Crim Part 2 - 1

1
Republic of the Philippines

SUPREME COURT
Baguio
FIRST DIVISION
G.R. No. 102140 April 22, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO MANLULU AND DANTE SAMSON, accused-appellants.
The Solicitor General for plaintiff-appellee.
Celso P. De Las Alas for accused-appellants.
BELLOSILLO, J.:
GERARDO ALFARO, a NARCOM agent, was stabbed and shot with his service pistol
in a drinking spree. He died in the hospital the following day. His drinking partners,
Rolando Manlulu and Dante Samson, were haled to court for his violent death.
The prosecution charges that Manlulu and Samson conspired in the murder of Agent
Alfaro. The accused on the other hand invoke self-defense. They also insist that the
non-issuance of a search warrant and warrant of arrest should nullify their arrest and
consequently exclude from judicial consideration the evidence thus obtained.
But the trial court was not convinced. It found accused Dante Samson and Rolando
Manlulu "guilty beyond reasonable doubt as principals in the crime of Murder defined
and penalized under Article 248 of The Revised Penal Code with the mitigating
circumstance of voluntary surrender on the part of Dante Samson and no mitigating
circumstance modifying the commission of the offense on the part of Rolando
Manlulu." 1 As a result, accused Dante Samson was sentenced to a prison term of ten
(10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum, while accused
Rolando Manlulu, to twelve (12) years, five (5) months and eleven (11) days
of reclusion temporal, as minimum, to eighteen (18) years, eight (8) months and one
(1) day of reclusion perpetua as maximum. They were also sentenced jointly to
indemnify the offended party P30,000.00 as compensatory damages and P10,410.00
for hospitalization and funeral expenses, and to pay the costs.
Upon review, the appellate court raised their penalties to reclusion perpetua and
certified the case to this Court pursuant to Sec. 13, Rule 124, of the 1985 Rules on
Criminal Procedure. 2
Testifying for the prosecution, Wally Manlapaz, a.k.a. Crisanto Meneses, narrated that
at around ten o'clock in the evening of 29 May 1986, he and accused Dante Samson
and Rolando Manlulu were having a drinking spree in an alley along Quirino Avenue,
Paco, Manila. They were later joined by Agent Gerardo Alfaro who had a .45 cal.
pistol tucked to his waist. When Alfaro arrived he blurted out, "Dito may kumakatalo
sa aking tao." 3 At twelve o'clock midnight, the group transferred in front of the house
of Manlapaz and continued to drink. There Samson suddenly stabbed Alfaro in the
chest with a 6-inch double-bladed knife while boasting, "Dapat sa iyo manahimik
na." 4 Alfaro at this time was "somewhat bent because he was already
drunk." 5 Manlulu then followed suit and stabbed Alfaro in the abdomen several times
with an ice pick they used to chip ice. Samson grabbed the .45 cal. service pistol of
Alfaro and shot him in the neck. When Alfaro slumped on the pavement, both
accused fled, with Samson holding Alfaro's handgun. After a few seconds, both
accused returned and got Alfaro's wristwatch and wallet. 6
Noel Pagco, another witness for the prosecution, recounted that at the time of the
shooting he was outside the alley where the accused and the deceased were
drinking. After hearing a gunshot coming from the direction of the alley, he saw Dante
Samson and Rolando Manlulu coming out the alley, the former tucking a gun in his
waist and sporting a watch on his right wrist, and the latter holding an ice pick. 7
As already adverted to, both accused invoke self- defense. According to Samson,
while they were drinking, and after taking ekis pinoy, 8 Alfaro said he had a "prospect"
and invited them to go with him. Thinking that "prospect" meant they were going to
rob somebody, Samson excused himself by saying that he had just been released
from prison, and had yet to fetch his wife. Alfaro, apparently resenting Samson's
unwillingness to join them, drew his gun and pointed it to Samson who parried it
saying: "Pare, wala tayong biruan ng ganyan. Baka pumutok iyan." But Alfaro
repeatedly pointed the gun to him. Every time he did, Samson would push the gun
aside. Fearful that it might go off, he held the gun and tried to ward it off, resulting in a
struggle for its possession. He got hold of the ice pick on top of the drum and stabbed
Alfaro instinctively. Manlapaz tried to separate them; as a consequence, Samson
dropped the ice pick. As Samson and Alfaro continued to wrestle for the possession
of the gun, they fell on the ground and the gun accidentally went off hitting Alfaro in
the neck. Rattled, Samson immediately fled. He then fetched his wife from Malate,
proceeded to Pasay City, and sent word to his father who later accompanied him to
surrender to Capt. Pring of the Homicide Division of the Western Police District. When
he fled, he left behind Alfaro's gun. 9
Rolando Manlulu corroborated the testimony of his co-accused. He added that he
picked up the ice pick when it fell, and fearing that he might be the next victim should
Alfaro succeed in shooting Samson, he (Manlulu) stabbed Alfaro several times with
the ice pick, then dropped it, and ran away. He looked back and saw Samson and
Alfaro fall on the pavement. Almost simultaneously, the gun went off. 10
Patrolman Reynaldo Perez recounted that at around seven o'clock in the evening of
30 May 1986 he, together with some other officers, arrested Manlulu on the
information given by Manlapaz. He said that he seized from Manlulu the .45 cal. pistol
and Casio wristwatch said to belong to Alfaro, 11 and that Manlulu verbally confessed
to the commission of the crime. Patrolman Perez however admitted on crossexamination that when he arrested Manlulu and seized from him the handgun as well
as the wristwatch, he (Perez) was not with any warrant nor did he inform the accused
of the latter's right to counsel. Perez added that at that time Manlulu was under the
influence of liquor. 12
Dr. Marcial Ceido, Medico-Legal Officer of the Western Police District, confirmed that
Alfaro sustained nine (9) wounds, four (4) of them fatal, i.e., a gunshot wound in the
2
neck; a penetrating stab wound probably caused by a bladed weapon, and two (2)
stab wounds probably caused by an ice pick. 13
In this appeal, accused Manlulu and Samson would want us to believe, first, in their
version of the incident, and next, that they acted in self-defense.
The account of the appellants does not inspire belief. A review of the testimony of
Manlapaz, who admittedly had drunk a little too much, reveals that his story tallies not
only with some accounts of accused Samson and Manlulu but also with the findings
of Dr. Ceido. Hence, except for the actual attack on the victim, the testimonies of
Samson and Manlulu square with that of Manlapaz, including the conversation that
took place. Thus we give credence to the testimony of Manlapaz that Samson used a
bladed weapon and not an ice pick in stabbing Alfaro, contrary to what Samson would
want us to believe. This version of Manlapaz is consistent with the necropsy report of
Dr. Ceido which states that the deceased had a penetrating stab wound which could
have been caused by a bladed weapon. That Manlulu according to Manlapaz used an
ice pick in repeatedly stabbing Alfaro was not only admitted by Manlulu on the witness
stand but is confirmed likewise by the medical findings of Dr. Ceido.
If Manlapaz was indeed too drunk to recall the events that transpired before the
actual killing, then in all probability he could not have remembered the weapons used
by the accused. Certainly, eyewitness Manlapaz could not have been so drunk as to
muddle those incidents which impute guilt to the accused and recall only those which
are consistent with their innocence.
Similarly, we cannot disregard those portions of the testimonies of the two accused
which tend to confirm the narration of Manlapaz. Expectedly, the accused will refute
the statements tending to establish their culpability. Hence, they have to differ in
some respects from the narration of Manlapaz. Since it appears from the testimony of
Manlapaz that he had not yet reached that degree of intoxication where he would
have otherwise lost control of his mental faculties, we find his version to be credible
as it conforms with the autopsy report and admissions of both accused. 14 Thus, we
sustain the factual findings of the trial court and reject the version of the defense. But,
even if we consider the theory of the accused thus far if only to satisfy them, still they
cannot elude the consequences of their felonious acts. By invoking self-defense, the
accused admit killing Alfaro. The burden of proof is thus shifted to them. Their duty
now is to establish by clear and convincing evidence the lawful justification for the
killing. 15 In this regard, they have miserably failed.
The three (3) requisites for self-defense are: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it; and, (3)
lack of sufficient provocation on the part of the person defending himself. 16 For selfdefense to prosper, it must be positively shown that there was a previous unlawful
and unprovoked attack that placed the life of the accused in danger which forced him
to inflict more or less severe wounds upon his assailant, employing therefore
reasonable means to resist said attack. 17
Here, at the outset, the two accused have already failed to show that there was
unlawful aggression on the part of Alfaro. A gun aimed at the accused, without more,
is insufficient to prove unlawful aggression. For unlawful aggression to be appreciated
in self-defense, there must be an actual, sudden and unexpected attack or imminent

danger thereof, and not merely a threatening or intimidating attitude. 18
Even the means employed to repel or prevent the supposed attack was not
reasonable. For, even if we disregard the gunshot wound which Samson claims to
have resulted from an accidental firing, the victim also suffered seven other stab
wounds, three of which were fatal, one of which was admittedly inflicted by Samson,
while the other two, by accused Manlulu. Definitely, it was not necessary to stab,
more so repeatedly, the victim. Considering their relative positions as they drank each within the other's reach all that was necessary was for the two accused to
band together and overpower the lone victim with their bare hands, assuming the
deceased was indeed pointing his gun at one of them. A stab wound may not
necessarily be fatal and thus enable the victim to fire his gun. But a firm grasp by the
two accused of the victim's arm holding the gun, or of the gun itself, could prevent the
victim from shooting them. At any rate, the number of wounds suffered by Alfaro
indicates a determined effort of both accused to kill the victim, which negates selfdefense. 19
Furthermore, their flight from the scene of the crime is a strong indication of their
guilt. 20 Indeed, a righteous individual will not cower in fear and unabashedly admit the
killing at the earliest opportunity if he were morally justified in so doing. A belated plea
suggests that it is false and only an afterthought made as a last ditch effort to avoid
the consequences of the
crime. 21 If the accused honestly believed that their acts constituted self-defense
against the unlawful aggression of the victim, they should have reported the incident
to the police, instead of escaping and avoiding the authorities until they were either
arrested or prevailed upon to surrender. 22
The reliance of the accused on the Constitution however is warranted. Certainly, the
police authorities should have first obtained a warrant for the arrest of accused
Rolando Manlulu, and for the search and seizure of his personal effects. The killing
took place at one o'clock in the morning. The arrest and the consequent search and
seizure came at around seven o'clock that evening, some nineteen hours later. This
instance cannot come within the purview of a valid warrantless arrest. Paragraph (b),
Sec. 5, Rule 113 of the 1985 Rules on Criminal Procedure provides that the arresting
officer must have "personal knowledge" of an offense which "has in fact just been
committed." In the instant case, neither did Pat. Perez have "personal knowledge,"
nor was the offense "in fact just been committed." While Pat. Perez may have
personally gathered the information which led to the arrest of Manlulu, that is not
enough. The law requires "personal knowledge." Obviously, "personal gathering of
information" is different from "personal knowledge." The rule requires that the arrest
immediately follows the commission of the offense, not some nineteen hours later.
This is not any different from People v. Cendana 23 where the accused was arrested
one day after the killing of the victim, and only on the basis of information obtained by
the police officers. There we said that the "circumstances clearly belie a lawful
warrantless arrest."
However, the flaw, fatal as it may be, becomes moot in view of the eyewitness
account of Manlapaz which we find to be credible. Hence, in spite of the nullification
3
of the arrest of accused Manlulu, and the exclusion of real evidence, i.e., the .45 cal.
service pistol of Agent Alfaro and his Casio wristwatch, as well as his extra-judicial
confession which was taken in violation of the provisions of the Constitution, still the
prosecution was able to prove the guilt of the accused beyond reasonable doubt.
After all, the illegality of the warrantless arrest cannot deprive the state of its right to
prosecute the guilty when all other facts on record point to their culpability. 24
While we confirm the factual findings of the trial court, which were affirmed by the
appellate court, we nevertheless differ from the conclusions drawn that treachery and
conspiracy attended the killing of Alfaro. Indeed, there is serious doubt as to whether
treachery could be appreciated against the two accused. There is nothing on record
to show that both accused deliberately employed means tending to insure the killing
of Alfaro without risk to themselves arising from the defense which the latter might
make. It must be noted that Alfaro set the mood of the evening with a threatening tone
that someone in the group was provoking him. Clearly, the attack on Alfaro who was
then armed with a .45 cal. revolver by Samson who on the other hand was merely
armed with a knife could not have been so sudden as to catch the former off-guard. In
fact, Manlapaz testified that after Samson's initial attack on Alfaro the latter was even
able to push Samson back. 25 Even Manlulu, who impulsively stabbed the victim, only
picked up the ice pick they were using to chip ice. Taking into account the attendant
circumstances, our minds cannot rest easy in appreciating the aggravating
circumstance of treachery. Hence, the two accused may only be convicted of simple
homicide.
There was no conspiracy likewise in the killing of Alfaro. Settled is the rule that neither
joint nor simultaneous actionper se is a sufficient indicium of conspiracy. 26 The
evidence shows that it was the victim who chanced upon Manlapaz and the two
accused drinking, and decided to join them. Accused Manlulu was not even armed
when he went to the drinking spree. We have often said that conspiracy must be
established beyond reasonable doubt. Here, the prosecution failed to show that
Manlulu and Samson conspired to kill Alfaro. There being no conspiracy, each is liable
for his own acts.
The penalty for homicide is reclusion temporal 27 the range of which is twelve (12)
years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law
to accused Rolando Manlulu, there being no mitigating nor aggravating circumstance,
the maximum of his penalty shall be taken from the medium period of reclusion
temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken from the penalty
next lower in degree, which is prision mayor, the range of which is six (6) years and
one (1) day to twelve (12) years, in any of its periods.
As regards accused Dante Samson, although he is entitled to the mitigating
circumstance of voluntary surrender, the same is offset by reiteracion or habituality he
having previously been convicted once of robbery and thrice of theft 28 within ten (10)
years prior to this incident, each time serving sentence therefor, which further bars
him from availing of the provisions of the Indeterminate Sentence
Law. 29 Consequently, he should be sentenced to reclusion temporal medium the
range of which is fourteen (14) years, eight (8) months and one (1) day to seventeen
(17) years and four (4) months. Furthermore, being a habitual delinquent as defined
in the last paragraph of Art. 62 of The Revised Penal Code, 30 he should serve an
additional penalty within the range of prision mayor maximum to reclusion
temporal minimum. 31 And, as correctly determined by the appellate court, the civil
liability of both accused is increased from P30,000.00 to P50,000.00. In addition, both
accused are liable to indemnify the heirs of their victim in the amount of P10,410.00
for hospitalization and funeral expenses.
WHEREFORE, the judgment appealed from is modified as follows:
(a) ROLANDO MANLULU is found guilty of HOMICIDE and is sentenced to an
indeterminate prison term of eight (8) years, two (2) months and one (1) day
of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal medium, as maximum;
(b) DANTE SAMSON is found guilty of HOMICIDE and is sentenced to a straight
prison term of fourteen (14) years, ten (10) months and twenty (20) days of reclusion
temporal medium and, for being a habitual delinquent, is ordered to serve an
additional penalty of ten (10) years and one (1) day of prision mayor maximum; and
(c) ROLANDO MANLULU and DANTE SAMSON are directed jointly and severally to
pay the heirs of Gerardo Alfaro the amount of P50,000.00 as civil indemnity and
P10,410.00 as death and funeral expenses, with costs.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
#Footnotes
1 Decision penned by Judge Elisa R. Israel, Regional Trial Court of Manila, Branch 4, p. 13.
2 Decision penned by Justice Consuelo Ynares Santiago, concurred in by Justices Ricardo L.
Pronove, Jr. (Chairman), and Nicolas P. Lapea, Jr., Fifteenth Division, Court of Appeals.
3 TSN, 7 September 1987, p. 3, 22 December 1986, pp. 17-20.
4 Id., pp. 6-9.
5 Ibid.
6 Ibid.
7 Id., 7 April 1987, pp. 3-8.
8 A prohibited drug distributed by accused Alfaro.
9 TSN, 7 September 1987, pp. 9-16.
10 Id., 27 October 1987, pp. 13-18.
11 Id., 24 February 1987, pp. 4-5.
12 Id., pp. 13-15.
13 Id., 6 April 1987, pp. 5-8.
14 People v. Molina, G.R. No. 59436, 28 August 1992, 213 SCRA 52.
15 People v. Boniao, G.R. No. 100800, 27 January 1993, 217 SCRA 653; People v. Mindac, G.R. No.
83030, 14 December 1992, 216 SCRA 558.
16 Par. 1, Art. 11, The Revised Penal Code.
17 People v. Amania, G.R. No. 97612, 23 March 1993, 220 SCRA 347.
18 People v. Salazar, G.R. No. 84391, 7 April 1993, 221 SCRA 170, citing People v. Rey, G.R. No.
80089, 13 April 1989, 172 SCRA 149 and People v. Bayocot, G.R. No. 55285, 28 June 1989, 174
SCRA 285.
19 See People v. Sagadsad, G.R. No. 88042, 13 November 1992, 215 SCRA 641.
20 People v. Rivera, G.R. No. 101798, 10 May 1993, 221 SCRA 647; People v. Molina, G.R. No.
59436, 28 August 1992, 213 SCRA 52.
21 People v. Salazar, see Note 18.
22 See Note 20, Ibid.
23 G.R. No. 84715, 17 October 1990, 190 SCRA 538.
24 People v. Briones, G.R. No. 90319, 15 October 1991, 202 SCRA 708.
25 TSN, 22 December 1986, p. 7.
26 People v. Regular, No. L-38674, 30 September 1981, 108 SCRA 23, citing U.S. v. Magcomot, 13
Phil. 386 and People v. Caballero, 53 Phil. 585.
27 Art. 249, The Revised Penal Code.
28 Accused Dante Samson first served sentence for robbery on 29 January 1975 and was paroled on
11 July 1975, then imprisoned for theft on 31 October 1979 and discharged on 6 April 1980, then
again committed to prison for simple theft on 8 October 1980 and discharged on 13 May 1982, and
finally recommitted for theft on 18 April 1983 and discharged on 23 September 1983; Exhs. "S" and
"S-1" (Records, pp. 11-12) and TSN, 5 October 1987, pp. 5-6.
4
29 Sec. 2, Act No. 4103, as amended.
30 The last paragraph of Art. 62 of The Revised Penal Code reads: "For purposes of this article, a
person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his
release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa,
or falsification, he is found guilty of any of said crimes a third time or oftener."
31 Par. 5(c), Art. 62, The Revised Penal Code.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56358 October 26, 1990
vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accusedappellants.
Fil C. Veloso counsel de oficio for Luis B. Toring.
Joel P. Alino for Berdon and Berdin.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the
Circuit Criminal Court in Cebu City in Criminal Case No. CCC-XIV-2170, the
dispositive portion of which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty
beyond reasonable doubt of the crime of MURDER by direct
participation as principal; Diosdado Berdon as accomplice thereto;
and Carmelo Berdin as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating
circumstance of voluntary surrender, the said circumstance having
been offset by the aggravating circumstance of nighttime, the
accused Luis Toring should be, as he is, hereby sentenced to the
penalty of RECLUSION PERPETUA, with the accessory penalties
of law.
There being neither mitigating nor aggravating circumstances on
the part of the accused Diosdado Berdon, the said accused should
as he is hereby sentenced to the indeterminate penalty of from SIX
(6) YEARS of Prision Correccional, as minimum, to TWELVE (12)
and ONE (1) DAY of ReclusionTemporal, as maximum, with the
accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged
mitigating circumstance of minority, the said accused being only 17
years of age, the accused Carmelo Berdin should be, as he is,
sentenced to the penalty of SIX (6) MONTHS and ONE (1) DAY of
Prision Correccional, with the accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the
deceased Samuel Augusto for actual and compensatory damages
in the sum of P15,000.00 and for moral damages in the sum of
P50,000.00, without subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit "B", is confiscated in

favor of the government.
Proportionate costs.
SO ORDERED. 1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II,
Lapu-lapu City for the last canvassing of votes for the candidates for princesses who
would reign at the sitio fiesta. As one of the candidates was the daughter of Samuel
Augusto, he and the members of his family attended the affair.
Also present were members of the kwaknit gang, a group which was noted for their
bird-like way of dancing and their propensity for drunkenness and provoking trouble.
Its president, called the "alas" king, was Luis Toring. The group was then outside the
dancing area which was ringed by benches.
At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest.
Beer and softdrinks having been served the parents of the candidates by the officers
of the Naga Chapel Association which took charge of the affair, Samuel was tipsy
when, after his daughter's proclamation, he stepped out of the dancing area to
answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and
Diosdado Berdon proceed to a dark area while whispering to each other. Diosdado
Berdon handed a knife to Luis Toring, 2 who then approached Samuel from behind,
held Samuel's left hand with his left hand, and with his right hand, stabbed with the
knife the right side of Samuel's abdomen. 3 Upon seeing Felix running towards them,
Luis Toring pulled out the knife and, together with Carmelo Berdin and Diosdado
Berdon, ran towards the dark. Felix tried to chase the three but he was not able to
catch them. He returned to where Samuel had slumped and helped others in taking
Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and
Luis when the assault occurred, Diosdado Berdon and Carmelo Berdin were poised
to deliver fist blows on Samuel just before Luis Toring stabbed him. Diosdado gave
the knife to Luis Toring. 4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The
three assailants ran towards the direction of the fields. Jacinto Lobas and Mario
Andog responded to her shouts and brought Samuel to the Opon Emergency Hospital
where he died on arrival. According to the necropsy report, 5 Samuel, who was thirty
years old, died due to massive hemorrhage secondary to the stab wound on the
abdomen. Said wound is described in the report as follows:
Stab wound, with herniation of omental issues; elliptical, 3.5 cms.
long, running vertically downward, edges clean-cut, superior
extremity rounded, inferior extremity sharp, located at the
abdominal region, right anterior aspect, 7.5 cms. to the right of
anterior median line and 107.0 cms. above right heel, directed
backward, upward and medially, involving skin and the underlying
soft tissues, penetrating right peritoneal cavity, incising inferior vena
cava, attaining an approximate depth of 15.0 cms.
5
The death weapon, a kitchen knife made of stainless steel and with a red-colored
handle, was recovered from the house of Luis Toring. According to Patrolman
Pantaleon P. Amodia, the police found out during the investigation that Luis Toring
had left the weapon with "Camilo" Berdin. When the police confronted Berdin, the
latter led them to the house of Toring which Berdin entered. When he emerged from
the house, Berdin handed the weapon to the police. 6
An information for murder was filed against Toring. Subsequently, however, the
information was amended to include Diosdado Berdon and Carmelo Berdin as
defendants. The three were charged therein with conspiracy in killing Samuel Augusto
in a treacherous manner. Berdon, it was alleged, "conveniently supplied the death
weapon" which Toring used in stabbing Samuel while Berdin allegedly concealed the
weapon to prevent its discovery by the police.7 The crime was purportedly committed
with the attendance of the generic aggravating circumstances of evident
premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring,
alias "Lowe," testified that he was not the president of the kwaknit gang. He went to
the benefit dance in the company of Venir Ybaez, Joel Escobia, Ely Amion, Abel
Pongase, Abe Berdon, Genio Berdin and Alex Augusta. Toring and his group were
standing outside the dancing area when, at around eleven o'clock in the evening,
Samuel, a known tough guy ("maldito"), approached them and held Venir Ybanez by
his collar. Then Samuel thrust the butt of his shotgun on the chin of Joel
Escobia, 8 proceeded to another group who were also gangmates of Toring, and
again, with the barrel of his shotgun, hit Eli Amion's chest several times. 9
Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist,
approached Samuel from the latter's right side and stabbed him once as he did not
intend to kill Samuel. Toring then ran towards the dark portion of the area and went
home. There, he left the knife and proceeded to the hut by the fishpond of one
Roman. 10
Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00
o'clock in the morning of May 26, 1980, Edgar Augusto, the younger brother of
Samuel, shot them. Arsenio was hit on the left leg and he stayed two months in the
hospital for the treatment of his wound. 11
At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine
Constabulary soldiers. 12They brought him to the police of Lapu-lapu City on May 28,
1980. 13 When the police asked him about the knife he used in stabbing Samuel,
Toring told them to go to Carmelo Berdin because he was the only person who knew
where Toring hid it. 14Asserting that he was the one who returned the knife to his own
house, Toring testified that Carmelo Berdin used to see him hide his weapons
upstairs because Berdin was a frequent visitor of his. 15
For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described
as "lilliputian," admitted that he witnessed the stabbing incident but he ran away with
his group immediately after because he was afraid he might be shot by Samuel. He
was with Toring when the latter hid the still bloodied knife under a trunk in Toring's
house. He was familiar with the hiding place of the knife because Toring showed it to
him and there were times when he would get the knife there upon Toring's request.
Carmelo corroborated Toring's testimony that on that fateful night, Toring carried the
knife tucked at the back of his waistline. 16
In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his
sworn statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he
took the knife from Diosdado to stab Samuel. Confronted with said statement,
Diosdado said that when he asked Toring why he implicated him, Toring allegedly
replied that he "included" Diosdado because of the case the barangay brigade had
filed against Toring. 18
According to Diosdado, he did not attend the May 25 dance because of the trouble
which erupted during the dance the night before. He did not have anything to do with
the stabbing of Samuel. He admitted, however, that a week after the incident, his
family went to barrio Andaliw Ronda, Cebu, for their yearly visit to his father-in-law. He
stayed there for fifteen days and would have stayed longer had not his mother
informed him of the subpoena addressed to him. 19
On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a
decision discrediting Toring's claim that the killing of Samuel was justified because it
was done in defense of a stranger pursuant to Article 11 (3) of the Revised Penal
Code. The lower court found that Toring was the "aggressor acting in retaliation or
revenge by reason of a running feud or long-standing grudge" between the kwaknit
gang and the group of Samuel, who, being the son of the barangay captain, was a
"power to be reckoned with." It mentioned the fact that a year before the incident in
question, Toring was shot by Edgar Augusto (Samuel's brother) and hence, in his
desire to avenge himself, Toring, "needed but a little excuse to do away with the
object of his hatred. 21
The lower court could not believe that Samuel brought along his shotgun to the dance
because he was "not reputed to be a public official or functionary entitled to possess a
firearm." Otherwise, the police and the barangay tanod would have arrested him. The
court surmised that if Samuel really carried a shotgun, he certainly must have had a
permit or license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of
Ely Amyon (Amion), prosecution witness Joel Escobia claimed that he was at the
receiving end of Samuel's thrusts with the butt of his shotgun. To the court, such
discrepancy is fatal to the defense because in appreciating the justifying circumstance
of defense of a stranger, the court must know "with definiteness the identity of the
stranger defended by the accused."22
The lower court, however, ruled out the existence of conspiracy among the three
accused on the ground that there was no proof on what they were whispering about
when Felix saw them. Accordingly, it held that the accused have individual or
separate liabilities for the killing of Samuel: Toring, as a principal, Diosdado Berdon as
an accomplice by his act of giving Toring the knife, and Carmelo Berdin as an
accessory for concealing the weapon. It considered treachery as the qualifying
circumstance to the killing, found no proof as to allegation of evident premeditation
but appreciated nighttime as an aggravating circumstance. It meted the accused the
penalties mentioned above.
All three accused appealed.
6
Toring seeks his exoneration by contending that his assault on Samuel was justified
because he acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the
Revised Penal Code provides that no criminal liability is incurred by anyone "who acts
in defense of ... his relatives ... by consanguinity within the fourth civil degree,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given
by the person attacked, that the one making defense had no part therein." The first
and second requisites referred to are enumerated in paragraph (b) in the same article
on selfdefense as: (a) unlawful aggression, and (b) lack of sufficient provocation on
the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin
of Toring their fathers being brothers, 23 although no explanation appears on record
why they have different surnames. At any rate, this allegation on relationship was not
rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a relative, however,
hinges in this case on the presence of unlawful aggression on the part of the victim.
Corollarily, the claim of Toring that Samuel was, at the time of the assault, carrying a
shotgun to intimidate Toring's group must be proven.
Understandably, no prosecution witness attested that they saw Samuel with a firearm.
The prosecution even recalled to the witness stand Samuel's widow who asserted
that her husband did not own any firearm. 24 Going along with the prosecution's
evidence, the lower court arrived at the rather gratuitous conjecture that Samuel could
not have had a shotgun with him because no one without a permit would carry a
firearm without risking arrest by the police or the barangay tanod. At the same time,
however, the lower court described Samuel as the son of the barangay captain who
"had the run of the place and had his compelling presence felt by all and " sundry." 25
While matters dealing with the credibility of witnesses and appreciation of evidence
are primarily the lower court's province, this Court has the power to determine
whether in the performance of its functions, the lower court overlooked certain
matters which may have a substantial effect in the resolution of a case. 26 Defense
witness Joel Escobia was, besides Toring, the only witness whose sworn statement
was taken by the police on May 26, 1980, the day after the fatal assault on Samuel.
In his sworn statement, 27 Escobia attested that as he was about to dance with a girl,
Samuel stopped him, pointed his shotgun at him, took a bullet from his jacket pocket,
showed it to Escobia and asked him, "Do you like this, Dong?" to which Escobia
replied, "No, Noy I do not like that." Samuel then placed the bullet in the shotgun and
was thus pointing it at Escobia when Toring came from behind Samuel and stabbed
the latter. Even on cross-examination at the trial, Escobia did not depart from his
statement. In fact he added that Samuel pointed the shotgun at his chin and told him
to eat the bullet. 28
There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression
inasmuch as his sworn statement 29 and testimony in court had not been successfully
discredited by the prosecution which also failed to prove that Joel had reason to
prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of proof of
provocation on the part of Toring notwithstanding, full credence cannot be given, to
Toring's claim of defense of a relative. Toring himself admitted in court 30 as well as in
his sworn statement 31 that in 1979, he was shot with a .22 caliber revolver by Edgar
Augusto, Samuel's brother. It cannot be said, therefore, that in attacking Samuel,
Toring was impelled by pure compassion or beneficence or the lawful desire to
avenge the immediate wrong inflicted on his cousin. Rather, he was motivated by
revenge, resentment or evil motive 32 because of a "running feud" between the
Augusto and the Toring brothers. As the defense itself claims, after the incident
subject of the instant case occurred, Toring's brother, Arsenio, was shot on the leg by
Edgar Augusto. Indeed, vendetta appears to have driven both camps to commit
unlawful acts against each other. Hence, under the circumstances, to justify Toring's
act of assaulting Samuel Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view of the presence of
the qualifying circumstance of treachery. The suddenness of the assault rendered
Samuel helpless even to use his shotgun. We also agree with the lower court that
conspiracy and evident premeditation were not proven beyond reasonable doubt.
Moreover, nighttime cannot be considered as an aggravating circumstance. There is
no proof that it was purposely sought to insure the commission of the crime or prevent
its discovery. 33 However, Toring should be credited with the privileged mitigating
circumstance of incomplete defense of relative and the generic mitigating
circumstance of voluntary surrender.
The penalty for murder under Article 248 of the Revised Penal Code being reclusion
temporal maximum to death, the imposable penalty is prision mayor maximum to
reclusion temporal medium in view of the presence of the mitigating circumstances of
incomplete defense of relative and voluntary surrender (Art. 64 [5]). Applying the
Indeterminate Sentence Law, the proper penalty to be meted on Toring
is prision correctional maximum as minimum to prision mayor maximum as maximum
penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot
be sustained in the absence of proof that it was physically impossible for him to be at
the scene of the crime when it was committed. 34 His house was only a kilometer
away from the place where he supplied the knife to Toring. 35 That distance does not
preclude the possibility that Diosdado aided Toring in the perpetration of the crime as
it could be negotiated in just a few minutes by merely walking. 36 Moreover, his alibi
was uncorroborated as it was founded only on his own testimony and what appears
as a self-exonerating affidavit. 37
But what pins culpability on Diosdado were the testimonies of at least two prosecution
witnesses who positively identified him as the one who gave Toring the knife. Motive,
therefore, has become immaterial in the face of such positive identification 38 and
hence, even if it were true that he was not a member of the kwaknit gang, his
participation in the killing has been proven beyond reasonable doubt. Added to this is
the fact that Toring himself in his sworn statement before the police pointed to him as
the source of the knife. 39 Verily, Toting could not have implicated him because of the
7
incomprehensible reason that a case had been filed against Toring before the
barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous
act of supplying Toring the death weapon, Diosdado Berdon should be meted the
penalty of prision mayor maximum to reclusion temporalmedium which is the penalty
next lower in degree to reclusion temporal maximum to death, the penalty prescribed
for murder by Article 248 (Article 6 [3]). There being no mitigating or aggravating
circumstances, the penalty should be in its medium period or reclusion
temporal minimum (Article 64 [1]). Applying the Indeterminate Sentence Law, the
minimum penalty should be taken from prision mayor minimum while the maximum
penalty should be within the period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not
been proven beyond reasonable doubt. The fact that he knew where Toring hid the
knife does not imply that he concealed it to prevent its discovery (Article 19 [2]). There
simply is no proof to that effect. On the contrary, Luis Toring in his sworn statement
and testimony during the trial testified that after stabbing the victim, he ran away and
went to his house to hide the murder weapon. Being a close friend of Toring and a
frequent visitor to the latter's house, it is not impossible for Carmelo Berdin to know
where Toring hid his knives. Significantly, Carmelo readily acceded to the request of
police officers to lead them to the place where Toring kept the knife. He willingly
retrieved it and surrendered it to the police, a behavior we find inconsistent with guilt.
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts
Luis Toring as principal in the murder of Samuel Augusto and Diosdado Berdon as an
accomplice thereto.
The lower court's decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision
correccional maximum as minimum to twelve (12) years of prision mayor maximum
as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one
(1) day of prision mayorminimum as minimum to twelve (12) years and one (1) day
of reclusion temporal minimum as maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto,
and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of
Samuel Augusto an indemnity of thirty thousand pesos (P30,000.00). Costs against
appellants Toring and Berdon.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.
Footnotes
1 Rollo, pp. 24-25.
2 TSN, September 23, 1980, p. 30.
3 TSN, supra, pp. 37-38.
4 TSN, October 14, 1980, pp. 35-37.
5 Exhibit E.
6 TSN, October 15, 1980, pp. 23-24.
7 Rollo, pp. 8-9.
8 TSN, October 22, 1980, pp. 23-24.

13 TSN, October 13, 1980, p. 7.
14 TSN, October 22, 1980, pp. 42-43.
16 TSN, October 24, 1980, pp. 19-20; 24-25.
17 TSN, October 22, 1980, p. 93.
18 TSN, October 24, 1980, pp. 7-8.
19 TSN, October 24, 1980, pp. 5-6.
20 Presided by Judge Regino Hermosisima, Jr.
21 Decision, pp. 11-12.
22 Decision, p. 13.
23 TSN, October 23, 1980, p. 32.
24 TSN, October 27, 1980, p. 15.
25 Decision, p. 4.
26 People vs. Ligon, G.R. No. 74041, July 29, 1987, 152 SCRA 419, 426.
27 Exhibit G, or Exhibit 2-Toring and Exhibit 3-Berdon and Berdin.
28 TSN, October 23, 1980, p. 35.
29 Exhibit G.
30 TSN, October 22, 1980, pp. 74-75.
31 Exhibit C.
32 See: People vs. Punzalan, G.R. No. 54562, August 6, 1987, 153 SCRA 1, 12.
33 People vs. Beltran, L-38049, July 15, 1985, 137 SCRA 508.
34 People vs. Renejane, G.R. Nos. 76954-55, February 26, 1988, 158 SCRA 258, 268.
35 TSN, October 24, 1980, p. 9.
36 People vs. Santillan, G.R. No. 68331, January 29, 1988, 157 SCRA 534, 539.
37 Exhibit 4.
38 People vs. Aquillano, G.R. No. 72318, April 30, 1987, 149 SCRA 442.
39 Exhibit D.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-51206 August 25, 1989
NORBERTO MASIPEQUINA and JOVENCIO ALAMPAYAN, petitioners,
vs.
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
Paulino G. Clarin for petitioners.
CORTES, J.:
The extent to which responding peace officers may defend themselves in the face of
an attack by the person sought to be apprehended is the subject of this petition for
review.
Petitioners Patrolmen Norberto Mesipequina and Jovencio Alampayan, who were
members of the Integrated National Police (INP) of San Isidro, Bohol, were charged
with the crime of homicide for the death of Leopoldo Potane. They were convicted by
the trial court and sentenced to suffer imprisonment of from seven (7) years and one
(1) day of prison mayor as minimum to fourteen (14) years, four (4) months and one
(1) day of reclusion temporal as maximum, and to jointly and severally indemnify the
heirs of the deceased Leopoldo Potane in the amount of twelve thousand pesos
(P12,000.00).
On appeal, the Solicitor General joined the petitioners in their prayer for acquittal on
the theory that petitioners are exempt from liability because they had acted in selfdefense when they shot and killed Leopoldo Potane. But, just the same, the Court of
Appeals affirmed the judgment of the trial court, but modified the penalty of
imprisonment to eight (8) years and one (1) day of prison mayor as minimum to
8
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum.
Before this Court both the petitioners and the Solicitor General reassert that
petitioners should be acquitted because they acted in lawful self-defense.
There is no dispute about the following facts, which were quoted by the Court of
Appeals from the Solicitor General's presentation.
xxx
In the afternoon of December 21, 1976, Barangay Capt. Nicolas
Potane of Barrio Abehilan San Isidro, Bohol and his father, Pedro
Potane requested assistance from the Police Sub-station
Commander of San Isidro in apprehending Leopoldo Potane, son of
Pedro Potane and elder brother of Nicolas, who has begun to show
signs of recurring insanity. Since his arrival from Mindanao in 1974,
Leopoldo had been acting queerly and at times violent. On
December 18, 1975, Leopoldo chased the wife of Nicolas with a
bolo and almost hacked her. He always carried a bolo, and had
threatened his own wife, daughter, brothers, and even his parents
with death. Fearing for their safety, they transferred temporarily to
the Home Economics building of the barrio school and left Leopoldo
alone in the house of his father. Nicolas Potane and his immediate
relatives wanted Leopoldo to be examined and treated by the
Provincial Health Officer for his mental ailment (pp. 19-22, 26-32.
t.s.n., Nov. 15, 1976; Exhs. C, C-1 to C-5-A, Folder of
Exhibits).lwph1.t
Patrolmen Norberto Masipequina and Jovencio Alampayan, the
former armed with a 38 cal. revolver and the latter with the
Thompson submachine gun, were ordered by the sub-station
commander to arrest Leopoldo. Before proceeding to the house
where Leopoldo was, the policemen passed the store of a certain
Ismael Balumia where they had a conference with Barrio Captain
Nicolas Potane; his father, Pedro Potane; his mother, Marganta
Potane and others. In said store a joint affidavit (Exhs. D, D-1 and
D-2, Folder of Exhibits), was prepared and signed by Nicolas
Potane, Pedro Potane, Margarita Potane, Clara Potane, Francisca
Potane, and Emilia Potane, wife of Leopoldo, authorizing the 'peace
officer of the San Isidro Police Dept. 'to apprehend Leopoldo
Potane who was about to run amok.' The document further stated
that if Leopoldo would resist as he is armed with a weapon, the
policemen 'have the right to shoot him but not to kill him ... but if
such does not permit, if he resist(s) arrest they have the right to
resort to any manner to prevent the fearful outcome from his
running amok' and 'if he would be killed by the police officers on
account of his resistance, we, the parents, brother and sisters, and
wife would take no action if something untoward would occur. (pp.
4-8, t.s.n., Dec. 7, 1976).
Thereafter, the two policemen, accompanied by several persons,

among whom was Nicolas Potane, went to the house of Pedro
Potane where Leopoldo was. Upon arrival thereat, Pat.
Masipequina, a childhood friend of Leopoldo, called Leopoldo and
urged him to come out. He also asked Leopoldo for a drink, but
Leopoldo refused to go down the house. Pat. Masipequina then
informed Leopoldo that his father and brother had reported that he
(Leopoldo) had chased his sister-in-law with a bolo and their officerin-charge sent him to investigate the report. He told Leopoldo to
come down so that they could talk. Leopoldo instead told him to
come up (pp. 10-11, t.s.n., Ibid).lwph1.t
Pat. Masipequina went up the house followed by Nicolas Potane
with a petromax lamp. Patrolman Jovencio Alampayan and the rest
stayed in the yard Although in the yard, Patrolman Alampayan
could see what was going on inside the house because it was a
single storey house and had an elevation of only 4 feet (p. 56,
t.s.n., Dec. 6, 1976). Nicolas stayed on the door landing while
Masipequina entered the sala and was about to sit down on a
rocking chair when Leopoldo suddenly emerged from an adjacent
room and rushed at him swinging a bolo. Masipequina pushed the
rocking chair towards Leopoldo. Leopoldo hit Masipequina on the
bridge of the nose (p. 23, t.s.n., Ibid). As the latter retracted, he lost
his balance and was hit on the right side of his face. At this
juncture, Masipequina drew his revolver and fired three shots. One
shot misfired but the other two hit Leopoldo on the chest. Leopoldo
continued to advance towards him. He pushed the rocking chair at
Leopoldo and ran out of the house shouting for help. Leopoldo ran
after him. Pat. Masipequina jumped from the house and landed on
the ground. In the process he hit his shin on a piece of stone.
Leopoldo also jumped to the ground and continued to pursue
Masipequina. As Leopoldo poised to hack Pat. Masipequina, Pat.
Alampayan fired his gun hitting Leopoldo once at the thigh (pp. 2526, Id., pp. 40, 71, t.s.n., Dec. 6, 1976).
xxx
[CA Decision, pp. 2-4; Rollo, pp. 9-11].
Leopoldo Potane died some thirty (30) minutes later while being brought to the health
center for treatment.
The issue is readily apparent: whether or not, given the undisputed facts, petitioner
Masipequina had acted in lawful self-defense. (Petitioner Alampayan's conviction for
the crime charged hinges on that of Masipequina as the trial court had found that the
two conspired to kill Leopoldo Potane, as alleged in the information.).
The trial court, however, rejected the defense raised by petitioner. The following
reasons, which were cited by the trial court, were adopted and quoted with approval
by the Court of Appeals:
9
. . . (1) the fact that the accused persisted in their attempts to arrest
and/or pick up the victim for almost two (2) hours, culminating in the
tragedy at around nine o'clock that evening; (2) the fact that the
victim suffered three gunshot wounds, two of which were over the
heart and admittedly fatal, and the third on the left thigh which was
not fatal but sufficient to cripple him; (3) the fact that all three
gunshot wounds bore evidence of gunpowder signs, which is
indicative and conclusive of having been inflicted at close range; (4)
the fact that the victim had a 2-inch lacerated wound on his
forehead and another lacerated wound on his right leg which have
not been sufficiently explained but are also indicative of having
been inflicted by blunt instruments, like a flashlight or the butts of a
revolver or a submachine gun; and (5) the fact that the alleged
injuries of accused Masipequina could not, by any stretch of
imagination, be inflicted by a bolo allegedly wielded by the victim,
since they are quite superficial in degree, located in the most
improbable places and may even have been self-inflicted to justify a
subsequent claim of self-defense.
xxx
[Rollo, p. 20.]
"The law on self-defense embodied in any penal system in the civilized world finds
justification in man's natural instinct to protect, repel, and save his person and rights
from impending danger and peril; it is based on that impulse of self-preservation born
to man and part of his nature as a human being." [People v. Boholst-Caballero, G.R.
No. L-23249 November 25,1974,61 SCRA 180, 1 85.] In our jurisdiction it is found in
Article 11 of the Revised Penal Code which provides:
ART. 11. Justifying circumstances. The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
xxx
It is settled jurisprudence that he who invokes the exempting circumstance of selfdefense must prove it during the trial [U.S. v. Coronel, 30 Phil. 112 (1915)]. He must
prove the elements enumerated in Article 11 by clear and convincing evidence, the
reason being that since he had admitted having killed or wounded another, which is
an act punishable by law, he shall be liable thereof unless he establishes a lawful
defense [People v. Boholst-Caballero,supra]. Thus, the determination of whether or
not all the three elements are present in the case.
1. That there was unlawful aggression on the part of the deceased
Leopoldo Potane is evident from the established facts. Leopoldo
Potane, who had showed signs of mental illness and had
threatened his immediate relatives with a bolo, suddenly and

without provocation attacked with a bolo Masipequina, whom he
(Leopoldo Potane) has asked to go inside the house.
2. That there was reasonable necessity of the means employed by
Masipequina to prevent or repel Leopoldo Potane's attack is also
supported by the evidence.
In the leading case of U.S. v. Mojica, 42 Phil. 784 (1922), where a policeman trying to
quell a disturbance shot with his revolver and fatally wounded a man who attacked
him with a knife, the Court laid down the following rule:
A police officer, in the performance of his duty, must stand his
ground and cannot, like a private individual, take refuge in flight; his
duty requires him to overcome his opponent. The force which he
may exert therefore differs somewhat from that which may
ordinarily be offered in self-defense. Bearing this in mind, we do not
think that the appellant in using his revolver against the deceased
can be said to have employed unnecessary force. The deceased
attacked him with a deadly weapon; he might, perhaps, have saved
himself by running away, but this his duty forbade. Was he to allow
himself to be stabbed before using his arms? It may, perhaps, be
argued that the appellant might have used his club, but a
policeman's club is not a very effective weapon as against a drawn
knife and a police officer is not required to afford a person attacking
him the opportunity for a fair and equal struggle. (State vs. Phillips,
119 Iowa, 652; 67 L.R.A. 292; North Carolina vs. Gosnell, 74 Fed.,
734; Boykin vs. People, 22 Colo., 496; 45 Pac., 419; Adams vs.
State, 72 Ga., 85.) And if it was necessary for the appellant to use
his revolver, he could hardly, under the circumstances, be expected
to take deliberate and careful aim so as to strike a point less
vulnerable than the body of his adversary. (U.S. vs. Mack 8 Phil.,
701; U.S. v. Domen 37 Phil., 57.) [Id., p. 787].
Tested by this standard, the means employed by Masipequina in repelling the attack
were, under the circumstances, both reasonable and necessary. He initially tried to
defend himself by pushing the rocking chair toward Leopoldo Potane but when that
proved futile and he (Masipequina) was caught in a very precarious position, i.e., his
back was on the floor and Leopoldo Potane kept flailing at him with the bolo, he had
no other choice but to use his revolver to defend himself against the attack. Under the
circumstances, there was no opportunity for Masipequina to carefully take aim. He
just discharged his weapon at the deceased in the hope that such would save him
from any further injury or death.
It must also be borne in mind that the rule is that the reasonable necessity of the
means employed to repel or prevent the attack depends upon the imminent danger of
injury, not on the harm actually done to the accused [U.S. v. Paras, 9 Phil. 367
(1907)]. Thus, that Masipequina escaped serious injuries does not necessarily imply
that the means he used to repel the attack were unreasonable and excessive. The
fact remains that the act of Leopoldo Potane of attacking Masipequina with a bolo
10
was a very real danger to his life that the latter had to repel the best way he can. That
the gunshot wounds he inflicted on Leopoldo Potane proved to be fatal does not
make the means he employed any less reasonable under the circumstances.
3. Then, the lack of sufficient provocation on the part of Masipequina is too plain to
even doubt. He, together with Patrolman Alampayan had been tasked by his superior
to apprehend Leopoldo Potane upon complaint of his own father and brother. Thus,
petitioners herein, when they went to apprehend the deceased, were in the
performance of their official duties as peace officers. And when they reached the
house where Leopoldo Potane was hiding, Masipequina tried to coax Leopoldo
Potane into coming out of the house, but the latter would not. It was only when
Leopoldo Potane asked Masipequina, who was his childhood friend, to enter the
house that he did, followed by Nicolas Potane. Masipequina was about to take a seat,
definitely a non-provocative act, when he was suddenly attacked by Leopoldo Potane
with a bolo.
As consistently argued by the Solicitor General before the Court of Appeals and this
Court, all the elements of self defense are present in the instant case:
... (a) [T]here was unlawful aggression on the part of the victim
which was a real and imminent threat to the life of Pat.
Masipequina. The victim was brandishing a bolo which he did use
in fact to hit the latter; (b) The use of his revolver to repel the
aggression was a reasonable necessity. His life already exposed to
danger in the face of a continuous assault, it is likely that had he
not shot the victim, he would have been killed, considering the
deranged mind of the aggressor. Moreover, after he shot the victim,
he ran away to avoid being hit farther (sic), an act obviously
inconsistent with a deliberate intent to kill; (c) Pat. Masipequina did
not provoke the victim into attacking him. In fact, before he went
inside the house, he asked Leopoldo to come out to talk things
over. He even asked for a drink. It was only when the victim himself
asked Pat. Masipequina to go up the house that the latter entered
the sala.
xxx
[Manifestation and Motion In Lieu of Respondent People's Brief, p.
12; Rollo, p. 115].
We also hasten to add that, as in the case of People v. Boholst-Caballero, supra, we
accord special significance to the wounds inflicted on the deceased in finding that the
elements of self-defense had been established.
According to Dr. Julieta Melicor, who conducted the postmortem examination on the
body of the deceased, the trajectory of the two chest wounds indicate that the person
who fired the shots was in a lying and lower position while the deceased was then
standing [TSN, September 2, 1976, pp. 5-6, 10]. This corroborates petitioner
Masipequina's testimony that he had his back to the floor when he fired at the victim
who was attacking him with a bolo. The fact that the wounds bore traces of
gunpowder, indicating the proximity between the person who fired the shot and the
deceased, also support Masipequina's testimony.
After the elements of self-defense had been established to exculpate petitioners from
the charge of homicide, the next question that arises, albeit only incidentally, is
whether or not Alampayan could be separately convicted of the lesser offense of less
serious or slight physical injuries for the gunshot wound he inflicted on Leopoldo
Potane's thigh.
Again, we refer to Article 11 of the Revised Penal Code, which provides:
ART. 11. Justifying circumstances. The following do not incur any
criminal liability:
xxx
3. Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person
defending be not induced by revenge, resentment, or other evil
motive.
xxx
Thus, the elements of defense of stranger are: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel it; and (3) the person
defending be not induced by revenge, resentment, or other evil motive.
1. In the instant case, that there was unlawful aggression on the
part of Leopoldo Potane had been adequately established, as
discussed earlier with regard to the circumstance of self-defense.
2. Then, that the means employed by Alampayan in trying to
prevent Leopoldo Potane from further attacking Masipequina with a
bolo were reasonable is clearly evident, as Alampayan only shot at
Leopoldo Potane's thigh to prevent him from further pursuing
Masipequina who was trying to escape Leopoldo Potane's attack.
3. Finally, that Alampayan was not motivated by any evil motive is
shown by the fact that he, together with Masipequina, only
proceeded to the place where the incident happened to look for
Leopoldo Potane because they had been ordered by their
substation commander to apprehend Leopoldo Potane who had
shown signs of mental derangement and had threatened his
relatives with a bolo. In short, the two policemen were in the
performance of their official and lawful duties.
This, the performance of duties, brings to fore another circumstance that would justify
Alampayan's wounding of Leopoldo Potane, for the same Article 11 of the Revised
Penal Code exempts from liability [a]ny person who acts in the fulfillment of a duty or
in the lawful exercise of a right or office" [Art. 11, par. 5]. Thus, in one case, the Court
acquitted the accused police officers even if their acts constituted the crimes of
discharge of firearm and lesiones graves and menos graves, inflicted upon persons
facing criminal charges who were trying to resist arrest, because the accused officers
were in the performance of their official duties [U.S. v. Resaba, 1 Phil. 311 (1902)].
Finally, the small lacerated wounds on Leopoldo Potane's forehead and right leg,
which the trial court and the Court of Appeals found suspicious, can be explained by
the fact that Leopoldo Potane dropped to the ground after he was shot on the thigh by
11
Alampayan. There is nothing on the record to support the conclusion that the wounds
were inflicted by a flashlight or gun butt.
In fine, this Court, on the basis of the same facts found by the Court of Appeals, has
arrived at a different conclusion. Principally, the Court of Appeals affirmed the trial
court's decision after concluding that one of the elements of self-defense, i.e.,
reasonable necessity of the means employed to prevent or repel the attack, was
lacking. However, after a careful consideration of the undisputed facts and the rule on
self-defense by police officers enunciated in Mojica, this Court is convinced that said
element had been established and that the Court of Appeals committed a reversible
error when it rejected petitioners' defense and affirmed the trial court's judgment of
conviction.
WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals is
hereby REVERSED. Petitioners Patrolmen Norberto Masipequina and Jovencio
Alampayan are ACQUITTED of the crime charged.
SO ORDERED.
Fernan, C.J, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
THIRD DIVISION
[G.R. No. 115233. February 22, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILSON GUTUAL y
REMOLLENA
and
JOAQUIN
NADERA
y
APOSTOL, accused. WILSONGUTUAL
y
REMOLLENA, accusedappellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; SHIFTED TO THE
ACCUSED WHO INTERPOSED SELF-DEFENSE OR DEFENSE OF
RELATIVE OR STRANGER. - Since the accused-appellant owned up to killing
the victim, the burden of evidence shifted to him. He must then show by clear
and convincing evidence that he indeed acted in self-defense or in defense of a
relative or a stranger. For that purpose, he must rely on the strength of his own
evidence and not on the weakness of the prosecutions evidence.
2. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; ELEMENTS.
- The requisites of self-defense are: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending himself. [Article 11(1), Revised
Penal Code.]
3. ID.; ID.; ID.; UNLAWFUL AGGRESSION IS PRESENT WHEN THE VICTIM RUNS
AMUCK. - It was sufficiently established that the unlawful aggression came from
the victim. Indeed, since he was running amuck, he did not care anymore whom
to attack or whether the person to be attacked was unarmed or armed with a
high-powered rifle. Significantly, the entry in the Death Certificate corroborates
the theory of the defense that the victim was in the act of hacking the accusedappellant when the latter shot deceaseds right hand, for the purpose only of
throwing the bolo out of his hand, but the bullet pierced through and hit the
deceaseds breast.
4. ID; ID.; ID.; REASONABLE NECESSITY OF THE MEANS EMPLOYED;
CONSTRUED. - It is settled that reasonable necessity of the means employed
does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence, in the consideration of
which will enter the principal factors the emergency, the imminent danger to
which the person attacked is exposed, and the instinct, more than the reason,
that moves or impels the defense, and the proportionateness thereof does not
depend upon the harm done, but rests upon the imminent danger of such injury.
5. ID.; ID.; ID.; WHEN THE MEANS EMPLOYED BY THE ACCUSED ARE
REASONABLE UNDER THE CIRCUMSTANCE. - Whether the means
employed by the accused-appellant were reasonable depends on the
circumstances of this case. The accused-appellant became the target of the
victims violent nature when, after the victim stopped chasing the barangay
captain, he turned to and vented his ire against the accused-appellant. The
victim menacingly walked towards the latter who, in turn, kept walking
backwards until he was pinned against the staircase of the barangay hall. At that
point, the victim unceasingly hacked away at the accused-appellant and
continued to move closer to him. When the victim was then only one meter
away, he raised the bolo, ready to strike the accused-appellant. Plainly, the
accused-appellant could no longer retreat from the continuing assault by the
victim who, as inexorably shown by his relentless advance towards the accusedappellant, was posed to kill the latter. The danger to the accused-appellants life
was clearly imminent. It would not then be proper nor reasonable to claim that
he should have fled or selected a less deadly weapon, because in the
emergency in which, without any reason whatever, he was placed, there was
nothing more natural than to use the weapon he had to defend himself. In the
natural order of things, following the instinct of self-preservation, he was
compelled to resort to a proper defense.
APPEARANCES OF COUNSEL
Rodolfo C. Rapista & Ruben D. Altamera for accused-appellant.
DECISION
DAVIDE, JR., J.:
On 26 June 1991, an information1 was filed with the Regional Trial Court (RTC)
of Tagum, Davao del Norte, Branch 1, charging Wilson Gutual and Joaquin Nadera
with the crime of murder (Criminal Case No. 7851). The accusatory portion thereof
read:
That on or about December 29, 1990, in the Municipality of San Vicente, Province of
Davao, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping with one another,
with treachery and evident premeditation, with intent to kill, armed with [a] garand rifle
and [an] M14 rifle, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot one Celestino Maglinte, thereby inflicting upon him wounds which
caused his death, and further causing actual, moral and compensatory damages to
the heirs of the victim.
Contrary to law.
The accused, members of the Civilian Armed Forces Geographic Unit (CAFGU)
in
the Municipality of San
Vicente, Davao,2 pleaded
not
guilty
on
arraignment.3 Thereafter, trial on the merits ensued.
Judge Marcial Fernandez received the testimonies of all the witnesses except
that of the surrebuttal witness, which was received by his successor, Judge Bernardo
V. Saludares.4
12
At trial, the prosecution presented six witnesses, five of whom were related to
the victim by affinity. The defense, in turn, presented nine witnesses, including the two
accused and two barangay council officers. As might be expected, the prosecution
and defense had conflicting versions of the event.
According to the prosecution, on 29 December 1990, at around 1:30 p.m., the
victim Celestino Maglinte was walking along the barangay road of Belmonte in San
Vicente, Davao, carrying his four-year old child. The victim had just come from his
farm and had a bolo with him, which was placed in its scabbard. Maglinte was then
surprised by the sound of an exploding firecracker; thus, he left his child by the road
and ran towards the store of Barangay Captain Wayne Gutual, calling to the latter,
who did not, however, come out of the store. Maglinte headed for the nearby
basketball court, apparently still searching for the Barangay Captain. All the while the
bolo remained in its scabbard. Suddenly, accused Wilson Gutual and Joaquin Nadera
appeared, armed with a Garand rifle and an M-14 rifle, respectively. Gutual fired
around three warning shots into the air and Maglinte dropped to the ground. Gutual
then went near Maglinte and shouted surrender, thus Maglinte raised his right arm as
a sign of submission. At that time, Gutual fired some five shots at Maglinte. Although
already injured, Maglinte managed to stand. Thus, Gutual and Nadera fired again,
and the victim toppled over, mortally wounded. Gutual and Nadera left the scene at
once. Immediately the following morning, the victim was buried upon the Barangay
Captains order.5
The defense claims that the killing was committed in self-defense or defense of
a relative or stranger. It tried to prove that on the aforementioned date and time, the
victim was running amuck or berserk,6 chasing Barangay Captain Wayne Gutual in
front of the latters house. Drawn by shouts for help from onlookers, accused Gutual
and Nadera rushed to the scene, with Gutual firing warning shots into the air. Maglinte
stopped pursuing the barangay captain, turned towards the accused, then started
approaching them. Although Gutual continued to fire warning shots, Maglinte kept
walking towards him, while Gutual kept retreating to put some distance between him
and the victim. The two moved some ten meters, crossed the road in front of the
barangay captains house, and ended up near the barangay hall. Finally, Gutual was
pinned against the staircase of the barangay hall. Maglinte was now about one to
three meters from Gutual and pressing on, unceasingly hacking away at Gutual, who,
however, managed to evade the blows. Nadera fired warning shots into the air, but
Maglinte continued his attack. Gutual then fired at the victims hand to disarm him, but
unfortunately the bullet pierced Maglintes bolo-wielding arm, went through his chest,
and came out his back.
Gutual and Nadera were arrested on 29 January 1991.7 Nearly two months after
the killing, some 200 residents of Barangay Belmonte held a rally in front of the police
station to demand the release of the two accused. 8 The rallyists brought with them a
manifesto9 signed by barangay council officials and members which stated, among
other matters, that they knew Celestino Maglinte to be a dangerous person and that
the accused fired at the victim only after knowing that he would be killed by the latter.
On 2 January 1994, the trial court, per Judge Saludares, promulgated its
decision10 acquitting Nadera but convicting Gutual. The dispositive portion of the
decision read:
WHEREFORE, premises considered, this Court finds the accused Wilson Gutual y
Remollena, 43 years of age, married, and a resident of Belmonte, San Vicente,
Davao, farmer by occupation, guilty beyond reasonable doubt of the crime of Murder
as penalized under Article 248 of the Revised Penal Code, as charged in the
information, and is therefore hereby sentenced to suffer the penalty of reclusion
perpetua,with all the accessory penalties provided by law, and jointly and severally
with his co-accused Joaquin Nadera y Apostol, 42 years of age, married and a
resident of Belmonte, San Vicente, Davao, and a farmer by occupation, who is hereby
acquitted of the criminal charge on the ground of reasonable doubt, is/are hereby
ordered to indemnify the widow, Virginia Ayendo Vda. de Maglinte, and heirs of the
victim, Celestino Maglinte, in the amount of Fifty Thousand (P50,000.00) Pesos by
way of compensatory damages for such death, Twenty Thousand (P20,000.00) Pesos
by way of moral damages, Ten Thousand (P10,000.00) Pesos by way of exemplary
damages, and Five Thousand (P5,000.00) Pesos as funeral and burial expenses.11
Gutual (hereinafter, accused-appellant) seasonably appealed from the decision and
alleges that the lower court committed the following errors:
I
IN FINDING BEYOND REASONABLE DOUBT ACCUSED WILSON GUTUAL
GUILTY FOR MURDER AND IN IMPOSING CIVIL LIABILITY ON ACCUSED
JOAQUIN NADERA.
II
IN NOT ACQUITTING ACCUSED WILSON GUTUAL ON GROUNDS OF EITHER
SELF-DEFENSE OR DEFENSE OF A RELATIVE, OR IN NOT CONSIDERING IN
FAVOR OF ACCUSEDWILSON GUTUAL [THE] INCOMPLETE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE OR DEFENSE OF [A] STRANGER.
III
IN IMPOSING CIVIL LIABILITY ON ACCUSED JOAQUIN NADERA INSPITE OF HIS
ACQUITTAL.
IV
IN NOT HOLDING THAT SELF-DEFENSE OR DEFENSE OF [A] RELATIVE HAS
BEEN PROVEN BY EVIDENCE SUFFICIENTLY ENOUGH TO MEET THE
REQUIREMENTS OF MORAL CERTAINTY.12
These assigned errors may be reduced to two issues:
I. Whether or not Joaquin Nadera should be held civilly liable despite his
acquittal; and
II. Whether or not Wilson Gutual has sufficiently proved self-defense or
defense of a relative or of a stranger, or, at the very least, the
incomplete justifying circumstance of self-defense or defense of a
stranger.
In the alternative, the accused-appellant contends that should he be convicted
of any crime, it should be of homicide only, as the prosecution failed to prove the
qualifying circumstances of treachery and evident premeditation. 13 Moreover, the
mitigating circumstance of incomplete self-defense or defense of a relative should be
considered in the imposition of the penalty.14
As to the first issue, the Office of the Solicitor General correctly points out that
the [a]ppellant lacks the standing to question the courts decision as it is Nadera who
is affected thereby, and Nadera did not appeal from the said decision 15 Section 11(a),
Rule 122 of the Rules of Court provides that an appeal taken by one or more of
several accused shall not affect those who did not join in the appeal.
The second issue involves a question of fact.
Since the judge who penned the questioned decision, Judge Saludares, heard
only one of the witnesses and only at the surrebuttal stage, the respect ordinarily
accorded the trial courts findings of fact does not apply in this instance. 16 We are thus
compelled to sift through the transcripts of the stenographic notes of the testimonies
of the witnesses.
13
After a painstaking evaluation of the evidence, we find the version of the
prosecution unworthy of credence. First, it is scarcely believable for the victim who
was already thirty-two years of age to be afraid of the mere sound of an exploding
firecracker, as the prosecution witness intimated.17 New Years Day was then only two
days away, such that people, even those in the provinces, were already accustomed
to hearing such sound.
Second, it likewise seems unusual for the victim to leave his four-year old
daughter by the road;18 if he was really afraid of the sound of a firecracker, he would
have probably thought that his child likewise was, and should have therefore put her
in a safe place before searching for the barangay captain.
Third, if the deceaseds bolo was indeed in its scabbard, there was no reason
then for the two accused to fire three warning shots into the air. Having allegedly laid
flat on the ground with his right arm raised, 19 the victim posed no threat to the
accused as would prompt the latter to fire at him. Besides, it was only around half
past one oclock in the afternoon, and a lot of people were in the vicinity.20
Fourth, if it were true that what transpired was a cold-blooded murder, the family
or relatives of the victim would have insisted that the victims corpse be autopsied.
Instead, they buried him immediately the following morning.21
Finally, the Death Certificate dated 17 January 199122 belies the testimonies of
the prosecution witnesses that the accused was shot several times. 23 Although the
doctor who signed the death certificate did not actually examine the victims corpse,
the entry regarding the cause of the victims death, i.e., Hypovolemia secondary to
gunshot wound, anterior chest, R forearm per informants report, may be deemed
conclusive, since it was admittedly supplied by a relative of the deceased. Esmeraldo
Mifloza, a first cousin of the victims wife, whose name and signature appears in the
said certificate as the informant, was presented by the defense as a hostile witness.
He admitted to having signed the certificate on behalf of Mrs. Virginia Maglinte, the
victims wife.24 He, however, stated that the ones who gave the information regarding
the injuries sustained by the victim were the witnesses themselves, namely, Eutiquio
Iyana and Jose de Leon, the one who cleaned up the wounds of victim Celestino
Maglinte and some BHW [Barangay Health Workers] of Barangay Belmonte.25
At the rebuttal stage, Eutiquio Iyana, the husband of a first cousin of Mrs.
Maglinte, admitted to having given the doctor the information anent the wounds
suffered by the victim and seen the doctor write down the said information. 26 In fact,
the victims wife was concededly present when the doctor filled up and signed the
death certificate, and she was even the one who secured that document. 27 If the entry
made by the doctor was different from what the informant reported, then it should
have been questioned right then and there by either Mr. Iyana or Mrs. Maglinte.
At any rate, since the accused-appellant owned up to killing the victim, the
burden of evidence shifted to him. He must then show by clear and convincing
evidence that he indeed acted in self-defense or in defense of a relative or a stranger.
For that purpose, he must rely on the strength of his own evidence and not on the
weakness of the prosecutions evidence.28
As correctly posited by the Appellee, the defense of a relative or a stranger is
unavailing in this case. The accused-appellant shot the victim while the latter, after
having stopped chasing the barangay captain, was approaching the former. At that
instance then, the barangay captains life was no longer in danger as the accusedappellant admitted. Thus, on questions proposed by the court, the accused-appellant responded:
Q When Maglinte was chasing the barangay captain, you said that you were concentrating on
him alone. Is that correct?
A I was looking at Maglinte and I ordered him to stop, Your Honor.
Q What were the exact words you used?
A I told him Pare, stop. Do not bring a bolo with you because the people are afraid of you.
Q Did Maglinte obey you?
A No, Your Honor. He did not speak and he did not put down the bolo.
Q What did he do after you cautioned him or warned him?
A After he stopped, he faced me and he slowly went towards me.
Q So, he discontinued chasing the barangay captain?
A Yes. He discontinued chasing the barangay captain and he slowly went towards me, Your
Honor.
Q At that time, the barangay captains life was no longer in danger?
A Yes, because he already ceased chasing him.
Q And you insisted he approached you. Did Maglinte approach you?
A Yes, while he was going towards me, I was also stepping backward.
Q Did you warn him while he was chasing you?
A When he was slowly going towards me, I fired a warning shot, Your Honor.29 (italics supplied)
Clearly then, what might have been unlawful aggression on the part of the victim
against the barangay captain had ceased, and there was nothing more to prevent or
repel. Hence, the second requisite of the defense of a relative or a stranger under
Article 11 of the Revised Penal Code, viz., reasonable necessity of the means
employed to prevent or repel the unlawful aggression, cannot be present.
Consequently, the accused-appellant has to rely solely on the justifying
circumstance of self-defense.
The requisites of self-defense are: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending himself.30
It was sufficiently established that the unlawful aggression came from the victim.
Indeed, since he was running amuck, he did not care anymore whom to attack or
whether the person to be attacked was unarmed or armed with a high-powered rifle.
Significantly, the entry in the Death Certificate corroborates the theory of the defense
that the victim was in the act of hacking the accused-appellant when the latter shot
deceaseds right hand for the purpose only of throwing the bolo out of his hand, but
the bullet pierced through and hit the deceaseds breast.31
There can be, as well, no doubt in the mind of the Court that there was lack of
sufficient provocation on the part of the accused-appellant.
Whether the means employed by the accused-appellant were reasonable
depends on the circumstances of this case.
The trial court observed that a bolo-wielder did not stand a chance against a
CAFGU member trained in the art of self-defense and close-in fighting [and] armed
with a Garand rifle.32 As observed by the trial court, the accused-appellant
[C]ould just have easily parried the alleged bolo-hacking of Celestino Maglinte, if ever
such version was true, with the use of his Garand Rifle, and could have applied close
fighting techniques which he was trained to do as a CAFGU member, and disarm
Maglinte of his bolo instead of shooting the victim.33
It has, however, been duly established that the victim had a predilection for
violence.34 Barangay Captain Wayne Gutual testified that on at least three previous
occasions, he had disarmed the victim:
Q Now, Mr. witness, may we know from you if you know the reason why
the deceased Celestino Maglinte would take your life?
A Regarding Celestino Maglinte, we have no grudge with each other. But
because I am the barangay captain, there were times that his wife
Virginia will not yield to carnal relation, that is why he would be violent
and threaten her with bolo. That is why I disarmed him three times
already.
xxx xxx xxx
Q What did you disarm from Celestino?
14
A First, I was able to disarm him with hunting knife; second with bolo; and
third with a piece of hard wood.35
The accused-appellant became the target of the victims violent nature when,
after the victim stopped chasing the barangay captain, he turned to and vented his ire
against the accused-appellant. The victim menacingly walked towards the latter who,
in turn, kept walking backwards until he was pinned against the staircase of the
barangay hall. At that point, the victim unceasingly hacked away at the accusedappellant and continued to move closer to him. When the victim was then only one
meter away, he raised the bolo, ready to strike the accused-appellant.
Plainly, the accused-appellant could no longer retreat from the continuing
assault by the victim who, as inexorably shown by his relentless advance towards the
accused-appellant, was poised to kill the latter. The danger to the accused-appellants
life was clearly imminent. It would not then be proper nor reasonable to claim that he
should have fled or selected a less deadly weapon, because in the emergency in
which, without any reason whatever, he was placed, there was nothing more natural
than to use the weapon he had to defend himself. In the natural order of things,
following the instinct of self-preservation, he was compelled to resort to a proper
defense.36 It is settled that reasonable necessity of the means employed does not
imply material commensurability between the means of attack and defense. What the
law requires is rational equivalence, in the consideration of which will enter the
principal factors the emergency, the imminent danger to which the person attacked is
exposed, and the instinct, more than the reason, that moves or impels the defense,
and the proportionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury.37
The accused-appellant has convincingly and sufficiently shown that he killed the
victim in the legitimate exercise of self-defense, a justifying circumstance. Pursuant to
Paragraph 1, Article 11 of the Revised Penal Code, the accused-appellant incurred no
criminal liability.
WHEREFORE, the instant appeal is GRANTED. That portion of the challenged
decision of Branch 1 of the Regional Trial Court of Tagum, Davao in Criminal Case
No. 7851 finding accused-appellant WILSON GUTUAL Y REMOLLENA guilty beyond
reasonable doubt of the crime of murder and sentencing him to suffer the penalty
of reclusion perpetua and to pay the civil liabilities therein mentioned is REVERSED
and SET ASIDE and another is hereby entered ACQUITTING him of the charge. He
should forthwith be released from detention, unless his further detention is warranted
for any other legal or valid ground.
Costs de oficio.
SO ORDERED.
Narvasa, C.J. (Chairman), Melo, Francisco, and Panganiban, JJ., concur.
Original Records (OR), 1; Rollo, 4.

Counter-Affidavits of Joaquin Nadera and Wilson Gutual; OR, 22 and23, respectively.
Id., 103.
4
Id., 252-253.
5
TSN, 4 December 1991, 30-37.
6
Huramentado, according to Joaquin Nadera (TSN, 16 December 1991,15).
7
TSN, 6 September 1993, 11.
8
Id., 14.
9
Exhibit 3; OR, 26.
10
Id., 252-289; Rollo, 16-53.
11
OR, 289.
12
Rollo, 71-72.
2
3
13
Rollo, 74.
Id., 75.
Brief for the Appellee, 20.
16
See People vs. Bautista, 236 SCRA 102 [1994]. See also People vs. Pido, 200 SCRA 45 [1991]; People vs. Sulit, 233 SCRA
117 [1994]; People vs. Escalante, 238 SCRA 554 [1994].
17
TSN, 5 December 1991, 5.
18
TSN, 4 December 1991, 31-32; Id., 12-13.
19
Id., 33-34; Id., 6-7.
20
TSN, 4 December 1991, 19.
21
TSN, 5 December 1991, 23; TSN, 3 February 1993, 11, 20-21.
22
OR, 15.
23
TSN 4 December 1991, 10, 16, 20-21; TSN, 5 December 1991, 7.
24
TSN 15 September 1992, 7.
25
Id., 8.
26
TSN, 3 February 1993, 17, 27-28.
27
TSN, 5 December 1991, 27; id., 22-24.
28
People vs. De la Cruz, 207 SCRA 632, 646 [1992]; People vs. Ybeas, 213 SCRA 793, 801 [1992]; People vs. Boniao, 217
SCRA 653, 666 [1993]; People vs. Gomez, 235 SCRA 444, 451 [1994]; People vs. Albarico, 238 SCRA 203, 211 [1994];
People vs. Camahalan, 241 SCRA 558, 569 [1995]; People vs. Rivero, 242 SCRA 354, 358 [1995]; People vs. Aliviado, G.R.
Nos. 113782-84, 14 August 1995.
29
TSN, 10 August 1992, 34-35.
30
Article 11(1), Revised Penal Code.
31
Rollo, 70.
32
OR 34; Id., 49.
33
Id., 35; Id., 50.
34
See Section 34, Rule 130, Rules of Court.
35
TSN, 9 January 1992, 62-63.
36
U.S. vs. Paras, 9 Phil. 367, 370 [1907].
37
People vs. Encomienda, 46 SCRA 522, 534 [1972].
14
15
G.R. Nos. L-33466-67 April 20, 1983

vs.
MAMERTO NARVAEZ, defendant-appellant.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato,
Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial,
resulted in the conviction of the accused in a decision rendered on September 8,
1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the
mitigating circumstance of voluntary surrender. The proper penalty
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and
64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable
doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
Davis Q. Fleischer in the sum of P 12,000.00 as compensatory
damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's
fees, the offended party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
15
Flaviano Rubia in the sum of P12,000.00 as compensatory
damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private
prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan,
Jesus Verano and Cesar Ibanez together with the two deceased
Davis Fleischer and Flaviano Rubia, were fencing the land of
George Fleischer, father of deceased Davis Fleischer. The place
was in the boundary of the highway and the hacienda owned by
George Fleischer. This is located in the municipality of Maitum,
South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II).
At that time, appellant was taking his rest, but when he heard that
the walls of his house were being chiselled, he arose and there he
saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega of
his ricemill. So he addressed the group, saying 'Pare, if possible
you stop destroying my house and if possible we will talk it over
what is good,' addressing the deceased Rubia, who is appellant's
compadre. The deceased Fleischer, however, answered: 'No,
gademit, proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there
is a gun on the jeep, appellant fired at Rubia, likewise hitting him
(pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia
died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal
battle between the Fleischer and Co., Inc. of which deceased Fleischer was the
secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and
the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court
of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R.
No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to
Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate
municipality of South Cotabato. He established his residence therein, built his house,
cultivated the area, and was among those who petitioned then President Manuel L.
Quezon to order the subdivision of the defunct Celebes Plantation and nearby
Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
American landowner in Negros Oriental, filed sales application No. 21983 on June 3,
1937 over the same area formerly leased and later abandoned by Celebes Plantation
Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual
survey in 1941 but the survey report was not submitted until 1946 because of the
outbreak of the second world war. According to the survey, only 300 hectares
Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares
each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was
declared open for disposition, appraised and advertised for public auction. At the
public auction held in Manila on August 14, 1948, Fleischer and Company was the
only bidder for P6,000.00. But because of protests from the settlers the corresponding
award in its favor was held in abeyance, while an investigator was sent by the
Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came
back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the
Director of Lands, acting upon the report of Atty. Gozon, approved the same and
ordered the formal award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural Resources, who,
however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of
Cotabato which then consisted only of one sala, for the purpose of annulling the order
of the Secretary of Agriculture and Natural Resources which affirmed the order of the
Director of Lands awarding the contested land to the company. The settlers as
plaintiffs, lost that case in view of the amicable settlement which they had repudiated
as resulting from threats and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the Court of Appeals (CAG.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance
dated September 24, 1966, from the land which they had been occupying for about
30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily
dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to
his other house which he built in 1962 or 1963 near the highway. The second house is
not far from the site of the dismantled house. Its ground floor has a store operated by
Mrs. June Talens who was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway. Aside from the store, he
also had a rice mill located about 15 meters east of the house and a concrete
pavement between the rice mill and the house, which is used for drying grains and
copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or annulment of the order of award with
prayer for preliminary injunction. During the pendency of this case, appellant on
February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38
from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of
16
P16.00 monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of ownership
could be decided. He never paid the agreed rental, although he alleges that the
milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for
that portion of land in which your house and ricemill are located as
per agreement executed on February 21, 1967. You have not paid
as as even after repeated attempts of collection made by Mr.
Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our agreement on
this date.
I am giving you six months to remove your house, ricemill, bodega,
and water pitcher pumps from the land of Fleischers & Co., Inc.
This six- month period shall expire on December 31, 1966.
In the event the above constructions have not been removed within
the six- month period, the company shall cause their immediate
demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing
Lot 38 by putting bamboo posts along the property line parallel to the highway. Some
posts were planted right on the concrete drier of appellant, thereby cutting diagonally
across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to
appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the
effect of shutting off the accessibility to appellant's house and rice mill from the
highway, since the door of the same opens to the Fleischers' side. The fencing
continued on that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on
his farm all morning, was awakened by some noise as if the wall of his house was
being chiselled. Getting up and looking out of the window, he found that one of the
laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p.
129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased
Fleischer was commanding his laborers. The jeep used by the deceased was parked
on the highway. The rest of the incident is narrated in the People's Brief as abovequoted. Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his
person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of his
rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted
having shot them from the window of his house with the shotgun which he
surrendered to the police authorities. He claims, however, that he did so in defense of
his person and of his rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11,
par. 1 of the Revised Penal Code, but in order for it to be appreciated, the following
requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer
of the following words: "Hindi, sigue, gademit, avante", in answer to his request
addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona
ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This
was in reaction to his having been awakened to see the wall of his house being
chiselled. The verbal exchange took place while the two deceased were on the
ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed
and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p.
132, supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing
that there was a firearm in the jeep and thinking that if he will take
that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).
The foregoing statements of appellant were never controverted by the prosecution.
They claim, however, that the deceased were in lawful exercise of their rights of
ownership over the land in question, when they did the fencing that sealed off
appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals
that five persons, consisting of the deceased and their three laborers, were doing the
fencing and chiselling of the walls of appellant's house. The fence they were putting
up was made of bamboo posts to which were being nailed strands of barbed wire in
several layers. Obviously, they were using tools which could be lethal weapons, such
as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that the jeep which they used in going to the
place was parked just a few steps away, and in it there was a gun leaning near the
steering wheel. When the appellant woke up to the sound of the chiselling on his
walls, his first reaction was to look out of the window. Then he saw the damage being
done to his house, compounded by the fact that his house and rice mill will be shut off
17
from the highway by the fence once it is finished. He therefore appealed to
his compadre, the deceased Rubia, to stop what they were doing and to talk things
over with him. But deceased Fleischer answered angrily with 'gademit' and directed
his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing
would have resulted in the further chiselling of the walls of appellant's house as well
as the closure of the access to and from his house and rice mill-which were not only
imminent but were actually in progress. There is no question, therefore, that there
was aggression on the part of the victims: Fleischer was ordering, and Rubia was
actually participating in the fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to
fence off the contested property, to destroy appellant's house and to shut off his
ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his
land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in the
Court of First Instance of Cotabato. The parties could not have known that the case
would be dismissed over a year after the incident on August 22, 1968, as it was
dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment
of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970 dismissal also carried the
dismissal of the supplemental petition filed by the Republic of the Philippines on
November 28, 1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the Director of Lands had
no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition
was premised on the ground that after its filing on November 28, 1968, nothing more
was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable
judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the
contract of lease on February 21, 1967 was just to avoid trouble. This was explained
by him during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better
rent the place because even though we do not know who really
owns this portion to avoid trouble. To avoid trouble we better pay
while waiting for the case because at that time, it was not known
who is the right owner of the place. So we decided until things will
clear up and determine who is really the owner, we decided to pay
rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed appellant
the peaceful enjoyment of his properties up to that time, instead of chiselling the walls
of his house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He
who believes that he has an action or a right to deprive another of
the holding of a thing must invoke the aid of the competent court, if
the holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536 and
539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or
cause damage to appellant's house, nor to close his accessibility to the highway while
he was pleading with them to stop and talk things over with him. The assault on
appellant's property, therefore, amounts to unlawful aggression as contemplated by
law.
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs. Encomiendas,
46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which
he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines
which provides:
Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of Article
11, Revised Penal Code. When the appellant fired his shotgun from his window, killing
his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of
sufficient provocation on the part of appellant who was defending his property. As a
matter of fact, there was no provocation at all on his part, since he was asleep at first
and was only awakened by the noise produced by the victims and their laborers. His
plea for the deceased and their men to stop and talk things over with him was no
provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not
all the elements for justification are present. He should therefore be held responsible
for the death of his victims, but he could be credited with the special mitigating
18
circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the
Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of
treachery cannot be appreciated in this case because of the presence of provocation
on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA
598), the element of a sudden unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of
assault adopted by the aggressor was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from any defense that the
party assailed might have made. This cannot be said of a situation where the slayer
acted instantaneously ..." (People vs. Caete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation
not sufficiently established. The only evidence presented to prove this circumstance
was the testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum,
South Cotabato, and a laborer of Fleischer and Company, which may be summarized
as follows:
On August 20, 1968 (two days before the incident) at about 7:00
A.M., he was drying corn near the house of Mr. and Mrs. Mamerto
Narvaez at the crossing, Maitum, South Cotabato, when the
accused and his wife talked to him. Mrs. Narvaez asked him to help
them, as he was working in the hacienda. She further told him that
if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr.
Fleischer because there will be nobody who will break his head but
I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed
to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there must be
"direct evidence of the planning or preparation to kill the victim, .... it is not enough
that premeditation be suspected or surmised, but the criminal intent must be
evidenced by notorious outward acts evincing the determination to commit the crime"
(People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act;
and that there was sufficient interval between the premeditation and the execution of
the crime to allow them (him) to reflect upon the consequences of the act" (People vs.
Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased
Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation
to kill the victims nor that the accused premeditated the killing, and clung to his
premeditated act, the trial court's conclusion as to the presence of such circumstance
may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop
the fencing and destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to the
authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime.
The appellant awoke to find his house being damaged and its accessibility to the
highway as well as of his rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing down for lack of access
to the highway. These circumstances, coming so near to the time when his first house
was dismantled, thus forcing him to transfer to his only remaining house, must have
so aggravated his obfuscation that he lost momentarily all reason causing him to
reach for his shotgun and fire at the victims in defense of his rights. Considering the
antecedent facts of this case, where appellant had thirty years earlier migrated to this
so-called "land of promise" with dreams and hopes of relative prosperity and
tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being
attended by any qualifying nor aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient provocation on the
part of the appellant-and by two generic mitigating circumstance of voluntary
surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two
degrees shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same. Considering that the majority of
the requirements for defense of property are present, the penalty may be lowered by
two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the
same may further be reduced by one degree, i.e., arresto mayor, because of the
presence of two mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant's reaction. In the case at
bar, the victims not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the victims' actuations were
apparently designed to humiliate him and destroy his reputation. The records disclose
that his wife, councilor Feliza Narvaez, was also charged in these two cases and
detained without bail despite the absence of evidence linking her to the killings. She
was dropped as a defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968
(p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to extend
its accumulation of public lands to the resettlement areas of Cotabato. Since it had
19
the capability-financial and otherwise-to carry out its land accumulation scheme, the
lowly settlers, who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no sufficient means to
fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted
of prision correccional or arrests mayor and fine who has no property with which to
meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day
for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on
April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of consequential damages and
costs of proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS
HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS
OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS
FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P
4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON
AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera,
Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression
on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or
legal possessor of a thing may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or usurpation of
his property. It seems to me, however, that an attack on the person defending his
property is an indispensable element where an accused pleads self-defense but what

is basically defended is only property.
Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide must
be coupled with an attack by the one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to
the pela of self-defense. I agree with the majority opinion that the crime is homicide
but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides,
mitigated by the two generic mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance, maximum the sentence the
appellant should have served was prision mayor plus the indemnification to each
group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral
damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen (14) years
now since August 22, 1968, he has served the penalty and should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression
on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or
legal possessor of a thing may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or usurpation of
his property. It seems to me, however, that an attack on the person defending his
property is an indispensable element where an accused pleads self-defense but what
is basically defended is only property.
Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide must
be coupled with an attack by the one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to
the pela of self-defense. I agree with the majority opinion that the crime is homicide
but without any privileged mitigating circumstance.
20
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides,
mitigated by the two generic mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance, maximum the sentence the
appellant should have served was prision mayor plus the indemnification to each
group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral
damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen (14) years
now since August 22, 1968, he has served the penalty and should be released.
FIRST DIVISION
SPO2 RUPERTO CABANLIG, G.R. No. 148431
Petitioner,
Present:
Davide, Jr., C.J.,
Chairman,
Quisumbing,
- versus- Ynares-Santiago,
Carpio, and
Azcuna, JJ.
The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an
amended information that reads as follows:
That on or about September 28, 1992, in the Municipality
of Penaranda, Province of Nueva Ecija, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2
Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S.
Esteban, all public officers being members of the Philippine
National Police, conspiring and confederating and mutually helping
one another, with intent to kill, with treachery and evident
premeditation, taking advantage of nighttime and uninhabited place
to facilitate the execution of the crime, with use of firearms and
without justifiable cause, did then and there, wilfully, unlawfully and
feloniously attack, assault and shoot one Jimmy Valino, hitting him
several times at the vital parts of his body, thereby inflicting upon
the latter, serious and mortal wounds which were the direct and
immediate cause of his death, which crime was committed by the
accused in relation to their office as members of the Philippine
National Police of Penaranda, Nueva Ecija, the deceased, who was
then detained for robbery and under the custody of the accused,
having been killed while being taken to the place where he
allegedly concealed the effects of the crime, to the damage and
prejudice of the heirs of said victim, in such amount as may be
awarded under the provisions of the New Civil Code.
CONTRARY TO LAW.[4]
SANDIGANBAYAN and OFFICE Promulgated:

OF THE SPECIAL PROSECUTOR,
Respondents, July 28, 2005
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CARPIO, J.:
The Case
This petition for review[1] seeks to reverse the Decision[2] of the Fifth Division
of the Sandiganbayan dated 11 May 1999 and Resolution[3] dated 2 May 2001
affirming the conviction of SPO2 Ruperto Cabanlig (Cabanlig) in Criminal Case No.
19436 for homicide. The Sandiganbayan sentenced Cabanlig to suffer the
indeterminate penalty of four months of arresto mayor as minimum to two years and
four months of prision correctional as maximum and to pay P50,000 to the heirs of
Jimmy Valino (Valino). Cabanlig shot Valino after Valino grabbed the M16 Armalite of
another policeman and tried to escape from the custody of the police. The
Sandiganbayan acquitted Cabanligs co-accused, SPO1 Carlos Padilla (Padilla), PO2
Meinhart Abesamis (Abesamis), SPO2 Lucio Mercado (Mercado) and SPO1 Rady
Esteban (Esteban).
Arraignment and Ple

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis,
Mercado and Esteban pleaded not guilty.
Version of the Prosecution
On 24 September 1992 a robbery occurred in the Municipality of Penaranda,
Nueva Ecija. Four days later or on 28 September 1992, the investigating authorities
apprehended three suspects: Jordan Magat (Magat), Randy Reyes (Reyes) and
Valino. The police recovered most of the stolen items. However, a flower vase and a
small radio were still missing. Cabanlig asked the three suspects where these two
items were. Reyes replied that the items were at his house.
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to
accompany him in retrieving the flower vase and radio. Cabanlig then brought out
Reyes and Magat from their cell, intending to bring the two during the retrieval
operation. It was at this point that Valino informed Cabanlig that he had moved the
vase and radio to another location without the knowledge of his two cohorts. Cabanlig
decided instead to bring along Valino, leaving behind Magat and Reyes.
21
Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla,
Mercado, Abesamis and Esteban escorted Valino to Barangay Sinasahan, Nueva
Ecija to recover the missing flower vase and radio. The policemen and Valino were
aboard a police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary
jeepney. The rear end of the jeep had no enclosure. A metal covering separated the
drivers compartment and main body of the jeep. There was no opening or door
between the two compartments of the jeep. Inside the main body of the jeep, were
two long benches, each of which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main
body of the jeep. Esteban was right behind Abesamis at the left bench. Valino, who
was not handcuffed, was between Cabanlig and Mercado at the right bench. Valino
was seated at Cabanligs left and at Mercados right. Mercado was seated nearest to
the opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and
while the jeep was slowly negotiating a bumpy and potholed road, Valino suddenly
grabbed Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab
Mercados M16 Armalite when Mercado scratched his head and tried to reach his
back because some flying insects were pestering Mercado. Mercado shouted hoy!
when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear
of the vehicle, saw Valinos act of taking away the M16 Armalite. Cabanlig acted
immediately. Without issuing any warning of any sort, and with still one foot on the
running board, Cabanlig fired one shot at Valino, and after two to three seconds,
Cabanlig fired four more successive shots. Valino did not fire any shot.
The shooting happened around 7:00 p.m., at dusk or nag-aagaw ang dilim
at liwanag. Cabanlig approached Valinos body to check its pulse. Finding none,
Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the back
of the head, one at the left side of the chest, and one at the left lower back. Padilla
and Esteban remained with the body. The other three policemen, including Cabanlig,
went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo
Lacanilao (Lacanilao) of the Cabanatuan Police went to Barangay Sinasahan, Nueva
Ecija to investigate a case. Lacanilao met Mercado who gave him instructions on how
to settle the case that he was handling. During their conversation, Mercado related
that he and his fellow policemen salvaged (summarily executed) a person the night
before. Lacanilao asked who was salvaged. Mercado answered that it was Jimmy
Valino. Mercado then asked Lacanilao why he was interested in the identity of the
person who was salvaged. Lacanilao then answered that Jimmy Valino was his
cousin. Mercado immediately turned around and left.
Version of the Defense
Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting
as an act of self-defense and performance of duty. Mercado denied that he told
Lacanilao that he and his co-accused salvaged Valino. Cabanlig, Mercado, Abesamis,
Padilla, and Esteban denied that they conspired to kill Valino.
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as

the court found no evidence that the policemen conspired to kill or summarily execute
Valino. Since Cabanlig admitted shooting Valino, the burden is on Cabanlig to
establish the presence of any circumstance that would relieve him of responsibility or
mitigate the offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense or
defense of a stranger. The only defense that Cabanlig could properly invoke in this
case is fulfillment of duty. Cabanlig, however, failed to show that the shooting of
Valino was the necessary consequence of the due performance of duty. The
Sandiganbayan pointed out that while it was the duty of the policemen to stop the
escaping detainee, Cabanlig exceeded the proper bounds of performing this duty
when he shot Valino without warning.
The Sandiganbayan found no circumstance that would qualify the crime to murder.
Thus, the Sandiganbayan convicted Cabanlig only of homicide. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS
ESTOQUE PADILLA, MEINHART CRUZ ABESAMIS, LUCIO
LADIGNON MERCADO and RADY SALAZAR ESTEBAN are
hereby ACQUITTED of the crime charged. Accused RUPERTO
CONCEPCION CABANLIG is found GUILTY beyond reasonable
doubt of the crime of Homicide and is hereby sentenced to suffer
the indeterminate sentence of FOUR (4) MONTHS of arresto
mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS
of prision correccional, as maximum. He is further ordered to pay
the heirs of Jimmy Valino the amount of FIFTY THOUSAND
(P50,000.00) PESOS, and the costs.
SO ORDERED.[5]
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. (Associate
Justice Badoy) dissented from the decision. Associate Justice Badoy pointed out that
there was imminent danger on the lives of the policemen when Valino grabbed the
infallible Armalite[6] from Mercado and jumped out from the rear of the jeep. At a
distance of only three feet from Cabanlig, Valino could have sprayed the policemen
with bullets. The firing of a warning shot from Cabanlig was no longer necessary.
Associate Justice Badoy thus argued for Cabanligs acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision. [7] The dispositive
portion of the Resolution reads:
WHEREFORE, for lack of
reconsideration is hereby DENIED.[8]
merit,
the
motion
The Issues
Cabanlig raises the following issues in his Memorandum:
The Sandiganbayans Ruling
for
22
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT
THE DEFENSE OF FULFILLMENT OF DUTY PUT UP BY
CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT
CABANLIG COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF
STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING
CABANLIG TO SUFFER IMPRISONMENT AND IN ORDERING
HIM TO PAY THE AMOUNT OF P 50,000 TO THE HEIRS OF
VALINO[9]
The Courts Ruling
The petition has merit. We rule for Cabanligs acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more
justifying circumstances. While there is nothing in the law that prevents an accused
from invoking the justifying circumstances or defenses in his favor, it is still up to the
court to determine which justifying circumstance is applicable to the circumstances of
a particular case.
Self-defense and fulfillment of duty operate on different principles.[10] Selfdefense is based on the principle of self-preservation from mortal harm, while
fulfillment of duty is premised on the due performance of duty. The difference between
the two justifying circumstances is clear, as the requisites of self-defense and
fulfillment of duty are different.
A policeman in the performance of duty is justified in using such force as is

reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.[13] In case injury or death results from the policemans exercise of such force,
the policeman could be justified in inflicting the injury or causing the death of the
offender if the policeman had used necessary force. Since a policemans duty requires
him to overcome the offender, the force exerted by the policeman may therefore differ
from that which ordinarily may be offered in self-defense.[14] However, a policeman is
never justified in using unnecessary force or in treating the offender with wanton
violence, or in resorting to dangerous means when the arrest could be affected
otherwise.[15]
Unlike in self-defense where unlawful aggression is an element, in
performance of duty, unlawful aggression from the victim is not a requisite. In People
v. Delima,[16] a policeman was looking for a fugitive who had several days earlier
escaped from prison. When the policeman found the fugitive, the fugitive was armed
with a pointed piece of bamboo in the shape of a lance. The policeman demanded the
surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance.
The policeman dodged the lance and fired his revolver at the fugitive. The policeman
missed. The fugitive ran away still holding the bamboo lance. The policeman pursued
the fugitive and again fired his revolver, hitting and killing the fugitive. The Court
acquitted the policeman on the ground that the killing was done in the fulfillment of
duty.
The fugitives unlawful aggression in People v. Delima had already ceased
when the policeman killed him. The fugitive was running away from the policeman
when he was shot. If the policeman were a private person, not in the performance of
duty, there would be no self-defense because there would be no unlawful aggression
on the part of the deceased. [17] It may even appear that the public officer acting in the
fulfillment of duty is the aggressor, but his aggression is not unlawful, it being
necessary to fulfill his duty.[18]
The elements of self-defense are as follows:

a)
b)
c)
Unlawful Aggression;
Reasonable necessity of the means employed to prevent or repel it;
Lack of sufficient provocation on the part of the person defending
himself.[11]
While self-defense and performance of duty are two distinct justifying

circumstances, self-defense or defense of a stranger may still be relevant even if the
proper justifying circumstance in a given case is fulfillment of duty. For example, a
policemans use of what appears to be excessive force could be justified if there was
imminent danger to the policemans life or to that of a stranger. If the policeman used
force to protect his life or that of a stranger, then the defense of fulfillment of duty
would be complete, the second requisite being present.
On the other hand, the requisites of fulfillment of duty are:

1.
The accused acted in the performance of a duty or in the

lawful exercise of a right or office;
2.
The injury caused or the offense committed be the necessary

consequence of the due performance of duty or the lawful
exercise of such right or office.[12]
In People v. Lagata,[19] a jail guard shot to death a prisoner whom he

thought was attempting to escape. The Court convicted the jail guard of homicide
because the facts showed that the prisoner was not at all trying to escape. The Court
declared that the jail guard could only fire at the prisoner in self-defense or
if absolutely necessary to avoid the prisoners escape.
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the
performance of duty as policemen when they escorted Valino, an arrested robber, to
retrieve some stolen items. We uphold the finding of the Sandiganbayan that there is
no evidence that the policemen conspired to kill or summarily execute Valino. In fact,
it was not Valino who was supposed to go with the policemen in the retrieval
23
operations but his two other cohorts, Magat and Reyes. Had the policemen staged
the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not
have been loaded with bullets.[20] Moreover, the alleged summary execution of Valino
must be based on evidence and not on hearsay.
better had he not grabbed the M16 Armalite which only provoked the policemen to
recapture him and recover the M16 Armalite with greater vigor. Valinos act of
grabbing the M16 Armalite clearly showed a hostile intention and even constituted
unlawful aggression.
Undoubtedly, the policemen were in the legitimate performance of their duty

when Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that
is applicable to this case. To determine if this defense is complete, we have to
examine if Cabanlig used necessary force to prevent Valino from escaping and in
protecting himself and his co-accused policemen from imminent danger.
Facing imminent danger, the policemen had to act swiftly. Time was of the
essence. It would have been foolhardy for the policemen to assume that Valino
grabbed the M16 Armalite merely as a souvenir of a successful escape. As we have
pointed out in Pomoy v. People[23]:
Fulfillment of Duty was Complete, Killing was Justified

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of
duty was found to be incomplete. The Sandiganbayan believed that Cabanlig
exceeded the fulfillment of his duty when he immediately shot Valino without issuing a
warning so that the latter would stop.[21]
Again, it was in the lawful performance of his duty as a law

enforcer that petitioner tried to defend his possession of the
weapon when the victim suddenly tried to remove it from his
holster. As an enforcer of the law, petitioner was duty-bound to
prevent the snatching of his service weapon by anyone, especially
by a detained person in his custody. Such weapon was likely to be
used to facilitate escape and to kill or maim persons in the vicinity,
including petitioner himself.
We disagree with the Sandiganbayan.

Certainly, an M16 Armalite is a far more powerful and deadly weapon than
the bamboo lance that the fugitive had run away with in People v. Delima. The
policeman inPeople v. Delima was held to have been justified in shooting to death
the escaping fugitive because the policeman was merely performing his duty.
In this case, Valino was committing an offense in the presence of the
policemen when Valino grabbed the M16 Armalite from Mercado and jumped from the
jeep to escape. The policemen would have been justified in shooting Valino if the use
of force was absolutely necessary to prevent his escape. [22] But Valino was not only
an escaping detainee. Valino had also stolen the M16 Armalite of a policeman. The
policemen had the duty not only to recapture Valino but also to recover the loose
firearm. By grabbing Mercados M16 Armalite, which is a formidable firearm, Valino
had placed the lives of the policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen would have
been sitting ducks. All of the policemen were still inside the jeep when Valino
suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed
in inside the main body of the jeep, in the direct line of fire had Valino used the M16
Armalite. There would have been no way for Cabanlig, Mercado and Esteban to
secure their safety, as there were no doors on the sides of the jeep. The only way out
of the jeep was from its rear from which Valino had jumped. Abesamis and Padilla
who were in the drivers compartment were not aware that Valino had grabbed
Mercados M16 Armalite. Abesamis and Padilla would have been unprepared for
Valinos attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard,
Valino certainly did not intend merely to escape and run away as far and fast as
possible from the policemen. Valino did not have to grab the M16 Armalite if his sole
intention was only to flee from the policemen. If he had no intention to engage the
policemen in a firefight, Valino could simply have jumped from the jeep without
grabbing the M16 Armalite. Valinos chances of escaping unhurt would have been far
The Sandiganbayan, however, ruled that despite Valinos possession of a

deadly firearm, Cabanlig had no right to shoot Valino without giving Valino the
opportunity to surrender. The Sandiganbayan pointed out that under the General
Rules of Engagement, the use of force should be applied only as a last resort when
all other peaceful and non-violent means have been exhausted. The Sandiganbayan
held that only such necessary and reasonable force should be applied as would be
sufficient to conduct self-defense of a stranger, to subdue the clear and imminent
danger posed, or to overcome resistance put up by an offender.
The Sandiganbayan had very good reasons in steadfastly adhering to the
policy that a law enforcer must first issue a warning before he could use force against
an offender. A law enforcers overzealous performance of his duty could violate the
rights of a citizen and worse cost the citizens life. We have always maintained that the
judgment and discretion of public officers, in the performance of their duties, must be
exercised neither capriciously nor oppressively, but within the limits of the law. [24] The
issuance of a warning before a law enforcer could use force would prevent
unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ
force only as a last resort and only after issuing a warning.
However, the duty to issue a warning is not absolutely mandated at all times
and at all cost, to the detriment of the life of law enforcers. The directive to issue a
warning contemplates a situation where several options are still available to the law
enforcers. In exceptional circumstances such as this case, where the threat to the life
of a law enforcer is already imminent, and there is no other option but to use force to
subdue the offender, the law enforcers failure to issue a warning is excusable.
In this case, the embattled policemen did not have the luxury of time. Neither
did they have much choice. Cabanligs shooting of Valino was an immediate and
spontaneous reaction to imminent danger. The weapon grabbed by Valino was not
just any firearm. It was an M16 Armalite.
24
The M16 Armalite is an assault rifle adopted by the United Sates (US) Army
as a standard weapon in 1967 during the Vietnam War.[25] The M16 Armalite is still a
general-issue rifle with the US Armed Forces and US law enforcement agencies.
[26]
The M16 Armalite has both semiautomatic and automatic capabilities.[27] It is 39
inches long, has a 30-round magazine and fires high-velocity .223-inch (5.56-mm)
bullets.[28] The M16 Armalite is most effective at a range of 200 meters [29] but its
maximum effective range could extend as far as 400 meters. [30] As a high velocity
firearm, the M16 Armalite could be fired at close range rapidly or with much volume of
fire.[31] These features make the M16 Armalite and its variants well suited for urban
and jungle warfare.[32]
The M16 Armalite whether on automatic or semiautomatic setting is a lethal
weapon. This high-powered firearm was in the hands of an escaping detainee, who
had sprung a surprise on his police escorts bottled inside the jeep. A warning from the
policemen would have been pointless and would have cost them their lives.
fracturing the right cheek bone and making an EXIT wound, 1.5 x
2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in
front of right external auditory meatus.
For what is the purpose of a warning? A warning is issued when policemen

have to identify themselves as such and to give opportunity to an offender to
surrender. A warning in this case was dispensable. Valino knew that he was in the
custody of policemen. Valino was also very well aware that even the mere act of
escaping could injure or kill him. The policemen were fully armed and they could use
force to recapture him. By grabbing the M16 Armalite of his police escort, Valino
assumed the consequences of his brazen and determined act. Surrendering was
clearly far from Valinos mind.
3.
ENTRANCE ovaloid, 0.6 x 0.5 located at the back,
left side, 9.0 cms. from the posterior median line; 119.5 cms. from
the left heel; directed forward, downward involving the soft tissues,
lacerating the liver; and bullet was recovered on the right anterior
chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from
the right heel.
At any rate, Valino was amply warned. Mercado shouted hoy when Valino
grabbed the M16 Armalite. Although Cabanlig admitted that he did not hear Mercado
shout hoy, Mercados shout should have served as a warning to Valino. The verbal
warning need not come from Cabanlig himself.
The Necropsy Report[35] also reveals the following:
The records also show that Cabanlig first fired one shot. After a few
seconds, Cabanlig fired four more shots. Cabanlig had to shoot Valino because
Valino at one point was facing the police officers. The exigency of the situation
warranted a quick response from the policemen.
According to the Sandiganbayan, Valino was not turning around to shoot
because two of the three gunshot wounds were on Valinos back. Indeed, two of the
three gunshot wounds were on Valinos back: one at the back of the head and the
other at the left lower back. The Sandiganbayan, however, overlooked the location of
the third gunshot wound. It was three inches below the left clavicle or on the left top
most part of the chest area based on the Medico Legal Sketch showing the entrances
and exits of the three gunshot wounds.[33]
2.
ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the
left chest; 6.5 cms. from the anterior median line, 136.5 cms. from
the left heel directed backward, downward and to the right,
involving soft tissues, fracturing the 3rd rib, left, lacerating the left
upper lobe and the right lower lobe and finally making an EXIT
wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the
posterior median line and 132.0 cms. from the right heel and
grazing the medial aspect of the right arm.
1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at

the left side of the back of the head. The left parietal bone is
fractured. The left temporal bone is also fractured. A wound of
exit measuring 2 cms X 3 cms in size is located at the left
temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the
left side of the chest about three inches below the left
clavicle. The wound is directed medially and made an exit
wound at the right axilla measuring 2 X 2 cms in size.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left
lower back above the left lumbar. The left lung is collapsed and
the liver is lacerated. Particles of lead [were] recovered in the
liver tissues. No wound of exit.
The Autopsy Report[34] confirms the location of the gunshot wounds, as

follows:
Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head
GUNSHOT WOUNDS modified by embalming.
1.
ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of
tattooing around the entrance, 4.0 x 3.0 cms.; located at the right
postauricular region, 5.5 cms. behind and 1.5 cms. above the right
external auditory meatus, directed forward downward fracturing the
occipital bone, lacerating the right occipital portion of the brain and
The doctors who testified on the Autopsy[36] and Necropsy[37] Reports

admitted that they could not determine which of the three gunshot wounds was first
inflicted. However, we cannot disregard the significance of the gunshot wound on
Valinos chest. Valino could not have been hit on the chest if he were not at one point
facing the policemen.
25
If the first shot were on the back of Valinos head, Valino would have
immediately fallen to the ground as the bullet from Cabanligs M16 Armalite almost
shattered Valinos skull. It would have been impossible for Valino to still turn and face
the policemen in such a way that Cabanlig could still shoot Valino on the chest if the
first shot was on the back of Valinos head.
The most probable and logical scenario: Valino was somewhat facing the
policemen when he was shot, hence, the entry wound on Valinos chest. On being hit,
Valino could have turned to his left almost falling, when two more bullets felled Valino.
The two bullets then hit Valino on his lower left back and on the left side of the back of
his head, in what sequence, we could not speculate on. At the very least, the gunshot
wound on Valinos chest should have raised doubt in Cabanligs favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis,
Mercado and Esteban are guilty only of gross negligence. The policemen transported
Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That no
handcuffs were available in the police precinct is a very flimsy excuse. The policemen
should have tightly bound Valinos hands with rope or some other sturdy material.
Valinos cooperative demeanor should not have lulled the policemen to complacency.
As it turned out, Valino was merely keeping up the appearance of good behavior as a
prelude to a planned escape. We therefore recommend the filing of an administrative
case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross
negligence.
WHEREFORE, we REVERSE the decision of the Sandiganbayan in
Criminal
Case
No.
19436
convicting
accused
RUPERTO
CONCEPCION CABANLIG of the crime of homicide. We ACQUIT RUPERTO
CONCEPCION CABANLIG of the crime of homicide and ORDER his immediate
release from prison, unless there are other lawful grounds to hold him.
We DIRECT the Director of Prisons to report to this Court compliance within five (5)
days from receipt of this Decision. No costs.
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.
HILARIO G. DAVIDE, JR.

Chief Justice
[1]
Under Rule 45 of the Rules of Court.

Penned by Associate Justice Minita V. Chico-Nazario with Associate Justices Anacleto D. Badoy, Jr. and Ma.
Cristina Cortez-Estrada, concurring.
[3]
Penned by Associate Justice Minita V. Chico-Nazario with Associate Justices Ma. Cristina Cortez-Estrada,
Raoul V. Victorino, Nicodemo T. Ferrer, concurring. Associate Justice Anacleto D. Badoy, Jr. dissented.
[4]
Records, pp. 29-30.
[2]
Rollo, p. 56.
Ibid., p. 90.
[7]
See note 3.
[8]
Rollo, p. 84.
[9]
Ibid., p. 161.
[10]
LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK ONE, p. 202.
[11]
Paragraph 1, Article 11 of the Revised Penal Code.
[12]
People v. Oanis, 74 Phil. 257 (1943).
[13]
Ibid..
[14]
RAMON C. AQUINO AND CAROLINA C. GRIO-AQUINO, THE REVISED PENAL CODE, 1997 ED., VOL. I,
p. 205, citing United States v. Mojica, 42 Phil. 784 (1922).
[15]
Supra note 12.
[16]
46 Phil. 738 (1922).
[17]
LUIS B. REYES, THE REVISED PENAL CODE, supra note 10, p. 203.
[18]
Ibid., p. 202.
[19]
83 Phil. 150 (1949).
[20]
TSN, 11 July 1996, p. 21.
[5]
[6]
[21]
[22]
[23]
SO ORDERED.
Rollo, p. 47.
LUIS B. REYES, THE REVISED PENAL CODE, supra note 10, p. 198.
G.R. No. 150647, 29 September 2004, 439 SCRA 439.
[24]
ANTONIO T. CARPIO
Associate Justice
Calderon v. People and Court of Appeals, 96 Phil. 216 (1954).

http://concise.britannica.com/ebc/article?tocId=9370808, 19 May 2005.
http://world.guns.ru/assault/as18-e.htm, 19 May 2005.
[27]
http://concise.britannica.com/ebc/article?tocdI=9370808, 19 May 2005.
[28]
Ibid.
[29]
http://www.olive-drab.com/od_other_firearms_rifle_m16.php3, 19 May 2005.
[30]
http://world.guns.ru/assault/as18-e.htm, 19 May 2005.
[31]
http://www.answer.com, 19 May 2005.
[32]
Ibid.
[33]
Exhibit B-1.
[34]
Exhibit A.
[35]
Exhibit B.
[36]
Testimony of Dr. Dominic L. Aguda, TSN, 28 July 1994, p. 26.
[37]
Testimony of Dr. Marcelo H. Gallardo Jr., TSN, 27 July 1994, pp. 19-20.
[25]
[26]
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
EN BANC
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE
PEOPLE OF THE PHILIPPINES, respondents.
26
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division),
and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF
THE SPECIAL PROSECUTOR, respondents.
DECISION
FRANCISCO, J.:
Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M.
Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated
October 12, 1990,[2] as well as the Resolution dated December 20, 1991[3] denying
reconsideration, convicting them of malversation under Article 217 of the Revised
Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of
having malversed the total amount of P55 Million of the Manila International Airport
Authority (MIAA) funds during their incumbency as General Manager and Acting
Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years ofreclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE MILLION
PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and
severally the Manila International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant
General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since
the total amount of P55 Million was taken on three (3) separate dates of January,
1986. Tabuena appears as the principal accused - he being charged in all three (3)
cases. The amended informations in criminal case nos. 11758, 11759 and 11760
respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for
the issuance of a managers check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when both
accused well knew that there was no outstanding obligation of MIAA in favor of
PNCC, and after the issuance of the above-mentioned managers check, accused
Luis A. Tabuena encashed the same and thereafter both accused misappropriated
and converted the proceeds thereof to their personal use and benefit, to the damage
and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for
the issuance of a managers check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when both
accused well knew that there was no outstanding obligation of MIAA in favor of
PNCC, and after the issuance of the above-mentioned managers check, accused
Luis A. Tabuena encashed the same and thereafter both accused misappropriated
and converted the proceeds thereof to their personal use and benefit, to the damage
and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a managers check for said amount in the name
27
of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500354-3 in the PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would personally take care
of, when both accused well knew that there was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of the above-mentioned managers check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following
essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the
presidents office and in cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do
it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private
secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs account with said Company mentioned
in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985
and duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.[4]
The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development
Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2
P11,106,600.95
5,758,961.52
4,586,610.80
1,699,862.69

Package Contract No. II
233,561.22
8,821,731.08
6,110,115.75
16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on
May 28, 1984)
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for the
aforecited contracts. In accordance with contract provisions, outstanding advances
totalling P93.9 million are to be deducted from said billings which will leave a net
amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million in
the following stages of approval/evaluation:
Approved by Price Escalation Committee (PEC) but pended for lack of
funds
Endorsed by project consultants and currently being evaluated by PEC
Submitted by PNCC directly to PEC and currently under evaluation
Total
P 1.9 million
30.7 million
66.5 million
P99.1 million
There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment
of the repayment of PNCCs advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
(Sgd.) ROBERTO V. ONGPIN
Minister[5]
In obedience to President Marcos verbal instruction and memorandum,
Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of
MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a
letter of even date signed by Tabuena and Dabao requesting the PNB extension office
at the MIAA - the depository branch of MIAA funds, to issue a managers check for
said amount payable to Tabuena. The check was encashed, however, at the PNB
Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the
money after which, Tabuena took delivery thereof. The P25 Million in cash were then
placed in peerless boxes and duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs. Gimenez located at Aguado Street
fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and
delivery of another P25 Million, made on January 16, 1986.
28
The third and last withdrawal was made on January 31, 1986 for P5
Million. Peralta was Tabuenas co-signatory to the letter- request for a managers
check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as
Tabuena requested him to do the counting of the P5 Million. After the counting, the
money was placed in two (2) peerless boxes which were loaded in the trunk of
Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez
office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez
issued a receipt for all the amounts she received from Tabuena. The receipt, dated
January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta
themselves, out of the ordinary and not based on the normal procedure. Not only
were there no vouchers prepared to support the disbursement, the P55 Million was
paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense
witness Francis Monera, then Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there were no payments made to
PNCC by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations
in favor of PNCC at the time of the disbursement of the P55 Million. On the other
hand, the defense of Tabuena and Peralta, in short, was that they acted in good
faith. Tabuena claimed that he was merely complying with the MARCOS
Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and
that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta
for his part shared the same belief and so he heeded the request of Tabuena, his
superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which
ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10)
errors[6] committed by the Sandiganbayan for this Courts consideration. It appears,
however, that at the core of their plea that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being
charged with intentional malversation, as the amended informations commonly allege
that:
x x x accused x x x conspiring, confederating and confabulating with each other, did
then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by negligence. In
this connection, the Courts attention is directed to p. 17 of the December 20, 1991
Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the
Sandiganbayan said:
xxxxxxxxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or of
the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so,
Tabuena, by his own narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds. (Underscoring
supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed intentionally or by negligence, both modes
cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional
malversation.[7]
3) Their conviction of a crime different from that charged violated their constitutional
right to be informed of the accusation.[8]
We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar
protestations raised by therein accused-petitioner Cabello whose conviction for the
same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first mode
of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful
or intentional falsification can validly be convicted of falsification through negligence,
thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the
greater includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence submitted
by the parties, the Court of Appeals found that in effecting the falsification which made
possible the cashing of the checks in question, appellant did not act with criminal
intent but merely failed to take proper and adequate means to assure himself of the
identity of the real claimants as an ordinary prudent man would do. In other words,
the information alleges acts which charge willful falsification but which turned out to
be not willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof, and is similar to some of the cases
decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
29
sufficient that some of said essential elements or ingredients thereof be established to
constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the falsification has
been willful, it would be incongruous to allege at the same time that it was committed
with imprudence for a charge of criminal intent is incompatible with the concept of
negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale
and arguments also apply to the felony of malversation, that is, that an accused
charged with willful malversation, in an information containing allegations similar to
those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in
a prosecution for malversation for it would negate criminal intent on the part of the
accused. Thus, in the two (2) vintage, but significant malversation cases of US v.
Catolico[10] and US v. Elvia,[11] the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea - a crime is not committed if the mind of the person performing
the act complained of is innocent.
The rule was reiterated in People v. Pacana,[12] although this case involved
falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting.
American jurisprudence echoes the same principle. It adheres to the view that
criminal intent in embezzlement is not based on technical mistakes as to the legal
effect of a transaction honestly entered into, and there can be no embezzlement if the
mind of the person doing the act is innocent or if there is no wrongful purpose. [13] The
accused may thus always introduce evidence to show he acted in good faith and that
he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had
meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the
MARCOS Memorandum, we are swayed to give credit to his claim of having caused
the disbursement of the P55 Million solely by reason of such memorandum. From this
premise flows the following reasons and/or considerations that would buttress his
innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was
what the MARCOS Memorandum required him to do. He could not be faulted if he
had to obey and strictly comply with the presidential directive, and to argue otherwise
is something easier said than done. Marcos was undeniably Tabuenas superior the
former being then the President of the Republic who unquestionably exercised control
over government agencies such as the MIAA and PNCC.[15] In other words, Marcos
had a say in matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and the manner
in which it should be carried out. And as a recipient of such kind of a directive coming
from the highest official of the land no less, good faith should be read on Tabuenas
compliance, without hesitation nor any question, with the MARCOS

Memorandum.Tabuena therefore is entitled to the justifying circumstance of Any
person who acts in obedience to an order issued by a superior for some lawful
purpose.[16] The subordinate-superior relationship between Tabuena and Marcos is
clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment of the liability of one
government agency (MIAA) to another (PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued, on the observation, for instance, that the
Ongpin Memo referred to in the presidential directive reveals a liability of only
about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCCs
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment of
repayment of PNCCs advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been
officially recognized by MIADP consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC
to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was
still in the stages of evaluation and approval, with only P32.6 million having been
officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos Memo was based) they would only be for a sum of up to P34.5
million.[17]
xxxxxxxxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million
irrelevant, but it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1,
however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized
only P34.5 million. The order to withdraw the amount of P55 million exceeded the
approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January
7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55
million.[18]
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to
make him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding
liability) and that Tabuena acted under the honest belief that the P55 million was a
30
due and demandable debt and that it was just a portion of a bigger liability to
PNCC. This belief is supported by defense witness Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is indicated
the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2,
marked as Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[19]
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to
MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for
escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner
that are supposed to take care of price increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you
that these are due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware
of its illegality, the subordinate is not liable, for then there would only be a mistake of
fact committed in good faith.[22] Such is the ruling in Nassif v. People[23] the facts of
which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of
R.J. Campos, he inserted in the commercial document alleged to have been falsified
the word sold by order of his principal. Had he known or suspected that his principal
was committing an improper act of falsification, he would be liable either as a coprincipal or as an accomplice. However, there being no malice on his part, he was
exempted from criminal liability as he was a mere employee following the orders of
his principal.[24]
Second. There is no denying that the disbursement, which Tabuena admitted as
out of the ordinary, did not comply with certain auditing rules and regulations such as
those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements
above P1,000.00 should be made by check (Basic Guidelines for Internal Control
dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this
connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no
bills to support the disbursement. There were no certifications as to the availability of
funds for an unquestionably staggering sum of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not
have the luxury of time to observe all auditing procedures of disbursement
considering the fact that the MARCOS Memorandum enjoined his immediate
compliance with the directive that he forward to the Presidents Office the P55 Million
in cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the decision inVillacorta
v. People[26] where the Court, in acquitting therein accused municipal treasurer of
Pandan, Catanduanes of malversation after finding that he incurred a shortage in his
cash accountability by reason of his payment in good faith to certain government
personnel of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in good faith mainly to government personnel,
some of them working at the provincial auditors and the provincial treasurers
offices. And if those payments ran counter to auditing rules and regulations, they did
not amount to a criminal offense and he should only be held administratively or civilly
liable.
Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do
not amount to criminal appropriation, although they were made with insufficient
vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain
provisions in the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuenas personal accountability, as agency head,
for MIAA funds - would all the more support the view that Tabuena is vulnerable to
civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly
liable to describe the kind of sanction imposable on a superior officer who performs
his duties with bad faith, malice or gross negligence and on a subordinate officer or
employee who commits willful or negligent acts x x x which are contrary to law,
morals, public policy and good customs even if he acted under order or instructions of
his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already
converted and misappropriated the P55 Million when he delivered the same to Mrs.
Gimenez and not to the PNCC, proceeding from the following definitions/concepts
of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent
appropriation to ones own use of anothers property which does not necessarily mean
to ones personal advantage but every attempt by one person to dispose of the goods
of another without right as if they were his own is conversion to his own use. (Terry v.
Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal
property to enjoy and control it. The gist of conversion is the usurpation of the owners
right of property, and not the actual damages inflicted. Honesty of purpose is not a
defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote an act of using or disposing of
anothers property as if it were ones own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to ones
own use includes not only conversion to ones personal advantage but every attempt
to dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
31
By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them
and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum directed
Tabuena to pay immediately the Philippine National Construction Corporation, thru
this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely
did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in
effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos
secretary then. Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly aware that
Marcos, as Chief Executive, exercised supervision and control over government
agencies. And the good faith of Tabuena in having delivered the money to the
Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never
received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
xxxxxxxxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid
was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly
but not criminally liable.[29]
Fourth. Even assuming that the real and sole purpose behind the MARCOS
Memorandum was to siphon-out public money for the personal benefit of those then
in power, still, no criminal liability can be imputed to Tabuena. There is no showing
that Tabuena had anything to do whatsoever with the execution of the MARCOS
Memorandum. Nor is there proof that he profited from the felonious scheme. In short,
no conspiracy was established between Tabuena and the real embezzler/s of the P55
Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also
involving the crime of malversation, the accused therein were acquitted after the
Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein
accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty
by the lower court of malversation after being unable to turn over certain amounts to
the then justice of the peace. It appeared, however, that said amounts were actually
collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction
after finding that the sums were converted by his secretary Urbina without the
knowledge and participation of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of
the theft committed by the secretary was shown on the part of the appellant in this
case, nor does it appear that he in any way participated in the fruits of the crime. If the
secretary stole the money in question without the knowledge or consent of the
appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof.[32]
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be

converted into checks drawn in the name of one Marshall Lu, a non-customer of
MWSS, but the checks were subsequently dishonored. Ang was acquitted by this
Court after giving credence to his assertion that the conversion of his collections into
checks were thru the machinations of one Lazaro Guinto, another MWSS collector
more senior to him. And we also adopt the Courts observation therein, that:
The petitioners alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar
as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall
Lu. The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS,
must be converted into evidence before conviction beyond reasonable doubt may be
imposed.[33]
The principles underlying all that has been said above in exculpation of Tabuena
equally apply to Peralta in relation to the P5 Million for which he is being held
accountable, i.e., he acted in good faith when he, upon the directive of
Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA
funds.
This is not a sheer case of blind and misguided obedience, but obedience in
good faith of a duly executed order. Indeed, compliance to a patently lawful order is
rectitude far better than contumacious disobedience. In the case at bench, the order
emanated from the Office of the President and bears the signature of the President
himself, the highest official of the land. It carries with it the presumption that it was
regularly issued. And on its face, the memorandum is patently lawful for no law makes
the payment of an obligation illegal. This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached from the realities then
prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and
that the judiciary was independent and fearless. We know it was not; even the
Supreme Court at that time was not free.This is an undeniable fact that we can not
just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.[34]
But what appears to be a more compelling reason for their acquittal is the
violation of the accuseds basic constitutional right to due process. Respect for the
Constitution, to borrow once again Mr. Justice Cruzs words, is more important than
securing a conviction based on a violation of the rights of the accused.[35] While going
over the records, we were struck by the way the Sandiganbayan actively took part in
the questioning of a defense witness and of the accused themselves. Tabuena and
Peralta may not have raised this as an error, there is nevertheless no impediment for
us to consider such matter as additional basis for a reversal since the settled doctrine
is that an appeal throws the whole case open to review, and it becomes the duty of
the appellate court to correct such errors as may be found in the judgment appealed
from whether they are made the subject of assignments of error or not.[36]
Simply consider the volume of questions hurled by the Sandiganbayan. At the
taking of the testimony of Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct
examination. Prosecutor Viernes only asked six (6) questions on cross-examination in
the course of which the court interjected a total of twenty-seven (27) questions (more
32
than four times Prosecutor Viernes questions and even more than the combined total
of direct and cross-examination questions asked by the counsels). After the defense
opted not to conduct any re-direct examination, the court further asked a total of ten
(10) questions.[37] The trend intensified during Tabuenas turn on the witness
stand. Questions from the court after Tabuenas cross-examination totalled sixtyseven (67).[38] This is more than five times Prosecutor Viernes questions on crossexamination (14), and more than double the total of direct examination and crossexamination questions which is thirty-one (31) [17 direct examination questions by
Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas
case, the Justices, after his cross-examination, propounded a total of forty-one
(41) questions.[39]
But more importantly, we note that the questions of the court were in the nature
of cross examinations characteristic of confrontation, probing and insinuation. [40] (The
insinuating type was best exemplified in one question addressed to Peralta, which will
be underscored.) Thus we beg to quote in length from the transcripts pertaining to
witness Monera, Tabuena and Peralta. (Questions from the Court are marked with
asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were
nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the
court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly
escalation billings. Were those escalation billings properly transmitted to MIA authorities?
A I dont have the documents right now to show that they were transmitted, but I have a letter by
our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of
our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference between the MIA and
the PNCC for the determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid
receivables. And, in fact, we have been following up for payment.
*Q This determination of the escalation costs was it accepted as the correct figure by
MIA?
A I dont have any document as to the acceptance by MIA, your Honor, but our company was
able to get a document or a letter by Minister Ongpin to President Marcos, dated January
7, 1985, with a marginal note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for partial deferment
of payment for MIA Development Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or you do not
have any proof of that?
A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears
to have confirmed our billings to MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on these escalation billings?
A Based on records available as of today, the P102 million was reduced to about P56.7 million, if
my recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new
entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the payments were made
before the entry of our President, your Honor. Actually, the payment was in the form
of: assignments to State Investment of about P23 million; and then there was P17.8
million application against advances made or formerly given; and there were payments to
PNCC of about P2.6 million and there was a payment for application on withholding and
contractual stock of about P1 million; that summed up to P44.4 million all in all. And you
deduct that from the P102 million, the remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102 million, only P2
million had been payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of
accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August
1987.
*Q We are talking now about the P44 million, more or less, by which the basic account
has been reduced. These reductions, whether by adjustment or assignment or
actual delivery of cash, were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation billings. Do we get it
from you that there was an admission of these escalation costs as computed by
you by MIA, since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or check, if there were
payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there any liquidations
made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger card indicates that
there were collections on page 2 of the Exhibit earlier presented. It will indicate that there
were collections shown by credits indicated on the credit side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to
the escalation billings. Was the payment in cash or just credit of some sort before
December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official receipts and I suppose
these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation prior to December 31,
1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of assignments,
adjustments, by offsets and by P2 million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in connection with or in
case of cash payment, was the payment in cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
*PJ GARCHITORENA
33
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the former President
Marcos, did you say that that letter concurs with the escalation billings reflected in
Exhibits 7 and 7-a?
WITNESS
A The Company or the management is of the opinion that this letter, a copy of which we were
able to get, is a confirmation of the acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation
billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the
letter of January 1985 confirms the escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102
million after payments were made as shown on the credit side of the ledger. I suppose
hat the earlier amount, before the payment was made, was bigger and therefore I would
venture to say that the letter of January 7, 1985 contains an amount that is part of the
original contract account. What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of
MIA in July and November until December 1985. These were properly credited to the
account of MIA?
WITNESS
A Yes, sir.
Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to
PNCC by MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no payment of this
escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that
was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment whatsoever by MIA to
PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of
account, or by assignment, or by offsets, when did these payments begin?
A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44
million.
*Q And what you are saying is that, PNCC passed the account to State Investment. In
other words, State Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State Investment is P23
million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet reviewed the same,
your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a collection letter by our
President dated July 6, 1988, your Honor. The amount indicated in the letter is P55
million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x x.[41]
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million
pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3)
dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street,
who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on
how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor. What happened is that, I did not notice
the date placed by Mrs. Gimenez.
*Q Are you telling us that this Exhibit 3 was incorrectly dated?
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was dated January
30?
A Yes, your Honor.
*Q When was Exhibit 3 delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit 3 was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?
A No, sir. What happened is that, she went to her room and when she came out she gave me
that receipt.
*PJ GARCHITORENA
*Q What you are saying is, you do not know who typed that receipt?
WITNESS
34
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit 3?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she handed this receipt to you
already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters from her also and
when she requests for something from me. Her writing is familiar to me.
*Q So, when the Presiding Justice asked you as to how you knew that this was the signature of
Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not
exactly truthful?
A What I mean is, I did not see her sign because she went to her room and when she came out,
she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it carefully. Because
when I asked you, you said you saw her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q Was there another person inside the office of Mrs. Gimenez when she gave you this receipt
Exhibit 3?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January
30. Do we understand from you that this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January
31st, sir.
PROS VIERNES
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
*PJ GARCHITORENA
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your
Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more
precisely, who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to cover such
payment? In other words, why was the delivery of the money not covered by any
voucher?Calrky
A The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations
of the MIAA in payment of its obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the manner with which such payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this
matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC
directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, Yes, sir, I will do it/
*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not
on your own accord already prepare the necessary papers and documents for the
payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of that obligation is
forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure
has to be followed instead of the regular procedure?
A: No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC
that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that
payment?
A Based on the order to me by the former President Marcos ordering me to pay that amount to
his office and then the mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
35
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly to the PNCC considering that you are the Manager of
MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the
President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
*Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman
of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the Board or President of
the PNCC? In other words, who signed the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who signed for this was the former
Director of BAT which is General Singzon. Then when the MIA Authority was formed, all
the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were
transferred to MIAA and we are the ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that this was not the regular
course or Malacaang was not the creditor?
A I saw nothing wrong with that because that is coming from the President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in
this amount through a mere receipt from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that you have been with the
MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your joining the MIA, did you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first
employment with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the
government also?
A I was also the Chairman of the Games and Amusement Board, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?

A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for
approximately 18 years, you also ran the Games and Amusement Board as its executive
officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Game Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our Resident COA
representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us
and says: Chairman or Manager, this cannot be. And we learn later on that COA has
reasons for its procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish,
but we know there is reason in this apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation and proper
supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of
the particular credit, and to be delivered in armored cars to be acknowledged only by a
receipt of a personal secretary. After almost 18 years in the government service and
having had that much time in dealing with COA people, did it not occur to you to call a
COA representative and say, What will I do here?
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked the COA for some
guidance on this matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that delivery ordered by the
President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta
signed requests for issuance of Managers checks and you were accommodated by the
PNB Office at Nichols without any internal documentation to justify your request for
Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even
then, the Daily Express, which was considered to be a newspaper friendly to the
Marcoses at that time, would occasionally come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always come out with the real or
imagined scandal in the government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some apprehension that some disloyal
employees might leak you out and banner headline it in some mosquito publications like
the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the government
and we in the government fear the COA and we also fear the press. We might get
dragged into press releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?
A Yes, your Honor.
36
*Q In this particular instance, your witnesses have told us about three (3) different trips from
Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the
money being loaded in the trunk of your official car and then you had a back-up truck
following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of
your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside the
trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that
MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having
accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having
misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr.
Tabuena the request for issuance of Managers check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of
funds should have my signature because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in
similar requests for the issuance of Managers checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the
request for the issuance of Managers check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit N.
PROS VIERNES
It was marked as Exhibit M, your Honor.
Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of
MIAA as of December 31, 1985 and it came to my attention that there was an existing
liability of aroundP27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end of the year within
three (3) weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or
before the 4th Friday of the month because there will be a Board of Directors Meeting
and the Financial Statement of the prior month will be presented and discussed during
the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity but a monthly
activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986 recapitulated the financial
condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you
personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have
no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million
from the PNB Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count
the P5 million and it was placed in two (2) peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes, sir.
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I
was left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at
around 4:00 oclock and we started counting at around 4:30 p.m. because they have to
place it in a room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr.
Tabuena left for Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.
Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office
at MIA?
A Yes, sir.
PROS VIERNES
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
*PJ GARCHITORENA
37
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it was not based on the
normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be
covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what
we did was to prepare a request to the PNB, then this can be covered by Journal
Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that
payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of
MIAA?
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application for Managers Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your
Honor. Inasmuch as the payment should be made through the Office of the president, I
accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers,
and use that receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no disbursement voucher was prepared,
your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, 1986, and that was very close to the election
held in that year, did you not entertain any doubt that the amounts were being used for
some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the ground that it
is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis,
your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it
proper that a check be issued only after it is covered by a disbursement voucher duly
approved by the proper authorities?
A Your Honor, what we did was to send a request for a Managers check to the PNB based on
the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of
President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to
have this transaction covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash vouchers, or even
though Journal Vouchers, or even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by
means of check in favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because that was the order of President
Marcos to pay PNCC through the Office of the President and it should be paid in cash,
your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to pay PNCC the
amount of P5 million through the Office of the President and it should be paid in cash,
your Honor. And at that time, I know for a fact also that there was an existing P.D.
wherein the President of the Republic of the Philippines can transfer funds from one
office to another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you referred
to?
A I am not aware of the motive of the President, but then since he is the President of the
Philippines, his order was to pay the PNCC through the Office of the President, your
Honor.
*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an
obligation of MIAA is supposed to be paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the order of Mr.
Tabuena and also he received an order coming from the President of the Philippines at
that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction
was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper
only because of the exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a movement of
money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because
what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking,
and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal
Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that
time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of
money?
A Yes, your Honor, because at that time we have also a recorded liability of P27 million.
38
*Q We are not talking of whether or not there was a liability. What we are saying is, is the order
of the General Manager by itself adequate with no other supporting papers, to justify the
movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability
of P27,931,000.00, inasmuch as we have that liability and I was shown the order of
President Marcos to pay P5 million through the Office of the President, I considered the
order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability
of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully covered by those
existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not
there was valid obligation. We are not asking you about the escalation clause. We are
asking you whether or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I know
for a fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked
and not to whatever you wanted to say. I know you are trying to protect yourself. We are
aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself
is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the
Order of President Marcos to pay PNCC through his office, I feel that the order of the
General Manager, the order of President Marcos, and also the memorandum of Minister
Ongpin are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds insofar
as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is authorized through a
Presidential Decree to transfer government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation
Act?
A I think the liability was duly recorded and appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at
us in the hope that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so
that the payment of this debt would be in the same level as the realignment of funds
authorized the President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was
he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers and different officials in any
company either government or private, which are supposed to check and balance each
other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by authority of not only one
person alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can dispose of funds in
any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and
as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior
but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the
disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of
a particular transaction?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and because you are a
Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual in the manner with
which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being disposed of?
A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since
this payment was upon the order of President Marcos, then I think as President he can
do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a memorandum for the
record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written
note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x. [43]
This Court has acknowledged the right of a trial judge to question witnesses with
a view to satisfying his mind upon any material point which presents itself during the
trial of a case over which he presides.[44] But not only should his examination be
limited to asking clarificatory questions,[45] the right should be sparingly and judiciously
used; for the rule is that the court should stay out of it as much as possible, neither
interfering nor intervening in the conduct of the trial. [46] Here, these limitations were
not observed. Hardly in fact can one avoid the impression that the Sandiganbayan
had allied itself with, or to be more precise, had taken the cudgels for the prosecution
in proving the case against Tabuena and Peralta when the Justices cross-examined
the witnesses, their cross-examinations supplementing those made by Prosecutor
Viernes and far exceeding the latters questions in length. The cold neutrality of an
impartial judge requirement of due process was certainly denied Tabuena and Peralta
when the court, with its overzealousness, assumed the dual role of magistrate and
advocate. In this connection, the observation made in the Dissenting Opinion to the
effect that the majority of this Court was unduly disturbed with the number of court
questions alone, is quite inaccurate. A substantial portion of the TSN was
incorporated in the majority opinion not to focus on numbers alone, but more
importantly to show that the court questions were in the interest of the prosecution
and which thus depart from that common standard of fairness and impartiality. In fact,
it is very difficult to be, upon review of the records, confronted with numbers without
necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F
2d 833), for example, a new trial was required because the trial judge, as in this case,
39
indulged in extensive questioning of defendant and his witnesses, and the reviewing
court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto
case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but
1,381, defense counsel 3,330. The judges questions to the defendant De Sisto
totalled 306, the prosecutors 347, and the defense counsels, 201. After referring to
these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of
itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendants efforts to establish the time that Fine left the pier, we fear that in
its zeal for arriving at the facts the court here conveyed to the jury too strong an
impression of the courts belief in the defendants probable guilt to permit the jury freely
to perform its own function of independent determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices was
just too excessive that it cannot be justified under the norm applied to a jury trial, or
even under the standard employed in a non-jury trial where the judge is admittedly
given more leeway in propounding questions to clarify points and to elicit additional
relevant evidence. At the risk of being repetitious, we will amplify on this via some
specific examples. Based on the evidence on record, and on the admission of
Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs.
Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice,
however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very close to the election
held in that year, did you not entertain any doubt that the amounts were being used for
some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the ground that it
is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis,
Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis for this
question. How then, can this be considered even relevant? What is the connection between the payment
made to the Presidents office and the then forthcoming presidential snap election? In another instance,
consider the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?
xxx
*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper
only because of the exceptional nature of the transactions?
xxx
*Q In other words, as an Accountant, you would not normally authorize such a movement of
money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because
what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking,
and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal
Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that
time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of
money?
*Q We are not talking of whether or not there was a liability. What we are saying is, is the order
of the General Manager by itself adequate with no other supporting papers, to justify the
movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not
there was valid obligation. We are not asking you about the escalation clause. We are
asking you whether or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked
and not to whatever you wanted to say. I know you are trying to protect yourself. We are
aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself
is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds insofar
as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation
Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at
us in the hope that we will forget what the question is?
xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so
that the payment of this debt would be in the same level as the realignment of funds
authorized the President? Or are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was
he?
*Q In fact, for purposes of internal control, you have different officers and different officials in any
company either government or private, which are supposed to check and balance each
other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not only one
person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of funds in
any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
40
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and
as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior
but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the
disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of
a particular transaction?
*Q And this is something you know by the nature of your position and because you are a
Certified Public Accountant? [47]
How can these questions be considered clarificatory when they clearly border
more on cross-examination questions? Thus, the Dissenting Opinions focus on the
distinction between the two kinds of trial to justify the Sandiganbayans active
participation in the examination of petitioners Tabuena and Peralta and witness
Monera, with due respect, appears insignificant to this case. Let it, therefore, be
emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.[48]
We doubt not that the sole motive of the learned judge was to ascertain the truth of
the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of the
law, he should always remember that he is as much judge in behalf of the defendant
accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the
state, for the purpose of safeguarding the interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine witnesses
at length. The circumstances may be such in a given case as to justify the court in so
doing....This court, however, has more than once said that the examination of
witnesses is the more appropriate function of counsel, and the instances are rare and
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he may
deem improper questions by the court. Then, in conducting a lengthy examination, it
would be almost impossible for the judge to preserve a judicial attitude. While he is
not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done,
he will usually not find it necessary to conduct such examinations.The extent to which
this shall be done must largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must not forget the function
of the judge and assume that of an advocate....[50]
While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense
of occasional delays....The judge is an important figure in the trial of a cause, and
while he has the right, and it is often his duty, to question witnesses to the end that
justice shall prevail, we can conceive of no other reason, for him to take the trial of the
cause out of the hands of counsel.[51]
The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree which
will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom
deem such action necessary or advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear
in mind that his undue interference, impatience, or participation in the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the ascertainment of the truth in respect thereto.
[53]
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases....[54]
Our courts, while never unmindful of their primary duty to administer justice, without
fear or favor, and to dispose of these cases speedily and in as inexpensive a manner
as is possible for the court and the parties, should refrain from showing any
semblance of one-sided or more or less partial attitude in order not to create any false
impression in the minds of the litigants. For obvious reasons, it is the bounden duty of
all to strive for the preservation of the peoples faith in our courts.[55]
Time and again this Court has declared that due process requires no less than the
cold neutrality of an impartial judge. Bolstering this requirement, we have added that
the judge must not only be impartial but must also appear to be impartial, to give
added assurance to the parties that his decision will be just. The parties are entitled to
no less than this, as a minimum guaranty of due process.[56]
We are well aware of the fear entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching themselves at the expense of
the public would be able to escape criminal liability by the mere expedient of invoking
good faith. It must never be forgotten, however, that we render justice on a case to
case basis, always in consideration of the evidence that is presented. Thus, where
the evidence warrants an acquittal, as in this case, we are mandated not only by the
dictates of law but likewise of conscience to grant the same. On the other hand, it
does not follow that all those similarly accused will necessarily be acquitted upon
reliance on this case as a precedent. For the decision in this case to be a precedent,
the peculiar circumstances and the evidence that led to the petitioners acquittal must
also be present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous precedent and
an actual violation of constitutionally enshrined rights, it is definitely the latter that
merits our immediate attention. For the most dangerous precedent arises when we
allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice
the rights of an accused to calm the fearful. In our eagerness to bring to justice the
malefactors of the Marcos regime, we must not succumb to the temptation to commit
the greatest injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and
Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined
and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan
Decision of October 12, 1990 and the Resolution dated December 20, 1991 are
REVERSED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres,
JJ., concur.
Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent.
Hermosisima, Jr., J., took no part being a signatory to SB decision.
[1]
Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the Revised Rules of the
Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered consolidated by the Court in an En
Banc Resolution dated October 1, 1992.
[2]
Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices Garchitorena ( ponente),
Hermosisima (now Associate Justice of this Court) and Del Rosario.
[3]
Promulgated on January 10, 1992.
[4]
Records, Vol. I, p. 26.
41
[5]
[6]
Records, Vol. I, pp. 119-120.

Tabuena avers that the Sandiganbayan:
A
Erred and committed reviewable error in ruling that petitioners withdrawal of the P55 Million was not for a lawful purpose or for a
lawful debt. In the process, the Sandiganbayan clearly ignored several pieces of evidence submitted by petitioner, and
instead misapprehended the full import of the Ongpin Memorandum (Exh. 2, as attachment of Annex I), to which the Marcos
order to pay referred (Exh. 1, attachment to Annex I). In so concluding, theSandiganbayan laid its conclusions open to review as
its judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoring
several material pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927).
B
Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. 2 and 2-A, See Annex I), and the Marcos
approval thereof (Exh. 1, id.) did not support the withdrawal and payment of monies by petitioner. In so concluding,
the Sandiganbayan again clearly misapprehended the Ongpin and Marcos Memoranda, and the ledger of PNCC.
C
Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with the presidential order to
pay; in thus concluding the Sandiganbayan indulged in speculations and conjectures (Joaquin vs. Navarro, 93 Phil. 257), or
otherwise went beyond the issues (Evangelista vs. Alco, L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that
petitioner is entitled to justifying circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5
and 6 of Art. 12 of the Revised Penal Code.
D
Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In so doing,
the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in holding petitioner accountable for
acts not charged in the amended informations, and in so doing convicted him without jurisdiction.
E
Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided by Sec. 17, Article VII of
the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try the cases.
F
Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioners guilt was submitted by the
prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proof and denied petitioner the benefits of the
presumption of innocence, of Secs. 1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the
Revised Penal Code.
Peralta for his part claim that:
1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof that he allegedly
converted the funds withdrawn to his own personal benefit as charged in the information in glaring violation of his basic
constitutional right to be presumed innocent.
2. Respondent also grossly erred in convicting herein accused on the basis of mere assumptions, conjectures and inferences
devoid of factual basis in another court likewise grossly and seriously erred in convicting herein accused for a crime not charged
in the information again in violation of another constitutional right, that is the right to be informed of the accusation or right to due
process.
3. Respondent court serious and glaring violation of his right to be presumed innocent until his guilt is established by proof
beyond reasonable doubt.
4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision embodied in the Constitution
and of the justifying circumstance of obedience to a lawful order as valid defenses in this case.
[7]
Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
[8]
Citing Tubb v. People, 101 Phil. 114.
[9]
197 SCRA 94.
[10]
18 Phil. 504.
[11]
24 Phil. 230.
[12]
47 Phil. 48.
[13]
Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E. [2d] 592; State v. Schmidt, 72 N.
Dak. 719, 10 N.W. [2d] 868. Underhills Criminal Evidence, 5th Ed., Book 3, p. 1421.
[14]
Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.
[15]
Section 8, Article VII of the 1973 Constitution provides:
The President shall have control of all ministries.
[16]
No. 6, Article II, Revised Penal Code.
[17]
Sandiganbayan Decision, pp. 37-38.
[18]
Sandiganbayan Decision, p. 41.
[19]
TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.
[20]
[21]
[22]
Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.
[23]
78 Phil. 67.
[24]
Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised Penal Code, Vol. I, 1987
Ed., p. 207. In the very words of the Court in the Nassif case:
El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra sold, por orden de su principal
que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte, no crea por si solo ninguna
responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el recurrente
hubiese sabido o sospechado de alguna manera que era para justificar un acto impropio de su principal, cosa que,
por cierto, no se ha probado, ni puede desprenderse de la decision impugnada, indudablemente podria hacersele
responsable a dicho recurrente, de la falsificacion cometida, si no como coautor, por lo menos como
complice. Todo esto y la circunstancia justificativa invocada por el recurrente, eximen a este de toda
responsabilidad.
[25]
Decision, p. 45.
[26]
145 SCRA 435.
[27]
Supra.
[28]
Sandiganbayan Decision, p. 50.
[29]
People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.
18 Phil. 428.
197 SCRA 262.
[32]
Supra, p. 431.
[33]
Supra, p. 273.
[34]
Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.
[35]
People v. Exala, Dissenting Opinion, 221 SCRA 494, 503
[36]
People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez v. Court of Appeals, 127
SCRA 636.
[37]
See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.
[38]
See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
[39]
See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
[40]
Confrontation.--Confrontation consists of confronting the witness with damaging facts which he cannot deny and which are
inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening.
Probing.--Probing consists of inquiring thoroughly into the details of the story to discover the flaws.
Insinuation.--Insinuation consists of leading or forcing the witness by adding facts at one point and modifying details at another,
to give a version of his evidence which is more favorable to the other side. The Technique of Advocacy, by John H.
Munkman, pp. 66-67; p. 75; pp. 91-92.
[41]
TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.
[42]
TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.
[43]
[44]
US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.
[45]
People v. Opida, 142 SCRA 295.
[46]
York v. US, 299 Fed. 778.
[47]
[48]
People v. Opida, supra.
[49]
Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.
[50]
People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
[51]
Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.
[52]
Dunn v. People, 172 Ill. 582, 50 N.E. 137.
[53]
Com. v. Myma, 278 Pa. 505, 123 Atl. 786.
[54]
Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
[55]
Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.
[56]
People v. Opida, supra.
[30]
[31]

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 113691 February 6, 1998
vs.
ALBERTO MEDINA y CATUD, accused-appellant.
PANGANIBAN, J.:
The law presumes that an offender possesses full control of his mental faculties.
Thus, the exempting circumstance of insanity or imbecility under Art. 12, par. 1 of the
Revised Penal Code, must be established by clear and competent evidence showing
that the accused completely lost his reason, or was demented immediately prior to or
at the very moment the crime was committed.
The Case
This is the legal precept relied upon by this Court in denying this appeal from the
Decision 1 dated November 17, 1993 of the Regional Trial Court of Batangas City,
Branch 7, in Criminal Case No. 5787 convicting Alberto Medina y Catud of murder.
In an Information dated June 10, 1992, Second Assistant Provincial Prosecutor Benito
E. Lat charged appellant with murder allegedly committed as follows: 2
That on or about the 20th day of May, 1992, at about 11:00 o'clock in the
evening, in Barangay Kaingin, Municipality of San Pascual, Province of
Batangas, Philippines and within the jurisdiction of this Honorable Court, the
42
above-named accused, armed with a balisong knife, with intent to kill, with
treachery and evident premeditation and without any justifiable cause, did
then and there willfully, unlawfully and feloniously attack, assault and stab
with the said balisong knife one Andres M. Dalisay, suddenly and without
warning, thereby inflicting upon the latter stab wounds on the different parts
of his body, which directly caused his death.
Contrary to law.
On arraignment, appellant, assisted by Counsel Jose Contreras, pleaded "not guilty"
to the charge. 3 After trial in due course, the court a quo rendered the assailed
Decision, the decretal portion of which reads: 4
WHEREFORE, the court finds the accused, ALBERTO MEDINA y CATUD,
guilty beyond reasonable doubt of the crime of murder as defined and
penalized by Article 248 of the Revised Penal [Code] and there being no
mitigating circumstance to offset the qualifying circumstance of treachery
generic aggravating circumstance of evident premeditation, and hereby
sentences him to suffer the penalty of reclusion perpetua and to pay the
heirs of the deceased Andres M. Dalisay the sum of P50,000.00. Costs
against the deceased.
Hence, this appeal. 5
The Facts
Version of the Prosecution
The prosecution's version of the facts, as recounted by the solicitor general in the
appellee's brief, is as follows: 6
At around 11 pm on May 20, 1991, a party was held in the house of
Sebastian and Delia Aguila in Barangay Caingin, Balite, Batangas, to
celebrate the awarding of a championship trophy to the basketball team of
Larry Andal. Among those present during the celebration were Andres
Dalisay, Edgardo Silang, Larry Andal, Norberto Biscocho, Bayani Dorado,
Salustiano Aguila and appellant Alberto Medina (pp. 3-5, tsn, September 9,
1992, testimony of Larry Andal). During the celebration, appellant and
Dalisay danced the "cha-cha" in the shade (sulambi) near the terrace of the
house of Delia and Sebastian Aguila. While the two were dancing, the group
watched and clapped their hands. When the dance was finished, appellant
left the house of the Aguilas. After a while, Dalisay invited Andal to go home
(pp. 8-11, tsn, September 11, 1992). The two left the house of the Aguilas,
with Dalisay walking ahead of Andal. While they were walking, Andal saw
appellant, who was waiting along the way, stab Dalisay with a "balisong" in
the abdominal region. Dalisay held the hand of appellant. While they were
grappling, Dalisay was able to extricate himself and started to run away.
Appellant chased him. When appellant caught up with Dalisay, appellant
stabbed Dalisay once more at the back. Dalisay fell to the ground. He tried
to get up and run, but he again fell down. Appellant stabbed him [once more]
on the chest. Then [a]ppellant fled from the scene.
Andal, who was about one meter away, was so stunned and shocked by
what he saw that he did not do anything to help Dalisay. Andal and his
relatives brought Dalisay to the Batangas Hospital, but Dalisay was

pronounced dead on arrival (pp. 2-6, tsn, Sept. 11, 1992).
At that time of the incident, prosecution witness Edgardo Silang was
urinating twenty paces away. He heard Delia Aguila, the sister of appellant,
shouting, "Husay ka Alberto pihadong makukulong ka, sinaksak mo si
Andres." When he turned to where the shout came from, he saw Dalisay
running towards him, pursued by appellant. He saw blood in front of the
body of Dalisay. He held the arm of Dalisay and tried to hug him but Dalisay
fell to the ground. At that point, he saw appellant flee (pp. 5-18, tsn, Sept. 9,
1992, testimony of Edgardo Silang).
Dr. Benjamin M. Aguado, the Municipal Health Officer of San Pascual Rural
Health Unit, conducted post-mortem examination of the body of the
deceased. He issued a Post-Examination Report (Exhibit "C") containing the
Mortem following findings:
1. Stab Wound between the 3rd & 4th interspace at the lateral side of the
body of the sternum measuring 1/2 inch in length x 2 cm in wid[th] x 3 cm in
depth.
2. Stab Wound at the left Hypochondriac region measuring 1/2 inch in length
x 2 cm in wid[th] exposing the omentum.
3. Stab Wound thigh left just below the Inguinal Hernia measuring 1 inch in
length 3 cm in wid[th] x 4cm in depth.
4. Stab Wound of the thigh left mid portion anterior surface measuring 1 inch
in length x 3 cm in wid[th] x 4 cm depth.
5. Stab Wound at the scapular region mid portion measuring 1/2 inch in
length x 2 cm in wid[th] x 3 cm in depth.
6. Stab Wound at the back left between the 7th and 8th interspace
measuring 1/2 inch in length x 2 cm in wid[th] x 3 cm in depth.
7. Stab Wound at lower portion of the scapular region left measuring 1/2 inch
in length x 2 cm in wid[th] x 3 cm in depth.
8. Stab Wound at the back right at the level of the kidney measuring 1/2 inch
in length x 2 cm in wid[th] x 4 cm in depth.
(Exhibit "C").
Version of the Defense
In his brief, appellant sets up insanity as his defense. His version of the facts is as
follows: 7
1. Accused-appellant Alberto Medina testified that on the evening of May 20,
1992, he went to the house of his sister, Delia Aguila, purposely to watch t.v.
(TSN, September 9, 1993, p. 5). Upon his arrival, he saw the group of the
deceased Andres Dalisay, Larry Andal and Edgardo Silang who were then
engaged in a drinking spree at the balcony of the Aguila residence (Ibid, p.
6).
2. Accused-appellant refused the group's invitation to join them in their
drinking; however, he accepted their invitation to dance with Andres Dalisay
(Ibid.). In fact, accused-appellant danced with him for about six (6) or seven
(7) times (Ibid, p. 7).
43
3. As the dance and the party ended, the guests started to leave. Accusedappellant left his sister's house to head for his home at Barangay Balete,
which was more or less 200 meters away. Among the persons left behind
was Andres Dalisay.
4. While walking along the path, accused-appellant heard Andres Dalisay
say, "Bert, sandali lang", (TSN, September 9, 1993, p. 10) prompting the
former to stop.
5. Thereupon, Andres Dalisay, who appeared to be drunk, approached
accused-appellant and uttered: "Bakit mo ako hiniya?" and hit him (accusedappellant) on the chest (Ibid). Enraged, accused-appellant prepared to fight
back when Andres Dalisay threatened to kill him (Ibid., p. 11). At this point,
accused-appellant further testified, it looked as if Andres Dalisay was taking
something out [of] his pocket.
6. Upon seeing this, accused-appellant beat him to the draw, took out his
"balisong" and stabbed Andres Dalisay, who then looked like a devil with
"horns" (Ibid., p. 11 and 19). It was only when Andres Dalisay uttered "May
tama ako" did accused-appellant stop . . . stabbing his victim (Ibid., p. 16).
7. Upon realizing that he has stabbed a person, accused-appellant
surrendered himself and the weapon on the same evening to the authorities
(TSN, September 9, 1993, p. 20).
8. On several occasions before, specifically during the latter part of 1981,
accused-appellant had exhibited unusual behaviors. His sister Lorna
Medina testified that on June 22, 1982, she brought her brother to the
National Mental Hospital after the latter had shown unusual conduct, such as
looking blankly at a distance, hitting his wife or banging her head on the wall
for no reason and having sleepless nights (TSN, August 11, 1993, pp. 1315).
9. From June to October of 1982, accused-appellant was confined at the
National Mental Hospital. Ms.Lourdes Palapal, the Records Officer of the
National Center for Mental Health (formerly, the National Mental Hospital)
testified on the documents issued by their office relative to the confinement
of accused-appellant for "schizophreniform disorder" during that period
(Exhibits 3 to 11).
10. After his release from the hospital, accused-appellant lived with his
mother and his two children at Brgy. Balete, San Pascual, Batangas. His
condition did not seem to improve, though. Lorna Medina further testified
that in January of 1992, accused-appellant again exhibited the same
unusual behavior which she had observed from him in 1982 (TSN, August
11, 1993, p. 17).
11. This prompted Lorna to refer her brother's case to Dr. Teresita Adigue, a
psychologist-friend who conducted a psychological examination on accusedappellant (TSN, August 11, 1993, p. 17).
12. Dr. Teresita Adigue, a Doctor of Psychology and a holder of a Master's
Degree in Clinical and Industrial Psychology and another Master's Degree in
Guidance and Counselling, and an accredited psychologist of the Philippine
National Police testified that on January 20, 1992, she administered a

psychological evaluation on accused-appellant (TSN, May 24, 1993, p. 5).
13. Dr. Adigue testified that based on the evaluation of accused-appellant,
the latter has been shown to be suffering from depression and was
exhibiting homicidal tendencies, and that he did not know the difference
between right and wrong (TSN, May 24, 1993, p. 10 and TSN, July 20, 1993,
p. 16). On cross-examination, the witness affirmed that a person suffering
from depression may be insane (TSN, July 20, 1993, p. 10).
14. Dr. Adigue stated that the psychological evaluation made on accusedappellant was based on the behavioral history of the latter furnished to her
by Lorna Medina and Leticia Regalado, (TSN, July 20, 1993, p. 11) a case
study based on the family background of accused-appellant (Ibid., p. 12),
and on a series of psychological tests ("draw a person" test, the "card" test
wherein the emotions of the subject are represented by the cards, and the
thematic perception test) (TSN, May 24, 1993, p. 7).
Ruling of the Trial Court
The trial court rejected the appellant's defense of insanity. It ruled that Dr. Adigue was
not properly qualified as an expert witness because: (1) she did not have the
appellant's complete behavioral history; (2) she failed to demonstrate satisfactorily
how she arrived at her conclusions; (3) her method of testing was incomplete and
inconclusive; (4) her examination lasted for only a few hours without any follow-up
evaluation; (5) the university from where she allegedly obtained her doctoral degree is
not known to specialize in psychology or psychiatry; (6) she is not known as a
psychiatrist; and (7) she reported that 'the mental activity [of the accused was]
functioning on the normal level' at the time of the evaluation, that he comprehended
instructions fast, and that he was suffering only from mild depression.
The testimony of appellant's sister that she had observed unusual behavior on the
part of appellant did not constitute sufficient proof of his insanity, "because not every
aberration of the mind or mental deficiency constitute[s] insanity." That the accused
was released from confinement at the National Center for Mental Health on October
4, 1982 and was not readmitted for any mental disorder for about ten years militated
against his alleged lunacy. Additionally, the trial judge observed that, during the
hearings, appellant was attentive, well-behaved and responsive to the questions
propounded to him in English even without translation.
On the other hand, appellant's mental agility was shown when he admitted seeing the
deceased take something our of his pocket, for which reason he decided to beat him
to the draw ("Inunahan ko na"). With his balisong, he repeatedly stabbed the
deceased. The trial court appreciated treachery based on Andal's narration of the
stabbing incident.
Assignment of Errors
The defense assigns the following errors allegedly committed by the trial court in
convicting appellant:
A
The trial court gravely erred in not acquitting accused-appellant or mitigating
his criminal liability on the ground of insanity.
B
44
Assuming, arguendo, that accused-appellant is criminally liable for the death
of Andres Dalisay, the trial court nevertheless erred in convicting him of the
crime of murder by appreciating the aggravating circumstances of treachery
and evident premeditation despite doubt tending to show the existence of
such circumstances.
C
Assuming, arguendo, that accused-appellant is criminally liable, the trial
court likewise erred in not appreciating the mitigating circumstance of
voluntary surrender in his favor.
In short, appellant puts in issue (1) his insanity and (2) the presence and the effect of
the following circumstances: (a) treachery, (b) evident premeditation, and (c)
voluntary surrender. We shall deal with each of these issues.
The Court's Ruling
The appeal is partly meritorious. We reject appellant's plea for acquittal but accept his
claim of voluntary surrender.
First Issue: Appellant's Insanity Not Proven
Appellant insists that the trial court gravely erred in refusing to consider Dr. Adigue as
an expert witness. He argues that Dr. Adigue, being an accredited psychologist of the
Philippine National Police since 1979 and a holder of a doctorate in psychology from
the University of Calcutta, India, and a master's degree in clinical and industrial
psychology, deserves credence.
Appellant misses the point. More than her academic qualifications as a psychologist,
what really matters is the failure of Dr. Adigue's testimony to establish legal insanity
on the part of the appellant. After examining the appellant on January 20, 1992, or
four months prior to the incident, and after conducting the "Draw-a-Person" Test, the
Thematic Apperception Test and the Hand Test, she reported the results of her
examination as follows:
VII. TEST RESULTS/EVALUATIONS
Psychological test results revealed that subject's mental activity is
functioning on the normal level at the time of evaluation. He can
comprehend instructions fast and [was] never hesitant to take the said
examinations.
With regards to some dominant personality factors, test results revealed also
the fact that subject is sufferingonly from mild depression because of
problems he had encountered in life and in things around him. He had also
developed negative reactions and outlook in life, therefore he undersigned
concluded that he has some emotional disturbances.
Verily, such results do not prove the alleged insanity of the appellant. Art. 12, par. 1 of
the Revised Penal Code, requires a complete deprivation of rationality in committing
the act; i.e., that the accused be deprived of reason, that there be no consciousness
of responsibility for his acts, or that there be complete absence of the power to
discern. 8More relevantly, said report does not support the claim that appellant could
not distinguish right from wrong.
Thus, the trial court properly rejected appellant's defense of insanity. The presumption
of law, per Art. 800 of the Civil Code, always lies in favor of sanity, and, in the
absence of proof to the contrary, every person is presumed to be of sound mind. 9
The defense of insanity or imbecility must be clearly proved, 10 for there is a

presumption that acts penalized by law are voluntarily. 11 Hence, in the absence of
positive evidence that the accused had previously lost his reason or was demented
moments prior to or during the perpetration of the crime, the courts will always
presume that he was in a normal state of mind. InBascos, 12 the accused was
exempted from criminal liability because he was a violent maniac as confirmed by the
acting district health officer who examined him. In Bonoan, 13 the Court reversed the
conviction of the accused, holding that a person afflicted with dementia praecox and
manic depressive psychosis has "no control whatever of his acts. . . . There is in this
disorder a pathologic lessening [of] normal inhibitions and the case [in] which
impulses may lead to actions impairs deliberations and the use of normal checks to
motor impulses (Peterson, Haines and Webster, Legal Medicine and Toxicology [2d,
ed., 1926], vol. I, p. 617." There, the accused was treated at the psychiatric
department of San Lazaro Hospital and was released long before the commission of
the crime, but the reports of the alienists 14 who examined the accused after the crime
confirmed his mental disorders. The Court held that the evidence that the accused
appeared lucid when he stabbed the victim did not necessarily prove his sanity,
because it was "clear from what Dr. Sydney Smith, Regius Professor of Forensic
Medicine, University of Edinburgh, said in his work on Forensic Medicine, (3d. ed.
[London], p. 382), that in the type of dementia praecox, 'the crime is usually preceded
by much complaining and planning. In these people, homicidal attacks are common,
because of delusions that they are being interfered with sexually or that their property
is being taken.'" 15
However, care must be taken to distinguish between lack of reason (insanity) and
failure to use reason or good judgment due to extreme anger (passion). ". . . [I]t is
now well settled that mere mental depravity, or moral insanity, so called, which
results, not from any disease of mind, but from a perverted condition of the moral
system, where the person is mentally sane, does not exempt one from responsibility
for crimes committed under its influence." 16
Thus, before the defense of insanity may be accepted as an exempting circumstance,
Philippine case law shows a common reliance on the test of cognition, which requires
a complete deprivation of intelligence not only of the will in committing the
criminal act. 17 In the cited case of Rafanan, the fact that appellant threatened the
victim with death in case she reported her ravishment indicated that he was aware of
the reprehensible moral depravity of that assault and that he was not deprived of
intelligence. In Dungo, that the accused knew the nature of what he had done
negated his claim that he was insane when he fatally stabbed his
victim. 18 In Aquino 19, appellant, who took 120 cc of cough syrup and consumed three
sticks of marijuana before raping his victim and hitting her head with a stone, had
some form of mental illness which did not totally deprive him of intelligence. The
presence of his reasoning faculties, enabling him to exercise sound judgment and to
satisfactorily articulate the aforesaid matters, sufficiently discounted any intimation of
insanity when he committed the felony. It has been held that mere abnormality of the
mental faculties does not exclude criminal culpability.
45
In the present case, Dr. Adigue's testimony did not establish complete deprivation of
appellant's reason. Consequently, appellant cannot claim exemption from criminal
liability under Art. 12, par. 1 of the Revised Penal Code.
Alternatively, appellant argues that his condition should merit, at the very least, the
appreciation of a mitigating circumstance under Art. 13, par. 9 of the
Code. 20 In Formigones, the Court found the feeblemindedness of the accused to be a
mitigating circumstance, noting that his faculties were not fully developed. After
stabbing his wife, the accused in said case took her dead body up their house, put
her on the floor and lay beside her for hours, showing remorse at having killed her.
The accused was "suffering [from] some physical defect which thus restrict[ed] his
means of action, defense or communication with his fellow beings,' or such illness 'as
would diminish the exercise of his will power.'" 21 In Rafanan, schizophrenic reaction,
although not exempting because it does not completely deprive the offender of the
consciousness of his acts, was considered a mitigating circumstance which
diminished the exercise of the offender's will power without, however, depriving him of
the consciousness of his acts. 22
In the instant case, however, the defense miserably failed to establish the deprivation
of the appellant's will when he stabbed his victim. Appellant testified that he thought
the victim was going to pull out a weapon, thus he beat him to the draw and stabbed
him with his balisong. 23 This statement shows that he did not suffer any deprivation of
reason or discernment. While the victim appeared to him as a "devil with horns," such
perceptual distortion occurred only after he had dealt the fatal blows on the victim.
The Court cannot, therefore, appreciate this mitigating circumstance in his favor.
Second Issue: Proof of Treachery
The treacherous nature of appellant's attack on the victim was established by Andal
who witnessed the incident. Testified the witness: 24
FISCAL CARAAN:
Q What about you, where [were] you on that occasion?
A I was with Andres in going home sir..
Q Can you tell the court [if you were] walking together at that time?
A Yes sir.
Q Who was ahead?
A Andres was ahead of me, sir.
Q And you [were] following?
A Yes, sir.
xxx xxx xxx
Q While walking together, can you tell the court what actually happened?
A Alberto waited for us on the way that were going pass, sir.
Q Why do you say that Alberto [was] waiting for you and Andres during that
time?
A Perhaps he has a bad intentioned, (sic) sir.
Q While walking on that path Andres was ahead of you what did you see if
you had see[n] anything?
A Alberto stabbed Andres Dalisay, sir.
xxx xxx xxx
Q What happen[ed] after Alberto had [stabbed] Andres Dalisay?
A They chased one another, sir.
xxx xxx xxx
Q What happen[ed] after that?
A When the first stubbed (sic) hit Dalisay, Dalisay tried to hold the hand of
Alberto and when they were struggling Andres was able to push Alberto
and they both fell down and with Alberto on top of Andres, Andres was able
to push Alberto and he was able to get up and Andres ran away and Alberto
chased him sir.
FISCAL CARAAN:
Q Did Alberto [catch] up with Andres . . .?
A Yes sir, Andres Dalisay toppled down and Alberto stabbed him at the
back, sir.
Q What happen[ed] next?
A After the stabbing of Andres at the back by Alberto,

Andres was able to get up and ran and while running he
fell for the second time and Alberto stabbed [him] again on
the chest, sir.
Treachery can be gleaned from the fact that appellant waited behind a chico tree and
then, all of a sudden, jumped on the victim. Appellant's attack was not only sudden
and unexpected; it was also vicious and relentless. After delivering the first stab,
appellant chased his victim and stabbed him seven more times. These seven
additional stabs were inflicted when the victim was helpless, as he fell down several
times during the pursuit. Counterattack and escape proved futile because of the
injuries that the victim sustained. The medico-legal officer reported that of the eight
stab wounds on the victim, six were fatal. 25 Clearly, in killing his victim, appellant
employed means which ensured its execution without risk to himself arising from any
defense which the victim might make. 26 Treachery which qualified the killing as
murder was properly appreciated by the trial court.
Third Issue: Absence of Evident Premeditation
The Court concurs with appellant and the solicitor general that the trial court erred in
appreciating evident premeditation. The solicitor general explains that "only a few
minutes had passed" from the time appellant left his sister's house to the time he
stabbed his victim. Thus, no sufficient lapse of time is appreciable from the
determination to commit the crime until its execution to allow appellant to reflect upon
the consequences of his act.27 Under such circumstances, evident premeditation
cannot be appreciated.
Fourth Issue: Voluntary Surrender
The mitigating circumstance of voluntary surrender should have been credited in
favor of the appellant. 28 The solicitor general concurs and notes that appellant, after
having earlier given himself up to a certain Col. Faltado, surrendered at midnight on
May 20, 1992, or about an hour after the stabbing incident, to Wilfredo Sevillano,
former desk officer of the Batangas City Police Station. 29 Hence, the evidence
sufficiently established the elements of voluntary surrender, namely: (1) the offender
has not been actually arrested; (2) he surrendered himself to a person in authority or
an agent of a person in authority; and (3) his surrender was voluntary. 30
The Proper Penalty
Voluntary surrender diminishes appellant's penalty. Since the crime committed prior to
the effectivity of Republic Act 7659, the imposable penalty for murder is reclusion
temporal in its maximum period to death. The proscription of the death penalty by the
1987 Constitution did not amend the imposable penalty under said article. 31 Thus, Art.
64, which provides the rules for the application of penalties containing three periods,
governs the determination of the proper penalty in this particular case. 32 Contrary to
46
the contention of the solicitor general, Art. 63 of the Revised Penal Code does not
apply.33
Following Art. 64 (2) of the Code, the mitigating circumstance of voluntary surrender
entitles appellant to the imposition of reclusion temporal in its maximum period.
Applying the Indeterminate Sentence Law (Act No. 4103, as amended), appellant
should be sentenced to an indeterminate sentence of prison mayor in its maximum
period, as minimum, and reclusion temporal in its maximum period, as maximum.
WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant
is IMPOSED an indeterminate sentence of ten years and one day of prison
mayor maximum, as minimum, and seventeen years, four months and one day
of reclusion temporal maximum, as maximum.
SO ORDERED.
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.
Footnotes
1 Penned by Judge Artermio S. Tipon; rollo, pp. 21-24.
2 Records, p. 1.
3 Ibid., p. 77.
4 Rollo, p. 24.
5 The case was deemed submitted for resolution on July 10, 1996 when the Court noted receipt of
the appellee's brief. Filing of appellant's Reply Brief was deemed waived.
6 Rollo, pp. 140-144. The 25-page appellee's brief was signed by Solicitor General Raul I. Goco,
Assistant Solicitor General Romeo C. dela Cruz and Associate Solicitor Roselyn O. Balanquit.
7 Rollo, pp. 67-73. Appellant's 42-page brief was prepared by Counsel de Oficio Constantino B. de
Jesus.
8 People vs. Formigones, 87 Phil. 658, 660-663, November 29, 1950; People vs. Rafanan, Jr., 204
SCRA 65, 74, November 21, 1991; People vs. Dungo, 199 SCRA 860, 866, July 31, 1991; and
People vs. Puno, 105 SCRA 151, 158-159, June 29, 1981.
9 People vs. Rafanan, supra, p. 79; People vs. Morales, 121 SCRA 426, 436, April 20, 1983; and
People vs. Aquino, 186 SCRA 851, 858, June 27, 1990.
10 People vs. Bonoan, 64 Phil. 87 [1937], per Laurel, J.
11 People vs. Formigones, supra, p. 661; and People vs. Aquino, supra, p. 861.
12 People vs. Bascos, 44 Phil. 204, 206-207 [1922].
13 Supra.
14 Webster's Third New International Dictionary defines an alienist as one who treats the diseases of
the mind, a physician who specializes in psychiatry.
15 People vs. Bonoan, supra, pp. 99. Emphases found in the original.
16 United States vs. Vaquilar, 27 Phil. 88, 92, March 13, 1914, per Trent, J.
17 People vs. Rafanan, supra; People vs. Dungo, supra, p. 871.
18 Supra.
19 People vs. Aquino, supra, p. 862-863.
20 Art. 13. Mitigating circumstances. The following are mitigating circumstances:
xxx xxx xxx
9. Such illness of the offender as would diminish the exercise of the willpower of the offender without however depriving him of consciousness of
his acts.
xxx xxx xxx
21 Supra.
22 Supra, p. 80.
23 TSN, September 9, 1993, p. 11.
24 TSN, September 11, 1992, pp. 3-5.
25 TSN, November 24, 1992, p. 6.
26 People vs. Marolano, G.R. No. 105004, July 24, 1997, p. 37; People vs. Sol, G.R. No. 118504,
May 7, 1997, pp. 12-13; and People vs. Serzo, G.R. No. 118435, June 20, 1997, pp. 20-22.
27 The elements of evident premeditation are: (1) the accused determined to commit the crime, (2) an
act manifestly indicating that he clung to his determination, and (3) a sufficient lapse of time between
such determination and execution to allow him to reflect upon the consequences of his act. People
vs. Estrellanes, 239 SCRA 235, 250, December 15, 1994; People vs. Layno, G.R. No. 110833,
November 21, 1996, pp. 20-21; People vs. Deopante, G.R. No. 102772, October 30, 1996, pp. 8-9;
People vs. Sol, supra, pp. 14-15; and People vs. Nell, G.R. 109660, July 1, 1997, pp. 16-17.
28 People vs. Rivero, 242 SCRA 354.
29 TSN, December 11, 1992, pp. 3-4.
30 People vs. Isleta, G.R. No. 114971, November 19, 1996, p. 19; and People vs. Castillo, 261 SCRA
493, 503, September 6, 1996.
31 People vs. Muoz, 170 SCRA 107, 122-124, Feb. 9, 1989.
32 People vs. Sol, supra, 16-18.
33 Appellee's Brief, pp. 23-24; rollo, pp. 160-161. The solicitor general misinterpreted People vs.
Buenaflor (211 SCRA 492, 501, July 15, 1992), which applied the rules for the application of
indivisible penalties in Article 63, because said case dealt with rape which was punishable
with reclusion perpetua, a single indivisible penalty.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200793
June 4, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MILAN ROXAS y AGUILUZ, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal from the Decision1 of the Court of Appeals in CAG.R. CR.-H.C. No.
03473 dated August 16, 2011, which affirmed with modification the Judgment2 of
Branch 94, Regional Trial Court (RTC) of Quezon City dated December 11, 2007 in
Criminal Case Nos. Q-00-91967 to Q-00-91971 finding accused-appellant Milan
Roxas y Aguiluz guilty of five counts of rape against AAA,3 a minor who was 9 years
old at the time of the first rape and 10 years old at the time of the succeeding four
rapes.
Five Informations were filed against accused-appellant Roxas, charging him as
follows:
1. Crim. Case No. Q-00-91967: That on or about the 9th day of August 1998
in Quezon City, Philippines, the above-named accused with force and
intimidation did then and there willfully, unlawfully and feloniously commit
acts of sexual assault at knifepoint upon the person of [AAA] his own niece a
minor 10 years of age by then and there blindfolding her, then removed her
shorts and underwear then accused inserted his penis inside her vagina and
thereafter had carnal knowledge of her against her will and without her
consent.4
2. Crim. Case No. Q-00-91968:
That on or about the 28th day of July 1998 in Quezon City,
Philippines, the above-named accused with force and intimidation
did then and there willfully, unlawfully and feloniously commit acts
of sexual assault at knifepoint upon the person of [AAA] his own
niece a minor 10 years of age by then and there blindfolding her
and removing her shorts and underwear and inserting his penis
inside her vagina and thereafter had carnal knowledge of her
against her will and without her consent.5
3. Crim. Case No. Q-00-91969:
That on or about the 16th day of September 1997 in Quezon City,
niece a minor 9 years of age by then and there laying her on the
chairs inside the bathroom, then blindfolded her and then removed
her shorts and underwear then accused inserted his penis inside
her vagina and thereafter had carnal knowledge of her against her
will and without her consent.6
47
4. Crim. Case No. Q-00-91970:
That on or about the 20th day of March 1998 in Quezon City,
niece a minor 10 years of age by then and there laying her down on
a bed inside his grandparents room then blindfolded her, then
removed her shorts and underwear, then accused inserted his
penis inside her vagina and thereafter had carnal knowledge of her
against her will and without her consent.7
5. Crim. Case No. Q-00-91971:
That on or about the 11th day of May 1998 in Quezon City,
niece a minor 10 years of age by then and there removing her
shorts and underwear and inserting his penis inside her vagina and
thereafter had carnal knowledge of her against her will and without
her consent.8 Accused-appellant Roxas entered a plea of Not Guilty
to all the crimes charged.9
The prosecutions factual account based on the testimony of AAA was concisely
stated by the Office of the Solicitor General in its Appellees Brief, as follows:
On 16 September 1997, [AAA], who was then 9 years of age, was at her grandmother
[CCC]s house located on [XXX], Quezon City. In the morning of said date, she was at
the dirty kitchen with her aunt [ZZZ] who was then washing clothes. Her aunt asked
her if she had already taken a bath, she replied in the negative.
Her uncle, accused-appellant, overheard their conversation so he volunteered to give
[AAA] a bath. Subsequently, he brought her upstairs to the bathroom.
While inside the bathroom, accused-appellant told [AAA] to turn around. After she
complied with his directive, he blindfolded her. [AAA] started to wonder what the
accused-appellant was doing so she told him that he was supposed to give her a
bath. Accused-appellant told her that they would play first for a while.
He turned her around three (3) times and then, removed her shorts and underwear.
After that, he sat on a chair, which was inside the bathroom, and raised both of her
legs.
Thereafter, she felt him on top of her. She also felt accused-appellants penis enter
her vagina which she found painful.
She cried and shouted the name of her aunt, but accused-appellant got angry and
poked a sharp instrument on her neck. [AAA] did not report the incident because
accused-appellant threatened to cut her tongue and to kill her and her mother.
[AAA] was raped again on 20 March 1998 while she was at the same house of her
paternal grandparents. She was on the terrace on the second floor of the house when
accused-appellant, who was in her grandparents bedroom at that time, called her.
She hesitated to go near him because she was afraid that he might rape her again.
Accused-appellant then went to the terrace and dragged her to the bedroom of her
grandparents. She could not run anymore nor shout for help because aside from the
fact that there was nobody else in the room, accused-appellant was holding a pointed
weapon.
While [AAA] and accused-appellant were inside the room, he blindfolded her,
removed her shorts and underwear, and then laid her down the bed. Thereafter, he
moved on top of her and inserted his penis in her vagina. Again, she did not report the
incident because of accused-appellants threats should she report the incident to

anybody.
Another incident of rape took place on 11 May 1998while [AAA] was again at her
paternal grandparents house. On the said date, she was alone in the living room on
the second floor of the house when accused-appellant called her. She did not accede
to his bidding because she was scared of him. Thereafter, he shouted at her and
demanded that she come near him, so she went to him.
He brought her inside her grandmothers bedroom and upon reaching the room, he
immediately blindfolded her and poked a bladed weapon on her neck. He turned her
around three (3) times, removed her shorts and underwear, laid her down the bed,
moved on top of her, and inserted his penis in her vagina. Again, the accusedappellant threatened her so she did not report what had happened.
[AAA]s ordeal did not stop there. She was raped for the fourth time on 28 July 1998
at her paternal grandparents house.1wphi1 She and the accused were incidentally
alone in the living room on the second floor of the house. He asked her to go with him
inside the bedroom of her grandparents, but she did not get up from her seat. So
accused-appellant pulled her toward the bedroom. She tried to free herself, but he
poked a pointed instrument at her.
Accused-appellant committed the same acts he had perpetrated on [AAA] during her
three [previous] rape incidents: he removed her shorts and underwear, laid her on the
bed, moved on top of her and thereafter, inserted his penis in her vagina. She was
again threatened by the accused-appellant not to tell anybody about the incident or
else he would cut her tongue and kill her and her mother.
The fifth and last incident of rape happened on 09 August 1998. At that time, [AAA]
was at the terrace on the second floor of her paternal grandparents house; and
accused-appellant also happened to be there. He pulled her and brought her inside
the room, blindfolded her, and turned her around three (3) times. He employed the
same method in raping her: he removed her shorts and underwear, laid her on the
bed and moved on top of her. She tried to push him and raise her shorts and panty,
but she did not succeed because he poked a pointed instrument on her neck.
Thereafter, he inserted his penis in her vagina. Again, she did not report the incident
to anyone because she was scared of his threats.10 (Emphases supplied, citations
omitted.)
In contrast, the defense presented four witnesses: AAAs mother (BBB), AAAs two
brothers (DDD and EEE), and Dr. Agnes Aglipay, Regional Psychiatrist of the Bureau
of Jail Management and Penology. The defenses statement of the antecedent facts
as contained in the Appellants Brief is reproduced here:
Accused Milan Roxas denied having raped [AAA] on all the five (5) counts of rape.
[DDD], brother of herein private complainant, testified that his aunt in the maternal
side, [Tita YYY], induced him by giving toys if he would tell his father that the accused
was raping his sister, [AAA]. Upon prodding of his maternal aunt, [DDD],who was only
eight (8) years old then, told his father that he saw the accused rape his sister. His
father ran amuck which led to the filing of the instant case.
On subsequent days, while [DDD]and [AAA] were in a grocery store buying
something, their [Tito XXX], [Tito WWW] and [Tita YYY] arrived on board an FX
vehicle. [Tita YYY] told [DDD] that they will be going to buy toys. [DDD] said that he
will first ask permission from his grandfather, but [Tita YYY] said that it would only
take a few minutes and they will bring them home afterwards. [AAA] was brought to
SSDD, a place under the administration of the DSWD, while [DDD] was brought to
Caloocan. On the following day, he was brought to Muoz, in a rented house of his
[Tita YYY] and her husband. [DDD] stayed there for almost a year. He was forbidden
48
to go outside as the door was always locked. When [his Tita VVV] arrived from Japan
they went to Tarlac where his paternal grandmother fetched him.
[EEE], brother of herein private complainant, likewise testified that when [his Tita
VVV] arrived, they went to North Olympus, Quezon City where [his] maternal relatives
reside. On one occasion, he saw his sister, [AAA] and his maternal uncle [Tito XXX]
entered one of the bedrooms. He tried to open the door to see what the duo were
doing, but it was locked. [EEE] looked for a wire and was able to open the door. He
saw private complainant on top of his [TitoXXX], both naked. When the duo saw him,
private complainant and his [Tito XXX] stood up. The latter threatened him not to tell
anybody or he will cut off his tongue.
On November 26, 1999, [BBB], mother of the private complainant testified that her
two (2) children, [AAA] and [DDD], were missing. She looked for them, but to no avail.
So she went to the police station to have it blottered. Later did she know when she
called her sister who resides in Project 6, Quezon City that [DDD] was brought to
Ilocos and [AAA] at the SSDD in Kamuning by her 3 brothers and sister. She filed a
case of kidnapping against his brother [Tito WWW]. [Tito WWW], however, promised
to return her children if she will have the said case dismissed which she did.
She denied the allegations that[her] brother-in-law, herein accused, raped her
daughter, [AAA]. In fact, before the filing of the present rape cases there was one
rape case filed on September 22, 1999 which was dismissed because [AAA] retracted
her statements. As told to [BBB] by her daughter [AAA], she was not raped by herein
accused. She told a lie and made the false accusation against the accused, because
she does not want to put the blame on any of her maternal relatives. [AAA] was
greatly indebted to her maternal grandmother and her maternal uncles and aunts
because they had taken care of her since she was three (3) years old.
Dr. Agnes Aglipay, Regional Psychiatrist of the Bureau of Jail Management and
Penology testified that based on her examination of the accused, she concluded that
he is suffering from a mild mental retardation with a mental age of nine (9) to ten (10)
years old. She observed that the subject was aware that he was being accused of
rape, but he had consistently denied the allegations against him.11 (Citations omitted.)
The RTC of Quezon City rendered its Judgment on December 11, 2007, finding
accused-appellant Roxas guilty as charged in each of the five Informations filed
against him. The dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby rendered finding the
accused GUILTY beyond reasonable doubt in all five (5) counts of rape as recited in
the information[s] and sentences accused MILAN ROXAS:
1) In Crim. Case No. Q-00-91967 to suffer the penalty of reclusion
perpetua, to indemnify the offended party [AAA] the sum of Php75,000.00, to
pay moral damages in the sum of Php50,000.00, and to pay the costs;
pay moral damages in the sum of Php50,000.00, and to pay the costs; and
pay moral damages in the sum of Php50,000.00, and to pay the costs.
To credit in favor of the herein accused the full period of his detention in accordance
with law. Resultantly, all pending incidents are deemed moot and academic.12
The RTC held that accused-appellant Roxas is not exempt from criminal responsibility
on the ground that he cannot be considered a minor or an imbecile or insane person,
since Dr. Aglipay merely testified that he was an eighteen-year old with a mental
development comparable to that of children between nine to ten years old. The RTC
found the testimony of AAA credible, and found the testimonies of the defense
witnesses to be "flimsy."
Accused-appellant Roxas elevated the case to the Court of Appeals, where the case
was docketed as CA-G.R. CR.-H.C. No. 03473. Accused-appellant Roxas submitted
the following Assignment of Errors in the appellate court:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE PRIVATE COMPLAINANTS TESTIMONY.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME CHARGED.13
On August 16, 2011, the Court of Appeals rendered the assailed Decision, modifying
the Judgment of the RTC as follows:
WHEREFORE, premises considered, the Judgment dated 11 December 2007 of the
Regional Trial Court of Quezon City, Branch 94, in the case entitled People of the
Philippines vs. Milan Roxas y Aguiluz", docketed therein as Criminal Case Nos. Q-0091967 to Q-00-91971, is AFFIRMED with modification that accused-appellant is
ordered to pay private complainant on each count civil indemnity in the amount
of P75,000.00, moral damages in the amount of P75,000.00, and exemplary
damages in the amount of P30,000.00, for each count of rape.14Hence, accusedappellant Roxas interposed this appeal, where he, in his Supplemental Brief,
presented an Additional Assignment of Error:
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
TRIAL COURTS DECISION GIVING CREDENCE TO THE PRIVATE
COMPLAINANTS TESTIMONY.15
Accused-appellant Roxas claims that the testimony of AAA is replete with
inconsistencies and narrations that are contrary to common experience, human
nature and the natural course of things.16 Accused-appellant Roxas likewise points
out that under Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006,
minors fifteen (15) years old and below are exempt from criminal responsibility.
Accused-appellant Roxas claims that since he has a mental age of nine years old, he
should also be "exempt from criminal liability although his chronological age at the
time of the commission of the crime was already eighteen years old."17
In the matter of assigning criminal responsibility, Section 6 of Republic Act No.
934418 is explicit in providing that:
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or
under at the time of the commission of the offense shall be exempt from criminal
liability. However, the child shall be subjected to an intervention program pursuant to
Section 20 of this Act.
A child is deemed to be fifteen (15) years of age on the day of the fifteenth
anniversary of his/her birthdate.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be
exempt from criminal liability and be subjected to an intervention program, unless
49
he/she has acted with discernment, in which case, such child shall be subjected to
the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include exemption
from civil liability, which shall be enforced in accordance with existing laws. (Emphasis
supplied.)
In determining age for purposes of exemption from criminal liability, Section 6 clearly
refers to the age as determined by the anniversary of ones birth date, and not the
mental age as argued by accused-appellant Roxas. When the law is clear and free
from any doubt or ambiguity, there is no room for construction or interpretation. Only
when the law is ambiguous or of doubtful meaning may the court interpret or construe
its true intent.19
On the matter of the credibility of AAA, we carefully examined AAAs testimony and
found ourselves in agreement with the assessment of the trial court and the Court of
Appeals. As observed by the appellate court:
We note that she recounted her ordeal in a logical, straightforward, spontaneous and
frank manner, without any artificialities or pretensions that would tarnish the veracity
of her testimony. She recalled the tragic experience and positively identified accusedappellant as the one who ravished her on five occasions. Her testimony was
unshaken by a grueling cross-examination and there is no impression whatsoever
that the same is a mere fabrication. For her to come out in the open and publicly
describe her harrowing experience at a trial can only be taken as a badge of her
sincerity and the truth of her claims.20
We further underscore that AAA was merely 14 years old at the time she
testified.21 We have repeatedly held that testimonies of child-victims are normally
given full weight and credit, since when a girl, particularly if she is a minor, says that
she has been raped, she says in effect all that is necessary to show that rape has in
fact been committed. When the offended party is of tender age and immature, courts
are inclined to give credit to her account of what transpired, considering not only her
relative vulnerability but also the shame to which she would be exposed if the matter
to which she testified is not true. Youth and immaturity are generally badges of truth
and sincerity.22
It is likewise axiomatic that when it comes to evaluating the credibility of the
testimonies of the witnesses, great respect is accorded to the findings of the trial
judge who is in a better position to observe the demeanor, facial expression, and
manner of testifying of witnesses, and to decide who among them is telling the
truth.23 As the trial court further observed, the defense witnesses were not
eyewitnesses. A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as provided in
the Rules of Court.24 AAAs mother and brothers were not present when the five rapes
allegedly occurred, and therefore any testimony on their part as to whether or not the
complained acts actually happened is hearsay.
We shall now discuss the criminal liability of accused-appellant Roxas. As stated
above, the trial court imposed the penalty of reclusion perpetua for each count of
rape.
The first rape incident was committed in July 1997, and therefore the law applicable is
Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 which
provides:
ART. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented. The crime
of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.
The succeeding counts of rape were committed after the effectivity of Republic Act
No. 8353 on October 22,1997, which transported the rape provision of the Revised
Penal Code to Title 8 under Crimes against Persons, and amended the same to its
present wording:
Article 266-A. Rape, When And How Committed. Rape is committed
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise
unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present.
Article 266-B. Penalties. Rape under paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of
the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim[.]
While it appears that the circumstance of minority under Article 335 (old rape
provision) and Article 266-B was sufficiently proven, the allegation of the relationship
between AAA and accused-appellant Roxas is considered insufficient under present
jurisprudence. This Court has thus held:
However, as regards the allegation in the Information that appellant is an uncle of the
victim, we agree with the Court of Appeals that the same did not sufficiently satisfy the
requirements of Art. 335 of the Revised Penal Code, i.e., it must be succinctly stated
that appellant is a relative within the 3rd civil degree by consanguinity or affinity. It is
immaterial that appellant admitted that the victim is his niece. In the same manner, it
is irrelevant that "AAA" testified that appellant is her uncle. We held in People v.
Velasquez:
However, the trial court erred in imposing the death penalty on accused-appellant,
applying Section 11 of Republic Act No. 7659.1wphi1 We have consistently held that
the circumstances under the amendatory provisions of Section 11 of R.A. No. 7659,
the attendance of which could mandate the imposition of the single indivisible penalty
of death, are in the nature of qualifying circumstances which cannot be proved as
such unless alleged in the information. Even in cases where such circumstances are
50
proved, the death penalty cannot be imposed where the information failed to allege
them. To impose the death penalty on the basis of a qualifying circumstance which
has not been alleged in the information would violate the accused's constitutional and
statutory right to be informed of the nature and cause of the accusation against him.
While the informations in this case alleged that accused-appellant is the uncle of the
two victims, they did not state that he is their relative within the third civil degree of
consanguinity or affinity. The testimonial evidence that accused-appellant's wife and
Luisa de Guzman are sisters is immaterial. The circumstance that accused-appellant
is a relative of the victims by consanguinity or affinity within the third civil degree must
be alleged in the information. In the case at bar, the allegation that accused-appellant
is the uncle of private complainants was not sufficient to satisfy the special qualifying
circumstance of relationship. It was necessary to specifically allege that such
relationship was within the third civil degree. Hence, accused-appellant can only be
convicted of simple rape on two counts, for which the penalty imposed is reclusion
perpetua in each case.25
In the case at bar, the allegation that AAA was accused-appellant Roxass "niece" in
each Information is therefore insufficient to constitute the qualifying circumstances of
minority and relationship. Instead, the applicable qualifying circumstance is that of the
use of a deadly weapon, for which the penalty is reclusion perpetua to death. Since
there was no other aggravating circumstance alleged in the Information and proven
during the trial, the imposed penalty of reclusion perpetua for each count of rape is
nonetheless proper even as we overturn the lower courts appreciation of the
qualifying circumstances of minority and relationship.
For consistency with prevailing jurisprudence, we reduce the awards of civil indemnity
and moral damages toP50,000.00 each, for each count of rape. The award of
exemplary damages in the amount of P30,000.00 for each count, on the other hand,
is in line with recent jurisprudence.26 WHEREFORE, the Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 03473 dated August 16, 2011 is hereby AFFIRMED
with the MODIFICATION that the amount of civil indemnity and moral damages
awarded to the complainant are reduced to P50,000.00 each, for each count of rape,
plus legal interest upon the amounts of indemnity and damages awarded at the rate
of 6% per annum from the date of finality of this judgment.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
LUCAS P. BERSAMIN
MARTIN S. VILLARAMA, JR.
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
1
Rollo, pp. 2-32; penned by Associate Justice Stephen C. Cruz with Associate Justices Isaias P. Dicdican and
Agnes Reyes-Carpio, concurring.
2
CA rollo, pp. 59-70.
3
In line with the ruling of this Court in People v. Cabalquinto (533 Phil. 703 [2006]), the real name and identity of
the rape victim is withheld and, instead, fictitious initials are used to represent her. Also, the personal
circumstances of the victim or any other information tending to establish or compromise her identity, as well as
those of her immediate family, are not disclosed in this decision. Instead, the rape victim and her immediate family
shall herein be referred to as AAA to EEE, while her uncles and aunts shall be referred to as WWW to ZZZ.
4
Records, p. 2.
5
Id. at 4.
6
Id. at 10.
7
Id. at 16.
8
Id. at 22.
9
Id. at 312.
10
11
Id. at 47-50.
12
Id. at 69-70.
13
Id. at 42.
14
Rollo, p. 31.
15
Id. at 46.
16
Id. at 48.
17
Id. at 51-52.
18
As amended by Republic Act No. 10630.
19
Rizal Commercial Banking Corporation v. Intermediate Appellate Court, 378 Phil. 10, 22 (1999).
20
Rollo, p. 13.
21
TSN, August 3, 2003, p. 3.
22
People v. Araojo, 616 Phil. 275, 287 (2009).
23
People v. Estoya, G.R. No. 200531, December 5,2012, 687 SCRA 376, 383.
24
Rule 130, Section 36.
25
People v. Estrada, G.R. No. 178318, January 15, 2010, 610 SCRA 222, 234-235.
26
People v. Manigo, G.R. No. 194612, January 27, 2014.
THIRD DIVISION
RAYMUND MADALI AND RODEL MADALI,
Petitioners,
G.R. No. 180380

Present:
YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
- versus
PEOPLE OF THEPHILIPPINES,
Respondent.
Promulgated:
August 4, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,
petitioners Raymund Madali (Raymund) and Rodel Madali (Rodel) seek the reversal
of the 29 August 2007 Decision[1] of the Court of Appeals in CA-G.R. CR No. 27757;
and its 23 October 2007 Resolution, [2] affirming with modifications the 28 July 2003
Decision[3] of the Romblon, Romblon, Regional Trial Court (RTC), Branch 81, in
Criminal Case No. 2179, finding petitioners guilty of homicide.
For the death of AAA,[4] Raymund, Rodel and a certain Bernardino Jojo
Maestro (Bernardino) were charged before the RTC with the crime of Murder. The
accusatory portion of the Information reads:
51
That on or about the 13th day of April 1999, at around
11:00 oclock in the evening, in the Barangay XXX, Municipality of
Romblon, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with intent to
kill, conspiring, confederating and mutually helping each other, did
then and there by means of treachery and with evident
premeditation, willfully, unlawfully and feloniously attack, assault,
strike with a coconut frond and llave inglesa and strangle with a dog
chain, one AAA, inflicting upon the latter mortal wounds in different
parts of his body which caused his untimely death.[5]
During the arraignment on 31 May 2000, the three accused, with the
assistance of counsel, pleaded not guilty.[6]
On trial, the prosecution presented eight witnesses, namely: (1) Jovencio
Musa (Jovencio), 16 years old, the victims cousin and the alleged lone eyewitness to
the killing; (2) Senior Police Officer (SPO) 3 Rogelio Madali, the designated Deputy
Chief of Police of the Romblon Police Station; (3) Police Officer (PO) 3 Nicolas Molo,
the police investigator assigned to the case; (4) BBB, the mother of the deceased
victim; (5) Dr. Carmen Lita P. Calsado, Chief of the Romblon District Hospital, the
physician who issued the death certificate of AAA; (6) Emerson de Asis, the alleged
companion of witness Jovencio on the night in question, who later became a hostile
witness; (7) Michael Manasan, also a companion of witness Jovencio before the
killing of the victim occurred; (8) Dr. Floresto Arizala, Jr., a forensic expert from the
National Bureau of Investigation (NBI), Manila, who conducted the examination of the
corpse of the victim after the same was exhumed.
As documentary and object evidence, the prosecution offered the following:
(1) Exhibit A Affidavit of Jovencio executed on 22 April 1999, detailing the
circumstances prior to, during and after the killing of the victim perpetrated by
Raymund, Rodel and Bernardino; (2) Exhibit B Sinumpaang Salaysay of Jovencio
dated 8 May 1999, a recantation of the 22 April 1999 Affidavit; (3) Exhibit C Amended
Affidavit of Jovencio dated 28 May 1999, which was substantially the same on
material points as the 22 April 1999 Affidavit; (4) Exhibit D Undated Reply Affidavit of
Jovencio insisting that the death of the victim was authored by Raymund, Rodel and
Bernardino; (5) Exhibit E Joint Affidavit of prosecution witnesses SPO3 Rogelio
Madali and a certain SPO2 Teresito M. Sumadsad; (6) Exhibit F the coconut frond
recovered by the police officers from the scene of the incident; (7) Exhibit G a dog
chain used as part of a strap that was tied to the victims neck while he was hanging
from a tree; (8) Exhibit H the handkerchief that was tied around the victims neck; (9)
Exhibit I empty bottles of gin; (10) Exhibit J cellophanes with rugby; (10) Exhibit K
pictures taken from the crime scene including the picture of the body of the victim tied
to a tree; (11) Exhibit L Letter of Request for the NBI to conduct an examination of the
body of the victim; (12) Exhibits M to O NBI routing slips; (14) Exhibit P Death
Certificate issued by Dr. Carmen Lita P. Calsado; (15) Exhibit Q Exhumation Report
issued by Dr. Floresto P. Arizala, Jr.; (16) Exhibit R the Autopsy Report submitted by
Dr. Floresto P. Arizala, Jr.; (17) Exhibit S Sketch of the head of the victim showing the
injuries thereon; and (18) Exhibit T handwritten draft of the exhumation report.
Taken together, the evidence offered by the prosecution shows that at
around 5:30 in the afternoon of 13 April 1999, BBB, who made a living by selling
goods aboard ships docked at the Romblon Pier, and who was constantly assisted by
her 15-year-old son AAA, was on a ship plying her wares. AAA, together with
Jovencio and Raymund, was there helping his mother.[7] Sometime later, Raymund
and AAA left the ship. Jovencio stayed a little longer.[8]
At about 9:00 p.m. of the same day, Jovencio and another friend named
Michael Manasan sat beside the Rizal monument in the Poblacion of Romblon,
located between the Roman Catholic Church and Lovers Inn. Michael had just left
Jovencio when Raymund, Rodel, Bernardino and the victim AAA arrived. After
meandering around, the group proceeded to climb the stairs, atop of which was the
reservoir just beside the Romblon National High School. The victim, AAA, ascended
first; behind him were Rodel, Raymund, Bernardino and witness Jovencio. As soon as
they reached the reservoir, Bernardino blindfolded AAA with the handkerchief of
Raymund. Bernardino at once blurted out, Join the rugby boys. AAA replied, Thats
enough. Bernardino then struck AAA thrice with a fresh and hard coconut frond. AAA
lost his balance and was made to stand up by Raymund, Rodel and
Bernardino. Raymund took his turn clobbering AAA at the back of his thighs with the
same coconut frond. AAA wobbled. Before he could recover, he received punches to
his head and body from Rodel, who was wearing brass knuckles. The punishments
proved too much, as AAA lost consciousness.
Not satisfied, Raymund placed his handkerchief around the neck of AAA,
with its ends tied to a dog chain. With the contraption, the three malefactors pulled the
body up a tree.
Stunned at the sight of his cousin being ill-treated, Jovencio could only
muster a faint voice saying Enough every single-time AAA received the painful
blows. Bernardino, who seemed to suggest finishing off the victim, remarked, Since
were all here, lets get on with it. Before leaving the scene, the three assailants
warned Jovencio not to reveal the incident to anyone, or he would be next.
Tormented and torn between the desire to come clean and the fear for his
life, Jovencio hardly slept that night. He did not divulge the incident to anyone for the
next few days. BBB, the victims mother, was worried when her son did not come
home. She started asking relatives whether they had seen her son, but their reply
was always in the negative.
It was three days later that a certain Eugenio Murchanto reported to the
police authorities about a dead man found in Barangay ZZZ near
the Romblon National High School. When the policemen went there, they found the
cadaver emitting a foul odor, with maggots crawling all over, hanging from a tree with
a handkerchief tied around the neck and a dog chain fastened to the
handkerchief. Also found in the area were paraphernalia for inhaling rugby, as well as
empty bottles of gin and a coconut frond.
The provincial hospital refused to conduct an autopsy, since AAAs corpse
was already decomposing and stank so badly. It was through the intercession of the
NBI that the body was eventually exhumed and examined by medico-legal
experts. Dr. Floresto P. Arizala, Jr., who conducted the examination, opined that the
victim died due to head injuries and not to asphyxiation by hanging. He declared that
the victim was already dead when he was tied to the tree, and that the variety of
injuries sustained by the victim could be attributed to more than one assailant.
52
Upon investigation, Jovencio narrated the incident and pointed to Raymund,

Rodel and Bernardino as the perpetrators of the crime. Thereafter, Jovencio executed
his first affidavit, which was dated 22 April 1999. Because of the threat made on him
by a certain Wilson, an uncle of Raymund and Rodel, Jovencio executed a second
affidavit dated 8 May 1999, repudiating his first affidavit. On 28 May 1999, Jovencio
made his third sworn statement substantially reverting to his first affidavit.
The accused, on the other hand, advanced the defense of denial and
alibi. They claimed they had nothing to do with the death of AAA, and that they were
nowhere near thelocus criminis when the killing occurred.
According to Rodel, 16 years old, he was with his father Rodolfo Madali in
the house of a friend named Noel Mindoro, located more or less 14 kilometers from
the place where the victim was slain where they spent the whole evening until the
following morning. Rodels testimony was corroborated by his father and Noel
Mindoro.
On their part, Raymund, 14 years of age, and Bernardino declared that they
were in their respective houses on the night in question. Raymunds place was
allegedly five kilometers away from the scene of the crime, while Bernardinos was
one kilometer away. Bernardinos testimony was supported by his father Bernardino
Maestro, Sr. and by his neighbor Diana Mendez. Raymunds friend, Pastor Mario
Fajiculay backed up the formers alibi.
Convinced by the version of the prosecution, the RTC rendered a guilty
verdict against the three accused. On account of the prosecutions failure to prove the
qualifying circumstances of treachery and evident premeditation, they were only
convicted of homicide. The RTC observed that the incident was a sort of initiation, in
which the victim voluntarily went along with the perpetrators, not totally unaware that
he would be beaten. The RTC also appreciated the privileged mitigating circumstance
of minority in favor of the three accused. The dispositive portion of the RTC decision
reads:
WHEREFORE, finding the accused BERNARDO (sic) Jojo
MAESTRO, JR., RODEL MADALI AND RAYMUND MADALI
GUILTY beyond reasonable doubt of the crime of Homicide, they
are hereby sentenced to suffer an indeterminate sentence of four
(4) years, two (2) months and one (1) day to six (6) years and to
indemnify the heirs of AAA jointly and severally the amount of PhP
50,000.00.[9]
On 6 August 2003, Bernardino applied for probation. Thus, only Raymund
and Rodel elevated their convictions to the Court of Appeals.
In a Decision dated 29 August 2007, the Court of Appeals affirmed the
findings of the RTC that Rodel and Raymund killed the victim. However, pursuant to
Section 64 of Republic Act No. 9344, otherwise known as the Juvenile Justice and
Welfare Act of 2006, which exempts from criminal liability a minor fifteen (15) years or
below at the time of the commission of the offense, Raymunds case was dismissed.
Rodels conviction was sustained, and he was sentenced to six months and one day
of prision correccional to eight years and one day of prision mayor, but the imposition
of said penalty was suspended pursuant to Republic Act No. 9344. The judgment
provides:
WHEREFORE, the Decision dated July 28, 2003,
rendered by the Regional Trial Court of Romblon, Romblon (Branch
81) is Criminal Case No. 2179, is affirmed with the following
MODIFICATIONS:
1)
Appellant Raymund Madali is declared

EXEMPT from criminal liability and the case,
insofar as he is concerned is hereby DISMISSED
pursuant to R.A. No. 9344.
2)
Appellant Rodel Madali is found guilty of

homicide, the proper penalty for which is fixed at
six (6) months and one (1) day of prision
correccional to eight (8) years and one (1) day
of prision mayor. Imposition of this penalty
should, however, be SUSPENDED, also pursuant
to R.A. No. 9344.
3)
In addition to the civil indemnity imposed by

the trial court in the amount of Fifty Thousand
Pesos (P50,000.00), moral damages in the
amount of Fifty Thousand Pesos (P50,000.00) is
hereby awarded in favor of the heirs of the victim,
AAA.
4)
5)
xxxx
Finally, this case is referred to the
Department of Social Welfare and Development
(DWSD) for further proceedings in accordance
with R.A. No. 9344.[10]
Hence, the instant case.

Petitioners Raymund and Rodel assail both the RTC and the Court of
Appeals findings, which gave weight and credence to the account of the incident
given by prosecution witness Jovencio, whose testimony according to them was
replete with patent and substantial inconsistencies. First, petitioners set their sights
on the conflicting affidavits executed by Jovencio. The first affidavit implicated the
three accused in the death of AAA, which was controverted by the second affidavit
where Jovencio denied having seen the three accused butcher the victim, while the
third affidavit restated the material points in the first affidavit. Petitioners also pointed
out the discrepancy between the first and the third affidavits, as the former stated that
Jovencio was not seen by the three accused when they executed the victim; whereas
in the latter affidavit, Jovencio stated he was with the three when the killing took
place. Second, petitioners assert that the testimony of Jovencio relating to the alleged
53
fact that his companions, Michael Manasan and Emerson de Asis, saw the three
accused and the deceased during the night in question was debunked by the very
testimonies of Michael Manasan and Emerson de Asis wherein they declared
otherwise.
Moreover, petitioners contend that both the RTC and the Court of Appeals
erred in disbelieving the defense of alibi they interposed, considering that the
prosecution failed to muster the required quantum of proof, and that said defense was
corroborated by testimonies of the other defense witnesses.
The elemental question in this case is the credibility of the parties and their
witnesses.
Well-entrenched is the rule that the matter of assigning values to
declarations on the witness stand is best and most competently performed by the trial
judge who, unlike appellate magistrates, can weigh such testimonies in light of the
declarants demeanor, conduct and position to discriminate between truth and
falsehood.[11] This is especially true when the trial courts findings have been affirmed
by the appellate court, because said findings are generally conclusive and binding
upon this Court, unless it be manifestly shown that the lower courts had overlooked or
disregarded arbitrarily the facts and circumstances of significance in the case.[12]
The RTC and the Court of Appeals did not overlook any significant facts in
the case.
This Court itself, in its effort to ferret out the truth based on the evidence on
records has diligently pored over the transcripts of stenographic notes of this case
and, like the RTC, finds the testimony of Jovencio credible. Subjected to the grueling
examinations on the witness stand, Jovencio steadfastly pointed to Raymund, Rodel
and Bernardino as the persons who slaughtered the victim. He testified as follows:
Q: Mr. Witness, will you tell us where were you on April 13, 1999?
xxxx
A: I was at the Rizal standing by.
xxxx
PROS. BENEDICTO continuing:
Q: While you were at Rizal on April 13, 1999 in the evening, [who was your companion]?
A: Only Michael.
Q: And what were you doing with Michael?
A: Only standing by there.
Q: Did anything happen while you were standing by with Michael?
A: None, sir.
Q: Did anyone arrive while you were there?
A: Yes, sir.
Q: Who?
A: Jojo [Bernardino] followed by Raymund then AAA, then Rodel.
Q: And what happened when they arrived?
A: They were also standing by there.
Q: How long did they stand by in that place?
A: I do not know how many hours?
Q: Then, what happened next?
A: Around 10:30 oclock we went there.
Q: When you said we, to whom you are referring as your companions?
A: Jojo [Bernardino], Rodel, Raymund and AAA.
Q: What happened to Michael?
A: He went home.
Q: When you said you went there, to which place are you referring?
A: Near the high school at hagdan-hagdan.
Q: There are three (3) main streets in the Poblacion of Romblon, which street did you take in
going to hagdan-hagdan near the high school?
A: In the middle.
Q: Did you climb the stairs?
A: Yes, sir.
Q: Who was ahead?
A: AAA.
Q: And who came next?
A: Rodel.
Q: Then, after Rodel, who?
A: Raymund.
Q: Then?
A: [Bernardino].
Q: [Bernardino] who?
A: Maestro.
Q: What is the relation of this Jojo Maestro to Bernardino Maestro you pointed a while ago?
A: That Jojo is his alias.
Q: Did you reach the top of the stairs?
A: Yes, sir.
Q: Upon reaching the top of the stairs, what did you do, if any?
A: [Bernardino] blindfolded AAA.
Q: With what?
A: Handkerchief.
Q: Where did he get that handkerchief?
A: From Raymund.
Q: After AAA, what is the family name of this AAA?
A: AAA.
Q: After AAA was blindfolded, what happened next?
A: Then [Bernardino] told him Join the rugby boys!
Q: Did AAA make any reply?
A: AAA said Thats enough.
Q: What happened after Jojo Maestro said you join the rugby boys?
A: AAA was struck by a coconut frond three (3) times.
Q: Who struck him with the coconut frond?
A: [Bernardino].
Q: What happened to AAA when he was struck three (3) times with the coconut fronds?
A: He was made to stand.
Q: After standing, what happened next?
A: AAA was again struck with the coconut frond byRaymund.
Q: Was AAA hit?
A: Yes, sir.
Q: Where?
A: Here (witness is pointing to the posterior aspect of his right thigh).
Q: What happened to AAA when he was hit by the coconut frond?
A: As if he became weak.
Q: How about Rodel, what did Rodel do, if any?
A: He boxed the body and the head.
Q: Of whom?
A: Of Rodel.
Q: Who was boxed by Rodel?
A: AAA.
Q: In Exhibit C you mentioned about llave inglesa, what is this llave inglesa?
A: Lead llave inglesa.
Q: And how does it look like?
A: I forgot already but it was a brass knuckle
Q: Did Exh. C mention that Rodel punched him in different parts of his body with a llave
inglesa causing him to fall to the ground, how did Rodel use this llave inglesa?
A: Worn in his hand (witness raising his right hand and motioning the left as if wearing
something in his right hand), then punched him.
Q: When he was punched on different parts of his body by Rodel using llave inglesa, what
happened to AAA?
A: He lost consciousness.
Q: When AAA lost consciousness, what did Bernardino Maestro, Raymund Madali and Rodel
Madali do, if any?
A: Raymund used his handkerchief in tying the neck of my cousin.
Q: Who is this cousin of yours?
A: AAA.
Q: What is the family name?
A: AAA.
54
COURT:
How about Bernardino as part of the question?
PROS. BENEDICTO continuing:
Q: Bernardino, what did he do, if any?
A: The chain for the dog was tied to the handkerchief.
COURT:
How about Rodel?
A: They helped in lifting him and making him stand and hooked the tie to the tree.
Q: What is this tie which was hooked to the tree made of?
A: The chain.
Q: Referring to the dog chain?
A: Yes, sir.
Q: While all these things were happening, what was Jovencio Musa doing who is a cousin of
AAA?
A: I got shock upon seeing it.
Q: Did Jovencio Musa utter anything or do something?
A: Everytime AAA was being struck I said Enough!
(Tama na!).
Q: How many times did you say that is enough?
A: Twice.
Q: How did the three (3) react to your saying Tama na, tama na!?
A: It is already here so we will proceed.
COURT:
Translate that.
A: Yari na ini, idiretso na.
xxxx
Q: After tying the dog chain to the tree, what happened next?
A: I was told by the three (3) that if I would reveal I would be the next to be killed.
Q: After that, what happened?
A: No more, we went home already.[13]
Jovencio saw at close range the incident as it was unfolding before his very
eyes as he was there when it happened. He was in the company of the perpetrators
and the victim. Thus, the incident could not have escaped his attention. The
prosecution adequately established in graphic detail, through the eyewitness, the
circumstances that transpired before, during and after the killing of AAA. At
around 11:30 p.m. of 13 April 1999, Jovencio, together with the victim, as well as with
Rodel, Raymund and Bernardino, went to a place near the Romblon National High
School. Jovencios earlier companion, Michael Manasan, did not go with the group, as
he had already left a little earlier. As they reached their destination, the group
ascended the stairs leading to a reservoir near the said school. AAA was ahead,
followed by Rodel, Raymund, Bernardino and Jovencio. Upon reaching the top,
Bernardino blindfolded the victim with a handkerchief and told the latter, Join the
rugby boys! The victim responded, Thats enough! Bernardino then hit the victim
thrice, using a green and hard coconut frond. Unable to withstand the beatings, the
victim hit the ground and was lifted to his feet by Bernardino, Raymund and
Rodel.With the same coconut frond, Raymund hit the victim on his right thigh. Rodel
followed by punching the body and the head of the victim with a brass knuckle (llave
inglesa) wrapped around the formers right fist. Feeling for his cousin, Jovencio
shouted Tama na! Tama na! Bernardino responded, Yari na ini, ideretso na, (We have
come this far, we have to finish it.) The victims strength was no match to the injuries
he received. He passed out. Raymund then tied a handkerchief around the victims
neck, fastened a dog chain to the ends of the said handkerchief and, with the aid of
Raymund and Rodel, hoisted the victims body to and hanged it from a nearby
tree. Shocked at what was happening, Jovencio just watched the whole incident,
failing to muster enough courage to help his dying cousin.
The perpetrators warned Jovencio not to divulge to anyone what he saw, or
he would be the next victim. Then they all left the place, leaving the victims body
hanging from a tree.
The testimony of Jovencio was substantiated by the medical findings

indicating that the victim was hit in the head by hard blows, causing his death. Other
pieces of evidence such as the coconut frond, the dog chain and the handkerchief
found in the scene also supported Jovencios account.
Against the damning evidence adduced by the prosecution, petitioners
Raymund and Rodel could only muster mere denial. Unfortunately for them, their
defense was much too flaccid to stay firm against the weighty evidence for the
prosecution. Denial, if unsubstantiated by clear and convincing evidence, is a
negative and self-serving evidence that deserves no weight in law. It cannot be given
greater evidentiary value than the testimony of a credible witness who testifies on
affirmative matters.[14] Between the self-serving testimonies of petitioners and the
positive identification by the eyewitness, the latter deserves greater credence.[15]
Petitioners alibi, which was supported by the testimonies of close relatives
and friends, cannot overcome the convincing evidence adduced by the
prosecution. Such corroborative testimonies of relatives and friends are viewed with
suspicion and skepticism by the Court.[16]
Furthermore, for alibi to prosper, two elements must concur: (a) the accused
was in another place at the time the crime was committed; and (b) it was physically
impossible for him to be at the scene of the crime at the time it was committed. In the
case under consideration, Raymund was within a 5-kilometer distance from the
scene, while Rodel was within a 14-kilometer distance. Even assuming arguendo that
Raymund and Rodels defense were true, still, it was not physically impossible for
them to be at the crime scene and to be participants in the gruesome crime. It was
not difficult for them to travel from where they allegedly were and arrive at the scene
during the killing episode.
Petitioners made an issue of the affidavit of recantation repudiating the
earlier one laying the blame on them. The affidavit of recantation executed by a
witness prior to the trial cannot prevail over the testimony made during the trial.
[17]
Jovencio effectively repudiated the contents of the affidavit of recantation. The
recantation would hardly suffice to overturn the trial courts finding of guilt, which was
based on a clear and convincing testimony given during a full-blown trial. As held by
this Court, an affidavit of recantation, being usually taken ex parte, would be
considered inferior to the testimony given in open court. [18] A recantation is
exceedingly unreliable, inasmuch as it is easily secured from a poor and ignorant
witness, usually through intimidation or for monetary consideration.[19] Considering the
age, the social standing and the economic status of witness Jovencio, it is not farfetched that the combination of these factors impelled him to affix his signature to the
recanting affidavit. Besides, Jovencio explained why he executed the second affidavit
or the affidavit of recantation, which supposedly exonerated petitioners. He had been
threatened by a certain Wilson, who was a relative of petitioners. Jovencio testified:
Q: Alright, in Exh. C specifically C-1, you mentioned that, you said
that somebody fetched me in the evening of May 7, 1999
who told me that Rey Andrade wanted to talk to me
regarding the incident, who was that somebody who
fetched you in the house?
55
A: I do not know but he is known as Andrade.

xxxx
Q: What was the subject of your conversation with Andrade?
A: About the Nephew of Wilson
xxxx
Q: How about this Wilson you were referring to?
A: Wilson all of a sudden arrived there.
Q: Did Wilson say anything?
A: Wilson said, if we will lose, all our expenses will be paid and if he wins I will be the
next.[20]
Petitioners also place much premium on the alleged contradiction between

Jovencios narrative -- which claimed that Emerson de Asis and Michael Manasan saw
the victim in the company of the malefactors immediately prior to the killing -- and the
testimonies of these two witnesses denying such allegation.
Unfortunately, this is just a minor inconsistency. The common narration of
Emerson de Asis and Michael Manasan that they did not see the perpetrators with the
victim prior to the killing are too insignificant, since their narration did not directly
relate to the act of killing itself. Said inconsistency does not dilute the declarations of
Jovencio.Given the natural frailties of the human mind and its incapacity to assimilate
all material details of a given incident, slight inconsistencies and variances in the
declarations of a witness hardly weaken their probative value. It is well settled that
immaterial and insignificant details do not discredit a testimony on the very material
and significant point bearing on the very act of accused-appellants. [21] As long as the
testimonies of the witnesses corroborate one another on material points, minor
inconsistencies therein cannot destroy their credibility. Inconsistencies on minor
details do not undermine the integrity of a prosecution witness. [22] The minor
inconsistencies and contradictions only serve to attest to the truthfulness of the
witnesses and the fact that they had not been coached or rehearsed.[23]
The declaration of Michael Manasan -- that he did not see the petitioners
together with Jovencio and the victim immediately prior the incident -- does not help a
bit the cause of petitioners. As the Court of Appeals correctly pointed out, Michael
could not have seen the malefactors in the company of the victim because according
to Jovencio, Michael had gone home earlier that evening.
In fine, this Court defers to the findings of the trial court, which were affirmed
by the Court of Appeals, there being no cogent reason to veer away from such
findings.
As to the criminal liability, Raymond is exempt. As correctly ruled by the
Court of Appeals, Raymund, who was only 14 years of age at the time he committed
the crime, should be exempt from criminal liability and should be released to the
custody of his parents or guardian pursuant to Sections 6 and 20 of Republic Act No.
9344, to wit:
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15)
years of age or under at the time of the commission of the offense
shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program pursuant to Section 20 of this
Act.
xxxx
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.
SEC. 20. Children Below the Age of Criminal Responsibility. If it has
been determined that the child taken into custody is fifteen (15)
years old or below, the authority which will have an initial contact
with the child has the duty to immediately release the child to the
custody of his/her parents or guardian, or in the absence thereof,
the child's nearest relative. Said authority shall give notice to the
local social welfare and development officer who will determine the
appropriate programs in consultation with the child and to the
person having custody over the child. If the parents, guardians or
nearest relatives cannot be located, or if they refuse to take
custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay
official or a member of the Barangay Council for the Protection of
Children (BCPC); a local social welfare and development officer; or,
when and where appropriate, the DSWD. If the child referred to
herein has been found by the Local Social Welfare and
Development Office to be abandoned, neglected or abused by his
parents, or in the event that the parents will not comply with the
prevention program, the proper petition for involuntary commitment
shall be filed by the DSWD or the Local Social Welfare and
Development Office pursuant to Presidential Decree No. 603,
otherwise known as "The Child and Youth Welfare Code."
Although the crime was committed on 13 April 1999 and Republic Act No.
9344 took effect only on 20 May 2006, the said law should be given retroactive effect
in favor of Raymund who was not shown to be a habitual criminal. This is based on
Article 22 of the Revised Penal Code which provides:
Retroactive effect of penal laws. Penal laws shall have a retroactive
effect insofar as they favor the person guilty of a felony, who is not
a habitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the
same.
While Raymund is exempt from criminal liability, his civil liability is not extinguished
pursuant to the second paragraph of Section 6, Republic Act No. 9344.
As to Rodels situation, it must be borne in mind that he was 16 years old at
the time of the commission of the crime. A determination of whether he acted with or
without discernment is necessary pursuant to Section 6 of Republic Act No. 9344, viz:
SEC. 6. Minimum Age of Criminal Responsibility. x x x.
56
A child above fifteen (15) years but below eighteen (18) years of
age shall likewise be exempt from criminal liability and be subjected
to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The Court of Appeals awarded P50,000.00 as civil indemnity and

another P50,000.00 as moral damages in favor of the heirs of the victim. In addition,
Rodel and Raymund are ordered to pay P25,000.00 as temperate damages in lieu of
the actual damages for funeral expenses, which the prosecution claimed to have
incurred but failed to support by receipts.
Discernment is that mental capacity of a minor to fully appreciate the

consequences of his unlawful act.[24] Such capacity may be known and should be
determined by taking into consideration all the facts and circumstances afforded by
the records in each case.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

dated 29 August 2007 in CA-G.R. No. 27757, exempting Raymund Madali from
criminal liability is hereby AFFIRMED. With respect to Rodel Madali, being a child in
conflict with the law, this Court suspends the pronouncement of his sentence
and REMANDS his case to the court a quo for further proceedings in accordance with
Section 38 of Republic Act No. 9344. However, with respect to the civil liabilities,
Rodel Madali and Raymund Madali are solidarily liable to pay the heirs of the victim
the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as temperate damages.
The Court of Appeals could not have been more accurate when it opined
that Rodel acted with discernment. Rodel, together with his cohorts, warned Jovencio
not to reveal their hideous act to anyone; otherwise, they would kill him. Rodel knew,
therefore, that killing AAA was a condemnable act and should be kept in secrecy. He
fully appreciated the consequences of his unlawful act.
SO ORDERED.
Under Article 68 of the Revised Penal Code, the penalty to be imposed upon
a person under 18 but above 15 shall be the penalty next lower than that prescribed
by law, but always in the proper period.
The penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal. Pursuant to Article 68, the maximum penalty should be
within prision mayor, which is a degree lower than reclusion temporal. Absent any
aggravating or mitigating circumstance, the maximum penalty should be in the
medium period of prision mayor or 8 years and 1 day to 10 years. Applying the
Indeterminate Sentence Law, the minimum should be anywhere within the penalty
next lower in degree, that is, prision correccional.Therefore, the penalty imposed by
the Court of Appeals, which is 6 months and one day of prision correccional to 8
years and one day of prision mayor, is in order. However, the sentence to be imposed
against Rodel should be suspended pursuant to Section 38 of Republic Act No. 9344,
which states:
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
DIOSDADO M. PERALTA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
SEC. 38. Automatic Suspension of Sentence. Once the

child who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense charged,
the court shall determine and ascertain any civil liability which may
have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the
child in conflict with the law under suspended sentence, without
need of application. Provided, however, That suspension of
sentence shall still be applied even if the juvenile is already
eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt.
Upon suspension of sentence and after considering the
various circumstances of the child, the court shall impose the
appropriate disposition measures as provided in the Supreme Court
Rule on Juveniles in Conflict with the Law.
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.
REYNATO S. PUNO
Chief Justice
Penned by Associate Justice Aurora Santiago-Lagman with Associate Justices Bienvenido L. Reyes and Apolinario D.
Bruselas, Jr., concurring; CA rollo, pp. 248-264.
[2]
Id. at 308-309.
[3]
Penned by Executive Judge Vedasto B. Marco.
[4]
Under Republic Act No. 9262 also known as Anti-Violence Against Women and Their Children Act of 2004 and its implementing
rules, the real name of the victim and those of her immediate family members are withheld and fictitious initials are
instead used to protect the victims privacy.
[5]
Records, p. 1.
[6]
Id. at 148.
[7]
TSN, 26 October 1999, p. 14.
[8]
Id. at 14-15.
[9]
Rollo, p. 147.
[10]
Id. at 65.
[11]
People v. Matito, 468 Phil. 14, 24 (2004).
[12]
People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.
[13]
TSN, 8 October 1999, pp. 8-17
[14]
People v. Morales, 311 Phil. 279, 289 (1995).
[15]
People v. Baccay, 348 Phil. 322, 327-328 (1998).
[16]
People v. Diaz, 338 Phil. 219, 230 (1997).
[1]
57
[17]
Alejo v. People, G.R. No. 173360, 28 March 2008, 550 SCRA 326, 345.
People v. Nardo, 405 Phil. 826, 843 (2001).
Id. at 842.
[20]
TSN, 8 October 1999, pp. 19-20.
[21]
People v. Emoy, 395 Phil. 371, 383 (2000).
[22]
Id.
[23]
Id.
[18]
[19]
[24]
Rule on Juveniles in Conflict with the Law.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 182239
March 16, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot
prevail over the victims positive identification of the accused as the perpetrator of the
crime.1 For it to prosper, the court must be convinced that there was physical
impossibility on the part of the accused to have been at the locus criminis at the time
of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has
become final and executory only after his disqualification from availing of the benefits
of suspended sentence on the ground that he/she has exceeded the age limit of
twenty-one (21) years, shall still be entitled to the right to restoration, rehabilitation,
and reintegration in accordance with Republic Act No. 9344, otherwise known as "An
Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the
Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks
before this Court the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and
docketed as Criminal Case No. 1679-13-141[1],6 appellant was accused of the crime
of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 oclock in the evening
more or less, at barangay xxx, municipality of xxx, province of xxx and within the
jurisdiction of this Honorable Court, [Hermie M. Jacinto], with lewd design did then
and there willfully, unlawfully and feloniously had carnal knowledge with one AAA, a
five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the
victim being only five years old.7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense
admitted the existence of the following documents: (1) birth certificate of AAA,
showing that she was born on 3 December 1997; (2) police blotter entry on the rape
incident; and (3) medical certificate, upon presentation of the original or upon
identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their
respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki
[Julito]12 may be summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFFs house is along
the road. That of appellant lies at the back approximately 80 meters from FFF. To
access the road, appellant has to pass by FFFs house, the frequency of which the
latter describes to be "every minute [and] every hour." Also, appellant often visits FFF
because they were close friends. He bore no grudge against appellant prior to the
incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the
time playing at the basketball court near her house, fetching water, and passing by
her house on his way to the road. She and appellant used to be friends until the
incident.14
At about past 6 oclock in the evening of 28 January 2003, FFF sent his eight-year-old
daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC.
When CCC returned without AAA, FFF was not alarmed. He thought she was
watching television at the house of her aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay
Rum.16 At the store, he saw appellant place AAA on his lap.17 He was wearing
sleeveless shirt and a pair of short pants.18 All of them left the store at the same
time.19 Julito proceeded to the house of Rita to watch television, while appellant, who
held the hand of AAA, went towards the direction of the "lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short
pants21 when he held her hand while on the road near the store.22 They walked
towards the rice field near the house of spouses Alejandro and Gloria Perocho [the
Perochos].23 There he made her lie down on harrowed ground, removed her panty
and boxed her on the chest.24 Already half-naked from waist down,25 he mounted her,
and, while her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27 Afterwards, appellant left and
proceeded to the Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without
slippers.31 He found her face greasy.32 There was mud on her head and blood was
oozing from the back of her head.33 He checked for any injury and found on her neck
a contusion that was already turning black.34 She had no underwear on and he saw
white substance and mud on her vagina.35 AAA told him that appellant brought her
from the store36 to the grassy area at the back of the house of the Perochos;37 that he
threw away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked the
appellant what he did to AAA.41Appellant replied that he was asked to buy rum at the
store and that AAA followed him.42 FFF went home to check on his
daughter,43 afterwhich, he went back to appellant, asked again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching
television at the house of Rita.46AAA and her mother MMM arrived.47 AAA was
crying.48 Julito pitied her, embraced her, and asked what happened to her, to which
she replied that appellant raped her.49 Julito left and found appellant at the
Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the daughter
of [MMM]?" but the latter ignored his question.51Appellants aunt, Gloria, told appellant
that the policemen were coming to which the appellant responded, "Wait a minute
because I will wash the dirt of my elbow (sic) and my knees."52 Julito did found the
elbows and knees of appellant with dirt.53
58
On that same evening, FFF and AAA proceeded to the police station to have the
incident blottered.54 FFF also had AAA undergo a physical check up at the municipal
health center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health Physician, issued a
medical certificate56 dated 29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like
material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 oclock and 9 oclock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another
examination at the provincial hospital on the following day. Dr. Christine Ruth B.
Micabalo, Medical Officer III of the provincial hospital, attended to her and issued a
medico-legal certificate dated 29 January 2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and
7 there is no bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To
corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the
witness stand to affirm that he was at the Perochos at the time of the commission of
the crime.60 Luzvilla even went further to state that she actually saw Julito, not
appellant, pick up AAA on the road.61 In addition, Antonia Perocho [Antonia], sister-inlaw of appellants aunt, Gloria,62 testified on the behavior of Julito after the rape
incident was revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose house stands
at the back of FFFs house.64 He denied that there was a need to pass by the house
of FFF in order to access the road or to fetch water.65 He, however, admitted that he
occasionally worked for FFF,66 and whenever he was asked to buy something from
the store, AAA always approached him.67
At about 8 oclock in the morning of 28 January 2003, appellant went to the Perochos
to attend a birthday party. At 6:08 in the evening, while the visitors, including appellant
and his uncle Alejandro Perocho [Alejandro], were gathered together in a drinking
session, appellants uncle sent him to the store to buy Tanduay Rum. Since the store
is only about 20 meters from the house, he was able to return after three (3) minutes.
He was certain of the time because he had a watch .68
Appellants aunt, Gloria, the lady of the house, confirmed that he was in her house
attending the birthday party; and that appellant went out between 6 and 7 in the
evening to buy a bottle of Tanduay from the store. She recalled that appellant was
back around five (5) minutes later. She also observed that appellants white shorts
and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the
kitchen having a drink with his uncle Alejandro and the rest of the visitors.71 She went
out to relieve herself at the side of the tree beside the road next to the house of the
Perochos.72 From where she was, she saw Julito, who was wearing black short pants
and black T-shirt, carry AAA.73 AAAs face was covered and she was wiggling.74 This
did not alarm her because she thought it was just a game.75 Meanwhile, appellant
was still in the kitchen when she returned.76 Around three (3) minutes later, Luzvilla
saw Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA was
slowly following behind.79 Luzvilla followed them.80 Just outside the house, Julito
embraced AAA and asked what the appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and
testified that appellant was twice boxed by FFF. According to her, FFF tapped the left
shoulder of the appellant, boxed him, and left. FFF came in the second time and
again boxed appellant. This time, he had a bolo pointed at appellant. Appellants
uncle Alejandro, a barangay councilor, and another Civilian Voluntary Organization
(CVO) member admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 oclock in the evening, she was watching
the television along with other people at the house of Rita. Around 7:10, Julito, who
was wearing only a pair of black short pants without a shirt on, entered the house
drunk. He paced back and forth. After 10 minutes, AAA came in crying. Julito tightly
embraced AAA and asked her what happened. AAA did not answer. Upon Antonias
advice, Julito released her and went out of the house.84
Appellant further testified that at past 7 oclock in the evening, FFF arrived, pointed a
finger at him, brandished a bolo, and accused him of molesting AAA. FFF left but
returned at around 8 oclock in the evening. This time, he boxed appellant and asked
again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive
portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of
rape committed upon a 5-year old girl, the court sentences him to death and orders
him to pay [AAA] P75,000.000 as rape indemnity and P50,000.00 as moral damages.
With costs87
The defense moved to reopen trial for reception of newly discovered evidence stating
that appellant was apparently born on 1 March 1985 and that he was only seventeen
(17) years old when the crime was committed on 28 January 2003.88 The trial court
appreciated the evidence and reduced the penalty from death to reclusion
perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the
accused is amended in order to consider the privileged mitigating circumstance of
minority. The penalty impos[a]ble upon the accused, therefore[,] is reduced to
reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its
disposition in view of the ruling inPeople v. Mateo and the Internal Rules of the
Supreme Court allowing an intermediate review by the Court of Appeals of cases
where the penalty imposed is death, reclusion perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court
with the following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6)
years and one (1) day to twelve (12) years of prision mayor, as minimum, to
seventeen (17) and four (4) months of reclusion temporal, as maximum. Appellant
Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages
and to pay the costs.91
On 19 November 2007, the Court of Appeals gave due course to the appellants
Notice of Appeal.92 This Court required the parties to simultaneously file their
59
respective supplemental briefs.93 Both parties manifested that they have exhaustively
discussed their positions in their respective briefs and would no longer file any
supplement.94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY
ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF RAPE"95 by invoking the principle that "if the inculpatory
facts and circumstances are capable of two or more reasonable explanations, one of
which is consistent with the innocence of the accused and the other with his guilt,
then the evidence does not pass the test of moral certainty and will not suffice to
support a conviction."96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we
consider the three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more
difficult for the accused, though innocent, to disprove; (2) in view of the intrinsic
nature of the crime of rape in which only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its own merits, and cannot be
allowed to draw strength from the weakness of the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim may be
sufficient to convict the accused.98More so, when the testimony is supported by the
medico-legal findings of the examining physician.99
Further, the defense of alibi cannot prevail over the victims positive identification of
the perpetrator of the crime,100except when it is established that it was physically
impossible for the accused to have been at the locus criminis at the time of the
commission of the crime.101
I
A man commits rape by having carnal knowledge of a child under twelve (12) years of
age even in the absence of any of the following circumstances: (a) through force,
threat or intimidation; (b) when the offended party is deprived of reason or otherwise
unconscious; or (c) by means of fraudulent machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of the acts
culminating in the insertion of appellants organ into the vagina of five-year-old AAA
and the medical findings of the physicians sufficiently proved such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he
do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased
and re-phrased in order to test that AAA well understood the information elicited from
her, said it all she had been raped. When a woman, more so a minor, says so, she
says in effect all that is essential to show that rape was committed.104 Significantly,
youth and immaturity are normally badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the
hymenal lacerations at 5 oclock and 9 oclock positions could have been caused by
the penetration of an object; that the redness of the introitus could have been "the
result of the repeated battering of the object;" and that such object could have been
an erect male organ.107
The credible testimony of AAA corroborated by the physicians finding of penetration
conclusively established the essential requisite of carnal knowledge.108
II
The real identity of the assailant and the whereabouts of the appellant at the time of
the commission of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that
appellant was elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify
her assailant, especially when he is not a stranger to her, considering that she could
have a good look at him during the commission of the crime.110 AAA had known
appellant all her life. Moreover, appellant and AAA even walked together from the
road near the store to the situs criminus111 that it would be impossible for the child not
to recognize the man who held her hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering
testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused,
whom she called "kuya" and who used to play basketball and fetch water near their
house, and who was wearing a sleeveless shirt and shorts at the time he raped her,
was convincing and persuasive. The defense attempted to impute the crime to
someone else one Julito Apiki, but the child, on rebuttal, was steadfast and did not
equivocate, asserting that it was accused who is younger, and not Julito, who is older,
who molested her.112
In a long line of cases, this Court has consistently ruled that the determination by the
trial court of the credibility of the witnesses deserves full weight and respect
considering that it has "the opportunity to observe the witnesses manner of testifying,
their furtive glances, calmness, sighs and the scant or full realization of their
oath,"113 unless it is shown that material facts and circumstances have been "ignored,
overlooked, misconstrued, or misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness attempt to throw the court off the track by imputing the crime
to someone else is xxx a vain exercise in view of the private complainants positive
identification of accused and other corroborative circumstances. Accused also
admitted that on the same evening, Julito Apiki, the supposed real culprit, asked him
"What is this incident, Pare?", thus corroborating the latters testimony that he
confronted accused after hearing of the incident from the child."115
60
On the other hand, we cannot agree with the appellant that the trial court erred in
finding his denial and alibi weak despite the presentation of witnesses to corroborate
his testimony. Glaring inconsistencies were all over their respective testimonies that
even destroyed the credibility of the appellants very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to
buy Tanduay; that he gave the bottle to his uncle; and that they had already been
drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro.
On cross-examination, she revealed that her husband was not around before, during,
and after the rape incident because he was then at work.116 He arrived from work only
after FFF came to their house for the second time and boxed appellant.117 It was
actually the fish vendor, not her husband, who asked appellant to buy
Tanduay.118 Further, the drinking session started only after the appellants errand to
the store.119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is
contrary to Glorias statement that her husband was at work.
Luzvillas testimony is likewise inconsistent with that of sur-rebuttal witness Antonia
Perocho. Antonia recalled that Julito arrived without a shirt on. This belied Luzvillas
claim that Julito wore a white shirt on his way to the house of Rita. In addition, while
both the prosecution, as testified to by AAA and Julito, and the defense, as testified to
by Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvillas
recollection differ in that Julito wore a T-shirt (colored black and later changed to
white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvillas story that she saw AAA walking towards Ritas house three
(3) minutes after she returned to the Perochos at 6:38 in the evening, Antonia recalled
that AAA arrived at the house of Rita at 7:30. In this respect, we find the trial courts
appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell
her father that Hermie had raped her. She did not first drop into the house of Lita
Lingkay to cry among strangers who were watching TV, as Luzvilla Balucan would
have the court believe. When the child was seen at the house of Lita Lingkay by Julito
Apiki and Luzvilla Balucan, it was only later, after she had been brought there by her
mother Brenda so that Lita Lingkay could take a look at her just as Julito Apiki
said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the
same having been offered preferably by disinterested witnesses. The defense failed
thuswise. Its witnesses cannot qualify as such, "they being related or were one way or
another linked to each other."121
Even assuming for the sake of argument that we consider the corroborations on his
whereabouts, still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be
physically impossible for the accused to have been at the locus criminis at the time of
the commission of the crime.122
Physical impossibility refers to distance and the facility of access between the situs
criminis and the location of the accused when the crime was committed. He must
demonstrate that he was so far away and could not have been physically present at
the scene of the crime and its immediate vicinity when the crime was committed.123
In People v. Paraiso,124 the distance of two thousand meters from the place of the
commission of the crime was considered not physically impossible to reach in less
than an hour even by foot.125 Inasmuch as it would take the accused not more than
five minutes to rape the victim, this Court disregarded the testimony of the defense
witness attesting that the accused was fast asleep when she left to gather bamboo
trees and returned several hours after. She could have merely presumed that the
accused slept all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of
the appellant that he was in their company at the time of the commission of the crime
were likewise disregarded by this Court in the following manner:
Ruben Nicolas, the appellants part-time employer, and Marites Capalad, the
appellants sister-in-law and co-worker, in unison, vouched for the appellants physical
presence in the fishpond at the time Rachel was raped. It is, however, an established
fact that the appellants house where the rape occurred, was a stones throw
away from the fishpond. Their claim that the appellant never left their sight the
entire afternoon of December 4, 1997is unacceptable. It was impossible for Marites
to have kept an eye on the appellant for almost four hours, since she testified that
she, too, was very much occupied with her task of counting and recording the fishes
being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the
fishpond, could not have focused his entire attention solely on the appellant. It is,
therefore, not farfetched that the appellant easily sneaked out unnoticed, and
along the way inveigled the victim, brought her inside his house and ravished
her, then returned to the fishpond as if he never left.128 (Emphasis
supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that appellant never
left their sight, save from the 5-minute errand to the store, is contrary to ordinary
human experience. Moreover, considering that the farmland where the crime was
committed is just behind the house of the Perochos, it would take appellant only a few
minutes to bring AAA from the road near the store next to the Perochos down the
farmland and consummate the crime. As correctly pointed out by the Court of
Appeals, appellant could have committed the rape after buying the bottle of Tanduay
and immediately returned to his uncles house.129 Unfortunately, the testimonies of his
corroborating witnesses even bolstered the fact that he was within the immediate
vicinity of the scene of the crime.130
Clearly, the defense failed to prove that it was physically impossible for appellant to
have been at the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the
appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly
considered Republic Act No. 9344(Juvenile Justice and Welfare Act of 2006) despite
the commission of the crime three (3) years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v.
Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to
those who have been convicted and are serving sentence at the time of the effectivity
of this said Act, and who were below the age of 18 years at the time of the
commission of the offense. With more reason, the Act should apply to this case
wherein the conviction by the lower court is still under review.133 (Emphasis
supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below
eighteen (18) years of age from criminal liability, unless the child is found to have
61
acted with discernment, in which case, "the appropriate proceedings" in accordance
with the Act shall be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences
of his unlawful act.135 Such capacity may be known and should be determined by
taking into consideration all the facts and circumstances afforded by the records in
each case.136
xxx The surrounding circumstances must demonstrate that the minor knew what he
was doing and that it was wrong.137 Such circumstance includes the gruesome nature
of the crime and the minors cunning and shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing an
isolated and dark place to perpetrate the crime, to prevent detection[;] and (2) boxing
the victim xxx, to weaken her defense" are indicative of then seventeen (17) year-old
appellants mental capacity to fully understand the consequences of his unlawful
action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997.
Considering that she was only five (5) years old when appellant defiled her on 28
January 2003, the law prescribing the death penalty when rape is committed against
a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition
against the imposition of the penalty of death in accordance with Republic Act No.
9346;142 and (2) the privileged mitigating circumstance of minority of the appellant,
which has the effect of reducing the penalty one degree lower than that prescribed by
law, pursuant to Article 68 of the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation
of penalties provided in Article 71 of the Revised Penal Code.145 Consequently, in its
appreciation of the privileged mitigating circumstance of minority of appellant, it
lowered the penalty one degree from reclusion perpetua and sentenced appellant to
suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita
J. Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18
years, the penalty next lower than that prescribed by law shall be imposed, but
always in the proper period. However, for purposes of determining the proper
penalty because of the privileged mitigating circumstance of minority, the
penalty of death is still the penalty to be reckoned with. Thus, the proper
imposable penalty for the accused-appellant isreclusion perpetua.148 (Emphasis
supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character
of the crime committed, which would have warranted the imposition of the death
penalty, regardless of whether the penalty actually imposed is reduced to reclusion
perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the
crime has no bearing on the gravity and extent of injury suffered by the victim and her
family.150 The respective awards of civil indemnity and moral damages in the amount
of P75,000.00 each are, therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority
which effectively lowered the penalty by one degree, we affirm the damages awarded
by the Court of Appeals in the amount of P75,000.00 as civil indemnity
and P75,000.00 as moral damages. And, consistent with prevailing
jurisprudence,152 the amount of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse
of the Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with
the law notwithstanding that he/she has reached the age of majority at the time the
judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen
(18) years of age at the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil liability which may
have resulted from the offense committed. However, instead of pronouncing the
judgment of conviction, the court shall place the child in conflict with the law under
suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already
eighteen (18) years of age or more at the time of the pronouncement of his/her
guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the
Court of Appeals held that, consistent with Article 192 of Presidential Decree No. 603,
as amended,154 the aforestated provision does not apply to one who has been
convicted of an offense punishable by death, reclusion perpetua or life
imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision
in Sarcia,156 overturning the ruling inGubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by
the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The
said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended
sentence would not apply to a child in conflict with the law if, among others, he/she
has been convicted of an offense punishable by death, reclusion perpetua or life
imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the
basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor
who has been convicted of a capital offense and another who has been convicted of a
lesser offense, the Court should also not distinguish and should apply the automatic
suspension of sentence to a child in conflict with the law who has been found guilty of
a heinous crime.157
The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402
(Juvenile Justice and Delinquency Prevention Act of 2005) further strengthened the
new position of this Court to cover heinous crimes in the application of the provision
on the automatic suspension of sentence of a child in conflict with the law. The
pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused
with, or may have committed a serious offense, and may have acted with
discernment, then the child could be recommended by the Department of Social
Welfare and Development (DSWD), by the Local Council for the Protection of
62
Children (LCPC), or by [Senator Miriam Defensor-Santiagos] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare,
best interests, and restoration of the child should still be a primordial or primary
consideration. Even in heinous crimes, the intention should still be the childs
restoration, rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on
Children in Conflict with the Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended
sentence can no longer apply to appellant. The suspension of sentence lasts only
until the child in conflict with the law reaches the maximum age of twenty-one (21)
years.161 Section 40162 of the law and Section 48163 of the Rule are clear on the matter.
Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of
the welfare of a child in conflict with the law should extend even to one who has
exceeded the age limit of twenty-one (21) years, so long as he/she committed the
crime when he/she was still a child. The offender shall be entitled to the right to
restoration, rehabilitation and reintegration in accordance with the Act in order that
he/she is given the chance to live a normal life and become a productive member of
the community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is that the
offender committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility
in accordance with Sec. 51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training
Facilities. A child in conflict with the law may, after conviction and upon order of the
court, be made to serve his/her sentence, in lieu of confinement in a regular penal
institution, in an agricultural camp and other training facilities that may be established,
maintained, supervised and controlled by the BUCOR, in coordination with the
DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to the court of
origin to effect appellants confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CAG.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond reasonable
doubt of qualified rape is AFFIRMED with the followingMODIFICATIONS: (1) the
death penalty imposed on the appellant is reduced to reclusion perpetua; and (2)
appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with
Section 51 of Republic Act No. 9344.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
PRESBITERO J. VELASCO, JR.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
Footnotes
1
People v. Antivola, G.R. No. 139236, 3 February 2004, 421 SCRA 587, 598; People v. Nogar, G.R. No. 133946,
27 September 2000, 341 SCRA 206, 217.
2
People v. Trayco, G.R. No. 171313, 14 August 2009, 596 SCRA 233, 253; People v. Paraiso, G.R. No. 131823, 17
January 2001, 349 SCRA 335, 350-351.
3
To maintain the confidentiality of information on child abuse cases, and consistent with the application inPeople v.
Cabalquinto (G.R. No. 167693, 19 September 2006, 502 SCRA 419) of: (1) the provisions of Republic Act No. 7610
(Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) and its implementing
rules; (2) Republic Act No. 9262 (Anti-Violence Against Women and their Children Act of 2004) and its
implementing rules; and (3) this Courts Resolution dated 19 October 2004 in A.M. No. 04-10-11-SC (Rule on
Violence Against Women and their Children), the real name and the personal circumstances of the victim, and any
other information tending to establish or compromise her identity, including those of her immediate family or
household members are withheld.
4
Records, pp. 64-69. Decision dated 26 March 2004 of the Regional Trial Court penned by Judge Ma. Nimfa
Penaco-Sitaca; Id. at 77. Order dated 6 April 2004 of the Regional Trial Court penned by Judge Penaco-Sitaca;
CA rollo pp. 134-159. Decision dated 29 August 2007 penned by Associate Justice Elihu A. Ybaez, with Associate
Justices Romulo V. Borja and Mario V. Lopez concurring.
5
Records, p. 2.
6
The docket no. indicated in the covering of the trial courts record of the case and the majority of the Orders and
other court processes, including the decisions of the Regional Trial Court and the Court of Appeals, is Criminal
Case No. 1679-13-1411.
7
Records, p. 2. Information dated 20 March 2003.
8
Id. at 22. Order dated 15 July 2003.
9
Id at 25. Pre-Trial Order dated 4 August 2003.
10
TSNs, 13 October 2003 and 18 February 2004.
11
TSN, 16 September 2003.
12
TSN, 1 March 2004.
13
TSN, 16 September 2003, pp. 5 and 12.
14
TSN, 13 October 2003, pp. 4-5.
15
TSN, 16 September 2003, pp. 2-3.
16
TSN, 1 March 2004, p. 2.
17
Id.
18
Id. at 8-9.
19
Id. at 3.
20
Id.
In its decision, the trial court translated the testimony in the following manner: "xxx leaving the store at
the same time, he saw Hermie holding the child by the hand and proceeding downward while he
proceeded upward to the house of Lita Lingkay to watch TV." Records, p. 67. Decision dated 26
March 2004.
21
TSN, 13 October 2003, p. 18.
22
Id. at 7 and 14.
23
Id. at 16 and 18.
24
Id. at 6-7.
25
Id. at 16.
26
Id. at 7-8.
27
Id. at 8.
28
Id.
29
Id. at 9.
30
TSN, 16 September 2003, p. 4.
31
Id.
32
Id. at 6.
33
Id. at 4.
34
Id. at 6.
35
Id. at 4 and 6.
36
Id. at 15.
37
Id. at 4 and 15.
38
Id.
39
Id. at 5.
40
Id. at 6.
41
Id.
42
Id.
43
Id.
44
Id. at 7.
45
Id. at 17.
46
TSN, 1 March 2004, pp. 10-11.
47
Id. at 10.
48
Id. at 3.
49
Id.
50
Id. at 4.
51
Id.
52
Id.
63
53
124
54
125
Id. at 5.
TSN, 16 September 2003, p. 7.
Id. at 7-8.
56
Records, p. 9. Medico-legal Certificate issued on 29 January 2003 by the Municipal Health Office.
57
Id.
58
Id. at 12. Medico Legal Certificate issued on 29 January 2003 by the provincial hospital.
59
Id.
60
TSN, 8 January 2004, p. 9; TSN, 9 February 2004, pp. 3-4.
61
Id. at 8.
62
TSN, 22 March 2004, p. 5.
63
Id. at 3.
64
TSN, 2 February 2004, p. 7.
65
Id. at 8.
66
Id.
67
Id.
68
Id. at 2-4.
69
TSN, 9 February 2004, pp. 3-4.
70
TSN, 8 January 2004, p. 7.
71
Id at 6 and 9.
72
Id. at 7.
73
Id. at 8.
74
Id.
75
Id.
76
Id. at 9.
77
Id. at 11.
78
Id. at 10.
79
Id.
80
Id. at 9.
81
Id. at 10.
82
Id. at 11.
83
Id. at 11-12.
84
TSN, 22 March 2004, pp. 2-4.
85
86
Records, pp. 64-69.
87
Id. at 69.
88
Id. at 71-72. Motion to Re-open Trial for Reception of Newly Discovered Evidence of Minority on the Part of the
Accused dated 1 April 2004.
89
Id. at 77. Order dated 6 April 2004.
90
CA Rollo, pp. 32-33. Resolution of the Supreme Court Third Division, 8 September 2004, G.R. No. 163715.
91
CA rollo, p. 158. Decision dated 29 August 2007.
92
Id. at 169. Resolution of the Court of Appeals 22nd Division, 19 November 2007, CA-G.R. CR HC No. 00213.
93
Rollo, p. 36. Resolution of the Supreme Court 2nd Division, 25 June 2008, G.R. No. 182239.
94
Id. at 37-40. Manifestation (In Lieu of Supplemental Brief) of the Accused-Appellant dated 12 August 2008; Id. at
41-44. Manifestation (In Lieu of Supplemental Brief) of the People of the Philippines dated 22 August 2008.
95
CA rollo, p. 92. Brief for the Accused-Appellant dated 25 January 2006.
96
Id. at 95 citing People v. Lagramada, G.R. Nos. 146357 & 148170, 29 August 2002.
97
People v. Dalisay, G.R. No. 188106, 25 November 2009, 605 SCRA 807, 814 citing People v. Glivano, G.R. No.
177565, 28 January 2008, 542 SCRA 656, 662 further citing People v. Malones, 425 SCRA 318, 329 (2004).
98
People v. Cadap, G. R. No. 190633, 5 July 2010 citing People v. Corpuz, G.R. No. 168101, February 13, 2006,
482 SCRA 435, 444.
99
People v. Leonardo, G.R. No. 181036, July 6, 2010; People v. Alcazar, G.R. No. 186494, 15 September 2010.
100
People v. Antivola, supra note 1; People v. Nogar, supra note 1.
101
People v. Trayco, supra note 2.
102
Art. 266-A paragraph 1(d), Revised Penal Code, as amended by Sec. 2 of The Anti-Rape Law of 1997.
103
TSN, 13 October 2003, pp. 7-8.
104
People v. Amatorio, G.R. No. 175837, 8 August 2010.
105
People v. Corpuz, G.R. No. 168101, 13 February 2006, 482 SCRA 435, 448.
106
TSN, 8 January 2004, pp. 2-4,
107
Id. at 3.
108
People v. Castillo, G.R. No. 186533, 9 August 2010, citing People v. Malones, 469 Phil. 301, 325-326 (2004).
109
CA rollo, p. 93. Brief for the Accused-Appellant dated 25 January 2006.
110
People v. Antivola, supra note 1 at 597-598.
111
TSN, 13 October 2003, pp. 7 and 14-16.
112
Records, p. 68. Decision of the Regional Trial Court dated 26 March 2004.
113
People v. Celocelo, G.R. No. 173798, 15 December 2010 citing People v. Fernandez, 426 Phil. 169, 173 (2002).
114
People v. Ayade, G.R. No. 188561, 15 January 2010, 610 SCRA 246, 253.
115
Records, p. 68. Decision of the Regional Trial Court dated 26 March 2004.
116
117
Id. at 6 and 8.
118
Id. at 7.
119
Id. at 7-8.
120
Records, pp. 68-69. Decision of the Regional Trial Court dated 26 March 2004.
121
People v. Antivola, supra note 1.
122
People v. Paraiso, supra note 2.
123
People v. Trayco, supra note 2 at 253 citing People v. Limio, G.R. Nos. 148804-06, 27 May 2004, 429 SCRA
597.
55
Supra note 2.
People v. Trayco, supra note 2 at 351 citing People v. Arlee, G.R. No. 113518, 25 January 2000, 323 SCRA 201;
People vs. Caete, 287 SCRA 490 (1998); People v. Andan, 269 SCRA 95 (1997).
126
Id.
127
People v. Antivola, supra note 1.
128
Id. at 598-599.
129
CA rollo, p. 148.
130
Id. at 149.
131
G.R. No. 169641, 10 September 2009, 599 SCRA 20.
132
Sec. 68. Children Who Have Been Convicted and are Servicing Sentence. Persons who have been convicted
and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18)
years at the time of the commission of the offense for which they were convicted and are serving sentence, shall
likewise benefit from the retroactive application of this Act. x x x
133
People v. Sarcia, supra note 131 at 48.
134
SEC. 6. Minimum Age of Criminal Responsibility. - xxx
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.
xxxx
135
Madali v. People of the Philippines, G.R. No. 180380, 4 August 2009, 595 SCRA 274, 296 citing the Rule on
Juveniles in Conflict with the Law
136
Id. at 296-297.
137
Remiendo v. People of the Philippines, G.R. No. 184874, 9 October 2009, 603 SCRA 274, 289.
138
Id. citing Llave v. People, G.R. No. 166040, 26 April 2006, 488 SCRA 376.
139
CA rollo, p. 151.
140
Records, pp. 73-74. Certificate of Live Birth and Certification from the Municipal Office of the Civil Registrar
issued on 30 March 2004.
141
Paragraph 6, sub-paragraph 5, Article 266-B of the Revised Penal Code, as amended by The Anti-Rape Law of
1997.
142
Sec. 1, Republic Act No. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines).
143
ART. 68 Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor
under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80
of this Code, the following rules shall be observed:
1. xxx
2. Upon a person over fifteen and under eighteen yeras of age the penalty next lower than that
prescribed by law shall be imposed, but always in the proper period.
144
G.R. No. 166401, 30 October 2006, 506 SCRA 168.
145
Id. at 215.
Article 71 of the Revised Penal Code provides:
ART. 71. Graduated scales. - In the cases in which the law prescribes a penalty lower or higher by
one or more degrees than another given penalty, the rules prescribed in article 61 shall be observed
in graduating such penalty.
xxxx
The courts, in applying such lower or higher penalty, shall observe the following graduated scales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
xxxx
146
CA rollo, p. 154.
147
People v. Sarcia, supra note 131.
148
Id. at 41.
149
Id. at 45.
150
Id. at 43.
151
Id. at 46.
152
Id. citing People v. Regalario, G.R. No. 174483, 31 March 2009, 582 SCRA 738.
153
G.R. No. 159208, 18 August 2006, 499 SCRA 341.
154
Art. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the evidence in the
proper proceedings, the court should find that the youthful offender has committed the acts charged against him,
the ocurt, shall determine the imposable penalty, including any civil liability chargeable against him. However,
instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that
the best interest of the public, as well as that of the offender will be served thereby, may suspend all further
proceedings and commit such minor to the custody or care of the Department of Social Welfare and Development
or to any training institution operated by the government or any other responsible person until he shall have
reached twenty-one years of age, or for a shorter period as the court may deem proper, after considering the
reports and recommendations of the Department of Social Welfare and Development or the government training
institution or responsible person under whose care he has been committed.
64
Upon receipt of the application of the youthful offender for suspension of his sentence, the court may
require the Department of Social Welfare and Development to prepare and submit to the court a
social case study report over the offender and his family.
The youthful offender shall be subject to visitation and supervision by the representative of the
Department of Social Welfare and Development or government training institution as the court may
designate subject to such conditions as it may prescribe.
The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension
of sentence under its provisions or to one who is convicted for an offense punishable by death or
life imprisonment or to one who is convicted for an offense by the Military
Tribunals. (Emphasis supplied.)
155
156
People v. Sarcia, supra note 131.
157
Id. at 49-50.
158
Id. at 50 citing Senate Bill No. 1402 on Second Reading by the 13th Congress, 2nd Regular Session, No. 35,
held on 9 November 2005, amendments by Senator Miriam Defensor-Santiago.
159
Id.
160
Section 48. Automatic Suspension of Sentence and Disposition Orders. If the child is found guilty of the
offense charged, the court, instead of executing the judgment of conviction, shall place the child in conflict with the
law under suspended sentence, without need of application. Suspension of sentence can be availed of even if the
child is already eighteen years (18) of age or more but not above twenty-one (21) years old, at the time of the
pronouncement of guilt, without prejudice to the childs availing of other benefits such as probation, if qualified, or
adjustment of penalty, in the interest of justice.
The benefits of suspended sentence shall not apply to a child in conflict with the law who has once
enjoyed suspension of sentence, but shall nonetheless apply to one who is convicted of an
offense punishable by reclusion perpetua or life imprisonment pursuant to the provisions of
Rep. Act No. 9346 prohibiting the imposition of the death penalty and in lieu thereof, reclusion
perpetua, and after application of the privileged mitigating circumstance of
minority. (Emphasis supplied.)
161
People v. Sarcia, supra note 131at 50.
162
Sec. 40. Return of the Child in Conflict with the Law to Court. xxx
If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period
or until the child reaches the maximum age of twenty-one (21) years. (Emphasis supplied.)
163
Section 48. Automatic Suspension of Sentence and Disposition Orders.
xxxx
If the child in conflict with the law reaches eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with the provisions
of Republic Act No. 9344, or to extend the suspended sentence for a maximum period of up to
the time the child reaches twenty-one (21) years of age, or to order service of
sentence. (Emphasis supplied.)
164
People v. Sarcia, supra note 131at 51.
165
Id. at 52.

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1

Republic of the Philippines

in self-defense, there must be an actual, sudden and unexpected attack or imminent

Republic of the Philippines

The instrument of the crime, the knife, Exhibit "B", is confiscated in

10 TSN, supra, pp. 33-39.

Republic of the Philippines

Thereafter, the two policemen, accompanied by several persons,

threatened his immediate relatives with a bolo, suddenly and

Original Records (OR), 1; Rollo, 4.

G.R. Nos. L-33466-67 April 20, 1983

property is an indispensable element where an accused pleads self-defense but what

SANDIGANBAYAN and OFFICE Promulgated:

Arraignment and Ple

The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as

The Sandiganbayans Ruling

A policeman in the performance of duty is justified in using such force as is

The elements of self-defense are as follows:

While self-defense and performance of duty are two distinct justifying

On the other hand, the requisites of fulfillment of duty are:

The accused acted in the performance of a duty or in the

The injury caused or the offense committed be the necessary

In People v. Lagata,[19] a jail guard shot to death a prisoner whom he

Undoubtedly, the policemen were in the legitimate performance of their duty

Fulfillment of Duty was Complete, Killing was Justified

Again, it was in the lawful performance of his duty as a law

We disagree with the Sandiganbayan.

The Sandiganbayan, however, ruled that despite Valinos possession of a

For what is the purpose of a warning? A warning is issued when policemen

The Necropsy Report[35] also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at

The Autopsy Report[34] confirms the location of the gunshot wounds, as

The doctors who testified on the Autopsy[36] and Necropsy[37] Reports

HILARIO G. DAVIDE, JR.

Under Rule 45 of the Rules of Court.

Calderon v. People and Court of Appeals, 96 Phil. 216 (1954).

Package Contract No. 2

compliance, without hesitation nor any question, with the MARCOS

In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be

*Q Any other entity?

Records, Vol. I, pp. 119-120.

Republic of the Philippines

relatives brought Dalisay to the Batangas Hospital, but Dalisay was

National Police testified that on January 20, 1992, she administered a

The defense of insanity or imbecility must be clearly proved, 10 for there is a

A After the stabbing of Andres at the back by Alberto,

Republic of the Philippines

incident because of accused-appellants threats should she report the incident to

G.R. No. 180380

Upon investigation, Jovencio narrated the incident and pointed to Raymund,

Appellant Raymund Madali is declared

Appellant Rodel Madali is found guilty of

In addition to the civil indemnity imposed by

Hence, the instant case.

The testimony of Jovencio was substantiated by the medical findings

A: I do not know but he is known as Andrade.

Petitioners also place much premium on the alleged contradiction between

The Court of Appeals awarded P50,000.00 as civil indemnity and

Discernment is that mental capacity of a minor to fully appreciate the

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

SEC. 38. Automatic Suspension of Sentence. Once the

Rule on Juveniles in Conflict with the Law.