Crim 1 Part 6

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 59

EN BANC

[G.R. No. 135981. January 15, 2004]


PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which
allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally
produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under
detention during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt
of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as
a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood
vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for
and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their
house at Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben
rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl
Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before
heading home. Arturo would pass Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao
runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I
wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. Arturo also noticed
that since then, the Genosas rented house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after
her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house
with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about
fifty (50) meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as
Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a
window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he
saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head.
Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada Genosa, the
mother of Ben, identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the
foul smell at the Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of
Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben
was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an
open end without a stop valve with a red stain at one end. The bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of
Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not
home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite
appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their
children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping
knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the
bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point,
appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage,
dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so nobody would nag
me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long
blade cutter from his wallet. She however, smashed the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then
smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and
shot Ben. He did not die on the spot, though, but in the bedroom.[7] (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husbands death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage,
Marivic and Ben lived happily. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic
holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed
to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima,
Ormoc City. She said as the marriage went along, Marivic became already very demanding. Mrs. Iluminada Genosa said that after the birth of
Marivics two sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm; the
second incident was on November 15, 1994, when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. It
was wounded and also the ear and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred
to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock-fighting place of
ISCO. They stayed there for three (3) hours, after which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they
bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the
road to wait for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was
waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony on the root of the
quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent.
Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should
leave her and that Ben would always take her back after she would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would
slap her, sometimes he would pin her down on the bed, and sometimes beat her.
These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to
change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and
Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her
every time he was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between
Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a
choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo
Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the
night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling
with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was able
to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00
the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling.
Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified if somebody would come. He testified that while Ben was alive he used to gamble and when he
became drunk, he would go to our house and he will say, Teody because that was what he used to call me, mokimas ta, which means lets go and
look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I noticed a wound
(the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured
too. He said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that her husband was already there and was drunk. Miss Arano knew he was
drunk because of his staggering walking and I can also detect his face. Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to
sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was
awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a
vase. She said Marivic ran into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and showed us the knife
through the window grill and he scared us. She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she
left Marivics house on November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and
had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2
and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic
went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. He
told Marivic to return in the morning, but he did not hear from her again and assumed that they might have settled with each other or they might
have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted
later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they
would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent
girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she was
leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to
smash him once; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass
and dragged her towards the drawer when he saw that she had packed his things.
9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence.
This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities
as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when
she got there, she saw some police officer and neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his
back to the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that
based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to
kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate
husband, with the use of a hard deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch
35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil
Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he
had prepared for Marivic which, for reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed
an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed
her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a
beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case
to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La
Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense College. She
has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD
from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological
Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology
Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing
on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and
Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause
all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical
abuse and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it,
that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra.
Dayan said that usually a battered x x x comes from a dysfunctional family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority
complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent. The batterer also usually comes
from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused
each other so there is a lot of modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she
provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all
costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long
lasting and even would cause hospitalization on the victim and even death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation
which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had
experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It
was at the time of the tragedy that Marivic then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine
Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed
Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military
Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented
twice in international congresses. He also authored The Mental Health of the Armed Forces of the Philippines 2000, which was likewise published
internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal
cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist
in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and
testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing,
verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-
Traumatic Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of
violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take more
repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the
parents. As to the batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without
thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-
experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed
weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim
resorts to weapons when she has reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used
the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January
2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she
was re-experiencing the trauma. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her
mind. At the time he interviewed Marivic she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quo were elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of
mind at the time she had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic
review or, in the alternative, a partial reopening of the case for the lower court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman syndrome plea; and requiring the lower court to report thereafter to this
Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and
Alfredo Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to
and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12]
The Issues
Appellant assigns the following alleged errors of the trial court for this Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide.
3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk,
a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear
attempt to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of
foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of
death.[13]
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by
this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse
or modify the trial courts disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense.
We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses
and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judges
conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on
November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him,
much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation.[15]
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of
their marriage contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of
the fact of marriage may be considered by the trial court if such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been
married to Marivic.[17] The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a
judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only
when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19] Other than merely
attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact
of her marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no
legal consequence. As the Court elucidated in its September 29, 2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing
her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts actually caused the victims death. Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this
case came to us for automatic review, appellant had not raised the novel defense of battered woman syndrome, for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-
defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general,
all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which
witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented
appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-
law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial courts appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused
admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to
the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept
has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a
victim or defendant is afflicted with the syndrome, foreign courts convey their understanding of the justifiably fearful state of mind of a person
who has been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order
to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice.
Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined
as a battered woman.[25]
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept responsibility for the batterers actions; and false hopes that the
relationship will improve.[26]
More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,[27] which has three phases: (1) the tension-
building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is
that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse
worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and
abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering incident.[29]
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can
be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason
with him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows
from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner will change for the better; and that this good, gentle and caring man is
the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels
responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this
phase of remorseful reconciliation that she is most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed
emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of tension, violence
and forgiveness, each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of
functioning without the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending
experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry.
Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how
frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me. [32]
Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:
Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is
traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to
1995, she had a consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her,
because tension headache is more or less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus. [34]
Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that
Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the
couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels room and locked the door. Ben showed
up by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the
Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state
of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37] Marivic
relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty
towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I
reached Bilwang, I immediately asked my son, where was his father, then my second child said, he was not home yet. I was worried because that
was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will
happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore him of his provocation and he switch off the light and I said to him, why did you switch off the light when the
children were there. At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering
his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding
my neck.
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be
nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he
pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the
wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I
had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latters ordeal
to the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to
you?
A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband
for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was
very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was
happening day in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence
as shown below:
Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant
information did you gather?
A The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial
knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.
xxxxxxxxx
Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?
A What I remember that there were brothers of her husband who are also battering their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her]
several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines,
what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been
provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened
and so she became an abnormal person who had lost shes not during the time and that is why it happened because of all the physical battering,
emotional battering, all the psychological abuses that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated as follows:
Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the
person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the
truth.[41]
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,[42] which was based on his interview
and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the
atmosphere was fine, normal and happy -- until Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: At first, it was
verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, [s]he also sought the advice and help
of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and
more frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both
relevant and necessary. How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why
would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her
to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut
loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in
the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered
women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States
and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act decisively
in her own interests, making her feel trapped in the relationship with no means of escape.[46] In her years of research, Dr. Walker found that the
abuse often escalates at the point of separation and battered women are in greater danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low opinion of herself. She has x x x self-
defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt
arising from the latters belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons may believe that they are essentially helpless, lacking power to
change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at
the expense of the victims ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that even if a person has control over a
situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape. He
said that it was the cognitive aspect -- the individuals thoughts -- that proved all-important. He referred to this phenomenon as learned
helplessness. [T]he truth or facts of a situation turn out to be less important than the individuals set of beliefs or perceptions concerning the
situation. Battered women dont attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they
cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances.[54]
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is
capable of killing her, and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also
because she fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the
essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic
perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage.
However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively
minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to
her mothers or fathers house;[58] that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she
would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to
reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe
beatings inflicted upon her by her partner or spouse. They corroborated each others testimonies, which were culled from their numerous studies of
hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of
the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at
the time of the offense[60] -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on ones life; and the peril sought
to be avoided must be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of
self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent
danger thereof -- on the life or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a
sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his
violent behavior and escape to their childrens bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on past violent incidents, there was a great
probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have
ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not
required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack
before she can defend her life would amount to sentencing her to murder by installment.[65] Still, impending danger (based on the conduct of the
victim in previous battering episodes) prior to the defendants use of deadly force must be shown. Threatening behavior or communication can
satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivics killing of Ben was not completely justified under the
circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper
to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case
opens it wholly for review on any issue, including that which has not been raised by the parties.[69]
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.[71] Expounding thereon,
he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of
battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the
public and social support available to the victim. If nobody is interceding, the more she will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It
is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow
on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to
painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the
fetus. So the anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability
remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the
first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The
[a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the expert witness clarified further:
Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her
psychological resistance and natural self-control, psychological paralysis, and difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of
her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance should be taken in her
favor and considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally
produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable
burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2)
this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal
equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened
to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months
pregnant at the time. The attempt on her life was likewise on that of her fetus.[79] His abusive and violent acts, an aggression which was directed
at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with
feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a
gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have
recovered her normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic anxiety -- a psychological effect on a victim of
overwhelming brutality [or] trauma -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the
time. She cannot control re-experiencing the whole thing, the most vicious and the trauma that she suffered. She thinks of nothing but the
suffering. Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the
brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating
circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of
facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing
the exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their
unborn child. Such perception naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without
risk to oneself arising from the defense that the offended party might make.[81] In order to qualify an act as treacherous, the circumstances
invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in
the appreciation of evidence.[82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an open, depressed, circular fracture located at
the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the
following testimony of appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be
nobody to nag me
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he
pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the
wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I
had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxxxxxxxx
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I
know my blood pressure was raised. I was frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through with him, I took pity on myself and I felt I was about to die also because of my blood
pressure and the baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants at the
time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the
assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for
the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.[86] There is no
showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself
from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same
moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the
method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and
no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5[88] of the same Code.[89] The penalty of reclusion temporal in its medium period is imposable, considering
that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were
shown to have attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty shall be within
the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion
temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or
six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91]
Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given
set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general
and appellants counsel, Atty. Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points.
First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and
her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered persons
mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the
history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense.
Under the existing facts of the present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor
as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections
may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder
which, after a joint trial, resulted in the conviction of the accused in a decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the
sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of
P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees, the offended party having been represent by a
private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place of the fencing is the house
and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant would be prevented
from getting into his house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if possible you stop destroying my house and if
possible we will talk it over what is good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133,
t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc. of which deceased
Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom
was appellant.
From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this
Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in Maitum, a former sitio of
Kiamba and now a separate municipality of South Cotabato. He established his residence therein, built his house, cultivated the area, and was
among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby Kalaong
Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros Oriental, filed sales application No.
21983 on June 3, 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey report was not submitted until
1946 because of the outbreak of the second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176
Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed among
the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition, appraised and advertised for
public auction. At the public auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in abeyance, while an investigator was sent by the Director of Lands to
Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved
the same and ordered the formal award of the land in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and
Natural Resources, who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted only of one sala, for the
purpose of annulling the order of the Secretary of Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding
the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had repudiated as
resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the
company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a
cost of around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The second house is not far from
the site of the dismantled house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also transferred
his store from his former residence to the house near the highway. Aside from the store, he also had a rice mill located about 15 meters east of the
house and a concrete pavement between the rice mill and the house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court
of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer for preliminary injunction. During
the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of the land was still uncertain, in order to avoid trouble, until the
question of ownership could be decided. He never paid the agreed rental, although he alleges that the milling job they did for Rubia was considered
payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and ricemill are located as per agreement
executed on February 21, 1967. You have not paid as as even after repeated attempts of collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of Fleischers & Co., Inc. This six- month
period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the six- month period, the company shall cause their immediate demolition
(Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo posts along the property line
parallel to the highway. Some posts were planted right on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228,
t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting
off the accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the Fleischers' side. The fencing
continued on that fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was awakened by some noise as if the
wall of his house was being chiselled. Getting up and looking out of the window, he found that one of the laborers of Fleischer was indeed
chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was
commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is narrated in the People's Brief as
above-quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp.
31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he acted in defense of his person; and
Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the window of his house with the
shotgun which he surrendered to the police authorities. He claims, however, that he did so in defense of his person and of his rights, and therefore
he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi, sigue, gademit, avante", in
answer to his request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang
mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house being chiselled. The verbal
exchange took place while the two deceased were on the ground doing the fencing and the appellant was up in his house looking out of his window
(pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun
on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia,
appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell
down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I
shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the deceased were in lawful
exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of the deceased and their three
laborers, were doing the fencing and chiselling of the walls of appellant's house. The fence they were putting up was made of bamboo posts to
which were being nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons, such as nail and
hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going
to the place was parked just a few steps away, and in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound
of the chiselling on his walls, his first reaction was to look out of the window. Then he saw the damage being done to his house, compounded by
the fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the
deceased Rubia, to stop what they were doing and to talk things over with him. But deceased Fleischer answered angrily with 'gademit' and
directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent but were actually in
progress. There is no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was actually
participating in the fencing. This was indeed aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested property, to destroy appellant's
house and to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the Court of
Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said compromise agreement; and that such 1970
dismissal also carried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales
patent and to cancel the corresponding certificate of title issued to the company, on the ground that the Director of Lands had no authority to
conduct the sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the government's supplemental
petition was premised on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner Republic of the
Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755 filed on November 14, 1966 and
his execution of the contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him during cross-examination on
January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not know who really owns this
portion to avoid trouble. To avoid trouble we better pay while waiting for the case because at that time, it was not known who is the right owner of
the place. So we decided until things will clear up and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He should have
allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes
that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court, if the holder should refuse
to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to
said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose,
he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under paragraph
1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who was
defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only awakened by the
noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation
at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He should
therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense,
pursuant to paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because of the
presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the aggressor was deliberately chosen
with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed might have made. This
cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer
and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better that
you will tell Mr. Fleischer because there will be nobody who will break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident premeditation. As WE have consistently
held, there must be "direct evidence of the planning or preparation to kill the victim, .... it is not enough that premeditation be suspected or
surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit the crime" (People vs.
Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to allow them (him) to reflect
upon the consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused premeditated the
killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying his house and to talk things over
just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that appellant
surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find his house being damaged and
its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his business was
also in danger of closing down for lack of access to the highway. These circumstances, coming so near to the time when his first house was
dismantled, thus forcing him to transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellant
had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of relative prosperity and tranquility, only to find his
castle crumbling at the hands of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he should be
credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor aggravating circumstance, but
extenuated by the privileged mitigating circumstance of incomplete defense-in view of the presence of unlawful aggression on the part of the
victims and lack of sufficient provocation on the part of the appellant-and by two generic mitigating circumstance of voluntary surrender and
passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by
one or two degrees shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the
same. Considering that the majority of the requirements for defense of property are present, the penalty may be lowered by two degrees, i.e., to
prision correccional And under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto mayor, because of the
presence of two mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43 SCRA 397), the award for moral
damages was reduced because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not only contributed
but they actually provoked the attack by damaging appellant's properties and business. Considering appellant's standing in the community, being
married to a municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy his reputation. The records
disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail despite the absence of evidence
linking her to the killings. She was dropped as a defendant only upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim.
Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus,
the moral and material suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to reparation of
the damage caused, indemnification of consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable to the
accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA
IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES
AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON
AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-23249 November 25, 1974


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
MUÑOZ PALMA, J.:p
Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgment of the Court of First Instance of Ormoc City
finding her guilty of PARRICIDE and sentencing her "to suffer an indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision
mayor in its medium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal in its medium
period as the maximum; to indemnify the heirs of Francisco Caballero in the sum of SIX THOUSAND PESOS (P6,000.00) without subsidiary
imprisonment in case of insolvency, and to pay the costs", and prays for an acquittal based on her plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed decision predicated on the following testimonial and documentary evidence
presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7, 1956, at a ceremony solemnized by the parish
priest of the Roman Catholic Church in Ormoc City.2 The marriage was not a happy one and before the end of the year 1957 the couple separated.
Late in the evening of January 2, 1958, Francisco Caballero and two companions, namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a
certain house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and his companions proceeded home. On the way, they saw
Francisco's wife, Cunigunda, standing at the corner of the yard of Igmedio Barabad Cunigunda called Francisco and when the latter approached her,
Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution as its Exhibit C. Francisco called for help to his two companions who
upon seeing that Francisco was wounded, brought him to the St. Jude Hospital.3 Dr. Cesar Samson, owner of the hospital, personally attended to
the victim and found a "punctured wound on the left lumbar region measuring 1 inch externally" (Exhibit B). First aid was given, but because there
was a need for blood transfusion and the facilities of the hospital were inadequate to provide the necessary treatment, Dr. Samson suggested that
the patient be transported to Cebu City.4 In the meantime, Cunigunda Caballero had gone to the Police Department of Ormoc City, surrendered to
desk sergeant Restituto Mariveles and informed the latter that she stabbed her husband.5 While Francisco Caballero was confined at the hospital,
he was interrogated by Patrolman Francisco Covero concerning the identity of his assailant and he pointed to his wife Cunigunda. The questions
propounded by Pat. Covero and the answers given by the victim were written down in a piece of paper on which the victim affixed his thumbmark
(Exhibit D) in the presence of his brother, Cresencio Caballero, and another policeman, Francisco Tomada.6 On January 4, 1958, Francisco Caballero
was brought to Cebu City on board the "MV Ormoc" but the trip proved futile because the victim died at noontime of the same day from the stab
wound sustained by him.7
Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and believe instead what she declared before the trial
judge briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the house of her parents in barrio Ipil, Ormoc City,
and their marriage, although not a harmonious one, was blessed with a daughter; her married life was marked by frequent quarrels caused by her
husband's "gambling, drinking, and serenading", and there were times when he maltreated and beat her; after more than a year she and her
husband transferred to a house of their own, but a month had hardly passed when Francisco left her and her child, and she had to go back to live
with her parents who bore the burden of supporting her and her child; in the month of November, 1957, her daughter became sick and she went to
her husband and asked for some help for her sick child but he drove her away and said "I don't care if you all would die"; in the evening of January
2, 1958, she went out carolling with her friend, Crispina Barabad, and several men who played the musical instruments; at about 12:00 o'clock
midnight they divided the proceeds of the carolling in the house of Crispina Barabad after which she went home, but before she could leave the
vicinity of the house of Crispina, she met her husband Francisco, who upon seeing her, held her by the collar of her dress and asked her: "Where
have you been prostituting? You are a son of a bitch."; she replied: "What is your business. Anyway you have already left us. You have nothing to
do with us"; upon hearing these words Francisco retorted: "What do you mean by saying I have nothing to do with you. I will kill you all, I will kill
you all"; Francisco then held her by the hair, slapped her face until her nose bled, and pushed her towards the ground, to keep herself from falling
she held on to his waist and as she did so her right hand grasped the knife tucked inside the belt line on the left side of his body; because her
husband continued to push her down she fell on her back to the ground; her husband then knelt over her, held her neck, and choked her saying.
"Now is the time I can do whatever I want. I will kill you"; because she had "no other recourse" as she was being choked she pulled out the knife of
her husband and thrust it at him hitting the left side of his body near the "belt line" just above his left thigh; when she finally released herself from
the hold of her husband she ran home and on the way she threw the knife; in the morning of January 3, she went to town, surrendered to the
police, and presented the torn and blood-stained dress worn by her on the night of the incident (see Exhibit I); Pat. Cabral then accompanied her to
look for the weapon but because they could not find it the policeman advised her to get any knife, and she did, and she gave a knife to the desk
sergeant which is the knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her husband in the legitimate defense of her person?
The law on self-defense embodied in any penal system in the civilized world finds justification in man's natural instinct to protect, repel, and save
his person or rights from impending danger or peril; it is based on that impulse of self-preservation born to man and part of his nature as a human
being. Thus, in the words of the Romans of ancient history: Quod quisque ob tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in
penal law, lawful defense is grounded on the impossibility on the part of the State to avoid a present unjust aggression and protect a person
unlawfully attacked, and therefore it is inconceivable for the State to require that the innocent succumb to an unlawful aggression without
resistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice done to repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides:
ART. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks justification for his act must prove by clear and convincing evidence the presence
of the aforecited circumstances, the rationale being that having admitted the wounding or killing of his adversary which is a felony, he is to be held
criminally liable for the crime unless he establishes to the satisfaction of the court the fact of legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing, and gave these reasons for its conclusion: a)
appellant's testimony is inherently improbable as brought out by her demonstration of the incident in question during the trial of the case; b) there
was no wound or injury on appellant's body treated by any physician: c) appellant's insistence that the weapon used by her was Moro hunting knife
and not Exh. C is incredible; d) she gave contradictory statements concerning the report made by her to the police authorities that she was choked
by her husband; and e) her husband's abandonment of her and her child afforded the motive behind appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart from the rule that appellate court will generally not disturb the findings
of the trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and did not give due importance to one piece of evidence which more than
the testimony of any witness eloquently confirms the narration of appellant on how she happened to stab her husband on that unfortunate night.
We refer to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony follows:
Q At that precise time when you were going home to the place of your parents, did any unusual incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down from the house of Crispina Barabad, when I reached near the banana hill, my husband held me.
Q What happened when your husband, Francisco Caballero, held you?
A He asked me from where did I prostitute myself.
Q What did you answer?
A I answered that I did not go (on) prostituting. I told him that I was only forced to accompany with the carolling in order to earn money for our
child.
Q What part of your body did your husband, Francisco Caballero, hold you?
A He held me at the collar of my dress. (Witness holding the right portion of the collar of her dress.)
Q After you answered Francisco, what did he do?
A He said "Where have you been prostituting? You are a son of a bitch." Then I told him "What is your business. Anyway you have already left us.
You have nothing to do with us."
Q When Francisco heard these words, what did he do?
A Francisco said "What do you mean by saying l have nothing to do with you. I will kill you all. I will kill you all."
Q And then, what happened?
A He held my hair and slapped my face twice. Then I staggered and my nose was bleeding.
Q Do you mean to say that blood flowed out of your nose?
A Yes, sir.
Q After you were slapped twice and your nose begun to bleed, what happened next?
A He held the front part of my dress just below the collar and pushed me towards the ground. .
Q While your husband was holding your dress below the neck and tried to push you down, what did you do?
A I held a part of his body in order that I would not fall to the ground.
Q And then what happened?
A Because I struggled hard in order that I would not fall to the ground I held his belt and that was the time I got hold of a weapon along his belt line.
Q After that what happened?
A He shoved my hands upward and pushed me to the ground and that was the time my hands were released. He was choking me.
Q When you said your hands were released, was that before or after you were choked by Francisco Caballero?
A At that time when I was about to fall to the ground that was the time I released my hands.
Q When you were almost fallen to the ground, where were the hands of Francisco Caballero?
A On my hair.
Q You mean to say the two hands of Francisco Caballero?
A One of his hands was holding my hair. The other hand pushed me.
COURT:
Q What hand was holding your hair?
A His right hand was holding my hair while his left hand pushed me.
ATTORNEY GARCIA:
Q When you were fallen to the ground what happened?
A While I lay prostrate on the ground and believing that I have no other recourse, while his left hand was holding my neck, I was able to take hold
of the weapon from his belt line and I thrust it to him.
Q What was this weapon which you were able to get from his belt line?
A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda Caballero)
On cross-examination, appellant was asked by the private prosecutor to show her position when she stabbed her husband and she did, and
although the stenographic notes on that demonstration are very sketchy which We quote:
Q Please demonstrate to this Court when you made the thrust to your husband?
A When I took hold of the hunting knife I made the thrust in this manner. (Witness held the ruler with her right hand kneeled on the floor)" (tsn. p.
67, ibid)
still We can get a clear picture of what appellant must have done, from the questions and answers immediately following the above-quoted portion
of the transcript, viz:
Q You want to make us understand that when you thrust the weapon to the body of your husband you were lying down flat to the ground?
A I was lying flat on the ground face upward. I was a little bit inclined because tried to struggle trying to get away from the hold of my husband.
Q You want to make us understand that your back was touching the ground when you made the thrust to your husband?
A Yes, sir.
COURT:
Q Where were you kneeled by your, husband?
A On my right thigh. (ibid; emphasis supplied)
Thus, with her husband kneeling over her as she lay on her back on the ground and his hand choking her neck, appellant, as she said, had no other
recourse but to pull out the knife inserted at the left side of her husband's belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left lumbar region. The fact that the blow landed in the vicinity from where
the knife was drawn is a strong indication of the truth of appellant's testimony, for as she lay on the ground with her husband bent over her it was
quite natural for her right hand to get hold of the knife tucked in the left side of the man's belt and thrust it at that section of the body nearest to
her hand at the moment.
We do not agree with the trial judge's observation that as demonstrated by the accused it was physically impossible for her to get hold of the
weapon because the two knees of her husband were on her right thigh "which would have forced her to put her right elbow towards the
ground"(see p. 9 of Decision), for even if it were true that the two knees of Francisco were on his wife's right thigh, however, there is nothing in the
record to show that the right arm of the accused was held, pinned down or rendered immobile, or that she pressed her elbow to the ground, as
conjectured by the trial judge, in such a manner that she could not reach for the knife. On the contrary, as indicated earlier, accused testified and
so demonstrated that she was lying flat on her back, her husband kneeling over her and her right arm free to pull out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that portion of her testimony when she was held by the hair and pushed
down to the ground, and His Honor commented that "(S)he could not be falling to the ground, as shown to the Court by her, considering the fact
that the pushing was to and fro as shown in her demonstration." (p. 8, Decision) The trial judge, however, failed to consider that it is humanly
impossible to have an exact and accurate reproduction or reenactment of an occurrence especially if it involves the participation of persons other
than the very protagonists of the incident being re-enacted. In this particular instance appellant was asked by the private prosecutor to show how
she was pushed down by her husband, and her demonstration is described in the stenographic transcript as follows:
Q Please demonstrate to this Court the position of your husband and you while your husband held your hair.
A He did this way. (Witness held the hair of the Court Interpreter with his left hand and his right hand held the right shoulder of the Interpreter and
pulled the Interpreter to and fro. The Interpreter represented as the accused and the accused as the deceased.)
Q Where were your two hands?
A My two hands held his waist line. (tsn. 66, witness Cunigunda Caballero; emphasis supplied)
In that demonstration, accused represented the victim while she in turn was impersonated by the court interpreter, and so it was difficult if not
impossible for the two to give an accurate reenactment considering that the accused assumed a role not hers during the actual incident and the
court interpreter played a part which was not truly his. At any rate, the accused showed how one hand of her husband held her hair while the other
pushed her down by the shoulder, and to portray how she in turn struggled and tried to push back her husband to keep herself from falling, she
"pulled the interpreter (representing the accused) to and fro." The fact is that Francisco succeeded in forcing appellant down to the ground as
portrayed by the latter when, following the foregoing demonstration, she was asked by the private prosecutor to show how she stabbed her
husband — a matter which is discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which strongly militates against the credibility of the lone prosecution witness,
Ignacio Barabad. This witness declared that on that night when husband and wife met on the road, Cunigunda called Francisco and when the latter
was near, she immediately stabbed him. If that were true, that is, husband and wife were standing face to face at a distance of one-half meter
when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have been more natural and probable for the weapon to have been
directed towards the front part of the body of the victim such as his abdomen or chest, rather than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting versions of the incident object of the accusation, the Court in its search
for the truth perforce has to look for some facts or circumstances which can be used as valuable aids in evaluating the probability or improbability
of a testimony, for after all the element of probability is always involved in weighing testimonial evidence13, so much so that when a court as a
judicial fact-finder pronounces judgment that a set of facts constitute the true happening it does so not of its own personal knowledge but as the
result of an evaluating process of the probability or improbability of a fact sought to be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this Court penned by Chief Justice Querube C.
Makalintal, the plea of self-defense of the accused-appellant was sustained on the basis of certain "physical and objective circumstances" which
proved to be of "decisive importance" in ascertaining the veracity of the plea of self-defense, to wit: the location of the wound on the right side of
the throat and right arm of the deceased, the direction of the trajectories of the bullets fired by the accused, the discovery of bloodstains at the
driver's seat, the finding of the dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuable circumstance which confirms the plea of self-
defense.
Another, is the lack of motive of appellant in attacking and killing her husband on that particular night of January 2. Although it is the general rule
that the presence of motive in the killing of a person is not indispensable to a conviction especially where the identity of the assailant is duly
established by other competent evidence or is not disputed, as in this case, nonetheless, the absence of such motive is important in ascertaining
the truth as between two antagonistic theories or versions of the killings. 15
We disagree with the statement of the court a quo that appellant's motive for killing her husband was his abandonment of her and his failure to
support her and her child. While appellant admitted in the course of her testimony that her marriage was not a happy one, that she and her
husband separated in the month of October, 1957, and since then she and her child lived with her parents who supported them, nevertheless she
declared that notwithstanding their separation she still loved her husband (tsn. p. 59, cross-examination of appellant). As a matter of fact,
appellant had been living with her parents for several months prior to the incident in question and appeared resigned to her fate. Furthermore,
there is no record of any event which occurred immediately prior to January 2 which could have aroused her feelings to such a degree as to drive
her to plan and carry out the killing of her husband.
On the other hand, it was Francisco Caballero who had a reason for attacking his wife, Cunigunda. Meeting his wife unexpectedly at past midnight
on the road, Francisco reacted angrily, and suspecting that she was out for some bad purpose he held her by the collar of her dress and said:
"Where have you been prostituting? You are a son of a bitch." This was followed by a slapping on the face until Cunigunda's nose bled, pulling of
her hair, pushing her down to the ground, and strangling her — all of which constituted the unlawful aggression against which appellant had to
defend herself.
Next to appellant's lack of motive for killing her husband, is her conduct shortly after the occurrence. As soon as the sun was up that morning of
January 3 (the stabbing occurred past midnight of January 2), Cunigunda went to the city and presented herself at the police headquarters where
she reported that she stabbed her husband and surrendered the blood-stained dress she wore that night. On this point, the trial judge stated that
appellant made contradictory statements in her testimony concerning the report made by her to the police authorities, for while at the start she
declared that she did not report the "choking by her husband", she later changed her testimony and stated that she did relate that fact. (p. 10,
Decision)
We have gone over the stenographic transcript of the testimony of appellant on direct examination and nowhere is there a positive and direct
statement of hers that she did not report that she was choked by her husband. What the trial judge asked of appellant was whether or not she told
the police about the fist mark on her face and her answer was "No, sir, I forgot." (tsn. p. 55, supra) And on appellant's cross-examination, there was
no question propounded and therefore there was no answer given on the subject-matter of appellant's report to the police concerning the incident
except for the following:
COURT:
Q Did you show that dress to the police authorities the following day?
A I was not able to wear that, Your Honor, because it was torn out.
Q You did not bring that to the police authorities?
A I showed it to the police authorities, and they told me to keep it, not to touch it. (Tsn. p. 65, ibid)
We do not see, therefore, the alleged contradiction in appellant's testimony which was singled out by His Honor as one of his reasons for
discrediting her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband because he attacked her is confirmed by no less than the prosecution
witness, Patrolman Restituto Mariveles, who was on duty at the desk when appellant arrived at the police headquarters. This witness on cross-
examination declared:
Q And she also told you that on that night previous to the incident her husband Francisco Caballero beat her up, is that right?
A She told me that she was met on the way by her husband immediately after carolling and she was manhandled by her husband and when she
was struggling to get loose from her husband she happened to take hold of a knife that was placed under the belt of her husband and because she
was already half conscious she did not know that she was able to thrust said knife to the stomach of her husband. (tsn. p. 23, witness R. Mariveles)
It is indeed regrettable that the statements made by appellant to the police upon her surrender were not taken down in writing to serve as a
faithful and reliable account of her report, nevertheless, We are satisfied by the fact, which is not disputed, that of her own accord appellant went
to the police authorities early in the morning of January 3, informed Policeman Mariveles that she stabbed her husband because he manhandled
her which rendered her "half-conscious", and brought and showed the dress she wore during the incident which was torn by the collar and with
blood stains due to the bleeding of her nose. Another policeman, Joventino de Leon, who at the time was property custodian of the Ormoc City
police, corroborated appellant's testimony concerning the dress marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If there was no
clear and positive statement in appellant's testimony either on direct or cross examination that she informed the police that she was choked by her
husband, it was because, as We noted, no question was propounded to her on that point.
While We are on this subject of appellant's surrender, mention is to be made of the knife marked as Exhibit C for the prosecution. In her testimony,
appellant stated that Exhibit C was not the knife actually used by her in stabbing her husband because the true weapon was her husband's Moro
hunting knife with a blade of around six inches which she threw away immediately after the incident; that when she was asked by Pat. Mariveles to
look for the weapon and she could not find it, she was advised by policeman Cabral who helped her in the search to get any knife and surrender it
to the desk officer and so she took the knife Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony of appellant
was taken against her by the court a quo which held that her declaration could not have been true. We find however no strong reason for
disbelieving the accused on this point. Appellant does not deny that she turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
her husband but she claims that she did so upon advise of another policeman, Pat. Cabral, and it is quite significant that the latter was not called
upon by the prosecution to refute such declaration. There is sincerity in appellant's attempt to rectify a misstatement made by her to Pat.
Mariveles and We are inclined to believe and in fact We do believe that the fatal weapon must have had indeed a blade of around six inches as
stated by appellant for it to penetrate through the left lumbar region to the victim's large intestine and cause the discharge of fecal matter (tsn. Dr.
C. Samson, p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed out above.
The second element, that is, reasonable necessity for the means employed is likewise present. Here we have a woman who being strangled and
choked by a furious aggressor and rendered almost unconscious by the strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. Early jurisprudence of this Court has followed the principle that the reasonable
necessity of the means employed in self-defense does not depend upon the harm done but rests upon the imminent danger of such injury. (U.S. vs.
Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact that there was no visible injury caused on the body of the appellant which
necessitated medical attention, a circumstance noted by the trial court, is no ground for discrediting self-defense; what is vital is that there was
imminent peril to appellant's life caused by the unlawful aggression of her husband. The knife tucked in her husband's belt afforded appellant the
only reasonable means with which she could free and save herself from being strangled and choked to death. What this Court expressed in the case
of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the situation now before Us, and We quote:
It should be borne in mind that in emergencies of this kind human nature does not act upon processes of formal reason but in obedience to the
instinct of self-preservation; and when it is apparent, as in this case, that a person has reasonably acted upon this instinct, it is the duty of the
courts to sanction the act and to hold the actor irresponsible in law for the consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the part of the person defending himself. Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one to attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient provocation to warrant the aggression or attack on her person by her husband,
Francisco. While it was understandable for Francisco to be angry at his wife for finding her on the road in the middle of the night, however, he was
not justified in inflicting bodily punishment with an intent to kill by choking his wife's throat. All that appellant did was to provoke an imaginary
commission of a wrong in the mind of her husband, which is not a sufficient provocation under the law of self-defense. Upon being confronted by
her husband for being out late at night, accused gave a valid excuse that she went carolling with some friends to earn some money for their child.
January 2 was indeed within the Christmas season during which by tradition people carol from house to house and receive monetary gifts in a
Christian spirit of goodwill. The deceased therefore should have given some consideration to his wife's excuse before jumping to conclusions and
taking the extreme measure of attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant acted in the legitimate defense of her person, and We accordingly set
aside the judgment of conviction and ACQUIT her with costs de oficio.
So Ordered.
Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur.
Castro, J, is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-162 April 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA, appellant.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio, Province of Iloilo several persons were playing
prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the banker in the game of black jack, and Maria de Raposo, a witness for
the prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de Raposo, the accused Dioscoro Alconga
joined her as a partner, each of them contributing the sum of P5 to a common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while
the said accused posted himself behind the deceased, acting as a spotter of the cards of the latter and communicating by signs to his partner (t.s.n.,
pp. 95-96, 126). The deceased appears to have suffered losses in the game because of the team work between Maria de Raposo and the accused
Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had been doing, the deceased became indignant and expressed his anger at
the former (t.s.n., pp. 96, 126). An exchange of words followed, and the two would have come to blows but for the intervention of the maintainer
of the games (t.s.n., p. 96). In a fit of anger, the deceased left the house but not before telling the accused Alconga, "tomorrow morning I will give
you a breakfast" (t.s.n., p. 96), which expression would seem to signify an intent to inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943, when the latter was in the guardhouse located
in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench in the guardhouse,
the deceased came along and, addressing the former, said, "Coroy, this is your breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p.
100). The accused avoided the blow by falling to the ground under the bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100-
101). A second blow was given but failed to hit the accused, hitting the bench instead (t.s.n., p. 101). The accused manage to go out of the
guardhouse by crawling on his abdomen (t.s.n., p. 101). While the deceased was in the act of delivering the third blow, the accused, while still in a
crawling position (t.s.n., p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground (t.s.n., p. 101). Rising to his feet, the
deceased drew forth his dagger and directed a blow at the accused who, however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A
hand-to-hand fight ensued (t.s.n., p. 102). Having sustained several wounds, the deceased ran away but was followed by the accused (t.s.n., p. 6).
After running a distance of about 200 meters (t.s.n., pp. 21, 108), the deceased was overtaken, and another fight took place, during which the
mortal bolo blow — the one which slashed the cranium — was delivered, causing the deceased to fall to the ground, face downward, besides many
other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and, being the leader of the
"home guards" of San Dionisio, placed under his custody the accused Alconga with a view to turning him over to the proper authorities (t.s.n., pp.
102-105).
On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned over
Alconga to Collado who in turn took him to the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga to
Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp.
81, 104).
The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows:
P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R. Examine sus heridas.
P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R. En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la
parte frente de su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meñique habia volado, se habia cortado, y otras
perqueñas heridas mas.
P. ¿En la cabeza, vio usted heridas? — R. Si, señor.
P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza.
P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el craneo se ha roto.
P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla derecha, una herida causada por una bala.
P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — R. Heridas causadas por bolo.
P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la dimension de las heridas en el pecho.
P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada por el bolo. (T.s.n., p. 25.)
It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage commenced when the deceased
assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to have the upper hand in
the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that moment there was no longer any
danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he was. Resolving all doubts in his flavor, and
considering that in the first stage the deceased was the unlawful aggressor and defendant had not given sufficient provocation, and considering
further that when the deceased was about to deliver the third blow, appellant was still in a crawling position and, on that account, could not have
effectively wielded his bolo and therefore had to use his "paltik" revolver — his only remaining weapon — ; we hold that said appellant was then
acting in self-defense.
But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression to defend against, the same
having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many additional wounds
upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that he was still able to run a
distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant's plea of self-defense in the second stage
of the fight cannot be sustained. There can be no defense where there is no aggression.
Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he struck several blows,
among them the fatal one, after the necessity for defending himself had ceased, his assailant being then in retreat. Therefore one of the essential
ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting (now article 11, case No. 1, Revised Penal Code). (United States
vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the right to kill in self-defense ceased
when the aggression ceased; and when Toledo and his brothers turned and ran, without having inflicted so much as a scratch upon a single one of
the defendants, the right of the defendants to inflict injury upon them ceased absolutely. They had no right to pursue, no right to kill or injure. A
fleeing man is not dangerous to the one from whom he flees. When danger ceases, the right to injure ceases. When the aggressor turns and flees,
the one assaulted must stay his hand. (United States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been established beyond reasonable doubt. The learned trial
court appreciated in his favor of two mitigating circumstances: voluntary surrender and provocation on the part of the deceased. The first was
properly appreciated; the second was not, since it is very clear that from the moment he fled after the first stage of the fight to the moment he
died, the deceased did not give any provocation for appellant to pursue much less further to attack him.
The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started the first stage of the fight. The
evidence, as weighed and appreciated by the learned trial judge, who had heard, seen and observed the witnesses testify, clearly shows that said
stage ended with the flight of the deceased after receiving a bullet wound in his right breast, which caused him to stagger and fall to the ground,
and several bolo wounds inflicted by appellant during their hand-to-hand fight after both had gotten up. The learned trial judge said:
The evidence adduced by the prosecution and the defense in support of their respective theories of the case vary materially on certain points.
Some of these facts have to be admitted and some have to be rejected with the end in view of arriving at the truth. To the mind of the Court, what
really happened in the case at bar, as can de disclosed by the records, which lead to the killing of the deceased on that fatal morning of May 29,
1945 (should be 1943), is as follows:
xxx xxx xxx
In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his duties as guard or "ronda" in Barrio Santol,
the deceased Silverio Barion passed by with a "pingahan". That was the first time the deceased and the accused Alconga had met since that
eventful night of May 27th in the gambling house of Gepes. Upon seeing the accused Alconga, who was then seated in the guardhouse, the
deceased cried: "Coroy, this is now the breakfast!" These words of warning were immediately followed by two formidable swings of the "pingahan"
directed at the accused Alconga which failed to hit him. Alconga was able to avoid the blows by falling to the ground and crawling on his abdomen
until he was outside the guardhouse. The deceased followed him and while in the act of delivering the third blow, Dioscoro Alconga fired at him
with his revolver thereby stopping the blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he drew forth a
dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand fight followed. The deceased having sustained
several wounds from the hands of Alconga, ran away with the latter close to his heels.
The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those found by us and narrated in the first
paragraphs of this decision. Upon those facts the question arises whether when the deceased started to run and flee, or thereafter until he died,
there was any provocation given by him from appellant to pursue and further to attack him. It will be recalled, to be given with, that the first stage
of the fight was provoked when the deceased said to appellant "Cory, this is now the breakfast," or "This is your breakfast," followed forthwith by a
swing or two of his "pingahan." These words without the immediately following attack with the "pingahan" would not have been uttered, we can
safely assume, since such an utterance alone would have been entirely meaningless. It was the attack, therefore, that effectively constituted the
provocation, the utterance being, at best, merely a preclude to the attack. At any rate, the quoted words by themselves, without the deceased's act
immediately following them, would certainly not have been considered a sufficient provocation to mitigate appellant's liability in killing or injuring
the deceased. For provocation in order to be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal Code,
article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having inflicted so much as a scratch upon appellant,
but after, upon the other hand, having been wounded with one revolver shot and several bolo slashes, as aforesaid, the right of appellant to inflict
injury upon him, ceased absolutely — appellant "had no right to pursue, no right to kill or injure" said deceased — for the reason that "a fleeing
man is not dangerous to the one from whom he flees." If the law, as interpreted and applied by this Court in the Vitug case, enjoins the victorious
contender from pursuing his opponent on the score of self-defense, it is because this Court considered that the requisites of self-defense had
ceased to exist, principal and indispensable among these being the unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada,
5th ed., 173).
Can we find under the evidence of record that after the cessation of said aggression the provocation thus involved therein still persisted, and to a
degree sufficient to extenuate appellant's criminal responsibility for his acts during the second stage of the fight? Appellant did not testify nor offer
other evidence to show that when he pursued the deceased he was still acting under the impulse of the effects of what provocation, be it anger,
obfuscation or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx xxx xxx
4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.
It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that it not only immediately precede the act
but that it also be sufficient. In the Spanish Penal Code, the adjective modifying said noun is "adecuada" and the Supreme Court of Spain in its
judgment of June 27, 2883, interpreted the equivalent provision of the Penal Code of that country, which was the source of our own existing
Revised Penal Code, that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that
Supreme Court as follows:
El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para la disminucion de la
responsabilidad criminal debe ser proporcionada al daño que se cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que hubo
fue si en un monton de yeso habia mas omenos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que beberia vino de balde,
esa pequeña cuestion de amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883,
Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The provocation or threat must be sufficient, which
means that it should be proportionate to the act committed and adequate to stir one to its commission" (emphasis supplied).
Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the accused. This the instant appellant has
utterly failed to do. Any way, it would seem self-evident that appellant could never have succeeded in showing that whatever remained of the
effects of the deceased's aggression, by way of provocation after the latter was already in fight, was proportionate to his killing his already
defeated adversary.
That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had shot the
deceased in his right breast and caused the latter to fall to the ground; or — making a concession in appellant's favor — after the latter had
inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body, in their hand-to-hand fight when
both were on their feet again. But if we are to grant appellant a further concession, under the view most favorable to him, that aggression must be
deemed to have ceased upon the flight of the deceased — upon the end of the first stage of the fight. In so affirming, we had to strain the concept
in no small degree. But to further strain it so as to find that said aggression or provocation persisted even when the deceased was already in flight,
clearly accepting defeat and no less clearly running for his life rather than evincing an intention of returning to the fight, is more than we can
sanction. It should always be remembered that "illegal aggression is equivalent to assault or at least threatened assault of an immediate and
imminent kind.
Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es preciso que se nos acometa, que se nos
ataque, o cuando menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el
o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)
After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind. It has been suggested that when
pursuing his fleeing opponent, appellant might have thought or believed that said opponent was going to his house to fetch some other weapon.
But whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a separate circumstance, the burden of proof
to establish such a defense was, of course, upon appellant, and he has not so much as attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as any other defense. We can not now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one defending himself or his property from a felony
violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured himself from danger. But
that is not this case. Here from the very start appellant was the holder of the stronger and more deadly weapons — a revolver and a bolo, as
against a piece of bamboo called "pingahan" and a dagger in the possession of the deceased. In actual performance appellant, from the very
beginning, demonstrated his superior fighting ability; and he confirmed it when after the deceased was first felled down by the revolver shot in
right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight, the deceased using his dagger and appellant his bolo,
the former received several bolo wounds while the latter got through completely unscathed. And when the deceased thereupon turned and fled,
the circumstances were such that it would be unduly stretching the imagination to consider that appellant was still in danger from his defeated and
fleeing opponent. Appellant preserved his revolver and his bolo, and if he could theretofore so easily overpower the deceased, when the latter had
not yet received any injury, it would need, indeed, an unusually strong positive showing — which is completely absent from the record — to
persuade us that he had not yet "secured himself from danger" after shooting his weakly armed adversary in the right breast and giving him several
bolo slashes in different other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an
extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the penalty, we take
into consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find
appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6 years and 1 day of prision mayor to 14
years and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs.
As thus modified, the judgment appealed from is hereby affirmed. So ordered.
Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35524 March 18, 1932
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN SUMICAD, defendant-appellant.
STREET, J.:
This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of Occidental Misamis, finding the appellant,
Julian Sumicad, guilty of the offense of homicide and sentencing him to undergo imprisonment for twelve years and one day, reclusion temporal,
and requiring him to indemnify the family of the deceased in the amount of P1,000, as well as to pay the costs of prosecution.
On February 23, 1931, the accused, a resident of Buenavoluntad, in the municipality of Plaridel, Occidental Misamis, was engaged with others in
the gratuitous labor of hauling logs for the construction of a chapel in the barrio above-mentioned. At about 5.30 o'clock in the afternoon on the
day mentioned, when the laborers were resting from the work of the day, one Segundo Cubol happened to pass the place where the accused was
sitting. Prior to this date the accused had rendered five and one-half days service to Cubol, and as the latter passed, the accused said to him,
"Segundo, pay me for the five and one-half days work for which you owe me." Cubol replied, "What debt!," an exclamation which was followed by
an insulting expression. At the same time he struck the accused with his fist. The accused arose from the log upon which he was sitting and moved
backward, trying to escape, but Cubol pursued him and continued striking him with his fists. As the accused receded he found himself cornered by
a pile of logs, the wings of which extended out on either side, effectually preventing any further retreat. As Cubol pressed upon him, the accused
drew his bolo and delivered a blow on Cubol's right shoulder. Upon this Cubol lunged at the accused with the evident intention of wresting the bolo
from the accused. To prevent this the accused struck two other blows with the bolo, inflicting two deep cuts on Cubol's forehead above the left
eye. One of these blows broke through the cranium. The other made a cut extending from the left eyebrow to the nose and upper lip. Upon finding
a seat on a log nearby. A witness, named Francisco Villegas, who came up in a moment, after learning something about the matter, asked Cubol
whether he had struck the accused blows with his fist. Cubols replied that he had. The witness Villegas then turned to the accused, who was
standing a short distance away, and told him to put up his bolo and go to the poblacion. Acting upon this suggestion the accused immediately
repaired to the office of the justice of the peace and surrendered himself to the authorities. Cubol lived only an hour or so, and died from the effect
of the wounds received. In one of the pockets of the deceased a knife was found, and the accused testified that, when he struck the deceased with
his bolo, the latter was attempting to draw a knife from his pocket.
The accused was 25 years of age when this case was tried, has a height of 5 feet and 1-½ inches, and weight of 105 pounds. The deceased appears
to have been taller, larger and stronger man. The evidence shows that the deceased was quarrelsome and in the habit of making frequent trouble
by fighting in the places where he happened to be present with others. In the local courts he had been convicted and sentenced to jail for assault
and battery in two different cases. In another case he was convicted of the offense of inflicting minor physical injuries, being sentenced to
imprisonment for one month and one day. In still another case he had been convicted of theft and sentenced to imprisonment for the same period
of one month and one day. The proof leaves no reason to doubt that the deceased was hot-tempered and that he had the reputation of being a
trouble maker. It is a safe inference from this proof — and there is nothing to the contrary, — that the deceased was with good reason considered
by his neighbors to be a dangerous man.
From the facts above stated it is evident that the quarrel which resulted in the death of Segundo Cubol was of his own making, and that the
accused was not materially to blame in bringing about the trouble. Two of the elements of self-defense were therefore clearly present, namely,
that the deceased was the aggressor and that there was lack of sufficient provocation on the part of the accused. The only further question that
can therefore arise in discussion the criminal liability of the accused is whether there was reasonable necessity for the means employed by him to
prevent or repel the aggression to which he was subjected. Upon this point it will be noted that, when the aggression was begun by the deceased,
the accused retreated until he was cornered in the angle of a pile of logs. His further retreat was this effectually cut off both in the rear and at the
sides. In response to the blows which the deceased delivered with his fists, the accused first delivered a cut on the left shoulder of the deceased;
but, if we rightly interpret the transcript of the record on this point , the sanitary officer who exclaimed the body of the deceased meant to say that
this wound alone could not have resulted in death. This we consider to be the decisive turning point in the case. Upon receiving that cut the
deceased should have been admonished that further aggression on his part would be met by determined resistance and that any further advance
would be at grave peril to himself. Instead of acting upon this warning, the deceased pressed forward in the attempt to possess himself of the bolo,
the only means of defense then at the command of the accused.
Under these circumstances what might the accused have been reasonably expected to do. Was he to surrender the weapon to his assailant, a
larger and stronger man than himself, who was now infuriated by the blood that had been drawn from his shoulder? Or was he justified in keeping
the weapon in his hands and, as an ultimate resort, in using it as a means for his own defense? Our reply is that he was justified in pursuing the
latter alternative; for it would probably have been an act of suicide to permit that weapon to pass into the hands of his assailant. In judging a
question of this kind the reputation of the deceased for violence is pertinent, for it tends to show that when the fatal blows were struck the
accused had reasonable grounds for believing that he was in grave peril to life or limb.
It is undoubtedly well established in jurisprudence that a man is not, as a rule, justified in taking the life of one who assaults him with his fist only,
without the use of a dangerous weapon. The person assaulted must, in such case, either resist with the arms that nature gave him or with other
means of defense at his disposal, short of taking life. But that rule contemplates the situation where the contestants are in the open and the person
assaulted can exercise the option of running away. It can have no binding force in the case where the person assaulted has retreated to the wall, as
the saying is, and uses in a defensive way the only weapon at his disposal. One is not required, when hard pressed, to draw fine distinctions as to
the extent of the injury which a reckless and infuriated assailant might probably inflict upon him (Browell vs. People, 38 Mich., 732). And it was not
incumbent on the accused in this case, when assailed by a bully of known violent disposition, who was larger and stronger than himself. On the
contrary, under the circumstances stated, he had the right to resist the aggression with the bolo, and if he unfortunately inflicted a fatal blow, it
must be considered to have been given in justifiable self-defense. Upon this point it may be recalled that the deceased, when asked about the
circumstances of the homicide, admitted that he himself was the aggressor; and it is noteworthy that he used no word placing blame upon the
accused.
We are of the opinion that all the elements necessary to constitute justifiable self-defense were present in this case and the accused should have
been acquitted.
The judgment appealed from will therefore be reversed and the appellant absolved from the information, with costs of both instances de oficio. So
ordered.
Malcolm, Romualdez, Villa-Real and Imperial, JJ., concur.
Johnson, J., reserves his vote.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43588 November 7, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
NATIVIDAD LUAGUE and WENCESLAO ALCANSARE, defendants-appellants.
RECTO, J.:
The spouses Wenceslao Alcansare and Natividad Luague having been charged with homicide in the Court of First Instance of Occidental Negros and
sentenced, the former to the penalty of from eight years and one day of prision mayor, as the minimum, to fourteen years, eight months and one
day of reclusion temporal, as the maximum, with the accessories of the law, and the latter to that of from six years and one day of prision mayor,
as the minimum, to twelve years and one day of reclusion temporal, as the maximum, with the accessory penalties of the law, both to indemnify
jointly and severally the heirs of Paulino Disuasido in the sum of one thousand pesos, with costs, appealed to this court for a review of the
judgment rendered against them, praying that the same reversed and that they be acquitted.
Upon examination of the appeal, it appears: that in the morning of February 18, 1935, while the accused Natividad Luague was in her house
situated in Lupuhan, barrio of Agpañgi, municipality of Calatrava, Occidental Negros, with only her three children of tender age for company, her
husband and co-accused Wenceslao Alcansare having gone to grind corn in Juan Garing's house several kilometers away, Paulino Disuasido came
and began to make love to her; that as Natividad could not dissuade him from his purpose, she started for the kitchen where Paulino followed her,
notwithstanding her instance that she could by no means accede to his wishes, for Paulino, bent on satisfying them at all costs, drew and opened a
knife and, threatening her with death, began to embrace her and to touch her breasts; that in preparing to lie with her, Paulino had to leave the
knife on the floor and the accused, taking advantage of the situation, picked up the weapon and stabbed him in the abdomen; and that Paulino,
feeling himself wounded, ran away jumping through the window and falling on some stones, while the accused set forth immediately for the
poblacion to surrender herself to the authorities and report the incident.
Natividad Luague's act in mortally wounding Paulino Disuasido, unaided her husband and co-accused Wenceslao Alcansare, and in the
circumstances above set out, constitutes the exempting circumstance defined in article 11, subsection 1, of the Revised Penal Code, because, as
stated by a commentator of note, "aside from the right to life on which rest the legitimate defense of our person, we have the right to party
acquired by us, and the right to honor which is not the least prized of man's patrimony." (1 Viada, 172, 173, 5th edition.) "Will the attempt to rape
a woman constitute an aggression sufficient to put her in a state of legitimate defense?" asks the same commentator. "We think so," he answer,
"inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, cannot her very existence; this offense, unlike ordinary
slander by word or deed susceptible of judicial redress, in an outrage which impresses an indelible blot on the victim, for, as the Roman Law says:
quum virginitas, vel castitas, corupta restitui non protest (because virginity or chastity, once defiled, cannot be restored). It is evident that a woman
who, imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability provided by this article and subsection since
such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage."
(1 Viada, 301, 5th edition.)
Similar to the present question was the one determined the Supreme Court of Spain in a decision of February 21, 1911: "This court in due homage
to the principles of morality and in strict observance of the provision of law justly interpreted, has always held that one of the rights referred to in
article 8, subsection 4, of the Penal Code, is that which assists a woman in defense of her honor when an attempt is made to repel the aggression
or to avoid in time the imminent danger of its consummation; and in view of this, it must be conceded upon the findings of the trial court, that the
accused Maria Sanchez Cañistro acted in legitimate self-defense, because the conduct of Diego Cardenas, who made love to her, in blowing in at
midnight, knocking at the door and demanding admittance and against Maria's refusal, insisting in his purpose and threatening to break open the
door, in the light of prior events and the circumstances of the case, implies the imminence of an affront against honor, involving an actual and
certain danger to the person so threatened, while at the same time the fact that she was alone that no help was forthcoming; her founded fear
that the door might give way and the dreaded evil wrought, her consequent helplessness on the advent of that crisis, and her natural desire to
attest openly her conjugal fidelity by foiling all suspicious aspersions, show the reasonableness of the defensive measures availed of by her and
warrant her complete exemption from liability, inasmuch as, aside from all these, it does not appear from the decision that said accused had
previously committed any act deserving of censure or marring the just motive which obviously induced her to repel, as she did, a violence
unprovoked by her. Thus viewed, all the requisites of the exempting circumstance above mentioned are present and should be taken into
consideration, etc." (1 Viada, 304, 5th edition.)
The theory the prosecution, which we consider a trifle unsubstantial is as follows: The accused Wenceslao Alcansare, thinking that Paulino
importuned his wife with unchaste advances, out of jealousy, decided to get rid of him. His chance to bring about his plan can when, in the morning
of the crime, Paulino happened to pass in front of the house of the spouses with his friend Olimpio Libosada. The accused wife invited Paulino to
drop in, which the letter and his friend did. The spouses met them at the threshold. The accused wife asked Paulino whether he had a knife and as
the latter answered in the affirmative, she asked him to lend it to lend it to her because she wanted to cut her nails, to which Paulino willingly
acceded, while the accused wife was cutting her nails, she asked Paulino where he came from and the latter answered, turning his head around,
that he came from the house of one Inting, whereupon the accused wife slashed him in the abdomen. Paulino tried to return the blow but the
accused husband picked up a stone and struck him in the forehead. Wounded in the abdomen and in the forehead, Paulino fled therefrom.
The government presented three witnesses to establish this theory. Pablo Alvarez, barrio lieutenant of Cabuñgahan, testified that on his way to
"communal" the day before the crime, he met the accused wife who told him that she had wanted to see him and ask his help because her
husband, who was jealous of Paulino, was maltreating her and he was furthermore resolved to assault Paulino at sight. On the following day,
Alvarez, in his way to Bacacay, dropped in the house of the accused spouses to inquire whether they had tobacco seeds and, as they answered him
in the negative, he went his way. He had hardly left the place when Paulino and Olimpio arrived, the accused wife inviting the former to drop in.
Paulino and Olimpio went to the threshold of the house and the accused spouses, in turn, went down, and the four engaged in a conversation
which, to Alvarez, seemed a friendly one. The witness left and when he returned to the place sometime later, he was informed that Paulino had
been stabbed.
The accused were from the barrio of Agpañgi and not from Cabuñgahan where the witness was the barrio lieutenant. Had the accused wife gone to
complain against the alleged conduct of her husband, she would have sought the lieutenant of Agpañgi, her barrio. The accused wife, by reporting
the incident directly to the municipal authorities without seeking the intervention of any barrio lieutenant, showed that she knew where to go in a
difficulty.
Were it true that the accused husband, prompted by jealousy, designed to do away with Paulino, it would have been because he observed that his
wife somehow returned Paulino's attentions, for otherwise he would not have indulge in tragic cogitations. From any point of view, however, it is
quite incomprehensible why the wife would take upon herself and the husband would charge her with, the execution of the plan. The observation
is no less true if the spouses plotted in common for it would have been patently disgraceful and cowardly of the husband to thrust its execution
upon the wife at the hazard of her life, and liberty to shield his own, in the event of prosecution; and there is the husband was thus minded. Under
the theory of the prosecution, whether the accused husband doubted his wife's fidelity or was sure of it, in connection with Paulino's attentions,
the natural thing in either case would be for him, unaided by his wife, to avenge the affront or punish the offender. In the case at bar, we must
assume that, if the motive attributed to him by the prosecution were true, the accused would have acted, as would the great majority of men in
identical circumstances.
The witness Alvarez, himself testified that he was informed the day before by the wife of the accused husband that the latter would get even with
Paulino at the first opportunity. The witness saw them together in the morning of the crime and he should have surmised that the announced
tragedy might take place. Rather than foil it, as an agent of the law, if for no other reason, he went his way unconcerned, as if nothing serious was
impending.
We find his conduct, or that which he claims to have followed, so extremely strange to be considered true. When the truth is beyond our reach, as
is often the case, we have to be contented with the probable. This is the basis of the so-called presumptions of fact. The acts which this witness
claims to have done are so out of ordinary conduct of men as to be devoid of probability. Occasionally, indeed, there are those who behave
strangely, but this is the exception and not the rule.
In addition to this, the theory of the prosecution that the accused husband and his wife had conspired to kill Paulino is overcome by the very facts
which the prosecution itself has attempted to prove. If such conspiracy had really existed, the accused spouses would have been fully prepared to
carry it into execution, because rational beings differ from those who are not in that when they embark on anything, they make the s equal to its
realization. However, these amused, on the on, had neither a rusty bolo nor an outworn club to cope with Paulino. The weapon with which Paulino
was first wounded was his own knife which, according to the prosecution, the accused wife had to borrow from him on the pretext that she wanted
to cut her nails, and later a stone which the accused husband casually picked up from the ground. Yarns of this kind make good material for fables.
Angel Emia, the other government witness who testified at the trial that he saw the crime attributed to the two accused by the prosecution, made
a previous statement wherein he disclaimed knowledge of who had stabbed Paulino. Required to explain the contradiction, he bungled in his
attempt. The trial judge erred in giving him credit. Olimpio Libosada, another government witness, likewise affirmed that he had seen all that bad
transpired, claiming that he then accompanied Paulino, It seem strange, however, that in the two statements made by Paulino before his death he
did not state that he was accompanied by Libosada or by any other person in the morning of the crime. It likewise happens that the conduct of this
witness, according to his own testimony, appears to be inconsistent because he did nothing to defend and help Paulino, his friend and companion,
in that most critical moment, and did not report the crime to the authorities, disappearing from the scene all of a sudden with a very frivolous
excuse that "he was afraid to be implicated". Furthermore, after discarding the testimony of Angel Emia, there is nothing to corroborate that of
Olimpio Libosada which, by its inherent weakness, cannot be alone and unsubstantiated by other reliable incriminatory circumstances, support a
judgment of conviction.lawphil.net
As to the two statements, Exhibit C and D, styled, ante mortem by the Solicitor-General, the trial court properly disregarded because them there is
no evidence of record that Paulino had made them under a sense of impending death and with no hope of recovery.
The trial judge gave unusual importance to the testimony of the two policemen who testified that they made an ocular inspection of the scene of
the crime and found no bloodstain in the kitchen of the house of the accused spouses. This, according to the trial judge, destroys the theory of the
defense that Paulino was stabbed in said kitchen by the accused wife when he tried to lie with her through intimidation and violence. We are of the
opinion that the trial judge erred on this point as he did on others. It appears that the said policemen did not also find any bloodstain on the
threshold of the house of the accused spouses where, according to the prosecution, the aggression took place. Therefore, said testimony
contradicts the defense no less than it does the prosecution.
In resume, we are of the opinion that we should, as we do hereby hold that the accused Natividad Luague in wounding Paulino Disuasido to death,
acted in legitimate self-defense, and that the other accused Wenceslao Alcansare had no participation in said act; wherefore, reversing the
appealed judgment, we hereby acquit both accused, and order their immediate release, if in confinement, with costs de oficio.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-41674 March 30, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
REMEDIOS DE LA CRUZ, defendant-appellant.
VICKERS, J.:
This is an appeal from a decision of the Court of First Instance of Nueva Ecija, finding the defendant guilty of homicide and sentencing her to suffer
not more than fourteen years, eight months and one day of reclusion temporal and not less than eight years and one day of prision mayor, to
indemnify the heirs of the deceased Francisco Rivera in the sum of P1,000, and to pay the costs.
Appellant's attorney makes the following assignments of error:
I. El Juzgado a quo, erro al dar absoluto credito a las pruebas de la acusacion, las que son insuficientes para apoyar una declaracion de conviccion.
II. El Juzgado a quo erro al declarar que los celos fueron el motivo que impulso a la acusada al agredir al occiso Francisco Rivera.
III. El Juzgado a quo al declarar increible el testimonio de la acusada en esta causa.
IV. Y el Juzgado a quo erro al no absolver a la acusada.
It appears from the evidence that on the evening of February 18, 1934, Francisco Ramos and his wife, Brigida Vistada; his sister, Baltazara Ramos;
and a woman named Consuelo or Natividad Santoyo called at the house of the defendant and asked her to go with them to a wake in honor of one
Sion, who had died in the house of Maria Inguit. About nine o'clock the defendant and her friends started home. They were followed about five
minutes later, according to Enrique Bautista, by the deceased Francisco Rivera, who had been playing cards in the house where the wake was held.
He was accompanied by Enrique Bautista. Rivera and Bautista overtook defendant's party. When they reached a narrow part of the path, Rivera
went ahead of Bautista. At that time the members of the defendant's party were walking in single file. Baltazara Ramos was in the lead and the
defendant was the hindmost. She was about two brazas from the person immediately ahead of her. Francisco Ramos, the only one of defendant's
companions that was called to testify, heard someone cry out "Aruy, Dios mio". He went back and found that Francisco Rivera had been stabbed
under the right breast. The wounded man was taken to the hospital, where he died the next afternoon.
Francisco Ramos testified that it took him about two minutes to go back to the place where Francisco Rivera was. He found and that Enrique
Bautista was with the wounded man, and the defendant had started back towards the house of mourning. He overtook her. She had a knife in her
hand. When they reached the house of Maria Inguit, Remedios de la Cruz stuck the knife into a table and said that she stabbed Francisco Rivera
because he embraced her.
The case for the prosecution rests upon the testimony of Enrique Bautista. According to him the defendant waited on the right side of the path
near some guava trees and stabbed Francisco Rivera with a knife in her right hand when he arrived in front of her; that the injured man cried "Aruy,
Dios mio", while the defendant turned around and returned to the house of Maria Inguit, saying "Icao ay malaon na" (hacia tiempo ya). He further
testified that the defendant stabbed the deceased before either of them had said anything; that the distance between him and the deceased was
about one foot; that he did not see any of the companions of the defendant after they reached the path and had to walk one behind the other.
The defendant on the other hand testified that after they had passed a fork in the trail and reached a narrow part a man suddenly threw his arms
around her from behind, caught hold of her breasts and kissed her, and seized her in her private parts; that she tried to free herself, but he held her
and tried to throw her down; that when she felt weak and could do nothing more against the strength of the man, she got a knife from her pocket,
opened it, and stabbed him in defense of her honor. She further testified that the man who attacked her did not say anything; that she asked him
who he was but he did not answer; that when she was assaulted she cried for help, saying "Madre mia; Dios mio"; that when she was seized, she
was about two brazas behind her nearest companion; that when she was face to face with her assailant during the struggle she could scarcely
recognize his face in the darkness and could not be sure that it was Francisco Rivera.
Her testimony as to what occurred is as follows:
P. ¿Y que paso siendo usted la ultima de entre sus compañeros? — R. Despues de pasar nosotros en una bifurcacion de los caminos cuando
llegabamos en una parte estrecha el occiso subitamente me abrazo por detras cogiendome los pechos y basandome.
P. ¿Y entonces que hizo usted cuando usted sintio ese abrazo y beso? — R. todavia me agarro en mi parte genital y en eso yo trataba de desasirme
de el; el me siguio abrazando cogiendome de los pechos y basandome, y yo a mi vez seguia tratando de desasirme de el insistentemente.
P. ¿Y que sucedio? — R. Cuando yo trataba de desasirma de el, el me siguio abrazando y yo a mi vez seguia tratandome de desassirme de el y el
llego a agarrarme en la parte genital y trato de lanzarme.
P. ¿Y que hizo usted cuando le trataba de lanzarle a usted el occiso? — R. Yo procuraba desasirme de el y cuando me quede debilitada y ya no
podia hacer nada contra la fuerza de el yo saque de mo bolsillo un cortaplumas.
P. ¿Y que hizo usted del cortaplumas? — R. Lo abri porque cuando ya no podia hacer nada y estaba y a debil yo hice lo que debia hacer en defensa
de mi pudor, le apuñale.
She further testified that she was engaged in selling fruit, and that the fanknife in question was in a pocket of the overcoat she was wearing that
day; that she went off with her friends without having an opportunity of changing her clothes.
We cannot believe the testimony of Enrique Bautista, because Francisco Ramos, one of the witnesses for the prosecution, testified that it was a
dark night, and Bautista himself said that he could scarcely see anyone in the darkness ("Apenas se podia ver a alguien en esa obscuridad."); that he
did not see any of the companions of the defendant.
It appears from the evidence that the deceased had been making love to the defendant, and also to another girl named Felicisima Sincaban; but
the finding of the trial judge that Francisco Rivera and the defendant were engaged, that she was madly in love with him and was extremely jealous
of Felicisima Sincaban is not sustained by the evidence of record.
The appellant stabbed the deceased only once, although she retained possession of the knife, and undoubtedly could have inflicted other wounds
on him if she had desired. In other words she desisted as soon as he released her.
The evidence shows that an officer of the Constabulary went to see the injured man about eleven o'clock that night in the hospital, but it does not
appear that Rivera told him anything about the circumstances under which he had been stabbed.
The appellant is an illiterate barrio girl, unable to write her name, and scarcely eighteen years old. We do not believe her story is a fabrication. In
this connection it is to be noted that almost immediately after the incident in question took place, the appellant said she stabbed Francisco Rivera
because he embraced her. It is not improbable that she was reluctant to relate in the presence of all the people in the house of Maria Inguit the
details of what had occurred.
We are convinced from a study of the record that the deceased did in fact grab hold of the defendant on the night in question, and whether he
intended to rape her or not, taking into consideration that it was a dark night and that the deceased grabbed her from behind without warning and
without making himself known and refused to say who he was, and in the struggle that followed touched her private parts, and the fact that she
was unable to free herself by means of her strength alone, we are of the opinion that she was justified in making use of the pocket-knife in
repelling what she believed to be an attack upon her honor, since she had no other means of defending herself.
In the case of the United States vs. Ah Chong (15 Phil., 488), this court held that a person is not criminally responsible when, by reason of a mistake
of facts, he does an act for which he would be exempt if the facts were as he supposed them to be, but would constitute murder if he had known
the true state of facts at the time, provided that the ignorance or mistake of fact was not due to negligence or bad faith.
The appellant claims to have cried for help, but so far as the record shows her cries were not heard by any of her companions. Whether she did in
fact cry for help, as claimed by her, or failed to do so because of the suddenness with which the deceased grabbed her and the fright which it
naturally caused, taking into consideration the circumstances of the case, we still think she is exempt from criminal liability. In the case of the
United States vs. Santa Ana and Ramos (22 Phil., 249), this court held that a woman in defense of her honor is justified in inflicting wounds or her
assailant with a bolo which she happens to be carrying, even though her cry for assistance might have been heard by people near by.
For the foregoing reasons, the decision appealed from is reversed, and the appellant is acquitted, with the costs de oficio.
Avanceña, C.J., Malcolm, Abad Santos, Imperial, Butte, and Diaz, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue
was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years,
four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties
provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also
credited with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on
June 10, 1944, claimed —
(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely
absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit
so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been
committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo,
Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the
former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a
handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly
refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered
girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother
about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where
she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her
parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas
Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing
so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for
Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son;
and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken
liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that
Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which
he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing
the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were
electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious
services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the
presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word,
Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive
conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked
Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but
she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound
about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and
staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and
answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant
Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying:
"Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that
Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately,
to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and
locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three
policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately
surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous
acts and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in
all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the
future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to
make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and
upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where
women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is
Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property
acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's
honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled,
wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the
moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs.
Luague and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased
grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without
revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her
strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and
which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la
Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying
at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and
isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and
Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was
attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held
that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using
deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such
a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which
could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942,
and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of
merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant
and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her
consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her
own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be no
possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound
4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and
under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel,
admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to remain there
subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that
she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to
produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor
(People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her
knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should be
considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the
aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to
show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature.
She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the
consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not
where.
The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a
certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the
circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but
with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article
69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor,
as minimum, to two years, four months, and one day of prision correccional, as maximum, with the accessory penalties prescribed by law, to
indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed
1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her
preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.
FIRST DIVISION
[G.R. No. 5318. December 23, 1909. ]
THE UNITED STATES, Plaintiff-Appellee, v. RAFAEL BUMANGLAG ET AL., Defendants. — GREGORIO BUNDOC, Appellant.

DECISION
TORRES, J. :

On the night of January 2, 1909, Rafael Bumanglag, an inhabitant of the pueblo of San Nicolas, Province of Ilocos Norte, missed 4 baares or 40
bundles of palay which were kept in his granary, situated in the place called "Payas," barrio No. 16 of the said pueblo, and on proceeding to search
for them on the following morning, he found them in an inclosed field which was planted with sugar cane, at a distance of about 100 meters from
his granary; thereupon, for the purpose of ascertaining who had done it, he left the palay there, and that night, accompanied by Gregorio Bundoc.
Antonio Ribao, and Saturnino Tumamao, he waited near the said field for the person who might return to get the palay. A man, who turned out to
be Guillermo Ribis, made his appearance and approaching the palay, attempted to carry it away him, but at that instant Bumanglag, Bundoc, and
Ribao assaulted the presumed thief with sticks and cutting and stabbing weapons; as a result of the struggle which ensued the person attacked fell
down and died instantly, Bumanglag and his companions believing that Guillermo Ribis was the author of several robberies and thefts that had
occurred in the place.

In view of the foregoing, the provincial fiscal field a complaint on January 15, 1909, charging Rafael Bumanglag, Gregorio Bundoc, and Antonio
Ribao with the crime of homicide, and the trial judge, on February 5 of the present year, rendered judgment in the case, sentencing the three
accused persons to the penalty of fourteen years eight months and one day of reclusion temporal, with the accessories, and to the payment of an
indemnity of P1,000 to the heirs of the deceased, and the costs in equal parts, from which decision only Gregorio Bundoc appealed.

From the facts above mentioned, fully proven in this case, the commission of the crime of homicide, defined and punished by article 404 of the
Penal Code, is inferred, inasmuch as Guillermo Ribis was violently deprived of his life in consequence of serious wounds and bruises, some of them
of a mortal nature, as appears from a certificate issued by a physician who examined the body of the deceased, and who ratified said certificate at
the trial under oath.

The accused Bundoc, the only appellant, pleaded not guilty, but, in the absence of justification, and his exculpatory allegation being unreasonable,
it is not proper to hold that he assaulted and killed the deceased, with the help of his codefendants, in order to defend himself from an attack
made by the former with a bolo.

Both Gregorio Bundoc and his codefendants Bumanglag and Ribao declared that, during the fight with the deceased Ribis, they only beat the latter
with sticks, because he unsheathed the bolo he carried; but from the examination made of the body it appeared that several serious wounds had
been inflicted with cutting and stabbing weapons, besides some bruises, and according to the declaration of the health officer Felipe Barba, which
declaration was confirmed by the municipal president of Laoag, the bolo worn by the deceased was in its heath and hanging from his waist;
therefore it can not be concluded that the deceased even intended to assault his murderers with his bolo either before he was attacked by them or
during the fight, because, had Ribis made use of the bolo he carried sheathed, the bolo would have been found unsheathed at the place where the
fight occurred, and it is not reasonable to believe that, before falling to the ground in a dying condition he succeeded in sheathing his bolo, in which
condition it was found on his body.

It is therefore indisputable that, without any prior illegal aggression and the other requisites which would fully of partially exempt the accused from
criminal responsibility, the appellant and his two companions assaulted Guillermo Ribis with sticks and cutting and stabbing arms, inflicting upon
him serious and mortal wounds, and therefore, the said accused is guilty of the crime of homicide as co-principal by direct participation, fully
convicted, together with his codefendants who are already serving their sentence.

In the commission of the crime we should take into account the mitigating circumstance No. 7 of article 9 of the Penal Code, because the
defendant acted with loss of reason and self-control on seeing that Guillermo Ribis was taking material possession of the palay seized and hidden
by him on the previous night, thus committing one of the numerous unlawful acts perpetrated at that place, to the damage and prejudice of those
who, by their labor endeavor to provide themselves with the necessary elements for their subsistence and that of their families. The special
circumstance established by article 11 of the same code should be also considered in favor of the accused, in view of the erroneous and quite
general belief that it is legal to punish, even to excess the thief who, in defiance of law and justice, while refusing to work, devotes himself to
depriving his neighbors of the fruits of their arduous labors; these two circumstances are considered in the present case as especially admissible,
without any aggravating circumstance, and they determine, according to article 81, rule 5, of the Penal Code, the imposition of the penalty
immediately inferior to that prescribed by the law, and in its minimum degree, and therefore —

By virtue of the foregoing considerations, we are of the opinion that, the judgment appealed from being reversed with respect to Gregorio Bundoc
only, the latter should be, and is hereby, sentenced to the penalty of six years and one day of prision mayor, to the accessories of article 61 of the
code, to indemnify the heirs of the deceased jointly or severally with his codefendants, in the sum of P1,000, and to pay one-third the costs of both
instances. So ordered.

Arellano, C.J., Mapa and Johnson, JJ., concur.


SECOND DIVISION
G.R. No. 158057 September 24, 2004
NOE TOLEDO y TAMBOONG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23742 affirming on appeal, the Decision2 of the Regional
Trial Court (RTC) of Odiongan, Romblon, Branch 82, in Criminal Case No. OD-861, convicting the petitioner of homicide.
In an Information filed in the RTC of Romblon, the petitioner was charged with homicide allegedly committed as follows:
That on or about the 16th day of September 1995, at around 9:30 o’clock in the evening, in Barangay Libertad, municipality of Odiongan, province
of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, willfully,
unlawfully and feloniously attack, assault and stab with a bolo, one RICKY F. GUARTE, which causes (sic) his untimely death.
Contrary to law.3
In due course, the prosecution adduced evidence against the petitioner which was synthesized by the appellate court as follows:
On September 16, 1995, appellant went to a black-smith who made the design of his bolo. When he went home to Tuburan, Odiongan, Romblon
late in the afternoon (TSN, September 4, 1998, p. 2), appellant saw the group of Lani Famero, Michael Fosana, Rex Cortez and Ricky Guarte drinking
gin at the house of the Spouses Manuel and Eliza Guarte, Ricky’s parents. Appellant’s house is about five (5) meters away from the house of
Spouses Guarte. Appellant requested the group of Ricky to refrain from making any noise. Thereupon, appellant proceeded inside his house and
went to sleep (ibid., p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza Guarte’s brother arrived at the Guarte house and asked for any left-over food
(TSN, August 5, 1998, p. 3). Eliza prepared dinner for him and after Gerardo finished eating, he went home accompanied by Ricky (TSN, April 26,
1996, p. 5). Gerardo’s home is about twelve (12) meters away from the Guarte home (TSN, February 17, 1997, p. 11). Minutes later, Ricky came
back and together with Lani, Rex and Michael, went to sleep at the Guarte house. They had not laid down for long when they heard stones being
hurled at the roof of the house. The stoning was made three (3) times (TSN, August 5, 1998, pp. 2-3). Ricky rose from bed and peeped through a
window. He saw appellant stoning their house. Ricky went out of the house and proceeded to appellant’s house. Ricky asked appellant, his uncle,
why he was stoning their house. Appellant did not answer but met Ricky at the doorstep of his (appellant’s) house (TSN, April 26, 1996, p. 6; August
5, 1998, pp. 4-5) and, without any warning, stabbed Ricky on the abdomen with a bolo (TSN, August 5, 1998, p. 8). Eliza had followed his son Ricky
and upon seeing that Ricky was stabbed, shouted for help (TSN, February 17, 1997, p. 13). Lani heard Eliza’s cry for help and immediately rushed
outside the house. Lani saw Ricky leaning on the ground and supporting his body with his hands. Lani helped Ricky stand up and brought him to the
main road. Lani asked Ricky who stabbed him and Ricky replied that it was appellant who stabbed him. Then Docloy Cortez arrived at the scene on
board his tricycle. Accordingly, Ricky was put on the tricycle and taken to the Romblon Provincial Hospital (TSN, January 19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated on Ricky that very night. Ricky had sustained one (1) stab wound but due to
massive blood loss, he died while being operated on (TSN, November 24, 1997, pp. 2, 6-7). Dr. Fetalvero issued a Medico-Legal Certificate showing
the injuries sustained by Ricky, thus:
Stab wound, left chest with gastric & transverse colon evisceration measuring 6 cms. long, irregular-edged at 8th ICS, left penetrating (operative
findings):
(1) abdominal cavity perforating the stomach (thru & thru) and the left lobe of the liver
(2) thoracic cavity thru the left dome of the diaphragm perforating the lower lobe of the left lung.

(Exhibit C)
The Certificate of Death issued by Dr. Fetalvero stated the cause of Ricky’s death as:
CAUSES OF DEATH:
Immediate cause :
a. Cardiorespiratory Arrest
Antecedent cause :
b. Hypovolemic shock
Underlying cause :
c. Multiple thoraco-abdominal
injury 2º to stab wound
(Exhibit B)4
The Evidence of the Petitioner
The petitioner adduced evidence that at around 5:00 p.m. on September 16, 1995, he was on his way home at Tuburan, Odiongan, Romblon. He
saw his nephew, Ricky Guarte, and the latter’s friends, Michael Fosana, Rex Cortez, and Lani Famero, about five meters away from his house,
having a drinking spree. He ordered them not to make loud noises, and they obliged. He then went to his house, locked the door with a nail, and
went to sleep. However, he was awakened at around 9:30 p.m. by loud noises coming from Ricky and his three companions. He peeped through
the window grills of his house and admonished them not to make any loud noises. Ricky, who was then already inebriated, was incensed; he pulled
out a balisong, pushed the door, and threatened to stab the petitioner. The petitioner pushed their sala set against the door to block the entry of
Ricky, but the latter continued to push the door open with his hands and body. The petitioner ran to the upper portion of their house and got his
bolo.5 He returned to the door and pushed it with all his might using his left hand. He then pointed his bolo, which was in his right hand, towards
Ricky. The bolo accidentally hit Ricky on the stomach, and the latter lost his balance and fell to the floor. The petitioner, thereafter, surrendered to
the barangay captain at 11:00 a.m. on September 17, 1995.
After trial, the court rendered judgment finding the petitioner guilty as charged. The fallo of the decision reads:
WHEREFORE, premises considered, NOE TOLEDO is hereby found GUILTY beyond reasonable doubt of homicide with the mitigating circumstance of
voluntary surrender and is meted the indeterminate penalty of from six (6) years and one (1) day of prision mayor minimum, as minimum, to
twelve (12) years and one (1) day of reclusion temporal minimum, as maximum.
Accused is condemned to pay the amount of ₱50,000.00 as civil liability to the heirs of the victim.6
The trial court did not give credence and probative weight to the testimony of the petitioner that his bolo accidentally hit the victim on the
stomach.
On appeal in the CA, the petitioner raised the following issue in his brief as appellant:
WHETHER OR NOT ACCUSED-APPELLANT CAN BE CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL DEATH OF RICKY GUARTE7
Invoking Article 12, paragraph 4 of the Revised Penal Code, the petitioner claimed that he stabbed the victim by accident; hence, he is exempt from
criminal liability for the death of the victim.
The CA rendered judgment affirming the assailed decision with modifications. The CA also denied the petitioner’s motion for reconsideration
thereof. The appellate court ruled that the petitioner failed to prove that he acted in self-defense.
Aggrieved, the petitioner filed the instant petition for review, contending that the CA erred in not finding that he acted in self-defense when he
stabbed the victim by accident and prays that he be acquitted of the crime charged.
The sole issue in this case is whether or not the petitioner is guilty beyond reasonable doubt of homicide based on the evidence on record.
The petitioner contends that the CA committed a reversible error when it affirmed the decision of the RTC convicting him of homicide, on its
finding that he failed to prove that he acted in complete self-defense when the victim was hit by his bolo. The petitioner insists that he acted in
complete self-defense when his bolo accidentally hit the victim on the stomach.
For its part, the Office of the Solicitor General asserts that the petitioner failed to prove self-defense with clear and convincing evidence. Hence, the
decision of the CA affirming, on appeal, the decision of the RTC is correct.
The contention of the petitioner has no merit.
The petitioner testified that his bolo hit the victim accidentally. He asserted in the RTC and in the CA that he is exempt from criminal liability for the
death of the victim under Article 12, paragraph 4 of the Revised Penal Code which reads:
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.
In his brief in the CA, the petitioner argued that:
In the case at bar, with all due respect, contrary to the findings of the lower court, it is our humble submission that the death of Ricky Guarte was
merely a sad and unwanted result of an accident without fault or intention of causing it on the part of accused-appellant. We submit, there were
clear and indubitable factual indicators overlooked by the lower court, bolstering the theory of the defense on accidental death.8
However, the petitioner changed gear, so to speak, and now alleges that he acted in self-defense when he stabbed the victim. As such, he
contends, he is not criminally liable under Article 11, paragraph 1 of the Revised Penal Code which reads:
Art. 11. Justifying circumstances. – The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it:
Third. Lack of sufficient provocation on the part of the person defending himself.
The petitioner avers that he was able to prove the essential elements of complete self-defense, thus:
A close scrutiny of the records of the case would show that the petitioner acted in self-defense.
The essential requisites of self-defense are: (1) unlawful aggression on the part of the victim; (2) reasonable scrutiny of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself (People vs. Silvano, 350 SCRA 650)9
However, the petitioner also claims that his bolo accidentally hit the stomach of the victim.
It is a matter of law that when a party adopts a particular theory and the case is tried and decided upon that theory in the court below, he will not
be permitted to change his theory on appeal. The case will be reviewed and decided on that theory and not approached and resolved from a
different point of view. To permit a party to change his theory on appeal will be unfair to the adverse party.10
The petitioner is proscribed from changing in this Court, his theory of defense which he adopted in the trial court and foisted in the CA – by
claiming that he stabbed and killed the victim in complete self-defense. The petitioner relied on Article 12, paragraph 4 of the Revised Penal Code
in the trial and appellate courts, but adopted in this Court two divergent theories – (1) that he killed the victim to defend himself against his
unlawful aggression; hence, is justified under Article 11, paragraph 1 of the Revised Penal Code; (2) that his bolo accidentally hit the victim and is,
thus, exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal Code.
It is an aberration for the petitioner to invoke the two defenses at the same time because the said defenses are intrinsically antithetical.11 There is
no such defense as accidental self-defense in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and positive overt act of the accused to
prevent or repel an unlawful aggression of another with the use of reasonable means. The accused has freedom of action. He is aware of the
consequences of his deliberate acts. The defense is based on necessity which is the supreme and irresistible master of men of all human affairs, and
of the law. From necessity, and limited by it, proceeds the right of self-defense. The right begins when necessity does, and ends where it ends.12
Although the accused, in fact, injures or kills the victim, however, his act is in accordance with law so much so that the accused is deemed not to
have transgressed the law and is free from both criminal and civil liabilities.13 On the other hand, the basis of exempting circumstances under
Article 12 of the Revised Penal Code is the complete absence of intelligence, freedom of action, or intent, or the absence of negligence on the part
of the accused.14 The basis of the exemption in Article 12, paragraph 4 of the Revised Penal Code is lack of negligence and intent. The accused
does not commit either an intentional or culpable felony. The accused commits a crime but there is no criminal liability because of the complete
absence of any of the conditions which constitute free will or voluntariness of the act.15 An accident is a fortuitous circumstance, event or
happening; an event happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the
person to whom it happens.16
Self-defense, under Article 11, paragraph 1, and accident, under Article 12, paragraph 4 of the Revised Penal Code, are affirmative defenses which
the accused is burdened to prove, with clear and convincing evidence. Such affirmative defenses involve questions of facts adduced to the trial and
appellate courts for resolution. By admitting killing the victim in self-defense or by accident without fault or without intention of causing it, the
burden is shifted to the accused to prove such affirmative defenses. He should rely on the strength of his own evidence and not on the weakness of
that of the prosecution. If the accused fails to prove his affirmative defense, he can no longer be acquitted.
The petitioner failed to prove that the victim was killed by accident, without fault or intention on his part to cause it. The petitioner was burdened
to prove with clear and convincing evidence, the essential requisites for the exempting circumstance under Article 12, paragraph 4, viz:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.
To prove his affirmative defense, the petitioner relied solely on his testimony, thus:
Q What happened next when Ricky Guarte was able to push through the door and you ran away?
A When Ricky Guarte was able to push the door, that is the time I go (sic) downstairs and got my bolo and at that time the body of Ricky Guarte
was at the entrance of the door and accidentally the bolo reached him.
Q Where did you get the bolo?
A I got the bolo in the post or wall of our house.
Q Was Ricky Guarte hit the first time you boloed him?
A Not hacking but accidentally.
Q What do you mean by accidentally?
A Because when Ricky Guarte pushed the door and unbalance himself (sic) the bolo which I was carrying hit him accidentally.
Q Where was he hit by the bolo you were carrying?
A In the stomach.17

Q And since you were at the left side of the door, your right hand was at the center part of the door, correct?
A No, Sir.
Q Where was your right hand?
A Holding a bolo.
Q Where, in what part of the door?
A Right side.
Q When Ricky Guarte was pushing the door, the door was not opened?
A It was opened.
Q It was opened because you opened the door, correct?
A No, Sir.
Q Now, why was it opened?
A Because he was pushing it.
Q With his left hand?
A With his both hands and body.
Q Now, when he fell down because, according to you, he losses (sic) his balance, the left side of the body was the first to fell (sic) down, correct?
A Yes, Sir.
Q You are sure of your answer now Mr. Toledo?
A Yes, Sir.
Q Now, and while holding that bolo, you are doing that in [an] upward position, correct?
A No, Sir, pointing the door.
Q Yes, you are pointing the tip of your bolo to the door upward, correct?
A No, Sir, steady pointing to the door.
Q Now, when the door was opened, your bolo did not hit any part of that door, correct?
A "Ginaiwas ko ang sunrang," meaning I was able to get away from hitting any part of the door.
Q The question Mr. Toledo is simple, while the door was opened and while you were pointing directly your bolo at the door, not any part of the
door hit the bolo (sic), correct?
ATTY. FORMILLEZA:
It was a valid answer, it did not hit any part of the door.
COURT:
Answer.
A No, Sir.
PROS. FRADEJAS continuing:
Q You were only about five inches away from your door while pushing it, correct?
A Yes, Sir.
Q Now, when the door was pushed already by Ricky Guarte, not any part of your body hit the door, correct?
A No, Sir.18
The petitioner also testified that the victim was armed with a balisong and threatened to kill him as the said victim pushed, with his body and
hands, the fragile door of his house:
Q Where were you when you saw Ricky went out?
A I was at the door.
Q Did Ricky proceed to the door where you were?
A Yes, Sir.
Q What did he do, if any?
A He drew his fan knife or balisong and asked me what do you like, I will stab you?
Q What did you do?
A I told him I have not done you anything wrong, I am only scolding you or telling you not to make noise.
Q What, if any, did Ricky Guarte do to you?
A He pushed the door.
Q Whose door did he push?
A My own door.
Q Where were you when he pushed the door?
A Inside our house.19
We find the testimony of the petitioner incredible and barren of probative weight.
First. If the testimony of the petitioner is to be believed, the force of the struggle between him and the victim would have caused the door to fall on
the petitioner. However, the petitioner failed to adduce real evidence that the door of his house was destroyed and that he sustained any physical
injuries,20 considering that he was only five inches away from the door.
Second. If the door fell to the sala of the house of the petitioner, the victim must have fallen on top of the door. It is incredible that the bolo of the
petitioner could have hit the stomach of the victim. The claim of the petitioner that he managed to step aside and avoid being crushed by the door
belies his claim that the bolo accidentally hit the victim on the stomach.
Third. When he surrendered to the barangay captain and to the policemen, he failed to relate to them that his bolo accidentally hit the stomach of
the victim:
Q Now, that very night when you said Ricky Guarte was accidentally hit by your bolo, you did not surrender to the police, correct?
A I surrendered to the barangay captain at one o’clock in Panique, in the afternoon.
Q Now, you only surrendered to the police when a certain person advised you to surrender, correct?
A On my own volition, I surrendered to the barangay captain.
Q You did not narrate the incident to the barangay captain whom you have surrendered, correct?
A No, Sir.
Q When you were brought to the municipal jail, you did not also narrate to the police what happened, correct?
A No, Sir.
Q You just remained silent thinking of an excuse that happened that evening of September 16, 1995, correct?
A No, Sir.21
Fourth. There is no evidence that the petitioner surrendered either the bolo that accidentally hit the victim or the balisong held by the deceased to
the barangay captain or the police authorities. Such failure of the petitioner negates his claim that his bolo accidentally hit the stomach of the
victim and that he acted in self-defense.22
Fifth. To prove self-defense, the petitioner was burdened to prove the essential elements thereof, namely: (1) unlawful aggression on the part of
the victim; (2) lack of sufficient provocation on the part of the petitioner; (3) employment by him of reasonable means to prevent or repel the
aggression. Unlawful aggression is a condition sine qua non for the justifying circumstances of self-defense, whether complete or incomplete.23
Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude.24 We agree with the ruling of the CA that the petitioner failed to prove self-defense, whether complete or incomplete:
The evidence on record revealed that there is no unlawful aggression on the part of Ricky. While it was established that Ricky was stabbed at the
doorstep of appellant’s house which would give a semblance of verity to appellant’s version of the incident, such view, however, is belied by the
fact that Ricky arrived at appellant’s house unarmed and had only one purpose in mind, that is, to ask appellant why he threw stones at his (Ricky’s)
house. With no weapon to attack appellant, or defend himself, no sign of hostility may be deduced from Ricky’s arrival at appellant’s doorstep.
Ricky was not threatening to attack nor in any manner did he manifest any aggressive act that may have imperiled appellant’s well-being. Ricky’s
want of any weapon when he arrived at appellant’s doorstep is supported by the fact that only one weapon was presented in court, and that
weapon was the bolo belonging to appellant which he used in stabbing Ricky. Thus, appellant’s version of the events does not support a finding of
unlawful aggression. In People vs. Pletado, the Supreme Court held:
"xxx (F) or aggression to be appreciated, there must be an actual, sudden, [un]expected attack or imminent danger thereof, and not merely a
threatening or intimidating attitude (People vs. Pasco, Jr., supra, People vs. Rey, 172 SCRA 149 [1989]) and the accused must present proof of
positively strong act of real aggression (Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]). Unlawful aggression must be such as to put in real
peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat."
Appellant was not justified in stabbing Ricky. There was no imminent threat to appellant’s life necessitating his assault on Ricky. Unlawful
aggression is a condition sine qua non for the justifying circumstance of self-defense. For unlawful aggression to be appreciated, there must be an
actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude. In the absence of such element,
appellant’s claim of self-defense must fail.
Further, appellant’s plea of self-defense is not corroborated by competent evidence. The plea of self-defense cannot be justifiably entertained
where it is not only uncorroborated by any separate competent evidence but is in itself extremely doubtful.25
Sixth. With the failure of the petitioner to prove self-defense, the inescapable conclusion is that he is guilty of homicide as found by the trial court
and the CA. He cannot even invoke Article 12, paragraph 4 of the Revised Penal Code.26
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.
SO ORDERED.
Puno, Austria-Martinez, Tinga, and Chico-Nazario*, JJ., concur.
SECOND DIVISION
[G. R. No. 132028. April 19, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUSEBIO ENFECTANA, alias Toytoy, and ERWIN ENFECTANA, accused-appellants.
DECISION
QUISUMBING, J.:
Before us on appeal is the decision[1] dated June 24, 1997 of the Regional Trial Court, Borongan, Eastern Samar, Branch 1, in Criminal Case No.
10582, finding appellants guilty of murder and sentencing them to suffer the imprisonment of reclusion perpetua.
Appellants herein were indicted in an Information[2] as follows:
That on November 2, 1994, at about 11:00 oclock in the morning, at the National Highway, Barangay Cabay, Balangkayan, Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another, with
intent to kill and with evident premeditation and treachery and without justifiable cause, did then and there wilfully, unlawfully and feloniously
bumped Leo Boco and the complainant Adelaida Boco with the trycicle (sic) of the accused, when the victim has just alighted from a passenger
jeepney, then attacked, assaulted, hacked, stabbed and wounded Leo Boco with the use of sharp bladed weapons, which the accused provided
themselves for the purpose, thereby inflicting injuries upon Leo Boco, which injuries caused the instantaneous death of Leo Boco, to the damage
and prejudice of the heirs of the victim, in such amount as may be awarded to them under the provisions of the Civil Code of the Philippines and
other related laws and caused injuries on the complainant, Adelaida Boco, when she was bumped by the trycicle (sic) named Pepit owned and
operated by the herein accused and driven by co-accused Erwin Enfectana.
CONTRARY TO LAW, with the attendance of the aggravating circumstances of: Evident premeditation, Conspiracy, Treachery and advantage taken
due to superior strength or means employed to weaken the defense of the victim.
Upon arraignment, appellants pleaded not guilty to the charge. Thereafter trial ensued.
The first witness for the prosecution was ADELAIDA BOCO, widow of the victim, Leo Boco. She testified that on November 2, 1994, at around 11:00
A.M., while she and her husband were on their way home, they were sideswiped by a tricycle driven by appellant Erwin Enfectana with Efren
Enfectana as passenger. As a result, her husband fell in a crouching position. When he was about to get up, appellant Eusebio Enfectana came from
behind to stab him. Then appellant Erwin Enfectana and accused Efren Enfectana took turns stabbing Leo Boco, causing his death.[3]
DOMINADOR DIALINO, a 52-year-old farmer, testified that he saw appellants and co-accused kill the victim. According to the witness, he was at the
store of one Olivo Contado, at around 11:00 A.M. of November 2, 1994. From there, he saw Leo and Adelaida Boco alight from a jeepney. He also
saw a fast running tricycle which bumped the vehicle of the Boco spouses. The tricycle was being driven by Erwin Enfectana who was with Efren
Enfectana. They missed the Boco spouses who jumped away. Erwin and Efren Enfectana alighted from the tricycle and walked towards Leo Boco,
who had fallen down. They were carrying short bladed weapons known as depang.[4] Dominador Dialino tried to stop them by going between
them and the Boco spouses, to no avail. He heard Efren Enfectana shout, bon-a na Tatay (Father, stab him). He then saw Eusebio Enfectana stab
Leo Boco. After Leo Boco fell, Erwin and Efren also stabbed him.[5]
BARTOLOME BAHASAN, a 54-year-old resident of Bgy. Cabay, Balangkayan, Eastern Samar, testified that sometime in 1985, the family of Eusebio
Enfectana tried to move into the residence of Leo and Adelaida Boco but they were prevented by Leo. He also alleged that sometime in 1985, Leo
Boco was waylaid by the Enfectanas (Eusebio, Erwin and Efren) but he was able to escape by swimming across the river. From then on, Leo Boco
always tried to evade the Enfectanas.[6]
Dr. MICHAEL TAN, the Municipal Health Officer of Balangkayan, Eastern Samar, testified that he was the one who conducted the post-mortem
examination on the cadaver of Leo Boco. According to him, the deceased suffered six stab wounds, and that the probable cause of death was the
stab wound at the back that caused hemorrhage. He opined that in all probability, based on the sizes and nature of the wounds, not less than two
weapons were used against the victim.[7]
On June 15, 1995, ADELAIDA BOCO was recalled to the witness stand to testify on the damages she and her family suffered and the expenses they
incurred as a result of Leo Bocos death. According to her, Leo Boco was a businessman who earns at least P20,000 a month by selling automotive
parts in Cebu. She said that she incurred P50,000 in funeral expenses. She also spent for legal fees because she engaged a lawyer for the fee of
P500 per appearance in court. Aside from these, she also alleged that since her husbands death, she became the sole breadwinner of her family
and the main source of livelihood for her five children.[8]
For its part, the defense presented DARIO D. ALDE, municipal treasurer of Balangkayan, Eastern Samar, as its first witness. He testified that there is
no record of Leo Boco as businessman in the Municipality of Balangkayan.[9]
Next witness for the defense was Mrs. MANUELA CONTADO DIALINO. She testified that on November 2, 1994, she went to the cemetery of
Balangkayan where she stayed from 8:30-9:30 A.M. She then proceeded to the waiting shed where she waited for a ride home. She was able to
ride a tricycle at around 11:00 A.M. She alleged that Dominador Dialino was with her in the tricycle and that they arrived in Cabay at around 12:00
noon. Upon arriving home, they were informed that Leo Boco had been killed.[10]
Appellant EUSEBIO ENFECTANA testified that on November 2, 1994, at around 11:00 A.M., while he was at home, someone arrived and informed
him that his tricycle was involved in an accident. He went to the place and saw his tricycle turned upside down with its windshield broken.
Suddenly, he saw Leo Boco running towards him with a dipang (a small bolo). He evaded the attacks of Leo Boco and managed to get hold of a
piece of wood which he used to defend himself. Still, Leo Boco persisted in attacking him until he was able to get hold of a bolo which he used in
stabbing Leo. According to him, he was able to stab Leo in the right hand and chest. Aside from this he was also able to hack him in the neck. As Leo
fell down from these counter-attacks, according to appellant, he took Leos bolo and used this to stab him. He was then chased by the sons and the
cousin of Leo Boco up to his house which they pelted with stones. After they stopped, Eusebio decided to call the authorities to surrender
himself.[11]
Appellant ERWIN ENFECTANA testified that he is 24 years old, married, and a resident of Cabay, Balangkayan, Eastern Samar. According to him, at
around 11:00 A.M. of November 2, 1994, while he was waiting for passengers in Bgy. Cabay, Balangkayan, he saw Leo Boco running toward him
with a small bolo. In his effort to escape, he accidentally bumped his tricycle on a fence. He fell down because of the impact but he immediately
stood up and ran away because Leo Boco was still chasing him with a bolo. In order to escape, he hid in the house of Osias Montes where he
learned that his father, Eusebio Enfectana, and Leo Boco had a quarrel.[12]
FE ANDALIZA GLINO testified that on the morning of November 2, 1994, while she was ironing clothes in the house of Nestor Borja, she heard a
tricycle crashing into a wooden fence. When she looked out the window, she saw appellant Erwin Enfectana sprawled on the ground trying to get
up. She also saw Leo Boco with a dipang approaching Erwin and trying to stab him. Erwin got up and ran away. She returned to her chores but after
a while, she heard a woman shout, Leo, ayaw kamo pag-igi, ayaw hito (Leo, do not quarrel, not here.) She looked out the window and saw Leo Boco
advancing, this time towards appellant Eusebio Enfectana. Leo was trying to stab Eusebio Enfectana while the latter parried the blows with a piece
of wood. When Eusebio Enfectana was cornered against a banana store, witness Fe Glino said, she looked away until she heard somebody
shouting, Patay na si Leo Boco (Leo Boco is already dead).[13]
Defense witness NENITA ALDE testified that she was the one who took the pictures of the appellants house, which show shattered windows and
the stones allegedly used in breaking these windows.[14]
Another defense witness, EDDIE AMBAL, testified that on November 2, 1994, while he was on his way home from his aunts house, he saw a tilted
tricycle. He also saw appellant Eusebio Enfectana being attacked by Leo Boco with a dipang. According to him, Eusebio Enfectana managed to parry
these blows with a piece of wood until he reached a banana store where he was able to get hold of a bolo. This he used to stab and hack the victim,
Leo Boco.[15]
Witness MARCOS LADIAO testified that on November 2, 1994, at around 11:00 A.M., while he was on his way to the house of a certain Romulo
Elpedes, he noticed a tilted tricycle by the side of the road. He saw appellant Eusebio Enfectana standing near the said tricycle. He also saw Leo
Boco with a small bolo approaching Eusebio Enfectana from the direction of the seashore. He heard Leo Boco shout, kay waray ko man kamatay an
anak, it amay it ak papatayon (Because I failed to kill the son, I will kill the father). With these words, Leo Boco bumped Eusebio Enfectana and tried
to stab him with the dipang. But Eusebio Enfectana managed to evade the thrust of Leo Bocos weapon. Eusebio Enfectana was able to pick a piece
of wood which he used to parry the blows of Leo Boco, at the same time backpedalling across the street where he (Eusebio Enfectana) was
eventually cornered against the banana store of Contado. At said store, Eusebio Enfectana managed to get hold of a long bolo which he used to
stab Leo Boco. When the victim fell down, appellant Eusebio Enfectana ran and jumped over the fence.[16]
Later, the prosecution recalled ADELAIDA BOCO as its rebuttal witness to disprove the allegations of Eddie Ambal that he (Ambal) actually saw the
killing of Leo Boco.[17]
On June 24, 1997, the trial court rendered its decision as follows:
WHEREFORE, in view of the foregoing facts and circumstances, EUSEBIO ENFECTANA and ERWIN ENFECTANA are found guilty beyond reasonable
doubt as co-principals of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, and further
amended by R.A. 7659, section 6, which provide the penalty of Reclusion Perpetua to Death. Accordingly, Eusebio Enfectana and Erwin Enfectana
are hereby sentenced to serve the indivisible penalty of reclusion perpetua, to pay the cost and to indemnify the heirs of Leo Boco in the amount of
Fifty Thousand Pesos (P50,000.00) pursuant to a recent ruling of the Supreme Court (citing People vs. Chica, GR No. 117732, 1995. PP. vs. Sison,
159 SCRA 645). Records show, Eusebio Enfecatana and Erwin Enfectana are out on bail, the same is hereby ordered cancelled pursuant to Supreme
Court Circular No. 2-92. As far as accused Efren Enfectana is concerned, he is still at large to date.
SO ORDERED.[18]
Aggrieved, appellants filed this appeal alleging that the trial court erred:
I
IN NOT CONSIDERING THAT APPELLANT EUSEBIO ENFECTANA ACTED IN SELF-DEFENSE.
II
[IN] FINDING BOTH APPELLANTS GUILTY OF MURDER.
III
IN CONVICTING APPELLANTS.
In essence, the issues here are (1) whether the trial court properly gave credence to the version of the prosecution while disbelieving that of the
defense; (2) whether there is self defense on the part of Eusebio Enfectana; and, (3) whether the circumstance of treachery should be appreciated
to qualify the offense to murder. Likewise, we must further inquire into the propriety of the civil indemnity and damages awarded by the trial
court.
Appellant Eusebio Enfectana admits that he killed Leo Boco. He, however, alleges that he acted in self-defense. According to him, he was attacked
first and he had no option but to kill the aggressor. On the other hand, appellant Erwin denies any participation in the killing and alleges that he
was nowhere near the place where the incident transpired. Both appellants assail the finding of the trial court that they are liable for the death of
Leo Boco. According to them, it was the victim, Leo Boco, who had the motive to commence the assault upon Eusebio Enfectana because of Bocos
conviction resulting from a complaint lodged against him by the Enfectanas. They add that Boco also lost in a civil case involving his house.
Appellants also assail the inconsistencies in the testimonies of the prosecution witnesses, particularly those of Adelaida Boco and Dominador
Dialino. Lastly, appellants contend that even if self-defense could not be appreciated, the crime committed was merely homicide and that only
Eusebio should be held liable therefor.[19]
The Office of the Solicitor General (OSG), for the appellee, avers that the trial court committed no error in convicting appellants Eusebio and Erwin
Enfectana for murder. The OSG contends that the failure of appellants to submit any counter-affidavit immediately after the complaint was filed
against them is an indication that their version was no longer spontaneous nor truthful. According to the OSG, the claim that it was the victim who
had the motive to commence the assault against the Enfectanas is unrealistic, since it is also true that the Enfectanas harbored ill feelings towards
Leo Boco. The OSG stresses that the testimonies of the prosecution witnesses, as a whole, show no real discrepancy and that the inconsistencies
pointed out by appellants refer only to minor and trivial matters.
Considering the evidence presented and the arguments adduced by appellants and appellee, we are unable to find merit in the present appeal.
The conviction of the Enfectanas was primarily based on the testimonial accounts of Adelaida Boco and Dominador Dialino which was found by the
trial court to be more credible than the version of the appellants. It is doctrinally settled that when the issue is one of credibility of witnesses,
appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the issue, having
heard the witnesses themselves and observed their deportment and manner of testifying during trial. This rule admits of exceptions, such as when
the evaluation was reached arbitrarily or when the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and
substance which could affect the result of the case.[20] Unfortunately for appellants, none of these exceptions is present in this case.
The testimonies of prosecution witnesses Adelaida Boco and Dominador Dialino were both positive and categorical. The assertion of appellants
that they contradicted each other has no support in the records. Moreover, even if we were to agree with appellants that there were
inconsistencies in their testimonies, they refer only to trivial and immaterial details. Thus, assuming these inconsistencies to be present, they tend
to show that the witnesses were being spontaneous and were not coached or rehearsed. Settled is the rule that minor inconsistencies do not affect
the credibility of a witness. On the contrary, they may be considered badges of veracity or manifestations of truthfulness on material points and
they may even heighten the credibility of the witness.[21]
The records of this case show that the prosecution witnesses were consistent in their narration as to WHO committed the crime, WHEN and HOW
it was committed. These are the material facts in this case which had been sufficiently and convincingly established by the prosecution. Compared
with the allegation of the appellants, the prosecutions version is more believable and in accord with reality, hence deserving full faith and
credence.
Appellants would want us to believe that it was the victim, Leo Boco, who initiated the attacks, first against Erwin Enfectana and then against
Eusebio Enfectana, and that notwithstanding the fact that said Erwin and Eusebio were both caught unaware and unarmed by the sudden attacks
of Leo Boco, they managed to evade him and escape unscathed. This is highly suspect and in our view, quite incredible. Evidence to be believed
must not only come from the mouth of a credible witness but must itself be credible.[22] It is very unlikely that Leo Boco, if the version of the
appellants were true, would fail to land even a single hit upon the body of either appellants. Yet neither Erwin nor Eusebio Enfectana showed such
injury. The version of the appellants would not explain why co-accused Efren Enfectana suddenly disappeared after the incident. If it was true that
they were innocent, then there is no reason for Efren Enfectana to flee and hide. Flight is an indication of guilt[23] and lends credence to the
version of the prosecution in this case.
As for the issue of self -defense, it is an established principle that once this justifying circumstance is raised, the burden of proving the elements of
the claim shifts to him who invokes it.[24] The elements of self-defense are: (1) that the victim has committed unlawful aggression amounting to
actual or imminent threat to the life and limb of the person claiming self-defense; (2) that there be reasonable necessity in the means employed to
prevent or repel the unlawful aggression; and (3) that there be lack of sufficient provocation on the part of the person claiming self-defense or, at
least, that any provocation executed by the person claiming self-defense be not the proximate and immediate cause of the victims aggression.[25]
The condition of unlawful aggression is a sine qua non; otherwise stated, there can be no self-defense, complete or incomplete, unless the victim
has committed unlawful aggression against the person defending himself.[26]
Given the fact that the relationship between the parties had been marred by ill will and animosities, and pursuant to the rule on the burden of
evidence imposed by law on the party invoking self-defense, the admission of appellant Eusebio Enfectana that he killed Leo Boco made it
incumbent upon appellant to convincingly prove that there was unlawful aggression on the part of the victim which necessitated the use of deadly
force by appellant. Unfortunately, appellant miserably failed to prove the existence of unlawful aggression on the part of the victim. As found by
the trial court:
The version of the accused [appellant] that it was Leo Boco who was the unlawful aggressor and that Leo Boco attacked and stabbed him while he
was inspecting his tilted tricycle on the highway cannot be given faith and credit it being an afterthought, self-serving and expert invention and/or
imagination sans truth.[27]
Weighing the conflicting versions of the prosecution and the defense, we agree with the trial courts conclusion that the prosecutions version is
more in accord with the natural course of things, hence more credible.
Anent the third issue, we also agree with the trial court that treachery is present in this case. The victim and his wife were suddenly attacked as
they were coming down from a jeepney. They had no idea that they were going to be assaulted. The manner by which the appellants commenced
and perpetrated their assault, (1) by trying to bump Leo and Adelaida Boco, making the former lose his balance and more susceptible to an attack,
and (2) by simultaneously attacking Leo Boco, hence preventing him from putting up any semblance of defense, shows beyond any doubt that
there was alevosia in this case. Settled is the rule that an unexpected and sudden attack under circumstances that render the victim unable and
unprepared to defend himself constitutes alevosia.[28]
As to damages, there is no dispute as to the propriety of P50,000 as civil indemnity for the death of Leo Boco. There being uncontradicted
testimony regarding the funeral expenses and legal fees paid by the widow, Adelaida Boco, at least P50,500 should be awarded to her as actual
damages.
WHEREFORE, the assailed decision of Branch 1 of the Regional Trial Court of Borongan, Eastern Samar, in Criminal Case No. 10582, finding the
appellants Eusebio Enfectana and Erwin Enfectana guilty of murder, is AFFIRMED. Each of them is sentenced to the penalty of reclusion perpetua as
well as to pay the heirs of the victim Leo Boco P50,000 as civil indemnity. In addition, appellants are hereby ordered jointly and severally to pay
P50,500 as actual damages to the widow, Adelaida Boco. Lastly, let a copy of this decision be furnished to the National Bureau of Investigation and
the Philippine National Police so that co-accused Efren Enfectana be apprehended promptly and brought to the bar of justice.
Costs against appellants.
SO ORDERED.
Bellosillo, Acting C.J., (Chairman), Mendoza, and De Leon, Jr., JJ., concur.
Corona, J., no part in the deliberations.
FIRST DIVISION
[G.R. No. 155258. October 7, 2003]
CONRADO CANO y SAMPANG, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
The primordial issue to be resolved in this petition for certiorari is whether or not petitioner killed his brother in self-defense.
Petitioner Conrado Cano y Sampang and his deceased brother Orlando Cano were rivals in the Rush ID Photo business and had booths along the
sidewalk of Rizal Avenue, Sta. Cruz, Manila fronting the Philippine Trust Bank and Uniwide Sales Department Store. The fateful altercation which
culminated in the fatal stabbing of Orlando Cano stemmed out of this rivalry, particularly the incident where Conrado took the business permit
from the booth of Orlando without his permission thus incurring the latters ire.
The prosecutions version of what transpired as summarized in the Peoples brief[1] shows that in the morning of May 31, 1993, at about 7:00
oclock, the victim Orlando Cano arrived at the Rush ID Booth of petitioner located below the LRT line in Rizal Avenue, Sta. Cruz, Manila. The victim
asked David Olivario, an employee of petitioner, where the latter was. The victim angrily said that petitioner was pakialamero. He also said, Putang
ina niya! Why did he Xerox our permit. Since petitioner had not yet arrived, the victim returned to his own Rush ID booth located several meters
away.[2]
Later, at about 9:30 a.m., petitioner arrived at his Rush ID booth. After giving supplies to Olivario, petitioner said he was going to the City Hall. He
faced the mirror and started to comb his hair. The victim suddenly arrived and held petitioner on the shoulders and turned him around. The victim
asked him, Anong gusto mong mangyari? Accused did not answer.[3]
The victim tried to stab petitioner with a balisong but the latter was able to run and lock himself inside the dark room inside his booth. The victim
followed him and tried to open the door of the dark room and shouted, Lumabas ka diyan! Putang ina mo, papatayin kita! Petitioner did not come
out. The victim tried to force the door open by kicking it and stabbed the door with his balisong. The door of the dark room suddenly opened and
petitioner emerged carrying a pair of scissors. The victim and petitioner struck at each other. During the scuffle, the scissors fell from petitioners
hand. He then grabbed the knife of the victim who, in turn, picked up the scissors. They again attacked each other.[4]
The victim fell and his wife rushed to his side. Petitioner fled from the scene. The victims wife asked for assistance from the people in the vicinity.
The victim was then loaded on a jeep and was rushed to a hospital, but he was dead on arrival.[5]
The autopsy report submitted by the medico-legal officer of the Western Police District, Dr. Manuel Lagonera, shows that the victim sustained at
least thirty (30) stab wounds, six (6) of which were fatal.[6] On the other hand, petitioner suffered only an incised wound on the right hand
measuring six (6) cm., which required less than nine (9) days of treatment.
Petitioner had a different account of what transpired. He testified that on May 31, 1993 at around 9:30 a.m. he went to his Rush ID booth in front
of the Philtrust Bank to deliver supplies to his photographer, David Olivario.[7] After handing over said supplies to Olivario, petitioner intended to
go to the Manila City Hall to apply for a business permit.[8]
Petitioners earlier application for a permit was denied.[9] He sought a reconsideration from the city officials and argued that his brother was issued
a similar permit. In order to prove his point, he borrowed the permit of his brother from his nephew, Wilson Reyes, to have it machine copied.[10]
After doing so, petitioner returned it.[11] The victim apparently resented this because petitioner was informed by David Olivario that Gloria Cano
later went to petitioners stall angrily inquiring why they got the permit.[12]
As petitioner was combing his hair and preparing to leave for the Manila City Hall, the victim, Orlando, suddenly appeared from behind, grabbed
him by the left shoulder and jerked him around so that they were face to face.[13] As they stood face to face, Orlando menacingly said, Anong
gusto mong mangyari?[14] Petitioner noticed Orlando holding a balisong, and he ran to the dark room of his stall.[15]
The victim pursued him and tried to force open the locked dark room door by kicking it and stabbing it with the fan knife.[16] He kept shouting, Get
out of there! Pakialamero ka! Get out of there and I will kill you![17] The door suddenly gave way and, as it opened, the victim charged at
petitioner, but he was able to evade the attack. Snatching a pair of scissors nearby, petitioner retaliated but the scissors fell from his grasp because
it was parried by the victim.[18] Petitioner then grabbed the hand of the victim holding the balisong and they grappled to gain possession thereof.
He eventually wrested control of the knife and as he stood momentarily, the victim picked up the scissors and again lunged at him.[19]
With nowhere to go, petitioner was forced to defend himself from the onslaught of the victim who was armed with the nine-inch long pair of
pointed scissors.[20] No bystanders tried to pacify them as they engaged in their deadly struggle for almost two (2) minutes. Suddenly, the victim
collapsed and fell bloodied to the floor.[21]
Petitioner stooped to lift his brother up, intending to bring him to the hospital. However, he was hit by the victims wife with a chair. Then, she
started shouting, Holdupper![22] Petitioner was forced to flee from the scene for fear of being lynched by the people who had gathered around
armed with clubs. The people pursued him but when he saw a policeman coming in his direction, he threw the balisong away and raised his hands
in surrender.[23] He was then brought to the police precinct and later to the hospital for treatment of his injuries.[24]
Petitioner was charged with Homicide in an Information[25] which alleges
That on or about May 31, 1993, in the City of Manila, Philippines, the said accused, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and use personal violence upon one ORLANDO CANO y SAMPANG, by then and there stabbing the latter on the different
parts of his body, thereby inflicting upon the said ORLANDO CANO Y SAMPANG mortal and fatal wounds which were the direct and immediate
cause of his death thereafter.
Contrary to law.
The case was docketed as Criminal Case No. 93-121668 and filed with the Regional Trial Court of Manila, Branch 31.
Upon arraignment, petitioner pleaded not guilty to the offense charged. The case thereupon proceeded to trial. After trial, the court a quo
rendered judgment[26] finding petitioner guilty beyond reasonable doubt of the crime and sentencing him to serve an imprisonment of seventeen
(17) years, four (4) months and one (1) day of reclusion temporal and to indemnify the heirs of the deceased P50,000.00 plus costs.
Petitioner interposed an appeal to the Court of Appeals, where it was docketed as CA-G.R. CR No. 19254.
During the pendency of the appeal,[27] Gloria Cano, the widow of the victim, executed a Sinumpaang Salaysay[28] stating, among others, that
petitioner merely acted in self-defense and that she was withdrawing the charge against him. This sworn statement became the basis of an Urgent
Motion for New Trial[29] on the ground of newly discovered evidence filed by counsel for petitioner.
This motion for new trial was, however, denied by the Court of Appeals in a Resolution dated March 19, 1998.[30]
The appellate court subsequently rendered judgment affirming petitioners conviction but modifying the penalty to an indeterminate sentence of
imprisonment ranging from nine (9) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal, as maximum. Petitioner was likewise ordered to pay the heirs of the victim actual damages of P24,605.75; P50,000.00 as moral damages
and another P50,000.00 as civil indemnity ex delicto plus costs.[31]
Preliminarily, the Solicitor General argues that the petition raises merely factual issues, such as whether or not petitioner is entitled to the justifying
circumstance of self-defense and the mitigating circumstance of provocation or threat and voluntary surrender. These issues, says the Solicitor, are
not proper for a petition for review under Rule 45 of the Rules of Civil Procedure.
Concededly, those who seek to avail of the remedies provided by the rules must adhere to the requirements thereof, failure of which the right to
do so is lost. It is, however, equally settled that rules of procedure are not to be applied in a very rigid, technical sense and are used only to help
secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated.[32] They should be liberally
construed so that litigants can have ample opportunity to prove their claims and thus prevent a denial of justice due to technicalities.[33]
Therefore, we shall proceed to resolve the issue of whether or not petitioner is entitled to invoke the justifying circumstance of self-defense,
considering that what is at stake is not merely his liberty, but also the distinct possibility that he will bear the stigma of a convicted felon and be
consigned to the fate of being a social pariah for the rest of his life.
As can be seen from the foregoing, the prosecution and the defense have diametrically opposed factual versions of what transpired immediately
preceding the killing. Our task is to determine which of them is the truth. In resolving such conflict, dealing as it does with the credibility of
witnesses, the usual rule is for us to respect the findings of the trial court considering that it was in a better position to decide the question, having
heard the witnesses themselves and having observed their deportment and manner of testifying during trial.[34] Nonetheless, this rule is
circumscribed by well-established exceptions.[35]
In the case at bar, the record shows circumstances of weight and influence which have been overlooked, or the significance of which has been
misinterpreted, that if considered would affect the result of the case.[36]
For self-defense to prosper, petitioner must prove by clear and convincing evidence the following elements: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself.[37] Although all the three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of
the victim. If no unlawful aggression has been proved, no self-defense may be successfully pleaded, whether complete or incomplete.[38] In other
words in self-defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and unexpected attack or imminent danger on
the life and limb of a person not a mere threatening or intimidating attitude but most importantly, at the time the defensive action was taken
against the aggressor.[39]
In the case at bar, there are several material circumstances which were ignored by both the court a quo and the appellate tribunal.
First, contrary to the findings of both the appellate and trial courts, there are facts extant on record which clearly shows that it was an armed victim
who initially attacked the petitioner with a balisong. Petitioner testified on the assault thus:
Atty. Ferrer:
What happened after that when Orlando Cano grabbed you and came face to face with him?
A. I answered him none but he was in a menacing position with his hands around something and I suddenly ran away.
Q. What was that something in the hands of Orlando Cano that made you run away?
A. Balisong 29, Sir.
Atty. Ferrer:
And where did you run to?
A. I went inside my booth because that is the only place I can run to.
Q. And what happened inside your booth, if any?
A. He also ran after me and then when I was inside we were having a tug of war of the doorknob which I tried to close and which he tried to open.
Q. What happened after that?
A. But I was able to close the door but he kept on kicking the door that I turned deaf.
Q. What else happened, if any?
A. While he was kicking, he was also stabbing the door with the 29 (balisong) he was holding.
Q. And you said you heard the thudding of the door making noise, what happened if any?
A. He kept on shouting, Get out of there! Pakialamero ka! Get out of there and I will kill you.
Q. What did you do did you go out?
A. While he was shouting I did not notice that the door was not completely closed because the lock went on and the door suddenly opened.
Q. What happened after the door got open?
A. When the door opened he again rushed me, stabbed and I was able to evade it.
Atty. Ferrer:
What else happened?
Witness:
A. I was able to grab a scissors and that was the time I retaliated.
Q. Who owned this scissors?
A. That scissors was mine because it is used in cutting paper.
Q. Now, you said you retaliated after grabbing a pair of scissors where did you retaliate?
A. I was about to retaliate in the door of the room because the room was very small.
Q. Where you able to retaliate?
A. No, sir, I was not able to retaliate because the scissors fell when he was able to parry it.
Q. What happened after that, after that piece of scissors fell from your hold?
A. I took hold of his hand holding the balisong and we had a scuffle to get hold or possession of the balisong.
Q. What happened after the scuffling for the balisong?
A. After one (1) minute I was able to grab possession of the balisong.
Q. What happened after that?
A. When I was able to get hold of the balisong I just remained standing and I just . . .
Q. What else happened?
A. He was able to pick up the scissors that I dropped and he again launched [himself] at me [with] the scissors.
Q. What did you do, if any?
A. That was the time when my mind was confused and I dont have any place to go and I tried to defend myself and we fought each other.
Atty. Ferrer :
And at the time when you said you fought each other, Orlando Cano was holding the scissors and you were holding the balisong, correct?
A. Yes, sir.[40]
David Olivario, who was five meters away and saw what transpired, corroborated petitioners account.[41] He remained steadfast and unwavering
on cross-examination despite intense grilling by the prosecution[42] and further clarificatory questioning from the trial court itself.[43]
Second, the physical evidence is more in accord with petitioners version of what transpired, specifically his assertion that it was the victim who was
armed and persisted in his attack on the petitioner even though the latter locked himself inside the dark room of his stall to protect himself. The
findings of Police Investigator SPO3 Julian Z. Bustamante contained in his Advance Information Report[44] discloses that [H]oles were observed at
the door near the door lock of suspects rush ID photo booth apparently made by a hard pointed instrument[45] Aside from stating that a fan knife
and a pair of scissors which both yielded positive results for traces of human blood were recovered, the report went further to note that the
bloodied scissor were (sic) recovered in front of suspects rush ID photo booth door.[46]
The foregoing entries of the Advance Information Report, particularly that referring to the location of the bloodied scissors, supports petitioners
claim that when he could no longer avoid the unlawful aggression of the victim, he was compelled to grab at the instrument inside the booth to
defend himself. However, the scissors fell from his grasp, thus forcing him to desperately grapple for possession of the fan knife.
Third, circumstances prior to the fatal incident shows that it was the victim who purposely sought to confront the petitioner because the latter had
his business permit machine copied without his permission. Maria Cano, an aunt of the victim and petitioner, testified thus:
Q: And Orlando Cano, did he tell you any reason why he was waiting for Conrado Cano [at] that particular morning?
A: Because he was very angry and said that there will be an encounter between them.
Atty. Ferrer:
What did you do, if any?
Witness:
A: You brothers you should calm down because you are brothers.
Q: By the way what was the reason why, if you know why, Orlando told you that silay magtutuos, quoting your own words?
A: Orlando Cano is mad because Conrado Cano got Orlandos business permit and had it xeroxed and after xeroxing it and he returned the permit of
Orlando Cano.
Q: Could you tell us how Orlando Cano uttered those words magtutuos?
A: Orlando Cano told me this is the day when we will have a confrontation and at this juncture, I even tapped [his] right pocket, I did not see what
was there but I saw the handle.
xxxxxxxxx
Q: As the aunt of the two (2) what was your reaction when Orlando told you that?
A: I told, Orlando, calm down because you are brothers and if something bad that will happen (sic) your mother will suffer because of the incident.
Atty. Ferrrer:
And what was the reaction of Orlando, if any, after you said those words of advice?
A: Orlando Cano answered me, well, shall I remain silent and will not utter any word at all?
Q: And was that that (sic) word confined to Orlando?
A: No, Sir, because I also advised Gloria.
Q And what was the advise you gave Gloria?
A: I told Gloria because the only one who can prevent this incident is you because Orlando is your husband.
Q: And what was the reaction, if any of Gloria Cano?
A: Gloria told me, there is nothing I can do because they are brothers and they are responsible for their own lives.
Q: What else happened, if any?
A: That was the time I bid goodbye.[47]
(emphasis and italics supplied)
Fourth, the record reveals that while indeed numerous wounds were sustained by the victim, the Medico-Legal Officer who conducted the autopsy
admitted that of the thirty-five (35) wounds supposedly inflicted, thirty-three (33) were scratches and contusions while only six (6) were
penetrating or stab wounds.[48] As regards the finding that petitioner suffered only one hand wound, it should be stressed that the superficiality of
the nature of the wounds inflicted on the accused does not, per se, negate self-defense. Indeed, to prove self-defense, the actual wounding of the
person defending himself is not necessary. It is sufficient that the aggression be attempted so as to give rise to the right to prevent it.[49] The act of
a person armed with a bladed weapon pursuing another constitutes unlawful aggression because it signifies the pursuers intent to commit an
assault with this weapon.[50]
The particular circumstances which confronted the petitioner at the time of the incident condoned the means he employed to protect his life. It
must be remembered that the measure of rational necessity is to be found in the situation as it appeared to petitioner at the time when the blow
was struck. The law does not require that he should mete out his blows in such manner that upon a calm and deliberate review of the incident it
will not appear that he exceeded the precise limits of what was absolutely necessary to put his antagonist hors de combat, or that he struck one
blow more than was absolutely necessary to save his own life; or that he failed to hold his hand so as to avoid inflicting a fatal wound where a less
severe stroke might have served the purpose. Under such conditions, an accused cannot be expected to reflect coolly nor wait after each blow to
determine the effects thereof.[51]
. . . the reasonableness of the means employed to repel an actual and positive aggression should not be gauged by the standards that the mind of a
judge, seated in a swivel chair in a comfortable office, free from care and unperturbed in his security, may coolly and dispassionately set down. The
judge must place himself in the position of the object of the aggression or his defender and consider his feelings, his reactions to the events or
circumstances. It is easy for one to state that the object of the aggression or his defender could have taken such action, adopted such remedy, or
resorted to other means. But the defendant has no time for cool deliberation, no equanimity of mind to find the most reasonable action, remedy or
means to. He must act from impulse, without time for deliberation. The reasonableness of the means employed must be gauged by the defenders
hopes and sincere beliefs, not by the judges.[52]
Fifth, there was lack of sufficient provocation on the part of petitioner. When the law speaks of provocation either as a mitigating circumstance or
as an essential element of self-defense, it requires that the same be sufficient or proportionate to the act committed and that it be adequate to
arouse one to its commission. It is not enough that the provocative act be unreasonable or annoying.[53] This third requisite of self-defense is
present: (1) when no provocation at all was given to the aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when even if
the provocation was sufficient, it was not given by the person defending himself; or (4) when even if a provocation was given by the person
defending himself, it was not proximate and immediate to the act of aggression.[54]
Petitioner borrowed the permit of the victim and had it photocopied without the latters permission two (2) days before the incident.[55] The victim
and his wife resented this. However, this can hardly be considered a provocation sufficient to merit so deadly an assault with a bladed weapon.
Moreover, the act was neither immediate nor proximate.[56] What, in fact, appears on record is the bellicose temperament of the victim and his
spouse who, despite the advice of their Aunt Maria Cano to calm down, still persisted in confronting petitioner. When the question is raised who
between the accused and the offended party gave provocation, the circumstances of subjective, objective and social character may be considered
in reaching a definite conclusion.[57] Thus an accused, to prove provocation in connection with his plea of self-defense, may show that the victim,
as in this case, had a quarrelsome and irascible disposition.[58]
Sixth, two other notable circumstances on record tend to show that petitioner was impelled by the instinct of self-preservation rather than the
murderous urge of one bent on killing. The first is when petitioner was able to wrest the balisong from the victim, he never took advantage of the
opportunity to attack his already weaponless brother. Rather, he stood still and was forced to act only when the victim picked up the scissors and
lunged at him again.[59] The second instance is when the victim fell. Had petitioner been actuated by homicidal intentions, he would have
persisted in his attack on his prostrate brother. He did nothing of the sort. He, in fact, intended to lift the victim up and bring him to the hospital
but the sudden appearance of the victims wife who hit him with a chair forced him to flee. Moreover, armed people were attracted by the shouts
of the victims wife and had gathered and started pursuing him.[60]
Seventh, while the general policy is for the courts not to attach any persuasive evidentiary value to the affidavit of retraction of the victims widow,
such sworn statement acquires a weightier and more decisive evidentiary consideration when taken in conjunction with the other prevailing facts
in this case. Thus, it has oft been said that where inculpatory facts and circumstances are susceptible of two or more interpretations, one of which
is consistent with the innocence of the accused while the others may be compatible with a finding of guilt, the Court must acquit the accused
because the evidence does not fulfill the test of moral certainty required for conviction.[61]
All told, evidence shows that petitioner acted in lawful self-defense. Hence, his act of killing the victim was attended by a justifying circumstance,
for which no criminal and civil liability can attach.[62] Article 11 (1) of the Revised Penal Code expressly provides that anyone who acts in lawful
self-defense does not incur any criminal liability. Likewise, petitioner is not civilly liable for his lawful act. The only instance when a person who
commits a crime with the attendance of a justifying circumstance incurs civil liability is when he, in order to avoid an evil or injury, does an act
which causes damage to another, pursuant to subdivision 4 of Article 11 of the Revised Penal Code.[63] Otherwise stated, if a person charged with
homicide successfully pleads self-defense, his acquittal by reason thereof will extinguish his civil liability.[64]
WHEREFORE, in view of all the foregoing, the judgment appealed from is REVERSED and SET ASIDE. Petitioner Conrado Cano y Sampang is
ACQUITTED of the crime charged against him and his immediate release from custody is ordered unless there is another cause for his continued
detention.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.
SECOND DIVISION
[G.R. No. 126968. April 9, 2003]
Ricardo Balunueco, petitioner, vs. Court of Appeals and the People of the Philippines, respondents.
DECISION
BELLOSILLO, J.:
On appeal by certiorari is the Decision[1] of the Court of Appeals affirming with modifications the decision[2] of the Regional Trial Court of Pasig
City, Branch 68, convicting accused RICARDO BALUNUECO of homicide for the death of Senando Iguico and frustrated homicide for injuries inflicted
upon his wife Amelia Iguico.
Of the five (5) original accused,[3] only petitioner Ricardo, accused Reynaldo, Juanito, all surnamed Balunueco, and Armando Flores were indicted
in two (2) Informations, the first for homicide[4] and the second for frustrated homicide.[5] Again, of the four (4) indictees, only Ricardo and
Reynaldo were brought to the jurisdiction of the court a quo, while Juanito and Armando have remained at large. Accused Reynaldo died on 17
November 1986. Accordingly, as against him, the criminal cases were dismissed. Thus, only the criminal cases against petitioner Ricardo Balunueco
are subject of this appeal.
As principal witness for the prosecution, Amelia Iguico narrated that on 2 May 1982 at around 6:00 oclock in the evening she was coddling her
youngest child in front of her house at Bagong Tanyag, Taguig, when she saw accused Reynaldo, his father Juanito and brothers Ricardo and
Ramon, all surnamed Balunueco, and one Armando Flores chasing her brother-in-law Servando Iguico. With the five (5) individuals in hot pursuit,
Servando scampered into the safety of Amelias house.
Meanwhile, according to private complainant Amelia, her husband Senando, who was then cooking supper, went out of the house fully unaware of
the commotion going on outside. Upon seeing Senando, Reynaldo turned his attention on him and gave chase. Senando instinctively fled towards
the fields but he was met by Armando who hit him with a stone, causing Senando to feel dizzy. Reynaldo, Ricardo, and Armando cornered their
quarry near a canal and ganged up on him. Armando placed a can on top of Senandos head and Ricardo repeatedly struck Senando with an ax on
the head, shoulder, and hand. At one point, Ricardo lost his hold on the ax, but somebody tossed him a bolo and then he continued hacking the
victim who fell on his knees. To shield him from further violence, Amelia put her arms around her husband but it was not enough to detract Ricardo
from his murderous frenzy. Amelia was also hit on the leg.[6]
Dr. Maximo Reyes, NBI Senior Medico-legal officer, declared that on 3 May 1982 he conducted a post mortem examination on the body of the
deceased Senando Iguico and issued an Autopsy Report, which contained the following findings:[7] (a) two (2) stab wounds and nine (9) gaping
hack wounds; and, (b) cause of death was hemorrhage, acute, profuse, secondary to multiple stab and hack wounds.
In his defense, accused Ricardo narrated a different version of the incident. He testified that at that time he was fetching water when he heard
somebody shouting: Saya, saya, tinataga, referring to his brother Reynaldo. When he hurried to the place, he saw his brother Ramon embracing
Senando who was continuously hacking Reynaldo. Thereafter, Senando shoved Ramon to the ground and as if further enraged by the intrusion, he
turned his bolo on the fallen Ramon. Ricardo screamed, tama na yan, mga kapatid ko yan. But the assailant would not be pacified as he hacked
Ramon on the chest. At this point, Servando,[8] the brother of Senando, threw an axe at him but Reynaldo picked it up and smashed Senando with
it.
Manuel Flores, another witness for the defense, gave a substantially similar version of the story. He testified that on the fateful day of the incident,
while doing some carpentry work in front of his mothers house, he saw Senando Iguico,[9] a.k.a. Bulldog, with a bolo on hand trailing brothers
Reynaldo alias Sayas and Ramon while walking towards Bagong Bantay. Suddenly, Senando confronted the two (2) brothers and started hacking
Reynaldo, hitting him on the head, arm and stomach. Seeing that his brother was absorbing fatal blows, Ramon embraced Senando but the latter
shoved him (Ramon) and directed his fury at him instead. Ricardo went to the rescue of his brothers but he too was hacked by Senando.
The trial court disbelieved the version of accused Ricardo, thus he was found guilty of homicide in Crim. Case No. 49576 and frustrated homicide in
Crim. Case No. 49577. It reasoned that the testimony of Amelia Iguico was clear, positive, straightforward, truthful and convincing. On the other
hand, according to the trial court, the denial of Ricardo was self-serving and calculated to extricate himself from the predicament he was in.
Further, the trial court added that the wounds allegedly received by Ricardo in the hands of the victim, Senando Iguico, if at all there were any, did
not prove that Senando was the aggressor for the wounds were inflicted while Senando was in the act of defending himself from the aggression of
Ricardo and his co-conspirators.[10]
The Court of Appeals sustained the conviction of accused Ricardo, giving full faith to the direct and positive testimony of Amelia Iguico who pointed
to him as the one who initially axed her husband Senando on the head, shoulder and hand.[11] While the appellate court upheld the conviction of
Ricardo of homicide for the death of Senando Iguico, it however ruled that his conviction for the wounding of Amelia Iguico, although likewise
upheld, should be for attempted homicide only. On the wounding of Amelia, the appellate court had this to say - [12]
For while intent to kill was proven, Amelias hack wound in her left leg was not proven to be fatal or that it could have produced her death had
there been no timely medical attention provided her, hence, the stage of execution of the felony committed would only be attempted.
Petitioner now imputes errors to the Court of Appeals: (a) in not taking into consideration the fact that petitioner, if indeed he participated, had
acted in defense of relatives; (b) in giving due credence to the self-serving and baseless testimony of Amelia Iguico, the lone and biased witness for
the prosecution; and, (c) in failing to consider the several serious physical injuries sustained by petitioner and his brother Reynaldo Balunueco.
In a reprise of his stance at the trial, petitioner argues that assuming he participated in the killing of Senando, he acted in defense of his full-blood
relatives: Reynaldo whom he personally witnessed being boloed by the deceased in the arms, head and stomach; and Ramon who also became a
victim of the deceaseds fury after he was pushed by the deceased and had fallen to the ground. Under such circumstances, the act of Senando in
hacking him after he tried to rescue his brothers, gave rise to a reasonable necessity for him to use a means to prevent or repel the unlawful
aggression. Considering further that there was lack of sufficient provocation on his part, his acts were therefore justified under Art. 11, par. (2), of
The Revised Penal Code.
In effect, petitioner invokes the justifying circumstance of defense of relatives under Art. 11, par. (2), of The Revised Penal Code. The essential
elements of this justifying circumstance are the following: (a) unlawful aggression; (b) reasonable necessity of the means employed to prevent or
repel it; and, (c) in case the provocation was given by the person attacked, the one making the defense had no part therein.
Of the three (3) requisites of defense of relatives, unlawful aggression is a condition sine qua non, for without it any defense is not possible or
justified. In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or material aggression, an offensive
act positively determining the intent of the aggressor to cause an injury shall have been made; a mere threatening or intimidating attitude is not
sufficient to justify the commission of an act which is punishable per se, and allow a claim of exemption from liability on the ground that it was
committed in self-defense or defense of a relative. It has always been so recognized in the decisions of the courts, in accordance with the
provisions of the Penal Code.[13]
Having admitted the killing of the victim, petitioner has the burden of proving these elements by clear and convincing evidence. He must rely on
the strength of his own evidence and not on the weakness of that of the prosecution, for even if the prosecution evidence is weak it cannot be
disbelieved if the accused has admitted the killing.[14]
In the case at bar, petitioner Ricardo utterly failed to adduce sufficient proof of the existence of a positively strong act of real aggression on the
part of the deceased Senando. With the exception of his self-serving allegations, there is nothing on record that would justify his killing of Senando.
First, Ricardos theory that when he reached the crime scene he found Senando repeatedly hacking his brother Reynaldo who thereafter retaliated
by smashing an axe on the victims head is implausible in light of the seriousness of the wounds sustained by the deceased as compared to the
minor injuries inflicted upon petitioner and his two (2) brothers. The fact that three (3) of the assailants suffered non-fatal injuries bolsters the fact
that Senando tried vainly to ward off the assaults of his assailants.
Second, Ricardo failed to present himself to the authorities. He may have accompanied the injured Reynaldo to the hospital after the encounter
but still he failed to present himself to the authorities and report the matter to them. The natural impulse of any person who has killed someone in
defense of his person or relative is to bring himself to the authorities and try to dispel any suspicion of guilt that the authorities might have against
him. This fact assumes a more special significance considering that his co-accused, Juanito and Armando, have remained at large.
Third, petitioner had a rather erratic recollection of people and events. He vividly remembered how Reynaldo was injured by Senando but
conveniently failed to recall the events leading to the fatal wounding of the deceased. At another point, he testified that Reynaldo axed Senando
but later retracted his statement by declaring that it was in fact Senando who hacked Reynaldo.[15] We observe that the killing occurred within or
near the premises of the deceased. This proves per adventure the falsity of petitioners claim that it was Senando, rather than he and his kin, who
had initiated the unlawful aggression.
On the other hand, private complainant pointed to petitioner as one of the principal actors in the slaying of her husband Senando and the court a
quo found her testimony worthy of belief. The unbending jurisprudence is that findings of trial courts on the matter of credibility of witnesses are
entitled to the highest degree of respect and will not be disturbed on appeal.[16] The lower court also declared, and we agree, that private
complainants relationship with the deceased does not disqualify her from testifying in the criminal case involving her relative or automatically sully
her testimony with the stain of bias.
On the injuries sustained by Amelia, we are of the opinion that, contrary to the finding of the lower court as affirmed by the appellate court,
petitioners homicidal intent has not been indubitably established. As held in People v. Villanueva,[17] the intent to kill being an essential element
of the offense of frustrated or attempted homicide, said element must be proved by clear and convincing evidence, and with the same degree of
certainty as required of the other elements of the crime. The inference of intent to kill should not be drawn in the absence of circumstances
sufficient to prove such intent beyond reasonable doubt.
The facts as borne out by the records do not warrant a finding that petitioner intended to kill Amelia. Contrarily, the circumstances of the instant
case indicate the opposite: (a) that while petitioner was repeatedly assaulting the deceased, Amelia embraced her husband in an attempt to avert
further infliction of pain upon him; and, (b) when he hit Amelia once on the left leg, a wound of slight nature, he did not do anything more to
pursue his homicidal urge[18] but instead allowed her to scurry away. This set of details reinforces this Courts belief that petitioner had no
intention of killing Amelia but nonetheless wounded her either because she unwittingly exposed herself in the so-called line-of-fire when she
embraced her husband, or that it was intended more to deter her from further interfering. Had killing Amelia actually crossed petitioners mind, he
would have opted to hit his quarry on the vital portions of her body or strike her several times more to attain his objective. But these he never did.
Considering that the injuries suffered by Amelia were not necessarily fatal and required a medical attendance of four (4) days,[19] we hold that the
offense committed by petitioner is only that of slight physical injuries. Under Art. 266, par. (1), of The Revised Penal Code, this is punishable by
arresto menor the duration of which is from one (1) to thirty (30) days.[20]
WHEREFORE, the assailed Decision of the Court of Appeals in Crim. Case No. 49576 finding petitioner Ricardo Balunueco guilty of Homicide is
AFFIRMED, and there being no mitigating nor aggravating circumstance, petitioner is sentenced to an indeterminate penalty of six (6) years, two (2)
months and ten (10) days of prision mayor minimum, as minimum, to fourteen (14) years, eight (8) months and twenty (20) days of reclusion
temporal medium, as maximum. Consistent with prevailing jurisprudence, his civil liability to the heirs of Senando Iguico is fixed at P50,000.00. The
assailed Decision in Crim. Case No. 49577 for Attempted Homicide, on the other hand, is MODIFIED. Petitioner Ricardo Balunueco is found guilty
only of Slight Physical Injuries for the wounding of Amelia Iguico, and is accordingly sentenced to suffer a straight prison term of ten (10) days of
arresto menor, and to pay the costs.
SO ORDERED.
Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.
FIRST DIVISION
[G.R. No. 142682. June 5, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISPULO DIJAN y MACAJIYA, accused-appellant.
DECISION
VITUG, J.:
Accused Crispulo Dijan y Macajiya was indicted on 15 April 1998, along with Romualdo Paglinawan and Oliver Lizardo, for the crime of murder
before the Regional Trial Court, Branch 272, of Marikina. The information read:
That on or about the 11th day of April, 1998 in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually helping and aiding one another, while armed with a knife and an ice-pick with
intent to kill and by means of treachery and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and
stab one ALVARO HILARIO, thereby inflicting upon the latter moral wounds which directly caused his death.[1]
Upon arraignment, the three accused separately and independently entered a plea of not guilty to the offense charged; trial ensued.
Evidence for the Prosecution
On the evening of 11 April 1998, about ten oclock, Roderick Silvestre and Alvaro Hilario were at a store located around the corner of Paraiso and
Sumulong Streets in Parang, Marikina City, to buy some cigarettes when they saw the group of Crispulo Dijan, Romualdo Paglinawan and Oliver
Lizardo, passing by the store. The two groups came to an encounter when Romualdo Paglinawan suddenly confronted Alvaro Hilario for
purportedly giving him a bad stare. Silvestre apologized to the group and, offering them some cigarettes, explained that it was the natural way
Hilario gazed at people. Dijan, Paglinawan and Lizardo then left the place while Silvestre and Hilario who lived in the same house proceeded home.
While Silvestre and Hilario were walking, the three accused, who apparently were waiting for the duo, suddenly ganged up on, and took turns in
stabbing, Hilario. At that point, Hilario, who was walking slightly ahead of Silvestre, cried out and told the latter to flee. Silvestre ran away until he
was able to cling to a passing passenger jeepney.
Responding policemen, soon informed of the stabbing incident through radio communication, proceeded to the crime scene and there found the
lifeless body of Hilario sprawled on the ground. After receiving a report on the identity and the whereabouts of the assailants, the policemen
proceeded to a place about 200 meters away from the site of the stabbing incident. Barangay tanods assisted the police in arresting the suspected
assailants. The following day, 12 April 1998, Dr. Ma. Cristina B. Freyra, Medico-Legal Officer of the Philippine National Police (PNP), conducted an
autopsy on the victims cadaver. Hilario was found to have sustained several stab wounds, punctured and incised wounds, and abrasion in various
parts of the body which caused his death. The medico-legal officer concluded that the wounds could have been inflicted by two assailants with the
use of two single-bladed weapons and an icepick.
The version of the Defense -
The defense claimed that on the night of the incident, Crispulo Dijan and his two companions, Romualdo Paglinawan and Oliver Lizardo, were
walking on their way home when they dropped by a store to buy some cigarettes. There, they met two persons, later identified to be Alvaro Hilario
and Roderick Silvestre. who were partaking of drinks. Paglinawan accosted one of the duo for allegedly sharply staring at him but the other
apologized to their group and explained that his companion was already drunk. Paglinawan himself then also made an apology, and everybody
shook hands. Dijan and his friends started to walk along Paraiso Street. When Dijan happened to look behind, he was surprised to see Paglinawan
being stabbed with a knife by Alvaro Hilario. He saw that when Paglinawan was hit on the left arm, the two grappled for the knifes possession.
Seeing Roderick Silvestre to have pulled out an icepick himself, Dijan promptly held his hand. After disarming Silvestre, Dijan saw Paglinawan still
grappling with Hilario for the knifes possession. Realizing that Paglinawan was no match for Hilario, the latter being much taller than Paglinawan,
Dijan helped his friend and stabbed Hilario with the icepick he wrestled away from Silvestre. He assisted Paglinawan in getting home which was
only about 20 meters away from the scene of the crime.
Dijans two co-accused, Oliver Morales Lizardo and Romualdo Paglinawan, gave a similar account. Lizardo claimed that he ran away when Silvestre,
holding an icepick, rushed towards them. Romualdo Paglinawan said that, when their group was already at the corner of Paraiso and Sumulong
streets, he heard rushing steps of slippers and, turning his head around, Hilario suddenly stabbed him with a knife. He was able to evade the thrust
directed on his chest, wounding him instead on his left forearm. The two grappled for the knifes possession for about five minutes until he was
weakened by the bleeding of his wound. Dijan was able to timely pull away Hilario. Dijan then stabbed Hilario. Paglinawan stood up and walked
home followed by Dijan. He requested Dijan to bring him to the hospital for treatment but it was the policemen, who meanwhile arrived, who
brought him to the hospital. After his wounds were treated, he was taken to the police headquarters.
The defense also presented Lani Sarmiento and Dr. Alfredo Garcia to the stand. Sarmiento claimed that when she and a companion passed by
Lindas Bakery on the night of the incident, they noticed two male persons, a tall fellow and the other of average height, overtake them causing her
to exclaim Fe, tingnan mo yan, parang nagmamadali, parang galit sa mundo.[2] Nearing Sumulong Street, they saw the two men approach three
other male persons who were walking towards Paraiso Street. Suddenly, the tall guy pulled out a knife and gave a stabbing thrust to one of the
three men. When they reached home, they learned that it was their Kuya Jojo or Romualdo Paglinawan who had been stabbed. Dr. Garcia testified
having treated Romualdo Paglinawan on 11 April 1998 at the Amang Rodriguez Medical Centre for a stab wound at the right forearm.
The Judgment of the Trial Court. -
The trial court saw the case for the prosecution insofar as accused-appellant Crispulo M. Dijan was concerned whom the court found guilty of the
crime of murder, acquitting thereby Dijans two co-accused, Romualdo Paglinawan and Oliver Lizardo, based on reasonable doubt; viz:
WHEREFORE, foregoing premises considered, accused CRISPULO DIJAN y MACAJIYA is hereby found GUILTY beyond reasonable doubt of the crime
of Murder qualified by treachery as charged against him and is ordered to suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of the
victim Alvaro Hilario the amount of Fifty Thousand (P50,000.00) Pesos; to pay the said heirs the amount of Thirty Four Thousand Two Hundred
(P34,200.00) Pesos as funeral expenses; and the amount of Fifty Thousand (P50,000.00) Pesos as moral and exemplary damages. The accused
ROMUALDO PAGLINAWAN y RICAMORA and OLIVER LIZARDO y MORALES are hereby ACQUITTED of the crime charged against them for failure of
the prosecution to prove their guilt beyond reasonable doubt. The Jail Warden of the Marikina City Jail is ordered to immediately release the
persons of Romualdo Paglinawan and Oliver Lizardo unless validly held for some other offense.[3]
Appealing his conviction to this Court, accused-appellant would argue that -
I. The trial court erred in finding accused-appellant Crispulo Dijan guilty beyond reasonable doubt of the crime of murder.
II. Assuming for the sake of argument that accused-appellant is guilty, the trial court erred in appreciating the qualifying circumstance of
treachery.[4]
A party who invokes the justifying circumstance of defense of a stranger has the burden of proving by clear and convincing evidence the
exculpatory cause that can save him from conviction.[5] In order to successfully put up this defense an accused must show (1) the existence of
unlawful aggression on the part of the victim; (2) the reasonable necessity of the means employed to prevent or repel it; and (3) that the accused
has not been induced by revenge, resentment, or other evil motive.[6] The unlawful aggression must be a continuing circumstance or must have
been existing at the time the defense is made. Once unlawful aggression is found to have ceased, the one making the defense of a stranger would
likewise cease to have any justification for killing, or even just wounding, the former aggressor.[7]
From the defense account, it would appear that Hilario was already disarmed and the unlawful aggression by Hilario (if indeed he was the
aggressor) to have by then been abated, when accused-appellant still delivered the fatal thrusts on the victim. Paglinawan himself testified:
Q. And because Crispulo Dijan was already able to take possession of the weapon from Roderick Silvestre, you yourself was able to take possession
of the weapon from Hilario there was no more danger to you as well as to Crispulo Dijan?
A. Yes, sir.[8]
The number of wounds sustained by the victim would itself likewise negate accused-appellants claim of defense of a stranger. The autopsy
conducted on the corpse would show that the deceased sustained fourteen injuries consisting of nine stab wounds, three punctured wounds, an
incised wound and an abrasion.[9] Certainly, the nature and number of wounds inflicted by an accused on the victim should be significant indicia in
determining the plausibility of the defense plea.[10]
The Court, however, finds the evidence of the prosecution to be wanting in respect to the qualifying circumstance of treachery. The essence of
treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defense
himself and thereby ensuring its commission with no risk to the aggressor.[11] The conditions that must concur in order that treachery may be
appreciated are: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b)
that the means of execution are deliberately and consciously adopted.[12] These elements must be proven as indubitably as the killing itself and
cannot be deduced from conjecture.[13]
Here, it was not satisfactorily established that the victim was unarmed at the time of the stabbing incident. On the contrary, the stab wound on the
person of Romualdo Paglinawan, a companion and co-accused of herein appellant, could indicate that the victim might have also been armed.
Neither was it made clear that there was no provocation on the part of the victim.
Accused-appellant can thus only be convicted of the crime of homicide, the penalty for which, under Article 249 of the Revised Penal Code, is
reclusion temporal that, absent any mitigating nor aggravating circumstance, shall be imposed in its medium period. Applying the Indeterminate
Sentence Law, accused-appellant should thus be penalized by an indeterminate sentence of anywhere within the range of prision mayor, or from
six years and one day to 12 years, by way of minimum, and anywhere within the range of reclusion temporal in its medium period of from fourteen
years, eight months and one day to seventeen years and four months, by way of maximum.[14]
The award of damages made by the court a quo should be affirmed insofar as the civil indemnity of P50,000.00 and actual damages of P34,200.00
are concerned, the latter being amply supported by receipts.[15] The additional award of moral and exemplary damages should be deleted for lack
of factual and legal grounds.
WHEREFORE, the appealed decision of the Regional Trial Court is AFFIRMED with MODIFICATION in that accused-appellant is only found GUILTY of
HOMICIDE and sentenced to an indeterminate penalty of nine (9) years and one (1) day of prision mayor, as minimum, to fifteen (15) years and
eleven (11) months and three (3) days of reclusion temporal, as maximum, and is ordered to pay the heirs of the victim Alvaro Hilario civil
indemnity of Fifty Thousand (P50,000.00) pesos and actual damages of Thirty-four Thousand Two Hundred (P34,200.00) Pesos. The award by the
trial court of moral and exemplary damages are deleted. Costs against appellant.
SO ORDERED.
Kapunan, and Martinez, JJ., concur.
Davide, Jr., C.J., (Chairman), and Ynares-Santiago, JJ., on official leave.
EN BANC
[G.R. No. 124392. February 7, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO ABRAZALDO @ PEDING, accused-appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision[1] dated November 15, 1995 of the Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 95-
01052-D, finding accused-appellant Federico Abrazaldo guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the
supreme penalty of death and to indemnify the heirs of the deceased Delfin Guban the amount of P50,000.00 as indemnity and P27,000.00 as
actual damages, plus costs.
In the Information dated August 3, 1995 filed with the trial court, accused-appellant was charged with the crime of murder committed as follows:
That on or about July 15, 1995 in the evening at barangay Pogo, Municipality of Mangaldan, province of Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused armed with a bolo, with intent to kill, treachery and evident premeditation, did,
then and there wilfully, unlawfully and feloniously stabbed DELFIN GUBAN Y GUINTO inflicting upon him a stab wound which caused his death to
the damage and prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659.[2]
Upon arraignment, accused-appellant entered a plea of not guilty.[3] Forthwith, trial on the merits ensued. The prosecution presented as its
witnesses Rosendo Fajardo, SPO1 Ramie Petrache, SP02 Roberto Fernandez, Dr. Alberto Gonzales and Gregorio Guban. Accused-appellant and his
sister, Marites Abrazaldo, took the witness stand for the defense.
The facts of the case as presented by the prosecution witnesses are as follows:
On July 15, 1995, at about 10:00 oclock in the evening, at Barangay Pogo, Mangaldan, Pangasinan, accused-appellant, then intoxicated,[4]
attempted to hack his uncle, Bernabe Quinto, but instead, hit the post of the latters house.[5] The incident was reported to the barangay
authorities, prompting Delfin Guban, Rosendo Fajardo, Sr., Alejandro Loceste (all are members of the barangay tanod), and Cesar Manaois to rush
to the scene. Upon reaching the place, Fajardo heard accused-appellant shouting at his uncle, I will kill you! Thereafter, he saw accused-appellant
coming out of Quintos house with blood oozing from his forehead.[6] At that time, the place was well lighted by a flourescent lamp. Guban tried to
assist accused-appellant. However, for unknown reason, accused-apellant and Guban shouted at each other and grappled face to face. Accused-
appellant pulled out his knife, stabbed Guban at the abdomen[7] and ran away. When Fajardo got hold of Guban, the latter said, I was stabbed by
Feding Abrazaldo.[8] Fajardo, together with the other barangay tanod, rushed Guban to the Gov. Teofilo Sison Memorial Hospital where he was
operated by Dr. Alberto Gonzales, a Medical Officer III. But after a few hours, Guban died. Dr. Gonzales issued a Medico-Legal Certificate stating
that the cause of death was stab wound, epigastrium, massive hemothorax right.[9]
Gregorio Guban, the victims father, testified that he was the one who spent for his sons funeral expenses. For the burial, he spent P10,000.00;[10]
for the 10-day funeral wake, P10,000.00;[11] for the 9th day novena, P3,000.00;[12] and for the hospitalization, P4,000.00,[13] or a total of
P27,000.00.
On July 16, 1995, Fajardo learned that the knife used by accused-appellant in stabbing Guban was in Salay, Pangasinan. Together with SPO2
Roberto Fernandez, Fajardo went to the house of Francisca Velasquez, accused-appellants aunt, and recovered the knife. [14]
Invoking self-defense, accused-appellant presented a different version. On July 15, 1995 at about 10:00 in the evening, he was making fans inside
his house at Barangay Pogo, Mangaldan, Pangasinan.[15] His wife Lydia and children Mary Jane, Melvin and Christelle were with him. Suddenly,
Delfin Guban, who was then drunk, went to his house and shouted at him, saying, Get out Feding I will kill you![16] When accused-appellant went
out, Guban hit him with an iron pipe. Accused-appellant ran towards his house and got his two children. Guban, now armed with a knife, followed
him and they grappled for its possession. In the course thereof, both fell down.[17] It was then that the knife held by Guban accidentally hit him.
Accused-appellant did not know which part of Gubans body was hit. Thereafter, he got the knife in order to surrender it to the police.[18]
Marites Abrazaldo testified that accused-appellant is his brother.[19] On July 15, 1992, at about 6:00 in the evening, accused-appellant, Guban and
Juan Quinto were engaged in a drinking spree.[20] At about 10:00 oclock in that evening, accused-appellant caused trouble at the house of his
uncle, Bernabe Quinto.[21] He attempted to hack his uncle, but instead hit the post of the latters house.[22] While running away from his uncles
place, he bumped an artesian well, causing a wound on his forehead.[23] Afterwards, accused-appellant killed Guban.[24]
On November 15, 1995, the trial court rendered a Decision, the decretal portion of which reads:
WHEREFORE, premises considered, the Court finds accused Federico Abrazaldo @ Peding guilty beyond reasonable doubt of the crime of Murder
under Article 248 of the Revised Penal Code, as amended by Republic 7659, and in view of the presence of the aggravating circumstances that the
crime was committed while the public authorities were engaged in the discharge of their duties and that the crime was committed at nighttime,
which aggravating circumstances are not offset by any mitigating circumstance, accused Federico Abrazaldo is hereby sentenced to suffer the
penalty of Death.
Accused Federico Abrazaldo is ordered to pay an indemnity of P50,000.00 to the heirs of the deceased Delfin Guban. Accused is also ordered to pay
the heirs of the deceased Delfin Guban the total sum of P27,000.00 as actual expenses, plus costs.
SO ORDERED.
In appreciating treachery and the aggravating circumstances under paragraphs (5) and (6) of Article 14,[25] Revised Penal Code, the trial court held:
We now come to the issue of whether or not evident premeditation was present. The prosecutions evidence is wanting on this point. However,
there is no question that there was treachery as the accused embraced Delfin Guban and suddenly stabbed him with a knife. The victim was not in
a position to defend himself at the time of the attack. The deceased was stabbed without any warning. He was given no chance to defend himself.
Treachery, therefore, qualifies the killing of the victim and raises it to the category of murder.
The prosecution has established thru the testimony of Gregorio Guban that at the time of the incident on July 15, 1995, the members of the
barangay tanod, namely: Rosendo Fajardo, Sr., Delfin Guban and Alfredo Laceste were performing their duties as members of the barangay tanod.
(See p. 6 tsn September 18, 1995). This is an aggravating circumstance under paragraph 5, Article 14 of the Revised Penal Code. The members of
the barangay tanod who are public authorities were engaged in the discharge of their duties at the time of the stabbing incident. Besides, the
incident was committed during nighttime, that was 10:00 in the evening. Accused took advantage of the darkness of the night for the successful
consummation of his plan to kill Delfin Guban.
Accused-appellant, in his Appellants Brief, ascribes to the trial court the following errors:
I
THE HONORABLE TRIAL COURT ERRED IN NOT APPRECIATING THE CLAIM OF SELF-DEFENSE BY THE ACCUSED TAKING INTO CONSIDERATION THE
CIRCUMSTANCE OF THE CASE.
II
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE RECOVERY OF THE ALLEGED WEAPON USED IN STABBING VICTIM AT THE HOUSE OF
THE AUNT OF ACCUSED BOLSTERED THE CASE AGAINST HIM DESPITE LACK OF SUFFICIENT EVIDENCE TO PROVE ITS VERACITY.
III
THE HONORABLE TRIAL COURT ERRED IN APPRECIATING THE TESTIMONY EXTRACTED BY THE PROSECUTION FROM DEFENSE WITNESS MARITESS
ABRAZALDO WHICH HAD NO SUFFICIENT BASIS AT ALL.
IV
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT TREACHERY ATTENDED THE STABBING OF THE VICTIM WITHOUT SUFFICIENT BASIS TO
PROVE THE SAME.
V
THE HONORABLE TRIAL COURT ERRED IN ASSUMING THAT ACCUSED-APPELLANT TOOK ADVANTAGE OF NIGHTTIME IN CONSUMING THE ACT.
VI
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE CHARGE AGAINST ACCUSED-APPELLANT IS AGGRAVATED BY THE FACT THAT THE
VICTIM WAS IN THE PERFORMANCE OF HIS DUTY.
The Solicitor General, in the Appellees Brief, asserts that in pleading self-defense, accused-appellant admitted he killed the victim and, therefore,
he must rely on the strength of his own evidence and not on the weakness of that of the prosecution. Moreover, accused-appellants version of the
incident is completely contradicted by the testimony of his sister. Also, the aggravating circumstance, under par. (5) of Article 14, Revised Penal
Code, was clearly established because during the incident, Guban, as the Assistant Chief Tanod, was on duty and engaged in the maintenance of
peace and order.
The Solicitor General though agrees with accused-appellant that there was no treachery. Evidence shows that he and Guban shouted at each other
and struggled face to face before the stabbing incident. Thus, the assault was not sudden. Likewise, the Solicitor General is convinced that accused-
appellant did not purposely and deliberately seek nighttime to perpetrate the commission of the crime.
Consistent is the jurisprudence that where self-defense is invoked, it is incumbent upon the accused to prove by clear and convincing evidence that
(1) he is not the unlawful aggressor; (2) there was lack of sufficient provocation on his part; and (3) he employed reasonable means to prevent and
repel an aggression. On appeal, the burden becomes even more difficult as the accused must show that the court below committed reversible error
in appreciating the evidence.[26]
Accused-appellant miserably failed to discharge the burden. To show that he was not the unlawful aggressor, he testified that it was Guban who
went to his house, threatened to kill him,[27] hit him with an iron pipe,[28] and attacked him with a knife.[29] We quote accused-appellants
testimony, thus:
ATTY. CAMPOS:
xxxxxx
Q You said a while ago that on July 15, 1995 at about 10:00 in the evening you were in your house engaging in fan making, do you know of any
unusual incident that happened during that time?
A Delfin Guban came to my house and he was under the influence of liquor and he shouted at me, sir.
Q And what did Delfin Guban shout at you?
A He said, Get out Feding I will kill you.
Q After this Delfin Guban shouted at you, what happened next?
A When I went out of the house, I was already there infront of the house then he hit me, sir.
Q You said Delfin Guban hit you, what instrument did he use in hitting you?
A He hit me with a pipe , sir.
xxxxxx
Q After Delfin Guban hit you with that pipe, what happened next?
A I ran towards my house inside, then got my two children while Delfin Guban followed me inside my house, sir.
Q When Delfin Guban followed you inside your house, what happened again?
A He was holding a knife and we grappled and during that time both of us fell down, sir.
Q When you grappled with Delfin Guban, who was holding a knife, what again happened?
A We grappled for the possession of the knife then we fell down and the knife he was then holding pointed towards him and hit him. x x x.[30]
(Emphasis supplied)
The foregoing testimony bears not only the vice of falsity but also isolation. It is uncorroborated and even opposed by Marites, accused-appellants
own sister and lone witness. Contrary to his testimony that Guban hit him on his forehead with a pipe, Marites declared that accused-appellant
sustained the wound on his forehead when he accidentally bumped an artesian well. Instead of fortifying her brothers defense, she virtually
affirmed the prosecutions story by testifying that he created trouble in their compound, attempted to kill his uncle Bernabe Quinto and killed
Guban. [31]
Ingrained in our jurisprudence is the doctrine that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by
any separate competent evidence but in itself is extremely doubtful.[32] In the present case, accused-appellants tendency to invoke a melange of
defenses renders his testimony dubious. While he admitted the commission of the crime in order to preserve his own life, he maintained that
Guban accidentally stabbed himself. This shows ambivalence. Accident presupposes lack of intention to stab the victim, while self-defense
presumes voluntariness, induced only by necessity.[33] Indeed, if there is truth to either of his claim, his natural course of action was to assist the
victim, or at the very least, report the incident to the authorities. Certainly, the justifying circumstance of self-defense[34] or the exempting
circumstance of accident cannot be appreciated considering accused-appellants flight from the crime scene and his failure to inform the authorities
of the incident. Furthermore, that he did not surrender the knife to the authorities is inconsistent with a clean conscience and, instead, indicates
his culpability of the crime charged.[35]
In a last-ditch effort to exculpate himself, accused-appellant assails Fajardos testimony as tainted with inconsistencies and is contrary to the normal
course. Accused-appellant cannot invoke these alleged weaknesses in view of the principle that one who pleads self-defense must rely on the
strength of his own evidence and not on the weakness of that of the prosecution. Even if the prosecutions evidence is weak, it is still credible
considering accused-appellants admission that he killed the victim. It bears emphasis that Fajardos testimony clearly points to him as the culprit.
Not only did he pull out his knife, stabbed Guban[36] and ran away.[37] Fajardo also reiterated what Guban uttered to him, i.e., I was stabbed by
Feding Abrazaldo.[38]
As Guban had succumbed to death and his opportunity to divulge the truth on his demise had been lost, we cannot but cast a quizzical glance on
accused-appellants uncorroborated testimony. More so, when such testimony was contradicted by his own witness who happened to be his sister.
Standing alone against the testimonies of the prosecution witnesses, accused-appellants own account of the killing must necessarily fail. We hold
that his guilt has been established to a degree of moral certainty. The trial court did not err in relying on the testimony of Fajardo, an eyewitness.
Time and again, we have said that we will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there
appears on record some facts or circumstances of weight and influence which have been overlooked or the significance of which has been
misinterpreted. This is so because the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or
falsehood.[39]
However, we find that the trial court erred in concluding that treachery attended the commission of the crime. There is treachery when the
offender commits any of the crimes against persons employing means, methods or forms in the execution thereof, which tend directly and
specially to insure its execution, without risk to himself arising from defense which the offended party might make. Treachery cannot be presumed,
it must be proved by clear and convincing evidence or as conclusively as the killing itself. Fajardo testified that accused-appellant and Guban were
grappling with each other and that prior to the stabbing, they were shouting at each other. In this scenario, it cannot be said that Guban was
unprepared to put up a defense, such as hitting accused-appellant, or that the latters assault was sudden. We quote in verbatim the testimony of
Fajardo, thus:
ATTY. CAMPOS:
Q They were not then fighting?
A They were grappling with each other and then he stabbed Delfin Guban.
xxxxxx
Q In fact, they were shouting each other?
A Yes, sir.
Q What were they shouting against another?
A I could no longer understand because it was already night.
Q But they were shouting loudly, am I correct?
A Yes and there were many people.[40] (Emphasis supplied)
The trial court likewise erred in appreciating the aggravating circumstance of nocturnity or nighttime. For nocturnity to be properly appreciated, it
must be shown that it facilitated the commission of the crime and that it was purposely sought for by the offender. By and itself, nighttime is not
an aggravating circumstance.[41] In the instant case, no sufficient evidence was offered to prove that accused-appellant deliberately sought the
cover of darkness to accomplish his criminal design. In fact, Fajardo testified that there was a fluorescent lamp sufficiently illuminating the scene of
the crime.[42]
Neither can we sustain the trial courts finding that the aggravating circumstance under paragraph (5) of Article 14, Revised Penal Code, i.e., that the
crime was committed in a place where public authorities were engaged in the discharge of their duties, is present. It must be pointed out that this
aggravating circumstance is based on the greater perversity of the offender, as shown by the place of the commission of the crime, which must be
respected.[43] In this case, the crime was committed at the compound of the accused-appellant where no public function was being held. The
arrival of the barangay authorities was precisely due to the trouble that had commenced prior to the stabbing incident. Clearly, the said
aggravating circumstance cannot be considered. Moreover, under the present Rules,[44] aggravating circumstances must be alleged, otherwise,
they cannot be appreciated. Being favorable to the accused, this new procedure may be given retroactive effect.[45] Except treachery, the other
aggravating circumstances mentioned have not been alleged in the Information.
In the absence of any circumstance that would qualify the crime at bar to murder, accused-appellant can only be held liable for homicide defined
and penalized under Article 249 of the Revised Penal Code. The prescribed penalty is reclusion temporal. Considering that there was neither
mitigating nor aggravating circumstance that attended the commission of the crime, the penalty has to be imposed in its medium period, ranging
from 14 years, 8 months and 1 day to 17 years and 4 months. Applying the provisions of the Indeterminate Sentence Law, he should be sentenced
to an indeterminate penalty, the minimum of which is within the range of prision mayor, or 6 years and 1 day to 12 years. The maximum thereof is
within the range of reclusion temporal in its medium period, which is 14 years, 8 months and 1 day to 17 years and 4 months. [46]
On the trial courts award of actual damages in the amount of P27,000.00, we find the same to be unsubstantiated. To be entitled to such damages,
it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable to the injured party.[47] In the case at bar, the prosecution failed to present any receipt to prove the claim for expenses incurred.[48]
Gregorio Guban, the father of the victim, who shouldered the expenses for the wake and burial failed to submit receipts to show the amount of
such expenses.[49] However, as the heirs of Guban did actually incur funeral expenses, we are justified in awarding P25,000.00, not for purposes of
indemnification, but by way of temperate damages.[50]
Thus, we now hold that where the amount of the actual damages cannot be determined because of the absence of receipts to prove the same, but
it is shown that the heirs are entitled thereto, temperate damages may be awarded. Such temperate damages, taking into account the current
jurisprudence fixing the indemnity for death at P 50,000.00, should be one-half thereof, or P25,000.00. This makes temperate damages equal to
the award of exemplary damages, which is likewise fixed at P25,000.00 in cases where its award is justified.
WHEREFORE, the assailed judgment in Criminal Case No. 95-01052-D is AFFIRMED with MODIFICATION. Accused-appellant Federico Abrazaldo is
declared guilty beyond reasonable doubt of homicide defined and penalized under Article 249 of the Revised Penal Code and is sentenced to suffer
an indeterminate penalty of six (6) years and 1 day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal in its medium period, as maximum. He is ordered to pay the heirs of the late Delfin Guban P50,000.00 as indemnity and
P25,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and
Azcuna, JJ., concur.
Ynares-Santiago, J., on official leave.
THIRD DIVISION
[G.R. No. 134568. February 10, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EULOGIO IGNACIO, accused-appellant. ALEX
DECISION
PANGANIBAN, J.:
There is treachery when the accused unexpectedly and deliberately shoots an unarmed minor who is thus not in a position to put up a defense or
to inflict harm on the former. Voluntary surrender is not appreciated even if the accused submits himself to the members of the barangay tanod
who, by their presence in his house, precluded his escape. miso
The Case
Before us is an appeal of the May 18, 1998 Decision[1] of the Regional Trial Court (RTC) of Masbate, Masbate (Branch 44), convicting Eulogio
Ignacio of murder in Criminal Case No. 8385. The RTC disposed of the case as follows:
"WHEREFORE, premises considered, the guilt of accused EULOGIO IGNACIO alias LOLOY for the crime of MURDER having been established by proof
beyond reasonable doubt for the killing of Jessie Lacson, and without the presence of any aggravating or mitigating circumstance, this court hereby
sentences said accused to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of the victim the sum of FIFTY THOUSAND (P50,000.00)
PESOS, without subsidiary [imprisonment] in case of insolvency.
"Accused Eulogio Ignacio being a detention prisoner, the period of his detention shall be credited in his favor in the computation of his sentence.
spped
"Finally, the Provincial Warden of Masbate is directed to ship the accused to the National Penitentiary, Muntinlupa City, within thirty (30) days
from the finality of this decision and to report to this court within fifteen (15) days from compliance thereof."[2]
Second Assistant Provincial Prosecutor Alberto A. Alforte charged appellant with the murder of Jessie Lacson in an Information dated February 28,
1997, the pertinent portion of which reads:
"That on or about January 11, 1997, [o]n the morning thereof, at Barangay Divisoria, Municipality of Dimasalang, Province of Masbate, Philippines,
within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, evident premeditation and treachery did then and
there wilfully, unlawfully and feloniously attack, assault and shoot with a 12 gauge homemade shotgun (riot) one Jessie Lacson, hitting him on the
chest, thereby inflicting wound, which caused his death."[3] miso
With the assistance of Counsel Percival Castillo, appellant pleaded not guilty when arraigned on September 18, 1997.[4] After trial in due course,
the RTC rendered the assailed Decision. Hence, this appeal.[5]
The Facts
Version of the Prosecutionspped
In the Brief for the Appellee, the solicitor general narrated the facts as follows:
"On January 11, 1997, at Divisoria, Dimasalang, Masbate, at 9:00 a.m., the victim, Jessie Lacson, and Edwin Velasco were gathering shells by the
seashore. This work had caused them to feel thirsty. The two decided to go to the fishpond and get young coconuts or butong. This fishpond is
owned by Cleto Cortes alias Milagring with appellant Eulogio Ignacio alias Loloy as the caretaker. Inside the fishpond is a house where appellant
sometimes stays.
"At the fishpond, Jessie got one young coconut. Then, Jessie walked ahead of Edwin in going to the dike, where he would break open the young
coconut. miso
"Eulogio came out [of] his house and saw Jessie as he reached the dike. However, Eulogio did not see Edwin who was standing behind some
coconut trees. Edwin heard Eulogio shout at Jessie to put down the young coconut, which the latter did. Then, Edwin saw Eulogio fire his
homemade shotgun at Jessie who was hit on the left portion of the breast. At that time, Eulogio was standing forty (40) meters away from Jessie
while Edwin was standing six (6) meters away from his friend. Edwin saw Jessie fall down on the ground. Then, Eulogio cranked his homemade
shotgun, aimed it at Edwin but did not fire. Edwin immediately left said place to report the shooting incident to Jessies parents.
"Edwin went to the house of Carlito Alcover, their Barangay Tanod and reported the shooting. Carlito went to Eulogios house, failed to find him
there, but waited. After three (3) minutes, Eulogio arrived, carrying his homemade shotgun. Then, Barangay Tanods Atel Lachica and Rodolfo
Gulpan came by. Carlito asked Eulogio to surrender, which he heeded. Carlito asked Eulogio why he fired his long gun at Jessie. Eulogio answered
that Jessie stole some young coconuts. Thereafter, they brought Eulogio to the police precinct. The homemade shotgun was surrendered to SPO3
Arturo Hernando. spped
"Meanwhile, Helen Alcovindas went to Dominador Lacson, Jessies father, who was gathering coconut fruits in another plantation. She told
Dominador that Eulogio shot Jessie. Dominador ran towards the fishpond, saw Jessies dead body, and brought it to the clinic of Dr. Alino. Per
examination by Dr. Ernesto Tamayo, Municipal Health Officer of Dimasalang, Masbate, the victim suffered from a single gunshot wound fatally
injuring the heart."[6]
Version of the Defense
Arguing that he had acted in defense of property with no intention to kill the victim, appellant countered: miso
"Appellant EULOGIO IGNACIO, caretaker of the fishpond of Cleto Cortes, testified that on January 9, 1997, he was informed by his neighbor, Gil
Aristotles, regarding a theft incident in the fishpond that he administered. On January 11, 1997, while roaming around the fishpond, he saw Jessie
Lacson and Edwin Velasco, coming out [of] his house with a basket. It so happened that in his house there were twenty-eight (28) pieces of crabs
stocked. Upon seeing herein appellant, Jessie and Edwin fled. Appellant ordered them to stop. Since the two did not stop, appellant who was then
fifty (50) meters away and without any intention to kill Jessie and Edwin, fired his gun. He left and informed Kagawad Gil Aritotles about the
incident. Afterwards, he reported to Barangay Tanod Saratiel Lachica."[7]
Ruling of the Trial Court
The trial court ruled that appellant failed to prove by credible, clear and convincing evidence that he had acted in lawful defense of the landowners
property. There was no legal reason for him to shoot the victim, an unarmed minor at the time of the incident. The said court qualified the killing to
murder because of the presence of treachery. apdc
Assignment of Errors
In his Brief, appellant submits the following:
"I. The lower court gravely erred in convicting accused-appellant of murder.
"II. The lower court gravely erred in finding that the qualifying circumstance of treachery [was] attendant in the case at bar. apdc
"III. The lower court gravely erred in not appreciating the mitigating circumstance of voluntary surrender."[8]
This Courts Ruling
The appeal has no merit.
First Issue:
Evidence of Appellants Guiltspped
In arguing that the trial court erred in convicting him of murder, appellant merely posits that the killing was not qualified by treachery, without
challenging the ruling that he had killed the victim. Nonetheless, the Court examined the records motu proprio, because of the well-ingrained
doctrine that a conviction must rest on the strength of the prosecution's evidence, and not on the weakness, insufficiency or impropriety of the
defense.[9] After all, even in cases in which the accused pleads guilty to a capital offense, the prosecution is still required to present evidence to
prove his guilt and the precise degree of his culpability.[10]
In the present case, we find ample evidence that appellant did shoot the victim. He himself admitted doing so, because he believed that the
deceased and a companion, Edwin Velasco, had stolen crabs. Allegedly, he saw them carrying a basket and coming out of his house. When he
approached, the two ran away. After they failed to heed his call for them to stop, he shot the victim with a homemade shotgun. miso
It should be stressed that appellants conduct cannot be justified as a lawful defense of property rights. For this justifying circumstance to be
appreciated, the accused has the burden of proving unlawful aggression on the part of the victim and reasonable necessity of the means employed
to prevent or repel it. In this case, the first requisite was not proven, because he was not attacked by the victim. In fact, he did not even see the
victim steal the crabs; he merely suspected him of doing so. Furthermore, assuming that unlawful aggression was proven, there was no necessity to
shoot because, according to him, the victim was already running away when hit.miso
In any event, the victim's companion at the time, Edwin Velasco whose testimony will be reproduced later, positively identified appellant as the
killer.
Second Issue:
Treachery
Appellant argues in the main that treachery should not be appreciated, because there was no proof that he "deliberately and consciously adopted
any means to kill" Lacson, but "merely acted on impulse to stop the fleeing culprits."[11]
We disagree. Appellant carried out the attack deliberately and consciously; he did not act on mere impulse. This is clear from Edwin Velascos
testimony, pertinent portions of which are reproduced hereunder: Sdaadsc
"Q. And when your companion Jessie Lacson was able to gather that one young coconut, what happened next, what did you do?
A. We went to the dike to break the coconut.
Q. And were you able to open that young coconut?
A. No sir.
Q. Why?
A. We were not able to open the young coconut because Jessie Lacson was shouted [at] by Eulogio Ignacio ordering him to put down the young
coconut.
Q. Did Jessie Lacson put down the young coconut? Rtcspped
A. Yes, sir.
Q. And what else transpired next?
A. He was shot.
Q. By whom?
A. By Loloy.
Q. The accused in this case?
A. Yes, sir.
Q. How far was the accused when he fired at Jessie Lacson? Korte
A. 40 meters.
Q. How about you, what was or can you estimate the distance from the place where you were to the place when you saw the accused [fire] at
Jessie Lacson?
A. I was very far from him.
Q. Who is that him you are referring to?
A. From Jessie Lacson.
Q. Now, was Jessie Lacson hit when he was fired at by the accused?
A. Yes, sir.
COURT: Sclaw
Q. That 40 meters distance of Eulogio Ignacio to the victim, Jessie Lacson, will you please demonstrate or point that distance from where you were
seated?
A. (Witness pointing to the store outside the courtroom which is around 40 meters away)
ALFORTE:
Q. Was Jessie Lacson hit?
A. Yes, sir.
Q. What happened to him when he was hit by the firing caused by the accused?
A. He fell down.
Q. Were you able to recognize what kind was . . . what kind of gun was used by the accused in firing [at] the victim in this case, Jessie Lacson? Sclex
A. Yes, sir.
Q. Can you demonstrate that gun if you were able to recognize that it was a gun?
A. It was a long gun."[12]
The foregoing testimony belies appellants contention. The victim and his companion stopped after appellant shouted at them. In fact, they were
already facing him when he fired the fatal shot from a distance of around forty meters. This was affirmed by Dr. Ernesto L. Tamayo, who had
conducted the postmortem examination on the victim, when he testified that the entry point of the gunshot wound was at the chest, not at the
back.[13] Xlaw
Clearly, the evidence proves that appellant killed the victim, and that he did so without risk to himself. A killing is qualified by treachery when the
accused employs means, methods or forms in the execution thereof without risk to himself arising from the defense which the offended party
might make.[14] To repeat, there was no more reason for appellant to shoot; that he did so was unexpected and surprising. Furthermore, Lacson
was unarmed and a mere minor then. Because he had no weapon, there was no risk at all that appellant would be harmed. We stress that the
former was only fourteen years old at the time, and that he could not have put up an effective defense.[15]
Third Issue:
No Voluntary SurrenderXsc
Appellant maintains that the trial court should have appreciated the mitigating circumstance of voluntary surrender, because he allegedly gave
himself up to three members of the barangay tanod who had gone to his house.
We are not persuaded. In order that the mitigating circumstance may be appreciated, the defense must clearly satisfy three requisites: (a) the
offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or the latter's agent; and (c) the surrender is
voluntary.[16] The defense must show an intent to surrender unconditionally to the authorities, because of an acknowledgement of guilt or
because of a wish to spare them the trouble and the expense concomitant to the search and the capture of the accused.[17] Sc
Appellants surrender was not voluntary. Rather, he was forced to give himself up, because members of the barangay tanod were already inside his
house, thereby precluding his escape.
WHEREFORE, the appeal is hereby DENIED, and the assailed Decision AFFIRMED. Costs against appellant.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170462 February 5, 2014
RODOLFO GUEVARRA and JOEY GUEVARRA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision2 dated October 24, 2005 of the Court of Appeals (CA) in CA-G.R. CR No. 28899. The
CA affirmed, with modification on the amount of damages, the joint decision3 dated April 16, 2004 of the Regional Trial Court (RTC), Branch 20,
Cauayan City, Isabela, finding Rodolfo Guevarra and Joey Guevarra (petitioners) guilty beyond reasonable doubt of the crimes of frustrated
homicide and homicide.
Factual Antecedents
Rodolfo and his son, Joey, were charged with the crimes of frustrated homicide and homicide under two Informations which read:
In Criminal Case No. Br. 20-1560 for Frustrated Homicide:
That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conspiring, confederating together and helping one another, with intent to kill and without any just motive, did
then and there, willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with a sharp pointed bolo one Erwin Ordonez,
who as a result thereof, suffered multiple hack and stab wounds on the different parts of his body, which injuries would ordinarily cause the death
of the said Erwin Ordonez, thus, performing all the acts of execution which should have produced the crime of homicide as a consequence, but
nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the
said Erwin Ordonez, which prevented his death.4
In Criminal Case No. Br. 20-1561 for Homicide:
That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conspiring, confederating together and helping one another, with intent to kill and without any just motive, did
then and there, willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with a sharp pointed bolo one David Ordonez,
who as a result thereof, suffered multiple hack and stab wounds on the different parts of his body which directly caused his death.5
Although the informations stated that the crimes were committed on January 8, 2000, the true date of their commission is November 8, 2000, as
confirmed by the CA through the records.6 The parties failed to raise any objection to the discrepancy.7
On arraignment, the petitioners pleaded not guilty to both charges.8 The cases were jointly tried with the conformity of the prosecution and the
defense. At the pre-trial, the petitioners interposed self-defense, which prompted the RTC to conduct a reverse trial of the case.9
During the trial, the parties presented different versions of the events that transpired on November 8, 2000.
Version of the Defense
To prove the petitioners' claim of self-defense, the defense presented the testimonies of Rodolfo, Joey, and the petitioners' neighbor, Balbino
Agustin.
Testimony of Rodolfo
Rodolfo, who was then fifty-five (55) years old, narrated that, at around 11 :00 p.m., on November 8, 2000, brothers Erwin Ordonez and David
Ordonez, together with their companion, Philip Vingua, forced their way into his compound and threw stones at his house and tricycle. Through the
back door of his house, Rodolfo went down to the basement or "silung' and shouted at the three men to stop. David saw him, threatened to kill
him, and struck him with a ''panabas," hitting him on the palm of his left hand. Rodolfo responded by reaching for the bolo tucked in the "so/era"
of his house, and hacked and stabbed Erwin and David until the two brothers fell to the ground. Upon seeing Erwin and David lying on the ground,
Rodolfo called on someone to bring the brothers to the hospital. He stayed in his house until the policemen arrived.
Testimony of Joey
Joey, who was then thirty-one (31) years old, narrated that, at around 11:00 p.m., on November 8, 2000, he was awakened by the sound of stones
being thrown at their house in Bliss, Paddad, Alicia, Isabela. Through the window, he saw Erwin, David and Philip breaking into their gate, which
was made of wood and interlink wire and located five ( 5) to six ( 6) meters away from their house. He then heard his father Rodolfo say to the
three men, "kung ano man ang problema bukas na natin pag-usapan,"10 and David retorted in their dialect, "Okininam nga lakay adda ka gayam
dita, patayin taka."11
Testimony of Balbino
Balbino narrated that, from inside his house in Bliss, Paddad, Alicia, Isabela, at around 10:00 p.m., on November 8, 2000, he heard a person from
the outside saying "Sige banatan ninyo na."12 He opened his door and saw David, Erwin and Philip throwing stones at the house of his neighbor
Crisanto Briones. Briones got mad and scolded the three men, "Why are you hitting my house? Why don't you hit the house of your enemy, mga
tarantado kayo!"13 David, Erwin and Philip then aimed their stones at the petitioners' house. Balbino heard David calling out to Joey, "Joey, kung
tunay kang lalaki lumabas ka diyan sa kalsada at dito tayo magpatayan,"14 but no one came out of Rodolfo's house. The stoning lasted for about
thirty (30) minutes.
Afterwards, Balbino saw David, Erwin and Philip destroy Rodolfo's gate and pull the gate towards the road. He heard David say to his companions,
"koberan ninyo ako at papasok kami."15 David, Erwin and Philip entered the petitioners' compound and damaged Rodolfo's tricycle with stones
and their ''panabas." Also, he heard Rodolfo say to David in Filipino that they could just talk about their problems with him the following day. But
David approached Rodolfo and hacked him with a ''panabas." Rodolfo parried the blow with the back of his hand, and David and Rodolfo struggled
for the possession of the ''panabas."
Balbino also saw Erwin hit Rodolfo on the face with a stone and Joey was hit on his right foot, causing Rodolfo and Joey to retreat to the "silung" of
their house from where Rodolfo got "something shiny," and with it stabbed David and Erwin. He saw the two brothers fall to the ground.
Version of the Prosecution
As its rebuttal witness, the prosecution presented the sole testimony of Erwin who survived the hacking.
Erwin narrated that, at around 10:00 to 11 :00 p.m., on November 8, 2000, he, his brother David and Philip went to a birthday party and passed in
front of the petitioners' compound. He was walking twenty (20) meters ahead of his companions when, suddenly, Philip ran up to him saying that
David was being stabbed by Joey with a bolo. While approaching the scene of the stabbing, which was three (3) meters away from where his
brother David was, Erwin was met by Rodolfo who then hacked him, hitting his arm and back. Thereafter, Rodolfo and Joey dragged Erwin inside
the petitioners' compound and kept on hacking him. He was hacked and stabbed thirteen (13) times. He became weak and ultimately fell to the
ground.
Erwin denied that he and David threw stones at the petitioners' house and damaged Rodolfo's tricycle.1âwphi1 They did not likewise destroy the
petitioners' gate, which was only damaged when his brother David clung on to it while he was being pulled by Rodolfo and Erwin into their
compound. While they were being hacked and stabbed by Rodolfo and Erwin, stones actually rained on them and people outside the petitioners'
gate were saying, "Do not kill the brothers. Allow them to come out."16
After the incident, Erwin and David, both unconscious, were brought to the hospital. David died in the hospital while being treated for his wounds.
The RTC's Ruling
In a decision dated April 16, 2004, the RTC gave credence to the prosecution's version of the incident and found the petitioners guilty beyond
reasonable doubt of the crimes of frustrated homicide and homicide. It disbelieved the defense's version of the events due to material
inconsistencies in the testimonies of the defense witnesses. It denied the petitioners' claim of self-defense for lack of clear, convincing and
satisfactory supporting evidence.
The RTC explained in its decision that "[w]hen an accused invokes the justifying circumstance of self-defense, he loses the constitutional
presumption of innocence and assumes the burden of proving, with clear and convincing evidence, the justification for his act";17 that self-defense
is an affirmative allegation which must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it.18 The RTC held that the petitioners miserably failed to prove that there was unlawful
aggression on the part of the victims, Erwin and David.
Accordingly, the RTC disposed of the case as follows:
WHEREFORE, finding the accused Rodolfo Guevarra and Joey Guevarra guilty beyond reasonable doubt of the crimes for which they are charged,
and absent any mitigating or aggravating circumstance/s that attended the commission of the crimes, the Court hereby sentences each of the
accused to suffer -In Criminal Case No. Br. 20-1560 for Frustrated Homicide - an indeterminate penalty ranging from Three (3) years and one day of
prision correccional as minimum to Nine (9) years of prision mayor as maximum and to indemnify the victim Erwin Ordonez moral damages in the
amount of Twenty Thousand (₱20,000.00) Pesos, without any subsidiary imprisonment in case of insolvency. Cost against the accused.
In Criminal Case No. Br. 20-1561 for Homicide - an indeterminate penalty ranging from Eight (8) years and one day of prision mayor as minimum to
Fifteen (15) years of Reclusion Temporal as maximum and to indemnify the heirs of the deceased David Ordonez Sixty Thousand (₱60,000.00)
Pesos plus Thirty Thousand (₱30,000.00) Pesos as moral damages without subsidiary imprisonment in case of insolvency. Costs against the accused.
The bail bonds of the accused are CANCELLED.19
The CA's Ruling
On appeal, the CA affirmed the RTC's judgment and convicted the petitioners of the crimes charged. As the RTC did, the CA found that Erwin and
David committed no unlawful aggression sufficient to provoke the actions of the petitioners; that "aggression, to be unlawful, must be actual and
imminent, such that there is a real threat of bodily harm to the person resorting to self-defense or to others whom that person is seeking to
defend."20 Even assuming the truth of the petitioners' claims that David challenged Joey to a fight and threatened to kill Rodolfo on the night of
November 8, 2000, the CA held that these acts do not constitute unlawful aggression to justify the petitioners' actions as no real or actual danger
existed as the petitioners were then inside the safety of their own home.
The CA further held that the petitioners' plea of self-defense was belied by the nature and number of wounds inflicted on Erwin, who sustained
thirteen (13) stab wounds on his arm and back, and David, who suffered around ten (10) stab wounds on his back and stomach causing his death.
These wounds logically indicated that the assault was no longer an act of self-defense but a determined homicidal aggression on the part of the
petitioners.21
The CA, however, found error in the amounts of civil indemnity and moral damages awarded by the RTC. Thus, the CA modified the RTC's decision
in this wise:
WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. In Crim. Case No. Br. 20-1561, appellants RODOLFO GUEVARRA and JOEY
GUEVARRA are each ordered to pay the heirs of the deceased David Ordonez the sum of Fifty Thousand Pesos (P.50,000.00) as civil indemnity and
another Fifty Thousand Pesos (₱50,000.00) as moral damages.22
The Petition
In the present petition, the petitioners raise the following issues:
A.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE DESPITE CLEAR AND CONVINCING EVIDENCE SHOWING THE ELEMENTS OF SELF-DEFENSE.
B.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE LONE WITNESS OF THE
PROSECUTION.
C.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER JOEY GUEVARRA WHO HAS NO PARTICIPATION IN
THE SAID INCIDENT.23
Our Ruling
We deny the present petition as we find no reversible error in the CA decision of October 24, 2005.
At the outset, we emphasize that the Court's review of the present case is via a petition for review under Rule 45, which generally bars any
question pertaining to the factual issues raised. The well-settled rule is that questions of fact are not reviewable in petitions for review under Rule
45, subject only to certain exceptions, among them, the lack of sufficient support in evidence of the trial court's judgment or the appellate court's
misapprehension of the adduced facts.24
The petitioners fail to convince us that we should review the findings of fact in this case. Factual findings of the RTC, when affirmed by the CA, are
entitled to great weight and respect by this Court and are deemed final and conclusive when supported by the evidence on record.25 We find that
both the RTC and the CA fully considered the evidence presented by the prosecution and the defense, and they have adequately explained the
legal and evidentiary reasons in concluding that the petitioners are guilty of the crimes of frustrated homicide and homicide.
In the absence of any showing that the trial and appellate courts overlooked certain facts and circumstances that could substantially affect the
outcome of the present case, we uphold the rulings of the RTC and the CA which found the elements of these crimes fully established during the
trial.
The crime of frustrated homicide is committed when: (1) an "accused intended to kill his victim, as manifested by his use of a deadly weapon in his
assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying
circumstance for murder under Article 248 of the Revised Penal Code is present."26
On the other hand, the crime of homicide is committed when: (1) a person is killed; (2) the accused killed that person without any justifying
circumstance; (3) the accused had the intention to kill, which is presumed; and ( 4) the killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or infanticide.27
The petitioners' intent to kill was clearly established by the nature and number of wounds sustained by their victims. Evidence to prove intent to kill
in crimes against persons may consist, among other things, of the means used by the malefactors; the conduct of the malefactors before, at the
time of, or immediately after the killing of the victim; and the nature, location and number of wounds sustained by the victim.28 The CA aptly
observed that the ten (10) hack/stab wounds David suffered and which eventually caused his death, and the thirteen (13) hack/stab wounds Erwin
sustained, confirmed the prosecution's theory that the petitioners purposely and vigorously attacked David and Erwin.29
In fact, the petitioners admitted at the pre-trial that "the wounds inflicted on the victim Erwin Ordonez would have caused his death were it not for
immediate medical attendance."30
By invoking self-defense, the petitioners, in effect, admitted to the commission of the acts for which they were charged, albeit under circumstances
that, if proven, would have exculpated them. With this admission, the burden of proof shifted to the petitioners to show that the killing and
frustrated killing of David and Erwin, respectively, were attended by the following circumstances: (1) unlawful aggression on the part of the victims;
(2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the
persons resorting to self-defense.31
Of all the burdens the petitioners carried, the most important of all is the element of unlawful aggression. Unlawful aggression is an actual physical
assault, or at least a threat to inflict real imminent injury, upon a person.32 The element of unlawful aggression must be proven first in order for
self-defense to be successfully pleaded. There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense.33
As the RTC and the CA did, we find the absence of the element of unlawful aggression on the part of the victims. As the prosecution fully
established, Erwin and David were just passing by the petitioners' compound on the night of November 8, 2000 when David was suddenly attacked
by Joey while Erwin was attacked by Rodolfo. The attack actually took place outside, not inside, the petitioners' compound, as evidenced by the
way the petitioners' gate was destroyed. The manner by which the wooden gate post was broken coincided with Erwin's testimony that his brother
David, who was then clinging onto the gate, was dragged into the petitioners' compound. These circumstances, coupled with the nature and
number of wounds sustained by the victims, clearly show that the petitioners did not act in self-defense in killing David and wounding Erwin. The
petitioners were, in fact, the real aggressors.
As to the penalties and damages
awarded
We affirm the penalties imposed upon the petitioners, as they are well within the ranges provided by law, but modify the damages awarded by the
CA.
In addition to the ₱50,000.00 civil indemnity and ₱50,000.00 moral damages awarded by the CA, we award ₱25,000.00 to each of the victims as
temperate damages, in lieu of the actual damages they sustained by reason of the crimes. Article 2224 of the Civil Code states that temperate or
moderate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot be proved with
certainty.
Also, we impose on all the monetary awards for damages interest at the legal rate of six percent ( 6%) per annum from date of finality of the
decision until fully paid.34
WHEREFORE, the petition is DENIED. The decision dated October 24, 2005 of the Court of Appeals is hereby AFFIRMED with MODIFICATION in that
the petitioners are also ordered to pay Erwin Ordonez and the heirs of David Ordonez the amount of ₱25,000.00 as temperate damages.
The petitioners shall pay interest at the rate of six percent (6%) per annum on the civil indemnity, moral and temperate damages from the finality
of this decision until fully paid.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200748 July 23, 2014
JAIME D. DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision1 dated 22 June 2011 issued by the Twentieth
Division of the Court of Appeals (CA) and Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No.
00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous
Drugs Act of 2002, by the Graft Investigation and Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14
February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed and qualified to such public position as Police Officer 2 of the Philippine
National Police (PNP) assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested by agents of the National
Bureau of Investigation (NBI) in an entrapment operation, was found positive for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known
as "Shabu", the dangerous drug after a confirmatory test conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not reveal whether De la Cruz was
likewise charged for extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators of the National Bureau of
Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido
(Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was
picked up by several unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to the
complainants, and when the latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located along Gorordo
Avenue, Cebu City. In the said police office, they met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in exchange for the
release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting
to the authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring the money as soon as
possible.
The special investigators at the NBI-CEVRO verified the text messages received by the complainants.1âwphi1 A team was immediately formed to
implement an entrapment operation, which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The
officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount
demanded by "James" and handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic
examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It later yielded a
positive result for presence of dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report No.
2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the said Jollibee branch, he was
arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was required to extract urine for drug examination, but he
refused saying he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was, however,
denied. He also requested to be allowed to call his lawyer prior to the taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007, found the accused guilty beyond reasonable doubt of
violating Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less than six (6)
months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5
Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its dubiousness having been admitted in spite
of the lack of legal basis for itsadmission. First, he alleges that the forensic laboratory examination was conducted despite the fact that he was not
assisted by counsel, in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt notwithstanding
the lack of sufficient basis to convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurisprudence, which states that drug testing
conducted under circumstancessimilar to his would violate a person’s right to privacy. The appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay evidence as basis for his conviction and
the questionable circumstances surrounding his arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s arguments cannot be the subject of a petition
for review on certiorariunder Rule 45, as they involve questions of facts which may not be the subject thereof; after his arraignment, he can no
longer contest the validity of his arrest, less so at this stage of the proceedings; his guilt has been adequately established by direct evidence; and
the manner in which the laboratory examination was conducted was grounded on a valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the drug test conducted upon the
petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any existing law or jurisprudence.
We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible duplicate originals or certified true copies of
the assailed Decision and Resolution. Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision of which
reads:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a
confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to
the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (₱50,000.00) to Two
hundred thousand pesos (₱200,000.00): Provided,That this Section shall not be applicable where the person tested is also found to have in his/her
possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.8
The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1) the accused was arrested; (2) the
accused was subjected to drug test; and (3) the confirmatory test shows that he used a dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned that "a suspect cannot invoke his
right to counsel when he is required to extract urine because, while he is already in custody, he is not compelled to make a statement or testimony
against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on three counts.
The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of
R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for any crime.The phrase must be read in
context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under
Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the "importation,"9 "sale, trading,
administration, dispensation, delivery, distribution and transportation",10 "manufacture"11 and "possession"12 of dangerous drugs and/or
controlled precursors and essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being "employees and visitors
of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled precursors and essential
chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs
and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ;
"unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs or are sources thereof";22 and
"maintenance and keeping of original records of transactions on dangerous drugs and/orcontrolled precursors and essential chemicals."23 To make
the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its
meaning. Note thataccused appellant here was arrested in the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate persons apprehended or arrested for
the unlawful acts enumerated above instead of charging and convicting them of other crimes with heavier penalties. The essence of the provision is
more clearly illustrated in People v. Martinez24 as follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs)
of R.A. No. 9165, withregard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under
Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the
last paragraph of Sec. 11. Although not incorrect, it would be more in keeping withthe intent of the law to file charges under Sec. 15 instead in
order to rehabilitate first time offenders of drug use, provided thatthere is a positive confirmatory test result as required under Sec. 15.The
minimum penalty under the last paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one day, while the penalty
under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on
the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a
second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found
positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law
enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have
been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other
paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of ₱50,000.00. In fact, under the
same section, the possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the possessor has used a dangerous
drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous
drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs isonly and solely in the form of residue and the
confirmatory test required under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a chance to be rehabilitated,
the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other
than mere residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons arrested or apprehended for unlawful
acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any
crime. To overextend the application of thisprovision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board
and Philippine Drug Enforcement Agency,25 to wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being suspicionless are antithetical to their
being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being
haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as
a tool for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case would violate a person’s right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis
supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises the issue only now before this tribunal;
hence, he is deemed to have waived his right to question the validity of his arrest curing whatever defect may have attended his arrest.26
However, "a waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest."27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial
compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from
the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the
accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987])
The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.
(People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been
held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers,
41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical
determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with bloody
footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28 (Emphasis
supplied)
In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The RTC and the CA, therefore, both
erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the
concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the petitioner therein and his companions were
arrested in connection with the enforcement of a search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials
and paraphernalias. The petitioner and his companions in that case were also asked to give urine samples, which yielded positive results. Later, the
petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was
inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession.
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or moral compulsion to extort
communication from the accused, but not an inclusion of his body in evidence, when it may be material." The situation in Gutangwas categorized
as falling among the exemptions under the freedom from testimonial compulsion since what was sought tobe examined came from the body of the
accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts but to ascertain physical attributes
determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine
but they in fact voluntarily gave the same when they were requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is
replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner
for the crimes charged.
We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner in the instant case.1awp++i1 First,
Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to his
culpability for the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and
finally, his urine sample was the only available evidencethat was used as basis for his conviction for the use of illegal drugs.
The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer prior to his urine test. He
was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under
those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein their persons, houses, papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of the crime or offense for which
the arrest is being made.
While we express our commendation of law enforcement agents as they vigorously track down offenders intheir laudable effort to curb the
pervasive and deleterious effects of dangerous drugs on our society, they must, however, be constantly mindful of the reasonable limits of their
authority, because it is not unlikely that in their clear intent to purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth Division, and the Resolution dated 2 February
2012 issued by the former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.

You might also like