PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

MARLON DELIM, LEON DELIM, MANUEL DELIM alias BONG (At Large), ROBERT DELIM (At Large), and RONALD DELIM alias BONG, accused-appellants. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision,[1] dated January 14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the supreme penalty of death. The court also ordered accused-appellants to pay, jointly and severally, the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages. Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bong and Robert, all surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads: That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with short firearms barged-in and entered the house of Modesto Delim and once inside with intent to kill, treachery, evident premedidation (sic), conspiring with one another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs. CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659.[2] Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were apprehended. Accused Robert and Manuel remain at-large. At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty to the charge. At the trial, the prosecution established the following relevant facts[3] Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was adopted by the father of Marlon, Manuel and Robert. However, Modestos wife, Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan. On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have their supper in their home. Joining them were Modesto and Ritas two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto.[4] Marlon, Robert and Ronald herded Modesto out of the house on their

way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24, 1999. As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident the night before and sought his help for the retrieval of Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modestos house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On January 26, 1999, Randy reported the incident to the police authorities. At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately rushed to the police station to report the incident and to seek assistance. When informed of the discovery of Modestos cadaver, the local chief of police and SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures were taken of the cadaver. [5] Rita and Randy divulged to the police investigators the names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and killed him. Rita and Randy gave their respective sworn statements to the police investigators.[6] Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and Labayog to no avail. The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which reads: SIGNIFICANT EXTERNAL FINDINGS: Body both upper extremities are flexed both lower extremities are flexed (+) body decomposition (+) worms coming out from injuries 10 x 10 ml. GSW, pre-auricular area, right 20 x 20 ml. GSW, mandibular areas, right 10 x 10 ml. GSW, maxillary area, right 10 x 10 ml. GSW, below middle nose, directed upward (POE) 30 x 40 ml. GSW, mid parieto occipital area (POEx) 2 x 1 cms. lacerated wound, right cheek 1 x 1 cm. stabbed wound, axillary area, left 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm

1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm 10 x 6 cms. Inflamed scrotum penis inflamed SIGNIFICANT INTERNAL FINDINGS: no significant internal findings CAUSE OF DEATH: GUN SHOT WOUND, HEAD.[7] The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for their firearms.[8] Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.
[9]

[10]

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modestos house. He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics. Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in worker. Sally Asuncion corroborated Leons alibi. She testified that Leon Delim never went home to his hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January 1998 up to February 1999.[11] Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City. The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion of the trial courts decision reads: WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of

P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of promulgation. The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision. SO ORDERED.[12] The trial court appreciated treachery as a qualifying circumstance and of taking advantage of superior strength, nighttime and use of unlicensed firearms as separate of aggravating circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging that: I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR. III THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI.[13] Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged in the Information is murder or kidnapping. During the deliberation, some distinguished members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form in light of the allegation therein that the accused willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto Delim from helping the latter. They submit that the foregoing allegation constitutes the act of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the Information went further to charge accused with the killing of the victim should be of no moment, the real nature of the criminal charge being determined not from the caption or the preamble of the Information nor from the specification of the law alleged to have been violated these being conclusions of law but by the actual recital of facts in the complaint or information. They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim. It bears stressing that in determining what crime is charged in an information, the material inculpatory facts recited therein describing the crime charged in relation to the penal law violated are controlling. Where the specific intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the information and proved by the prosecution. A decade ago, this Court held in People v. Isabelo Puno, et al.,[14] that for kidnapping to exist, there must be indubitable proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and not where such

restraint of his freedom of action is merely an incident in the commission of another offense primarily intended by the malefactor. This Court further held: x x x. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims liberty does not constitute kidnapping or serious illegal detention.[15] If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victims liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of the victim.[16] The crime committed would either be homicide or murder. What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with--that of murder or kidnapping. Philippine and American penal laws have a common thread on the concept of specific intent as an essential element of specific intent crimes. Specific intent is used to describe a state of mind which exists where circumstances indicate that an offender actively desired certain criminal consequences or objectively desired a specific result to follow his act or failure to act.[17] Specific intent involves a state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific intent must be alleged in the Information and proved by the state in a prosecution for a crime requiring specific intent.[18] Kidnapping and murder are specific intent crimes. Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from the circumstances of the actions of the accused as established by the evidence on record.[19] Specific intent is not synonymous with motive. Motive generally is referred to as the reason which prompts the accused to engage in a particular criminal activity. Motive is not an essential element of a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for the commission of the offense charged does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder. [20] The history of crimes shows that murders are generally committed from motives comparatively trivial.[21] Crime is rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping.[22] In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a loved one, the motive is revenge. In this case, it is evident on the face of the Information that the specific intent of the malefactors in barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to kidnapping.[23] Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268 thereof.

The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder. In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused. The proof against the accused must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.[24] In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendants agency in the commission of the act.[25] Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of crimes.[26] In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death.[27] To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.[28] In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,[29] defensive in nature. The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing of the victim as well as the nature, number and location of the wounds sustained by said victim are evidence of the intent by the malefactors to kill the victim with all the consequences flowing therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v. State:[31] This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise. The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.[32] What was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites concur:

x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.[33] The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of accused for the offense charged. [34] For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. [35] If the prosecution adduced the requisite circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution. In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill Modesto: 1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then seized Modesto and herded him out of his house: FISCAL TOMBOC: What were you doing then at that time in your house? A Q A Q A Q A Q A Q A Q A Q A We were eating, sir. You said we, who were your companions eating then at that time? My father, my mother and the two children and myself, sir. While taking your supper that time, do you recall if there was anything unusual that happened at that time? When we were about to start to eat three armed men entered our house. Do you know these three armed men who entered your house? Yes, sir. Who are they, name them one by one? Marlon Delim, Robert Delim and Ronald Delim. Are these three persons inside the courtroom now? Two of them, sir. Who are these two who are inside the courtroom? Marlon and Ronald, sir. Will you please stand up and point to them? (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench inside the courtroom, who, when his name was asked he answered Ronald Delim). You said that these two armed persons entered your house, what kind of arm were they carrying at that time?

A Q

Short handgun, sir. When these three armed persons whom you have mentioned, armed with short firearms, what did they do then when they entered your house? They took my father, sir. Who took your father? Marlon Delim, Robert Delim and Ronald Delim, sir. When these three persons took your father, what did you do then? None, sir. They poked a gun and brought him outside the house, sir. Marlon Delim, sir. Again, Mr. Witness, will you point to the person who poked a gun? (Witness is pointing to Malon (sic) Delim, one of the accused). After bringing your father out from your house, what transpired next? Manuel Delim and Leon Delim said, Stay in your house, and guarded us. Marlon, Robert and Ronald, sir. I do not know where they brought my father, sir. Inside our house, sir. You said that Marlon poked a gun at your father, is that correct? Yes, sir. What did Ronald and Robert do while Marlon was poking his gun to your father? Ronald and Robert were the ones who pulled my father out, sir.[36]

A Q A Q A A A Q A Q A

COURT: How did they get your father? FISCAL TOMBOC: Who poked a gun?

COURT: You said your father was taken out, who? A A A Q A Q A FISCAL TOMBOC: Where did these three persons bring your father? COURT: Was your father taken inside your house or outside?

Randys account of the incident was corroborated by his mother, Rita, who testified: PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while preparing for your supper three (3) armed men entered inside your house, who were these three (3) men who entered your house? A I know, Marlon, Bongbong and Robert, sir. ATTY. FLORENDO: We just make of record that the witness is taking her time to answer, Your Honor.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three (3) persons who entered your house in Court now? A Q A Q A Q A They are here except the other one, sir. Will you please step down and point to the persons who entered your house? Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim. After these three (3) armed men entered your house, what happened then? My husband was brought out, sir. What is the name of your husband? Modesto Delim, sir.[37]

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun, acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat until 7:00 a.m. of the next day: FISCAL TOMBOC: When your father was pulled out from your house by these three persons, what did you and your mother do while these three persons were taking out of your house? A A We did not do anything because Manuel and Leon Delim guarded us. Yes, sir. COURT: Where, in your house? FISCAL TOMBOC: From that very time that your father was pulled out by these three persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then? A A They were at the door, sir. Because they were at the door, sir. COURT: Why do you know that they were guarding you? FISCAL TOMBOC: What was their appearance that time when these two persons were guarding you, these Leon and Manuel? A Q A Q A Q A Q A Q They were armed, sir. What do you mean by armed? They have gun, sir. What kind of firearm? Short firearm, sir. By the way, where are these Leon and Manuel now, if you know? Leon is here, sir. About Manuel? None, sir. Will you please stand up and point at Leon, Mr. Witness?

(Witness pointed to a person seated on the bench inside the courtroom, who when his name was asked, answered, Leon Delim).[38]

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from their relatives and police authorities. 4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was found under the thick bushes in a grassy area in the housing project located about 200 meters away from the house of Modesto. The cadaver exuded bad odor and was already in the state of decomposition: Q So what did you do then on January 27, where did you look for your father? A The same place and at 3:00 oclock P.M., we were able to find my father. At the housing project at Paldit, Sison, Pangasinan, sir.

COURT: Where? A FISCAL TOMBOC: Do you have companions at that time when you were able to look for your father on January 27, 1999 at 3:00 oclock P.M.? A Q A Q A Q A A Yes, sir. Who? My Aunt, sir. What is the name of your Aunt? Nida Pucal, sir. Who else? Pepito Pucal, Bernard Osias and Daniel Delim, sir. He was dead, sir.

COURT: When you found your father, what was his condition? COURT: Go ahead. FISCAL TOMBOC: You said that he was already dead, what was his appearance then when you saw him dead? A He has bad odor, sir, in the state of decompsition (sic).[39] The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive wounds on the left arm and forearm: PROS. TOMBOC: Q A Will you please tell the Honorable Court your findings, Doctora? First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities are flexed and both lower extremities are flexed (Nakakukot). WITNESS:

10

Q A Q A

How many days had already elapsed when you autopsied the cadaver of the victim, Doctora? Four (4) days upon the recovery of the body, sir. And what was your findings Doctora? The body was already under the state of decomposition, sir, with foul odor and there were so many worms coming out from the injuries, there were tiny white worms, sir. What else did you observe Doctora? Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an igorot (sic) and they have tradition that they will bury immediately. Whether they like it or not I should do it, sir. What else Doctora? And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

Q A

Q A

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit. Q A So there were two (2) gunshot wounds (GSW) Doctora? Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx). Q A How many all in all are the gunshot wound? Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm. Q A Q A How many stabbed wound are there Doctora? There were seven (7) stabbed wounds, sir. Those stabbed wounds were defensive wounds, Doctora? Yes sir.[40]

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the distention of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and that the victim had been dead for a period ranging from three to six days.[41] Admittedly, there are variant factors determinative of the exact death of the victim. An equally persuasive authority states: Chronological Sequence of Putrefactive Changes Occurring in Tropical Region: Time Since Death Condition of the Body 48 hours Ova of flies seen. Trunk bloated. Face discolored and swollen. Blisters present. Moving maggots seen.

11

72 hours nails loose.

Whole body grossly swollen and disfigured. Hair and Tissues soft and discolored.[42]

The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of the contention of the prosecution that the victim was killed precisely by the very malefactors who seized him on January 23, 1999. 5. When police authorities went to the residences of all the malefactors, the latter had flown the coop and were nowhere to be found: COURT: In connection with this case, you investigated the wife and son of Modesto Delim? A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Yes, sir. In the course of the investigation did you come to know who were the suspects? Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers, sir. What are the names of the brothers? Manuel Delim, Leon Delim I cannot remember the others, sir. By reason of that information were you able to apprehend any of them for investigation? No, sir. Why? Because when we were dispatched by the Chief of Police no Delim brothers could be found, they all left the place, sir. In what place did you look for the brothers Delim? Within the vicinity, sir. In what place? Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the cadaver was found in Paldit, sir. Where did you look for the Delim brothers? Nearby barangays, Immalog, sir. Wherelse (sic)? Labayog, Sison, sir. Wherelse? In mountainous part of Immalog, part of Tuba Benguet, sir. What was the result? Negative result, sir.[43]

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of Modesto and Rita:

12

COURT: These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999? A Q A Q A Q A Q Yes, sir, I know them. Why do you know Manuel and Leon prior to January 23, 1999? They are my neighbors, sir. How about Marlon, Robert and Bongbong do you know them before January 23, 1999? I know them, sir. Why do you know them? They used to go to our house, sir. I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husbands name is Modesto Delim are they related with each other? Yes, sir.[44]

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the commission of an offense does not create a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact, killed Modesto.[45] It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on the other before the incident, or any motivation on the part of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon, Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all.[46] In this case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took Modesto from his house at the gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of Modesto was found concealed under the bushes and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and died because of a gunshot wound on the head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt, the act itself furnishes the evidence, that to its perpetration there was some causes or influences moving the mind.[47] The remarkable tapestry intricately woven by the prosecution should not be trashed simply because the malefactors had no motive to kill Modesto. Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and Leon to rebut the same and explain what happened to the victim after taking him from his house in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the victim may have been able to escape and that thereafter a person or some other persons may have killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied having seized and killed the victim and interposed alibi as their defense.

13

Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the victim. There is conspiracy when two or more persons agree to commit a felony and decide to commit it.[48] Conspiracy must be proven with the same quantum of evidence as the felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and after the commission of the crime which are indicative of a joint purpose, concerted action and concurrence of sentiment.[49] To establish conspiracy, it is not essential that there be proof as to the existence of a previous agreement to commit a crime.[50] It is sufficient if, at the time of the commission of the crime, the accused had the same purpose and were united in its execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who among the accused actually shot and killed the victim.[51] This is based on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan: x x x The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts and declarations of his principal. What is so done by an agent, is done by the principal through him, as his mere instrument. Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design, he does as the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710.[52] In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declaration of each, while in the pursuit of the common design, are the acts, words and declarations of all.[53] In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized and executed with precision evincing a preconceived plan or design of all the malefactors to achieve a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime were (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent them from seeking assistance from police authorities and their relatives before their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty of the killing of Modesto. [55] Leon may not have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a principal by direct participation.[56] If part of a crime has been committed in one place and part in another, each person concerned in the commission of either part is liable as principal. No matter how wide may be the separation of the conspirators, if they are all engaged in a common plan for the execution of a felony and all take their part in furtherance of the common design, all are liable as principals. Actual presence is not necessary if there is a direct connection between the actor and the crime. [57] Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were marred by inconsistencies:

14

1. Randy initially stated that he did not know where the assailants brought his father. Later however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan; 2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their house. She later changed her testimony and declared that it was Robert, together with Marlon and Ronald who barged into the house; 3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified that after the three men brought out the victim, the two other accused entered the house and guarded them there; 4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and she was accompanied by her son Randy. However, Randy testified that he was alone when he looked for his father from January 24 to 26, 1999.[58] We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial court, its calibration of the collective testimonies of witnesses and its assessment of the probative weight thereof and its conclusions culled from its findings are accorded by the appellate court great respect, if not conclusive effect, because of its unique advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they give their testimonies before the court. In the present case, the trial court gave credence and full probative weight to the testimonies of the witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were moved by any improper or ill motive in testifying against the malefactors and the other accused; hence, their testimonies must be given full credit and probative weight. [59] The inconsistencies in the testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative weight. It must be borne in mind that human memory is not as unerring as a photograph and a persons sense of observation is impaired by many factors including the shocking effect of a crime. A truth-telling witness is not always expected to give an error-free testimony considering the lapse of time and the treachery of human memory. What is primordial is that the mass of testimony jibes on material points, the slight clashing of statements dilute neither the witnesses credibility nor the veracity of his testimony.[60] Variations on the testimony of witnesses on the same side with respect to minor, collateral or incidental matters do not impair the weight of their united testimony to the prominent facts.[61] Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony.[62] Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and the true meaning of answers to isolated questions propounded to a witness is to be ascertained by due consideration of all the questions propounded to the witness and his answers thereto.[63] Randys testimony that he did know where the malefactors brought his father is not inconsistent with his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of accused-appellants but he saw the direction to which they went. While it may be true that when asked to identify the three who barged into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout her testimony that those who barged into their house were Ronald and Marlon. Leons counsel never cross-examined Rita and impeached her testimony on her identification of Leon as one of those who barged into their house to give her an

15

opportunity to explain her perceived inconsistency conformably with Rule 132, Section 13 of the Revised Rules of Evidence which reads: Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.[64] Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired impeachment of her.[65] As to whether Rita and Randy were together in looking for Modesto or Leon merely stood guard by the door of the house or entered the house are inconsequential. The fact is that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for the seizure and killing of Modesto. This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with consistency upon material details that could only come from a firsthand knowledge of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to disregard the findings of the trial court regarding their credibility. Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving credence and probative weight to their evidence to prove their defense of alibi. They aver that their collective evidence to prove their defense is strong. We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal prosecution because the same is easy to concoct between relatives, friends and even those not related to the offender. [66] It is hard for the prosecution to disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing evidence that they were in a place other than the situs criminis at the time of the commission of the crime; that it was physically impossible for them to have committed the said crime.[67] They failed to discharge their burden. Moreover, Rita and Randy positively and spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was committed, was only two kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City does not constitute proof that he was in Laoag City on the day of the commission of the crime. With respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on January 29, 1999. The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior strength and the use of unlicensed firearms as separate aggravating circumstances. The Office of the Solicitor General contends that indeed treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248 of the Revised Penal Code. The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and penalized by Article 248 of the Revised Penal Code. Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere

16

conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime.[68] As this Court held: No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant.[69] Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted.[70] Although the victim may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated against the accused.[71] In this case, the victim was defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of proportion to the means of defense available to the person attacked. [72] What is primordial, this Court held in People v. Rogelio Francisco[73] is that the assailants deliberately took advantage of their combined strength in order to consummate the crime. It is necessary to show that the malefactors cooperated in such a way as to secure advantage from their superiority in strength.[74] In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three took advantage of their numerical superioty and their handguns when Modesto was shot and stabbed.[75] In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period. Although the special aggravating circumstance of the use of unlicensed firearms was proven during the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD1866 as amended by Republic Act No. 8294, or as a special aggravating circumstance in the felony of homicide or murder.[76] Neither can dwelling, although proven, aggravate the crime because said circumstance was not alleged in the Information as required by Rule 110, Section 8 of the Revised Rules of Court. [77] Although this rule took effect on December 1, 2000, after the commission of the offense in this case, nonetheless it had been given retroactive effect considering that the rule is favorable to the accused.[78] There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which shall be taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months. Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum of P75,000.00 awarded as moral damages should be reduced toP50,000.00 in accordance with prevailing jurisprudence.[79] The amount

17

of P25,000.00 as exemplary damages is in order. [80] In addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof, likewise in consonance with prevailing jurisprudence.[81] IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal Code. There being no modifying circumstances in the commission of the crime, each of accusedappellants is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of P25,000.00 by way of exemplary damages. SO ORDERED. --EDUARDO P. MANUEL vs PEOPLE OF THE PHILIPPINES, DECISION CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa]. CONTRARY TO LAW.
[3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.[4] He met the private complainant Tina B.

18

Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] marriage contract that Eduardo was single. The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8] For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged withestafa in 1975 and thereafter imprisoned. He visited her in jail after three It appeared in their

19

months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9] The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12] The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,
[14]

the OSG further posited that as provided in Article 41 of the Family Code, there is

a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity

20

of the marriage; the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainants knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. prosecution was able to prove all the elements of bigamy. It ruled that the Contrary to the

contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision isAFFIRMED in all other respects. SO ORDERED.[17] Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18] The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead

21

under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a GRO before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.[19]

22

The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy.[21] For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.[23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.
[24]

On the other hand, Cuello Calon is of the view that there are only two elements

of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled

23

in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same Viada and declared that there are three (3) elements of bigamy: the felony of the act.[28] He explained that: This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.[29] view as (1) an

undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.[30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word voluntary.[31] Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.[33] Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34] For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

24

In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.[36] The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law. [37] The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive

25

nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.
[39]

Only with such proof can marriage be treated as so dissolved as to permit

second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,
[41]

namely, a judgment of the presumptive death of the absent spouse. The petitioners sole reliance on Article 390 of the Civil Code as basis for his

acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

26

(1)

A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration. [42] However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43] With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46] In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code.

27

The Court rejects petitioners contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse.

28

In Lukban v. Republic of the Philippines,[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.[53] A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56] The Committee tasked to prepare the Family Code proposed the

amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead. [57] Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy

29

if the absentee spouse reappears, he cannot be convicted of the crime. explained by former Justice Alicia Sempio-Diy: Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latters reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.[58]

As

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of

30

remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59] According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.[60] Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.[61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62] On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,
[63]

where an award of moral damages for bigamy was disallowed. In any case, the

petitioner maintains, the private complainant failed to adduce evidence to prove moral damages.

31

The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.[64] The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.[65] An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66] Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) (2) (3) (4) A criminal offense resulting in physical injuries; Quasi-delicts causing physical injuries; Seduction, abduction, rape, or other lascivious acts; Adultery or concubinage;

32

(5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68] Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[69] Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a

33

manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[70] If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. The latter provision is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.[71] In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72] The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any

34

physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference with the jurys reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div. [74] 1955). The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from claiming moral damages. in Jekshewitz v. Groswald:[75] Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her Besides, even As held considerations of public policy would not prevent her from recovery.

35

damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendants misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendants fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendants misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable. 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. --PEOPLE OF THE PHILIPPINES, appellee, vs. FELIPE ESPONILLA and SAMSON ESPONILLA, appellants. DECISION CALLEJO, SR., J.: This is an appeal by appellants Felipe Esponilla and Samson Esponilla from the Decision[1] of the Regional Trial Court (RTC) of Iloilo City, Branch 39, in Criminal Case No. 36890 convicting them of murder and sentencing each of them to reclusion perpetua. In the Information dated October 15, 1991, the appellants were charged with murder committed as follows: INFORMATION

36

The Provincial Prosecutor of Iloilo, through the undersigned, accuses FELIPE ESPONILLA and SAMSON ESPONILLA of the crime of MURDER, committed as follows: That on or about the 28th day of June, 1991, in the Municipality of Igbaras, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another to better realize their purpose, armed with a firearms (sic) of unknown Caliber, with deliberate intent and decided purpose to kill and with treachery and/or evident premeditation, did then and there wilfully, unlawfully and feloniously assault, attack and shoot Jose Eumag with the firearms with which they were then provided, thereby hitting and inflicting upon the latter gun shot wounds on the different parts of his body which caused his death immediately thereafter. CONTRARY TO LAW.[2] At their arraignment, the appellants, with the assistance of their counsel, pleaded not guilty to the charge.

The Evidence of the Prosecution[3] Spouses Jose Eumag, 61 years old,[4] and Enriqueta Eumag, 69 years old, lived in their farm at the outskirts of Barangay Igtalongon, Igbaras, Iloilo,[5] about a kilometer away from the farm of Felipe Esponilla and his brother Samson Esponilla at Barangay Pinaopawan, Igbaras, Iloilo. The Spouses Eumag and the Esponilla brothers had known each other for a long time. Felipe in particular used to pass by the house of the Eumags and had borrowed money from Jose.[6] The Eumags had known Samson, Felipes brother, since his childhood.[7] But neighborliness metamorphosed into resentment when Jose testified against Dionisio Esponilla, a first cousin of Felipe and Samson, in an arson case filed by Gerardo Eumag,[8] a brother of Jose. While the case was pending trial, Dionisio was detained at the Municipal Jail of Igbaras[9] where he committed suicide on February 5, 1989. Consequently, the case was dismissed. On September 14, 1989, Jose was shot on his right thigh but he survived. Felipe and Samson were charged with frustrated murder in an Information filed in the RTC, Iloilo City, Branch 36, docketed as Criminal Case No. 34297, for the shooting of Jose.[10] As of June 1991, the trial was ongoing. On June 28, 1991, at about 9:30 a.m., Spouses Jose and Enriqueta were in their rice field, which was about nine hundred meters away from their house, for another days work of farming.[11] Jose was plowing the field with his carabao while Enriqueta, who was about four arms length away from her husband, was cutting the grasses. Felipe, Joses brother, was threshing palay in his farm about one hundred arms length from where Jose and Enriqueta were. Suddenly, Enriqueta heard a gunshot. She saw her husband fall to the ground, face down. She instinctively looked at the direction from where the gunshot rang out and saw Felipe and Samson beside the dike, about seven meters away from Jose, each holding a firearm still aimed at the victim. She rushed to her husband and helped him stand up, to no avail. She shouted for help. Felipe and Samson backtracked and hurriedly ran away.[12] Enriqueta frantically waved to Felix, shouting that Jose had been shot. Felix rushed to where Enriqueta was and was aghast to see his brother Jose bloodied all over. Felix and Enriqueta carried Jose to a drier portion of the rice field. [13] By then, Jose was already dead. They decided to bring the victims body to the poblacion for autopsy.[14] Felipe rushed to the Igbaras Police Station and reported the incident. His report was entered by SPO2 Antonio G. Emboltorio in the police blotter.[15] At 12:00 noon, Dr. Priscilla C. Gallo, Medical Officer of Igbaras, Iloilo,

37

conducted a post-mortem examination of the cadaver of the victim and made the following findings: Post-Mortem Examination Name : JOSE EUMAG Y MORALES Age : 61 years old Sex : Male C.S. : Married Address : Sitio Tarugan, Brgy. Igtalongon, Igbaras, Iloilo Occupation : Farmer Nature of Incident : Shooting Date of Incident : June 28, 1991 Time of Incident : 9:30 A.M. Place of Incident : Brgy. Igtalongon, Igbaras, Iloilo Place of Autopsy : Igbaras, Iloilo Date of Autopsy : June 28, 1991 Time of Autopsy : 12:05 p.m. Post-mortem examination done by: Dr. Priscilla C. Gallo Medical Officer Igbaras, Iloilo Informant: Enriqueta M. Eumag Wife Findings: Victim wearing maong pants, blue black T-shirt and maroon/white stripped (sic) polo shirt Trunk: Gunshot wound, entrance 5 cm. above the right pelvic rim, 10 mm in size, midscapular line right with multiple exit. Gunshot wound entrance, right upper outer quadrant of right buttocks Fracture of the right hipbone noted Cause of death: Cardio-Pulmonary Arrest Severe Hemorrhage secondary to gunshot wounds (SGD.) PRISCILLA C. GALLO, M.D. Medical Officer Igbaras, Iloilo.[16] Dr. Gallo found two gunshot entrance wounds at the right portion of the pelvic bone, each wound about two inches apart. The first entrance wound had multiple exits at the abdominal area, while the second entrance wound had no exit wound. She recovered two pellets at the upper outer quadrant of the buttock. According to Dr. Gallos report, two wounds could have been caused by a single shotgun blast.[17] Joses wake lasted for almost a month.[18] He was finally laid to rest on July 25, 1991.[19] Enriqueta testified that when her husband was still alive, he earned at least ten cavans ofpalay per cropping. During the extended wake, she spent at least P80,200: P7,500 for funeral services and burial expenses, P600 for religious services, and P72,100 for food and other expenses.[20] All expenses were, however, unreceipted.[21] During the trial, Felipe pleaded on many occasions to Enriqueta for her to agree to settle the case amicably, and offered to pay her P6,000; but Enriqueta declined.

38

[22]

Felipe and Samsons mother also offered to settle the case amicably but Enriqueta was adamant and rejected the offer outright.

The Defenses of the Accused Felipe and Samson interposed twin defenses of denial and alibi.[23] Felipe testified that he was a farmer who lived in his farm located right at the middle of the boundary of Barangays Tigbanaba and Pinaopawan, Igbaras, Iloilo. [24] He denied shooting Jose. While he admitted that he was not in good terms with the Eumags, Felipe stated that he and his brother Samson, who was at that time in a distant Barangay Anono-o, Guimbal, Iloilo, could not have harmed Jose because if they did, the incident would definitely be attributed to them, considering their strained relationship with the Eumags. Felipe claimed that the charge against them was but a concoction of Enriqueta for refusing her demand of P10,000 for the settlement of the frustrated murder case filed by Jose against them.[25] Felipe testified that in the morning of June 28, 1991, he was busy at work in his farm the whole day. He went to the nearby farm of Santiago Flores, the President of the Communal Irrigation System and NIA water master, and asked permission to irrigate his farm. He also asked Santiago to help him clear his farm. Santiago agreed. The two cleared and cleaned the two-kilometer irrigation canal for two hours. At about 10:30 a.m., they went back to the farm of Santiago and took a respite. Thereafter, Felipe checked the flow of the canal and returned to his farm. He took his lunch at his nearby house. He then continued on working the canal and at 6:00 p.m., he called it a day.[26] Felipes neighbor Santiago Flores, a relative of the victim and a kagawad of Barangay Tigbanaba, corroborated his alibi. He testified that he was with Felipe irrigating the latters farm the whole day on June 28, 1991. He testified that at about 7:30 a.m. that day, he was seeding the farm when Felipe arrived and sought his assistance to irrigate his rice field. Santiago obliged and, after thirty minutes, the two went to his house and ate breakfast. Thereupon, the two proceeded to the main irrigation canal and cleared and cleaned it. They diverted the flow of the water towards the rice field of Felipe. The two returned to Santiagos farm at about 10:30 a.m., after which they parted ways.[27] Santiago said that he was persuaded by Felipe and Samsons parents to testify[28] and that at no time did he attend the wake of his deceased nephew.[29] Samson, for his part, likewise denied any involvement in the killing of Jose. He testified that on June 23, 1991, he was at Delfin Estaols poultry farm at Barangay Anono-o, Guimbal, Iloilo, and left the farm only on June 28, 1991. It was impossible for him to have killed Jose, as he was fifteen kilometers away from where the killing took place. He never left Delfins farm until he was picked up by five policemen on June 29, 1991 who brought him to Igbaras for investigation. After the investigation, he proceeded to Pinaopawan and helped his father in his farm. When he learned from his brother Felipe that a warrant of arrest had been issued against them, Samson immediately went to the police station and surrendered himself.[30] He and his brother Felipe bore no grudge against Jose despite what had happened to their cousin Dionisio.[31] Delfin Estaol corroborated appellant Samsons alibi. Delfin said that he had engaged the services of Samson on May 5, 1991 as helper in his poultry. As helper, Samson received P400 per month plus free board and lodging. From that day on until June 29, 1991, Samson had been staying in his place, taking care of his 500 chickens. Delfin averred that at no time did Samson leave his place much less on June 28, 1991. On June 29, 1991, Samson was arrested and stopped working for

39

Delfin.[32] When Delfin confronted Enriqueta about Samsons arrest, she replied that she lodged the charge against Samson and Felipe for refusing to pay her.[33] Roque Emague testified that at the time of the shooting, he was at the nearby farm of Mario Eurolfan[34] grazing his four goats. He was about ten arms length away from Jose whom he noticed to be all alone. As he was untangling the ropes of his goats that got intertwined, Roque heard a shot and simultaneously noticed a person whom he did not know, shoot Jose at point blank range with a shotgun. Afraid for his life, Roque hid. When he saw the assailant walk towards the creek en route to the mountains, Roque dashed home. Roque described the assassin as tall, small-built, with white complexion, and in his mid-thirties. He said that he never saw Felipe and Samson or Aquilino within the vicinity.[35] Aquilino Estremera, for his part, testified that at about 9:00 a.m. of June 28, 1991, he was walking along Barangay Igtalongon on his way to his cousin, Juanito Espinosa. As he passed by the farm of the Eumags, he saw Roque tying his goats. Suddenly, a man whom he saw for the very first time shot Jose. He was about ten arms length away from the victim. Aquilino ran, but stopped and looked back. He saw the assassin flee to the mountains. He also saw Roque scampering. Aquilino described the assailant as tall, skinny, with curly hair, and fair in complexion. He added that he never noticed Enriqueta at the crime scene.[36] On October 28, 1994, the trial court convicted Felipe and Samson of murder, qualified by treachery. The dispositive portion of the decision reads: WHEREFORE, premises considered, the accused Felipe Esponilla and Samson Esponilla are hereby found guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Art. 248 of the Revised Penal Code and there being no mitigating or aggravating circumstance, is hereby sentenced to suffer the penalty of reclusion perpetua. The accused are further ordered to pay jointly and severally actual damages to the wife of the deceased the total amount of P40,000, and to his legal heirs, the amount of P50,000 for his wrongful death,P30,000 as moral damages and the costs. The accused Samson Esponilla who is detained is credited with the number of days he spent under detention if he is qualified, otherwise, he shall be credited only with four-fifths (4/5) of his preventive imprisonment. Pursuant to the case of People vs. Ricardo C. Cortez, G.R. No. 92560, October 15, 1991, the bail bond put up by the accused Felipe Esponilla is cancelled and said accused is hereby ordered detained at the Iloilo Rehabilitation Center, to be transmitted to the National Penetentiary (sic) or Bureau of Corrections in Muntinlupa, Metro Manila, together with the other accused Samson Esponilla, even if they appeal. SO ORDERED.[37] The trial court ruled that the prosecution mustered the requisite quantum of evidence to prove their guilt of the crime charged. It held that although the prosecution failed to prove who between the two shot Jose, nevertheless, the prosecution proved that Felipe and Samson conspired to kill Jose, and that one of them shot Jose to death. The court concluded that both of them are liable for the death of Jose.[38] The trial court said that the appellants failed to prove their twin defenses of denial and alibi. It ratiocinated that it was not physically impossible for the appellants to be at the scene of the crime at the time of the commission thereof. It took into consideration the geographical proximity of the places where the appellants alleged they were at the time. Besides, according to the trial court, alibi crumbles upon positive identification.[39]

40

In their brief, Felipe and Samson, now the appellants, assert that: I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF MURDER BASED ON ONE CIRCUMSTANTIAL EVIDENCE II GRANTING FOR THE SAKE OF ARGUMENT THAT ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN FINDING A CASE OF MURDER AND NOT HOMICIDE[40] On the first assignment of errors, the appellants assert that the prosecution failed to present any eyewitness to the actual killing of the victim. The testimony of Enriqueta does not constitute circumstantial evidence sufficient to establish their guilt beyond reasonable doubt. It would be the height of folly for them to have remained at the situs criminis, still toting their guns after one of them had already fired a shot, knowing that it was broad daylight, and Enriqueta could have easily seen and identified them, thus ensuring their prosecution and conviction. The Office of the Solicitor General (OSG), for its part, contends that the prosecution had adduced a chain of circumstantial evidence sufficient to establish the culpability for the death of Jose: i. On June 28, 1993 at around 9:30 a.m., Jose Eumag was plowing his ricefield while his wife Enriqueta was pulling weeds or grasses; ii. Suddenly, a gunshot was fired which hit Jose and caused him to fall on the ground face down; iii. Enriqueta shouted for help; looked at the place where the gunshot came from; and, saw the appellants Felipe and Samson still pointing their guns on her fallen husband Jose; iv. Immediately after Enriqueta saw the appellants still pointing their guns at her fallen husband, appellants Felipe and Samson ran away. The combination of all the abovementioned circumstances produces the needed proof beyond reasonable doubt that indeed the appellants are guilty of killing their victim Jose. Said circumstances are further corroborated by the testimony of prosecution witness Dra. Priscilla C. Gallo to the effect that the victim Jose suffered two (2) gunshot wounds caused by one (1) gunshot blast (tsn., Dra. Priscilla C. Gallo, April 20, 1992, p. 26). It is to be observed that the testimony of prosecution witness Enriqueta as to the circumstances surrounding the shooting of her husband Jose to death by the appellants was direct, clear and straight-forward. Besides, no motive on the part of prosecution witness Enriqueta to falsely testify against the appellants was established (People v. Laurora, 211 SCRA 202; People v. Bechayda, 212 SCRA 336).[41] The Court agrees with the ruminations of the OSG. It is not absurd for the appellants to have committed the crime in broad daylight and brazenly tarry before fleeing from the situs criminis. Such devil-may-care attitude is not uncommon for criminals. Indeed, some criminals intentionally reveal their identities to witnesses to sow fear in them, and demonstrate defiance of the law. In this case, the appellants killed Jose in broad daylight in full view of Enriqueta. The appellants wanted Enriqueta to know that they and no one else killed Jose for testifying against

41

Dionisio and for charging them for frustrated murder. Even as Jose was already mortally wounded, the appellants still pointed their guns at Jose and made it clear to Enriqueta that they had shot Jose. Jose may have survived when he was shot on September 14, 1989; they saw to it that Jose will not survive the second time around. Admittedly, Enriqueta Eumag did not actually see any of the appellants shoot her husband. Nonetheless, direct evidence is not a condition sine qua non for the conviction of an accused. Direct evidence of the commission of a crime and the perpetrators thereof is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.[42] Under the Rules of Court[43] and pursuant to settled jurisprudence, conviction may be had even on circumstantial evidence provided three requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. For circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.[44] Wharton suggests four basic guidelines in the appreciation of circumstantial evidence, to wit: (1) it should be acted upon with caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must exclude every other theory but that of guilt; and (4) the facts must establish such a certainty of guilt of the accused as to convince the judgment beyond a reasonable doubt that the accused is the one who committed the offense.[45] The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like a puzzle which, when put together, reveals a remarkable picture pointing towards the conclusion that the accused is the author of the crime.[46] In this case, the prosecution adduced sufficient testimony and physical evidence, albeit circumstantial, to prove that indeed the appellants killed the victim. First. Enriqueta narrated the lurid details of how the appellants killed the victim in broad daylight at a relatively close range: FISCAL BARRIOS: Q A Q A Q A Q In the morning of June 28, 1991, about 9:30 oclock more or less, can you still recall where were you? I was at the farm. Do you have companion when you said you were in your farm that morning of about 9:30 oclock of June 28, 1991? My husband, who is plowing our farm at that time. Where is that farm of yours located, what barangay? At Barangay Igtalongon. You said you were together with your husband who was then plowing your farm or field, can you tell the Court how far were you at your husband at that particular time of June 28, 1991? About four arms length. Now, where were you sitting in relation to your husband who was then . I withdraw the question.

A Q

42

Q A Q A Q A Q A Q A Q A Q

Now in relation to your husband, who was then plowing the field, where were you situated? I was at the right side. And while you were at the right side, what were you doing then at that particular time? I was pulling grasses. And at that particular moment, about four arms length to the right side of your husband, was there any unusual incident that happened? I heard a shot. And what happened when you heard a shot? My husband fell down on his stomach. How many shots did you hear? One. And when you saw your husband fell down on the ground on his stomach, what else happened or what did you do? I tried to help my husband and I was shouting for help. Before you went to your husband to let him stand and before you shouted for help, did you see anybody within the premises where your husband fell? Felipe and Samson Esponilla. Where were they in relation to your husband before your husband fell? At the side of the dike at the back of my husband. At the side of what?

A Q A

COURT: WITNESS ANSWER: At the side of the dike at the back of my husband. FISCAL BARRIOS: When you saw these Samson and Felipe Esponilla to the direction or rather at the back towards the direction at the back of your husband, what were they doing? A Q A Q A Q A I saw them pointing their gun to my husband. Who was holding the firearm? Two of them. When you saw them still pointing their firearms, your husband had already fallen on the ground? Yes, sir. How far were they from your husband from the place where your husband was, when you saw them still pointing with their firearms? Five arms length.

43

Now, when you saw them still pointing their firearm, your husband had already fallen on the ground, to whom or what direction were they pointing their firearm? At my husband. You said that you then went to your husband to let him stand up and shout for help, can you tell us what did these two accused do when you shouted for help? They run away. To what direction did you see them run away? At the back of my husband.[47]

A Q

A Q A

Second. Enriqueta testified that aside from her, there was no other person in the periphery where her husband was shot: Q Immediately before and after your husband was shot to death by the two accused, Felix and Samson Esponilla, can you tell if there were persons within or near the premises were (sic) you and your husband (were) at the time, aside from the accused Felix and Samson Esponilla? No more, sir. When you look to the direction where you saw the two accused Felipe and Samson Esponilla, you saw them still in the position of pointing their firearm towards your husband, what was or what were their position, were they standing or sitting or squatting? They are standing.[48]

A Q

The trial court concluded that Enriqueta was a credible witness and her testimony entitled to full probative weight. So does this Court. It is the trial court and not this Court that had the opportunity to observe Enriquietas manner of testifying, her furtive glances, her calmness, sighs, or the scant or full realization of her oath.[49] The trial courts assessment of the credibility of witnesses is entitled to respect.[50] After all, it is well-settled that where there is no evidence that the witness against the accused was actuated by any improper motive, and absent any compelling reason to conclude otherwise, her testimony will be given full faith and credit.[51] Third. The prosecution convincingly established that the appellants were driven by a personal grudge against the victim. There was no love lost between the victim and the appellants, who ascribed to Jose the death of their cousin Dionisio. The criminal case for frustrated murder against the appellants for the shooting of Jose was pending in the RTC, Branch 36, Iloilo City. Aside from the appellants, no one was known to harbor a grudge against the victim. Motive is a key element when establishing guilt through circumstantial evidence. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.[52] Fourth. Dr. Priscilla C. Gallo, who conducted the post-mortem examination on Jose, testified that the wounds sustained by the latter could have been caused by a single gunshot blast at the back. This dovetailed with the testimony of Enriqueta that she heard one gunshot and that immediately after Jose was shot, she saw the appellants, each armed with a gun, only seven meters behind Jose.

44

Fifth. When Enriqueta shouted for help, the appellants fled from the situs criminis. Flight is an implied admission of guilt. It betrays a guilty conscience; it is silent yet a resounding admission of guilt.[53] Sixth. Enriqueta testified that appellant Felipe and appellants mother repeatedly offered to settle the case for the appellants to escape prosecution and conviction for the crime charged. The appellants never offered a morsel of evidence to controvert the testimony of Enriqueta. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be amicably settled or compromised, an offer of compromise by the accused is an implied admission of guilt.[54] The above-cited circumstances taken together constitute one unbroken chain leading to the fair and reasonable conclusion that the appellants, to the exclusion of others, shot the victim to death.[55] It does not matter who of the two appellants actually shot Jose. As correctly held by the trial court, the appellants conspired to kill Jose. The act of one is the act of both.[56] Case law has it that conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to establish conspiracy, it being sufficient that the condition attending its commission and the acts executed may be indicative of a common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy has been established.[57] Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime itself. In the absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which the offense was perpetrated or inferred from the acts of the accused themselves, when such acts point to a joint purpose and design, concerted action, and community of interest. Hence, it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other coconspirators.[58] In the case at bar, it was established that the appellants suddenly arrived at the farmland of the victim, each armed with a gun. Even as Jose was shot, both the appellants tarried at the scene, their firearms pointed at the fallen victim, ready to finish him off. They left the situs criminis together after Enriqueta had shouted for help. There is no evidence that one prevented the other from shooting the victim. The acts of the appellants before, during and after the commission of the crime indicated a joint purpose and design, concerted action, and community of interest. If one of the two shot the victim, the other, armed with a lethal weapon, was nonetheless present at the scene of the crime, undoubtedly to lend moral and material assistance to the actual assassin another badge of conspiracy. Thus, the appellants as conspirators are equally liable as the principals for the crime. As the State Supreme Court of Hawaii held: Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.[59]

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It is pointless for the Court to still ascertain who among the appellants shot the victim. The trial court correctly overruled the appellants defenses of denial-alibi. For the defense of alibi to prosper, the defense must establish positive, clear and satisfactory proof that it was physically impossible for the appellants to have been at the scene of the crime at the time of its commission, and not merely that they were somewhere else.[60] Alibi is one of the weakest, if not the weakest, of defenses in criminal prosecution because it is easy to fabricate and difficult to disprove. The appellants barefaced denial of the crime charged which is merely negative and self-serving, cannot prevail over the straightforward, positive and spontaneous testimony of Enriqueta. As regards appellant Felipe, his evidence would indicate that Barangay Tigbanaba, where he allegedly spent the whole day, was only two kilometers away[61] from the scene of the crime and could be negotiated by a trek. [62] The same is true with appellant Samson, Barangay Anono-o, Gimbal, Iloilo, where he was allegedly working as helper for Delfin Estaol, was only less than an hour away from Barangay Igtalongon by jeep.[63] Thus, even if the appellants were respectively seen at these locations, it was not physically impossible for them to have gone to the locus criminis at the time the crime was committed, and thereafter return to the said places. The Court is not impervious to the testimony of appellant Felipe Esponilla, that Enriqueta demanded P10,000 for the settlement of Criminal Case No. 32497 and threatened that if he refused, she will file another criminal case against him: Q According to you, you were not in the farm of Jose Eumag in the morning of June 28, 1991, and you were not also in the company of your brother Samson Esponilla, and furthermore, you said you have not shot Jose Eumag that morning of June 28, 1991, can you tell us if you were in good terms with Enriqueta Eumag on June 28, 1991? No more. Can you tell us the reason why you were not in good terms with Enriqueta Eumag on June 28, 1991? Because she was asking me the amount of Ten Thousand Pesos for the dismissal of the case she filed against me, the case of frustrated homicide, but I told her that I have not done this crime and you have to dismiss it. I told her that it was not true, that she was just daydreaming and she got angry of me. This other case, this frustrated homicide case, in what court is this case pending? In branch 36. When you said that Enriqueta Eumag asked for Ten Thousand Pesos to be paid by you and you refused, can you tell us what did Enriqueta Eumag answer in reply to you? She told me that if I am not going to pay her she will file again an additional case.[64]

A Q A

Q A Q

The Court finds the testimony of the appellant incredible. For one thing, the appellant never claimed in the counter-affidavit he filed with the Office of the Investigating Prosecutor that Enriqueta demanded P10,000.[65] This Court does not believe that Enriqueta, who was 69 years old when the crime was committed, would tergiversate the truth and falsely charge the appellants for murder, a quasi-heinous crime, in consideration of P10,000.

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The Crime Committed by the Appellants On their second assignment of error, the appellants assert that if found guilty, they should only be made liable for the crime of homicide and not for murder. They claim that the prosecution failed to prove the existence of the qualifying circumstance of treachery. The Court does not agree. The trial court correctly appreciated treachery as having qualified the killing of the victim to murder. Treachery is present when the shooting was unexpected and sudden, giving the unarmed victim no chance whatsoever to defend himself. The two conditions for treachery to be present are (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) the offender consciously adopted the particular means, method, or form of attack employed by him.[66] In the case at bar, the victim was shot at the back. Though the Court is not unmindful that a shot at the back of the victims body is not conclusive proof that there was treachery, nonetheless, in this case, the victim was in a wide open field, plowing his farm. The attack was a complete surprise and was unprovoked. There was hardly any risk at all to the appellants. The victim was plowing his farmland, completely impervious that death was at hand. He was unarmed and was not in a position to defend himself against the assault of the appellants. Clearly, he was killed in a treacherous manner. The appellants are therefore guilty of murder, the prescribed penalty for which, under Article 248 of the Revised Penal Code, is reclusion perpetua to death. There being neither mitigating nor aggravating circumstance that attended the killing, the lesser of the two indivisible penalties shall be imposed, i.e., reclusion perpetua, pursuant to Article 63 (2) of the Revised Penal Code.

Civil Liabilities of the Appellants The trial court correctly awarded to the heirs of the victim civil indemnity in the amount of P50,000 which needs no proof other than that of the death of the victim. [67] However, the amount of P30,000 moral damages should be increased to P50,000 in line with prevailing jurisprudence.[68] The Court cannot sustain the award of actual damages in the amount ofP40,000 considering that there were no receipts presented to support them.[69] Nevertheless, the heirs are entitled to temperate damages in the amount of P25,000.[70] Finally, the trial court was correct in not awarding damages for lost earnings. The prosecution merely relied on Enriqueta Eumags self-serving statement, that her husband was earning at least ten cavans of palay per cropping as farmer. Compensation for lost income is in the nature of damages and requires due proof of the amount of the damage suffered. For loss of income due to death, there must be unbiased proof of the deceaseds average income. Also, the award for lost income refers to the net income of the deceased, that is, his total income less his average expenses. In this case, Enriqueta gave only a self-serving testimony of her husbands income. No proof of the victims expenses were adduced; thus, there can be no reliable estimate of his lost income.[71] WHEREFORE, the assailed Decision of the Regional Trial Court, Iloilo City, Branch 39, in Criminal Case No. 36890, is hereby AFFIRMED WITH MODIFICATION. Appellants Felipe Esponilla and Samson Esponilla are ordered, jointly and severally, to pay the heirs of the victim Jose Eumag civil indemnity in the

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amount of P50,000, moral damages in the amount of P50,000, and temperate damages in the amount of P25,000. Costs de oficio. SO ORDERED. --JOY LEE RECUERDO, petitioner, vs. PEOPLE OF THE PHILIPPINES AND THE COURT OF APPEALS, respondents. DECISION CARPIO-MORALES, J.: Before us for review is the July 16, 1997 decision of the Court of Appeals in CAG.R. No. 20577 affirming that rendered by the Regional Trial Court (RTC), Branch 150, Makati City which in turn affirmed that of the Metropolitan Trial Court (MeTC) of Makati City, Branch 67 convicting Joy Lee Recuerdo (petitioner) for violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on 5 counts. From the evidence of the prosecution, the following facts are established: Sometime in the first week of December 1993, Yolanda Floro (Yolanda) who is engaged in jewelry business sold a 3-karat loose diamond stone valued at P420,000.00 to petitioner who gave a downpayment of P40,000.00. In settlement of the balance of the purchase price, petitioner issued 9 postdated checks, 8 of which in the amount of P40,000.00, and 1 in the amount of P20,000.00, all drawn against her account at the Prudential Bank.[1] When Yolanda deposited 8 of the 10 checks to her depository bank, Liberty Savings and Loan Association, only 3, those dated December 25, 1993, January 25, 1994, and February 25, 1994, were cleared. The remaining 5 were dishonored due to the closure of petitioners account.[2] Yolanda thus went to petitioners dental clinic and advised her to change the dishonored checks to cash. Petitioner promised alright but she welshed on it.[3] A demand letter[4] was thereupon sent to petitioner for her to settle her obligation but she failed to heed the same, [5] hence, the filing of 5 informations[6] against her for violation of B. P. 22 at the Makati MeTC, the accusatory portion of the first of which reads: That sometime in the first week of December, 1993, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make out, drawn (sic) and issue to YOLANDA G. FLORO to apply on account or for value the check described below: Check No. - 008789 Drawn Against - Prudential Bank In the Amount of - P40,000.00 Postdated/dated - July 25, 1994 Payable to - Cash said accused well knowing that at the time of issue thereof, said account did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason ACCOUNT CLOSED and despite receipt of notice of such dishonor, the accused failed to pay said payee the face

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amount of said check or to make arrangement for full payment within five (5) banking days after receiving said notice. Except for the check numbers and dates of maturity, the four other informations are similarly worded. After trial, Branch 67 of the Makati MeTC convicted petitioner in a Joint Decision[7] the dispositive portion of which reads: Wherefore, in view of the foregoing, the court finds the accused guilty beyond reasonable doubt of Violation of Batas Pambansa Bilang 22 on five (5) counts and therefore sentences the accused to suffer an imprisonment of 30 days for each count and to restitute the amount of P 200,000.00 to Miss Yolanda G. Floro, which is the total amount of the five (5) checks, and to pay her also the amount of P20,000.00 as damages to compensate the payment of attorneys fees. SO ORDERED.[8]
[9]

As stated early on, the RTC, on appeal, affirmed the decision of the MeTC. And the Court of Appeals[10] affirmed that of the RTC. In the petition for review on certiorari at bar, petitioner proffers as follows:

1. Petitioner was convicted by an invalid law which is Batas Pambansa Blg. 22 for being an unconstitutional law. 2. Petitioner was denied her constitutional right to due process for failure of the courts a quo to uphold her presumption of innocence and for convicting her even if the prosecution evidence does not prove her guilt beyond reasonable doubt. 3. The findings of fact of the courts a quo, primarily the Court of Appeals, are based on surmises, conjectures and speculations. 4. The Court of Appeals was biased against petitioner when it denied the petition moto propio (sic) without the comment of the Office of the Solicitor General.[11] Petitioner contends that since banks are not damaged by the presentment of dishonored checks as they impose a penalty for each, only creditors/payees are unduly favored by the law; that the law is in essence a resurrected form of 19th century imprisonment for debt since the drawer is coerced to pay his debt on threat of imprisonment even if his failure to pay does not arise from malice or fraud or from any criminal intent to cause damage;[12] and that the law is a bill of attainder[13] as it does not leave much room for judicial determination, the guilt of the accused having already been decided by the legislature.[14] These matters subject of petitioners contention have long been settled in the landmark case of Lozano v. Martinez[15] where this Court upheld the constitutionality of B. P. 22: The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punishes the act not as an offense against property, but an offense against public order.[16] (Emphasis supplied) The contention that B. P. 22 is a bill of attainder, one which inflicts punishment without trial and the essence of which is the substitution of a legislative for a judicial determination of guilt,[17] fails. For under B. P. 22, every element of the crime is still to be proven before the trial court to warrant a conviction for violation thereof.

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Reinforcing her thesis, petitioner cites the speech made by now Vice-President Teofisto Guingona delivered before the Philippine Bar Association wherein he stressed the need to review the law since it has not prevented the proliferation of bouncing checks.[18] As correctly argued by the Solicitor General, however, while due deference is given to the opinion of the Vice-President, the same should properly be addressed to the legislature which is in a better position to review the effectiveness and usefulness of the law.[19] As held in the case of Lozano,[20] it is not for the Court to question the wisdom or policy of the statute. It is sufficient that a reasonable nexus exists between the means and the end. Petitioner further claims that the dishonored checks were not issued for deposit and encashment,[21] nor was there consideration therefor, in support of which she cites her alleged agreement with Yolanda that she could have the stone appraised to determine the purchase price,[22] and since she found out that it is only worth P160,000.00,[23] there was no longer any need to fund the remaining checks which should be returned to her.[24] Yolanda, however, so petitioner adds, could no longer be reached.[25] Petitioner thus concludes that she had already paid in full the purchase price of the stone, she having paid P40,000.00 cash plus the P120,000.00 proceeds of the three cleared checks.[26] Petitioners submission does not lie. Such alleged agreement does not inspire belief. The terms and conditions surrounding the issuance of the checks are irrelevant.[27] A check issued as an evidence of debt, though not intended for encashment, has the same effect like any other check. It is within the contemplation of B.P. 22, which is explicit that any person who makes or draws and issues any check to apply for an account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank x x x which check is subsequently dishonored x x x shall be punished by imprisonment.[28] (Emphasis supplied.) BP 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can be easily eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made.[29] (Emphasis supplied) Additionally, petitioner argues that as no bank representative testified as to whether the questioned checks were dishonored due to insufficiency of funds (sic), such element was not clearly and convincingly proven,[30] hence, the trial court failed to uphold her right to presumption of innocence when she was convicted based on the sole testimony of Yolanda. Whether the checks were dishonored due to insufficiency of funds, or Account Closed as alleged in the informations and testified on by Yolanda,[31] petitioners argument is untenable. It is not required much less indispensable, for the prosecution to present the drawee banks representative as a witness to testify on the dishonor of the checks because of insufficiency of funds. The prosecution may present, as it did in this case, only complainant as a witness to prove all the elements of the offense charged. She is competent and qualified witness to testify that she deposited the checks to her account in a bank; that she subsequently received from the bank the checks returned unpaid with a notation drawn against insufficient funds stamped or written on the dorsal side of the checks themselves, or in a

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notice attached to the dishonored checks duly given to the complainant, and that petitioner failed to pay complainant the value of the checks or make arrangements for their payment in full within five (5) banking days after receiving notice that such checks had not been paid by the drawee bank.[32] (Emphasis supplied) Yolandas testimony that when she deposited the checks to her depository bank they were dishonored due to Account Closed[33] thus sufficed. In fact, even petitioners counsel during trial admitted the dishonor, and on that ground.[34] Finally, petitioner imputes bias on the part of the appellate court when it decided her petition for review without the comment of the Office of the Solicitor General. The rendition of the decision by the appellate court without the comment of the People-Appellee is not by itself proof of bias. In any event, the Office of the Solicitor General gave its comment on petitioners Motion for Reconsideration of the appellate courts decision. In fine, the affirmance of petitioners conviction is in order. Under Administrative Circular No. 12-2000, imprisonment need not be imposed on those found guilty of violating B.P. Blg. 22. Administrative Circular No. 13-2001 issued on February 14, 2001 vests in the courts the discretion to determine, taking into consideration the peculiar circumstances of each case, whether the imposition of fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise contrary to the imperatives of justice.[35] In the case at bar, this Court notes that no proof, nay allegation, was proffered that petitioner was not a first time offender. Considering this and the correctness of the case, it would best serve the interests of justice if petitioner is just fined to enable her to continue her dental practice so as not to deprive her of her income, thus insuring the early settlement of the civil aspect of the case, not to mention the FINE. WHEREFORE, the assailed decision of the Court of Appeals finding petitioner JOY LEE RECUERDO guilty of violating Batas Pambansa Blg. 22 is AFFIRMED with MODIFICATION. In lieu of imprisonment, accused-herein petitioner JOY LEE RECUERDO, is ordered to pay a FINE equivalent to double the amount of each dishonored check subject of the five cases at bar. And she is also ordered to pay private complainant, Yolanda Floro, the amount of Two Hundred Thousand (P200,000.00) Pesos representing the total amount of the dishonored checks. SO ORDERED.

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