CRIM Exempting Circumstances Art. 12. Circumstances which exempt from criminal liability.

. the following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. 2. A person under nine years of age. 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in said Art. 80. 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. 5. Any person who act under the compulsion of irresistible force. 6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. 7. Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause.

JOHN PHILIP GUEVARRA, petitioner, vs. HONORABLE IGNACIO ALMODOVAR, respondent. Teresita Dy-Liacco and Roberto Madrid for petitioner. PARAS, J.: Presented before Us is a special civil action for certiorari against the Honorable Judge Ignacio Almodovar of the City Court of Legaspi, Branch 1, Legaspi City, raising beautiful questions of law which We are tasked to resolve. Considering the issues and arguments raised by petitioner, We impleaded the People of the Philippines as party respondents herein in a resolution dated 17 September 1986 (p. 41, Rollo). The relevant facts gathered from the records are as follows: Petitioner John Philip Guevarra, then 11 years old, was playing with his best friend Teodoro Almine, Jr. and three other children in their backyard in the morning of 29 October 1984. They were targetshooting a bottle cap (tansan) placed around fifteen (15) to twenty (20) meters away with an air rifle borrowed from a neighbor. In the course of their game, Teodoro was hit by a pellet on his left collar bone which caused his unfortunate death. After conduct a preliminary investigation, the examining Fiscal exculpated petitioner due to his age and because the unfortunate occurrence appeared to be an accident. The victim's parents appealed to the Ministry of Justice, which ordered the Fiscal to file a case against petitioner for Homicide through reckless Imprudence. The information dated 9 October 1985 was consequently filed, which narrated in part: . . . the above-named accused, who is over 9 years but below 15 years of age and acting with discernment, did then and there, without taking the necessary precautions to prevent and/or avoid accident or injuries to persons, willfully, unlawfully and feloniously operate and cause to be fired, in a reckless and imprudent manner, an air rifle with .22 caliber bore with rifling, oxygen and bolt operated thereby hitting as a result of said carelessness and imprudence one TEODORICO PABLO ALMINE at the left side of the body with its pellet, causing injuries which directly caused his untimely death; . . . (p. 8, Rollo) On 25 October 1985, petitioner moved to quash the said information on the following grounds: I THAT THE FACTS CHARGED DO NOT CONSTITUTE OFFENSE. II THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION. III THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED AND THE PERSON OF THE DEFENDANT. (p. 9, Rollo) This motion, in an Order dated 4 April 1986, was denied with respect to the first and third grounds relied upon. However, the resolution of the second ground was deferred until evidence shall have been presented during trial. On 26 July 1986, this present petition for certiorari was filed, raising two (2) issues, to wit: I WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED WITH THE CRIME OF HOMICIDE THRU RECKLESS IMPRUDENCE, AND II WHETHER THE COURT HAD JURISDICTION OVER THE CASE NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU THE BARANGAY LUPON. (Petition, p. 3, Rollo)

Going through the written arguments of the parties, the surfacing of a corollary controversy with respect to the first issue raised is evident, that is, whether the term "discernment", as used in Article 12(3) of the Revised Penal Code (RPC) is synonymous with "intent." It is the position of the petitioner that "discernment" connotes 'intent' (p. 96, Rollo), invoking the unreported case of People vs. Nieto, G.R. No. 11965, 30 April 1958. In that case We held that the allegation of "with intent to kill . . ." amply meets the requirement that discernment should be alleged when the accused is a minor between 9 and 15 years old. Petitioner completes his syllogism in saying that: If discernment is the equivalent of 'with intent', then the allegation in the information that the accused acted with discernment and willfully unlawfully, and feloniously, operate or cause to be fired in a reckless and imprudent manner an air rifle .22 caliber' is an inherent contradiction tantamount to failure of the information to allege a cause of action or constitute a legal excuse or exception. (Memorandum for Petitioner, p. 97, Rollo) If petitioner's argument is correct, then no minor between the ages of 9 and 15 may be convicted of a quasi-offense under Article 265 of the RPC. On the contrary, the Solicitor General insists that discernment and intent are two different concepts. We agree with the Solicitor General's view; the two terms should not be confused. The word "intent" has been defined as (a) design; a determination to do a certain things; an aim; the purpose of the mind, including such knowledge as is essential to such intent;. . .; the design resolve, or determination with which a person acts.' (46 CJS Intent p. 1103.) It is this intent which comprises the third element of dolo as a means of committing a felony, freedom and intelligence being the other two. On the other hand, We have defined the term discernment, as used in Article 12(3) of the RPC, in the old case of People vs. Doquena, 68 Phil. 580(1939), in this wise: The discernment that constitutes an exception to the exemption from criminal liability of a minor under fifteen years of age but over nine, who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong . . . (Emphasis supplied) p. 583 From the foregoing, it is clear that the terms "intent" and "discernment" convey two distinct thoughts. While both are products of the mental processes within a person, the former refers to the desired of one's act while the latter relates to the moral significance that person ascribes to the said act. Hence a person may not intend to shoot another but may be aware of the consequences of his negligent act which may cause injury to the same person in negligently handling an air rifle. It is not connect, therefore, to argue, as petitioner does, that since a minor above nine years of age but below fifteen acted with discernment, then he intended such act to be done. He may negligently shoot his friend, thus did not intend to shoot him, and at the same time recognize the undesirable result of his negligence. In further outlining the distinction between the words "intent" and "discernment," it is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. 1 In expounding on intelligence as the second element of dolus, Albert 2 has stated: The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because ... the infant 3 (has) no intelligence, the law exempts (him) from criminal liability. (Emphasis supplied) lt is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal act. On the other hand, minors above nine years of appeal but below fifteen are not absolutely exempt. However, they are presumed to be without criminal capacity, but which presumption may be rebutted if it could be proven that they were "capable of appreciating the nature and criminality of the act, that is, that (they) acted with discernment. " 4 The preceding discussion shows that "intelligence" as an element of dolo actually embraces the concept of discernment as used in Article 12 of the RPC and as defined in the aforecited case of People vs. Doquena, supra. It could not therefore be argued that discernment is equivalent or connotes 'intent' for they refer to two different concepts. Intelligence, which includes discernment, is a distinct element of dolo as a means of committing an offense. In evaluating felonies committed by means of culpa, three (3) elements are indispensable, namely, intelligence, freedom of action, and negligence. Obviously, intent is wanting in such felonies. However, intelligence remains as an essential element, hence, it is necessary that a minor above nine but below fifteen years of age be possessed with intelligence in committing a negligent act which results in a quasi-offense. For him to be criminally liable, he must discern the rightness or wrongness of the effects of his negligent act. Indeed, a minor over nine years of age but below fifteen may be held liable for a quasi-offense under Article 365 of the RPC. A reading of the said Article would reveal such fact as it starts off with the phrase "Any person. . ." without any distinction or exception made. Ubi lex non distinquit nec nos distinguere debemos. In his last attempt to justify his position equating the words "intent" and "discernment" used under the law, he cites the case of People vs. Nieto, supra. However, petitioner failed to present the qualifying sentence preceding the ruling he now invokes, which reads: That requirement should be deemed amply met with the allegation in the information that she. . ."with the intent to kill, did then and there wilfully, criminally and feloniously push one Lolita Padilla . . ." into a deep place of the Pearanda River and as a consequence thereof Lolita Padilla got drowned and died right then and there.' This allegation clearly conveys the Idea that she knew what would be the consequence of her unlawful act of pushing her victim into deep water and that she knew it to be wrong. (Emphasis supplied) From the above, it is clear that We did not mean to equate the words "intent" and "discernment." What We meant was that the combined effect of the words used in the information is to express a knowledge, on the part of the accused Nieto, of the wrongness or rightness of her act. Hence, petitioner may not validly contend that since the information now in question alleged "discernment", it in effect alleged "intent." The former may never embrace the Idea of the latter; the former expresses the thought of passivity while the latter signifies activity. Coming now to the second issue of jurisdiction, it is contended by the petitioner that the case against him should have first been brought before the Lupong Tagapayapa pursuant to Presidential Decree No. 1508, Section 2(3). He submits that, considering his entitlement to a two-degree privileged mitigating circumstance due to his minority, P.D. 1508 applies to his case because the penalty imposable is reduced to not higher than arresto menor from an original arresto mayor maximum to prision correccional medium as prescribed in Article 365 of the RPC. This is not correct. The jurisdiction of a court over a criminal case is determined by the penalty imposable under the law for the offense and not the penalty ultimately imposed (People vs. Caldito, 72 Phil. 263; People vs. Purisima, 69 SCRA 314; Dioquino vs. Cruz and People vs. Savellano, 116 SCRA 451). The same principle applies in construing Section 2(3) of P.D. 1508, which states: xxx xxx xxx (3) Offense punishable by imprisonment exceeding 30 day , or a fine exceeding P 200.00; ... (emphasis supplied)

Expounding on the above provision, a member of the committee that drafted P.D. 1508 has said: The law says 'punishable,' not 'punished.' One should therefore consider the penalty provided for by law or ordinance as distinguished from the penalty actually imposed in particular cases after considering the attendant circumstances affecting criminal liability. 5 The foregoing finds support in our jurisprudence as above cited. We therefore rule that, in construing Section 2(3) of P.D. 1508, the penalty which the law defining the offense attaches to the latter should be considered. Hence, any circumstance which may affect criminal liability must not be considered. The petitioner, in his arguments, asserts that since P.D. 1508 has not been complied with, the trial court has no jurisdiction over the case. This erroneous perception has been corrected long before. As intimated in the case of Royales vs. IAC, 127 SCRA 470, and categorically stated in Ebol vs. Amin, 135 SCRA 438, P.D. 1508 is not jurisdictional. WHEREFORE, PREMISES CONSIDERED, this petition is hereby DISMISSED for lack of merit and the Temporary Restraining Order effective 17 September 1986 is LIFTED. Let this case be REMANDED to the lower court for trial on the merits. No cost. SO ORDERED. PEOPLE OF THE PHILIPPINES, appellee, vs. PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.: For automatic review is the Decision1 of the Regional Trial Court of Quezon City, Branch 95, convicting appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-year-old Vincent Jorojoro, Jr. while the latter was flying his kite on top of a roof. The court a quo sentenced the appellant to suffer the death penalty. The accusatory portion of the Information charging the appellant with murder reads: That on or about the 26th day of September 1998, in Quezon City, Philippines, the said accused, with intent to kill, by means of treachery and taking advantage of superior strength, did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of VINCENT JOROJORO, JR. y MORADAS, a minor, eleven (11) years of age, by then and there, shooting him with a gun, hitting him on the head, thereby inflicting upon him serious and mortal wound which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the said offended party. CONTRARY TO LAW.2 Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel, pleaded not guilty. Thereafter, trial ensued. Case for the Prosecution3 Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro. The family lived at Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent, nicknamed "Hataw," was a grade three pupil whose education was sponsored by the Spouses Petinato, an American couple, through an educational foundation.4 The appellant was an officer of the Philippine National Police detailed in the Traffic Management Group (TMG) based in Camp Crame, Quezon City, but was on detached service with the Motorcycle Unit of the Metropolitan Manila Development Authority (MMDA). At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother Felicisima if he could play outside. She agreed.5 Together with his playmate Whilcon "Buddha" Rodriguez, Vincent played with his kite on top of the roof of an abandoned carinderia beside the road in Sitio Militar, Barangay Bahay Toro. Beside this carinderia was a basketball court, where fourteen-year-old Ricardo Salvo and his three friends, nicknamed L.A., Nono and Puti, were playing backan, a game of basketball. Ricardo heard the familiar sound of a motorcycle coming from the main road across the basketball court. He was nonplussed when he looked at the person driving the motorcycle and recognized the appellant. Ricardo knew that the appellant abhorred children playing on the roof of the carinderia and berated them for it. His friend Ong-ong had previously been scolded by the appellant for playing on the roof. Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw Vincent and Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang mga batang ito, hindi kayo magsibaba d'yan!" After hearing the shouts of the appellant, Whilcon immediately jumped down from the roof.6 Vincent, meanwhile, was lying on his stomach on the roof flying his kite. When he heard the appellant's shouts, Vincent stood up and looked at the latter. Vincent turned his back, ready to get down from the roof. Suddenly, the appellant pointed his .45 caliber pistol7 towards the direction of Vincent and fired a shot. Vincent was hit on the left parietal area. He fell from the roof, lying prostrate near the canal beside the abandoned carinderia and the basketball court.8 Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head. Whilcon retreated and left his friend.9 The appellant approached Vincent and carried the latter's hapless body in a waiting tricycle and brought him to the Quezon City General Hospital. Vincent was pronounced dead on arrival. Meantime, word reached Vincent's parents that their son was shot and brought to the hospital. They rushed to the hospital, only to see their son's already lifeless body. The appellant was nowhere to be found. Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of Investigation (NBI) conducted an autopsy where he made the following findings:

Cyanosis, lips and nailbeds. Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect. Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side. Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges, abrasion collar widest postero-inferiorly, located at the head, left parietal area, 9.0 cms. above and 8.0 cms. behind the left external auditory meatus, directed forward upward and from left to right, involving the scalp, fracturing the left parietal bone (punched-in), lacerating the left and right cerebral hemispheres of the brain, fracturing the right parietal bone (punched-out), lacerating the scalp, making an Exit wound, 3.3 x 1.0 cms., stellate with everted and irregular edges, 12.0 cms. above and 2.0 cms. in front of the right external auditory meatus. Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral. Scalp hematoma, fronto-parietal areas, bilateral. Visceral organs, congested. Stomach, one-fourth (1/4) filled with partially digested food particles. CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10 Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet entered the left upper back portion of the head (above the level of the left ear)11 and exited to the right side.12 Dr. Baluyot signed Vincent's certificate of death.13 At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded to the scene of the shooting but failed to find the victim and the appellant. They proceeded to the Quezon City General Hospital where they heard that the victim had died. They returned to the crime scene and recovered an empty shell from a .45 caliber gun.14 On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which the appellant was assigned on detached service, reported to the Sangandaan Police Station that the appellant had not reported for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered the appellant to the Sangandaan Police Station together with his .45 caliber pistol bearing Serial No. AOC-38701.16 Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of Justice where he was enrolled under its Witness Protection Program. He gave his sworn statement to NBI Special Agent Roberto Divinagracia on September 29, 1998.17 On the same date, P/Insp. Abelardo Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit requesting for the ballistic examination of the .45 caliber pistol with Serial No. AOC-38701 and the empty shell of a .45 caliber gun found at the scene of the shooting.18 Before noon on September 30, 1998, Divinagracia arrived at the station and turned over two witnesses, Raymond Castro and Ricardo Salvo. He also turned over the witnesses' sworn statements. 19 On October 2, 1998, on orders of the police station commander,20 Pajarillo took pictures of the crime scene, including the carinderia and the roof with a bullet hole as part of the office filing.21 He did not inform the prosecution that he took such pictures, nor did he furnish it with copies thereof. However, the appellant's counsel learned of the existence of the said pictures. On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-124-98 stating that: FINDINGS: Microscopic examination and comparison of the specimen marked "FAP" revealed the same individual characteristics with cartridge cases fired from the above-mentioned firearm. CONCLUSION: The specimen marked "FAP" was fired from the above-mentioned caliber .45 Thompson Auto Ordnance pistol with serial number AOC-38701.22 Vincent's family suffered mental anguish as a result of his death. As evidenced by receipts, they spent P49,174 for the funeral.23 Case for the Appellant The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26, 1998, Macario Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance; Macario's brother-in-law was drunk and armed with a knife, and was creating trouble in their house. The appellant's house was located along a narrow alley (eskinita) perpendicular to the main road. It was 200 meters away from Macario's house.24 Responding to the call, the appellant took his .45 service revolver, cocked it, put the safety lock in place and tucked the gun at his right waistline. He brought out his motorcycle from the garage and slowly negotiated the bumpy alley leading to the main road. Macario, who was waiting for him at the main road, called his attention to his revolver which was about to fall off from his waist. The appellant got distracted and brought his motorcycle to the right side of the road, near the abandoned carinderia where he stopped. As he stepped his right foot on the ground to keep himself from falling, the appellant lost his balance and slipped to the right. At this point, the revolver fell to the ground near his foot and suddenly went off. Bystanders shouted, "Ano yon, ano yon, mukhang may tinamaan." He picked up his gun and examined it. He put the safety latch back on and tucked it at his right waistline. He then told Macario to wait for a while to check if somebody was really hit. He went near the abandoned carinderia and saw Vincent sprawled to the ground. He picked up the bloodied child, boarded him on a tricycle on queue and instructed its driver, Boy Candaje, to bring the boy to the hospital.25 On board the tricycle were Jeffrey Dalansay and Milbert Doring. The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but did not inform her of the incident. He then called his superior officer, Major Isidro Suyo, at the Base 103, located at Roces Avenue, Quezon City. The appellant informed Major Suyo that he met an accident; that his gun fell and fired; and, that the bullet accidentally hit a child. He also told his superior that he might not be able to report for work that day and the following day. He assured his superior that he would surrender later. He then went to Valenzuela City to the house of his friend PO3 Angelito Lam, who was a motorcycle unit cop. The appellant stayed there for three days. He also visited friends during that time.

On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber pistol. Major Suyo accompanied and turned over the appellant to the commanding officer at Camp Crame, Quezon City. The appellant was subjected to a neuro and drug test. He stated that the results of the drug test were negative. The appellant was then referred to the Sangandaan Police Station for investigation.26 The pictures27 of the crime scene were given to him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing to a bullet hole. The appellant's testimony was corroborated in pari materia by Macario Ortiz. Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of September 26, 1998, he was playing basketball at Barangay Bahay Toro, at the basketball court along the road beside the chapel. With him were Ricardo, Puti and Nono. Vincent was on the rooftop of the carinderia with Whilcon. While Puti was shooting the ball, an explosion ensued. He and Ricardo ran beside the chapel near the basketball court. He looked back towards the basketball court and saw the appellant, about 15 meters away from the canal, holding the prostrate and bloodied Vincent. He did not see the appellant shoot Vincent. He did not report what he saw to the police authorities. He was ordered by his father to testify for the appellant. He also testified that his mother was related to Daniel, the appellant's brother. On January 19, 1999, the trial court rendered judgment convicting the appellant of murder, qualified by treachery and aggravated by abuse of public position. The trial court did not appreciate in favor of the appellant the mitigating circumstance of voluntary surrender. The decretal portion of the decision reads: WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand Fallorina y Fernando GUILTY beyond reasonable doubt of the crime of Murder defined in and penalized by Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, and in view of the presence of the aggravating circumstance of taking advantage by the accused of his public position (par. 1, Art. 14, Revised Penal Code), is hereby sentenced to suffer the penalty of DEATH. The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr. the amounts of P49,174.00, as actual damages; P50,000.00, as moral damages; P25,000.00, as exemplary damages; and, P50,000.00, as death indemnity. The accused is to pay the costs. The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain under the custody of the Court and shall be disposed of in accordance with the existing rules and regulations upon the finality of this decision.28 The appellant assigned the following errors for resolution: 1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO RELEVANT PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE ALTERED THE CONCLUSIONS ARRIVED AT BY THE COURT AND THE OUTCOME OF THE CASE. 2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF SPECULATION, PATENTLY DEMONSTRATING BIAS AND PARTIALITY. 3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE TESTIMONY OF RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS, WHOSE TESTIMONY IS WANTING IN PROBABILITY, AS IT IS CONTRARY TO THE COMMON EXPERIENCE OF MANKIND. 4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING EXCULPATORY AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH SHOULD HAVE BEEN CONSIDERED IN FAVOR OF THE ACCUSED. 5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED. 6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS POSITION BY ACCUSED. 29 The appellant asserts that the trial court failed to appreciate in his favor the physical evidence, viz., the hole found on the rooftop of the carinderia where Vincent was when he was shot. The appellant contends that the picture30 taken on October 2, 1998 by no less than SPO2 Felix Pajarillo, one of the principal witnesses of the prosecution, and the pictures31 showing Barangay Tanod Yaket pointing to a hole on the roof buttress the defense of the appellant that the shooting was accidental. The appellant maintains that his service revolver fell to the ground, hit a hard object, and as the barrel of the gun was pointed to an oblique direction, it fired, hitting the victim who was on the rooftop. The bullet hit the back portion of the victim's head, before exiting and hitting the rooftop. The appellant posits that the pictures belie Ricardo's testimony that he deliberately shot the victim, and, instead, complements Dr. Baluyot's testimony that the gunshot wound came from somewhere behind the victim, somewhere lower than the point of entrance. The appellant invokes P/Insp. Mario Prado's testimony that if a gun hits the ground in an oblique position, the gun will fire and the bullet will exit in the same position as the gun, that is, also in an oblique position. The Office of the Solicitor General, for its part, asserts that the contention of the appellant is based on speculations and surmises, the factual basis for his conclusion not having been proven by competent and credible evidence. There is no evidence on record that the hole shown in the pictures 32 was caused by a bullet from a .45 caliber pistol. The appellant did not present Barangay Tanod Johnny Yaket, who was shown in the pictures, to testify on the matter. The appellant failed to prove that any slug was found on the rooftop or under the roof which came from the appellant's .45 caliber pistol. According to the Solicitor General, the pictures relied upon by the appellant cannot overcome the positive and straightforward testimony of the young eyewitness Ricardo Salvo. We agree with the Office of the Solicitor General. Whether or not the appellant is exempt from criminal liability is a factual issue. The appellant was burdened to prove, with clear and convincing evidence, his affirmative defense that the victim's death was caused by his gun accidentally going off, the bullet hitting the victim without his fault or intention of causing it; hence, is exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal Code which reads The following are exempt from criminal liability: 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. The basis for the exemption is the complete absence of intent and negligence on the part of the accused. For the accused to be guilty of a felony, it must be committed either with criminal intent or with fault or negligence.33

The elements of this exempting circumstance are (1) a person is performing a lawful act; (2) with due care; (3) he causes an injury to another by mere accident; and (4) without any fault or intention of causing it.34 An accident is an occurrence that "happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences." If the consequences are plainly foreseeable, it will be a case of negligence. In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an accident is a fortuitive circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstance is unusual or unexpected by the person to whom it happens. Negligence, on the other hand, is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand without which such other person suffers injury. Accident and negligence are intrinsically contradictory; one cannot exist with the other.36 In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice.37 The appellant must rely on the strength of his evidence and not on the weakness of that of the prosecution because by admitting having caused the death of the victim, he can no longer be acquitted. In this case, the appellant failed to prove, with clear and convincing evidence, his defense. First. The appellant appended to his counter-affidavit in the Office of the Quezon City Prosecutor the pictures showing the hole on the roof of the carinderia38 to prove that he shot the victim accidentally. However, when the investigating prosecutor propounded clarificatory questions on the appellant relating to the pictures, the latter refused to answer. This can be gleaned from the resolution of the investigating prosecutor, thus: Classificatory questions were propounded on the respondent but were refused to be answered. This certainly led the undersigned to cast doubt on respondent's allegations. The defenses set forth by the respondent are evidentiary in character and best appreciated in a full-blown trial; and that the same is not sufficient to overcome probable cause.39 Second. The appellant did not see what part of the gun hit the victim.40 There is no evidence showing that the gun hit a hard object when it fell to the ground, what part of the gun hit the ground and the position of the gun when it fell from the appellant's waist. Third. In answer to the clarificatory questions of the court, the appellant testified that the chamber of his pistol was loaded with bullets and was cocked when he placed it on his right waistline.41 He also testified that the gun's safety lock was on. He was asked if the gun would fire if the hammer is moved backward with the safety lock in place, and the appellant admitted that even if he pulled hard on the trigger, the gun would not fire: Q Is this your service firearm? A Yes, Your Honor. Q So the chamber might have been loaded when you went out of the house? A Yes, Your Honor. Q What about the hammer, how was the hammer at that time when you tucked the gun in your waistline? A The hammer was cocked like this. COURT: Can you not stipulate that the hammer is moved backwards near the safety grip. ATTY. AND PROS. SINTAY: Admitted, Your Honor. ATTY. PEREZ: Yes, Your Honor. COURT: (to the witness) Q You are a policeman, if there is a bullet inside the barrel of the gun and then the hammer is moved backwards and therefore it is open, that means that if you pull the trigger, the bullet will fire because the hammer will move forward and then hit the base of the bullet? A Yes, Your Honor. Q Therefore, the gun was cocked when you came out? A Yes, Your Honor. Q You did not place the safety lock before you went out of your house? A I safety (sic) it, sir. Q So when you boarded the motorcycle, the gun was on a safety lock? A Yes, Your Honor. Q Will you please place the safety lock of that gun, point it upwards. (witness did as instructed) It is now on a safety locked (sic)? A Yes, Your Honor. Q Pull the trigger if the hammer will move forward? (witness did as instructed) A It will not, Your Honor. COURT: (to the parties) Q Can you not admit that at this position, the accused pulled the trigger, the hammer did not move forward? PROS. SINTAY AND ATTY. PRINCIPE: Admitted, Your Honor. COURT: (to the witness) Q And therefore at this position, even if I pull the trigger many times, a bullet will not come out from the muzzle of the gun because the hammer is on a safety locked (sic)? A Yes, Your Honor. Q Even if I pushed it very hard, it will not fire the gun? A Yes, Your Honor. Q Alright, I will ask you again a question. If the hammer of the gun is like this and therefore it is open but it is on a safety lock, there is space between the safety grip which is found below the hammer, there is a space, is it not? A Yes, Your Honor. Q That even if I pushed the safety grip forward, like this. The Court gave the gun to the accused for him to demonstrate. (to the witness) You push it forward in order to push the hammer. Hard if you want but do not remove the safety lock. (witness did as instructed) The witness tried to push the safety grip and it does not touch the hammer even if the hammer is cocked.42 Fourth. The trial court was witness as the appellant's counsel himself proved that the defense proffered by the appellant was incredible. This can be gleaned from the decision of the trial court:

3. More importantly, and which the Court considers it as providential, when the counsel of the accused was holding the gun in a cocked position and the safety lock put in place, the gun accidentally dropped on the cemented floor of the courtroom and the gun did not fire and neither was the safety lock moved to its unlock position to cause the hammer of the gun to move forward. The safety lock of the gun remained in the same position as it was when it dropped on the floor.43 Fifth. After the shooting, the appellant refused to surrender himself and his service firearm. He hid from the investigating police officers and concealed himself in the house of his friend SPO3 Angelito Lam in Valenzuela City, and transferred from one house to another for three days to prevent his arrest: Q So did you surrender that afternoon of September 26, 1998? A No, Your Honor. Q I thought you were surrendering to Major Suyo? A I was but I was not able to surrender to Major Suyo, Your Honor. Q Why, you were already able to talk to Major Suyo? A Because at that time I was already confused and did not know what to do, Your Honor. ATTY. PRINCIPE: (to the witness) Q What is your relation with PO3 Angelito Lam of Valenzuela? A Just my co-motorcycle unit cop in the TMG, sir. Q Did I hear you right that you slept at the residence of PO3 Lam for three days? A Yes, sir. Q Why instead of going home to your residence at Bahay Toro? A Because I am worried, sir. COURT: (to the witness) Q So what did you do for three days in the house of PO3 Lam? A During daytime, I go to my friends, other friends and in the evening, I go back to the house of PO3 Lam, Your Honor. Q So if you were able to visit your friends on September 27 or 28, 1998 and then returned to the house of PO3 Lam in the evening, why did you not go to Major Suyo or to your 103 Base? A Your Honor, during those days I am really calling Major Suyo. Q Why did you not go to your office at Camp Crame, Quezon City? A At that time, I did not have money, Your Honor. Q What is the connection of you having money to that of informing your officer that you will surrender? A What I know, Your Honor, is that if I do that I will already be detained and that I will have no money to spend. ATTY. PRINCIPE: (to the witness) Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not even visit your family in Barangay Bahay Toro? A No, sir. COURT: (to the witness) Q Did you send somebody to visit your family? A No, Your Honor. ATTY. PRINCIPE: (to the witness) Q Did you cause to blotter the shooting incident of Vincent? A I was not able to do that, sir. Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro? A No sir, because I already brought the child to the hospital.44 The conduct of the appellant after the shooting belies his claim that the death of the victim was accidental and that he was not negligent. We agree with the encompassing disquisitions of the trial court in its decision on this matter: The coup de grace against the claim of the accused, a policeman, that the victim was accidentally shot was his failure to surrender himself and his gun immediately after the incident. As a police officer, it is hard to believe that he would choose to flee and keep himself out of sight for about three (3) days if he indeed was not at fault. It is beyond human comprehension that a policeman, who professes innocence would come out into the open only three (3) days from the incident and claim that the victim was accidentally shot. Human behavior dictates, especially when the accused is a policeman, that when one is innocent of some acts or when one is in the performance of a lawful act but causes injury to another without fault or negligence, he would, at the first moment, surrender to the authorities and give an account of the accident. His failure to do so would invite suspicion and whatever account or statement he would give later on becomes doubtful. For the accused, therefore, to claim that Vincent was accidentally shot is odious, if not, an insult to human intelligence; it is incredible and unbelievable, and more of a fantasy than a reality. It was a deliberate and intentional act, contrary to accused's claim, that it happened outside the sway of his will.45 It is a well-entrenched rule that findings of facts of the trial court, its calibration of the testimonies of the witnesses, its assessment of the credibility of the said witnesses and the probative weight of their testimonies are accorded high respect, if not conclusive effect by the appellate court, as the trial judge was in a better position to observe the demeanor and conduct of the witnesses as they testified.46 We have carefully reviewed the records of the case and found no reason to deviate from the findings of the trial court. The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a positive and straightforward manner, which testimony had the earmarks of truth and sincerity. Even as he was subjected to a grueling cross-examination by the appellant's counsel, he never wavered in his testimony. He positively identified the appellant as the assailant and narrated in detail how the latter deliberately aimed his gun and shot the victim. The relevant portions of his testimony are quoted: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: While playing basketball with Nono, LA and Puti, do you remember of any unusual incident which took place? Yes, sir. What was that unusual incident? When Vincent was shot, sir. Who shot Vincent? Ferdinand Fallorina, sir. And in what place that Vincent was shot by Fallorina? He was at the roof of the karinderia, sir. Was there any companion of Vincent? Yes, sir. What was the position of Vincent at that time that you saw him and Fallorina shot him? "Nakatalikod po siya." You included in this Exhibit O your drawing the figure of a certain Jeffrey and you and his tricycle? Why did you include this drawing? Because it was in the tricycle where Vincent was boarded to and brought to the hospital.

(Witness referring to Exhibit O-11) Q: And who was the driver of that tricycle? A: It was Jeffrey who drove the tricycle, sir. Q: You also drew here a motorcycle already marked as Exhibit O-7. Why did you include the motorcycle? A: Because Fallorina was riding on that motorcycle at that time. COURT: (to the witness) Q: So when Ferdinand Fallorina shot the boy, the motorcycle was moving? A: It was stationary, your Honor. Q: Did you see where he came from, I am referring to Fallorina before you saw him shot the boy? A: He came from their house, Your Honor. Q: What was his attire, I am referring to Ferdinand Fallorina? A: He was wearing white shirt and blue pants, Your Honor. ATTY. PRINCIPE: (to the witness) Q: At that time that Fallorina shot the victim, was Buddha still there? A: He ran, sir. He jumped in this place, sir. (Witness is pointing to a place near the canal already marked as Exhibit O-14). Q: Now from the witness stand that you are now seated. Can you tell the Court how far where (sic) you from Fallorina at that time of the shooting? COURT: Can the prosecution and the accused stipulate that the distance pointed to by the witness is more or less 7 meters. ATTY. PRINCIPE: (to the witness) Q: How about the distance of Fallorina from Vincent, can you tell that? COURT: (to the witness) Can you point a distance between Fallorina and the boy at that time the body (sic) was shot? COURT: 10 meters more or less? Q: How long have you known Ferdinand Fallorina before the incident? A: More or less two years, sir. Q: Why do you know him? A: I usually see him in that place at Sitio Militar, especially on Sundays, sir. Q: How many shots did you hear? A: Only one, sir. Q: Do you recognize the gun used by Fallorina? A: Yes, sir. Q: What was that gun? A: .45 cal., sir. Q: Are you familiar with .45 cal.? A: No, sir. Q: Why do you know that it was .45 cal.? A: Because that kind of gun, I usually see that in the movies, sir. Q: Ricardo, you said that you have known Fallorina for two (2) years and you saw him shot Vincent on September 26, 1998 at around 2:30 in the afternoon. Please look around the courtroom now and point at the person of PO3 Ferdinand Fallorina? CT. INTERPRETER: Witness is pointing to a male person the one seated at the back of the lady and wearing a yellow shirt and maong pants and when asked of his name, he stated his name as Ferdinand Fallorina. ATTY. PRINCIPE: (to the witness) Q: Can you tell to the Court whether you heard utterances at that time that he shot the victim? A: Yes, sir. Q: What was that? A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!" Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from the roof, what about Fallorina, what did he do? A: He was still on board his motorcycle and then he went at the back of the karinderia where Vincent fell, Your Honor. Q: And after he went at the back of the karinderia and looked at Vincent Jorojoro, what did he do? A: He carried Vincent, Your Honor. Q: And after carrying Vincent, what did he do? A: He boarded Vincent in the tricycle. Q: What about the gun, what did he do with the gun? A: I do not know anymore.47 The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In fine, his act was deliberate and intentional. It bears stressing that of the eyewitnesses listed in the Information as witnesses for the prosecution, only Ricardo Salvo remained steadfast after he was brought under the Witness Protection Program of the Department of Justice. He explained that the reason why he testified for the prosecution, despite the fact that the appellant was a policeman, was because he pitied the victim's mother who was always crying,48 unable to obtain justice for her son. We find no ill motive why Ricardo would falsely testify against the appellant. It was only his purest intention of ferreting out the truth in this incident and that justice be done to the victim.49 Hence, the testimony of Ricardo is entitled to full faith and credence. The Crime Committed by the Appellant We agree with the trial court that the appellant committed murder under Article 248 of the Revised Penal Code qualified by treachery. As the trial court correctly pointed out, Vincent was shot intentionally while his back was turned against the appellant. The little boy was merely flying his kite and was ready to get down from the roof when the appellant fired a shot directed at him. The essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest provocation on his part.50 Nonetheless, Vincent was an eleven-year-old boy. He could not possibly put up a defense against the appellant, a police officer who was armed with a gun. It is not so much as to put emphasis on the age of the victim, rather it is more of a description of the young victim's state of helplessness.51 Minor children, who by reason of their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a child, treachery exists.52 The

abuse of superior strength as alleged in the Information is already absorbed by treachery and need not be considered as a separate aggravating circumstance.53 We, however, note that the trial court appreciated the aggravating circumstance of abuse of public position in this case. We reverse the trial court on this score. There is no dispute that the appellant is a policeman and that he used his service firearm, the .45 caliber pistol, in shooting the victim. However, there is no evidence on record that the appellant took advantage of his position as a policeman when he shot the victim.54 The shooting occurred only when the appellant saw the victim on the rooftop playing with his kite. The trial court erred in appreciating abuse of public position against the appellant. The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating circumstance of voluntary surrender. Surrender is said to be voluntary when it is done by the accused spontaneously and made in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or he wishes to save them the trouble and expense necessarily incurred in his search and capture.55 In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in Valenzuela City, and even moved from one house to another for three days. The appellant was a policeman who swore to obey the law. He made it difficult for his brother-officers to arrest him and terminate their investigation. It was only after the lapse of three days that the appellant gave himself up and surrendered his service firearm. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death. Since there is no modifying circumstance in the commission of the crime, the appellant should be sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City, Branch 95, is AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand Fallorina y Fernando is found guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code and, there being no modifying circumstances in the commission of the crime, is hereby sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay the heirs of the victim Vincent Jorojoro, Jr. the amount of P49,174 as actual damages; P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages. SO ORDERED. People vs PO3 FallorinaG.R. No. 137347March 4, 2004 Facts: At about 2:30 p.m. of September 26, 1998, Vincent Jorojoro, an eleven-year old minor and the third child of Vicente and Felicisima Jorojoro, residing at Sitio Militar, Brgy. Bahay Toro, Project 8, Quezon City, asked permission from his mother Felicisima if he could play outside. She agreed. Together with his playmate Whilcon Buddha Rodriguez, Vincent played with his kite on top of the roof of an abandoned carinderia beside the road. Beside the carinderia was a basketball court, where a fourteen-year old witness Ricardo Salvo and his three friends, were playing basketball. Ricardo heard the familiar sound of a motorcycle coming from the main road across the basketball court. Cognizant to Ricardo of the appellant, PO3 Ferdinand Fallorina, a Philippine National Police (PNP) officer, detailed in the Traffic Management Group (TMG), knew that he abhorred kids playing on the roof, since one of his friends was previously been scolded by the appellant before. Ricardo called on Vincent and Whilcon to come down from the roof. When PO3 Fallorina saw them, the former stopped his motorcycle, he shouted and badmouthed at them. After hearing the shouts of the appellant, Whilcon rushed to jump off from the roof while Vincent was lying on his stomach on the roof flying his kite. When he heard the appellants shouts, Vincent stood up and looke d at the latter. As soon as Vincent turned his back, ready to get down from the roof, suddenly, the appellant pointed the .45 caliber pistol towards the direction of Vincent and fired a shot. Vincent fell from the roof, lying prostrate near the canal beside the abandoned carinderia and the basketball court. The appellant approached Vincent and carried the latters hapless body in a waiting tricycle and brought him to the Quezon City General Hospital. Vincent was pronounced dead on arrival caused by a single gunshot wound in the head. Issues: (a) Whether the appellant is exempted from criminal liability? (b) Whether the appellant can offset an aggravating circumstance by taking advantage of his public position from a mitigating circumstance of his voluntary surrender? Held: The Office of the Solicitor General (OSG) cites that the basis for exemption from a criminal liability under Article 12, paragraph 4 of the Revised Penal Code (RPC), is the complete absence of intent and negligence on the part of the accused. For the accused to be guilty for a felony, it must be committed either with criminal intent or with fault or negligence. Thusly, the elements of exempting circumstances are (1) a person is performing a lawful act; (2) with due care; (3) he causes an injury to another by mere accident; and (4) without any fault or intention of causing it. In the case at bar, the Court a quo erred in inequitably appreciating exculpatory and inculpatory facts and circumstances which should have been considered in favor of the accused. The court also failed to appreciate the mitigating circumstance of voluntary surrender in favor of the accused since it was only after three days that the appellant gave himself up and surrendered his service firearm. And lastly, the court considered the aggravating circumstance of taking advantage of his position by the accused. On January 19, 1999, the trial court rendered judgment convicting the appellant-accused of murder, qualified by treachery and aggravated by abuse of public position. The trial court did not appreciate in favor of the appellant the mitigating circumstances of voluntary surrender. The Regional Trial Court of Quezon City, Branch 95, found the accused PO3 Ferdinand Fallorina y Fernando GUILTY beyond reasonable doubt of the crime of murder defined and penalized by Article 248 of the RPC, as amended by the Republic Act No. 7659, and in view of the presence of the aggravating circumstance of taking advantage by the accused of his public position (par. 1, Art. 14, RPC). Hence, the accused is hereby ordered to indemnify the heirs of late Vincent Jorojoro, Jr. the amounts of actual damages of P49,174.00 (paid for funeral services); P50,000.00 for moral damages; P25,000.00 as exemplary damages; and P50,000.00 as death indemnity. The court a quo sentenced the appellant to suffer the Death Penalty. THE UNITED STATES, plaintiff-appellee, vs. EDUARDO ELICANAL, defendant-appellant.

Francisco Villanueva, Sr., and Francisco Villanueva, Jr., for appellant. Attorney-General Avancea for appellee. MORELAND, J.: The appellant in this case is one of several persons arrested and convicted of murder. He was sentenced to death and this case comes to this court not only en consulta but by appeal also. The accused was a member of the crew of the lorcha Catalua cruising in the waters of the Philippine Islands off Iloilo under the captaincy of Juan Nomo. The first mate was Guillermo Guiloresa. The accused is about 22 years of age, without education or instruction and somewhat weak physically. The lorcha left the mouth of the Iloilo river early in the morning of the 11th of December, 1914. She had scarcely cleared the river when Guillermo, the chief mate, suddenly and without having mentioned the subject to the accused before, said to him that he was going to kill the captain because he was very angry with him, and asked him to assist him. The accused took this statement as a joke as, according to him, the chief mate was a great joker; and particularly as he was smiling at the time he made the statement; and naturally paid no more attention to it. Neither he nor the other members of the crew held any resentment against the captain and he had no idea at that time that he would take part in any acts directed against him. The following morning while the crew were engaged in their daily occupation, Guillermo, finding the captain in his cabin, assaulted him, attempting to seize and hold his hands and, at the same time, calling to the crew to come forward and help him. The crew, drawn by the cries, hastened to the spot where Guillermo was engaged in a hand to hand fight with the captain. At the request of Guillermo the crew, with the exception of the accused, seized the captain and tied him with the rope. After he had been rendered helpless Guillermo struck him in the back of the neck with an iron bar an then, delivering the weapon to the accused, ordered him to come forward and assist in disposing of the captain. The accused thereupon seized the bar and, while the captain was still struggling struck him a blow on the head which caused his death. The sole defense of the accused is that, in killing the captain, he was acting under the impulse of an uncontrollable fear of a greater injury induced by the threat of Guillermo, the chief mate, and that he was so absolutely overwhelmed thereby that, in striking the blow which killed the captain, he acted without volition of his own and was reduced to a mere instrument in the hands of the chief mate. The learned trial court refused to accept this defense holding that the chief mate did not exercise such influence over the accused as amounted to an uncontrollable fear or that deprived him of his volition. We are satisfied from the evidence that the finding of the trial court was correct. It was held by the supreme court of Spain in a decision of the 5th of November, 1880, that "a threat, in order to induce insuperable fear, must promise such grave results, and such results must be so imminent, that the common run of men would succumb. The crime threatened must be greater than, or at least equal to, that which we are compelled to commit." In a decision of the same court of April 14, 1871, it was said that "inducement must precede the act induced and must be so influential in producing the criminal act that without it the act would not have been performed." That is substantially the principle which is at the bottom of subdivision 9 of article 8 of the Penal Code. That article defines the different circumstances under which a person will be exempt from criminal liability. Subdivision 9 thereof covers "any person who acts under the compulsion of an irresistible force." The foundation of these decisions and the basis of the defense in this case is subdivision 10, which exempts from liability "any person who acts under the impulse of an uncontrollable fear of an equal or greater injury." As we have already intimated, before a force can be considered to be an irresistible one, it must produce such an effect upon the individual that, in spite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It must be such that, in spite of the resistance of the person on whom it operates, it compels his members to act and his mind to obey. He must act not only without will but against will. Such a force can never consist anything which springs primarily from the man himself; it must be a force which acts upon him from the outside and by means of a third person. In order that one may take advantage of subdivision 10 of article 8 and allege with success that he acted under the impulse of an uncontrollable fear of an equal or greater injury, it must appear that the threat which caused the uncontrollable fear related to a crime of such gravity and so imminent that it might safely be said that the ordinary run of men would have been governed by it. And the evil threatened must be greater than, or at least equal to, that which he is compelled to cause. The legislature by this enactment did not intend to say that any fear would exempt one from performing his legal duty. It was intended simply to exempt from criminal responsibility when the threat promised an evil as grave, at the very least, as that which the one threatened was asked to produce. Viada in his commentaries on this subdivision of article 8 of the Penal Code gives this illustration: Certain evil-minded persons seize me and threaten me with death If I do not set fire to a neighbor's house; if I perform the act under such threat, as grave as it is imminent, I would fall within the exemption from criminal responsibility provided for in this number; but if the same persons threatened to lay waste my forest if I do not kill my father my act would not come within the exemption for the reason that the evil with which I was threatened was much less than that of killing my father. The evidence fails to establish that the threat directed to the accused by the chief mate, if any, was of such a character as to deprive him of all volition and to make him a mere instrument without will of his own but one moved exclusively by him who threatened. Nor does the threat appear to have been such, or to have been made under such circumstances, that the accused could reasonably have expected that he would suffer material injury if he refused to comply. In other words, the fear was not insuperable. Indeed, it is doubtful if any threat at all in the true sense was made; certainly none of such serious nature as would justify an illegal act on the part of the accused This discussion disposes of the first error assigned by counsel for the appellant. The second relates to the finding of the trial court that the crime committed was murder instead of homicide; and counsel for appellant urge, under this assignment, that the evidence does not sustain the finding of any qualifying circumstance which would raise the crime from the grade of homicide to that of murder. It is quite true, as counsel argue, that qualifying circumstances must be as clearly proved and established as the crime itself; and, unless the evidence in this case shows beyond a reasonable doubt that the crime was committed with one or more of the qualifying circumstances required by the Penal Code to constitute murder, it must be denominated homicide and not murder. (U. S. vs. Beecham, 15 Phil. Rep., 272; U. S. vs. Gavarlan, 18 Phil. Rep., 510; U. S. vs. Aslul, 21 Phil. Rep., 65; U. S. vs. Ibaez, 19 Phil. Rep., 463; U. S. vs. Macuti, 26 Phil. Rep., 170; U. S. vs. Amoroso, 5 Phil. Rep., 466; U. S. vs. Cagara, 5 Phil. Rep., 277.) We agree with counsel that the evidence does not establish the existence of premeditation as a qualifying circumstance. In the case of United States vs. Baagale (24 Phil. Rep., 69), the court said with respect to the facts which must be proved to establish premeditation: The record does not show whether Banagale, upon extending the invitation to Domingo Posada through Mariano Ilao, did so for the purpose of killing the former, inasmuch as there is no proof that he had resolved upon doing so, through deliberation, meditation, and reflection, and performed acts revealing his criminal purpose, some days or even hours prior to carrying out his criminal determination to kill the unfortunate Posada. Article 10, circumstance 7, of the Penal Code establishes the requisite that the criminal should have acted, in the perpetration of the crime, with deliberate premeditation or that he should have prepared for its commission by outward acts such as denote in the agent a persistent criminal purpose and a meditated resolution to consummate the deed. (U. S. vs. Nalua and Kadayum, 23 Phil. Rep., 1 ; U. S. vs. Alvarez, 3 Phil. Rep., 24; U. S. vs. Lasada and Lasada, 21 Phil. Rep., 287; U. S. vs. Catigbac, 4 Phil. Rep., 259; U. S. vs. Angeles, 6 Phil. Rep., 480; U. S. vs. Idica, 3 Phil. Rep., 313; U. S. vs. Buncad, 25 Phil. Rep., 530.) In the case at bar it does not appear that there was ever any consideration of the question of killing the captain of the launch by the members of the crew, in which this accused took part. The matter, so far as the evidence goes, was never mentioned except on the day before the crime was committed and then in such a way as not to show any fixed purpose or determination even on the part of the chief mate and much less on that of the accused. The fact that he, with the rest of the crew, answered the call of the chief mate while he was engaged in his endeavor to make way with the captain is not sufficient by itself, or in connection with the conversation of the day before, to establish that sustained reflection and continued persistence which are the special features of the qualifying circumstance of premeditation. It does not appear that the accused had even thought of taking any part in the death of the captain up to the very moment when the iron bar with which he

10

dealt the fatal blow was handed him by the chief mate. Under such circumstances it is error to find the existence of premeditation as a qualifying circumstance (U. S. vs. Beecham, 15 Phil. Rep., 272.) We cannot agree with counsel fro the appellant that the qualifying circumstance of treachery, or alevosia, has not been proved. It appears undisputed that, at the time the accused struck the deceased with the iron bar and thereby caused his death, the latter was bound hand and foot and was helpless and defenseless. While it is quite true that there was no treachery at the beginning of the struggle terminating in the death of the captain, that is, the initial attack was open and fair, the struggle being man to man between the chief mate and the captain, both unarmed, this does not necessarily dispose of the question of treachery. This court has held repeatedly that, even though the beginning of an attack resulting in the death of the deceased is free from treachery of any sort, nevertheless it will be found present if, at the time the fatal blow is struck, the deceased is helpless and unable to defend himself. While the writer of this opinion holds the view that, where there is not treachery in the attack which results in the death of the deceased, there can be no treachery which will qualify the crime as murder notwithstanding the fact that, at the time the fatal blow was struck, the deceased was unarmed and defenseless, but, the court having held so frequently the contrary, the writer accepts the doctrine so well established. Counsel for the appellant, however, maintain that the doctrine of the court in this regard was modified in the case of United States vs. Balagtas and Jaime (19 Phil. Rep., 164). In that case the deceased was walking with the two accused in single file in a narrow street, the deceased being between the other two. When they were about ninety yards from any house and while in an obscure place on the railroad track, at about eight o'clock at night, the deceased was knocked down, and while down was struck two or three blows in the face and rendered practically unconscious. While in this unconscious condition, but still groaning, the two defendants, one taking him by the head and the other by the feet, carried him across the embankment, which was alongside the railroad track, and threw him into a small pond of water, face downward. The defendants then returned to their house. The deceased remained in that position until the following day when his body was found there by the policemen, Hartpence and Solis, who conducted the body to the morgue where it was later identified as that of Simeon Flores by Valentin Franco, a friend and neighbor of the deceased. The question arose in that case, under the facts just stated, whether the act of throwing the deceased into the water while he was still alive but in a perfectly helpless and defenseless condition constituted alevosia, and made the crime murder instead of homicide. It will be noted that the attack was not treacherously made, that is, begun with treachery. This the court held; and, therefore, if that element is to be found at all in the case it must be found from the fact that the decease was thrown into the water and drowned while he was unconscious and in a helpless and defenseless condition. Discussing that question the court said: But assuming that the deceased would have recovered from the effects of the four wounds, if he had not been thrown into the water, yet we still think that the proofs fail to show that there was present treachery, as the knocking down of the deceased, striking him while on the ground, and throwing him into the water were all done in so short a time and one movement followed the other in such rapid succession. constitute one and the same attack. In order that treachery may be considered as a qualifying circumstance to raise the classification of the crime, or as an aggravating circumstance to augment the penalty, it must be shown that the treacherous acts were present at and preceded the commencement of the attack which caused the injury complained of. After the commencement of such an attack and before its termination an accused person may have employed means or methods which were of a treacherous character, and yet such means or methods would not constitute the circumstance of alevosia. One continuous attack, such as the one which resulted in the death of the deceased Flores, cannot be broken up into two or more parts and made to constitute separate, distinct, and independent attacks so that treachery may be injected therein and considered as a qualifying or aggravating circumstance. While the writer of this opinion is inclined to agree with the contention of counsel that the doctrine laid down in this case is quite different from, if not directly opposed to, that already stated as, theretofore, the unform holding of this court, nevertheless the majority of the court being of the opinion that it was not the intention of the court in the case just cited to reverse the previous decisions of this court and to set down a new doctrine, the writer accepts that view, particularly in the face of the almost unbroken line of decisions on the subject now to be reffered to. In the case of United States vs. De Leon (1 Phil. Rep., 163), it appeared that the accused entered the house of the deceased, drew their bolos and compelled him to follow them. On arriving at a place called Bulutong the deceased was bound and in that condition murdered. It was held that the fact that the accused was bound at the time he was killed, although there was no treachery at the beginning of the assault resulting in his death, the qualifying circumstance was present. The court said: From the evidence there appears the qualifying circumstance of treachery. To show this it is only necessary to mention the fact that the deceased was bound. The head note to that case says: The fact that the deceased was bound while killed constitutes the qualificative circumstance of alevosia and raises the crime to the degree of murder, . . . . The same was held in the case of U. S. vs. Ricafor (1 Phil. Rep., 173); U. S. vs. Santos (1 Phil. Rep., 222); U. S. vs. Abelinde (1 Phil. Rep., 568); U. S. vs. Hinto Santos (2 Phil. Rep., 453); U. S. vs. Jamino (3 Phil. Rep., 102); U. S. vs. Abaigar (2 Phil. Rep., 417); U. S. vs. Gloria (3 Phil. Rep., 333); U. S. vs. Gabriel (4 Phil. Rep., 165); U. S. vs. Doon (4 Phil. Rep., 249) U. S. vs. Colombro (8 Phil. Rep., 391); U. S. vs. Tupas (9 Phil. Rep., 506); U. S. vs. Nalua and Kadayum (23 Phil. Rep., 1); U. S. vs. Indanan (24 Phil. Rep., 203); U. S. vs. Reyes and De la Cruz (11 Phil. Rep., 225) For these reasons we are of the opinion that the crime was committed with treachery and that it was properly denominated murder instead of homicide. The third error assigned charged that the court erred in refusing to apply article 11 of the Penal Code in favor of the accused. We do not agree with this contention. The personal qualities and characteristics of the accused are matters particularly cognizable by the trial court; and the application of this section is peculiarly within the discretion of that court. 1awph!l.net There being neither aggravating nor extenuating circumstances, the judgment appealed from is reversed and the accused is hereby sentenced to cadena perpetua. No costs in this instance. So ordered. Torres J., concurs with the exception of that part of the decision that refers to the application of article 11 of the Penal Code. Johnson, J., concurs in the result. Separate Opinions TRENT, J., concurring: I concur in the disposition of this case, but desire to observe that I find nothing in the briefs of counsel to the effect that the doctrine laid down in the case of the United States vs. Balagtas (19 Phil. Rep., 164) "is quite different from, if not directly opposed to, that already stated as, theretofore, the uniform holding of this court." In fact, counsel for the defendant cite three cases of this court in support of the same proposition as that in support of which United States vs. Balagtas was cited. The rule laid down in this case is not in conflict with the other cases cited in the majority opinion. I also desire to observe that if the court, in saying that "the personal qualities and characteristics of the accused are matters particularly cognizable by the trial court; and the application of this section is peculiarly within the discretion of that court," intends to holds that this court has no power or authority to apply article 11 of the Penal Code, as amended, as an extenuating circumstance, if the trial court has declined to do so, or vice versa, I cannot consent to such holding

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ARAULLO, J., concurring: Although, as a general rule, the trial judge has better opportunity than this court to determine whether the provision of article 11 of the Penal Code, as amended by Act No. 2142 of the Philippine Legislature, should be taken into account for the purpose of increasing or diminishing the penalty that should be imposed upon the defendant; yet, as one of the assignments of error is based on the trial judge's failure to apply this article in one or the other of the senses mentioned, it is my own opinion that this court, after reviewing all the evidence of record and taking into account the said legal provisions, should decide whether the trial judge did or did not incur the error attributed to him With this observation, and being of the belief that the said article 11 of the Penal Code as amended by the Act above cited should not be applied in the present case to increase or diminish the penalty fixed for the crime committed by the defendant and which should be imposed upon him, I concur in the preceding decision. Carson, J., concurs. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO ABANES and MELECIO BENITEZ, defendants-appellants. Jose T. de los Santos for appellant Roberto Abanes. Honorio Poblador, Jr. for appellant Melecio Benitez. Solicitor General Felix Q. Antonio, Assistant Solicitor Crispin V. Baustista and Solicitor Leonardo I. Cruz for appellee. CONCEPCION JR, J.:t.hqw Defendants were convicted of the crime of murder with the qualifying circumstance of treachery and sentenced to suffer the penalty of life imprisonment, and to indemnify the heirs of the late Eustaquio Colobong in the amount of P12,000.00, jointly and severally. From this decision, they appealed. Benitez subsequently withdrew his appeal; hence only the appeal of Abanes is before Us. The incident in question took place in Bo. Banawang, San Roque, Agoo, La Union, on October 9, 1967. At about 5:00 o'clock in the afternoon of that day, appellant Roberto Abanes and victim Eustaquio Colobong, a half- wit, were in the yard of one Rolly Laroza. Melecio Benitez was also present, talking with Laroza. Moments later, Abanes and Colobong were seen walking together towards the north direction of Bo. Banawang, San Roque, followed by Benitez. That was the last time Eustaquio Colobong was seen alive. An hour later, his body was found near the bridge of San Roque under a bamboo tree. As shown in the autopsy report 1 of Dr. Fidel Verceles, the deceased sustained five stab wounds from which he died. The incident was reported to the police authorities who lost no time in going to the scene of the crime. With the aid of a brother of Roberto Abanes, policeman Alejandro Ulat found the fatal weapon 2 a three-bladed edge sharp instrument, known locally in that area as "tres cantos", about ten meters from the house of appellant Abanes. Because he was one of the two persons last seen with the victim while the latter was still alive, and because of the discovery of the weapon near his house, Abanes was apprehended and brought to the municipal building for questioning. At that investigation, he admitted in writings 3 having stabbed the deceased and implicated Melecio Benitez in the commission of the crime. How did the victim die? The evidence of record establishes that on the day in question Abanes, Benitez and the deceased were on their way to the house of the barrio captain because the deceased had told the two of them that there were raw shrimps to be eaten thereat. Benitez was in an ugly mood, considering that before they left the yard of Laroza, he (Benitez) uttered the following words: "If somebody will make trouble in San Roque, I will kill him." While the three were thus walking along the dike with the deceased leading the way, Benitez told Abanes to ask the deceased if indeed there were raw shrimps to be eaten at the house of the barrio captain, and if the deceased was just fooling them to stab him. Without much ado, Abanes suddenly stabbed from behind the unarmed and unsuspecting Colobong who had not given any provocation whatsoever for the attack. Immediately thereafter, Benitez grabbed the weapon from Abanes and himself stabbed the victim three times without giving the latter a chance to evade the attack or make any defense whatsoever. These stab wounds were the direct and immediate cause of the victim's death. When Abanes testified in his own behalf, he denied having signed a written confession. He stated that on the date and time in question, while he was walking along the dike towards the house of the barrio captain with Eustaquio Colobong ahead of him and Melecio Benitez behind him, he was enticed by the latter to stab the victim if the latter was just fooling them in stating that there were raw shrimps to be eaten in the house of the barrio captain. Abanes claimed that Benitez threatened to kill him if he (Abanes) would not stab the victim; and that out of fear of Benitez whom he knew to be a tough guy and quite capable of killing him, he was forced to follow the order. In this appeal, Roberto Abanes insists on his plea that he stabbed the deceased under the compulsion of an irresistible force and/or an uncontrollable fear of an equal or greater injury; and, furthermore, that if found guilty, he should be entitled to, as mitigating, the alternative circumstance of degree of instruction and education for the reason that he studied only up to Grade One. There is nothing in the record to sustain this allegation. While Abanes claims that Benitez was armed with a brass knuckle, there is no showing that he ever tried to use it against Abanes nor did he ever lift a finger to exact the latter's cooperation in the execution of the crime. Before a force can be considered to be an irresistible one, it must produce such an effect upon the individual that, inspite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It must be such that, inspite of the resistance of the person on whom it operates, it compels his members to act and his mind to obey. 4 Neither can we consider the claim of uncontrollable fear of an equal or greater injury in favor of Abanes. A mere threat of a future injury is not enough. Fear in order to be a valid defense, should be based on a real, imminent or reasonable fear for one's life or limb. In this case, the fear, if any, harbored by Abanes was imaginary and speculative. This is not the uncontrollable fear contemplated by law. Furthermore, when Benitez allegedly gave the order to stab the deceased, Abanes was armed and yet he did not offer any resistance. Neither did he warn the intended victim of the impending peril. And finally, the act of Abanes in not fleeing but instead of waiting for Benitez while the latter was stabbing the victim belies his claim of fear of Benitez. Likewise, lack of instruction or education can not be appreciated in favor of Roberto Abanes as a mitigating circumstance. The criteria in determining lack of education is not illiteracy alone, but rather lack of sufficient intelligence. 5 The record discloses that far from his claim that he suffers from lack of education, appellant possesses an intelligence worthy of an educated man. In fact, the trial court observed that he talked as if he were a doctor. 6 WHEREFORE, finding the appealed decision to be in accordance with the law and the evidence, we hereby affirm the same without costs. Abanes should be credited in full for the period of his preventive imprisonment, if he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, with four-fifths thereof. 7

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