a) an' binaril &o &anina na siPEDR! M!NCA! FR. RAM! at na&a pendin' pa n'a)on sa Cit)iscal n' Ma)nila &a) Asst. iscal Ma'at at i)on na"an' 4dis"issal

ppMa'"ula noon' Idinis"iss nila a&o sa a&in' trabaho dahil sa 4fabricated4char'es a) na'hirap na &o sa a&in' buha) at nahihi)a a&o sa "'a&aibi'an &o. A&o a) assi'n5ed6 sa collectin' depart"ent noon atna'a'alit sa a&in an' "'a e"ple)ado n' Civil ervice dahil "ahi'pit a&osa &anila.Noon' bandan' alas = n' 'abi noon' Dec. %%, %+:+, a&o a) na'puntasa Civil ervice sa &al)e Paredes at na&ita &o si PEDR! M!NCA!, Fr.at &inausap &o si)a at tinanon' &o si)a na i)on' &aso &o a) "ata'al naat hindi pa natatapos at ba&a "atulun'an ni)a a&o at an' sa'ot ni)a a)

4MA2I (A NA N@A DIAN BA(A MA MAN@ARI PA A I! A/BA(A IPAARI (I/A DI/!4 at u"alis na &o.(aninan' bandan' alas %%= n' u"a'a a) na'&ita &a"i ni PEDR!M!NCA! Fr. sa loob n' co"pound n' Civil ervice at sa harapan n'"ara"in' tao sinabi ni)a na 4NA@II/AMBA PA2A DI/! AN@MA@NANA(A$4 &a)a an' 'ina#a &o a) u"alis na a&o.(aninan' bandan' alas =* n' hapon, niton' ara# na ito, Desi)e"bre%*, %+:+, na&ita &o si PEDR! M!NCA! Fr. na na'"a"ane9o noon'&otse ni)a sa &al)e P. Paredes sa tapat n' Civil ervice, sinundan &osi)a at pa'li&o n' &otse ni)a sa &anto n' P. Paredes at 2epanto,a"paloc, Ma)nila, a) binaril &o si)a n' #alon' beses at tina"aan si)aat napatu"ba si)a sa &ani)an' upuan sa &otse.Pa'&atapos a) tu"a#a' a&o sa telepono sa MPD 1ead?uarters para

su"urender at &a)o n'a an' du"atin' &asa"a nin)o i)on' "'a &asa"anin)o.

Benito surrendered to the police the revolver 5E<h. C6 used in the shootin' #iththe ei'ht e"pt) shells of the bullets #hich he had fired at Monca)o./he Police report contains the follo#in' bac&'round and description of the &illin'5E<h. B6=

Accordin' to the suspect, he #as a for"er e"plo)ee of the Civil erviceCo""ission at its "ain office located at P. Paredes, a"paloc. Mla., and#as assi'ned as Cler& * in the Ad"inistrative Division fro" Nov. %+:3continuousl) up to Nov. %+: #hen he #as suspended for4DI1!NE/4. After t#o "onths, he #as reinstated but #as cri"inall) char'ed forHA2IIED /1E/, MA2GERA/I!N ! PB2IC ND, E/AA andA2IICA/I!N ! PB2IC D!CMEN/ and ad"inistrativel)char'ed for 4DI1!NE/4 cul"inatin' in his dis"issal fro" the Civilervice on ebruar) %+::./he aforecited cri"inal char'es a'ainst the suspect #as alle'edl)investi'ated b) Asst. iscal MA@A/. Records fro" the CRID, MPD,reveals that on Dec. :, %+::, 1on. Fud'e R!AN of the Cit) Court of Mla.issued a $arrant No. E-3%: for the arrest of the suspect for the cri"eof E/AA.

!n Ma) *7, %+:+, 1on. Fud'e FAN !. REE of the CI of Mla. issuedan order No. !A-7+ for the arrest of the suspect for the cri"e of

/hrou'h Proper Channels/his refers to the case of Mr. A2BER/! R. BENI/!, Cler& II in the



pMA2GERA/I!N ! PB2IC ND. Accordin' to the suspect, theaforecited cri"inal and ad"inistrative char'es filed hi" #ere alle'edl)insti'ated and contrived b) the victi" and since the ti"e of his dis"issal,he #as alle'edl) 9obless.!n Dec. %%, %+:+, the suspect #ent to the Civil ervice at P. Paredes st.and re?uested the victi" to help hi" in his cases but the for"er alle'edl)uttered to the suspect 4MA2I (A N@A DIAN BA(A MA MAN@ARIPA A I! A/ BA(A IPAARI (I/A DI/!4./he suspect left and returned the follo#in' "ornin' at %%= a.". of Dec.

%*, %+:+, and #hen the) "et a'ain, the victi" alle'edl) re"ar&ed in thepresence of "an) people, 4NA@II/AMBA PA2A DI/! AN@MA@NANA(A$4. /he suspect #ho #as hu"iliated and incensed, left. At about =* p.". of that sa"e da), Dec. %*, %+:+, the suspect #ho #asar"ed #ith an unlicensed Cal. ** blac& revolver 5# N - P-3%,/rade"ar&ed 4EN/INE24, HIRE BIN@1AM M@. C!. INC. M2A.P.I.6 loaded #ith nine 5+6 live Cal. ** bullets in its c)linder, #aited for thevicti" outside the Civil ervice co"pound at P. Paredes st. a"paloc,Mla./he victi" sho#ed up and drove his 'reen Chevrolet * door car 5# PlateNo. 2-% Mla. :+6 alon' P. Paredes st. /he suspect #ith evidentpre"editation, surreptitiousl) follo#ed the victi" and #hen the latter0s car #as at a full stop at the corner of 2epanto and P. Paredes sts. due to

heav) traffic of "otor vehicles, the suspect #ithout an) #arnin' orprovocation, suddenl) and treacherousl) shot the victi" ei'ht 56 ti"eson the head and different parts of the bod) at closer ran'e #hichconse?uentl) caused the latter0s death on the spot inside his car./he suspect then fled #hile the victi" #as conve)ed on board a redprivate car 5# Plate No. 2-%%6 b) his co-e"plo)ees 5co"posed ofGIC/!R GI22AR, E2E/ERI! MEND!A U !R/NA/! F!E Fr.6 tothe E 1ospital. nfortunatel), the victi" #as pronounced D!A b) Dr.P. PA1/AN, !D, at =7 p.". of Dec. %*, %+:+.

/he thirt)-si< )ear old victi", a certified public accountant, #as the AssistantChief of the Personnel /ransactions Division and Actin' Chief, Ad"inistrativeDivision of the Civil ervice Co""ission 5E<h. E to E-*6. /he accused #as acler& in the cash section, Ad"inistrative Division of the Co""ission, receivin'P%,7 per annum 5E<h. D6. 1e started #or&in' in the Co""ission on Nove"ber , %+:3.!n !ctober *%, %+: Monca)o, as an ad"inistrative officer, reported to theCo""issioner of Civil ervice that Benito ad"itted havin' "alversed an a"ountbet#een P7, and P, fro" his sales of e<a"ination fee sta"ps.Monca)o0s report reads as follo#s 5E<h. 6=

MEM!RANDM for/he Co""issioner

Ad"inistrative Division of this Co""ission, #ho, as had previousl) beenreported, "alversed public funds in the a"ount of appro<i"atel)P,. out of his collections fro" the sale of e<a"ination fee sta"ps.I #ish to state that this "atter ca"e to ") attention on the evenin' ofMarch %, %+: #hen Mr. /eodoro Abar?ue8, Actin' Cashier I, reported to"e that fift) 56 "one) orders at P*. each #ith a total vlaue ofP%. #ere "issin' fro" a bundle of "one) orders received fro" theProvincial /reasurer of Cotabato, #hich #ere &ept b) hi" in one of thecabinets inside the Cashier0s Cashier0 roo".

At the sa"e ti"e he also infor"ed "e that he suspected that Mr. Benitostole the "issin' "one) orders. 1is suspicion arose fro" the fact that hefound several "one) orders "ar&ed 4Cotabato4 as their place of issuea"on' the cash receipts turned over to hi" b) Mr. Benito that afternoonas his collection fro" the sale of e<a"ination fee sta"ps. Mr. Abar?ue8sho#ed to "e the said "one) orders issued in Cotabato #hich #ereturned over to hi" b) Mr. Benito and after chec&in' their serial nu"bers#ith the records of list of re"ittances on file, #e #ere able to establishdefinitel) the fact that the said "one) orders #ere those "issin'.It "a) be stated that at that ti"e, Mr. Benito #as assi'ned to #or& in theCash ection and one of his duties #as to sell e<a"ination fee sta"ps toapplicants for e<a"inations. It #as then the practice of the cashier toissue to Mr. Benito in the "ornin' e<a"ination fee sta"ps to be sold

durin' the da) and in the afternoon he turned over to the Cashier theproceeds fro" the sale of sta"ps includin' the unsold sta"ps issued tohi". After considerin' the #or& perfor"ed b) Mr. Benito, it beca"eevident that he succeeded in "alversin' the a"ount of P%. b)substitutin' e?uivalent a"ount of "one) orders in the place of the cashe<tracted b) hi" fro" his dail) collections fro" the sale of e<a"inationfee sta"ps #hen he clears his accountabilit) #ith the Cashier./he follo#in' da), I confronted Mr. Benito in the presence of Mr. Abar?ue8 and as& hi" #hether he had so"ethin' to do #ith the loss ofthe fift) 56 "one) orders at P*. each. At first he denied, but #hen Ias&ed hi" #here he obtained the "one) orders issued in Cotabato#hich #ere included in his collections the da) precedin', he ad"ittedhavin' stolen the "issin' "one) orders.1avin' confessed his 'uilt&, I then as&ed Mr. Benito #hen he startedco""ittin' the said irre'ularit) and ho# "uch in all did he actuall)"alversed out of his dail) collections fro" the ti"e that he started theano"al). 1e stated in the presence of Mr. Abar?ue8 that he started inFanuar), %+: and that althou'h he did not &no# e<actl) the total a"ount"alversed b) hi", he believed the a"ount to be bet#een P7,. toP,.. 1e also confessed that he used the "one) orders re"itted b)the Provincial /reasurer of Ne'ros !ccidental in the a"ount of P3,73:.

in substitutin' various a"ounts e<tracted b) hi" fro" his dail) cashcollections and used b) hi" for personal purposes.

ection, Ad"inistrative Division of this !ffice, for dishonest)./he follo#in' e<cerpts fro" the letter dated !ctober **, %+: of the



It appears fro" the records that the 2ist of Re"ittances coverin' the"one) orders received fro" the Provincial /reasurer of Ne'ros!ccidental #as dul) receipted b) Mr. Benito. 1e #as supposed to issuean !fficial Receipt therefor in favor of the said Provincial /reasurer andthen turn over to the Cashier the a"ount involved for deposit to theNational /reasurer. /he said 2ist of Re"ittances, dul) si'ned b) Mr.Benito, is enclosed for use as evidence in this case.I told Mr. Benito that I cannot do an)thin' but report the "atter to theCo""issioner. 1o#ever, he pleaded that he be 'iven first an opportunit)

to restore the a"ount before I "a&e ") report in order that the penalt)that "a) be i"posed upon hi" "a) be lessened to a certain de'ree. As Ithou'ht it #ise in the interest of the service to recover the a"ountinvolved, I allo#ed hi" to 'o and see his parents in Na'a Cit) to raisethe a"ount in ?uestion. After t#o #ee&s, Mr. Benito infor"ed "e that his parents filed anapplication for a loan #ith the @overn"ent ervice Insurance )ste"and that the proceeds of the said loan #hich he intended to use inrestorin' the a"ount "alversed b) hi" #ere e<pected to be releaseddurin' the last #ee& of Ma), %+:. 1o#ever, #hen the "onth of Ma),%+: elapsed #ithout the a"ount involved havin' been restored, Iconferred #ith Mr. del Prado, ") i""ediate superior and as&ed hi"#hether #e should #ait further for the release of the said loan in order

that the a"ount involved "a) be recovered. Mr. Prado consented to'ivin' hi" a little "ore ti"e.$hen Mr. Benito still failed to restore the a"ount in ?uestion b) the endof Fune, %+:, I 'ot hold of hi" on Ful) , %+: and to'ether #ithMessrs. del Prado, Abar?ue8 and @atchalian, also of this Co""ission,brou'ht hi" before Deput) Co""issioner A. 2. Buenaventura andreported the entire "atter to the Deput) Co""issioner. In the presenceof Messrs. del Prado, Abar?ue8, @atchalian and ")self, Mr. Benitoad"itted readil) and voluntaril) before the Deput) Co""issioner theco""ission of the offense of "alversation of public funds as statedabove.In vie# of the fore'oin', it is reco""ended that Mr. Benito be char'edfor"all) and that he be suspended fro" office i""ediatel) considerin'the 'ravit) of the offense co""itted b) hi".

5'd.6 PEDR! R. M!NCA! Ad"inistrative !fficer II

Benito #as char'ed #ith dishonest). 1e had ad"itted to Deput) Co""issioner Alipio Buenaventura that he had "isappropriated his collections and spent thea"ount in ni'htclubs and pleasure spots and for personal purposes. /he decisiondis"issin' hi" fro" the service reads as follo#s 5E<h. @6=

/his is an ad"inistrative case a'ainst Mr. Alberto R. Benito, Cler& I, Cash

Co""issioner of Civil ervice connect respondent #ith the alle'ed"isappropriation of public funds representin' his collection fro" the saleof e<a"ination fee sta"ps and constitute the basis of the instant casea'ainst hi"=

An investi'ation "ade b) this Co""ission sho#s that )ou"alversed public funds in the a"ount of P3,3:. out of )ourcollections fro" the sale of e<a"ination fee sta"ps #hile in theperfor"ance of )our official duties as Cler& II in the Cashection, Ad"inistrative Division of this !ffice. It appears that )ou

succeeded in "alversin' the above-stated a"ount fro" )ourcash collections b) substitutin' in lieu thereof "one) orders#orth P3,73:. re"itted to this Co""ission b) the Provincial/reasurer of Ne'ros !ccidental #hich #ere dul) receipted for b))ou. It also appears that )ou e<tracted fro" a bundle of "one)orders re"itted b) the Provincial /reasurer of Cotabato thea"ount of P%. in "one) orders #hich #ere &ept in one ofthe cabinets in the Cashier0s roo".

Respondent denied the char'e. 1e e<plained, a"on' others, that "one)orders #ere al#a)s &ept in the Cashier0s safe and he had no access tothe". Althou'h he ad"itted havin' received "one) orders a"ountin' toP3,73:. re"itted b) the Provincial /reasurer of Ne'ros !ccidental andanother re"ittance of the Provincial /reasurer of Cotabato he, ho#ever,

disclai"ed havin' substituted the sa"e for cash collections in his sale ofe<a"ination fee sta"ps. 1e reasoned out further that he could not bechar'ed #ith "alversation of public funds inas"uch as he #as not thenan accountable officer.It appears that respondent, as Cler& in the Cash ection, perfor"s,a"on' other duties, the sellin' of e<a"ination fee sta"ps, receivin'pa)"ents therefor, and receivin' re"ittances in for" of cash andor"one) orders fro" provincial treasurers in connection #ith e<a"inationsheld in the provinces. It #as also his dut) to issue official receipts for saidre"ittances. In the course of the perfor"ance of his duties, he receivedsaid re"ittances fro" the Provincial /reasurers of Ne'ros !ccidental andCotabato, but no official receipts #ere issued b) hi", as sho#n b) therepl) tele'ra"s pertainin' thereto. $hile records disclose thatre"ittances fro" the province of Cotabato #ere sub"itted to the Cashierof the Civil ervice Co""ission, there is no evidence sho#in' thatre"ittances fro" Ne'ros !ccidental #ere li&e#ise sub"itted.Investi'ation further reveals that "one) orders #ere discovered"issin' fro" the re"ittances of Cotabato Provincial /reasurer #hich#ere &ept in the cabinet of the Cashier. !n or about March *, %+:, theCashier of the Co""ission noticed that % "one) orders turned over b)respondent as part of his collections in the sale of e<a"ination fee

sta"ps #ere a"on' the "issin' "one) orders. /his tri''ered off thefilin' of this case a'ainst the respondent.! F l %+: d t d itt d b f th th D t

connection #ith his alle'ed "isappropriation of the fees collected fro" thee<a"inees of the %+7 patrol"an e<a"ination. /hat sa"e decision "a&es

f t B it 0 ti f th d i i t ti h /h t0



!n Ful) , %+:, respondent ad"itted before the then Deput)Co""issioner Alipio Buenaventura havin' "isappropriated an a''re'atea"ount ran'in' fro" P3, to P,, #hich he spent in ni'ht clubs,pleasure spots and other personal benefits. Despite the testi"onies ofseveral #itnesses re'ardin' his confession, includin' that of the thenDeput) Co""issioner hi"self, respondent, #hen as&ed to ta&e thestand, denied his previous ad"ission.Instead, he ar'ued that the cash and accounts of the Cashier of the Civilervice Co""ission, #hen e<a"ined b) representatives of the Auditor0s

!ffice, did not indicate an) shorta'e and therefore there #as noirre'ularit) involved. /his ar'u"ent is not #ell ta&en. Inas"uch as there"ittances received b) respondent fro" said Provincial /reasurers ofNe'ros !ccidental and Cotabato #ere not in turn 'iven correspondin'official receipts, naturall), the sa"e #ere not reflected on the Cashier0scash boo&./he #ea&ness of respondent0s defense lies not so "uch on its failure toestablish convincin'l) his innocence as its irreconciliabilit) #ithestablished facts. !bviousl), none of the circu"stances in this case isconsistent #ith his clai" of innocence. !n the contrar), all of the" putto'ether produce reasonable assurance of respondent0s 'uilt.In vie# of the fore'oin', this !ffice finds respondent Alberto R. Benito'uilt) as char'ed. $herefore, he is dis"issed fro" the service effective

upon his receipt of this decision.In the interest of the service this decision is e<ecuted also on the date ofhis receipt of this decision.

Benito appealed to the Civil ervice Board of Appeals fro" the Co""issioner0sdecision dis"issin' hi". /he appeal #as pendin' at the ti"e #hen heassassinated Monca)o 5E<h. I6./he fore'oin' antecedents of the assassination shed li'ht on the re"ar& #hichthe victi", Monca)o, alle'edl) "ade upon seein' Benito in the co"pound of theCivil ervice Co""ission near the canteen at eleven o0cloc& in the "ornin' ofDece"ber %*, %+:+ 5about si< hours before the shootin'6= 4Na'iista"ba) paladito and "a'nana&a#.4 5E<h. A or %6> or, as Benito testified, Monca)o said= 41indi&o ala" na iton' Civil ervice pala a) ista"ba)an n' "a'nana&a#.4 5* tsnDece"ber *:, %+:+6.

7itigating circumstance of immediate vindication of a grave offense . Q Benitocontends that Monca)o insulted hi" #hen he 5Monca)o6 re"ar&ed that a thief #as loiterin' in the pre"ises of the Civil ervice Co""ission. Benito ar'ues thatthat re"ar& 4#as tanta"ount to &ic&in' a "an alread) do#n and to rubbin' saltinto a ra# #ound4 and that, as it #as "ade publicl) and in a loud voice, he #ase<posed to ridicule in the presence of his office"ates.Benito attached to his "otion a cop) of the decision of Fud'e Fose C. Cola)codated Fanuar) %:, %+, ac?uittin' hi" of the char'e of "alversation in

reference to Benito0s e<oneration fro" the ad"inistrative char'e. /he court0sdecision reads as follo#s=

/he accused is char'ed #ith "alversation under the follo#in'infor"ation=

/hat on or about and durin' the period co"prised bet#een!ctober %, %+:7, to ebruar), %+:, inclusive, in the Cit) of Manila Philippines, the said accused bein' then e"plo)ed asCler& I of the Civil ervice Co""ission, a branch of the'overn"ent of the Republic of the Philippines, a"on' #hose

duties #ere to accept pa)"ents of fees collected fro" thee<a"inees of the %+:7 Patrol"an e<a"ination, and b) reason of his said position received the total a"ount of P3,3:., #ith thedut) to turn over andor account for his collections to the cashier of the Civil ervice Co""ission i""ediatel) or upon de"andbut the said accused once in possession of the said a"ount of P3,3:., #ith intent to defraud, despite repeated de"ands"ade upon hi" to turn over and to account for the sa"e, didthen and there #illfull), unla#full) and feloniousl) "isappropriate,"isappl) and convert and "alverse the said a"ount to his o#npersonal use and benefit, to the detri"ent of public interest andto the da"a'e and pre9udice of the said Civil erviceCo""ission in the said a"ount of P3,3:., Philippine

currenc).Contrar) to la#.

/he evidence sho#s that the accused had an appoint"ent as cler& in theCivil ervice Co""ission fro" Ma) *, %+:7, as cler& I, ran'e *3 fro"Fune %, %+: and as cler& I, ran'e *: fro" Ful) *3, %+: 5E<hibits A, A-%, A-*6. 1e had the dut), a"on' others, of sellin' Civil ervice e<a"ination-fee sta"ps and to receive pa)"ent therefor, as #ell as to receivere"ittances of "one) orders and chec&s fro" the provincial treasurersfor pa)"ents of e<a"ination fee sta"ps 5E<hibit B6./eodoro Abar?ue8, a cashier of the Civil ervice Co""ission durin' theperiod alle'ed in the infor"ation, testified in his direct e<a"ination thatBenito #as #or&in' in his office> that one of the duties that he assi'nedto hi" #as to sell e<a"ination fee sta"ps> that it #as custo"ar) for hi"

to 'ive sta"ps to Benito at the start of office hours in the "ornin' andthat Benito turned over to hi" the proceeds of the sale, as #ell as theunsold sta"ps, at the close of office hours in the afternoon> that oneafternoon he noticed that Benito turned over to hi" "one) ordersfro" Cotabato, to'ether #ith so"e cash, as proceeds of the sale of sta"ps for that da)> that he re"e"bered that he #as "issin' "one)orders fro" one of his cabinets #here he &ept the"> that #hen hediscovered that the "one) orders #ere those #hich #ere "issin', he

reported the "atter to Pedro Monca)o, the chief ad"inistrative officer> onMarch %, %+:> that the "one) orders #ere for P*. each, and #erepa)"ents of the e<a"ination fees fro" Cotabato 5E<hibit 6> that he

'larin' inconsistencies, contradictions and 'aps in "e"or). /heprosecution has failed to present convincin' evidence that the "one)orders #ere even lost= Accordin' to Abar?ue8 he had onl) verified the



pa)"ents of the e<a"ination fees fro" Cotabato 5E<hibit 6> that hediscovered the loss of the "one) orders on ebruar) *, %+: andreported it to Monca)o on March %, %+:, to'ether #ith the list of "issin'orders 5E<hibit M6> that after receivin' the report, Monca)o called Benitoto the office of Abar?ue8 #here he ad"itted ta&in' the "issin' "one)orders> that Monca)o sub"itted a "e"orandu" to the Co""issioner,dated !ctober *%, %+:, after 'ivin' Benito a chance to refund the valueof the "one) orders 5E<hibit !6. Alipio Buenaventura, actin' Deput)Co""issioner at the ti"e, and Eliseo . @atchalian, bud'et officer,

testified that #hen Benito #as confronted #ith the report of Monca)o and Abar?ue8, he ad"itted that he "isappropriated about P3,.because of bad co"pan) and that he as&ed for a chance to refund the"one).nder cross-e<a"ination, Abar?ue8 elucidated his testi"on) in his directe<a"ination and e<plained that #hen Benito turned over the proceeds of the sale of sta"ps for that particular da), he &ept the su" of P%. andreplaced it #ith the "one) orders that he had ta&en fro" the cashier0soffice to cover up the "one) that he had poc&eted. $hen he #as as&ed#hen he discovered that Benito substituted the "one) orders fro"Cotabato, he ans#ered that he chec&ed the" the follo#in' ni'ht 5March*, %+:6 #ith the list of "one) orders re"itted b) the Provincial treasurer 5E<hibits , -%6> but #hen he #as confronted #ith his affidavit #hich he

e<ecuted on April %, %+:: 5E<hibit R6, he reluctantl) ad"itted that hehad onl) verified % "one) orders "issin' as of April %, %+:: and thathe did not &eep an) record of the "one) and the "one) orders 'iven tohi" b) Benito on March %, %+:.1e also ad"itted that the roo" #here he &ept the "one) orders in anunloc&ed dra#er #as also occupied b) t#o other persons, and that this#as the first ti"e that he had not follo#ed the usual procedure of &eepin'the" in the safe. 1e further ad"itted that, althou'h re'ular e<a"inations#ere conducted durin' the period of !ctober %, %+:7 to ebruar) *,%+: b) the e<a"iners of the Civil ervice Co""ission and the auditorsof the @eneral Auditin' !ffice, the) did not find an) shorta'e in theaccounts of Benito.inall), #hen the Court as&ed hi" #hat happened to the "one)

orders, at first he hinted that the) #ere not deposited #ith the Bureau of /reasur) because the) #ere reported "issin'> but #hen pressed further,he said that he deposited the", but did not issue an) official receipt for the". $hen as&ed if he had an) evidence to sho# that the) #ereactuall) deposited, he ad"itted that he could not even re"e"ber #henhe deposited the"./he testi"on) of /eodoro Abar?ue8 upon #hich the prosecution has builtits case, is too #ea& and sha&) to sustain a findin' of 'uilt because of his

orders #ere even lost= Accordin' to Abar?ue8 he had onl) verified theloss of % on April %, %+::, althou'h he testified earlier that hedeter"ined the loss of the ni'ht after March %, %+:./he e<a"iners of the Civil ervice Co""ission and the auditors of the@eneral Auditin' !ffice did not find an) irre'ularit) in the cashaccountabilit) of Benito, accordin' to Abar?ue8. /his #as corroboratedb) Ro"eo Farabelo, auditor of the Co""ission on Audit and Mi'uel@a"es, auditin' e<a"iner assi'ned to the Civil ervice Co""ission,#ho testified for the accused. &enito was in fact e,onorated the

administrative charge filed against him for the time same transaction5E<hibit E6.In fact, the testi"on) of Abar?ue8 under cross-e<a"ination that he hasnot issued an) official receipt for the "one) orders and his inabilit) toprove that he deposited the" #ith the bureau of /reasur) 'ives rise tothe suspicion that other persons, not the accused, "a) have stolen the "issin' "one) orders. Even #ithout ta&in' into account the testi"on)of the accused, #ho denied the testi"onies of the #itnesses for theprosecution, the court believes that the prosecution has failed to provethe 'uilt of the accused.$1ERE!RE, 9ud'"ent is hereb) rendered ac?uittin' the accused, #ithcosts de oficio.

/he olicitor @eneral ar'ues that the defa"ator) re"ar& i"puted to Monca)o

cannot 'ive rise to the "iti'atin' circu"stance of vindication of a 'rave offensebecause it #as not specificall) directed at Benito. /he prosecution notes that there"ar& #as uttered b) Monca)o at eleven o0cloc& in the "ornin'. Accordin' toBenito0s testi"on) 5not consistent #ith his confession6, he sa# Monca)o threehours later or at t#o o0cloc& in the afternoon and in?uired fro" hi" about his caseand Monca)o said that he had alread) sub"itted his report and he could not doan)thin' "ore about Benito0s case 5*: tan6. As alread) stated, the assassination#as perpetrated at around five o0cloc& in the afternoon of the sa"e da). Assu"in' that Monca)o0s re"ar& #as directed at Benito, #e see no 9ustificationunder the circu"stances recited above for chan'in' our prior opinion that the"iti'atin' circu"stance of 4haber e9ecutado el hecho en vindicacion pro<i"a deuna ofensa 'rave, causada al autor del delito,4 cannot be appreciated in Benito0sfavor. As aptl) stated b) the ponente, Fustice Es'uerra, Benito 4had "ore than

sufficient ti"e to suppress his e"otion over said re"ar& if he ever did resent it.442a apreciacion de la pro<i"idad ?ueda al arbitrio del tribunal> el /ribunalupre"o 5de EspaOa6 no ha apreciado la pro<i"idad ... cuando la ofensa sereali8o por la "aOana ) el delito tuvo lu'ar por la tarde 5entencia de %%novie"bre %+*%6> por re'la 'eneral no es pro<i"a cuando transcurre tie"posuficiente para la ra8on recobre su i"perio sobreponiendose a la pasion5entencias de * "a)o %*, 7 novie"bre %+3, *7 9unio %+, etc.6 ... i faltael re?uisito de la pro<i"idad debe desesti"arse 5entencia de 3 9ulio %+6.

E<i'e 'ravedad en la ofensa ) pro<i"ada en la reaccion.4 5Note +, % CuelloCalon, Derecho Penal. %+ Ed., p. :76./he panish upre"e Court also held that 4no puede apreciarse esta

Sep6r6te Op#o#$



/he panish upre"e Court also held that no puede apreciarse estacircunstancia atenuante en favor del autor de un ho"icidio co"etido 0al'unashoras despues de haberle invitado el interfecto a renir ) 'olpeado en el pechocon las "anos0, por?ue el tie"po transcurrido entre los 'olpes ) la "uerte fuesuficiente para ?ue el ani"o del reo se serenase 5entencia de *7 Funio %+,@aceta * A'osto %++, IG-G Enciclopedia Furidica EspaOola %%*6./he si<-hour interval bet#een the alle'ed 'rave offense co""itted b) Monca)oa'ainst Benito and the assassination #as "ore than sufficient to enable Benito torecover his serenit). But instead of usin' that ti"e to re'ain his co"posure, he

evolved the plan of li?uidatin' Monca)o after office hours. Benito literall)a"bushed Monca)o 9ust a fe# "inutes after the victi" had left the office. 1eacted #ith treacher) and evident pre"editation in perpetratin' the cold-blooded"urder./he facts of the case stron'l) su''est that #hat reall) i"pelled Benito toassassinate Monca)o #as not the latter0s alle'ed defa"ator) re"ar& that theCivil ervice Co""ission co"pound #as a han'out for a thief or for thieves butthe refusal of Monca)o to chan'e his report so as to favor Benito. Benito did notact pri"aril) to vindicate an alle'ed 'rave offense to hi"self but "ainl) tochastise Monca)o for havin' e<posed the alle'ed ano"alies or defraudationco""itted b) Benito and for obstinatel) refusin' to chan'e his report. Aggravating circumstance of disregard of ran( .Q Benito contends that disre'ardof ran& should not be considered a'ainst hi" because there #as no evidence

that he 4deliberatel) intended to offend or insult the ran&4 of Monca)o. /hatcontention has no "erit.It should be borne in "ind that the victi" #as a ran&in' official of the Civil erviceCo""ission and that the &iller #as a cler& in the sa"e office #ho resented thevicti"0s conde"nator) report a'ainst hi". In that situation, the e<istence of thea''ravatin' circu"stance of 4desprecio del respeto ?ue por la di'nidad"ereciere el ofendido4 is "anifest./he instant case is si"ilar to a case #here the chief of the secret service division&illed his superior, the chief of police 5People vs. 1ollero, Phil. %:6 and to the&illin' of the actin' panish consul b) his subordinate, the chancellor of theconsulate, #ho had "isappropriated the funds of the consulate, #hich"isappropriation #as discovered b) the victi" 5People vs. Martine8 @odine8, %:Phil, +, ::6. In these t#o cases the "urder #as a''ravated b) disre'ard of

ran&.$1ERE!RE, the "otion for reconsideration is denied.! !RDERED.Teehan(ee 7a(asiar Antonio Concepcion Jr. and 7artin JJ. concur.Castro C. J. +ernando and 7u:o6 Palma JJ. concur in the result.

!+RRE%O, J., concurrin'=pon a revie# of the record, I a" no# convinced appellant cannot be credited

#ith the "iti'atin' circu"stance of indication of a 'rave offense.


pronounced dead on arrival. Eduardo died t#o hours later.Post-"orte" e<a"ination sho#ed that the victi" sustained t#o bullet #ounds inthe thoraco-abdo"inal re'ions and one bullet #ound in the e<tre"ities and that



SUPREME COURTManila

SECON% %&SONG.R. No. 14@372 September 11, 2007RC+R%O !+C+!+C, petitioner,vs.PEOPLE OF THE PHLPPNES, respondent.

% E C S O NC+RPO MOR+LES, J.

In the evenin' of Dece"ber *3, %++, 1ernani Huidato 5the victi"6 #as at adance hall in Puro& 7, an Foa?uin, Iloilo Cit) in the co"pan) of Eduardo elibio5Eduardo6 and Melchor elibio 5Melchor6. And so #ere Fonathan Bacabac5Fonathan6 and Ed8el /alan?uines 5Ed8el6.%

Fonathan and Ed8el left the dance hall. Not lon' after, the victi" and hisco"panions also left and on their #a) ho"e, the) encountered Fonathan andEd8el. It appears that the t#o 'roups then and there fi'ured in a"isunderstandin'.!n his #a) ho"e, Fesus Delfin Rosadio 5Fesus6, #ho #as also at the dance hall,noticed a co""otion. 1e soon sa# that Melchor #as 4hu''in'4 Ed8el, and later4t)in'4 Fonathan 4#ith his hands.4 till later, he sa# the victi" hit Ed8el #ith a4stic&.4* 1e thus told the victi" and his co"panions that Ed8el is the son ofCouncilor Fose /alan?uines, Fr. 5Fose6, #hereupon Eduardo3 told hi" 5Fesus6 to

'o a#a) for the) "i'ht shoot hi". Fesus thus left and proceeded to Ed8el0sresidence to report to his father #hat he had #itnessed. In the "eanti"e, Ed8eland Fonathan "ana'ed to flee./he victi" and his co"panions thereafter headed for ho"e in the course of #hichthe) "et Pat. Ricardo Bacabac 5herein petitioner6, to'ether #ith Ed8el andFonathan #ho are his nephe#s, and Ed8el0s father, Fose, his "other, and t#osisters at the corner of M.1. Del Pilar and to. Do"in'o treets. Petitioner andFose #ere carr)in' M-%: ar"alites, #hile Fonathan and Ed8el #ere carr)in' apiece of #ood and a revolver, respectivel).Fesus thereupon pointed to the victi" and his co"panions as the ones #ho had"anhandled Fonathan and Ed8el. /he victi" apolo'i8ed, e<plainin' that he andhis co"panions "istoo& Fonathan and Ed8el for other persons. Fesus blurted out,ho#ever, 4ou are 9ust bra''in' that )ou are brave. ou are onl) bull)in' s"allchildren.47 Petitioner, at that instant, fired his ar"alite into the air, #hile Fose firedhis ar"alite 54as if spra)in' his rifle fro" ri'ht to left46 at the victi" and Eduardo,even hittin' Fonathan in the thi'h as he 5Fonathan6 4#as on the "ove to stri&eLthe victi" #ith a piece of #ood.4 Eduardo fell. And so did the victi" #ho #as ina &neelin' position, and as he #as raisin' his hands in surrender, Fose shot hi"a'ain.Mean#hile, Melchor escaped.

/he victi", Eduardo, and Fonathan #ere brou'ht to the hospital. /he victi" #as

the thoraco abdo"inal re'ions and one bullet #ound in the e<tre"ities, and thathe died due to 4"aceration of the internal or'ans due to bullet #ounds.4 : Eduardosustained t#o bullet #ounds in the thoraco-abdo"inal re'ion, and died of4he"orrha'e due to 'unshot #ounds.4

/#o Infor"ations for Murder #ere filed #ith the Re'ional /rial Court 5R/C6 ofIloilo Cit) a'ainst Fose, Ed8el, Fonathan, Fesus, and the herein petitioner. /heaccusator) portion of the first Infor"ation, doc&eted as Cri"inal Case No. 33,reads=

/hat on or about the *3rd da) of Dece"ber, %++, in the Municipalit) of

an Foa?uin, Province of Ilo-ilo, Philippines, and #ithin the 9urisdiction ofthis 1onorable Court, the above-na"ed accused, conspirin',confederatin' and "utuall) helpin' one another to better reali8e theirpurpose, ar"ed #ith t#o 5*6 M%: Lar"alite Lrifles and one 5%6 nic&el-plated revolver of un&no#n "a&e and caliber, #ith deliberate intent anddecided purpose to &ill, #ith treacher) and evident pre"editation and#ithout an) 9ustifiable cause or "otive, did then and there #illfull),unla#full) and feloniousl) assault, attac& and shoot one 1ERNANIHIDA/! #ith the firear"s the) #ere then provided, inflictin' upon thelatter 'unshot #ounds on the different parts of his bod) #hich caused thei""ediate and instantaneous death of said 1ernani Huidato.C!N/RAR /! 2A$.

/he accusator) portion of the second Infor"ation, doc&eted as Cri"inal Case No.

37, reads=/hat on or about the *3rd da) of Dece"ber, %++, in the Municipalit) ofan Foa?uin, Province of Iloilo, Philippines, and #ithin the 9urisdiction ofthis 1onorable Court, the above-na"ed accused, conspirin',confederatin' and "utuall) helpin' one another to better reali8e theirpurpose, ar"ed #ith t#o 5*6 M%: Lar"alite Lrifles and one 5%6 nic&el-plated revolver of un&no#n "a&e and caliber, #ith deliberate intent anddecided purpose to &ill, #ith treacher) and evident pre"editation and#ithout an) 9ustifiable cause or "otive, did then and #illfull), unla#full)and feloniousl) assault, attac& and shoot one EDARD! E2IBI! #iththe firear"s the) #ere then provided inflictin' upon the latter 'unshot#ounds on the different parts of his bod) #hich caused the i""ediateand instantaneous death of said Eduardo elibio.

C!N/RAR /! 2A$.+

/he cases #ere 9ointl) tried.B) Decision of April 3, %++3, Branch 3+ of the Iloilo R/C, findin' the presence of conspirac) a"on' petitioner and his co-accused,% convicted the" of "urder?ualified b) treacher).%% /he dispositive portion of the decision of the trial courtreads=

$1ERE!RE, pre"ises considered, 9ud'"ent is hereb) rendered asfollo#s=

In Cri"inal Case No. 33, all the accused, na"el)> Fose /alan?uines,Fr., Ed8el /alan?uines, Fonathan Bacabac, Pat. Ricardo Bacabac, andFesus Delfin Rosadio are hereb) found 'uilt) be)ond reasonable doubt

of !ctober **, %++, directed the Court of Appeals to reinstate petitioner0sappeal.%+

B) Decision* of Fune *, %+++, the Court of Appeals affir"ed the trial court0s



Fesus Delfin Rosadio are hereb) found 'uilt) be)ond reasonable doubtof the cri"e of "urder and there bein' no a''ravatin' circu"stances#ith one "iti'atin' circu"stance Li""ediate vindication for Fose andFesus> voluntar) surrender for Pat. Ricardo Bacabac%*, and appl)in' theindeter"inate sentence la#, accused Fose /alan?uines, Fr., RicardoBacabac and Fesus Delfin Rosadio are hereb) sentenced each to sufferi"prison"ent for a period of % )ears and % da), as "ini"u", to %)ears, 7 "onths and % da) as "a<i"u"> #hile accused Ed8el/alan?uines and Fonathan Bacabac #ho are entitled to the privile'ed

"iti'atin' circu"stance of "inorit) and the ordinar) "iti'atin'circu"stance of i""ediate vindication of a 'rave offense are hereb)sentenced each to suffer i"prison"ent for a period of four 576 )ears, *"onths, and % da), as "ini"u", to % )ears and % da) as "a<i"u". Allthe accused are ordered to pa) 9ointl) and severall) the heirs of thedeceased 1ernani Huidato, the a"ount of P,. for his #ron'fuldeath> P*,. for "oral da"a'es> P%,. for attorne)s fees>and the costs of the suit. 5nderscorin' supplied6In Cri"inal Case No. 37, 9ud'"ent is hereb) rendered as follo#s= All the accused, na"el)> Fose /alan?uines, Fr., Ed8el /alan?uines,Fonathan Bacabac, Pat. Ricardo Bacabac and Fesus Delfin Rosadio arehereb) found 'uilt) of the cri"e of Murder and there bein' noa''ravatin' circu"stance #ith one "iti'atin' circu"stance, accused

Fose /alan?uines, Fr., Ricardo Bacabac and Fesus Delfin Rosadio arehereb) sentenced each to suffer i"prison"ent for a period of % )earsand % da) as "ini"u", to % )ears, 7 "onths and % da), as "a<i"u">#hile accused Ed8el /alan?uines and Fonathan Bacabac #ho areentitled to the privile'ed "iti'atin' circu"stance of "inorit) and theordinar) "iti'atin' circu"stance of i""ediate vindication of a 'raveoffense, are hereb) sentenced to suffer i"prison"ent for a period of 7)ears, * "onths and % da), as "ini"u" to % )ears and % da) as"a<i"u". All the accused are ordered to pa) 9ointl) and severall) theheirs of the deceased Eduardo elibio, the a"ount of P,. forhis #ron'ful death> P*,. for "oral da"a'es> P%,. forattorne)0s fees> and the costs of the suit. 5nderscorin' supplied6 Accused Fesus Delfin Rosadio, #ho is detained, is hereb) credited #ith

the nu"ber of da)s he spent under detention, if he is ?ualified.! !RDERED.%3

$hile petitioner and his co-accused filed a Notice of Appeal%7 #hich #as 'ivendue course,% onl) petitioner filed a Brief, albeit be)ond the e<tensions 'ranted tohi", dra#in' the Court of Appeals to dis"iss his appeal.%: /he conviction ofpetitioner0s co-accused had thus beco"e final and e<ecutor).Petitioner0s Motion for Reconsideration% of the dis"issal of his appeal havin'been denied,% he filed a Petition for Revie# #ith this Court #hich, b) Resolution

B) Decision of Fune *, %+++, the Court of Appeals affir"ed the trial court sdecision. Entr) of final 9ud'"ent #as "ade b) the Court of Appeals on Ful) **,%+++.*%

/he trial court thereafter issued a ebruar) , * !rder directin' the issuanceof #arrants for the arrest of the accused.** E<cept petitioner, all #ere arrested.*3

!n ebruar) *7, *, petitioner filed before the appellate court a Petition forRelief fro" Fud'"ent, !rder, andor Denial of Appeal*7 #hich #as 'ranted,* hence, the Entr) of Fud'"ent issued b) the appellate court on Ful) **, %+++ #asset aside. 1e thereafter filed a Motion for Reconsideration*: of the appellate

court0s Fune *, %+++ Decision #hich #as denied b) Resolution of Au'ust ,*%>* hence, the present Petition for Revie# on Certiorari.*

Petitioner assails the Court of Appeals0 decision as follo#s=Fr$t Contrar) to its conclusion on the basis of the facts of the case,Petitioner "a) #ot be eeme to be # o#$pr6* #ith the other Accused.Seo# Contrar) to its conclusion, there #as no treacher).Tr Contrar) to i ts conclusion, Petitioner, assu"in' in gratisargumenti the correctness of the pronounce"ent of 'uilt, should havebeen credited #ith the mt:6t#: r)m$t6#e o mme6te#6to# o 6 :r6e oe#$e, in the sa"e "anner that the other Accused #ere so credited.Fo)rt Contrar) to its conclusion, the 'uilt of the Petitioner has not been

proved be)ond reasonable doubt> hence, b) the equipoise rule, shouldhave been ac?uitted.Ft Contrar) to its conclusion, Petitioner is #ot * 6be.*+

5E"phasis in the ori'inal6/he Court notes that the first, second, and fifth ar'u"ents of petitioner #ere, inthe "ain, raised before the appellate court.3

Durin' the pendenc) of the present petition, petitioner, throu'h counsel, filedbefore the trial court an 4r'ent E< Parte Alternative Motions 5Re= Pat. RicardoBacabac0s Motion for Reconsideration andor to Gacate the !rder dated ebruar), * Ldirectin' the arrest of the accused and to Recall the $arrant of ArrestDated the a"e Date in so far as the Accused Pat. Ricardo Bacabac !nl) isConcerned6.43% /he trial court denied3* the "otion as it did den) 33 petitioner0s"otion for reconsideration,37 dra#in' petitioner to file before this Court on

!ctober , *: a 4Motion to Gacate !rder for the Arrest of the Accused and the$arrant of Arrest Issued b) the Re'ional /rial Court 5Branch 3+6 of Iloilo Cit).43

In his 4Motion to Gacate !rder for the Arrest of the Accused and the $arrant of Arrest Issued b) the Re'ional /rial Court . . . ,4 petitioner ar'ues that

L/he basis of the R/C0s !rder of Febr)6r* 7, 2000 #as theE#tr* o ():me#t b) the Co)rt o +ppe6$ dated 25 Noember 1@@@.3: B/ THE S+% ENTR> OF (U%GMENT 96$ +LRE+%>&+C+TE% 6# SET-+S%E !> THE COURT OF +PPE+LS TSELF ON

TS RESOLUTON %+TE% 13 %ECEM!ER 2000. /herefore, the R/C0s!rder of ebruar) * #as ipso facto vacated.3 5E"phasis in theori'inal6

6rr6 at the corner of t. Do"in'o and M.1. del Pilar treets, it isasserted that te $6me r)#$ o)#ter to te #6t)r6 6# or#6r*epere#e o t#:$ 6# ee#t

Lsic , and raises a cloud of doubt over



' 6and that

L/he $eo# $e#te#e of ection , Rule : of the Rules of Court citedb) the !rder of %3 Ful) *: does #ot 6pp* to the case at benchbe6)$e the m6# 6$e o# te mert$ #hich ori'inated in the R/C asCri"inal Cases Nos. 33-7, #ent to the Court of Appeals as [email protected]. %:37 and is no# pendin' in the upre"e Court 5/hird Division6 [email protected]. No. %7+3* because of the Petition for Review n Certiorari filed b)Movant herein < < <. THE M+N C+SE S NO LONGER PEN%NG N

THS HONOR+!LE COURT sic D. THEREFORE, THE RTC H+S NO(URS%CTON TO RETER+TE +N% EECUTE THE OR%ER OF 7FE!RU+R> 2000.3 5E"phasis in the ori'inal6

As this Court hereb) affir"s petitioner0s conviction, resolution of his 4Motion toGacate . . .4 is rendered unnecessar).Petitioner, den)in' the presence of conspirac) on his part, ar'ues=

L/he petitioner affir"s that he #as at the scene of the incident andmere* re 6 96r##: $ot #to te 6r to re$po# to 6 p)b$t)rb6#e, and his firin' a #arnin' shot into the air #as intended to6ert )rter 6t$ o oe#e; both circu"stances, therefore, bein'"erel) and solel) in pursuance to his avo#ed dut) to &eep peace andorder in the co""unit) and clearl) not to be part of an) alle'edco""unit) of desi'n to &ill the victi"s.

< < < < Another indication that there #as #o )#t* o p)rpo$e 6# o ee)to#in so far as the Petitioner is concerned $ $ o#)t 6ter (o$eT66#=)#e$, (r. $ot te tm$. E)e#itness accounts state that after that lone #arnin' shot, closel) follo#ed b) Fose /alan?uines, Fr. firin' atthe victi"s, the petitioner "erel) stood there and did nothin' and saidnothin'. /his is obviousl) because he #as hi"self stunned b) the fasthappenin' of events. /he investi'atin' police officer, PO3 NESTORS+NT+CER+, on rebuttal, li&e#ise, ad"itted to the facts that ten 5%6"inutes after the incident, the) 5the police6 responded and upon arrivalthereat, learned that the Petitioner alread) reported the incident to their station and that it #as te Petto#er 9o r$t reporte te $oot#:#e#t o6* to ter oe. /he aforedescribed proven conduct of

the Petitioner durin' and i""ediatel) after the incident in ?uestion are,Petitioner respectfull) sub"its, #o#$$te#t 9t 96t 6 o-o#$pr6tor$ $ Lsic #ont to do under the circu"stances. It is sub"ittedinstead that his conduct on the contrar) underscores the lac& or #ant of co""unit) of purpose and interest in the &illin' incident to "a&e hi"cri"inall) liable under the conspirac) theor).inall), in connection #ith the conspirac) theor) and anent the ##:belo# that the Petitioner and his Co-Accused 96te or te tm$

p : L ,the correctness of the lo#er Courts decision #hich are based on theProsecution0s version of the incident. ince, accordin' to the prosecution,the Petitioner and the other Accused #ere ar"ed #ith hi'h-po#eredfirear"s 5ar"alite rifles and revolver6> the) #aited at te $t6te streetcorner for thirt) 536 "inutes> the stated street corner #as #ell li'hted>acco"pan)in' the" #ere the 9e 6# t9o 2I *o)#: 6):ter$ of Fose /alan?uines, Fr> and the) stood there conversin' #ith the 'roup of Elston a?uian La prosecution #itness #ho testified that he sa# the

petitioner and his co-accused #aitin' for the victi"s3+

and ad"ittin' thatthe) #ere #aitin' for certain persons #ho "auled Ed8el /alan?uines andFonathan Bacabac.In other #ords, the lo#er Courts 'ave credence to an mprob6be$e#6ro paintin' the Petitioner, &no#n to the place as a police officer,and co-accused to have rec&lessl) and uncarin'l) displa)ed, for all andsundr) to see, their alle'ed cri"inal intentions. It #ould indeed be thehei'ht of foolishness for the" to be b) a #ell li'hted street corner,perhaps even #ell traversed, conspicuousl) full) ar"ed, #aitin' for persons #ho #ere not even sure #ould pass b) such place, andapparentl) #illin' to ad"it to other passers-b) that the) #ere indeed#aitin' for the persons #ho "auled Ed8el and Fonathan, andconse?uentl) 'ive out the i"pression that the) #ere intendin' to retaliate

#hich is #hat the lo#er Courts re'rettabl) observed.< < < <2i&e#ise, te pre$e#e o te 9e 6# t9o 2I *o)#: 6):ter$ o te 6)$e (o$e T66#=)#e$, (r. 6t te $e#e of the alle'ed cri"es,as testified to b) the prosecution #itnesses and believed b) the lo#er Courts, assu"es i"portance in the "atter of deter"inin' #hich versionof the incident is correct./he Prosecution places the #ife and the dau'hters #ith the alle'ed full)ar"ed Petitioner and Co-Accused at to. Do"in'o treets, also #aitin'durin' the sa"e len'th of ti"e as the "en for the 5probable6 arrival of the'roup of the victi"s. !)t $) 6 $e#6ro $, 8e9$e, )##6t)r6.!e6)$e, 9 te m6e re6te$ )#e$t6t#:* epo$e ter ee#$ee$$ 9ome#o8 to mm#e#t 6#:erJ7 5Citations o"itted,

e"phasis in the ori'inal, and underscorin' supplied6Petitioner0s ar'u"ent that it is i"probable for hi" and his co-accused to have#aited for the victi"s at a #ell-li'hted street corner does not persuade. Cri"esare &no#n to have been bra8enl) co""itted b) perpetrators, undeterred b) thepresence of onloo&ers or even of peace officers, co"pletel) i"pervious of theinevitabilit) of cri"inal prosecution and conviction.7%

ro" the "ode and "anner in #hich the cri"es #ere perpetrated, the conduct of petitioner before, durin', and after their co""ission,7* and the conditions

attendant thereto,73 conspirac), #hich need not be proved b) direct evidence, isdeduced.77 Petitioner0s firin' of his ar"alite could not have a"ounted to noneother than lendin' "oral assistance to his co-accused, thereb) indicatin' the

fli'ht do not conclusivel) prove innocence.7 Besides, a conspirator #ho #ants toe<tricate hi"self fro" cri"inal liabilit) usuall) perfor"s an overt act to dissociateor detach hi"self fro" the unla#ful plan to co""it the felon) #hile the



presence of conspirac).7

As the appellate court observed #hich is ?uoted #ith approval=In the present recourse, #hen infor"ed that Fonathan and Ed8el #ere bein'"anhandled and assaulted b) "ale persons, +ppe6#t 6rme m$e 9t 6#M-1< 6rm6te. Fose /alan?uines, Fr., the father of Ed8el, follo#ed suit and ar"edhi"self #ith an M-%: ar"alite 'un. Fesus ar"ed hi"self #ith a revolver #hileFonathan ar"ed hi"self #ith a piece of #ood. Fonathan and Ed8el #erenephe#s of the Appellant #ho resided in the house of Fose /alan?uines, Fr. +

te +)$e #)#: te +ppe6#t te# proeee po$t6$te to teor#er o M.H. e P6r or#er Sto. %om#:o Street$ 9ere te )prt$9o) p6$$ b* 6# 96te or te 6e#t o te )prt$. Ee# 6$ Her#6#6poo:Ke or $ 6# $ omp6#o#$ 6$$6)t o EKe 6# (o#6t6#,(e$)$ ber6te Her#6# 6# $ omp6#o#$. +mo$t $m)t6#eo)$*, te+ppe6#t re $ :)# #to te 6r 6$ (o#6t6# )#:e 6t Her#6# 6# $omp6#o#$ to t tem 9t te pee o 9oo. Al"ost si"ultaneousl), Fose/ala?uines, Fr. fired his 'un at 1ernani and shot Eduardo hittin' the" and, in theprocess, hittin' his nephe#, Fonathan Bacabac. Te +ppe6#t #ot t 6#:er 9e# (o$e re 6t 6# $ot Her#6# 6# E)6ro. He $too b* 6$(o$e $ot Her#6# 6#e9 9e# te 6tter o# be#e 8#ee$, r6$e $ t9o 2I6#$, # $)rre#er. Te +ppe6#t 6# te oter +)$e te# e romte $e#e, 9t ter re$pete re6rm$ 6# 9e6po#$. /he overt act of the

Accused and the Appellant in con9unto, constitute proof of conspirac).Te +ppe6#t 6# (o$e 9ere 6rme 9t :-po9ere :)#$. Fesus #asar"ed #ith a revolver. Te #6t)re o te 9e6po#$ o te +)$e e#e 6ommo# e$re to o 696* 9t te )prt$, #ot mere* to $6re tem."6t $ o)tr6:eo)$ $ t6t te +ppe6#t 96$ 6 poem6#. He o) er*9e 6e )$t 6rre$te te )prt$ 6$ te* $6)#tere b* 6# bro):t temto te poe $t6to# or te re=)$te #e$t:6to# 6# te #$tt)to# o rm#6 omp6#t$, 96rr6#te. He o) 6e $$)6e (o$e 6# (e$)$6# 6$$)re tem t6t te )prt$ 9 be )* #e$t:6te 6# 6r:e 96rr6#te. Te +ppe6#t #ot. 1e ar"ed hi"self #ith an M-%: ar"alite < <<. L/he three 536 positioned the"selves at the corner of M.1. del Pilar and to.Do"in'o treets for the culprits to arrive. 1ernani and his co"panions #eredoo"ed. It "a) be true that the Appellant did not ai" his 'un at the deceased but

the sa"e is peu de chose. B) his overt acts, in unison #ith the other Accusedand his &inship #ith Fonathan and Ed8el, $e are convinced that he conspired#ith Fose /alan?uines, Fr. and the other Accused to achieve a co""on purposeto &ill 1ernani and Eduardo.7: 5E"phasis and underscorin' supplied6Petitioner0s failure to assist the victi"s after the shootin' reinforces this Court0sappreciation of co""unit) of desi'n bet#een hi" and his co-accused to har"the victi"s. /hat it #as he #ho first officiall) reported the shootin' to the policestation7 does not "a&e hi" an) less a conspirator. Goluntar) surrender and non-

co""ission of the felon) is in pro'ress.7+ In petitioner0s case, he reported theshootin' incident after it had alread) ta&en place. In le'al conte"plation, there#as no lon'er a conspirac) to be repudiated since it had alread) "ateriali8ed.

Contrar) to petitioner0s assertion,% the appellate court did not err in appreciatin'the presence of conspirac) despite its findin' that there #as no evidentpre"editation. /his Court0s pronounce"ent that conspirac) presupposes thee<istence of evident pre"editation* does not necessaril) i"pl) that the converse V that evident pre"editation presupposes the e<istence of a conspirac) V is true.

In an) event, a lin& bet#een conspirac) and evident pre"editation is presu"edonl) #here the conspirac) is directl) established and not #here conspirac) isonl) i"plied, as in the present case.3

Neither did the appellate court err in findin' the presence of treacher). /reacher),under Article %7, para'raph %: of the Revised Penal Code, is present 4#hen theoffender co""its an) of the cri"es a'ainst the person, e"plo)in' "eans,"ethods, or for"s in the e<ecution thereof #hich tend directl) and speciall) toinsure its e<ecution, #ithout ris& to hi"self arisin' fro" the defense #hich theoffended part) "i'ht "a&e.4$hat is decisive in treacher) is that 4the attac& #as e<ecuted in such a "anner as to "a&e it i"possible for the victi" to retaliate.47 In the case at bar, petitioner,a police"an, and his co-accused #ere ar"ed #ith t#o M-%: ar"alites and arevolver. /he victi" and his co"panions #ere not ar"ed. /he attac& #as

sudden and une<pected,:

and the victi" #as alread) &neelin' in surrender #henhe #as shot the second ti"e. Clearl), the victi" and his co"panion Eduardo hadno chance to defend the"selves or retaliate.Petitioner nevertheless ar'ues that he not bein' the tri''er "an, it is not lo'icalnor le'al to hold hi" 'uilt) of treacher). /his ar'u"ent falls in the face of thesettled doctrine that once conspirac) is established, the act of one is the act of alleven if not all actuall) hit and &illed the victi".

As for petitioner0s invocation of the "iti'atin' circu"stance of 4i""ediatevindication of a 'rave offense,4 it fails. or such "iti'atin' circu"stance to becredited, the act should be, follo#in' Article %3, para'raph of the Revised PenalCode, 4co""itted in the i""ediate vindication of a :r6e oe#$e to te o#eommtt#: te eo#* etoI, $ $po)$e, 6$e#6#t$, e$e#6#t$,e:tm6te, #6t)r6 or 6opte broter$ or $$ter$, or re6te$ b* 6#t*

9t# te $6me e:ree.4+ /he offense co""itted on Ed8el #as 4hittin'4 his ear #ith a stic&: 5accordin' to Fesus6, a ba"boo pole 5accordin' to Ed8el6.:% B)Ed8el0s o#n clarification, 4Lhe #as hit at Lhis ear, not on Lhis head.4 :* /hat act#ould certainl) not be classified as 4'rave offense.4 And Ed8el is petitioner0snephe#, hence, not a relative b) affinit) 4#ithin the sa"e de'ree4 conte"platedin Article %3, para'raph of the Revised Penal Code."HEREFORE, the petition is %SMSSE% and the appellate court0s decision is+FFRME%.

Costs a'ainst petitioner.SO OR%ERE%.PunoWC.J. CarpioWWW Tinga #elasco Jr. JJ. concur.

WW

37 Id. at *+-*+*.3 Id. at *:+-*.3: /he 9ud'"ent #as recorded in the Boo& of Entries of Fud'"ents on Ful) **,



Huisu"bin'WW, F., on leave.

Foot#ote$W Desi'nated "e"ber pursuant to Ad"inistrative Circular No. -*.WW !n 2eave.WWW Actin' Chairperson.% /N, Dece"ber *, %++%, p. > /N, Dece"ber 3, %++%, pp. , 3:-3> Records,older %, pp. 3::, 7*:, 7-7.*

/N, Dece"ber 3, %++%, p. 3+> Records, older %, p. 7:.3 /N, Dece"ber *, %++%, p. %:> id. at 37.7 /N, Au'ust %+, %++%, p. %> id. at %*. /N, Au'ust *:, %++%, pp. +-%> id. at *%, *-*:.: Records, older *, p. *7. Records, older %, p. *7. Id. at %.+ Records, older *, p. %.% Records, older %, pp. *-:.%% Id. at .%* Id. at %*, .%3 Id. at +-%%.%7 Id. at %3-%7.%

Id. at %.%: CA rollo, pp. %3+-%7.% Id. at %7*-%+.% Id. at %-%+.%+ Id. at *3-*+.* Penned b) then Court of Appeals Associate Fustice Ro"eo F. Calle9o, r., #iththe concurrence of Court of Appeals Associate Fustices Huirino D. Abad antos,Fr. and Mariano M. "ali. Id. at *+-*.*% Records, older %, p. :3.** Id. at :7-:.*3 Id. at :+-3.*7 CA rollo, pp. *+-*+.* Id. at 33.*: Id. at 33+-3.* Id. at 3*.* Rollo pp. %%-3*.*+ Id. at %7-%.3 Decision, CA rollo, pp. *::-*:.3% Rollo, pp. **-*.3* Id. at *:-*.33 Id. at *+3.

%+++ but the certification of such entr) is dated Nove"ber *, %+++. Giderecords, older %, p. :3.3 Id. at *.3 Ibid.3+ /N, Au'ust %+, %++%, pp. 3-> id. at %*%-%*.7 Rollo pp. %-%+, *7-*:.7% Gide People v. Chua, @.R. No. %7+3, Ful) *:, *7, 73 CRA %+*, **.7* Gide People v. Ro-as, @.R. Nos. 2-7:+:-:*, Fanuar) , %+, %7 CRA %:+,

%:.73 Gide People v. Arro)o, @.R. No. ++*, epte"ber %3, %++%, *% CRA :%:,:*+.77 Gide !rodio v. Court of Appeals, @.R. No. 2-%+, epte"ber %3, %+, %:CRA 3%:, 3*3.7 Gide People v. 2ua)on, 3*+ Phil. :, : 5%++:6.7: CA rollo, pp. **-*3.7 Rollo, p. *7.7 Gide People v. Hui9ada, 3* Phil. , 3* 5%++:6.7+ Gide People v. De los Re)es, Ibid.% Rollo p. *.* People v. Regalario, @.R. No. %%7%, March *3, %++3, ** CRA 3:, 3.3

Gide People v. 1erbias, 333 Phil. 7**, 73%-73* 5%++:6.7 People v. Bingan 3%% Phil. %, %* 5%++6. Records, older %, p. .: Ibid. Rollo p. **7. Gide People v. A"brocio, @.R. No. %7*:, Fune *+, *7, 737 CRA :, 3.+ E"phasis and underscorin' supplied.: /N, Dece"ber 3, %++%, p. 3+> Records, older %, p. 7:.:% /N, Dece"ber *, %++%, p. %*> id. at 3.:* Id. at 3> id. at 3+:.


cartrid'es to his chief.In vie# of the fore'oin' the provincial fiscal on the th of ebruar), %+, filed aco"plaint #ith the Court of irst Instance of said province char'in' Au'ustus1i & ith th i f d P di i tit t d th t i l t ft

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ManilaEN BANC

G.R. No. 4@71 September 23, 1@0@THE UNTE% ST+TES, plaintiff,vs.+UGUSTUS HCS, defendant.ffice of the *olicitor2/eneral Barvey for plaintiff. Jose Ro!les 'ahesa fordefendant.

TORRES, J.:or about five )ears, fro" epte"ber, %+*, to Nove"ber, %+, Au'ustus 1ic&s,an Afro-A"erican, and A'ustina ola, a Christian Moro #o"an, illicitl) livedto'ether in the "unicipalit) of Paran', Cotabato, Moro Province, until troublearisin' bet#een the" in the last-"entioned "onth of %+, A'ustina ?uitted1ic&0s house, and, separation fro" hi", #ent to live #ith her brother-in-la#, 2uisCorrales. A fe# da)s later she contracted ne# relations #ith another ne'rona"ed $allace Current, a corporal in the Ar") #ho then #ent to live in the saidhouse.!n the *%st of Dece"ber follo#in', at about =3 p. "., Au'ustus 1ic&s to'ether #ith a soldier na"ed 2lo)d Nic&ens called at said house, and fro" the sala calledout to his old "istress #ho #as in her roo" #ith Corporal Current, and after conversin' #ith her in the Moro dialect for a fe# "inutes, as&ed the corporal to

co"e out of said roo"> in response thereto the corporal appeared at the door of the roo", and after a short conversation, Current approached 1ic&s and the)shoo& hands, #hen 1ic&s as&ed hi" the follo#in' ?uestion= 4Did I not tell )ou toleave this #o"an alone,4 to #hich Current replied= 4/hat is all ri'ht, she told "ethat she did not #ant to live #ith )ou an) lon'er, but if she #ishes, she "a) ?uit"e, and )ou can live #ith her.4 /he accused then replied= 4@od da"n, I have"ade up ") "ind>4 and as Corporal Current sa# that 1ic&s, #hen, he said this,#as dra#in' a revolver fro" his trousers0 poc&et, he cau'ht hi" b) the hand, butthe latter, snatchin' his hand rou'hl) a#a), said= 4Don0t do that,4 #hereuponCurrent 9u"ped into the roo", hidin' hi"self behind the partition, 9ust as 1ic&sdre# his revolver and fired at A'ustina ola #ho #as close b) in the sala of thehouse. /he bullet struc& her in the left side of the breast> she fell to the 'round,and died in a little "ore than an hour later.

pon hearin' the shot Ed#ard Robinson, #ho #as also in the house, #ent torender assistance and #rested the #eapon fro" the hand of the accused. /helatter i""ediatel) fled fro" the house and 'ave hi"self up to the chief of policeof the to#n, 1. 2. Martin, as&in' hi" to loc& hi" up in 9ail> and, #hen a fe#"inutes later a police"an ca"e runnin' in and reported that 1ic&s had fired ashot at A'ustina, the said chief of police caused 1ic&s to be arrested. /he latter,#hen once in 9ail, thre# ei'ht revolver cartrid'es out of the #indo#> these #erepic&ed up b) a police"an #ho reported the occurrence and delivered the

1ic&s #ith the cri"e of "urder. Proceedin's #ere instituted, the trial court, after hearin' the evidence adduced, entered 9ud'"ent on the %th of epte"ber of thesa"e )ear, sentencin' the accused to the penalt) of death, to be e<ecutedaccordin' to the la#, to inde"nif) the heirs of the deceased in the su" of P%,,and to pa) the costs. /he case has been sub"itted to this court for revie#./he above-stated facts, #hich have been full) proven in the present case,constitute the cri"e of "urder, defined and punished b) article 73 of the PenalCode, in that the #o"an A'ustina ola "et a violent death, #ith the ?ualif)in'

circu"stance of treacher) 5alevosia6, she bein' suddenl) and rou'hl) attac&edand une<pectedl) fired upon #ith a 7-caliber revolver, at close, if not point blan&ran'e, #hile the in9ured #o"an #as unar"ed and unprepared, and at a ti"e#hen she #as listenin' to a conversation, in #hich she #as concerned, bet#eenher a''ressor and third person, and after usual and custo"ar) #ords had passedbet#een her and her a''ressor. ro" all of the fore'oin' it is lo'icall) inferredthat "eans, "anners, and for"s #ere e"plo)ed in attac& that directl) andspeciall) insured the consu""ation of the cri"e #ithout such ris& to the author thereof as "i'ht have been offered b) the victi" #ho, o#in' to the suddennessof the attac&, #as doubtless unable to flee fro" the place #here she #asstandin', or even escape or divert the #eapon./he accused, Au'ustus 1ic&s, pleaded not 'uilt), but not#ithstandin' hise<culpator) alle'ations #hich #ere certainl) not borne out at the trial, the

evidence in the case is absolutel) at variance there#ith and conclusivel)establishes, be)ond peradventure of doubt, his culpabilit) as the sole full)convicted author of the violent and treacherous death of his for"er "istress, A'ustina ola.It is alle'ed b) the accused that #hen he #ithdre# his hand fro" that of Current,#ho had sei8ed hi", he fell bac&#ard but "ana'ed to support hi"self on his t#ohands, and #hen he 'ot up a'ain the said corporal threatened hi" #ith arevolver thrust into his face> #hereupon he also dre# his revolver, 9ust as Ed#ardRobinson cau'ht hi" fro" behind, #hen his revolver #ent off, the bullet stri&in'the deceased./his alle'ation appears to be at variance #ith the testi"on) of the #itnesses$allace Current, Ed#ard Robinson, 2uis Corrales, and 2lo)d Nic&ens in their respective declaration, especiall) #ith that of the second and third, #ho

#itnessed the actual firin' of the shot b) the a''ressor at the deceased, assho#n b) the fact that Robinson i""ediatel) approached the accused in order tota&e his #eapon a#a) fro" hi" #hich he succeeded in doin' after a brief stru''le, #hereupon the a''ressor ran out of the house. /hus, the shot thatstruc& the deceased in the breast and caused her death #as not due to anaccident but to a #illful and pre"editated act on the part of the a''ressor #ithintent to deprive the victi" of her life.In addition to the ?ualif)in' circu"stance of treacher), as above referred to, the

presence of other a''ravatin' circu"stances, such as pre"editation, and the factthat the cri"e #as co""itted in the d#ellin' of the deceased should be ta&eninto consideration. /he last-"entioned circu"stances appears proven fro" thetesti"on) of several #itnesses #ho #ere e<a"ined at the trial of the case



testi"on) of several #itnesses #ho #ere e<a"ined at the trial of the case.Inas"uch as in the present case the cri"e has alread) been ?ualified asco""itted #ith treacher), the circu"stance of pre"editation should onl) beconsidered as a "erel) 'eneric one. Pre"editation is, ho#ever, "anifest andevident b) reason of the open acts e<ecuted b) the accused. Accordin' to thetesti"on) of Charles @atcher) and Eu'enio R. $hited, 1ic&s as&ed leave fro"the for"er to be absent fro" the canteen #here he #as #or&in' on the "ornin'of the da) #hen the affra) occurred, alle'in' that his "ind #as unsettled and that

he feared 'ettin' into trouble. It is also sho#n b) the fact that $hited, #ho #as in1ic&s0 house about noon upon the latter0s invitation, and #hile both #heredrin&in' 'in, and #hile the revolver, the instru"ent of the cri"e, #as l)in' on thetable on #hich #ere also several loaded cartrid'es, heard the accusedrepeatedl) sa), referrin' to the deceased, that her ti"e had co"e, addin' that he#ould rather see her dead than in the ar"s of another "an, and #hen theaccused #ent to bed apparentl) ver) "uch #orried, and refusin' to ans#er #hencalled, the #itness left hi". !n the da) after the cri"e the police found on a tablein the cuprit0s house several loaded cartrid'es, a bottle of oil and a piece of clothused undoubtedl) for cleanin' the revolver. All the fore'oin' circu"stances conclusivel) prove that the accused, deliberatel)and after due reflection had resolved to &ill the #o"an #ho had left hi" for another "an, and in order to acco"plish his perverse intention #ith safet),

not#ithstandin' the fact that he #as alread) provided #ith a clean and #ell-prepared #eapon and carried other loaded cartrid'es besides those alread) inhis revolver, he entered the house, 'reetin' ever)one courteousl) and conversed#ith his victi", in #hat appeared to be a proper "anner, dis'uisin' his intentionand clai"in' her b) his apparent repose and tran?uilit), doubtless in order tosuccessfull) acco"plish his cri"inal desi'n, behavin' hi"self properl) as he hadplaned to do beforehand. As a'ainst the t#o fore'oin' a''ravatin' circu"stances no "iti'atin'circu"stances is present, not even that "entioned in para'raph of article + of the Penal Code, to #it loss of reason and self-control produced b) 9ealous) asalle'ed b) the defense, inas"uch as the onl) causes #hich "iti'ate the cri"inalresponsibilit) for the loss of self-control are such as ori'inate fro" le'iti"atefeelin's, not those #hich arise fro" vicious, un#orth), and i""oral passions.

ro" the fore'oin' considerations, and as the 9ud'"ent appealed fro" is inaccordance #ith the la#, it is our opinion that the sa"e should be affir"ed, as #edo hereb) affir" it #ith costs, provided, ho#ever, that the death penalt) shall bee<ecuted accordin' to the la# in force, and that in the event of a pardon bein''ranted, the culprit shall suffer the accessor) penalties of article 3 of the PenalCode unless the sa"e be e<pressl) re"itted in the pardon. o ordered. Arellano C. J. Johnson Carson and 7oreland JJ. concur.


ManilaEN BANC

circu"stance of article + of the code, the Audiencia renderin' it see"s to haveviolated this le'al provision.4It is true that in the case of .. vs. 1ic&s 5%7 Phil. Rep.., *%6, #e held that the4causes #hich "iti'ate the cri"inal responsibilit) for the loss of self control are



EN BANCG.R. No. L-70@4 M6r 2@, 1@12THE UNTE% ST+TES, plaintiff-appellee,vs.HL+RO %E L+ CRUA, defendant-appellant.+.C. +isher for appellant. Acting Attorney2/eneral Barvey for appellee.C+RSON, J.=/he 'uilt of the defendant and appellant of the cri"e of ho"icide of #hich he #as

convicted in the court belo# is conclusivel) established b) the evidenced ofrecord./he trial court #as of opinion that its co""ission #as not "ar&ed b) eithera''ravatin' or e<tenuatin' circu"stances, and sentenced the convict to fourteen)ears ei'ht "onths and one da) of reclusion temporal , the "ediu" de'ree of thepenalt) prescribed b) the code. Burt #e are of opinion that the e<tenuatin'circu"stance set out in subsection of article + should have been ta&en intoconsideration, and that the prescribed penalt) should have been i"posed in its"ini"u" de'ree. ubsection of article + is as follo#s=/he follo#in' are e<tenuatin' circu"stances=< < < < < < < < </hat of havin' acted upon an i"pulse so po#erful as naturall) to have producedpassion and obfuscation.

/he evidence clearl) discloses that the convict, in the heat of passion, &illed thedeceased, #ho had theretofore been his querida 5concubine or lover6 upondiscoverin' her in flagrante in carnal co""unication #ith a "utual ac?uaintance.$e thin& that under the circu"stances the convict #as entitled to have this factta&en into consideration in e<tenuation of his offense under the provisions of theabove-cited article./his #as the vie# ta&en b) the Court of pain upon a si"ilar state of facts as setforth in its sentence of Ful) 7, %+*, #hich is su""ari8ed b) Giada 5p. :+, in?uestion %+, art. + of vol. :6 as follo#s=hall he #ho &ills a #o"an #ith #ho" he is livin' in concubina'e for havin'cau'ht her in her underclothes #ith another part) and after#ards shoots hi"self,inflictin' a serious #ound, be responsible for that cri"e #ith the e<tenuatin'circu"stance of havin' acted #ith violent passion and obfuscation /he

Audiencia of antia'o de Cuba did not so hold and its 9ud'"ent #as reversed b)the supre"e court for the i"proper disre'ard of article +, nu"ber , of the PenalCode for Cuba and Puerto Rico= 4/he facts held to be true b) the trial court, and#hich #ere the i""ediate cause of the cri"e b) producin' in the accused stron'e"otion #hich i"pelled hi" to the cri"inal act and even to atte"pt his o#n life,#ere a sufficient i"pulse in the natural and ordinar) course to produce the violentpassion and obfuscation #hich the la# re'ards as a special reason fore<tenuation, and as the 9ud'"ent did not ta&e into consideration the th

causes #hich "iti'ate the cri"inal responsibilit) for the loss of self-control aresuch as ori'inate fro" le'iti"ate feelin's, not those #hich arise fro" vicious,un#orth), and i""oral passions,4 and declined to 'ive the benefit of theprovisions of this article to the convict in that case on the 'round that the alle'edcauses for his loss of self-control did not 4ori'inate fro" le'iti"ate feelin's.4 Butin that case #e found as facts that= All the fore'oin' circu"stances conclusivel) prove that the accused, deliberatel)and after due reflection had resolved to &ill the #o"an #ho had left hi" for

another "an, and in order to acco"plish his perverse intention #ith safet),not#ithstandin' the fact that he #as alread) provided #ith a clean and #ell-prepared #eapon and carried other loaded cartrid'es besides those alread) inhis revolver, he entered the house, 'reetin' ever)one courteousl) and conversed#ith his victi", in #hat appeared to be in a proper "anner, dis'uisin' hisintention and cal"in' her b) his apparent repose and tran?uilit), doubtless inorder to successfull) acco"plish his cri"inal desi'n, behavin' hi"self properl)as he had planned to do beforehand.In the for"er case the cause alle'ed 4passion and obfuscation4 of the a''ressor#as the convict0s ve<ation, disappoint"ent and deliberate an'er en'endered b)the refusal of the #o"an to continue to live in illicit relations #ith hi", #hich shehad a perfect ri'ht to do> his reason for &illin' her bein' "erel) that he hadelected to leave hi" and #ith his full &no#led'e to 'o and live #ith another "an.

In the present case ho#ever, the i"pulse upon #hich defendant acted and #hichnaturall) 4produced passion and obfuscation4 #as not that the #o"an declined tohave illicit relations #ith hi", but the sudden revelation that she #as untrue tohi", and his discover) of her in flagrante in the ar"s of another. As said b) thesupre"e court of pain in the above-cited decision, this #as a 4sufficienti"pulse4 in the ordinar) and natural course of thin's to produce the passion andobfuscation #hich the la# declares to be one of the e<tenuatin' circu"stances tobe ta&en into consideration b) the court.Modified b) a findin' that the co""ission of the cri"e #as "ar&ed #ith thee<tenuatin' circu"stance set out in subsection of article +, and b) the reductionof the penalt) of fourteen )ears ei'ht "onths and one da) of reclusion temporal to t#elve )ears and one da) of reclusion temporal , the 9ud'"ent of convictionand the sentence i"posed b) the trial court should be and are hereb) affir"ed,

#ith the costs of this instance a'ainst the appellant. Arellano C.J. Torres Johnson and Trent JJ. concur.

Sep6r6te Op#o#$MOREL+N%, J., concurrin'=I a'ree e<cept as to the application of the e<tenuatin' circu"stance presented b)para'raph , article +, Penal Code. In ") 9ud'"ent it is not #arranted b) thefacts or the la#.


ManilaIR/ DIGII!N

Appellant further testified that on March *7, %+, after he #as infor"ed b) hisdau'hter that his #ife and para"our #ere livin' at a house in front of the to.NiOo Catholic Church, appellant i""ediatel) repaired to that place. ponenterin' the house he sa# his #ife l)in' on her bac& and her para"our on top of



IR/ DIGII!N G.R. No. @5357 ()#e @, 1@@3PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs.E%U+R%O GEL+&ER, accused-appellant.The *olicitor /eneral for plaintiff2appellee.Joffrey '. 7ontefrio for accused2appellant.

?U+SON, J.:

/his is an appeal fro" the decision of the Re'ional /rial Court, Branch *:,urallah, outh Cotabato, findin' Eduardo @elaver, 'uilt) be)ond reasonabledoubt of Parricide 5Art. *7:, Revised Penal Code6 and sentencin' hi" to 4suffer the penalt) of reclusion perpetua and to inde"nif) the heirs of his #ife, GictoriaPacinabao, in the a"ount of P3,..4 5Decision, p. > Rollo p. *6In the Infor"ation filed #ith the trial court and doc&eted as Cri"inal Case No.:73, Eduardo @elaver, #as char'ed #ith Parricide co""itted as follo#s=/hat on or about the *7th da) of March, %+ at = o0cloc& in the "ornin',"ore or less, in Baran'a) Poblacion, Municipalit) of to. NiOo, Province of outhCotabato, Philippines, and #ithin the 9urisdiction of this 1onorable Court, saidaccused #ith intent to &ill and bein' then ar"ed #ith a &nife did then and there

#ilfull), unla#full) and feloniousl) attac&, assault and stab one GIC/!RIA@E2AGER PACINABA!, his la#full) #edded #ife, #ith the use of the said &nifehittin' her and #oundin' her on the different parts of her bod) and as a resultthereof said Gictoria @elaver ) Pacinabao died instantl). 5Rollo, p. 6 At his arrai'n"ent, appellant entered a plea of 4not 'uilt)4, and thereafter trial onthe "erits ensued./he prosecution presented Rand) Ma"on, #ho testified that at = a.". of March *7, %+, he heard shouts co"in' fro" the house of /essie 2a"pedario inBaran'a) Poblacion, Municipalit) of to. NiOo, outh Cotabato. 1e sa# theappellant and a #o"an havin' a heated ar'u"ent. /hereafter, appellant held thenec& of the victi", dra''ed her and #ith a &nife on his ri'ht hand, stabbed thelatter three ti"es on the breast. Appellant then #ent out of the 'ate and f led in thedirection of the public "ar&et of to NiOo. 5/N, Fune *, %+, pp. -%6

Eduardo @elaver ad"itted &illin' his #ife but clai"ed that he did so after catchin'her havin' carnal act #ith her para"our. Appellant testified that he #as "arried to Gictoria Pacinabao, #ith #ho" hebe'ot four children. 5/N, Dece"ber %+, %+, p. +6 /he) lived to'ether at their con9u'al ho"e until Ful) 3, l+ #hen she abandoned her fa"il) to live #ith her para"our. 5/N, Dece"ber %+, %+, pp. %-%%6 1e did not &no# the na"e of his#ife0s para"our nor the na"e of the o#ner of the house #here his #ife and her para"our had lived to'ether.

enterin' the house, he sa# his #ife l)in' on her bac& and her para"our on top of her, havin' se<ual intercourse. Appellants version of the &illin' #as that #hen his #ife sa# hi", she pushed her para"our aside. 1er para"our i""ediatel) stood up, too& a &nife placed on topof the bedside table and attac&ed appellant. /he latter #as able to #restpossession of the &nife and then used it a'ainst the para"our, #ho evaded thethrusts of the appellant b) hidin' behind the victi". /hus, it #as the victi" #horeceived the stab intended for the para"our.

As to #h) he continued to stab his #ife, appellant said that his "ind had been4di""ed4 or overpo#ered b) passion and obfuscation b) the si'ht of his #ifehavin' carnal act #ith her para"our. Appellant faults the trial court in i"posin' the penalt) of reclusion perpetua for the cri"e of parricide, instead of the penalt) of destierro for &illin' under e<ceptional circu"stances pursuant to Article *7 of the Revised Penal Code.5Appellant0s Brief, p. %6 Appellant0s contention is bereft of "erit.Before Article *7 of the Revised Penal Code can be operative, the follo#in're?uisites "ust be co"present=%. /hat a le'all) "arried person or a parent surprises his spouse or his dau'hter,the latter under % )ears of a'e and livin' #ith hi", in the act of committing se,ual intercourse with another person.

*. /hat he or she &ills any or both of the" or inflicts upon an) or both of the" an)serious ph)sical in9ur) in the act or immediately thereafter .3. /hat he has not pro"oted or facilitated the prostitution of his #ife or dau'hter,or that he or she has not consented to the infidelit) of the other spouse. 5II Re)es,/he Revised Penal Code, %*th Ed., pp. 7*-3> E"phasis supplied6/hese re?uisites "ust be established b) the defense.I"plicit in this e<ceptional circu"stance is that the death caused "ust be thepro<i"ate result of the outra'e over#hel"in' the accused after chancin' uponhis spouse in the act of infidelit) 5People v. Abarca, %3 CRA 3 L%+6. In thiscase, appellant #ants this Court to believe that he cau'ht his #ife and her para"our in se<ual intercourse. 1o#ever, his testi"on) is tainted #ithinconsistencies #hich leads s to believe other#ise. Appellant0s failure to infor" the police that he &illed his #ife #hen he sa# her

havin' se<ual intercourse #ith her para"our, devastated in one fell s#oop#hatever credibilit) could possibl) be accorded to his version of the incident. Asnoted b) the olicitor @eneral, the natural thin' for a person to do under thecircu"stances #as to report to the police the reason for &illin' his #ife.5Appellee0s Brief, p. > Rollo, p. :6 Appellant0s contention that he thou'ht thatonl) the &illin' itself should be blottered, reservin' the details to the defensela#)er, sounded li&e a spoonfed afterthou'ht.If there #as a na&ed "an #ith the victi", he #ould have had no ti"e to 'et

dressed because he #as then under attac& b) appellant. /here #ould then havebeen the spectacle of a "an in the nude runnin' in the streets./he trial court noted several contradictions in appellant0s testi"on). Appellantclai"ed that he chased the para"our but #as unable to overta&e hi" and at the



clai"ed that he chased the para"our but #as unable to overta&e hi" and at thesa"e ti"e, he testified that the para"our sta)ed in the roo" and used the victi"as a shield a'ainst appellant0s attac& #ith the &nife. Appellant also clai"ed thatupon enterin' the 'ate of the fence, he sa# his #ife and her para"our havin'carnal act and at the sa"e breath, he testified that he sa# his #ife and her para"our onl) #hen he opened the "ain door of the house./he trial court found as contrar) to hu"an nature appellant0s clai"s that he #entto confront the para"our of his #ife unar"ed and that he never learned the na"e

of the para"our inspite of the fact that his #ife, alle'edl), had been livin' #ith thepara"our in the sa"e to#n for al"ost a )ear before the incident. Absent an) substantial proof that the trial court0s decision #as based onspeculation, the sa"e "ust be accorded full consideration 5People v. Martinada,%+7 CRA 3: L%++%6 and should not be disturbed on appeal 5Mercur) Dru' v.CIR, : CRA :+7 L%+76. Appellant0s clai" that on the da) prior to his &illin' of the victi", his dau'hter her)l had confided to hi" that her "other #as livin' #ith a para"our at thehouse in front of the to. NiOo Catholic Church #as belied b) her)l herself. Inher testi"on), she stated that she did not &no# the house #here the cri"e #asco""itted and she had not 'one to that place. he further testified that she hadnot seen her "other in an) other house e<cept that of her 'randfather0s. 5/N,Fanuar) %, %++, p. 6

/he trial court #as correct in findin' the presence of the "iti'atin' circu"stanceof voluntar) surrender to the authorities. Appellant, i""ediatel) after co""ittin'the offense, voluntaril) placed hi"self at the disposal of the police authorities asevidenced b) the entr) in the official police blotter.5E<h. 4%461o#ever, the trial court erred in findin' the presence of the "iti'atin'circu"stance of passion or obfuscation 4as a result of his 5appellant0s6 #ifeleavin' their ho"e and their children.4 5Rollo, p. *6 Before this circu"stance"a) be ta&en into consideration, it is necessar) to establish the e<istence of anunla#ful act sufficient to produce such a condition of "ind. /he act producin' theobfuscation "ust not be far re"oved f ro" the co""ission of the cri"e b) aconsiderable len'th of ti"e, durin' #hich the accused "i'ht have recovered hise?uani"it). 5I Revised Penal Code, A?uino, %+ ed., p. *:6 /he cri"e #as

co""itted al"ost a )ear after the victi" had abandoned the con9u'al d#ellin'.$1ERE!RE, the Fud'"ent appealed fro" is AIRMED e<cept #ith theM!DIICA/I!N that the inde"nit), be increased to P,. 5People v. ison,%+ L%++6.! !RDERED.Cru6 /ri:o Aquino and &ellosillo JJ. concur.


ManilaEN BANC

Ma) %: he sa# Alicia enter the @u"aca theater in @u"aca #ith a "an#ho" the accused found later #as caressin' his co""on-la# #ife insidethe "ovie house> 56 that bein' in love #ith her he too& her out fro" the"ovie and #arned her to be "ore discreet in her personal conduct in



G.R. No. L-1'7@2 Febr)6r* 2', 1@<4THE PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs.GULLERMO !ELLO, defendant-appellant.ffice of the *olicitor /eneral for plaintiff2appellee.+erdinand $. 7arcos fordefendant2appellant.

RE>ES, (.!.L.,J.:

Appeal fro" a 9ud'"ent of the Court of irst Instance of Hue8on in its Cri"inalCase No. +*-@, for "urder./he infor"ation filed a'ainst the accused alle'ed four 576 a''ravatin'circu"stances, na"el)= treacher), evident pre"editation, ni'htti"e, and superiorstren'th. /he trial court "ade a findin' of 4treacher), evident pre"editation and incold blood and #ithout an) provocation4> ho#ever, the dispositive portion of theappealed decision states as follo#s=

... the Court finds the accused @uiller"o Bello 'uilt) be)ond reasonabledoubt of the cri"e of "urder defined an punished b) Article *7 of theRevised Penal Code #ith the a''ravatin' circu"stances of 5%6 ni'htti"e,5*6 abuse of confidence and obvious un'ratefulness, 536 superiorstren'th offset onl) b) his surrender to the authorities and hereb)

sentence hi" to DIE b) electrocution in the "anner provided b) la#orderin' his heirs, after his death, to inde"nif) the heirs o the deceased Alicia Cervantes in the su" of P3,., #it costs.

/he record bears out, the !ffice of the olicitor @eneral does not challen'e, andthe counsel de oficio a'ree #ith, and adopts, the follo#in' findin's of fact of thetrial court=

ro" the evidence adduced at the hearin' of the case, it has beenestablished to the satisfaction of the Court 5%6 that on epte"ber %,%+7, the accused @uiller"o Bello, a #ido#er #ho at that ti"e #as about7 )ears of a'e, too& a )oun' peasant lad) na"ed Alicia Cervantes,about *7 )ears old his co""on-la# #ife> 5*6 that fro" that da) the) livedto'ether apparentl) in blissful har"on) as "an and #ife #ithout thebenefit of "arria'e bearin', ho#ever, no child, ...> 536 that on Ma) %,

%+, the accused #ho had no "eans of substantial livelihood e<ceptthat of "a&in' 4&ain'in4 and #ho apparentl) #as then in financial straitsinduced Alicia Cervantes to accept an e"plo)"ent as entertainer in a bar and restaurant establish"ent &no#n as Marin'0s Place situated thecorner of A'uinaldo and Bonifacio treets, @u"aca, Hue8on 576 that Alicia Cervantes entered the service of Marin'0s Place on that da) as apublic hostess> 56 that the accused bein' infatuated #ith his )oun' brideused to #atch her "ove"ents in Marin'0s Place ever)da)> 5:6 that on

p@u"aca> 56 that Alicia Cervantes continued to serve at Marin'0s Placeas a public hostess> 5+6 that on Ma) *, %+, at 3= p.". the accused#ent to Marin'0s Place to as& for so"e "one) fro" Alicia> 5%6 thatMarin', the o#ner of the place, and Alicia refused to 'ive "one), Marin'tellin' hi" to for'et Alicia co"pletel) because he #as alread) an old"an, an invalid besides and should stop botherin' Alicia> 5%%6 that havin'failed to obtain financial assistance fro" his para"our, accused left the

place so"e#hat despondent and #ent ho"e passin' Bonifacio treet>5%*6 that on his #a) ho"e he "et the brothers Fusto Marasi'an and 2uisMarasi'an #ho 'reeted the accused, 2uis sa)in' to his brother Fusto thefollo#in'= 4o this is the "an #hose #ife is bein' used b) Marin' for#hite slave trade4> 5%36 that these re"ar&s of 2uis Marasi'an naturall)brou'ht 'rief to the accused, to dro#n #hich he sou'ht Pat)0s place in@u"aca #here he dran& 'lasses of tuba> 5%76 that fro" Pat)0s place he#ent to Realistic tudio #hich is in front of Marin'0s Place and fro" there#atched the "ove"ents of Alicia> 5%6 that at about += o0cloc& thatni'ht he entered Marin'0s Place and #ithout "uch ado held Alicia fro"behind #ith his left hand in the "anner of a boa stran'ulatin' its pre) and#ith his ri'ht hand stabbed Alicia several ti"es #ith a balison'> 5%:6 thatseein' Alicia fallen on the 'round and believin' her to be "ortall)

#ounded, he fled and #ent to the "unicipal buildin' and theresurrendered hi"self to the police of @u"aca.Both the prosecution and the defense also a'ree that the cri"e co""itted is not"urder but onl) ho"icide, but the) disa'ree in the ?ualif)in' or a''ravatin' and"iti'atin' circu"stances. /he prosecution holds that the cri"e is ho"icide,a''ravated b) abuse of superior stren'th, but offset b) voluntar) surrender. !nthe other hand, the defense "aintains that the accused is entitled to theadditional "iti'atin' circu"stance of passion and obfuscation. /he trial court helda different conclusion, as earlier stated.$hile it cannot be denied that Alicia #as stabbed at the bac&, the #ound #as buta part and continuation of the a''ression. /he four 576 stab #ounds 5the 3 others#ere in the breast, h)po'astric re'ion, and in the left #rist as sho#n in thecertificate of the Municipal 1ealth !fficer6 #ere inflicted indiscri"inatel), #ithout

re'ard as to #hich portion of her bod) #as the sub9ect of attac&. /he trial courtitself found that the stab in the bac& #as inflicted as Alicia #as runnin' a#a). orthis reason, treacher) cannot be i"puted 5People v. CaOete, 77 Phil. 76.Evident pre"editation #as, li&e#ise, not established. /he accused had beencarr)in' a !alisong #ith hi" for a lon' ti"e as a precaution a'ainst drun&ards,and #ithout an) present plan or intent to use it a'ainst his co""on-la# #ife. /hathe #atched her "ove"ents dail) "anifest his 9ealous character, but there is noevidence that fro" this 9ealous) sprouted a plan to snuff out her life.1?wph@1.:t

/he evidence does not sho#, either, an) superior stren'th on the part of theaccused, and, not possessin' it, he could not ta&e advanta'e of it. /rue that he#as ar"ed #ith a !alisong , but he #as old and !aldado 5invalid6, #hile Alicia #asin the pri"e of her )outh, and not infir". /he facts are not sufficient to dra# a

to be caressed b) a stran'er. 1er loose conduct #as forcibl) driven ho"e to theaccused b) Marasi'an0s re"ar& on the ver) da) of the cri"e that the accused#as the husband 4#hose #ife #as bein' used b) Marin' for purposes ofprostitution,4 a re"ar& that so deepl) #ounded the appellant0s feelin's that he



co"parison of their relative stren'th. Possession of a !alisong 'ives ana''ressor a for"idable advanta'e over the unar"ed victi", but the ph)si?ue ofthe a''ressor ou'ht also to be considered. At an) rate, ta&in' into account thee"otional e<cite"ent of the accused, it is not clearl) sho#n that there #as4intencion deliberada de prevalerse de la superioridad o aprovecharseintencionada"ente de la "is"a4 5ent. /. !ct. %+:6, i.e., deliberate intent tota&e advanta'e of superior stren'th./he cri"e #as co""itted at ni'htti"e, but the accused did not see& or ta&eadvanta'e of it the better to acco"plish his purpose. In fact, Marin'0s Place #asbri'ht and #ell-li'hted> hence, the circu"stance did not a''ravate the cri"e.5.. vs. Ra"os, et al., * Phil. 737> .. vs. Bonete, 7 Phil. +.6$e can not understand ho# the trial court ca"e to couple the cri"e #ith thea''ravatin' circu"stance of abuse of confidence and obvious un'ratefulness./here is nothin' to sho# that the assailant and his co""on-la# #ife reposed inone another an) special confidence that could be abused, or an) 'ratitude o#edb) one to the other that ou'ht to be respected, and #hich #ould bear an)relation, or connection, #ith the cri"e co""itted. None is inferable fro" the factthat the accused #as "uch older than his victi", or that he #as penniless #hileshe #as able to earn a livin' and occasionall) 'ave hi" "one), since both livedto'ether as husband and #ife. Neither is it sho#n that the accused too&

advanta'e of an) such special confidence in order to carr) out the cri"e.ince the a''ravatin' circu"stances of treacher), evident pre"editation, andabuse of superior stren'th, #hich could have ?ualified the cri"e as "urder, #erenot present, and since the 'eneric a''ravatin' circu"stances of ni'htti"e andabuse of confidence and obvious un'ratefulness have not been established, theaccused can onl) be liable for ho"icide.Both defense and prosecution a'ree that the accused-appellant is entitled to thebenefit of the "iti'atin' circu"stances of voluntar) surrender to the authorities./he re"ainin' area of conflict is reduced to #hether the accused "a) la) clai"to a second "iti'atin' circu"stance, that of havin' acted on a provocationsufficientl) stron' to cause passion and obfuscation. /he defense sub"its thataccused is so entitled, because the deceased0s flat re9ection of petitioner0sentreaties for her to ?uit her callin' as a hostess and return to their for"er

relation, a''ravated b) her sneerin' state"ent that the accused #as pennilessand invalid 5baldado6, provo&ed the appellant, as he testified, into losin' his headand stabbin' the deceased. /he state disputes the clai" pri"aril) on the stren'thof the rule that passion and obfuscation can not be considered #hen 4arisin'fro" vicious, un#orth), and i""oral passions4 5.. vs. 1ic&s, %7 Phil. *%6.$e are inclined to a'ree #ith the defense, havin' due re'ard to thecircu"stances disclosed b) the record. It #ill be recalled that the lo#er courtfound that the accused had previousl) reproved the deceased for allo#in' herself

#as driven to consu"e a lar'e a"ount of #ine 5tuba6 before visitin' Alicia 5thedeceased6 to plead #ith her to leave her #or&. Alicia0s insultin' refusal to rene#her liaison #ith the accused, therefore, #as not "otivated b) an) desire to lead achaste life henceforth, but sho#ed her deter"ination to pursue a lucrativeprofession that per"itted her to distribute her favors indiscri"inatel). $e can notsee ho# the accused0s insistence that she live #ith hi" a'ain, and his ra'e at her re9ection of the proposal, can be properl) ?ualified as arisin' fro" i""oral andun#orth) passions. Even #ithout benefit of #edloc&, a "ono'a"ous liaisonappears "orall) of a hi'her level than 'ainful pro"iscuit).$1ERE!RE, the appealed decision should be, and hereb) is, "odified. /hisCourt finds the accused-appellant, @uiller"o Bello, 'uilt) be)ond reasonabledoubt of the cri"e of ho"icide, attended b) t#o 5*6 "iti'atin' circu"stances= 5a6passion and obfuscation, and 5b6 voluntar) surrender, and, therefore, i"posesupon hi" an indeter"inate sentence ran'in' fro" a "ini"u" of si< 5:6 )ears andone 5%6 da) of prision mayor to a "a<i"u" of ten 5%6 )ears of prision mayor >orders hi" also to personall) inde"nif) the heirs of Alicia Cervantes in thea"ount of P:,., and to pa) the costs. o ordered.&eng6on C.J. Padilla &autista Angelo 'a!rador Concepcion &arrera

Paredes %i6on Regala and 7a(alintal JJ. concur.


SUPREME COURTManila

IR/ DIGII!N G R N 54344 45 ( 10 1@@4

'roups. In a split second, he 5Danilo6 #as hit on the left chest b) a dart fro" theslin'shot of @ildo #ho" he sa# ai"in' at hi". 1e 5Danilo6 pulled the dart fro"his chest and ran a#a) but #as hit on the lips b) a bullet. /hen he #as pushedb) 1ernando to see& cover. 4

R f l C d l i b th i l f th ! l t & th it t d 1i



G.R. No$. 54344-45 (6#)6r* 10, 1@@4PEOPLE OF THE PHLPPNES, plaintiff-appellee,vs."LLE +M+GUN, GL%O +M+GUN +N% CELSO +M+GUN, accused."LLE +M+GUN +N% GL%O +M+GUN, accused-appellants.The *olicitor /eneral for plaintiff2appellee.*i,to P. %emaisip for accused2appellants. !ELLOSLLO, J.:

/he coup de main on the !ro brood sent t#o brothers to the "ortuar) and a thirdto "edical care. /he bloodbath resulted in the brothers $illie, @ildo and Celso,all surna"ed A"a'uin, bein' char'ed #ith the "urder of the !ro brothersPacifico and Diosdado. $illie and @ildo #ent throu'h trial #hile Celso to this datere"ains a fu'itive./he culpabilit) of the A"a'uin brothers #as recounted b) 1ernando !ro, a)oun'er brother of Pacifico and Diosdado. 1ernando narrated that in theafternoon of *7 Ma) %+, he and his brothers Diosdado and Danilo, brother-in-la# Rafael Candelaria, an first cousin er'io Ar'on8ola #ere invited b) their eldest brother Pacifico to the latter0s house in the interior of Divina'racia treet,2a Pa8, Iloilo Cit), for a s"all 'atherin' to celebrate the to#n fiesta. 1 At about five

o0cloc& in the afternoon, after parta&in' of the "ea'er preparations put to'ether b) Pacifico, he 51ernando6 and his co"panions decided to leave. /he) #ereacco"panied b) their host to the pla8a #here the) could 'et a ride.!n their #a), #hile traversin' Divina'racia treet, Pacifico #as called b)accused Celso A"a'uin = 4Pare, co"e here.4 But Pacifico ans#ered = 4Pare, not)et because I have to conduct ") 'uests first.4 I""ediatel), Celso, #ith abutcher0s &nife in hand, rushed to#ards Pacifico. @ildo, Celso0s )oun'er brother,#ith a &nife tuc&ed to his #aist, follo#ed #ith a slin'shot &no#n as 4Indian pana4or 4Indian tar'et4. $hile @ildo ai"ed the dart fro" his slin'shot at Danilo, #hichhit the latter on the chest, Celso hac&ed Pacifico. @ildo then stabbed Diosdado#ith a &nife. /hereafter, $illie, the eldest of the A"a'uin brothers, appeared #itha hand'un and successivel) shot the brothers Pacifico, Diosdado and the fleein'Danilo. Diosdado, o#n &neelin', 'aspin' for breath and pleadin' for his life, #as

a'ain shot b) $illie #ho ne<t fired ane# at Pacifico. Mean#hile, @ildo and Celsorepeatedl) stabbed Pacifico #ho alread) l)in' prostrate and defenseless. 2

Danilo !ro, the )oun'est of the !ros, li&e#ise testified. 1e said that at aroundfive o0cloc& in the afternoon of *7 Ma) %+, #hile #al&in' alon' Divina'raciatreet on their #a) to the pla8a for ride ho"e #ith his three brothers and t#oothers, the) #ere #a)laid b) Celso, $illie and @ildo, their cousin Dann), allsurna"ed A"a'uin, and several others. Celso placed an ar" on the shoulder of Pacifico and stabbed hi" #ith a &nife. 3 /hen there #as a clash bet#een the t#o

Rafael Candelaria, a brother-in-la# of the !ros, also too& the #itness stand. 1isversion #as that #hile he, his brothers-in-la# and one er'io Ar'on8ola #ere#al&in' alon' Divina'racia treet that afternoon, t#o "en approached the".$ithout an) provocation, one suddenl) stabbed hi". After bein' hit on the leftar", he i""ediatel) fled to the pla8a #here he fla''ed do#n a passin' cab tota&e hi" to the hospital. 1e did not see #hat happened ne<t to his co"panions. 5

/he defense ho#ever "aintains that it #as the !ro brothers #ho started the fi'ht. Accused @ildo A"a'uin recounted that on *7 Ma) %+, at about five o0cloc& inthe afternoon, Pacifico #ith five others #ent to their house in Divina'racia treet,2a Pa8, Iloilo Cit), and approached his brother Celso, #ho #as #aitin' for his#ife at the foot of the stairs. $hile Pacifico #as tal&in' to Celso, a co"panion of Pacifico ca"e for#ard, held Celso b) the shoulder and said = 4/his is the bravest"an in Divina'racia treet, the A"a'uin.4 Mean#hile, another co"panion of Pacifico 'ave Celso a fl)in' &ic& that sent hi" reelin'. @ildo then #ent do#n thehouse shoutin' = 4Don0t fi'ht.4 1o#ever, the attac&ers dre# their &nives andslin'shots. In return, Celso pulled out his &nife. ince one of the co"panions of Pacifico lun'ed at hi", @ildo retreated to the other side of the road and thre#stones at his attac&ers.Mean#hile, he sa# his cousin Dann) hit Danilo !ro #ith a dart fro" a slin'shot.But later Dann) hi"self #as stabbed fro" behind b) one of Pacifico0s

co"panions. /hen Ernie !rti'as, a 'uest of Celso, e"er'ed fro" the A"a'uinresidence holdin' a revolver. Ernie initiall) fired three #arnin' shots, after #hichhe successivel) shot Pacifico and a person #ho tried to stab the for"er as #ellas an identified co"panion of Pacifico. 2ater, both Ernie !rti'as and Celso A"a'uin escaped to#ards the rail#a) trac&s. < /he follo#in' da), he #as brou'htb) his uncle to the PC authorities in ort an Pedro for 4safe-&eepin'4 and turnedover to the local police after a #ee&./he stor) of @ildo #as confir"ed b) Gicente Belicano 7 and Nilda /a'non', ' lon'-ti"e residents of Divina'racia treet, and Nenita A"a'uin, "other of the accusedbrothers, #ho even affir"ed that her son Celso #as indeed troubleso"e, @ butadded that $illie 4never had an) brush #ith thela#.4 10

!n his part, $illie related that he #as in the house of his uncle alon'

Divina'racia treet that afternoon drin&in' #ith so"e friends. 1e left the 'roupafter hearin' so"e e<plosions co"in' fro" the direction of his "other0s houseand then seein' his cousin Dann), #ith a stab #ound at the bac&, bein' ta&en b)t#o police"en, and his #ounded brother @ildo runnin' to#ards the pla8a. /hus,he #ent to his "other0s residence to find out #hat happened. But #hen he 'otthere, the incident had alread) ended. As a conse?uence, he #as told b) his"other to loo& for his t#o brothers #ho #ere #ounded in the fi'ht and to ta&ethe" to the hospital. 11 1e turned hi"self in after five da)s, upon learnin' that la#

enforcers #ere loo&in' for hi".lpiano Gencer, Ro'elio de la Pa8 and Pat Fereos all confir"ed that accused$illie onl) left their 'atherin' after the e<plosions #ere heard, and onl) afterseein' his #ounded brother @ildo and his cousin Dann), #ho #as in the

f t li b

heard the #itnesses and observed their deport"ent and "anner of testif)in'durin' the trial. Conse?uentl), the assess"ent of the trial 9ud'e is usuall)received #ith respect, if not conclusiveness, on appeal unless there is a sho#in'of arbitrariness. Al#a)s, this has been the fa"iliar rule. 1<

I th i t t th t i l t h t d dibl th t ti i f



co"pan) of t#o police"en, pass b).Perla Belle8a, a ve'etable vendor in the 2a Pa8 Public Mar&et, also testified thatafter hearin' si< e<plosions, she sa# an unidentified "an #ith a revolver runnin'a#a) fro" the scene of the cri"e, follo#ed b) accused Celso #ho #as holdin' a&nife. he #as certain that the unidentified "an #as not accused $illie as thelatter #as ver) #ell &no#n to her, she bein' a for"er nei'hbor of the A"a'uins.12

Dr. /ito Doro"al, Asst. Medico-2e'al !fficer, Iloilo Metropolitan DistrictCo""and, INP, conducted an autops) on Pacifico and Diosdado. 1e declaredthat out of the % stab #ounds and one 'unshot #ound Pacifico sustained, five of the stab #ounds #ere fatal. $ith re'ard to Diosdado, four 576 stab #ounds, out of the ten 5%6, and the lone bullet he had sustained #ere considered fatal. 13

After a 9oint trial, and findin' the version of the prosecution to be "ore credible,the then Court of irst Instance of Iloilo, Br. II, 14 found the accused @ildo A"a'uin, also &no#n as 4/i'ib,4 'uilt) be)ond reasonable doubt of the cri"e ofMurder, and . . . sentenced 5hi"6 to Reclusion Perpetua, both in Cri"inal CasesNos. 7% and 7*, to'ether #ith all the accessor) penalties, and to pa) thecosts.4 As re'ards $illie A"a'uin alias 4/i&bo),4 the trial court found hi" 'uilt) 4asacco"plice in both Cri"inal Cases 7% and 7*, and . . . sentenced 5hi"6 to

an indeter"inate penalt) of eventeen 5%6 ears, our 576 Months, and !ne 5%6Da) to /#ent) 5*6 ears each in said cases to'ether #ith all the accessor)penalties, and to pa) the costs.4Both accused #ere 4further sentenced to inde"nif) the heirs of the late Pacifico!ro and Diosdado !ro, 9ointl) and severall) in the total su" of P*7,. asdeath co"pensation> P*,. 5as6 "oral da"a'es> P%,. 5as6e<e"plar) da"a'es> and P,. for burial e<penses, in both Cri"inal casesnos. 7% and 7*.4In this appeal, accused $illie A"a'uin and @ildo A"a'uin clai" that the court aquo erred= 5a6 in cate'ori8in' the offenses as "urder> 5b6 in findin' $illie A"a'uin to be the person involved in the incident> 5c6 in holdin' that there #asconspirac) bet#een the brothers @ildo and Celso A"a'uin 5the latter is at lar'e6>5d6 in findin' @ildo A"a'uin to be ar"ed #ith a &nife and an Indian tar'et #hen

he #as onl) ar"ed #ith stones> and, 5e6 even assu"in' the accused to be 'uilt),in not holdin' the" responsible for their individual acts, and in not appreciatin'the "iti'atin' circu"stance of voluntar) surrender. 15

Before disposin' of the other issues raised b) appellants, #e resolve the secondand fourth assi'ned errors first to deter"ine #hich of the t#o conflictin' versionsof the incident deserves credence. /heir resolution rests upon the credibilit) ofthe #itnesses #ho have co"e for#ard, a "atter addressed to the sound 9ud'"ent of the trial court #hich is in a better position to decide the", it havin'

In the instant case, the trial court has accepted as credible the testi"onies of1ernando and Danilo !ro #ho positivel) identified accused Celso and @ildo A"a'uin as havin' started the assault on the !ro brothers #ith the use of a &nifeand an 4Indian pana,4 and accused $illie A"a'uin as the 'un#ielder #ho shotthe brothers Pacifico, Diosdado and Danilo durin' the fra). $e see no reason todisre'ard the assess"ent. $e si"pl) cannot set aside the factual findin's of thetrial court absent an) sho#in' of capriciousness on its part./he defense belittles the testi"on) of 1ernando !ro pointin' to accused $illie A"a'uin as the 'un"an as it stands 4sin'l) and alone,4 in contrast to thedeclaration of the defense #itnesses e<oneratin' $illie and @ildo. $hile thedefense "a) have presented a nu"ber of #itnesses #ho, as the trial court putsit, 4virtuall) 0san'0 in a chorus that the &illers 5Celso and Dann) A"a'uin and acertain Ernie !rti'as6 not the t#o accused herein 5$illie and @ildo A"a'uin6,4 17 still the trial 9ud'e had the opportunit), as #ell as the ri'ht andresponsibilit), to assess their credibilit) Q 9ust li&e all other #itnesses. After all,there is no la# #hich re?uires that the testi"on) of a sin'le #itness needscorroboration e<cept #hen the la# so e<pressl) re?uires. As it is often said,#itnesses are to be #ei'hed, not nu"bered. If credible and positive, thetesti"on) of a sin'le #itness is sufficient to convict. 1' Indeed the deter"ination of the credibilit) of #itnesses is the trial court0s do"ain, hence, #e respect its

factual findin's.or, even the respective defenses of the accused, i.e., accused $illie A"a'uin0salibi that he did not participate in the fra) and that he #as in the nearb) house ofhis uncle drin&in' #ith his friends, and accused @ildo A"a'uin0s denial that he#as unar"ed but later forced to hurl stones to defend hi"self, are #ithout soundbasis. Alibi is one of the #ea&est defenses that can be resorted to especiall)#here there is direct testi"on) of an e)e#itness, not onl) because it is inherentl)#ea& and unreliable but also because of the ease of its fabrication and thedifficult) of chec&in' and rebuttin' it. 1@ Besides, alibi to be believed "ust besupported b) the ph)sical i"possibilit) of the accused to have been at the sceneof the cri"e. 20 And as in an alibi, a denial, if unsubstantiated b) clear andconvincin' evidence, is a ne'ative and self-servin' evidence #hich deserves no#ei'ht in la# and cannot be 'iven 'reater evidentiar) value over the testi"on) of

credible #itnesses #ho testif) on affir"ative "atters. 21

/hus, as bet#een a "eredenial of the accused and the positive identification and detailed declarations ofthe prosecution #itnesses, the trial court co""itted no error in accordin' heavier#ei'ht to the latter. 22

1ence, this version of the prosecution prevails= Celso and @ildo, to'ether #ithothers, attac&ed the !ros. Durin' the fra), @ildo #as ar"ed #ith a &nife and an4Indian tar'et.4 And 9ust as the) #ere about to finish off the !ro brothers, $illie,the eldest of the A"a'uins, appeared #ith a revolver and delivered the coup de

grace./he factual settin' havin' been settled, #e no# 'o to the first assi'ned error ,i.e., th#t the lo#er court erred in cate'ori8in' the offense as "urder there bein'no treacher) since 4the co"batants #ere face to face4 and 4Lconfrontin' eachother frontall) that each #ill &no# each other0s ne<t "ove 4 23 E<cept for

abuse of superior stren'th, althou'h not alle'ed in the infor"ation but provendurin' the trial, "a) be considered as a 'eneric a''ravatin' circu"stance. 27

In Cri". Case No. 7*, #here $illie shot Pacifico #hile l)in' prostrate alread)#ith nu"erous fatal stab #ounds, $illie should be liable for frustrated ho"icide itappearin' that the 'unshot #ound #as not fatal althou'h his intent to &ill #as



other frontall) . . . that each #ill &no# each other s ne<t "ove. E<cept forappellants0 pre"ise, the ar'u"ent has "erit. /he &illin' of Pacifico and Diosdadocannot be ?ualified b) treacher).$hile #e have alread) ruled that even a frontal attac& can be treacherous, as#hen it is sudden and une<pected and the victi" is unar"ed, 24 here, it appearsthat the a''ressors did not e"plo) "eans tendin' directl) and speciall) toensure the e<ecution of the cri"e #ithout ris& to the"selves arisin' fro" thedefense #hich the offended parties "i'ht ta&e.It "ust be noted that the assailants attac&ed a 'roup of si< 5:6 individuals #hocould have been ar"ed.It is hi'hl) probable that at least one of those attac&ed could offer resistance andcould put the lives of the a''ressors in dan'er, as #hat indeed happened #henaccused-appellant @ildo A"a'uin and his cousin Dann) suffered in9uries as aresult of the fi'ht #hich, f ro" all indications, ended in a free-for-all. /hat Pacificosustained % stab #ounds and a 'unshot #ound, and Diosdado, ten stab #oundsand a bullet #ound, does not necessaril) "ean that treacher) attended the&illin's. As alread) adverted to, for treacher) to be appreciated, the offender "uste"plo) "eans, "ethods, or for"s in the co""ission of the cri"e #hich tenddirectl) and speciall) to insure its e<ecution #ithout ris& to hi"self arisin' fro"the defense #hich the offended part) "i'ht ta&e. 25 1ere, there is serious doubt.

!n the third assi'ned error, i.e., that there #as conspirac) bet#een @ildo andCelso, #ho re"ains at lar'e, the evidence sho#s ho# Celso and @ildosi"ultanousl) assaulted the !ro brothers. $hile Celso lun'ed at Pacifico, @ildoai"ed his slin'shot at Danilo #ho #as hit b) its dart, and i""ediatel)attac&ed Pacifico #ith a &nife. nder the circu"stances, it is evident that @ildoand Celso acted in unison and cooperated #ith each other to#ard theacco"plish"ent of a co""on felonious ob9ective. Certainl), there #asconspirac) bet#een the brothers @ildo and Celso, and it #as not necessar) toprove a previous a'ree"ent to co""it the cri"e since fro" their overt acts, it#as clear that the) acted in concert in the pursuit of their unla#ful desi'n.1o#ever, it #as error to rule that accused $illie #as an acco"plice to hisbrothers. /here bein' no sufficient evidence to lin& hi" to the conspirac), heshould be liable for the natural and lo'ical conse?uence of his o#n felonious

acts. 1ence, #e ta&e e<ception to the conclusion of the trial court that Pacificoand Diosdado did not die due to the 'unshot #ounds inflicted b) $illie.Dr. /ito Doro"al, the "edico-le'al officer #ho autopsied the bodies of Pacificoand Diosdado, testified that #hile the 'unshot #ound sustained b) Pacifico #asnot fatal, that suffered b) Diosdado #as fatal. 2<

Conse?uentl), in Cri". Case No. 7%, #here $illie "ortall) shot Diosdado, heshould be liable for ho"icide. And, since Diosdado #as alread) on bended &neesand pleadin' for his life #hen fatall) shot, the a''ravatin' circu"stance of the

appearin' that the 'unshot #ound #as not fatal althou'h his intent to &ill #asevident. 2i&e#ise, the a''ravatin' circu"stance of abuse of superior stren'th"a) be appreciated as a 'eneric a''ravatin' circu"stance.inall), #e a'ree #ith accused-appellants0 vie# that voluntar) surrender shouldbe appreciated in their favor. $hile it "a) have ta&en both $illie and @ildo a#ee& before turnin' the"selves in, the fact is, the) voluntaril) surrendered to thepolice authorities before arrest could be effected. or voluntar) surrender to beappreciated as a "iti'atin' circu"stance, the follo#in' ele"ents "ust bepresent= 5a6 the offender has not been actuall) arrested> 5b6 the offendersurrendered hi"self to a person in authorit)> and 5c6 the surrender "ust bevoluntar). 2' All these re?uisites appear to have attended their surrender.No#, #e turn to the penalties.In Cri". Cases Nos. 7% and 7*, @ildo A"a'uin is 'uilt) of t#o 5*6 separatecri"es of ho"icide for the death of Diosdado and Pacifico, respectivel). /hepenalt) prescribed b) la# for ho"icide is reclusiontemporal . 2@ Appl)in' theIndeter"inate entence 2a#, and appreciatin' the "iti'atin' circu"stance ofvoluntar) surrender #ith no a''ravatin' circu"stance, the "a<i"u" penalt) tobe i"posed on accused @ildo A"a'uin for each of the ho"icide he hasco""itted, #hich he "ust serve successivel), should be ta&en fro" the "ini"u"of the i"posable penalt), #hich is reclusion temporal the ran'e of the "ini"u"

period of #hich is t#elve 5%*6 )ears and one 5%6 da) to fourteen 5%76 )ears andei'ht 56 "onths, #hile the "ini"u" should be ta&en fro" the penalt) ne<t lo#erin de'ree, #hich is prision mayor the full ran'e of #hich is si< 5:6 )ears and one5%6 da) to t#elve 5%*6 )ears, in an) of its periods.In Cri". case No. 7%, $illie A"a'uin is 'uilt) of ho"icide a''ravated b) abuseof superior stren'th but offset b) the "iti'atin' circu"stance of voluntar)surrender, and in Cri". Case No. 7*, he is 'uilt) of frustrated ho"icide li&e#isea''ravated b) abuse of superior stren'th but offset b) voluntar) surrender. orthe ho"icide, appl)in' the Indeter"inate entence 2a# and ta&in' into accountthe "iti'atin' circu"stance of voluntar) surrender #hich, as earlier "entioned,offsets the a''ravatin' circu"stance of abuse of superior stren'th, the "a<i"u"penalt) should be ta&en fro" the "ediu" of the i"posable penalt), #hich isreclusion temporal the ran'e of the "ediu" period of #hich is fourteen 5%76 )ears

ei'ht 56 "onths and one 5%6 da) to seventeen 5%6 )ears and four 576 "onths,#hile the "ini"u" should be ta&en fro" the penalt) ne<t lo#er in de'ree #hichis prision mayor in an) of its periods.or the frustrated ho"icide, the i"posable penalt) is one de'ree lo#er than thepenalt) prescribed b) la# for the consu""ated offense, and one de'ree lo#erthan reclusion temporal is prision mayor . Appl)in' the Indeter"inate entence2a# and the attendin' circu"stances #hich offset each other, the "a<i"u"penalt) to be i"posed should be ta&en fro" the "ediu" of the i"posable

penalt), #hich is prision "a)or the ran'e of the "ediu" period of #hich is ei'ht56 )ears and one 5%6 da) to ten 5%6 )ears, #hile the "ini"u" should be ta&enfro" the penalt) ne<t lo#er in de'ree, #hich is prision correccional the full ran'eof #hich is si< 5:6 "onths and one 5%6 da) to si< 5:6 )ears, in an) of its periods.$1ERE!RE the decision of the court a quo findin' the accused-appellants

% Brief for Accused-Appellants, p. %.%: People vs. Deuna, @.R. No. , %: Nove"ber %++3> People vs. Clapano,@.R. No. %:*, Nove"ber %++3> People vs. Ra"illa, @.R. No. %%73, Nove"ber %++3> People vs. Re"ollo, @.R. No. %77+, ** !ctober %++3>People vs encil @ R Nos %++-: %* !ctober %++3> People vs ala"at



$1ERE!RE, the decision of the court a quo findin' the accused-appellants$I22IE AMA@IN and @I2D! AMA@IN 'uilt) in Cri". Cases Nos. 7% and7* is M!DIIED as follo#s=5a6 accused-appellant $I22IE AMA@IN is found 'uilt) of 1!MICIDE in Cri".Case No. 7% and is sentenced to si< 5:6 )ears, t#o 5*6 "onths and one 5%6 da)of prision mayor "ini"u" as "ini"u", to fourteen 5%76 )ears, ei'ht 56 "onthsand t#ent) 5*6 da)s of reclusion temporal "ediu" as "a<i"u", and ofR/RA/ED 1!MICIDE in Cri". Case No. 7* and is sentenced to si< 5:6"onths and t#ent) 5*6 da)s of prision correccional "ini"u" as "ini"u", toei'ht 56 )ears, four 576 "onths and ten 5%6 da)s of prision mayor as "a<i"u",to be served successivel)>.5b6 accused-appellant @I2D! AMA@IN is found 'uilt) of t#o 5*6 separatecri"es of 1!MICIDE in Cri". Cases Nos. 7% and 7* and is sentenced to si<5:6 )ears t#o 5*6 "onths and one 5%6 da) of prision mayor "ini"u" as "ini"u",to t#elve 5%*6 )ears, si< 5:6 "onths and ten 5%6 da)s of reclusion temporal "ini"u" as "a<i"u", for each ho"icide, to be served successivel)>5c6 in Cri". Case No. 7%, accused-appellants $I22IE AMA@IN and @I2D! AMA@IN are declared 9ointl) and severall) liable to the heirs of Diosdado !rofor P,. as civil inde"nit) consistent #ith prevailin' 9urisprudence> and,5d6 in Cri". case No. 7*, accused-appellant @I2D! AMA@IN is liable to the

heirs of Pacifico !ro for P,. as civil inde"nit).Costs a'ainst accused-appellants $I22IE AMA@IN and @I2D! AMA@IN inboth cases.! !RDERED.Cru6 %avide Jr . and 0uiason JJ . concur . Foot#ote$% /N, %: Fanuar) %+, pp. 3:-3.* d ., pp. 3-7%.3 d ., % !ctober %+, pp. 7-:, *.7 d ., pp. -%%, *-37. d ., *3 ebruar) %+, pp. +-:.: d ., %7 epte"ber %+, pp. ++-%.

d ., ** Au'ust %+, pp. *3-*. d ., pp. 3+-73.+ d ., *3 !ctober %+, p. %*.% d ., p. %*%.%% d ., % Fanuar) %++, pp. -.%* d ., ** Au'ust %+, pp. 3-3.%3 d ., : Dece"ber %+, pp. *-:> E<hs. 4A4 and 4B4.%7 Fud'e Midpantao 2. Adil, presidin'.

People vs. encil, @.R. Nos. %++-:, %* !ctober %++3> People vs. ala"at,@.R. No. %3*+, * Au'ust %++3.% Decision of the trial court, p. .% People vs. Ni"o, @.R. No. +*33, !ctober %++3, citin' People vs.Gillalobos, @.R. No. %*:, * Ma) %++*> *+ CRA 37, 3%.%+ People vs. A"ador, @.R. Nos. %7:-+, % epte"ber %++3> People vs.Cortes, @.R. No. %%, 3 epte"ber %++3.* d .> People vs. Re"ollo, @.R. No. %77+, ** !ctober %++3.*% People vs. encil, @.R. Nos. %++-:, %* !ctober %++3.** People vs. @erona, @.R. No. %*3, Nove"ber %++3.*3 Brief for Accused-Appellants, p. 7*.*7 People vs. Favar, @.R. No. *:+, : epte"ber %++3, citin' People vs. Cru8,@.R. No. +73, 7 epte"ber %++*> *%3 CRA %++*.* Art. %7, par. %:, Revised Penal Code.*: ee Note %3.* ee People vs. A"ato, No. 2-**3, % Fanuar) %+*> %%% CRA 3+.* People vs. Cana"o, @.R. No. :*73, %3 Au'ust %+> %3 CRA %7%.*+ Art. *7+, Revised Penal Code.


ManilaEN BANC

G.R. No. L-452'4 %eember 2@, 1@3<THE PEOPLE OF THE PHLPPNE SL+N%S, plaintiff-appellee,

Legas* and three other *ersons hose denttes are st%% !nnon3confederatng together and he%*ng one another3 dd then and there%f!%%$3 !n%af!%%$ and fe%ono!s%$3 and th ntent of gan3 attac3assa!%t and !se *ersona% )o%ence !*on one Y! Wan3 #$ then and thereg)ng h" #%os th hs fst on the face and other *arts of the #od$



THE PEOPLE OF THE PHLPPNE SL+N%S, plaintiff appellee,vs.FR+NCSCO %E L+ CRUA, ET +L., defendants.FR+NCSCO %E L+ CRUA, appellant.7arciano *ayoc for appellant.ndersecretary of Justice 7elencio for appellee.

SYLLABUS

1. CRIMINAL LAW; ROBBERY; PENALTY. — The facts charged constt!tethe cr"e of ro##er$ defned n artc%e &'( of the Re)sed Pena% Codeand *!nshed #$ *rson correccona% to *rson "a$or n ts "ed!"*erod.

&. I+.; I+.; ,ABIT-AL +ELIN-ENCY AN+ RECI+I/I0M. — Thea%%egatons of the nfor"aton th res*ect to the a**e%%ant 2. de %a C.3are not s!ffcent to consder h" a ha#t!a% de%n4!ent 5Peo*%e )./en!s3 *. (673 ante8. ,oe)er3 the facts a%%eged n ths res*ectconstt!te the aggra)atng crc!"stance of recd)s".

6. I+.; I+.; CON2E00ION O2 9-ILT. — The a**e%%ant:s *%ea of g!%t$does not constt!te a "tgatng crc!"stance !nder artc%e 163 s!#secton <3 of the Re)sed Pena% Code3 hch re4!res that ths *%ea #es*ontaneo!s and that t #e "ade *ror to the *resentaton of e)dence#$ the *rosec!ton.

(. I+.; I+.; I+. — The confesson of g!%t3 a%tho!gh s!#se4!ent to thecons!""aton of the cr"e and entre%$ a%en to ts de)e%o*"ent3constt!tes a ca!se for the "tgaton of the *ena%t$ #eca!se3 as an actof re*entance and res*ect for the %a3 t ndcates a "ora% ds*ostonn the acc!sed fa)ora#%e to hs refor". These #enefts are not deser)ed#$ the acc!sed ho s!#"ts to the %a on%$ after the *resentaton of so"e e)dence for the *rosec!ton3 #e%e)ng that n the end the tra%

%% res!%t n hs con)cton #$ )rt!e thereof.

AVANCEÑA, C.J. :

Ths case as *rosec!ted !*on the fo%%ong nfor"aton=>That on or a#o!t the 6?th da$ of Ma$3 1'6@3 n the Ct$ of Man%a3Ph%**ne Is%ands3 the sad acc!sed 2rancsco de %a Cr!3 2ernando

g)ng h" #%os th hs fst on the face and other *arts of the #od$3there#$ nf%ctng !*on h" *h$sca% n!res hch ha)e re4!red and%% re4!re "edca% attendance for a *erod of "ore than one #!t %essthan nne da$s and ha)e *re)ented and %% *re)ent the sad Y! Wanfro" engagng n hs c!sto"ar$ %a#or for the sa"e *erod of t"e; andafterards too3 sto%e and carred aa$ th h" tho!t the consentof the oner thereof the fo%%ong *ersona% *ro*ert$3 to t=chanro#1es

)rt!a% 1a %#rar$

Tent$sD 5P&@8 *esos n cash3 consstng of

dfferent deno"natons P&@.??

#e%ongng to sad Y! Wan3 to the da"age and *re!dce of the sadoner n the sad s!" of P&@3 Ph%**ne c!rrenc$.

>That the sad acc!sed 2rancsco de %a Cr! s a ha#t!a% de%n4!ent!nder the *ro)sons of the Re)sed Pena% Code3 he ha)ng #een*re)o!s%$ con)cted once of the cr"e of theft and tce of the cr"e

of estafa3 #$ )rt!e of fna% !dg"ents rendered #$ co"*etent co!rts3ha)ng #een %ast con)cted on !%$ &(3 1'66.>cra%a )rt!a1a %#rar$

-*on arragn"ent3 the acc!sed *%eaded not g!%t$.

+!rng the tra% and after to tnesses for the *rosec!ton hadtestfed3 the acc!sed thdre for the *rosec!ton had testfed3 theacc!sed thdre ther *%ea of not g!%t$3 s!#stt!tng t #$ that of g!%t$. The co!rt sentenced 2rancsco de %a Cr! to sD "onths and oneda$ of *rson correccona% and3 consderng h" a ha#t!a% de%n4!ent3sentenced h" f!rther"ore to the addtona% *ena%t$ of sD $ears andone da$ of *rson "a$or. The other acc!sed 2ernando Legas* as

sentenced to ten "onths of *rson correccona%. 2rancsco de %a Cr!a**ea%ed fro" ths sentence.

The facts charged constt!te the cr"e of ro##er$ defned n artc%e &'(of the Re)sed Pena% Code and *!nshed #$ the *ena%t$ of *rsoncorreccona% to *rson "a$or n ts "ed!" *erod.

The a%%egatons of the nfor"aton th res*ect to the a**e%%ant

2rancsco de %a Cr! are not s!ffcent to consder h" a ha#t!a%de%n4!ent 5Peo*%e ). /en!s3 *. (673 ante8. ,oe)er3 the facts a%%egedn ths res*ect constt!te the aggra)atng crc!"stance of recd)s".

On the other hand the a**e%%ant:s *%ea of g!%t$ does not constt!te a

#$ the acc!sed ho s!#"ts to the %a on%$ after the *resentaton of so"e e)dence for the *rosec!ton3 #e%e)ng that n the end the tra%%% res!%t n hs con)cton #$ )rt!e thereof.

Wherefore e%"natng the addtona% *ena%t$ #$ reason of ha#t!a%



On the other hand3 the a**e%%ant s *%ea of g!%t$ does not constt!te a"tgatng crc!"stance !nder artc%e 163 s!#secton <3 of the Re)sedPena% Code3 hch re4!res that ths *%ea #e s*ontaneo!s and that t #e"ade *ror to the *resentaton of e)dence #$ the *rosec!ton. Theconfesson of g!%t3 a%tho!gh s!#se4!ent to the cons!""aton of thecr"e and entre%$ a%en to ts de)e%o*"ent3 constt!tes a ca!se for the"tgaton of the *ena%t$3 not #eca!se t s a crc!"stance "odf$ng

cr"na% res*ons#%t$ a%read$ nc!rred and n the e)o%!ton of hch thas not nter)ened a#so%!te%$3 #!t #eca!se3 as an act of re*entanceand res*ect for the %a3 t ndcates a "ora% ds*oston n the acc!sedfa)ora#%e to hs refor". It s c%ear that these #enefts are not deser)ed

Wherefore3 e%"natng the addtona% *ena%t$ #$ reason of ha#t!a%de%n4!enc$3 consderng the *resence of an aggra)atng crc!"stancen the co""sson of the cr"e tho!t an$ "tgatng crc!"stance3and a**%$ng the Indeter"nate 0entence La3 the a**e%%ant ssentenced to the *ena%t$ of fro" sD "onths of arresto "a$or3 as"n"!"3 to sD $ears3 ten "onths and one da$ of *rson "a$or3 as"aD"!"3 affr"ng the a**ea%ed sentence n a%% other res*ects3 th

the costs. 0o ordered.

/%%aRea%3 A#ad 0antos3 I"*era%3 +a3 La!re% and Conce*con3 JJ.3

conc!r.

Round Five Cases Full Text (Article 13) Criminal Law

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