CRIMINAL LAW (CASE 21)

PEOPLE VS. DAGATAN 106 PHIL 88

SYLLABUS
1. EVIDENCE; ALIBI; WHEN DEFENSE CAN PROSPER; CASE AT BAR. In order that the
defense of alibi, which is easily and conveniently manufactured, could prosper, it must be so convincing
as to preclude any doubt that the accused could not have been physically present at the place of the crime
or its immediate vicinity at the time of its commission. In the case at bar, while the appellants loosely told
the court that they were in Carmen, Cebu, when the crime was being committed, they however, failed to
present credible and tangible evidence that it was physically impossible for them to be at carmen at that
time. Ont eh contrary, they themselves furnished evidence that Carmen is only 40 kilometers between the
two places.
2. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; VINDICATION OF A GRAVE OFFENSE
AND OBFUSCATION. The lower court considered in appellants favor two mitigating circumstances,
namely, that of having committed the crime in the immediate vindication of a grave offense to their sister,
and that they acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
But these two circumstances cannot be considered not only because the elopement of appellants sister
took place long before the commission of the crime, but also because the deceased was not the one who
eloped with and abandoned her. Furthermore, and as correctly pointed out by the Solicitor-General, these
two mitigating circumstances cannot be counted separately and independently (People v. Yaon, 43 Off.
Gaz., 4142).
DECISION
ENDENCIA, J.:
This case was certified to us by the Court of Appeals upon the finding set in its Resolution of April 16,
1956.
"Julio Dagatan, Sergio Dagatan and Saturnino Dagatan were charged for murder before the Court of First
Instance of Cebu in an information filed on October 6, 1937. That case after hearing was submitted for
decision, but the trial judge failed to dispose of the same, and when the last war broke out, all the records
thereof, except the docket entry, were destroyed.
"On February 22, 1949, the Provincial Fiscal filed a motion before the Court of First Instance of Cebu,
praying that the original records of the case be reconstituted; that defense counsel Filemon Sotto be
ordered to produce all copies of pertinent papers, if any, in his possession regarding the case; that if
defense counsel had no more copies of said papers, to allow the Provincial Fiscal to file a new
information against Sergio Dagatan and Saturnino Dagatan, because Julio Dagatan had died during the
last war; and that the evidence be taken anew.
"As the defense counsel failed to appear and produce the copies of the pertinent papers of the case, a new
information was filed on August 8, 1949, in the Court of First Instance of Cebu, charging said Sergio and
Saturnino, surnamed Dagatan, with the crime of murder. The defense then filed a motion for dismissal of
the case on the alleged ground of jeopardy, which was granted by the court, but the matter was taken to
the Supreme Court by appeal of the Fiscal and the Highest Tribunal of the land reversed the order
appealed from and remanded the case to the lower court for further proceedings. Then a hearing was held
and after submission of the evidence by both the prosecution and the defense, the Court rendered
judgment on April 12, 1954, finding both defendants guilty as charged in the information and sentencing
each and every one of them to from 6 years and 1 day of prision mayor to 17 years, 4 months and 1 day of
reclusion temporal, to indemnify the family of the deceased, Victorio Ceniza, jointly and severally in the
sum of P3,000.00, and to pay the costs. From this verdict defendants appealed to this Court.
"It is to be noted in this connection that the circumstances attending the commission of the offense of
murder that may be taken into consideration for appreciation in the case at bar, are the following: the
qualifying circumstance of evident premeditation, which was used to raise the crime from homicide to
murder; the aggravating circumstance of taking advantage of superior strength (Art. 14, No. 5, RPC) and
nighttime (Art. 4, No. 6, RPC), and the mitigating circumstances, appreciated by the lower court, to wit:
that the act was committed in the proximate vindication of a grave offense to the one committing the
felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives
by affinity within the same degrees (Art. 13, No. 5, RPC); and that of having acted upon an impulse so
powerful as naturally to have produced passion or obfuscation (Art. 13, No. 6, RPC).
"It appears from the record that the motive of the crime was to vindicate an offense against the honor of
the offenders and their sister Lucia Dagatan, because the latter eloped with one Eleuterio Yara who later
on abandoned her, and it is claimed that the deceased, a very good friend of said Yara, assisted him in the
elopement. It must be stated at this juncture that the deceased was not the one who dishonored their sister
and, anyway, the crime at bar was committed quite a long time after the elopement and abandonment of
appellants sister by his [her] seducer, and even assuming that this circumstance could be appreciated in
this case, yet, as stated by the Solicitor General, it cannot be counted separately from the other
circumstance of passion or obfuscation (People v. Yaon, 43 Off. Gaz., 4142). Moreover, it may be argued
against the appreciation of passion and obfuscation that the motive of the crime herein prosecuted took
place quite a long time before its commission, aside from the fact that we entertain serious doubts as to its
compatibility with the qualifying circumstances of evident premeditation.
"Because of the foregoing considerations, we are of the opinion and so hold that the penalty that shall be
imposed upon each of the defendants in case of conviction, is one not less than reclusion perpetua, a
penalty which, according to the Judiciary Act of 1948, falls beyond the jurisdiction of this Court to
impose."cralaw virtua1aw library
The testimony of the witnesses for the prosecution established the following facts: On June 11, 1937, at
about eleven oclock in the evening, after Victorio Ceniza and Leodegario Into had made their purchases
in the market of Moacboac, municipality of Carmen, Cebu, these two young men walked side by side
along the national highway towards their home at Carmen. When they were approaching the Dawis bridge
in Carmen, Into noticed two men sitting on the railing of the bridge which he recognized as Sergio
Dagatan and Saturnino Dagatan, brothers. Suddenly Sergio attacked Victorio with a wooden cane about 4
1/2 feet long and 1 1/4 inches in diameter, hitting him on the shoulder, and Saturnino helped his brother in
beating up Victorio, using a handy leather-covered rod containing a hard metal at its end, locally known
as "caborrata." The victim fell right then and there, unconscious. The Dagatan brothers placed the limp
body of Victorio in the middle of the road to make it appear that it was hit by an automobile, but Sergio,
on second thought, said "Let us throw him out to the sea in order that they would believe he died by
drowning," so Sergio threw the body into the water. When Leodegario Into saw that his companion was
being beaten up by the two brothers, he started to run, but he was held by Julio Dagatan, now deceased,
father of Sergio and Saturnino, who appeared at the scene. Sergio wanted to kill Into, but the father
dissuaded his son saying, "Dont kill him because he is my relative and he has no fault at all." Having
seen what had happened, Into was taken to the house of the Dagatans and were seen walking together by
Enrique Puno, now deceased. On the way, Julio told Into that they had to kill Victorio Ceniza because the
latter had besmirched the reputation of the Dagatan family for having been instrumental in the elopement
of his daughter Lucila Dagatan with Eleuterio Yara, Cenizas first cousin, who later abandoned her and
returned to Leyte. Once in the house of the Dagatans, Sergio again wanted to kill Into, but again Julio
said, "Let us not kill him; we will just caution him on pain of life that if this happening would come to the
knowledge of the Government authorities, we are going to kill him." Into passed the night in the house of
the Dagatans, and on the following morning he was allowed to go home after giving him some fresh fish
to take to his father so that he would not be scolded. Before Into boarded the truck towards Carmen, he
was again given a parting warning not to tell the authorities about the incident. The truck had to stop by
the Dawis bridge as there were many people curiously looking at the floating body in the creek near the
bridge, but Into did not say a word but merely looked on, remembering the warning of the Dagatans.
Neither did he say anything to his parents about the incident when he reached home.
On that same morning, June 12th, Domingo F. Buot, then chief of police of Carmen, was notified by one
Florentina Laping, now deceased, that there was a body floating in the creek. He hurried to the place and
saw the body of Victorio Ceniza whom he knew personally. There was already a crowd of people viewing
the floating corpse, among whom was Isabelo Neis who took pictures thereof (Exhs. D and E). The chief
of police then notified the justice of the peace and the president of the sanitary division, Dr. Mercado, and
the body was removed to the house of the mother of the deceased. Autopsy was made by Dr. Mercado,
between 9:00 and 10:00 that morning, who found that
(a) The immediate cause of death was drowning - the lungs and stomach had plenty of water;
(b) Contusions on different parts of the body caused before the body was thrown into the water;
(c) The humerous bone of the left arm was broken, caused by a hard and blunt instrument like a cane or
"caborrata;"
(d) The victim was still alive, although unconscious, when thrown into the water.
Police investigation revealed that the last person with whom the deceased was seen before his death was
Leodegario Into. When taken in for questioning, Into told everything he knew about the crime, which led
to the prosecution of herein appellants. In the course of his investigation, the chief of police found the
"caborrata," the middle portion of which was broken, hanging on a post in the house of the Dagatans.
Appellants defense is alibi. They contend that on the night in question they were not in Dawis bridge in
Carmen, but in the City of Cebu, which is about 40 kilometers from the scene of the crime.
Testifying in his behalf, Sergio Dagatan told the court that he has been a driver of the A & B Taxicab of
the city of Cebu since 1924; that at any time on June 11, 1937, he did not go to Carmen because from
about 8:00 oclock in the morning of June 10th up to about the same hour of the following morning, or a
24-hour stretch, he was on duty driving the A & B taxi within the city of Cebu; that the practice of the
company was to assign two drivers to a given car, who take turns in driving it for 24 straight hours; that
his partner assigned to drive the same car was Roberto Remolisan; that at about past 8:00 oclock in the
morning of June 11th, after turning over his receipts of the previous day to Genaro Cabahug of the A & B
Taxi, he took his breakfast in a nearby restaurant and then went to sleep in the upper part of the garage
where drivers sleep or rest; that he did not return to his home at the barrio of Pag-utlan, municipality of
Danao, which is about 33 or 34 kilometers from Cebu city, because he had to wait for his wife and his
brother Epifanio Dagatan who was taking a boat that evening from Cebu to go to Manila; that as a matter
of fact he and his wife conducted his brother Epifanio to the wharf to see him off; that he did not go out of
the city of Cebu during the whole day of June 11th, but slept in the company garage with his wife and
small child. He also stated that he did not know the deceased Victorio Ceniza nor witness Leodegario
Into, but that he knew their names only when this case was first heard before Judge De la Rama.
On cross-examination he admitted that he has a house in the barrio of Pag-utlan, municipality of Danao,
and that he lives with his family there; that Danao is about 34 kilometers from Cebu and about 7
kilometers from Carmen; that he was off-duty on the 11th, and although he was free to go home to Danao,
he preferred to stay and sleep in the company garage in Cebu because, at any rate, he would again be on
duty for 24 hours in the following morning, June 12th; that he used to go home to Danao when off-duty
unless he had an important engagement in Cebu, like the occasion when his brother had to leave for
Manila.
Saturnino Dagatan, testifying in his behalf, stated that he was also a driver of the A & B Taxi in Cebu;
that on June 11, 1937, he was driving a taxi within Cebu and did not go outside the city; that he has not
gone to Carmen the evening of June 11th; that everytime he drove his taxi, he was given a ration of 10
liters of gasoline which, if he went out of the city, had to be replaced and permission had to be sought
from the company; that from Cebu to Carmen the car would consume about 10 liters of gasoline; and that
he could not have been to the place of the crime because he was in Cebu from six to twelve oclock that
evening.
On cross-examination, however, he admitted that there were many buses, trucks and jeepneys plying
between Cebu and Carmen; that if he were to drive himself, it would take him only forty minutes to get to
Carmen from Cebu; that Exhibits 2 and 2-A are samples of the company from wherein the trips and taxi
fares are recorded; that Exhibit 2 is kept by the company, while Exhibit 2-A is retained by the driver; that
the records of the company were presented in court at the first hearing and were seen by Judge De la
Rama.
To corroborate them, appellants presented Genaro Cabahug, the person in charge of the company at the
time, who testified that as a general practice of the taxicab company, drivers were only allowed to drive
within the city of Cebu; that if they had to go beyond the city limits they had to notify the office, and that
if they needed more gasoline for the trip, they had to ask for additional ration; that the company had a
place in the upper part of the garage wherein drivers who do not live in the City of Cebu rest and wait for
their turns; that on June 11th, 1937, he remembers that Sergio Dagatan was in the resting place in the
garage, and that Saturnino was on duty until the latter was relieved the following morning; that Sergio
was not driving that evening because it was Saturnino who was on duty, and that these two were driving
the same car, so that if one was driving, the other was off-duty.
On cross-examination, he told the court that the company had 36 drivers for the 18 cars; that he cannot
recall the exact whereabouts of each and every one of the 36 drivers on that particular day, but that he
remembers particularly those of Sergio and Saturnino Dagatan because of the incident that happened
which is of importance to his (witness) family, the deceased being a distant relative of his; that he cannot
remember even the names of the 16 other drivers on duty on the day in question except herein appellants;
neither could he remember the companions of Sergio while the latter was resting in the garage, but that he
only presumed he had companions because the practice was that drivers living outside the city take their
rest in that place and wait for their turns; that Sergio is from the municipality of Danao and had his family
there; that he does not know where Saturnino was at 6:00 oclock that evening and does not remember
where he was at 10:00 oclock on the same night, although he maintains that Saturnino was within the
city of Cebu because every time a driver goes beyond the city limits, he has to notify the office for advice,
and that if their gasoline is not enough for the trip, he has to ask for additional gasoline; neither does he
remember where Saturnino was at 12:00 oclock that midnight, but that he presumed he was within the
city in accordance with company record which had been presented at the former trial, although it was
possible that even if it is recorded in the company books that Saturnino was driving within the city, he
could have left the taxi in some corner under the pretext that he is within the city, and could have taken a
bus out of the city.
Appellants alibi does not merit serious consideration by the Court. Time and again we have held that in
order that this kind of defense, which is easily and conveniently manufactured, could prosper, it must be
so convincing as to preclude any doubt that the accused could not have been physically present at the
place of the crime or its immediate vicinity at the time of its commission. In this particular case,
appellants loosely told the court that at around eleven oclock on the night of June 11, 1937, they were not
in Carmen when the crime was being committed because they were in Cebu. They, however, failed to
present credible and tangible evidence that it was physically impossible for them to be at Carmen at that
time. On the contrary, they themselves furnished evidence that Carmen is only about 40 kilometers from
Cebu city, with abundant means of transportation such as buses, jeepneys and trucks plying between the
two places, which would at most take an hour to go from one place to the other, and according to
Saturnino himself, it would only take him 40 minutes if he were to drive the car himself. With respect to
Sergios assertion that he slept at the company garage with his wife and child on the night in question, his
word alone, devoid of corroboration, is not enough to justify its veracity and credibility, for he admitted
that when he was not on duty, he used to go home to his family at the barrio of Pag-utlan, Danao, which is
about 33 kilometers from Cebu and some 7 kilometers from the scene of the crime, unless he had an
important engagement to attend to in Cebu. Assuming that he really slept in the garage in Cebu, it was not
impossible for him to go to Carmen with his brother Saturnino at around ten oclock. Anent Saturninos
testimony that he was on duty from 8:00 oclock in the morning of June 11th up to the following
morning, driving his taxi within the city of Cebu, his defense bolsters the contention of the prosecution
that he participated in the killing of the deceased rather than helps his defense, for he could have driven
his taxi, with his brother Sergio, to Carmen in just 40 minutes to commit the crime, and then return to
Cebu soon thereafter, without Genaro Cabahug knowing his whereabouts, for, according to Cabahug
himself, there was no way of tracing the movement of each and every driver on duty despite the standing
practice that they must notify the office whenever they made trips outside the city, but that it was possible
for such driver, particularly for Saturnino, to leave his taxi in a certain corner in Cebu and take another
transportation to Carmen without the company knowing about it.
On the other hand, Leodegario Intos positive testimony that he saw the Dagatan brothers beat up the
deceased with a cane and "caborrata" at the Dawis bridge and throw him into the water is corroborated by
the pictures Exhibits D and E and by the unrefuted testimony of the chief of police who stated that he
found the "caborrata" broken at the middle, hanging in a post of the house of the Dagatans. There is no
room for doubting, therefore, that appellants committed the crime as charged.
With respect to the defense of double jeopardy invoked by appellants, suffice it to say that the same has
already been passed upon by us when this case was first brought before this Court on this point (G. R. L-
4396, October 30, 1951), * wherein we held that jeopardy had not set by reason of the fact that the failure
of Judge De la Rama to decide the case after its submission for decision, did not terminate the case either
by dismissal or by conviction.
The lower court in sentencing appellants to an indeterminate sentence of from 6 years and 1 day of prision
mayor to 17 years, 4 months and 1 day of reclusion temporal, considered in their favor two mitigating
circumstances, namely, that of having committed the crime in the immediate vindication of a grave
offense to their sister Lucila Dagatan (par. 5, Art. 13, RPC), and that they acted upon an impulse so
powerful as naturally to have produced passion or obfuscation (par. 6, Art. 413, RPC). But these two
circumstances cannot be considered not only because the elopement of Lucila Dagatan with Eleuterio
Yara and her abandonment by the latter took place long before the commission of the crime, but also
because the deceased was not the one who eloped with and abandoned her. Furthermore, and as correctly
pointed out by the Solicitor-General, these two mitigating circumstances cannot be counted separately and
independently (People v. Yaon, 43 Off. Gaz., 4142). On the other hand, we find duly proven the
aggravating circumstances of nighttime, superior strength and treachery which qualify the crime as
murder, and following Art. 248, in relation to Art. 64 of the Revised Penal Code, the penalty that should
be imposed upon appellants is reclusion perpetua.
Wherefore, with the modification of the penalty imposed, the judgment appealed from is affirmed in all
other respects.
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CRIMINAL LAW (CASE 22)
PEOPLE vs. DIOKNO 63 PHIL 601

VILLA-REAL, J.:

Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First
Instance of Laguna, the dispositive part of which reads as follows:

In view of the foregoing considerations, the court finds the accused Epifanio Diokno and
Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences
each of them to reclusion perpetua, to indemnify jointly and severally the heirs of the
deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered.

In support of their appeal, the appellants assign the following alleged errors as committed by the
court a quo in its judgment in question, to wit:

1. The lower court erred in accepting Exhibit E as evidence.

2. The lower court erred in admitting Exhibit K as evidence.

3. The lower court erred in not acquitting the appellant Roman.

4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.

The following facts have been proven beyond a reasonable doubt during the trial:

The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in
the morning of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a
year, invited the latter to go with her. Yu Hiong accepted the invitation but he told Salome that
her father was angry with him. Salome answered him: "No matter, I will be responsible." At
about 6 o'clock in the afternoon of said day, Yu Hiong and Salome Diokno took an automobile
and went to the house of Vicente Verina, Salome's cousin, in Pagbilao. As they found nobody in
the house, they went on their way up to San Pablo, Laguna. On January 5th or 6th of said year,
Roman Diokno telegraphed his father Epifanio Diokno, who was in Manila, informing him that
Salome had eloped with the Chinese Yu Hiong. On the morning of January 7, 1935, Epifanio
Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been
informed that the latter were stopping at the house of Antonio Layco, they went there. Upon
arriving near the house, they saw Yu Hiong coming down the stairs. When Yu Hiong saw them,
he ran upstairs and they pursued him. As the Chinese found the door of the house locked, he
shouted that it be opened for him. At that moment, he was overtaken by the accused who carried
knives locally known as balisong, of different sizes. Yu Hiong fell on his knees and implored
pardon. In that situation Roman Diokno stabbed him with the knife in the back and later in the
left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of the stairs in the
balcony, and there he was again stabbed repeatedly. Then Roman Diokno said: "Enough, father."
Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in
front of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police
to come. Upon hearing the shots, municipal policeman Francisco Curabo appeared and found Yu
Hiong pale and lying on the landing of the stairs. He then asked who had wounded the Chinese
and the accused Epifanio Diokno answered that it was he. The policeman took the knife (Exhibit
C) which Epifanio Diokno carried in his right hand and brought him to police headquarters.
Roman Diokno had left before the policeman arrived and he was not located until after three
days. The municipal president of San Pablo, Laguna, also went to the scene of the crime, found
the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E. The
Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs.
David Evangelista and Manuel Quisumbing, who found that he had five incised wounds in
different parts of the body, one of them at the back and about three and a half inches long,
piercing the pleura and penetrating the lower lobe of the right lung about an inch, which wound
was necessarily mortal and which caused the death of the victim. On January 8, 1935, while the
said Chinese was in a serious condition in the hospital, he made a statement telling how he was
attacked by the accused (Exhibit K).

The accused, testifying as witnesses in their own behalf, stated that they had not gone to San
Pablo together on the day in question; that when Roman Diokno arrived, his father Epifanio
Diokno was coming down the stairs of Antonio Layco's house with a knife in his hand; that
Epifanio Diokno told his son Roman to go home and tell their relatives what had happened; that
when Epifanio Diokno overtook Yu Hiong on the landing of the stairs of Antonio Layco's house,
he asked Yu Hiong whether he was willing to marry his daughter; that the Chinese answered him
in the negative and at the same time tried to take something from his pocket; that as Epifanio
knew that Yu Hiong carried a revolver, he feared the Chinese might harm him; he became
obfuscated, drew his knife and knew not what happened afterwards.

The first question to be decided in the present appeal is whether or not the court a quo erred in
admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal
president of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at
about 1.30 p. m. on January 7, 1935, and wherein Yu Hiong, answering the questions asked by
said municipal president, stated that it was Ramon Diokno and Epifanio Diokno who had
wounded him.
It is argued by the defense that said document Exhibit E should not be admitted on the ground
that some words had been altered and because it has not been proven that declarant had a sense
of impending death.

It does not appear that said document was altered after it had been signed, but on the contrary,
municipal president Jacinto Peaflor, upon being cross-examined by the defense, declared that he
neither erased any word nor put another in its place after said document had been finished.

The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the
municipal president's questions, does not make his declaration inadmissible. It is enough if, from
the circumstances of the case, it can be inferred with certainty that such must have been his state
of mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was
semiconscious as a result of the wounds received by him and, consequently, he could not have
the hope to live when he made his declaration immediately after he was mortally wounded. But
even if the document Exhibit E were not admissible as an ante mortem declaration, it is
admissible as a part of the res gest because it was made under circumstances so proximate to
the incident that it may be considered as a part thereof. (People vs. Portento and Portento, 48
Phil., 971; People vs. Palamos, 49 Phil., 601.)

The first assignment of alleged error is, therefore, untenable.

With respect to the second assignment of alleged error consisting in that the court a quo erred in
admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that
when the declarant made it he was aware of impending death and that he did not die until three
days after making it, all that has been said relative to Exhibit E, which is the subject matter of the
first assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense
that it is admissible as an ante mortem declaration. Furthermore, when the deceased made the
declaration Exhibit K, he complained of great difficulty in breathing and of being very ill. The
fact that he did not die until three days later neither implies that he had no sense of impending
death when he made his declaration because he did not improve thereafter but became worse
until he died; nor detracts from its character of an ante mortem declaration because what gives
the declaration such character is the declarant's conviction, upon making it, that he is not going
to live (U. S. vs. Mallari, 29 Phil., 14).

The third assignment of alleged error consists in the failure of the court a quo to acquit the
appellant, Roman Diokno.

The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the
different dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused
by two instruments of different sizes, and the ante mortem declarations (Exhibits E and K) of the
deceased, leave no room for doubt that Roman Diokno cooperated with his father and stabbed
the deceased Yu Hiong with a knife in different parts of the body. Furthermore, the deceased
stated in his ante mortem declaration (Exhibit K) that it was Roman Diokno who inflicted the
necessarily mortal wound in his back, which caused his death.
We find the fourth assignment of alleged error well founded. The circumstance of abuse of
superior strength, qualifying the crime of murder, which the trial court found to have been
proven, has not been established beyond a reasonable doubt. In the case of United States vs.
Devela (3 Phil., 625), this court said that "the mere fact that the number of the assailants is
superior to that of those attacked by them is not sufficient to constitute the aggravating
circumstance of abuse of superiority." In this case we have the photographs of the body of the
deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no
evidence of the physical constitution of the accused Epifanio Diokno and Roman Diokno.
Therefore, we cannot determine whether or not said accused were physically stronger than the
deceased and whether or not they abused such superiority.

Neither does this court find the existence of the other circumstance qualifying murder, that is,
evident premeditation, proven beyond a reasonable doubt because, even assuming that both the
accused went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong,
it being customary for the people of said province to carry it, it cannot be inferred with certainty
from the mere fact that they carried knives that their intention in going to San Pablo was to look
for the deceased in order to kill him. In order that premeditation may be considered either as an
aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the
intention to kill must be manifest and it must have been planned in the mind of the offender and
carefully meditated. It is not enough that it arose at the moment of the aggression.

Therefore, there having been neither abuse of superior strength nor evident premeditation, the
crime committed by the accused is simple homicide.lwphi1.nt

The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is,
immediate vindication of a grave offense to said accused, may be taken into consideration in
favor of the two accused, because although the elopement took place on January 4, 1935, and the
aggression on the 7th of said month and year, the offense did not cease while Salome's
whereabouts remained unknown and her marriage to the deceased unlegalized. Therefore, there
was no interruption from the time the offense was committed to the vindication thereof. Our
opinion on this point is based on the fact that the herein accused belong to a family of old
customs to whom the elopement of a daughter with a man constitutes a grave offense to their
honor and causes disturbance of the peace and tranquility of the home and at the same time
spreads uneasiness and anxiety in the minds of the members thereof.

The presence of the sixth mitigating circumstance of said article 13, consisting in having acted
upon an impulse so powerful as naturally to have produced passion or ofuscation, may also be
taken into consideration in favor of the accused. The fact that the accused saw the deceased run
upstairs when he became aware of their presence, as if he refused to deal with them after having
gravely offended them, was certainly a stimulus strong enough to produce in their mind a fit of
passion which blinded them and led them to commit the crime with which they are charged, as
held by the Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9,
1898, February 8, 1908, May 25, 1910, July 3, 1909, and in other more recent ones.
The seventh circumstance of article 13 of the Revised Penal Code, consisting in having
surrendered himself immediately to the agents of persons in authority, should also be taken into
consideration in favor of the accused Epifanio Diokno.

In view of the foregoing considerations, this court concludes that the accused are guilty beyond a
reasonable doubt of the crime of homicide defined and punished in article 249 of the Revised
Penal Code, the penalty prescribed therein being reclusion temporal in its full extent. Three
mitigating circumstances must be taken into consideration in favor of the accused Epifanio
Diokno and two in favor of the accused Roman Diokno, with no aggravating circumstance, thus
authorizing the imposition of the penalty next lower to that prescribed by law (reclusion
temporal in its full extent), or prision mayor in its full extent, in the period that this court deems
applicable, which is the medium period in this case, in accordance with the provisions of article
64, rule 5, that is eight years and one day of prision mayor.

Both accused should be granted the benefits of the indeterminate sentence provided in Act No.
4103, as amended by Act No. 4225, which prescribes a penalty the minimum of which shall be
taken from that next lower to prision mayor, or prision correccional of from six months and one
day to six years. Taking into account the circumstances of the case, the indeterminate penalty to
which each of said accused must be sentenced is fixed at from two years and one day of prision
correccional to eight years and one day of prision mayor, crediting each with one-half of the
time during which they have undergone preventive imprisonment (art. 29, Revised Penal Code).

Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the
crime of homicide and sentences each of them to an indeterminate penalty from two years and
one day of prision correccional to eight years and one day of prision mayor, crediting them with
one-half of the time during which they have undergone preventive imprisonment, and to
indemnify the heirs of the deceased in the sum of P1,000, with the costs of both instances. So
ordered.

Avancea, C. J. Abad Santos, and Imperial, JJ., concur.

Separate Opinions

LAUREL, J., concurring and dissenting:

I accept the conclusion of the majority of my brethren that the crime committed by the
defendants and appellants was simple homicide as the existence of either the qualifying
circumstance of evident premeditation (art. 14, par. 13, Revised Penal Code) or that of abuse of
superior strength (art. 14, par. 15, Revised Penal Code), has not been clearly established. The
mere fact that the two appellants were both armed with balisong knives and that the deceased
knelt before them and implored forgiveness for what he had done is not in my opinion,
necessarily conclusive of the concurrence of abuse of superior strength in the commission of the
crime (besides U. S. vs. Devela, 3 Phil., 625, 629, vide I Viada, Codigo Penal, pp. 278, 279). To
constitute abuse of superior strength, it is necessary to show with sufficient clearness (People vs.
Trumata and Baligasa, 49 Phil., 192, 194), that the aggressors, individually and collectively,
were greatly superior in strength to the offended party (People vs. Dayug and Bannaisan, 49
Phil., 423, 427).

For the reason given in the majority opinion, I also agree to the taking into account of the
mitigating circumstance of the appellants having acted upon an impulse powerful as natural to
have produced passion or obfuscation (art. 13, par. 6, Revised Penal Code).

I also agree in according to the appellant, Epifanio Diokno, the mitigating circumstance of
voluntary surrender. (Art. 13, par. 7, Revised Penal Code.)

I am of the opinion, however, that the mitigating circumstance of immediate vindication of a

grave offense (art. 13, par. 5, Revised Penal Code) should not be considered in favor of the
appellants. It should be observed that the proximate cause of the tragedy was the elopement of
Salome, the daughter of Epifanio and the sister of Roman. Salome and the deceased had been
engaged for about a year and the evidence shows that the elopement took place at the instance of
Salome herself. Under existing legislation, a woman eighteen years of age or over, can contract
marriage without the consent of her parents. If she leaves the parental home for this purpose,
neither she nor her lover commits any offense. Under the doctrine laid down by the majority in
the present case, if a woman thirty or more years of age should leave the parental home for the
purpose of marrying or for some kind or species of that romance described by Tennyson in his
Idylls of the King or by Scott in his Lay of the Last Minstrel, against the wishes of her parents,
and her father or brother should, in hot pursuit, overtake the impassioned Romeo and kill him on
the spot, the enraged assailant or assailants would be accorded the benefit of the mitigating
circumstance of having acted in immediate vindication of a "grave offense" committed against
them, notwithstanding the maturity or overmaturity in age of the woman and the fact that the
elopement was had at her instance and upon her invitation. It seems to me that the interpretation
is not in keeping with the mores of the times. Filial respect and family traditions are best
conserved by home education or environment, not to speak of other factors, rather than by the
rigid or liberal application of the penal laws. The act of the deceased in eloping with Salome, at
the invitation of the latter was not a "grave offense" which called for or justified immediate
vindication.

Disregarding the mitigating circumstance of immediate vindication, considering, furthermore,

that there are no aggravating circumstances attendant in the commission of the offense, and
applying the provisions of article 64 of the Revised Penal Code and those of the Indeterminate
Sentence Law, Epifanio Diokno, having in his favor two mitigating circumstances, should be
sentenced to an indeterminate prison term ranging from four years, two months and one day of
prision correccional to ten years and one day of prision mayor, and Roman Diokno, having in
his favor only one mitigating circumstance, should be sentenced to an indeterminate prison term
ranging from six years and one day of prision mayor to twelve years and one day of reclusion
temporal.

DIAZ, J., dissenting:

I am firmly convinced that the crime committed by the appellants is not simply homicide but
murder. It is so qualified by the proven fact that abuse of superior strength, which is one of the
circumstances raising homicide, if committed to the category of murder, was present in the
commission thereof (art. 248, subsec. 1, of the Revised Penal Code).

From Juan Alcantara's testimony to which the court gives absolute credit, so that it is stated in
the majority opinion that he saw the appellants pursue the deceased, Yu Hiong, on said occasion,
and that he fired shots in the air in order to call the police for help, it appears that upon looking
out of the window of his house, almost fronting that of Antonio Layco on the landing of whose
stairs the crime was committed, he saw the deceased running along Hermanos Belen Street
pursued at close range by the appellants, anxious to enter Layco's house about twenty or twenty-
five meters away (t. s. n., page 57), in order to escape from the aggression of which he was the
victim. It likewise appears that as he saw, upon arriving at the landing of the stairs of Layco's
house, that the same was closed and that he had no other means of escape, not having as he, in
fact, did not then have any instrument to defend himself, he fell on his knees, and in that position
asked the appellants, his pursuers, to forgive him. It finally appears that instead of stopping
before such attitude of the deceased, which clearly indicated surrender and acknowledgment of
his helplessness, said appellants attacked him with their respective weapons, wounding him in
the back, in the side and in other parts of the body, giving him no peace until they saw him down
and bathed in his own blood. I am of the opinion that when two armed persons attack another
who is not armed, as the appellants did to Yu Hiong who was then completely unarmed and
showed signs of submission to them by falling on his knees and imploring their forgiveness, the
circumstance of abuse of superior strength clearly and undeniably exists. It is because one who
flees, falls on his knees later when he can no longer evade his pursuers, and immediately asks
forgiveness, shows not only his desire not to resist but his conviction that he is powerless to offer
resistance, thereby admitting his inferiority and the superiority of his assailants. The Supreme
Court of Spain, after whose Penal Code ours is patterned, settled a similar question substantially
in this sense, in its decision of June 17, 1872.

In a decision of January 23, 1887, said court, resolving the question whether or not the
circumstance of abuse of superior strength should be taken into consideration in a case where
two persons attack another, there being no disparity in physical strength between the attackers
and the attacked, and the former committed the aggression with arms, the latter having only a
small rod to defend himself, sustained the affirmative.

In another decision of January 14, 1899, the question whether or not there was abuse of superior
strength in a case where two persons, one armed with a cane and the other with a big stone,
attacked another who was unarmed, was likewise resolved by said court in the affirmative.

The question whether or not the accused, who simultaneously pursued their completely unarmed
victim, overtook, surrounded and attacked him later with steel weapons, mortally wounding him,
acted with abuse of superior strength, was similarly determined in the decision of January 17,
1919, the court having held therein that singleness of action and purpose was present in taking
advantage of the victim's lack of means of defense, with the correlative odds in favor of the
aggressors.

Abuse of superior strength is generally determined by the excess of the aggressor's natural
strength over that of the victim, taking into consideration the momentary positions of both and
the employment of means weakening the defense , although not annulling it (decision of the
Supreme Court of Spain of March 6, 1928). If the case under consideration were to be considered
in this light, the conclusion must be that the appellants really acted with abuse of superior
strength.

Considering the act committed by the appellants a manifest murder, and not homicide, due to the
presence of the qualifying circumstance of abuse of superior strength, and it being a fact that the
mitigating circumstances stated in the majority opinion were present in the commission thereof, I
am of the opinion that the penalty that should be imposed upon them, under article 64, rule 5, of
the Revised Penal Code, is from ten years and one day of prision mayor to seventeen years and
four months of reclusion temporal, said penalty being next lower to that prescribed for the crime
of murder, or at least, the indeterminate penalty of from five years of prision correccional to ten
years and one day of prision mayor, in accordance with Act No. 4103. With due respect to the
majority opinion, I dissent therefrom and vote as herein stated.

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CRIMINAL LAW (23)
PEOPLE vs. HICKS 14 PHIL 217

SYLLABUS

1. MURDER; "ALEVOSIA;" PREMEDITATION; PENALTY. Where the act of causing the

violent death of a woman has already been qualified by the specific circumstance of treachery
(alevosia), if premeditation is also present therein it can only produce the effect of a generic
aggravation circumstance which, together with another of the same class, required the imposition
in the maximum degree of the penalty which the law fixes for the crime.

2. ID.; LOSS OF REASON AND SELF-CONTROL. The causes which produce in the mind
loss of reason and self-control, and which lessen criminal responsibility, are those which
originate from lawful sentiments, not such as arise from vicious, unworthy, and immoral
passions; therefore, in the present case it is not proper to consider that mitigating circumstance 7
of article 9 of the Penal Code was present.

DECISION
TORRES, J. :

For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-
American, and Agustinal Sola, a Christian Moro woman, illicitly lived together in the
municipality of Parang, Cotabato, Moro Province, until trouble arising between them in the last-
mentioned month of 1907, Agustina quitted Hicks house, and, separating from him, went to live
with her brother-in-law, Lues Corrales. A few days later she contracted new relations with
another negro named Wallace Current, a corporal in the Army who then went to live with her in
the said house.
On the 21st of December following, at about 7.30 p. m., Augustus Hicks together with a soldier
named Lloyd Nickens called at said house, and from the sala called out to his old mistress who
was in her room with Corporal Current, and after conversing with her in the Moro dialect for a
few minutes, asked the corporal appeared at the door of the room, and after a short conversation,
Current approached Hicks and they shook hands, when Hicks asked him the following question:
"Did I not tell you to leave this woman alone?," to which Current replied: "That is all right, she
told me that she did not want to live with you any longer, but if she wishes, she may quit me, and
you can live with her." The accused then replied: "God damn, I have made up my mind;" and as
Corporal Current saw that Hicks, when he said this, was drawing a revolver from his trousers
pocket, he caught him by the hand, but the latter, snatching his hand roughly away, said: "Dont
do that," whereupon Current jumped into the room, hiding himself behind the partition, just as
Hicks drew his revolver and fired at Agustina Sola who was close by in the sala of the house.
The bullet struck her in the left side of the breast; she fell to the ground, and died in a little more
than an hour later.

Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance
and wrested the weapon from the hand of the accused. The latter immediately fled from the
house and gave himself up to the chief of police of the town, H. L. Martin, asking him to lock
him up in jail; and, when a few minutes later a policeman came running in and reported that
Hicks and fired a shot at Agustina, the said chief of police caused Hicks to be arrested. The
latter, when once in jail, threw eight revolver cartridges out of the window; these were picked up
by a policeman who reported the occurrence and delivered the cartridges to chief.

In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with
the Court of First Instance of said province charging Augustus Hicks with the crime of murder.
Proceedings were instituted, the trial court, after hearing the evidence adduced, entered judgment
on the 10th of September of the same year, sentencing the accused to the penalty of death, to be
executed according to the law, to indemnify the heirs of the deceased in the sum of P1,000, and
to pay the costs. The case has been submitted to this court for review.

The above-stated facts, which have been fully proven in the present case, constitute the crime of
murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola
met a violent death, with the qualifying circumstance of treachery (alevosia), she being suddenly
and roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at close, if not
point blank range, while the injured woman was unarmed and unprepared, and at a time when
she was listening to a conversation, in which she was concerned, between her aggressor and a
third person, and after usual and customary words had passed between her and her aggressor.
From all of the foregoing it is logically inferred that means, manners, and forms were employed
in the attack that directly and specially insured the consummation of the crime without such risk
to the author thereof as might have been offered by the victim who, owing to the suddenness of
the attack, was doubtless unable to flee from the place where she was standing, or even escape or
divert the weapon.

The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations
which were certainly not borne out at the trial, the evidence in the case is absolutely at variance
therewith and conclusively establishes, beyond peradventure of doubt, his culpability as the sole
fully convicted author of the violent and treacherous death of his former mistress, Agustina Sola.

It is alleged by the accused that when he withdrew his hand from that of Current, who had seized
him, he fell backward but managed to support himself on his two hands, and when he got up
again the said corporal threatened him with a revolver thrust into his face; whereupon he also
drew his revolver, just as Edward Robinson caught him from behind, when his revolver went off,
the bullet striking the deceased.

This allegation appears to be at variance with the testimony of the witnesses Wallace Current,
Edward Robinson, Luez Corrales, and Lloyd Nickens in their respective declarations, especially
with that of the second and third, who witnessed the actual firing of the shot by the aggressor at
the deceased, as shown by the fact that Robinson immediately approached the accused in order to
take his weapon away from him which he succeeded in doing after a brief struggle, whereupon
the aggressor ran out of the house. Thus, the shot that struck the deceased in the breast and
caused her death was not due to an accident but to a willful and premeditated act on the part of
the aggressor with intent to deprive the victim of her life.

In addition to the qualifying circumstance of treachery, as above referred to, the presence of
other aggravating circumstances, such as premeditation, and the fact that the crime was
committed in the dwelling of the deceased should be taken into consideration. The last-
mentioned circumstance appears proven from the testimony of several witnesses who were
examined at the trial of the case.

Inasmuch as in the present case the crime has already been qualified as committed with
treachery, the circumstance of premeditation should only be considered as a merely generic one.
Premeditation is, however, manifest and evident by reason of the open acts executed by the
accused. According to the testimony of Charles Gatchey and Eugenio R. Whited, Hicks asked
leave from the former to be absent from the canteen where he was working on the morning of the
day when the affray occurred, alleging that his mind was unsettled and that he feared getting into
trouble. It is also shown by the fact that Whited, who was in Hicks house about noon upon the
latters invitation, and while both where drinking gin, and while the revolver, the instrument of
the crime, was lying on the table on which were also several loaded cartridges, heard the accused
repeatedly say, referring to the deceased, that her time had come, adding that he would rather see
her dead than in the arms of another man, and when the accused went to bed apparently very
much worried, and refusing to answer when called, the witness left him. On the day after the
crime the police found on a table in the culprits house several loaded cartridges, a bottle of oil
and a piece of cloth used undoubtedly for cleaning the revolver.

All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and conversed
with his victim , in what appeared to be a proper manner, disguising his intention and calming
her by his apparent repose and tranquillity, doubtless in order to successfully accomplish his
criminal design, behaving himself properly as he had planned to do beforehand.
As against the two foregoing aggravating circumstances no mitigating circumstance is present,
not even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit, loss of reason and
self-control produced by jealousy as alleged by the defense, inasmuch as the only causes which
mitigate the criminal responsibility for the loss of self-control are such as originate from
legitimate feelings, not those which arise from vicious, unworthy, and immoral passions.

From the foregoing considerations, and as the judgment appealed from is in accordance with the
law, it is our opinion that the same should be affirmed, as we do hereby affirm it with costs,
provided, however, that the death penalty shall be executed according to the law in force, and
that in the event of a pardon being granted, the culprit shall suffer the accessory penalties of
article 53 of the Penal Code unless the same be expressly remitted in the pardon. So ordered.

-------------------------------------------------------------------------------------------------------------------------------
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CRIMINAL LAW (CASE 24)
PEOPLE vs. FONTABLA 61 PHIL 589

AVANCE'A, C.J.:

The information filed in this case substantially charges the appellant with having treacherously
and premeditatedly killed Agaton Punzalan. Upon arraignment, the appellant pleaded guilty. The
court, however, permitted the appellant to testify in order to see whether or not a mitigating
circumstance was present in the commission of the crime.

After hearing the appellant's testimony, the court declared him guilty of murder and, taking into
consideration in his favor the mitigating circumstance of having pleaded guilty, sentenced him to
reclusidn perpettut, to indemnify the heirs of the deceased in the sum of P500, and to pay the
costs.

We find no error committed in the appealed sentence in not taking into consideration in favor of
the appellant thfc alleged fact that prior to the commission of the crime the deceased had been
calling him criminal, it not appearing, as in fact it does not appear, how long before had the
deceased made this imputation to him.

The court, in imposing upon the appellant the penalty of reclusion perpetua which is the medium
period of that prescribed by law, took into -consideration the mitigating circumstance of having
pleaded guilty, which compensated for the aggravating circumstance of premeditation alleged in
the information.

However, it further appears that the appellant, after the commission of the crime, voluntarily
surrendered himself to the authorities. Article 13, subsection 7, of the Revised Penal Code,
considers as mitigating circumstance voluntary surrender to the authorities as well as voluntary
confession of guilt prior to the presentation of the evidence for the prosecution. Under the law,
any of these facts constitutes mitigating circumstance. Although these circumstances are
considered mitigating in the same subsection of article 13, when both are present they should
have the effect of mitigating the penalty as two independent circumstances. If any of them must
mitigate the penalty to a certain extent, when both are present they should produce this effect to a
greater extent.

The Supreme Court of Spain, interpreting article 10, subsection 15, of the Spanish Penal Code
(article 10, subsection 15, of the former Penal Code of the Philippines) which considers
nocturnity or uninhabited place as aggravating circumstance, held in two decisions (April 5,
1884, and November 11, 1890) that when both are present they should be considered as only one
circumstance. However, the same Supreme Court of Spain in subsequent decisions (April 27,
1897, and July 13, 1901), clarifying the doctrine laid down in the two former decisions, held that
the former should not be taken as an absolute rule and that said circumstances of nocturnity and
uninhabited place, when present together, may be considered separate when they appear to be
independent of one another. This doctrine is more reasonably applicable in cases of mitigating
circumstances favorable to the accused.

In invoking and applying these precedents, we have in mind that the two mitigating
circumstances present in the case at bar, the voluntary surrender of the accused to the authorities
and his having pleaded guilty, which are facts subsequent to the commission of the crime, are
new circumstances not found in the old Penal Code which recognized only the circumstances
present at the same time of the commission of the crime as capable of mitigating the penalty. The
reasoning which sanctioned the establishment of said doctrine has the same or greater force for
adopting it in the interpretation of article 13, subsection 7, of our present Revised Penal Code.

Wherefore, inasmuch as two mitigating circumstances and only one aggravating circumstance
were present in the commission of the crime, the penalty prescribed by law should be imposed in
its minimum period.

Modifying the appealed sentence so that instead of reclusion perpetua, the indeterminate penalty
of from twelve years and one day, as the minimum, to seventeen years, four months and one day
of reclusion temporal, as the maximum, is imposed upon the appellant, and it being understood
further that the indemnity which he is sentenced to pay is Pl,000, the same is affirmed in all other
respects, with costs. So ordered.

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CRIMINAL LAW (CASE 25)

PEOPLE vs. HANASAN 29 SCRA 534

PER CURIAM, J.:

This is an automatic review of criminal case 80837 of the Court of First Instance of Manila,
Branch VIII.

It was sometime in the middle part of 1964 that Armingol Hanasan y Nuez met Guillermo
Literal. The relations between the two thereafter became so close that Literal went to live with
Hanasan in January 1965 in the latter's house on Manga Avenue, Sta. Mesa, Manila, where he
worked as a helper in the latter's business of buying and selling appliances. In time Hanasan
succeeded in prevailing upon Literal to insure himself for P10,000 with the Philippine American
Life Insurance Company, making Hanasan who then assumed the name Jose N. Literal and
represented himself as the younger brother of Guillermo Literal the principal beneficiary
thereof. On March 5, 1965 the corresponding application was accomplished and thumbmarked
by Guillermo Literal who was illiterate. 1 The life insurance policy was approved and issued that
same day, March 5. Hanasan thereafter waited for the opportune time to poison Guillermo Literal
with arsenic. The opportunity presented itself on March 25, 1965. His own narration of the
events that transpired on March 25 and thereafter, contained in his sworn extrajudicial confession
given to the National Bureau of Investigation on December 8, 1965, is as follows:

Q: How did you give the arsenic poison?

A: Early that day sir, GUILLERMO went to Santa Mesa market and bought around ten
(10) "Galungong" fish and fruits. He made the galunggong into "paksiw." This time my
mind was made up that I will poison him (GUILLERMO) already. Because I did not
want REBECCA to take the poison accidentally, I asked her to go to our neighbors and
play there. When our dinner was ready, the table was set already, i.e., the rice and
"paksiw na galunggong" were already on the table I poured the arsenic solution on his
plate of rice and also on the paksiw. I told GUILLERMO that I did not like or feel like
eating galunggong that day and I only took fried eggs.

Q: How were you able to pour the arsenic solution on the plate of GUILLERMO and on
the paksiw without his seeing you?

A: When I asked him to get water to drink, he stood and when his back was turned I
poured the solution on his plate and on the galunggong.

Q: Did you see if GUILLERMO consumed his rice and the "paksiw na galunggong"?

A: About three-fourths (3/4) of his plate of rice and around six (6) of the galunggong sir.

Q: How about the sauce of the paksiw?

A: He drank part of it sir.

Q: How long did it take before the effects of arsenic poison showed on GUILLERMO?

A: After we finished eating sir, it must be more than an hour when he started vomitting,
he complained of dizziness and after a little later sir he started having loose bowels sir.

Q: What did you do with the remainder of the "paksiw na galunggong"?

A: I threw it away sir, including the rice left in GUILLERMO's plate.

Q: What did you do when GUILLERMO started showing signs of the effect of arsenic
poisoning?

A: Nothing sir, I just watched him and when he asked for hot water in a bottle to be
placed over his stomach I gave it to him.

Q: Did you bring him immediately to a doctor or to a hospital?

A: I am not sure of the date and time sir. But I think I brought him (GUILLERMO) to a
doctor the same afternoon March 25, 1965.

Q: Are you sure it was on the 25th of March that you brought GUILLERMO to see a
doctor?

A: I am not sure of the dates anymore sir, but I remember bringing him to a doctor, sir.

Q: From the time you gave the poison, i.e., lunchtime March 25, 1965, up to the time you
brought GUILLERMO to a doctor, what have you done to alleviate his sickness or
sufferings ?

A: Nothing, sir. When GUILLERMO asked me to heat water for him to take a bath and I
did. He asked me for medicine but I told him there was none. He asked me to get him a
doctor and I went to Dra. LIGAYA C. SANTOS but she was not home at that time as I
was informed she was in school.

Q: Did you ever bring GUILLERMO to a doctor?

A: I brought him later that afternoon to the house of Dra. LIGAYA SANTOS.

Q: Now, tell us, when for the first time did you bring GUILLERMO to Dra. SANTOS?

A: Late in the afternoon of March 25, 1965, sir.

Q: What did you tell Dra. SANTOS when you accompanied GUILLERMO there?
 A: I told her that he has been having loose bowel movements after taking those
"galungong" fish sir.

Q: Did you not inform Dra. SANTOS about the arsenic solution you poured in the food
of GUILLERMO?

A: No, sir.

Q: What medicine was given by Dra. SANTOS?

A: She prescribed some tablets sir which I bought at the drugstore and gave to
GUILLERMO to take.

Q: Did you give GUILLERMO a second dose of the arsenic solution?

A: No more, sir, I just gave him that one dose on his rice and viand that lunchtime of
March 25, 1965.

Q: After giving GUILLERMO those tablets prescribed by Dra. SANTOS, did his
condition improve, i.e., did this vomitting and loose bowel movements stop?

A: No, sir, it continued.

Q: Did you bring him again to the doctor when GUILLERMO'S vomitting and loose
bowel movements persisted?

A: No more, sir.

Q: Did you not bring GUILLERMO to the hospital when his condition was getting
worse?

A: No, sir, because GUILLERMO said the medicine is just enough and he will just finish
it and see the outcome.

Q: Was GUILLERMO able to consume all the medicine prescribed by Dra. SANTOS?

A: No, sir, because he died at about 4:00 or 5:00 in the morning of March 27, 1965.

On December 10, 1965 Hanasan was charged with murder before the Court of First Instance of
Manila, committed, in the language of the information, as follows:

That on or about the 25th day of March, 1965, in the City of Manila Philippines, the said
accused, with intent to kill, treachery and evident premeditation in consideration of a
prize and with cruelty, by deliberately an inhumanly augmenting the suffering of the
victim, with grave abuse of confidence, employing craft or fraud and by means of poison,
did then and there wilfully, unlawfully and feloniously administer and/or give arsenic
 solution mixed with rice and "paksiw na galunggong" to one Guillermo Literal, thereby
inflicting upon the said Guillermo Literal internal physical injuries which were the direct
and immediate cause of his death immediately thereafter.

Upon arraignment, the accused, duly assisted by counsel de parte, voluntarily pleaded guilty to
the above-quoted indictment. Despite this voluntary plea of guilty, the trial court nevertheless
received evidence relative to the aggravating and mitigating circumstances attendant in the
commission of the crime. The trial court thereafter rendered judgment finding the accused guilty
beyond reasonable doubt of murder by means of poison, with the aggravating circumstances of
evident premeditation and abuse of confidence, and the mitigating circumstance of voluntary
plea of guilty, and consequently sentenced him to the extreme penalty of death, with the
accessory penalties provided by law, to indemnify the heirs of the deceased in the amount of
P10,000 and to pay the costs.

The automatic elevation of this case to us for review is pursuant to section 9 of Rule 122 of the
Rules of Court?

The appellant poses two issues, formulated by him as follows:

The lower court erred in finding that Guillermo Literal died from arsenic poisoning; and

The lower court erred in discounting the mitigating circumstance of voluntary surrender
and appreciating only the plea of guilty, thereby failing to offset the two aggravating
circumstances of evident premeditation and abuse of confidence.

1. Upon the first issue, the proof of record is indubitable that the effective cause of the victim's
death was arsenic poisoning. In his statement, exhibit A, given under oath to the NBI, the
appellant admitted that he poured arsenic solution on the rice and paksiw na galunggong that the
deceased ate for lunch on March 25, 1965; that the deceased consumed about three-fourths of the
poisoned food; and that after an hour, the deceased complained of nausea and then vomitted and
suffered from loose bowels. This is part of his narration:

Q: Will you explain to us now why arsenic was found in the remains of GUILLERMO?

A: Because, sir, two days before GUILLERMO died I mixed arsenic in the food of
GUILLERMO.

Q: What food ?

A: His rice, sir, and the "paksiw na galunggong."

Q: When did you give arsenic to GUILLERMO?

A: Lunchtime, sir, of March 25, 1965.

Q: Where?
 A: In the dining room of our house there at 682 Manga Avenue, Sta. Mesa, Manila."

During the trial, the appellant, through counsel, affirmed his extrajudicial confession, exh. A,
thus:

ATTY. RAZON:

Your Honor. Whatever it is in the confession, we already admitted that.

The appellant now claims that what he poured on the rice and fish of Guillermo Literal on March
25, 1965 was mere water, quoting that part of his extrajudicial confession which states that "It
was the water from this bottle that I poured on the plate of rice of Guillermo and on the "paksiw
na galunggong" that lunchtime of March 25, 965." But the appellant conveniently omitted to
mention his admission that he added lye to make the arsenic more soluble and the resulting
solution more potent. Thus, he stated:

Q: We are showing you this bottle, a 200 cc bottle with the cover marked "Lady's
Choice," half filled with water and about 1/5 of white precipitation. Have you seen this
bottle before?

A: That is the bottle of arsenic sir. The white substance on the buttom [sic], sir, is the
arsenic and the liquid is water. It was the water from this bottle that I poured on the plate
of rice of GUILLERMO and on the "paksiw na galunggong" that lunchtime on March 25,
1965?

Q: Do you mean to tell us that the liquid in this bottle is water only?

A: No, sir, I added a little quantity to [sic] LYE there sir, to make the arsenic more
soluble and the solution more potent. (Emphasis supplied)

Dr. Lorenzo A. Sunico of the NBI, whose competence as a toxicologist was admitted by the
appellant, 2 testified that arsenic oxide is soluble in lye, 3 a strongly alkaline substance used in
cleaning and in making soap. 4

That the cause of death of the victim was arsenic poisoning was confirmed by the toxicology
report 5 of said Dr. Sunico which recites that the right pelvic bone taken as a specimen from the
exhumed remains of the dead was found positive for traces of arsenic. In his extrajudicial
confession, the appellant gave his express conformity to the foregoing findings:

Q: Are you aware that the NBI exhumed the remains of GUILLERMO?

A: Yes, sir.

Q: Do you know the reason why?

A: For laboratory examination, sir, to determine the presence of poison, sir.

 Q: We are showing you this document Toxicology Report No. T-65-826, with the
following FINDINGS: "spectrographic examination of the right pelvic bone after ashing
gave POSITIVE RESULT for traces of ARSENIC." This is the result of the general
toxicological examination of the remains of GUILLERMO LITERAL. Do you believe
this toxicological report which you just read?

A: Yes, sir, I do.

Q: And you are also aware that the specimens mentioned in this report were taken from
the remains of the late GUILLERMO whom you claimed and injured as your brother?

A: Yes, sir."

The mention of "gastro-enteritis" in the death certificate 6 as the cause of death cannot avail the
accused any as the certificate itself recites that the informant on the matters stated therein was no
other than the appellant himself. He was not expected to, as in fact he did not, disclose that the
victim died of arsenic poisoning administered by him. Instead he reported that the deceased died
from natural causes. Indeed, the appellant misled the physician who treated the victim as to the
real cause of the latter's ailment by informing her that the deceased was suffering merely from
loose bowel movement, 7 and did not inform her that he had administered arsenic solution to the
said deceased. 8

2. Upon the second issue, we agree with the court a quo that the mitigating circumstance of
voluntary surrender cannot legally be credited in favor of the appellant.

So that the mitigating circumstance of voluntary surrender may properly be appreciated in favor
of an accused, the following requisites must concur: (a) the offender had not been actually
arrested; (b) the offender surrendered himself to a person in authority or to an agent of a person
in authority; and (c) the surrender was voluntary. 9 In his extrajudicial confession, exhibit A, the
contents of which he unequivocally affirmed at the trial, the appellant stated:

Q: This information you gave us now is contrary to your denials in your statement of
November 18 and 21, 1965 where you denied poisoning GUILLERMO for the
P10,000.00 insurance. What made you give this confession to us now?

A: Last night when I was laying [sic] wide awake at the NBI cell, I came to realize that it
would be futile for me to hide these things from the NBI. Earlier, I attempted to escape
but I was not able to go far and I was recaptured. Sir, thinking about all these things I
realize that the only way I can clear my conscience is to tell you everything and all the
wrong deeds I have done in the past. As a matter of fact, sir, I will tell you now
everything about the death of my niece VIVENCIA HANASAN and that girl ZOSIMA
BALLENTOS.

Q: What is this that you want to tell us about VIVENCIA HANASAN and ZOSIMA
BALLENTOS?
 A: About their deaths sir, which is almost similar to the death of REBECCA
HERNANDO and GUILLERMO (LlTERAL) of which I am also responsible. (Emphasis
supplied)

At the hearing for the reception of evidence to prove aggravating and mitigating circumstances,
the appellant testified:

Q: Is it not a fact on December 6 you escaped the NBI custody that is why you gave the
statement on December 8, 1965?

A: I do not exactly remember the date but that is true. (Emphasis supplied)

It is crystal clear then that the appellant did not surrender voluntarily to a person in authority or
to an agent of a person in authority. While he was being investigated under NBI custody
regarding the death of one Rebecca Hanasan, he denied in statements he issued on November 13
and 21, 1965 that he poisoned Guillermo Literal. He escaped from NBI custody sometime during
the first week of December but was immediately recaptured. It was then while under NBI
custody again that, on December 8, 1965, he confessed to sole responsibility for the death of
Guillermo Literal. Voluntary surrender was no longer possible as he was already in custody.
There is thus no voluntary surrender to speak of since the appellant was in point of fact arrested.
10

3. The court a quo appreciated the aggravating circumstances of evident premeditation and abuse
of confidence against the appellant. Indeed, a searching study of the record compels our
concurrence in the court's view.

It was sometime in January 1965 that the thought of insuring the life of Guillermo Literal, with
himself as the primary beneficiary thereof, first entered his mind. This thought was translated
into a reality on March 5, 1965 when the deceased (Guillermo) was insured by the Philippine
American Life Insurance Company for P10,000, through the appellant's initiative and efforts.
Then he waited for the opportunity to poison the insured so that he could collect the amount of
the insurance policy. This opportunity came on March 25, 1965.

Q: When did you transfer to Manga Avenue?

A: Around January 1965, sir. I am not sure of the exact date, sir.

Q: When you transferred to 692 Manga Ave., did GUILLERMO join you immediately?

A: No sir, after about two (2) weeks later.

Q: When for the first time did you think of insuring GUILLERMO?

A: After he has stayed with me for about two (2) weeks.

Q: Whose idea was it to have GUILLERMO insured?

 A: He was present when one (1) underwriter came to the house and talked about
insurance and he (GUILLERMO) told me what was this (insurance) all about and I
explained to him the benefits of insurance until he was convinced to get one for himself.

xxx xxx xxx

Q: Before this insurance underwriter came to your house, did you have any other
agreement with GUILLERMO concerning your identities?

A: Yes, sir. We agreed that his name will be GUILLERMO LITERAL who is my elder
brother and that I am JOSE N. LITERAL.

Q: Why did you change your identities?

A: Because, sir, when I was still in Sta. Ana, I was arrested by MPD men because of my
murder case in Masbate where I used the name MANUEL HANASAN and also I have a
case in Davao City in which I am charged under my true name ARMINGOL
HANASAN. We agreed to use the name LITERAL so that we will not be detected.
Because, sir, I have already posted my bail bond in my case in Masbate that is why I was
released but I did not appear in court during the hearing of the case and I know that there
will be a warrant for my arrest.1awphl.nt

Q: Now, going back to this insurance, what happened after your talk with BENJAMIN
VERINA, the underwriter?

A: We agreed that GUILLERMO will insure himself with the PhilamLife for P10,000.00
for a Five year Convertible Non-Participating insurance.

xxx xxx xxx

Q: Tell us, why did you poison GUILLERMO?

A: For the money, sir. I needed money badly and this was the reason I convinced him to
insure himself for P10,000.00 making myself his beneficiary. When the policy was
approved I waited for the right opportunity to poison him and March 25, 1965 was it, sir.

Obviously the appellant had nurtured, deliberated on, and persisted in, his evil plan to kill the
deceased "for the money," to quote his own words from the time he broached the subject
of the insurance to the latter sometime in January 1965, until he finally poisoned him on March
25, 1965. Undeniably present here is that period of time sufficient in a judicial sense to afford
full opportunity for meditation and reflection and long enough to allow the appellant's
conscience to overcome the determination of his will if he had desired to harken to its warnings.
11
Inescapable are the facts that the crime was spawned by cold-blooded scheming, and the
tenacious persistence of the appellant in moving forward to its conclusion the accomplishment of
the felony. 12
The aggravating circumstance of abuse of confidence must likewise be appreciated in this case.
The appellant befriended Guillermo Literal, and later enticed him to live in his (appellant's)
house and help in his buy and sell business as well as in the household chores. By this apparently
charitable act of taking a jobless illiterate man into his household and providing him with the
necessities of life, the appellant must assuredly have gained the confidence and trust of the
deceased who clearly regarded him as benefactor and protector. It was this confidence which
enabled the shrewd appellant to deceive the deceased into signing his own death warrant i.e.,
taking a life insurance policy for P10,000 and making the appellant the primary beneficiary. It
was also this confidence which led the unsuspecting victim to stand up and turn his back in order
to comply with the appellant's command to get drinking water, thus affording the appellant the
chance to pour the arsenic solution on the deceased's meal of rice and "paksiw na galunggong."
The victim's confidence and trust in the appellant facilitated the commission of the crime, the
latter taking advantage of the victim's belief that he would not abuse the confidence reposed in
him. 13

Viewing the record in its entirety, we see no reason to disturb the lower court's finding that the
appellant committed the crime of murder by means of poison on the person of Guillermo Literal,
attended by the aggravating circumstances of evident premeditation and abuse of confidence,
only one of which is offset by the mitigating circumstance of voluntary plea of guilty.

The civil indemnity awarded to the heirs of the deceased must be increased to P12,000.14

ACCORDINGLY, with the modification that the indemnity to be paid by the appellant to the
heirs of Guillermo Literal is increased to P12,000.00, the judgment a quo is affirmed, at
appellant's cost.