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SPO2 RUPERTO CABANLIG, G.R. No.

148431
Petitioner,
Present:
Davide, Jr., C.J.,
Chairman,
Quisumbing,
- versus- Ynares-Santiago,
Carpio, and
Azcuna, JJ.

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).

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]

Arraignment and Plea


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.

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 Sandiganbayans Ruling

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 merit, the motion for reconsideration is hereby
DENIED.[8]

The Issues

Cabanlig raises the following issues in his Memorandum:


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] Self-

defense 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.

The elements of self-defense are as follows:

a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel it;
c) Lack of sufficient provocation on the part of the person defending himself.[11]

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]

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]

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.

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 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.

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.

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]

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 in People 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 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.

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]:


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.

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.

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.

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.

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 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]

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

follows:
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 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.

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.

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.

The Necropsy Report[35] also reveals the following:


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.

Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

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.

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.

G.R. No. 193507 January 30, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
REY MONTICALVO y MAGNO, Accused-Appellant.

DECISION

PEREZ, J.:

This is an appeal from the Decision1 of the Court of Appeals in CA-G.R. CR-HC No. 00457 dated 3
December 2009 affirming in toto the Decision2 of Branch 19 of the Regional Trial Court (RTC) of
Catarman, Northern Samar, in Criminal Case No. C-3460 dated 18 October 2005 finding herein
appellant Rey Monticalvo y Magno guilty beyond reasonable doubt of the crime of rape of a
demented person committed against AAA,3 thereby imposing upon him the penalty of reclusion
perpetua and ordering him to pay P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P25,000.00 as exemplary damages.

Appellant Rey Monticalvo y Magno was charged with raping AAA in an Information4 dated 30 April
2003, the accusatory portion of which reads:

That on or about the 9th day of December 2002 at about 7:00 oclock in the evening in Bgy. XXX,
Municipality of XXX, Province of XXX, Philippines and within the jurisdiction of this Honorable Court,
the above-named appellant, actuated by lust and with lewd design, with force and intimidation, did,
then and there, willfully, unlawfully and feloniously have carnal knowledge with AAA, 12 years old
and is suffering from mental disorder or is demented or has mental disability, without the consent
and against the will of said victim.5 [Emphasis supplied].

On arraignment, appellant, with the assistance of counsel de oficio, pleaded NOT GUILTY6 to the
crime charged.

At the pre-trial conference, the prosecution and the defense failed to make any stipulation of
facts.7 The pre-trial conference was then terminated and trial on the merits thereafter ensued.

The prosecution presented the following witnesses: (1) AAA, the private offended party; (2) BBB,
mother of AAA; (3) Analiza Pait (Analiza), neighbor and friend of AAA; (4) Dr. Jesus Emmanuel
Nochete (Dr. Nochete), Medical Officer IV, Northern Samar Provincial Hospital; and (5) Dr. Vincent
Anthony M. Belicena (Dr. Belicena), Medical Specialist II, Northern SamarProvincial Hospital. Their
testimonies established the following facts:

AAA is a mental retardate and was 12 years and 11 months old at the time of the rape incident.8 She
and appellant, who was then 17 years old,9 are neighbors their respective houses are adjoining
each other.10
In the afternoon of 9 December 2002, AAA and her friend, Analiza, were in front of the sari-sari store
of AAAs mother, BBB, while appellant was inside the fence of their house adjacent to the said sari-
sari store. Shortly, thereafter, appellant invited AAA to go with him to the kiln at the back of their
house. AAA acceded and went ahead.11

Upon seeing appellant and AAA going to the kiln, Analiza, pretending to look for her one peso coin,
followed them until she reached a papaya tree located three and a half meters away from the place.
Analiza hid under the papaya tree and from there she saw appellant undress AAA by removing the
latters shorts and panty. Appellant, however, glanced and saw Analiza. Frightened, Analiza ran
away and went back to the sari-sari store of BBB without telling BBB what she saw.12

Appellant proceeded to satisfy his bestial desire. After undressing AAA, appellant made her lie
down. He then placed himself on top of AAA and made push and pull movements. Afterwards,
appellant stopped, allowed AAA to sit down for a while and then sent her home.13

When AAA arrived at their house around 7:30 p.m., she was asked by her mother, BBB, where she
came from and why she came home late. AAA replied that she was at the back of their house as
appellant brought her there and had sexual intercourse with her.14

The following day, BBB brought AAA to the police station and then to the Northern Samar Provincial
Hospital where AAA was examined by Dr. Nochete.15 The medical examination yielded the following:

The findings are:

= Confluent abrasion 1 x 1 inches, 2 inches below the umbilicus.

Genitalia Exam:

= Admits 1 finger with ease.

= (-) vulvar swelling, (-) erythema.

= (+) complete healed hymenal laceration at 5 oclock, 7 oclock & 10 oclock


position.

Gram Stain Result: Negative for spermatozoa.16

Dr. Nochete explained that AAA could have possibly sustained those complete healed hymenal
lacerations more than a month prior to the date of the examination. He also clarified that even
though AAA has no fresh hymenal laceration it does not necessarily mean that no sexual intercourse
was committed on her on 9 December 2002. It is possible that AAA did not sustain any fresh
hymenal laceration because the vaginal canal has become loose. He did not also find any trace of
spermatozoa on AAAs vagina, its presence being dependent on whether the appellant did ejaculate
or not.17

AAA was also examined by Dr. Belicena, a Psychiatrist at the Northern Samar Provincial Hospital,
who found that AAA is suffering from moderate to severe mental retardation, meaning, AAA is
suffering from the specific form of below average intelligence that has a low reproduction functioning
resulting in impaired functioning. This finding was obtained through mental examination and actual
interview of AAA. Dr. Belicena, however, recommended a full battery of psychological testing to
determine AAAs exact mental age.18 Dr. Belicenas finding was reduced into writing as evidenced by
a Medical Certificate19 dated 18 May 2004.

For its part, the defense offered the testimonies of (1) Pio Campos (Pio), neighbor and friend of
appellant; (2) Cesar Monticalvo (Cesar), appellants father; (3) Alexander Sanico (Alexander), Local
Civil Registrar of Bobon, Northern Samar; and (4) appellant, who invoked the defense of denial and
alibi to exonerate himself from the crime charged.

Appellant denied having raped AAA. He claimed that on 9 December 2002, at around 1:00 p.m., he,
together with Pio and a certain Dinnes Samson, was having a drinking spree in the house of one
Adolfo Congayao (Adolfo). They finished drinking at around 6:00 p.m. As he was too drunk, Pio
assisted him in going home. He went to sleep and woke up only at 12:00 midnight as he needed to
urinate. He went back to sleep and woke up at 6:00 a.m. of the following day, i.e., 10 December
2002. He was surprised that AAA charged him with rape. He was then arrested at around 3:00 p.m.
of 10 December 2002.20

Appellant disclosed, however, that the house of Adolfo, where they had their drinking spree, is more
or less six (6) meters away from the house of AAA. In fact, he could still see the house of AAA even
when he was in the house of Adolfo. He similarly admitted that he knew very well that AAA is
suffering from mental abnormalities. He also divulged that he asked Pio to testify on his behalf.21

Appellants testimony was corroborated on all material points by Pio and his father, Cesar, who also
admitted that he personally knew AAA as she is their neighbor. Cesar also knew that AAA is
suffering from mental disorder.22 Both Pio and Cesar confirmed that on 9 December 2002, they
brought appellant to his bedroom and let him sleep there because he was too drunk. Thereafter, Pio
and Cesar engaged in a drinking spree inside the latters house, particularly at the kitchen that is
more than two (2) meters away from appellants bedroom, which lasted until 11:00 p.m. Pio and
Cesar likewise stated that there was no moment that appellant went out of his bedroom since the
time they brought him there.23

Alexander, another defense witness, presented appellants Certificate of Live Birth24 to prove that the
latter was only 17 years old during the commission of the crime, i.e., 9 December 2002.25

The trial court, convinced about the merits of the prosecutions case rendered a Decision on 18
October 2005, finding the appellant guilty beyond reasonable doubt of the crime of rape of a
demented person and sentenced him to an imprisonment term of reclusion perpetua and ordered
him to indemnify AAA in the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages.

On appeal, the following errors were assigned:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE APPELLANT FOR THE CRIME OF
RAPE OF A DEMENTED PERSON DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT FAILED TO APPRECIATE APPELLANTS AGE, BEING A MINOR, ATTHE
TIME OF THE COMMISSION OF THE CRIME.
III.

THE TRIAL COURT FAILED TO IMPOSE THE PROPER PENALTY.26

The Court of Appeals rendered the assailed Decision on 3 December 2009 affirming in toto the trial
courts Decision dated 18 October 2005.

Hence, this appeal.

Appellant contends that the prosecution failed to prove his guilt beyond reasonable doubt as the
testimonies of AAA, BBB, Analiza and Dr. Nochete were replete with inconsistencies and
improbabilities. Firstly, while the Information stated that appellant raped AAA on or about the 9th day
of December 2002 at around 7:00 p.m., Analiza testified that it was in the afternoon of the same day
when she saw and heard appellant calling AAA to go to the kiln at the back of their house, and while
she saw appellant undress AAA, she did not actually see the sexual intercourse because the
appellant saw her watching them, so she ran away. Secondly, BBBs testimony that on 9 December
2002, AAA confided to her that she was raped by appellant early that night was inconsistent with the
testimony of Analiza that it was in the afternoon of the same day when she saw appellant and AAA
going to the kiln, where the former undressed the latter. Thirdly, Dr. Nochetes testimony clearly
stated that the hymenal lacerations on AAAs vagina could have possibly been sustained by her a
month ago, which does not support AAAs claim of rape on 9 December 2002. Even granting that
appellant, indeed, raped AAA on 9 December 2002, it is highly implausible that the hymenal
lacerations on her vagina were already completely healed when she was examined by Dr. Nochete
on 10 December 2002, which was only after less than 24-hours from the date the alleged rape was
committed.

Appellant also questions the credibility of AAA as a witness given her condition as a mental
retardate. Appellant opines that AAA, could not perceive and is not capable of making known her
perception to others. As such, she can be easily coached on what to say or do.

Appellant finally avers that granting arguendo that he is guilty of the crime charged, he was only 17
years old at the time of its commission as evidenced by his Certificate of Live Birth. This fact was
even attested to by the Local Civil Registrar of Bobon, Northern Samar. Given his minority at the
time of the commission of the crime charged, the court should have considered the same as
privileged mitigating circumstance in imposing the penalty against him.

This Court affirms appellants conviction.

At the outset, paragraph 1, Article 266-A of the Revised Penal Code, as amended by Republic Act
No. 8353,27provides for two (2) circumstances when carnal knowledge of a woman with mental
disability is considered rape. Subparagraph (b) thereof refers to rape of a person "deprived of
reason" while subparagraph (d) refers to rape of a "demented person."28 The term "deprived of
reason" has been construed to encompass those suffering from mental abnormality, deficiency or
retardation.29 The term "demented," on the other hand, means having dementia, which Webster
defines as mental deterioration; also madness, insanity.30 Dementia has also been defined in Blacks
Law Dictionary as a "form of mental disorder in which cognitive and intellectual functions of the mind
are prominently affected; x x x total recovery not possible since cerebral disease is involved."31 Thus,
a mental retardate can be classified as a person "deprived of reason," not one who is "demented"
and carnal knowledge of a mental retardate is considered rape under subparagraph (b), not
subparagraph (d) of Article 266-A(1) of the Revised Penal Code, as amended.32
In this case, both the trial court and the appellate court incorrectly used the word demented to
characterize AAAs mental condition and mistakenly categorized the rape committed by appellant
under subparagraph (d), Article 266-A(1) of the Revised Penal Code, as amended, instead of under
subparagraph (b) thereof. Nonetheless, the mistake would not exonerate appellant. Otherwise
stated, his conviction or criminal liability for rape stands though not under subparagraph (d) of Article
266-A(1) of the Revised Penal Code, as amended, but under subparagraph (b) thereof.

Neither can it be said that appellants right to be properly informed of the nature and cause of the
accusation against him was violated. This Court is not unaware that the Information was worded, as
follows: "AAA is suffering from mental disorder or is demented or has mental disability." This fact,
however, will not render the Information defective and will not bar this Court from convicting
appellant under subparagraph (b) of Article 266-A(1) of the Revised Penal Code, as amended.

In Olivarez v. Court of Appeals,33 this Court pronounced that:

x x x In People v. Rosare,34 the information did not allege that the victim was a mental retardate
which is an essential element of the crime of statutory rape. This Court however sustained the trial
courts judgment of conviction holding that the resolution of the investigating prosecutor which
formed the basis of the information, a copy of which is attached thereto, stated that the offended
party is suffering from mental retardation. It ruled that there was substantial compliance with the
mandate that an accused be informed of the nature of the charge against him. Thus:

Appellant contends that he cannot be convicted of statutory rape because the fact that the victim
was a mental retardate was never alleged in the information and, absent this element, the acts
charged negate the commission of the offense for which he was convicted by the lower court.

Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu proprio take
cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-0197 dated June 2,
1992, which formed the basis of and a copy of which was attached to the information for rape filed
against herein appellant. Therein, it is clearly stated that the offended party is suffering from mental
retardation. We hold, therefore, that this should be deemed a substantial compliance with the
constitutional mandate that an accused be informed of the nature of the charge against him x x x
(citation omitted).35 [Emphasis supplied].

In this case, both the Complaint36 and the Resolution37 of the Municipal Trial Court of Northern
Samar, which formed the basis of the Information and copies of which were attached in the records,
stated that AAA is suffering from mental abnormalities she looked like a retardate and her focus is
not normal. Even, the Resolution38 of the Acting Provincial Prosecutor concurred with the aforesaid
findings. From the aforesaid, it can be gleaned that AAAs mental disorder or mental disability is that
of being a mentally retarded and not demented. Thus, there was substantial compliance with the
mandate to inform the accused of the nature of the accusation.39 More so, as discussed hereunder,
the prosecution was able to prove that AAA is, indeed, a mental retardate. Even the appellant
affirmed the said mental condition of the victim.

To repeat, the term "deprived of reason" has been construed to encompass those suffering from
mental abnormality, deficiency or retardation.40 Hence, carnal knowledge of a mental retardate is
rape under subparagraph (b) not subparagraph (d) of Article 266-A(1) of the Revised Penal Code, as
amended.41

The gravamen of the crime of rape under Art. 266-A(1) is sexual intercourse with a woman against
her will or without her consent.42 Article 266-A(1) of the Revised Penal Code, as amended,
specifically states that:
ART. 266-A. Rape; When and How Committed. Rape is committed.

1) By a man who 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 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.[Emphasis supplied].

From the foregoing, for the charge of rape to prosper, the prosecution must prove that the offender
had carnal knowledge of a woman through any of the four enumerated circumstances. Without
doubt, carnal knowledge of a woman who is a mental retardate is rape under the aforesaid
provisions of law. Proof of force or intimidation is not necessary, as a mental retardate is not capable
of giving consent to a sexual act. What needs to be proven are the facts of sexual congress between
the accused and the victim, and the mental retardation of the latter.43

In People v. Dalandas,44 citing People v. Dumanon,45 this Court held that mental retardation can be
proven by evidence other than medical/clinical evidence, such as the testimony of witnesses and
even the observation by the trial court.46

In the present case, the prosecution was able to establish that AAA is, indeed, a mental retardate
through, (1) the testimony of her mother; (2) the trial courts observation; and (3) the mental
examination and actual interview of AAA conducted by Dr. Belicena, a Psychiatrist at the Northern
Samar Provincial Hospital, who found AAA to be suffering from moderate to severe mental
retardation, meaning, AAA is suffering from the "specific form of below average intelligence which
has a low reproduction functioning which result to impairment functioning."47 It is also worthy to note
that the defense did not dispute, even admitted the fact that AAA is suffering from mental
retardation. The findings of the lower courts about AAAs mental condition must be upheld.

The prosecution was also able to establish the fact of sexual congress between appellant and AAA.
Despite the latters mental condition, she narrated before the court in the best way she could her
ordeal in the hands of appellant. As stated by the appellate court, AAA conveyed her ideas by words
and demonstrations.48 AAA recounted how the appellant sexually abused her on 9 December 2002
by inviting her to go to the kiln at the back of their house. Thereupon, appellant suddenly undressed
her by removing her shorts and panty. This fact was attested to by Analiza, one of the prosecution
witnesses, who actually witnessed appellant undressing AAA by removing the latters shorts and
panty. AAA further testified that after undressing her, appellant made her lie down, placed himself on
top of her and made push and pull movements. Thereafter, appellant stopped, made her sit down
and sent her home.49 This testimony of AAA was correctly found by the trial court and the appellate
court as coherent and given in a detailed manner.50

Emphasis must be given to the fact that the competence and credibility of mentally deficient rape
victims as witnesses have been upheld by this Court where it is shown that they can communicate
their ordeal capably and consistently. Rather than undermine the gravity of the complainants
accusations, it even lends greater credence to her testimony, that, someone as feeble-minded and
guileless could speak so tenaciously and explicitly on the details of the rape if she has not in fact
suffered such crime at the hands of the accused. Moreover, it has been jurisprudentially settled that
when a woman says she has been raped, she says in effect all that is necessary to show that she
has been raped and her testimony alone is sufficient if it satisfies the exacting standard of credibility
needed to convict the accused.51

Worth stressing also is the fact that during AAAs testimony, she positively identified the appellant as
the person who raped her.52 Thus, the straightforward narration of AAA of what transpired,
accompanied by her categorical identification of appellant as the malefactor, sealed the case for the
prosecution.53

The allegation of inconsistencies in the testimonies of AAA, BBB, Analiza and Dr. Nochete as
regards the exact date and time the alleged rape incident happened, as well as the absence of fresh
hymenal lacerations on AAAs vagina, pointed to by appellant cannot work in his favor.

Evidently, these inconsistencies refer only to trivial and inconsequential matters that do not alter the
essential fact of the commission of rape.54 A witness is not expected to remember with perfect
recollection every minute detail of her harrowing experience. A minor mistake as to the exact time of
the commission of the rape is immaterial and cannot discredit the testimony of a witness. This Court
has repeatedly held that the exact date of the commission of the rape is not an essential element of
the crime.55 Indeed, the precise time of the crime has no substantial bearing on its
commission.56 What is decisive in a rape charge is that the commission of the rape by the accused
against the complainant has been sufficiently proven. Inconsistencies and discrepancies as to minor
matters which are irrelevant to the elements of the crime cannot be considered grounds for
acquittal.57

In the same way, the absence of fresh hymenal lacerations and spermatozoa on AAAs vagina do
not negate the fact of rape. A freshly broken hymen, as well as the presence or absence of
spermatozoa, is not also an essential element of rape.58 As clarified by Dr. Nochete, the absence of
fresh hymenal laceration on AAAs vagina does not necessarily mean that she did not engage in
sexual intercourse on 9 December 2002. Possibly, AAA did not sustain any fresh hymenal laceration
as her vaginal canal had become loose. And, he did not find any trace of spermatozoa because its
presence depends on whether or not the appellant ejaculated.

Indeed, a mental retardate is not, by reason of such handicap alone, be disqualified from testifying in
court.59 Mental retardation per se does not affect credibility. A mentally retarded may be a credible
witness. The acceptance of her testimony depends on the quality of her perceptions and the manner
she can make them known to the court.60 If the testimony of a mental retardate is coherent, the same
is admissible in court.61

Neither can it be said that AAA was merely coached as a witness by her mother. It is highly
unthinkable that a mother would draw her daughter, a mental retardate at that, into a rape story with
all its attendant scandal and humiliation if the rape did not really happen. No mother in her right mind
would possibly wish to stamp her child with the stigma that follows the despicable crime of
rape.62 Moreover, appellant failed to show any ill-motive on the part of AAA and her mother to falsely
testify against him.

In light of the straightforward and credible testimony of AAA, her positive identification of appellant
as her assailant and the lack of ill-motive on her part to falsely testify against appellant, the latters
defense of denial and alibi must necessarily fail.

Denial is an inherently weak defense and has always been viewed upon with disfavor by the courts
due to the ease with which it can be concocted. Denial as a defense crumbles in the light of positive
identification of the accused, as in this case. The defense of denial assumes significance only when
the prosecutions evidence is such that it does not prove guilt beyond reasonable doubt. Verily, mere
denial, unsubstantiated by clear and convincing evidence, is negative self-serving evidence which
cannot be given greater evidentiary weight than the testimony of the complaining witness who
testified on affirmative matters.63

Like denial, alibi is not looked upon with favor by the trial court. It also cannot prevail over witnesses
positive identification of appellant as the perpetrator of the crime. In any event, for the defense of
alibi to prosper, it is not enough that the accused can prove his presence at another place at the time
of its commission, it is likewise essential that he show physical impossibility for him to be at the locus
delicti,64 which the appellant in this case failed to do.

As aptly observed by the trial court:

The houses of the offended party and the appellant are only divided by a fence and the place of the
incident is only at the back of the house of the appellant. The defense of alibi must fail. In addition to
the positive identification made by AAA and the place of the incident is adjacent to the houses of the
victim and the appellant, being neighbors, the fact that the appellant alleged that he was having
drinking spree at that time and that he was dead drunk at around 6:00 p.m. of that date, there is no
impossibility for the appellant to be physically present at the scene of the incident, because of its
proximity.

Corroborative testimony is not credible if tainted with bias particularly in cases where the witnesses
are closely associated to the appellant as to be interested in the appellants acquittal. In this case,
the appellants witnesses are his alleged drinking buddy and his father. Considering that they are
bound by friendship and affiliation, it is conceivable that they would be inclined to make excuses for
him appellant from culpability.65

All told, appellants guilt has been proven by the prosecution beyond reasonable doubt, thus, his
conviction stands.

As to penalty. Under Article 266-B66 in relation to Article 266-A(1) of the Revised Penal Code, as
amended, simple rape is punishable by reclusion perpetua. However, when rape is committed by an
assailant who has knowledge of the victims mental retardation, the penalty is increased to death.
But this circumstance must be alleged in the information being a qualifying circumstance which
increases the penalty to death and changes the nature of the offense from simple to qualified
rape.67 In the case at bench, while appellant categorically admitted that he knew AAA to be suffering
from mental abnormalities, the prosecution failed to allege this fact in the information. As such, even
if it was proved, it cannot be appreciated as a qualifying circumstance. Thus, appellants conviction
is only for simple rape for which he should be meted the penalty of reclusion perpetua.

Nonetheless, a reasonable ground exists in this case that calls for the modification of the penaltyof
reclusion perpetua imposed by both lower courts upon the appellant.

This Court finds merit in appellants assertion that he was a minor during the commission of the
crime charged. During trial, upon order of the trial court, the Local Civil Registrar of Bobon, Northern
Samar, brought before it their office records, particularly appellants Certificate of Live

Birth containing the fact of birth of the latter. Appellants Certificate of Live Birth shows that he was
born on 23 February 1985. Indeed, at the time of the commission of the crime charged on 9
December 2002, appellant was only 17 years old, a minor. Thus, he is entitled to the privileged
mitigating circumstance of minority pursuant to Article 68(2) of the Revised Penal Code, as
amended,68 which specifically states that:
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:

xxxx

2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that
prescribed by the law shall be imposed, but always in the proper period.69 [Emphasis supplied].

Applying the privileged mitigating circumstance, the proper imposable penalty upon appellant is
reclusion temporal, being the penalty next lower to reclusion perpetua - the penalty prescribed by
law for simple rape. Being a divisible penalty, the Indeterminate Sentence Law is applicable.70

Applying the Indeterminate Sentence Law, appellant can be sentenced to an indeterminate penalty
the minimum of which shall be within the range of prision mayor (the penalty next lower in degree to
reclusion temporal), that is 6 years and 1 day to 12 years, and maximum of which shall be within the
range of reclusion temporal in its medium period (there being no other modifying circumstances
attendant to the crime), that is 14 years, 8 months and 1 day to 17 years and 4 months.71 With that,
the indeterminate penalty of 10 years of prision mayor, as minimum, to 17 years and 4 months of
reclusion temporal, as maximum, should be imposed upon the appellant. However, the case of
appellant does not, as it normally should, end at this point. On 20 May 2006, Republic Act No. 9344,
otherwise known as the "Juvenile Justice and Welfare Act of 2006," took effect. Section 68 thereof
specifically provides for its retroactive application, thus:72

SEC. 68. Children Who Have Been Convicted and are Serving 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.
They shall be entitled to appropriate dispositions provided under this Act and their sentences shall
be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or
other applicable law. [Emphasis supplied].

Clearly, Republic Act No. 9344 is applicable in this case even though the crime was committed four
(4) years prior to its enactment and effectivity. Parenthetically, with more reason should Republic Act
No. 9344 apply to this case as the 2005 conviction by the lower courts was still under review when
the law took effect in 2006.73

Section 38 of 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.74It reads, 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) 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. [Emphasis supplied].
However, while Section 38 of Republic Act No. 9344 provides that suspension of sentence can still
be applied even if the child in conflict with the law is already eighteen (18) years of age or more at
the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension
of sentence until the said child reaches the maximum age of 21, thus:75

SEC. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

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].

At present, appellant is already 27 years of age, and the judgment of the trial court was promulgated
prior to the effectivity of Republic Act No. 9344. Therefore, the application of Sections 38 and 40 of
the said law is already moot and academic.

Be that as it may, to give meaning to the legislative intent of Republic Act No. 9344, 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 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
Republic Act No. 9344 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.76 The appellant, therefore, shall be
entitled to appropriate disposition under Section 51 of Republic Act No. 9344, which provides for the
confinement of convicted children as follows:77

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.

To conform to this Courts ruling in People v.Sarcia,78 the case shall be remanded to the court of
origin to effect appellants confinement in an agricultrual camp or other training facility.79

As to damages. The civil liability resulting from the commission of the offense is not affected by the
appropriate disposition measures and shall be enforced in accordance with law.80 This Court affirms
both the civil indemnity of P50,000.00 and moral damages of P50,000.00 awarded by the lower
courts in favor of AAA. Civil indemnity, which is actually in the nature of actual or compensatory
damages, is mandatory upon the finding of the fact of rape. Case law also requires automatic award
of moral damages to a rape victim without need of proof because from the nature of the crime, it can
be assumed that she has suffered moral injuries entitling her to such award. Such award is separate
and distinct from civil indemnity.81

In consonance with prevailing jurisprudence on simple rape wherein exemplary damages are
awarded to set a public example and to protect hapless individuals from sexual molestation, this
Court likewise affirms the lower courts award of exemplary damages but increased the same from
P25,000.00 to P30,000.00 to conform to recent jurisprudence.82

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-HC No.
00457 dated 3 December 2009 is hereby MODIFIED as follows: (I) appellant is found guilty of rape
under subparagraph (b) of Article 266-A( I) of the Revised Penal Code, as amended, and not under
subparagraph (d) thereof; (2) in view of the privileged mitigating circumstance appreciated in favor of
appellant the penalty of reclusion perpetua is reduced to reclusion temporal and being a divisible
penalty, the Indeterminate Sentence Law applies and the indeterminate penalty of I 0 years of
prision mayor, as minimum, to 17 years and 4 months of reclusion temporal, as maximum, is
imposed upon the appellant; and (3) the amount of exemplary damages awarded by the lower courts
is increased from P25,000.00 to P30,000.00. The award of civil indemnity and moral damages both
in the amount of P50,000.00 are maintained. This case, however, shall be REMANDED to the court
a quo for appropriate disposition in accordance with Section 51 of Republic Act No. 9344.

RAYMUND MADALI AND G.R. No. 180380


RODEL MADALI,
Petitioners, Present:
YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
- versus - NACHURA, and
PERALTA, JJ.

Promulgated:
PEOPLE OF
THEPHILIPPINES, August 4, 2009
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -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:

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.

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 the locus 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) xxxx

5) 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 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.

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 far-fetched 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?

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.

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.

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.

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.

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:

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.

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.

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.

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

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-in-law 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.64He 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 in People 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 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

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

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, 1997 is 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 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 is reclusion
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 75,000.00 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 75,000.00 as civil indemnity and 75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from 25,000.00 to 30,000.00.

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 in Gubaton. 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 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 CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (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.

PEOPLE OF THE PHILIPPINES, G.R. No. 186128


Plaintiff-Appellee,
Present:

CARPIO MORALES, J.,


Chairperson,
- versus - BRION,
BERSAMIN,
ABAD, and
VILLARAMA, JR., JJ.

SUSAN LATOSA y CHICO, Promulgated:


Accused-Appellant.
June 23, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

This is an appeal from the Decision[1] dated April 23, 2008 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02192 which affirmed the April 12, 2006
Decision[2]of the Regional Trial Court (RTC) of Pasig City, Branch 159, convicting
appellant Susan Latosa y Chico of parricide.

Appellant was charged with parricide in an information[3] which reads,


That, on or about the 5th of February 2002, in the Municipality of
Taguig, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the legitimate
wife of one Felixberto Latosa y Jaudalso, armed with and using an
unlicensed gun, with intent to kill, did then and there willfully,
unlawfully and feloniously shoot her husband, Felixberto Latosa y
Jaudalso, hitting him on the head, thereby causing the latter to sustain
gunshot wound which directly caused his death.
CONTRARY TO LAW.

Upon arraignment on June 25, 2002, appellant, with the assistance of


counsel, pleaded not guilty. Trial thereafter ensued.

The prosecutions evidence established the following version:

On February 5, 2002, at around 2:00 in the afternoon, appellant and her


husband Major Felixberto Latosa, Sr. (Felixberto) together with two (2) of their
children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael), were at their
house in Fort Bonifacio. Felixberto, Sr. was then asleep[4] when Sassymae saw
appellant take Felixberto Sr.s gun from the cabinet and leave. She asked her
mother where she was going and if she could come along, but appellant refused.[5]

Moments later, appellant returned and told Sassymae to buy ice cream at the
commissary. Appellant gave her money and asked her to leave. [6] After Sassymae
left, appellant instructed Michael to follow his sister, but he refused as he was
hungry. Appellant insisted and further told Michael not to make any noise as his
father was sleeping. Nevertheless, appellant went back inside the house and turned
up the volume of the television and the radio to full.[7] Shortly after that, she came
out again and gave Michael some money to buy food at the grocery.

Instead of buying food, Michael bought ice candy and returned to the
barracks located at the back of their house. Michael thereupon saw his friend Mac-
Mac Nisperos who told him that he saw appellant running away from their house.
Michael did not pay any attention to his friends comment, and simply continued
eating his ice candy. Moments later, a certain Sgt. Ramos arrived and asked if
something had happened in their house. Michael replied in the negative then
entered their house. At that point, he saw his father lying on the bed with a hole in
the left portion of his head and a gun at his left hand.

Michael immediately went outside and informed Sgt. Ramos about what
happened. Sgt. Ramos told him that appellant had reported the shooting incident to
the Provost Marshall office.[8] Then, Sassymae arrived and saw her father with a
bullet wound on his head and a gun near his left hand.[9]

Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the
victim, also testified that sometime in December 2001, their father told him and his
siblings over dinner about a threat to their lives by a certain Efren Sta. Inez.[10]

Appellant, testifying on her own behalf, on the other hand claimed that when
Felixberto, Sr. woke up, he asked her to get his service pistol from the cabinet
adjacent to their bed. As she was handing the pistol to him it suddenly fired, hitting
Felixberto, Sr. who was still lying down. Shocked, she ran quickly to Felixberto,
Sr.s office and asked for help.[11] She also claimed that when Felixberto, Sr. asked
her for his gun, she was on her way out of the house to follow her children who left
for the market on an errand she had earlier given Sassymae. She claimed that she
wanted to drive for them because it was hot. She ran after them but after a few
minutes, when she realized that she did not have with her the keys to their jeep, she
went back to their house. Felixberto, Sr. then asked again for his gun, and it was
then that it fired as she was handing it to him.[12]

Appellant further described herself as a good mother and a good provider for
their six (6) children whom she raised by herself while Felixberto, Sr. was
in Mindanao. She claimed that they testified against her because they were
manipulated by her brother-in-law, Francisco Latosa.[13] She denied that Sassymae
saw her holding a gun when she asked her to buy ice cream, alleging that Michael
and Sassymae saw her holding the gun only when she placed it inside the cabinet
before they proceeded to the hospital.[14]

Appellant also denied her childrens testimony[15] that she was having an
affair with a certain Col. Efren Sta. Inez (Sta. Inez), a policeman. She claimed that
she first met Sta. Inez when her youngest brother was killed on June 6, 2001 by
unidentified men. Sta. Inez was the one (1) who assisted her. She was alone at that
time since her husband informed her that he could not leave his post
in Mindanao for he had to rush some papers. She allegedly only saw Sta. Inez
twice but admitted that Sta. Inez went to the precinct when he learned of the
shooting incident.[16] She also denied that she was terminated from her job at the
Philippine Public Safety College due to immorality for having said affair. She
claimed that she was terminated because she had incurred numerous absences from
her work as she grieved the death of her youngest brother and had lost interest in
her work after his death.[17]

The RTC found appellant guilty beyond reasonable doubt for killing her
husband Felixberto, Sr. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds the
accused SUSAN LATOSA Y CHICO GUILTY beyond reasonable
doubt of the crime of parricide under Art. 246 of the Revised Penal Code
as amended by RA 7659 in rel. to Sec. 1[,] 3 rd par. PD 1866 as amended
by RA 8294 and Sec. 5, RA 8294 and hereby sentences the said accused
to suffer the penalty of reclusion perpetua and to further indemnify the
victim the amount of P50,000 as civil indemnity[,] P50,000 as moral
damages and P25,000 as exemplary damages.

SO ORDERED.[18]

The RTC held that the claim of accidental shooting was inconsistent with the
evidence considering the location of the gunshot wound, which was at the
left temple of Felixberto, Sr., and the fact that the gun was found near Felixberto,
Sr.s left hand despite his being right-handed. The trial court found that appellant
planned the killing by asking her two (2) children to leave the house and, after the
shooting, placing the gun near the victims left hand to suggest that the death was
suicide. But appellant overlooked the fact that Felixberto, Sr. was right-
handed. The trial court noted that despite the grueling cross-examination of the
defense counsel, the Latosa children never wavered in their testimonies about what
they knew regarding the circumstances surrounding the shooting incident. Their
testimonies bore the hallmarks of truth as they were consistent on material
points. The RTC found it inconceivable that the children would testify against their
own mother or concoct a story of parricide unless they were impelled by their
passion to condemn an injustice done to their father.[19]

The RTC, in finding appellant guilty, considered the following


circumstantial evidence established by the prosecution: (1) shortly before the
shooting, appellant asked her two (2) children to do errands for her which were not
usually asked of them; (2) at the time of the shooting, only the appellant and
Felixberto, Sr. were in the house; (3) appellant was seen running away from the
house immediately after the shooting; (4) when Michael went inside their house, he
found his father with a hole in the head and a gun in his left hand; (5) the medico-
legal report showed that the cause of death was intracranial hemorrhage due to the
gunshot wound on the head with the point of entry at the left temporal region; (6)
the Firearms Identification Report concluded that appellant fired two (2) shots; (7)
Felixberto, Sr. was right-handed and the gun was found near his left hand; (8)
Sassymae testified that she heard Sta. Inez tell appellant bakit mo inamin. Sana
pinahawak mo kay Major iyong baril saka mo pinutok; (9) appellants children
testified that they were informed by Felixberto, Sr. regarding the threat of
appellants paramour, Sta. Inez, to the whole family; and (10) Francisco Latosa
presented a memorandum showing that appellant was terminated from her teaching
job by reason of immorality.[20]

On appeal, the CA upheld the decision of the RTC. The CA held that since
appellant admitted having killed her husband albeit allegedly by accident, she has
the burden of proving the presence of the exempting circumstance of accident to
relieve herself of criminal responsibility. She must rely on the strength of her own
evidence and not on the weakness of the prosecution, for even if this be weak, it
cannot be disbelieved after the appellant has admitted the killing.[21]

The CA, however, found appellants version of accidental shooting not


credible. Citing the case of People v. Reyes,[22] the CA held that appellants claim of
accidental shooting was negated by the following facts: (1) a revolver is not prone
to accidental firing as pressure on the trigger is necessary to make the gun fire,
cocked or uncocked; and (2) when handing a gun to a person, the barrel or muzzle
is never pointed to that person. In this case, appellant held the gun in one (1) hand
and extended it towards her husband who was still lying in bed. Assuming that
appellant was not aware of the basic firearm safety rule that the firearms muzzle is
never pointed to a person, she failed to explain why the gun would accidentally
fire, when it should not have fired unless there was pressure on the trigger. The
location of Felixberto, Sr.s wound also showed that the shooting was not
accidental. Appellant did not dispute that Felixberto, Sr. was lying down during the
shooting and that after the incident, the gun was found near his left hand. The CA
found that it was contrary to human nature that a newly awakened military man
would suddenly ask his wife, who was busy doing other things, to bring his
firearm, and patiently wait for her to come back to their house, when the gun was
just inside an adjacent cabinet only two (2) meters away from his bed.[23]

The dispositive portion of the CA decision reads as follows:


WHEREFORE, premises considered, the assailed decision of
the Regional Trial Court of Pasig City, Branch 159, in Criminal Case
No. 122621-H finding SUSAN LATOSA y CHICO guilty beyond
reasonable doubt of the crime of parricide under Article 246 of the
Revised Penal Code and sentencing her to suffer the penalty of reclusion
perpetua and ordering her to pay the heirs of Felixberto Latosa the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages is AFFIRMED.

SO ORDERED.[24]

Undaunted, appellant filed a Notice of Appeal on May 12, 2008.[25]

Appellant argues that the circumstantial evidence presented by the


prosecution was insufficient to prove that she intentionally killed her husband. She
insists that the gun fired accidentally while she was giving it to Felixberto, Sr.
Since she had no experience in handling firearms, she was not able to foresee that
it would fire accidentally and hit her husband. After her husband was hit, she
immediately rushed to his office and asked for assistance.[26]

The only issue the Court has to resolve in this case is whether the exempting
circumstance of accident was established by appellant.

The basis of appellants defense of accidental shooting is Article 12,


paragraph 4 of the Revised Penal Code, as amended, which provides:
ART. 12. Circumstances which exempt from criminal liability.
The following are exempt from criminal liability:

xxxx

4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of causing it.
Thus, it was incumbent upon appellant to prove with clear and convincing
evidence, the following essential requisites for the exempting circumstance of
accident, to wit:
1. She was performing a lawful act;
2. With due care;
3. She caused the injury to her husband by mere accident;
4. Without fault or intention of causing it.[27]

To prove the circumstance she must rely on the strength of her own evidence
and not on the weakness of that of the prosecution, for even if this be weak, it can
not be disbelieved after the accused has admitted the killing.[28]

However, by no stretch of imagination could the pointing of the gun towards


her husbands head and pulling the trigger be considered as performing a lawful
act with due care. As correctly found by the CA, which we quote in full:
Appellants version that she accidentally shot her husband is not
credible. Appellants manner of carrying the caliber .45 pistol negates her
claim of due care in the performance of an act. The location of the
wound sustained by the victim shows that the shooting was not merely
accidental. The victim was lying down and the fact that the gun was
found near his left hand was not directly disputed by her. We find it
contrary to human nature that a newly awakened military man would
suddenly ask his wife for his firearm, and even patiently wait for her
return to the house, when the said firearm was just inside the cabinet
which, according to appellant, was just about two meters away from his
bed.

xxxx

In the case at bench, appellant held the gun in one hand and
extended it towards her husband who was still lying in bed.
Assuming arguendo that appellant has never learned how to fire a gun
and was merely handing the firearm over to the deceased, the muzzle is
never pointed to a person, a basic firearms safety rule which appellant is
deemed to have already known since she admitted, during trial, that she
sometimes handed over the gun to her husband. Assuming further that
she was not aware of this basic rule, it needed explaining why the gun
would accidentally fire, when it should not, unless there was pressure on
the trigger.[29]
There is no merit in appellants contention that the prosecution failed to
prove by circumstantial evidence her motive in killing her husband. Intent to kill
and not motive is the essential element of the offense on which her conviction
rests. Evidence to prove intent to kill in crimes against persons may consist, inter
alia, in the means used by the malefactors, the nature, location and number of
wounds sustained by the victim, the conduct of the malefactors before, at the time,
or immediately after the killing of the victim, the circumstances under which the
crime was committed and the motives of the accused. If the victim dies as a result
of a deliberate act of the malefactors, intent to kill is presumed.[30]

In the instant case, the following circumstantial evidence considered by the


RTC and affirmed by the CA satisfactorily established appellants intent to kill her
husband and sustained her conviction for the crime, to wit:
The prosecution established the following circumstantial evidence:
(1) Susan Latosa, the accused, asked her twins to do errands for her. She
first asked Sassymae to go to Commissary to buy ice cream, thereafter,
she asked Michael to follow his sister at the Commissary which according
to the prosecution witnesses was not the usual thing the accused would
do;
(2) Thereafter, it was only the accused and the victim who were left
alone in the house;
(3) After the witness Michael, son of the accused and the victim left and
proceeded at the barracks located at the back of their house, Susan
Latosa was seen running away from the house by Michaels friend named
Macmac;
(4) Immediately thereafter, Michael Latosa went inside the room of their
barracks and saw his father with sort of a hole in the head, blood on the
nose and had a gun in his left hand (TSN, May 5, 2003, pp. 7-8, 12-13);
(5) The cause of death of the victim Felixberto Latosa was intracranial
hemorrhage due to gunshot wound of the head (per Medico-legal Report
No. M-052-2002, Exh. P);
(6) Susan Latosas paraffin test yielded positive result for the presence of
gunpowder nitrate in her right hand;
xxx
(8) The point of entry of the gunshot wound found on the victim was
located at the left temporal region as evidenced by Medico Legal Report
No. M-052-2002 (Exhibit P);
(9) The victim was a right-handed and the gun was found on the latters
left hand;
(10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell] her
mother, bakit mo inamin. Sana pinahawak mo kay Major iyong baril
saka mo pinutok. (TSN, May 19, 2002, p. 13); and
(11) The children testified that they were informed by the victim
regarding the threat of Sta. Inez to the whole family who alleged[ly] has
an amorous relationship with their mother. Francisco Latosa presented
a memorandum that accused was terminated from her teaching job by
reason of immorality.[31]

Moreover, the Court finds no cogent reason to review much less depart now
from the findings of the RTC as affirmed by the CA that appellants version is
undeserving of credence. It is doctrinally settled that the assessments of the
credibility of witnesses and their testimonies is a matter best undertaken by the trial
court, because of its unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct and attitude under grilling examination. These are
the most significant factors in evaluating the sincerity of witnesses and in
unearthing the truth, especially in the face of conflicting testimonies. Through its
observations during the entire proceedings, the trial court can be expected to
determine, with reasonable discretion, whose testimony to accept and which
witness to believe. Verily, findings of the trial court on such matters will not be
disturbed on appeal unless some facts or circumstances of weight have been
overlooked, misapprehended or misinterpreted so as to materially affect the
disposition of the case.[32] We find none in this case.

One last note. On the matter of damages, the CA awarded exemplary


damages in the amount of P25,000.00. We increase the award to P30,000.00 in
light of prevailing jurisprudence[33] fixing the award of exemplary damages to said
amount.

WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The


April 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02192
is hereby AFFIRMED with MODIFICATION. The amount of exemplary
damages is increased to P30,000.00.

[G.R. No. 127755. April 14, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL


ROSARIO y PASCUAL, accused-appellant.

DECISION
BELLOSILLO, J.:

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused


Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with
Homicide and sentencing him to death and to pay the heirs of the victim Virginia
Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary
damages.[1]
Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio Santos alias Boy
Santos and John Doe alias Dodong were charged with special complex crime of
Robbery with Homicide for having robbed Virginia Bernas, a 66-year old
businesswoman, of P200,000.00 in cash and jewelry and on the occasion thereof shot
and killed her.[2]
While accused Joselito del Rosario pleaded not guilty,[3] Virgilio Boy Santos and
John Doe alias Dodong remained at large. Ernesto Jun Marquez was killed in a police
encounter. Only Joselito del Rosario was tried.
These facts were established by the prosecution from the eyewitness account of
tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the
evening, Alonzo stopped his tricycle by the side of Nitas Drugstore, General Luna St.,
Cabanatuan City, when three women flagged him. Parked at a distance of about one
and a-half (1) meters in front of him was a tricycle driven by accused Joselito del
Rosario. At that point, Alonzo saw two (2) men and a woman grappling for possession
of a bag. After taking hold of the bag one of the two men armed with a gun started
chasing a man who was trying to help the woman, while the other snatcher kicked the
woman sending her to the ground. Soon after, the armed man returned and while the
woman was still on the ground he shot her on the head. The bag taken by the man was
brought to the tricycle of accused del Rosario where someone inside received the
bag.The armed man then sat behind the driver while his companion entered the
sidecar. When the tricycle sped away Alonzo gave chase and was able to get the plate
number of the tricycle.He also recognized the driver, after which he went to the nearest
police headquarters and reported the incident.[4]
Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in
the afternoon he was hired for P120.00[5] by a certain Boy Santos,[6] his co-
accused. Their original agreement was that he would drive him to cockpit at the Blas
Edward Coliseum.[7] However, despite their earlier arrangement boy Santos directed him
to proceed to the market place to fetch Jun Marquez and Dodong Bisaya. He (del
Rosario) acceded.[8] Marquez and Bisaya boarded in front of the parking lot of Merced
Drugstore at the public market.[9] Subsequently, he was asked to proceed and stop at
the corner of Burgos and General Luna Sts. where Bisaya alighted on the pretest of
buying a cigarette. The latter then accosted the victim Virginia Bernas and grappled with
her for the possession of her bag. Jun Marquez alighted from the tricycle to help
Dodong Bisaya.[10] Accused del Rosario tried to leave and seek help but Boy Santos
who stayed inside the tricycle prevented him from leaving and threatened in fact to
shoot him.
Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but before
boarding the tricycle Jun Marquez mercilessly shot the victim on the head while she was
lying prone on the ground. After the shooting, Dodong Bisaya boarded the sidecar of the
tricycle while Jun Marquez rode behind del Rosario and ordered him to start the engine
and drive towards Dicarma.While inside his tricycle, del Rosario overheard his
passengers saying that they would throw the bag at Zulueta St. where there were cogon
grasses.[11] Upon arriving at Dicarma, the three (3) men alighted and warned del Rosario
not to inform the police authorities about the incident otherwise he and his family would
be harmed.[12] Del Rosario then went home.[13] Because of the threat, however, he did
not report the matter to the owner of the tricycle nor to the barangay captain and the
police.[14]
As earlier stated, the court a quo found accused Joselito del Rosario guilty as
charged and sentenced him to death. He now contends in this automatic review that the
court a quo erred in: (1) Not finding the presence of threat and irresistible force
employed upon him by his co-accused Virgilio Boy Santos, Ernesto Jun Marquez and
Dodong Bisaya; (2) Not considering his defense that he was not part of the conspiracy
among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya to commit the
crime of Robbery with Homicide; (3) Not considering the violations on his constitutional
rights as an accused; and, (4) Not considering that there was no lawful warrantless
arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court. [15]
The conviction of del Rosario must be set aside. His claim for exemption from
criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the
compulsion of an irresistible force must be sustained. He was then unarmed and unable
to protect himself when he was prevented at gunpoint by his co-accused from leaving
the crime scene during the perpetration of the robbery and killing, and was only forced
to help them escape after the commission of the crime.[16]
But the trial court ruled that his fear was merely speculative, fanciful and remote,
hence, could not be considered uncontrollable; and that a gun pointed at him did not
constitute irresistible force because it fell short of the test required by law and
jurisprudence.[17]
We disagree. A person who acts under the compulsion of an irresistible force, like
one who acts under the impulse of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act with freedom. Actus me invito
factus non est meus actus. An act done by me against my will is not my act. The force
contemplated must be so formidable as to reduce the actor to a mere instrument who
acts not only without will but against his will. The duress, force, fear or intimidation must
be present, imminent and impending, and of such nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act be done. A threat of future injury
is not enough. The compulsion must be of such a character as to leave no opportunity
for the accused for escape or self-defense in equal combat.[18]
As a rule, it is natural for people to be seized by fear when threatened with
weapons, even those less powerful that a gun, such as knives and clubs. People will
normally, usually and probably do what an armed man asks them to do, nothing more,
nothing less. In the instant case, del Rosario was threatened with a gun. He could not
therefore be expected to flee nor risk his life to help a stranger. A person under the
same circumstances would be more concerned with his personal welfare and security
rather than the safety of a person whom he only saw for the first time that day. [19]
Corollary with defense of del Rosario, we hold that the trial court erred when it said
that it was Boy Santos who left the tricycle to chase the companion of the victim and
then shot the victim on the head, instantly killing her.[20] A careful and meticulous
scrutiny of the transcripts and records of the case, particularly the testimonies of the
witness Alonzo and del Rosario himself, reveals that it was Jun Marquez who ran after
the victims helper and fired at the victim. Witness Alonzo testified on direct examination
-
Q: What was that unusual incident that transpired in that place at that time?
A: I saw two men and a lady grappling for the possession of a bag, sir x x x x
Q: What happened after the bag of the lady was grabbed by the two men?
A: One helper of the lady was chased by the other man, sir.
Q: Who was that man who chased the helper of the lady?
A: He was the one holding the gun, sir x x x x
Q: What happened when the bag of the woman was already taken by the two men who
grappled the same from her?
A: The man who chased the helper of the lady returned to the scene while the other man was
then kicking the lady who in turn fell to the ground, sir.
Q: What happened to the lady who to the ground?
A: The man who chased the helper of the lady returned and then shot the woman who was
then lying on the ground, sir x x x x
Q: What about the bag, what happened to the bag?
A: The bag was taken to a motorcycle, sir.
Q: Will you please state before the Court what you noticed from the tricycle which was at a
distance of about one and a half meter?
A: There was a passenger inside the tricycle, sir x x x x
Q: What happened to that woman that was shot by the man who grappled for the possession
of the bag?
A: She was no longer moving and lying down, sir.
Q: After the shooting by one of the two men of the woman what else happened?
A: They went away, sir x x x x
Q: Will you please tell the Court in what portion of the tricycle did these men sit in the
tricycle?
A: The man who was holding the gun sat himself behind the driver while the other
man entered the sidecar, sir.[21]
On the continuation of his direct examination, after an ocular inspection on the
crime scene conducted by the trial court, witness Alonzo categorically stated
Q: Will you please tell us where in particular did you see the accused who was then holding
the gun fired at the victim?
A: At the time one man was kicking the victim it was then his other companion holding the
gun chased the helper of the deceased going towards Burgos Avenue, sir.
Q: What happen (sic) afterwards?
A: The man with the gun returned and then while the victim was lying down in this spot the
man holding the gun shot the victim, sir.[22]
On cross-examination, the same witness further clarified
Q: So, you saw the two other accused returned back to the tricycle?
A: Yes, sir.
Q: And one of their companion was already inside the tricycle?
xxxx
Court: There was somebody inside the tricycle where the handbag was given.
xxxx
A: Yes, sir.
Q: And the one who sat at the back of the tricycle driver was the person with the gun?
A: Yes, sir.[23]
On the other hand, accused Del Rosario declared during the direct examination that
Q: x x x x On the evening of May 13, 1996 you were the driver of the tricycle as testified to by
Eduardo Nalagon?
A: Yes, sir.
Q: Now, you also heard that there was a shoot out near the Cathedral and the Nitas
Drugstore at Gen. Tinio St.?
A: Yes, sir.
xxxx
Court: At that time you were seated at the tricycle, which tricycle was used by the assailants?
A: Yes, sir.
Q: Then what did you do?
A: I tried to escape, sir, but I was stopped by them.
Q: When you said they to whom are you referring?
A: Boy Santos and Jun Marquez, sir.
Q: And at that time where was Boy Santos?
A: He was inside the tricycle, sir.
Q: And what about Jun Marquez?
A: He alighted from the tricycle and helped him grabbed (sic) the bag of the victim.
Q: And was the bag grabbed and by whom?
A: Yes, sir, by Dodong Visaya was able to grab the bag.
Q: And after that what happened?
A: Both of them rode inside my tricycle, sir.
Court: Did you not see any shooting?
A: There was, sir.
Q: Who was shot?
A: Jun Marquez shot the woman, sir x x x x
Q: When the bag of the woman was being grabbed you know that what was transpiring was
wrong and illegal?
A: Yes, sir.
Q: But you did not try to leave?
A: I tried to leave but Boy Santos who was inside my tricycle prevented me.
Q: During that time before you leave (sic) how many firearms did you see?
A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez and one in the possession
of Boy Santos x x x x
Q: And at the time when the shooting took place where was Boy Santos?
A: He was still inside my tricycle, sir.
Q: And during the shooting when Boy Santos was inside the tricycle and when you tried to
escape that was the time when Boy Santos threatened you if you will escape something
will happen to your family?
A: Yes, sir.
Q: After the shooting who first boarded the tricycle, Boy (Jun?) Marquez or Dodong Visaya?
A: Dodong Visaya, sir.
Q: And immediately thereafter Jun Marquez boarded your tricycle sitting at your back?
A: Yes, sir.[24]
On cross-examination, accused further stated
Q: After shopping in that place for one minute what else happened?
A: I saw Dodong Bisaya grabbing the bag of the woman, sir.
Q: How about your two companions, what are (sic) they doing while Dodong Bisaya was
grabbing the bag of the woman?
A: Jun Marquez was helping Dodong Bisaya, sir.
Q: What happened after Jun Marquez helped Dodong Bisaya?
A: I heard a gunshot and I saw the woman lying down x x x x
Q: You could have ran away to seek the help of the police or any private persons?
A: I was not able to ask for help because Boy Santos pointed his gun to me, sir.
Q: Was the gun being carried by Boy Santos, is the one that is used in shooting the old
woman?
A: No, sir x x x x.
Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez were grappling for the
possession of the handbag?
A: He was then inside the tricycle, sir x x x x[25]
Q: Mr. Witness, you testified that the reason why you just cannot leave the area where the
incident occurred is because a gun was pointed to you by Boy Santos and he was telling
you that you should not do anything against their will, they will kill you and your family
will be killed also, is that correct?
A: Yes, sir.
Q: Now, is it not a fact that at the time you stop (sic) your tricycle which was loaded by your
other three co-accused in this case, all of them alighted and that Boy Santos ran after a
helper of the victim going towards the public market along Burgos Street?
A: He did not alight from the tricycle, sir.
Court: Are you quite sure of that?
A: Yes, sir.[26]
Del Rosario maintains that Boy Santos never left the tricycle and that the latter
pointed his gun at him and threatened to shoot if he tried to escape. He also asserted
that it was Jun Marquez who shot the victim and sat behind him in the tricycle.
From the narration of witness Alonzo, these events stood out: that after the bag of
the victim was grabbed, her male helper was chased by a man holding a gun; that the
gunwielder returned and shot the victim and then sat behind the driver of the tricycle;
and, the bag was given to a person who was inside the tricycle. Taking the testimony of
witness Alonzo in juxtaposition with the testimony of del Rosario, it can be deduced that
Jun Marquez was the person witness Alonzo was referring to when he mentioned that a
helper of the lady was chased by the other man and that this other man could not be
Boy Santos who stayed inside the tricycle and to whom the bag was handed over. This
conclusion gives credence to the claim of del Rosario that Boy Santos never left the
tricycle, and to his allegation that Boy Santos stayed inside the tricycle precisely to
threaten him with violence and prevent him from fleeing; that there could have been no
other plausible reason for Boy Santos to stay in the tricycle if the accused was indeed a
conspirator; that Boy Santos could have just left the tricycle and helped in the
commission of the crime, particularly when he saw the victim grappling with Dodong
Bisaya and resisting the attempts to grab her bag; and, that Boy Santos opted to remain
inside the tricycle to fulfill his preordained role of threatening del Rosario and insuring
that he would not escape and leave them behind.[27]
Even if the tricycle of del Rosario was only parked one meter and a half (1) in front
of the tricycle of witness Alonzo, the latter still could not have totally seen and was not
privy to events that were transpiring inside the vehicle, i.e., the pointing of the gun by
Boy Santos at del Rosario simultaneously with the robbing and shooting of the
victim. From the exhibits submitted by the prosecution panel the back of the sidecar of
del Rosario tricycle was not transparent.[28]
There is no doubt that the fear entertained by del Rosario because of the gun
directly pointed at him was real and imminent. Such fear rendered him immobile and
subject to the will of Boy Santos, making him for the moment of automaton without a will
of his own. In other words, in effect, he could not be any more than a mere instrument
acting involuntarily an against his will. He is therefore exempt from criminal liability since
by reason of fear of bodily harm he was compelled against his will to transport his co-
accused away from the crime scene.
On the issue of conspiracy, the trial court anchored del Rosarios conviction on his
participation in the orchestrated acts of Boy Santos, Jun Marquez and Dodong Bisaya.
According to the trial court, del Rosario facilitated the escape of the other malefactors
from the crime scene and conspiracy between accused and his passengers was evident
because while the grappling of the bag, the chasing of the helper of the victim and the
shooting that led to the death of Virginia Bernas were happening, accused Joselito del
Rosario was riding on his tricycle and the engine of the motor was running; [29] that the
accused did not deny that the tricycle driven by him and under his control was hired and
used by his co-accused in the commission of the crime; neither did he deny his failure to
report to the authorities the incident of robbery, killing and fleeing away from the scene
of the crime.[30]
We disagree with the trial court. A conspiracy in the statutory language exists when
two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. The objective of the conspirators is to perform an act or omission
punishable by law. That must be their intent. There is need for concurrence of wills or
unity of action and purpose or for common and joint purpose and design. Its
manifestation could be shown by united and concerted action. [31]
Admittedly, direct proof is not essential to establish conspiracy. Since by its nature
conspiracy is planned in utmost secrecy, it can rarely be proved by direct
evidence. Consequently, the presence of the concurrence of minds which is involved in
conspiracy may be inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some complete whole. If it is
proved that two or more persons aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among them to concert means is proved. That would be
termed an implied conspiracy.[32] Nevertheless, mere knowledge, acquiescence or
approval of the act, without the cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy, but that there must be intentional participation in
the transaction with a view to the furtherance of the common design and
purpose. Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence. In fact, the same degree of proof necessary to establish the crime
is required to support a finding of the presence of a criminal conspiracy, which is, proof
beyond reasonable doubt.[33]
In the instant case, while del Rosario admits that he was at the locus criminis as he
was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt
against him by asserting that he had no inkling of the malevolent design of his co-
accused to rob and kill since he was not given any briefing thereof. He was merely hired
by Boy Santos to drive to an agreed destination and he was prevented at gunpoint from
leaving the scene of the crime since he was ordered to help them escape.
In this case, the trial court stated that "there is no evidence that the accused came
to an agreement concerning the commission of the felony and decided to commit the
same."[34]Therefore, in order to convict the accused, the presence of
an implied conspiracy is required to be proved beyond reasonable doubt. However, the
fact that del Rosario was with the other accused when the crime was committed is
insufficient proof to show cabal. Mere companionship does not establish
conspiracy.[35] The only incriminating evidence against del Rosario is that he was at the
scene of the crime but he has amply explained the reason for his presence and the
same has not been successfully refuted by the prosecution. As stated earlier, he feared
for his safety and security because of the threat made by his co-accused that he would,
be killed should he shout for help. No complicity can be deduced where there is
absolutely no showing that the accused directly participated in the overt act of robbing
and shooting although he was with the persons who robbed and killed the victim. [36]
That del Rosario did not disclose what he knew about the incident to the authorities,
to his employer or to the barangay captain does not affect his credibility. The natural
hesitance of most people to get involved in a criminal case is of judicial notice. [37] It must
be recalled that del Rosario was merely a tricycle driver with a family to look after. Given
his quite limited means, del Rosario understandably did not want to get involved in the
case so he chose to keep his silence. Besides, he was threatened with physical harm
should he squeal.
Del Rosario further contends that there was violation of his right to remain silent,
right to have competent and independent counsel preferably of his own choice, and
right to be informed of these rights as enshrined and guaranteed in the Bill of
Rights.[38] As testified to by SP04 Geronimo de Leon, the prosecution witness who was
the team leader of the policemen who investigated the 13 May incident, during his
cross-examination -

Upon finding the name of the owner of the tricycle, they proceeded to Bakod
Bayan in the house of the barangay captain where the owner of the tricycle
was summoned and who in turn revealed the driver's name and was invited
for interview. The driver was accused Joselito del Rosario who volunteered to
name his passengers on May 13, 1996. On the way to the police station,
accused informed them of the bag and lunch kit's location and the place
where the hold-uppers may be found and they reported these findings to their
officers, Capt. Biag and Capt.Cruz. After lunch, they proceeded to
Brgy. Dicarma composed of 15 armed men where a shoot-out transpired that
lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they
went inside the house where they found Marquez dead holding a magazine
and a gun. While all of these were happening, accused del Rosario was at the
back of the school, after which they went back to the police station. The
investigator took the statement of the accused on May 14,1996, and was only
subscribed on May 22,1996. All the while, he was detained in the police
station as ordered by the Fiscal. His statements were only signed on May 16,
1996. He also executed a waiver of his detention. His Sinumpaang Salaysay
was done with the assistance of Ex-Judge Talavera.[39]

A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma,
del Rosario was handcuffed by the police because allegedly they had already gathered
enough evidence against him and they were afraid that he might attempt to escape. [40]
Custodial investigation is the stage where the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect
taken into custody by the police who carry out a process of interrogation that lends itself
to elicit incriminating statements. It is well-settled that it encompasses any question
initiated by law enforcers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. [41] This concept of custodial
investigation has been broadened by RA 7438[42] to include "the Practice of issuing
an 'invitation' to a person who is investigated in connection with an offense he is
suspected to have committed." Section 2 of the same Act further provides that -

x x x x Any public officer or employee, or anyone acting under his order or in


his place, who arrests, detains or investigates any person for the commission
of an offense shall inform the latter, in a language known and understood by
him of his right to remain silent and to have competent and independent
counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel by the
investigating officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during
custodial investigation. From the time he was "invited" for questioning at the house of
the barangay captain, he was already under effective custodial investigation, but he was
not apprised nor made aware thereof by the investigating officers. The police already
knew the name of the tricycle driver and the latter was already a suspect in the robbing
and senseless slaying of Virginia Bernas. Since the prosecution failed to establish that
del Rosario had waived his right to remain silent, his verbal admissions on his
participation in the crime even before his actual arrest were inadmissible against him, as
the same transgressed the safeguards provided by law and the Bill of Rights.
Del Rosario also avers that his arrest was unlawful since there was no warrant
therefor. Section 5, Rule 113 of the Rules of Court provides:[43]

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private


person may, without a warrant, arrest a person: (a) When, in his presence, the
person to be arrested has committed, is actually committing, or is attempting
to commit an offense; (b) When an offense has in fact been committed and he
has personal knowledge of facts indicating that the person to be arrested has
committed it; and, (c) When the person to be arrested is a prisoner who has
escaped from penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon during the
police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People
vs Sucro[44] we held that when a police officer sees the offense, although at a distance,
or hears the disturbances created thereby, and proceeds at once to the scene thereof,
he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113,
since the offense is deemed committed in his presence or within his view. In essence,
Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or
caught immediately after the consummation of the act. The arrest of del Rosario is
obviously outside the purview of the aforequoted rule since he was arrested on the day
following the commission of the robbery with homicide.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent
requirements before a warrantless arrest can be effected: (1) an offense has just been
committed; and (2) the person making the arrest has personal knowledge of facts
indicating that the person to be arrested had committed it. Hence, there must be a large
measure of immediacy between the time the offense was committed and the time of the
arrest, and if there was an appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be secured. Aside from the sense of
immediacy, it is also mandatory that the person making the arrest must have personal
knowledge of certain facts indicating that the person to be taken into custody has
committed the crime.[45] Again, the arrest of del Rosario does not comply with these
requirements since, as earlier explained, the arrest came a day after the consummation
of the crime and not immediately thereafter. As such, the crime had not been "just
committed" at the time the accused was arrested. Likewise, the arresting officers had no
personal knowledge of facts indicating that the person to be arrested had committed the
offense since they were not present and were not actual eyewitnesses to the crime, and
they became aware of his identity as the driver of the getaway tricycle only during the
custodial investigation.
However the conspicuous illegality of del Rosario's arrest cannot affect the
jurisdiction of the court a quo because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any objection thereto is waived when
the person arrested submits to arraignment without any objection, as in this case. [46]
A transgression of the law has occurred. Unfortunately, an innocent person lost her
life and property in the process. Someone therefore must be held accountable, but it will
not be accused Joselito del Rosario; we must acquit him. Like victim Virginia Bernas, he
too was a hapless victim who was forcibly used by other persons with nefarious designs
to perpetrate a dastardly act. Del Rosario's defense of "irresistible force" has been
substantiated by clear and convincing evidence. On the other hand, conspiracy between
him and his co-accused was not proved beyond a whimper of a doubt by the
prosecution, thus clearing del Rosario of any complicity in the crime charged.
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City
convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide
and sentencing him to death, is REVERSED and SET ASIDE, and the accused is
ACQUITTED of the crime charged. His immediate RELEASE from confinement is
ordered unless held for some other lawful cause. In this regard, the Director of Prisons
is directed to report to the Court his compliance herewith within five (5) days from
receipt hereof.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GONZALO
BALDOGO, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Joint Judgment, dated October 18,


[i]

1996, of the Regional Trial Court, Branch 52, Puerto Princesa City, finding
accused-appellant Gonzalo Baldogo alias Baguio guilty beyond reasonable
doubt of the crime of Murder in Criminal Case No. 12900 and Kidnapping in
Criminal Case No. 12903. The trial court imposed on accused-appellant the
supreme penalty of death in Criminal Case No. 12900 and reclusion
perpetua in Criminal Case No. 12903.

I. The Indictments

Two Informations were filed against accused-appellant and Edgar Bermas


alias Bunso which read:

That on or about the 22nd day of February, 1996 in the evening at the residence of Mr.
Julio Camacho of Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines
and within the jurisdiction of this Honorable Court, the said accused who were both
convicted by final judgment of the offense of Homicide and while already serving
sentence, committed the above name offense by conspiring and confederating together
and mutually helping one another, with intent to kill, with treachery and evident
premeditation and while armed with a bolo, did then and there wilfully, unlawfully
and feloniously assault, attack and hack one JORGE CAMACHO, hitting him and
inflicting upon him mortal wounds at the different parts of his body, which was the
direct and immediate cause of his death shortly thereafter.

CONTRARY TO LAW, with the aggravating circumstances of treachery, evident[,]


premeditation and recidivism. Puerto Princesa City, Philippines, March 5, 1996.[1]

xxx

That on Thursday, February 22, 1996 at more or less 8:15 in the evening at the
Victims residence, Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines
and within the jurisdiction of this Honorable Court, the said accused while serving
sentence at the Central Sub-Colony both for the offense of Homicide, conspiring and
confederating together and mutually helping one another, commits (sic) another
offense, kidnapping one JULIE E. CAMACHO, a girl 12 years of age, and brought
her to the mountains, where said Julie E. Camacho was detained and deprived of her
liberty fro [sic] more than five days.

CONTRARY TO LAW and attended by the aggravating circumstance of recidivism. [2]


Accused-appellant was arraigned on June 28, 1996 and entered a plea of
not guilty to both charges. Edgardo Bermas died before he could be
[3]

arraigned. The two cases were ordered consolidated and a joint trial
[4]

thereafter ensued.
The prosecution presented four witnesses, namely, Julie Camacho, Dr.
Edilberto Joaquin, Esteban Mamites and Julio Camacho, Sr., and offered
documentary and object evidence on its evidence-in-chief.

II. The Antecedent Facts

Julio Camacho, Sr. and his wife, Heather Esteban, had four children,
namely: Julio, Jr., a student of the Palawan State University in Puerto
Princesa City and who stayed in Guaygo, Puerto Princesa City; Jorge, who
was fourteen years old; Julie, who was 12 years old and a grade six
[5]

elementary pupil at the Iwahig Elementary School and Jasper, who was eight
years old. Julio Sr. was employed as a security guard in the Iwahig Prison and
Penal Colony. He and his family lived in a compound inside the sub-
colony. Edgardo Bermas alias Bunso, an inmate of the penal colony, was
assigned as a domestic helper of the Camacho spouses. Accused-appellant
alias Baguio, also an inmate of the colony, was assigned in January 1996 as a
domestic helper of the Camacho family. Both helpers resided in a hut located
about ten meters away from the house of the Camacho family.
In the evening of February 22, 1996, accused-appellant and Bermas
served dinner to Julio Sr., Jorge and Julie in the house of the Camachos. At
about 7:30 p.m., Julio Sr. left the house to attend a bible study at the
dormitory in the Agronomy Section of the Penal Farm. Heather and her son,
Jasper, were in Aborlan town. Only Jorge and his sister Julie were left in the
house.
After Julio Sr. had left the house, Julie went to the sala to study her
assignment. Momentarily, Bermas called Julie from the kitchen saying: Jul,
tawag ka ng kuya mo. Julie ignored him.After five minutes, Bermas called her
again but Julie again ignored him. Julie was perturbed when she heard a loud
sound, akin to a yell, Aahh! Ahh! coming from the kitchen located ten meters
from the house. This prompted Julie to stand up and run to the kitchen. She
was appalled to see Jorge sprawled on the ground near the kitchen, face
down and bloodied. The vicinity was lighted by a fluorescent lamp. Standing
over Jorge were accused-appellant and Bermas, each armed with a
bolo. The shirt of Bermas was bloodied. Julie was horrified and so petrified
[6] [7]

that although she wanted to shout, she could not. She ran back to the sala
with accused-appellant and Bermas in pursuit. Accused-appellant overtook
Julie, tied her hands at her back with a torn t-shirt and placed a piece of cloth
in her mouth to prevent her from shouting for help from their
neighbors. Bermas went to the room of Julies brothers. Accused-appellant
dragged Julie outside the house and towards the mountain. Bermas tarried in
the house.
With the aid of a flashlight, accused-appellant, with Julie in tow, walked for
hours towards the direction of the mountain. About a kilometer away from the
house of the Camachos, accused-appellant and Julie stopped under a big
tamarind tree at the foot of the mountain. After about thirty minutes, Bermas
arrived with a kettle and raw rice. Accused-appellant and Bermas retrieved a
bag containing their clothing and belongings from the trunk of the tamarind
tree. They untied Julie and removed the gag from her mouth. The three then
proceeded to climb the mountain and after walking for six hours or so,
stopped under a big tree where they spent the night. When the three woke up
in the morning of the following day, February 23, 1996, they continued their
ascent of the mountain. Seven hours thereafter, they started to follow a
descending route. Accused-appellant and Bermas told Julie that they would
later release her. At about 3:00 p.m., Bermas left accused-appellant and
Julie. However, accused-appellant did not let go of Julie. The two survived on
sugar and rice cooked by accused-appellant.Once, they saw uniformed men
looking for Julie. However, accused-appellant hid Julie behind the tree. She
wanted to shout but he covered her mouth.
In the early morning of February 28, 1996, accused-appellant told Julie
that he was leaving her as he was going to Puerto Princesa City. He told her
to fend for herself and return to the lowland the next day. After their breakfast,
accused-appellant left Julie alone to fend for herself. A few hours after
accused-appellant had left, Julie decided to return to the lowlands. She found
a river and followed its course toward Balsaham until she saw a hut. She
called upon its occupant who introduced himself as Nicodemus. Julie sought
help from him. When asked by Nicodemus if she was the girl whom the police
authorities were looking for, she replied in the affirmative. Nicodemus brought
Julie to Balsaham where they met some personnel of the penal colony and
police officers, and Nicodemus turned Julie over for custody to them.
Meanwhile, Julio, Sr. arrived home after his bible study at about 9:00 p.m.
on February 22, 1996. He noticed that the television set was switched on but
no one was watching it. He looked for his children but they were nowhere to
be found. He then proceeded to the hut occupied by accused-appellant and
Bermas but he also failed to find them. Julio Sr. then rushed to the house of
his older brother, Augusto Camacho, to look for his children, but Augusto told
him that Jorge and Julie were not there. Julio Sr. then sought the help of
Romualdo Esparagoza, a trustee of the penal farm. The two rushed back to
the Camacho residence and proceeded to the kitchen where they noticed
blood on the floor. The two proceeded to the dirty kitchen and saw the
bloodied body of Jorge dumped about three meters away from the dirty
kitchen. Julio Sr. and Esparagoza then brought Jorge to the Iwahig Hospital
where he was pronounced dead on arrival at 12:40 a.m. of February 23,
1996. Dr. Edilberto Joaquin examined the cadaver and found that the victim
was stabbed on the breast once and at the back seven times. He sustained a
lacerated wound on the neck. The layers of the neck, trachea and esophagus
of Jorge had been cut. Jorge did not sustain any defensive wound. Dr.
Joaquin performed an autopsy of the cadaver and signed a medical certificate
with his findings, thus:

MEDICAL CERTIFICATE

GENERAL DATA:

JORGE CAMACHO y ESTEBAN, 14 years old, student, resident of Iwahig Prison


and Penal Farm, approximately 53 inches in-height, was brought to the hospital,
(DOA) dead on arrival at 12:40 AM, 23 February 1996, approximate time of death
8:00 P.M. February 22, 1996.

FINDINGS

1. Stab wound, deep, penetrating, approximately 1 inch in length, at the level of the
xyphoid process, anteriorly.
2. Stab wound, chest, back, approximately 1 inch length, right midclavicular line, level
of the 3rd rib.
3. Stab wound, back, right midclavicular line, level of the 5th rib.
4. Stab wound, back, approximately 1 inch length level of the 5th rib, left midclavicular
line.
5. Stab wound, back, approximately 1 inch length, right midclavicular line, 6th rib.
6. Stab wound, back, approximately 1 inch length, right midclavicular line, level of the
4th lumbar region.
7. Stab wound, back, approximately 1 inch in length, right third lumbar region, deep,
penetrating involving the liver.
8. Stab wound, back, approximately 3/4 inch, at the level of the 2nd lumbar region.
9. Lacerated wound, neck, anteriorly, deep, penetrating, cutting the layers of the neck
and the trachea and esophagus.
CAUSE OF DEATH

Hypovolemia due to severe hemorrhage secondary to multiple stab wounds and


laceration of the neck.
[8]

Wounds numbers 7 and 9 were fatal. It was possible that two sharp-edged
and sharp pointed weapons were used in stabbing Jorge and that two
assailants stabbed the victim.[9]

On February 29, 1996, Julie gave her sworn statement and a


supplemental sworn statement to the police investigators. Julio Sr. suffered
[10]

mental anguish and sleepless nights because of the death of Jorge.


The prosecution adduced in evidence excerpts of the personal file of
accused-appellant kept in the penal colony showing that he had been
convicted of homicide by the Regional Trial Court of Baguio City and that he
commenced serving sentence on November 19, 1992 and that the minimum
term of his penalty was to expire on August 16, 1997. [11]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant denied killing Jorge and kidnapping Julie. Accused-


appellant asserted that Julie implicated him because she was coached and
rehearsed. He testified that he was assigned as a helper in the house of
Augusto Camacho, the Chief of the Industrial Section of the colony and the
older brother of Julio Sr. Augusto told accused-appellant that his brother, Julio
Sr., wanted to have accused-appellant transferred as his domestic
helper. However, accused-appellant balked because he had heard from
Edgardo Bermas, the helper of Julio Sr., that the latter was cruel and had
been maltreating Bermas. Nonetheless, in December 1995, accused-
appellant was transferred as a domestic helper of Julio Sr. Accused-appellant
confirmed that indeed Julio Sr. was cruel because whenever the latter was
angry, he maltreated accused-appellant by spanking and boxing him. These
would occur about two times a week.
On February 22, 1996, at about 6:30 p.m., accused-appellant took his
dinner in the kitchen. At about 7:00 p.m., while he was already in his quarters
and preparing to sleep, Bermas arrived, armed with a bloodied bolo
measuring about 1 feet long and told accused-appellant that he (Bermas) had
just killed Jorge to avenge the maltreatment he received from Julio Sr.Bermas
warned accused-appellant not to shout, otherwise he will also kill
him. Petrified, accused-appellant kept silent. Bermas then brought accused-
appellant to the kitchen in the house of the Camachos where accused-
appellant saw the bloodied body of Jorge sprawled near the kitchen. Bermas
called Julie three times, telling her that her brother was calling for her but Julie
at first ignored Bermas. Julie later relented and went to the kitchen where
Bermas grabbed her and threatened to kill her if she shouted. Bermas tied the
hands of Julie with a piece of cloth and placed a piece of cloth around her
face to prevent her from shouting.
Bermas, still armed with his bolo tucked on his waist and a knife on his
hand, brought accused-appellant and Julie outside the house. The three then
trekked towards the mountain. On the way, Bermas picked a bag containing
food provisions and his and accused-appellants clothings. Accused-appellant
thought of escaping but could not because Bermas was watching him. With
the help of a flashlight brought by Bermas, the three walked towards the
mountain, with Julie walking ahead of accused-appellant and Bermas. After
walking for hours, they stopped by a tree to which Bermas tied Julie. At one
time, while Bermas and accused-appellant were scouring for water, Bermas
kicked accused-appellant and pushed him into a ten feet deep ravine. The
right hand and foot of accused-appellant sustained bruises. He likewise
sustained a sprain on his foot. Bermas left accused-appellant and Julie after 1
days.
In the meantime, accused-appellant managed to climb out of the ravine
and heard Julie calling his name. Julie later told accused-appellant that before
Bermas left, the latter told her that he was going to kill accused-appellant.
Accused-appellant and Julie remained in the mountain after Bermas had
left. At one time, accused-appellant and Julie saw soldiers who were looking
for her. Accused-appellant did not reveal his and Julies location to the soldiers
because he was afraid that he might be killed. On February 25, 1996,
accused-appellant untied Julie. He told her that he will set her free as soon as
his foot shall have healed.
On February 27, 1996, accused-appellant told Julie that she can go home
already. He ordered her to go down the mountain and proceed to Balsaham
on her way back home. Although his foot was still aching, accused-appellant
went down from the mountain ahead of Julie and proceeded to Balsaham. He
then walked to Irawan where he took a tricycle to the public market in the
poblacion in Puerto Princesa City. He then took a passenger jeepney and
alighted at Brookes Point where he was arrested after one week for the killing
of Jorge and the kidnapping of Julie.
Accused-appellant maintained that he did not intend to hurt Julie or
deprive her of her liberty. He averred that during the entire period that he and
Julie were in the mountain before Bermas left him, he tried to protect her from
Bermas. Accused-appellant asserted that he wanted to bring Julie back to her
parents after Bermas had left them and to surrender but accused-appellant
was afraid that Julio Sr. might kill him.

IV. The Verdict of the Trial Court

After due proceedings, the trial court rendered its decision, the decretal
portion of which reads:

WHEREFORE, foregoing premises considered, a Joint Judgment is hereby rendered


in:

A. CRIMINAL CASE NO. 12900 finding the accused Gonzalo Baldogo, alias
Baguio, guilty beyond reasonable doubt as principal of the crime of murder as defined
and penalized in Article 248 of the Revised Penal Code, as amended by Section 6 of
Republic Act No. 7659, and appreciating against him the specific aggravating
circumstance of taking advantage and use of superior strength, without any mitigating
circumstance to offset the same, and pursuant to the provisions of the second
paragraph, No. 1, of Article 63 of the Revised Penal Code, he is hereby sentenced to
death in the manner prescribed by law; to pay the heirs of the deceased Jorge
Camacho;

1. Actual and compensatory damages:


For expenses incurred for funeral and
other expenses incident to his death ---P45,000.00
2. Moral damages ----------------------------- 100,000.00
3. Civil indemnity for the death of the
victim, Jorge Camacho ------------------- 50,000.00
or the aggregate amount of ------------- 195,000.00

B. CRIMINAL CASE NO. 12903 finding the accused GONZALO BALDOGO, alias,
Baguio, guilty beyond reasonable doubt as principal of the crime of kidnapping and
serious illegal detention as defined and penalized in Article 267 of the Revised Penal
Code, as amended by Section 8 of Republic Act No. 7659, and there being no
modifying circumstance appreciated and pursuant to the provisions of the second
paragraph, No. 2, of Article 63 of the Revised Penal Code, and not being entitled to
the benefits of the Indeterminate Sentence Law, he is hereby sentenced to reclusion
perpetua, with the accessory penalties of civil interdiction for life, and of perpetual
absolute disqualification; to pay the offended party, Julie Camacho for physical
suffering, mental anguish, fright, serious anxiety and moral shock, moral damages of
P100,000; and to pay the costs.

The case as against co-accused Edgar Bermas is ordered dismissed by reason of


extinction of criminal liability occasioned by his death pending conclusion of the
proceedings as against him.

SO ORDERED. [12]

V. Assignment of Error

In his appeal brief, accused-appellant avers that:


I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND KIDNAPPING.
II
THE TRIAL COURT ERRED IN REJECTING ACCUSED-APPELLANTS DEFENSE OF
DENIAL.
III
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AGGRAVATING
CIRCUMSTANCE OF EVIDENT PREMEDITATION AND GENERIC AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF SUPERIOR STRENGTH DESPITE
THE FAILURE OF THE PROSECUTION TO PROVE THE SAME.
IV
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THE
ACCUSED-APPELLANT IN THE (SIC) CRIMINAL CASE #12900.[13]

VI. Resolution of this Court

The first two assignments of errors being interrelated, the Court will delve
into and resolve the same simultaneously.
Accused-appellant avers that he had nothing to do with, and hence should
not be claimed for, the death of Jorge and the kidnapping and detention of
Julie. Accused-appellant claims that he was acting under duress because he
was threatened by Bermas with death unless he did what Bermas ordered him
to do. Accused-appellant was even protective of Julie. He insists that the latter
was not a credible witness and her testimony is not entitled to probative
weight because she was merely coached into implicating him for the death of
Jorge and her kidnapping and detention by Bermas.
We find the contention of accused-appellant farcical. At the heart of the
submission of accused-appellant is the credibility of Julie, the 12-year old
principal witness of the prosecution and the probative weight of her testimony.
This Court has held in a catena of cases that the findings of facts of the
trial court, its calibration of the testimonial evidence of the parties, its
assessment of the probative weight of the collective evidence of the parties
and its conclusions anchored on its findings are accorded by the appellate
court great respect, if not conclusive effect. The raison detre of this principle is
that this Court has to contend itself with the mute pages of the original records
in resolving the issues posed by the parties:

x x x The record will not reveal those tell-tale signs that will affirm the truth or expose
the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a
ready reply. The record will not show if the eyes have darted in evasion or looked
down in confession or gazed steadily with a serenity that has nothing to distort or
conceal. The record will not show if tears were shed in anger, or in shame, or in
remembered pain, or in feigned innocence. Only the judge trying the case can see all
these and on the basis of his observations arrive at an informed and reasoned verdict. [14]

In contrast, the trial court has the unique advantage of monitoring and
observing at close range the attitude, conduct and deportment of witnesses as
they narrate their respective testimonies before said court. Echoing a foreign
courts observation, this Court declared:

Truth does not always stalk boldly forth naked, but modest withal, in a printed
abstract in a court of last resort. She oft hides in nooks and crannies visible only to the
minds eye of the judge who tries the case.To him appears the furtive glance, the blush
of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the
heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full
realization of the solemnity of an oath, the carriage and mien. The brazen face of the
liar, the glibness of the schooled witness in reciting a lesson, or the itching
overeagerness of the swift witness, as well as the honest face of the truthful one, are
alone seen by him. [15]

The rule, however, is not iron clad. This Court has enumerated exceptions
thereto, namely: (a) when patent inconsistencies in the statements of
witnesses are ignored by the trial court;(b) when the conclusions arrived at are
clearly unsupported by the evidence; (c) when the trial court ignored,
misunderstood, misinterpreted and/or misconstrued facts and circumstances
of substance which, if considered, will alter the outcome of the case. In this
[16]

case, the trial court found the youthful Julie credible and her testimony entitled
to full probative weight. Accused-appellant has not sufficiently demonstrated
to this Court the application of any of the aforestated exceptions.
The Court agrees with accused-appellant that the prosecution was
burdened to prove his guilt beyond reasonable doubt of the felonies for which
he is charged. This Court has held that accusation is not synonymous with
guilt. It is incumbent on the prosecution to prove the corpus delicti, more
specifically, that the crimes charged had been committed and that accused-
appellant precisely committed the same. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence of the
accused. The reasonable standard rule which was adopted by the United
[17]

States way back in 1978 is a requirement and a safeguard, in the words of Mr.
Justice Felix Frankfurter of the United States Supreme Court, of due process
of law in the historic, procedural content of due process. The United States
Supreme Court emphasized in Re: Winship that in a criminal prosecution,
[18]

the accused has at stake interests of immense importance, both because of


the possibility that he may lose his liberty or even his life upon conviction and
because of the certainty that he would be stigmatized by the conviction.
In the cases at bar, the prosecution failed to adduce direct evidence to
prove that accused-appellant killed Jorge. However, the prosecution adduced
indubitable proof that accused-appellant conspired with Bermas not only in
killing Jorge but also in kidnapping and detaining Julie.
Article 8 of the Revised Penal Code provides that there is conspiracy if two
or more persons agree to commit a felony and decide to commit it. Conspiracy
may be proved by direct evidence or circumstantial evidence. Conspiracy may
be inferred from the acts of the accused, before, during and after the
commission of a felony pointing to a joint purpose and design and community
of intent. It is not required that there be an agreement for an appreciable
[19]

period prior to the commission of a felony; rather, it is sufficient that at the time
of the commission of the offense, all the conspira`tors had the same purpose
and were united in its execution. In a conspiracy, the act of one is the act of
[20]

all. All the accused are criminally liable as co-principals regardless of the
[21]

degree of their participation. For a conspirator to be criminally liable of


[22]

murder or homicide, it is not necessary that he actually attacks or kills the


victim. As long as all the conspirators performed specific acts with such
closeness and coordination as to unmistakably indicate a common purpose or
design in bringing about the death of the victim, all the conspirators are
criminally liable for the death of said victim.
[23]

In these cases, the prosecution adduced conclusive proof that accused-


appellant indeed conspired with Bermas to kill Jorge and kidnap Julie as
shown by the following cogent facts and circumstances:
1. When Julie responded to the repeated calls of Bermas for her to go to
the kitchen on his pretext that Jorge wanted to talk to her, Julie saw accused-
appellant and Bermas, each armed with a bolo, about half a meter from Jorge
who was sprawled on the ground, bloodied all over. [24]

2. Even as Julie fled from the kitchen for dear life to the sala of their
house, accused-appellant and Bermas ran after her. Accused-appellant tied
the hands of Julie with a piece of cloth and inserted a piece of cloth into her
mouth to prevent her from shouting for help from their neighbors.[25]

3. With a flashlight on hand, accused-appellant then exited from the


house, dragged Julie towards the direction of the mountain while Bermas
remained in the house to rummage through the things in the bedroom of her
brothers. Accused-appellant stopped for a while for Bermas to join him. [26]

4. Before the killing of Jorge, accused-appellant and Bermas placed their


clothing and personal belongings in a bag and buried the bag under a tree,
and when accused-appellant and Bermas were on their way to the mountain
after killing Jorge, they excavated and retrieved the bag from under the tree. [27]

5. Accused-appellant and Bermas brought with them to the mountain a


kettle filled with raw rice which they cooked in the forest.
[28]

6. When Julie saw uniformed men who were looking for her and wanted to
shout for help, accused-appellant covered her mouth to prevent her from
shouting for help.
[29]

7. Even after Bermas had left accused-appellant and Julie in the forest in
the afternoon of February 23, 1991, accused-appellant continued detaining
Julie in the forest until February 27, 1996, when he abandoned Julie in the
forest to fend for herself.
The evidence of the prosecution was even buttressed by the judicial
admissions of accused-appellant, thus:
1. After releasing Julie on February 27, 1996, accused-appellant
proceeded to Puerto Princesa City and on to Brookes Point where he was
arrested a week after said date.
[30]
2. Both accused-appellant and Bermas had a motive to kill Jorge and
kidnap Julie, that is, to avenge the repeated maltreatment and physical abuse
on them by Julio Sr., the father of Jorge and Julie. [31]

The flight of both accused-appellant and Bermas from the house of Julio
Sr. to the mountain where they found refuge after killing Jorge, and their
motive to kill Jorge Jr. and kidnap and detain Julie in conjunto constitute
potent evidence of their confabulation and of their guilt for the death of Jorge
and kidnapping and detention of Julie. [32]

The bare denial by accused-appellant of criminal liability for the crimes


charged is inherently weak. Accused-appellants claims that he even protected
Julie from harm and that he was forced by Bermas to kidnap Julie are of the
same genre. The bare denial by accused-appellant of the crimes charged
[33]

constitutes self-serving negative evidence which cannot prevail over the


categorical and positive testimony of Julie and her unequivocal identification
of accused-appellant as one of the perpetrators of the crimes charged. [34]

Accused-appellants insistence that he was forced by Bermas, under pain


of death, to cooperate with him in killing Jorge and kidnapping and detaining
Julie is merely an afterthought.For duress to exempt accused-appellant of the
crimes charged, the fear must be well-founded, and immediate and actual
damages of death or great bodily harm must be present and the compulsion
must be of such a character as to leave no opportunity to accused for escape
or interpose self-defense in equal combat. Accused-appellant is burdened to
[35]

prove by clear and convincing evidence his defense of duress. He should not
be shielded from prosecution for crime by merely setting up a fear from, or
because of, a threat of a third person. As Lord Dennan declared in Reg. Vs.
[36]

Tyler, No man from fear of circumstances to himself has the right to make
[37]

himself a party to committing mischief on mankind. In these cases, in light of


the testimony of Julie and the inculpatory acts of accused-appellant no less,
there is no doubt that the latter acted in concert with Bermas and is himself a
principal by direct participation. That accused-appellant abandoned Julie after
six days of captivity does not lessen his criminal culpability much less exempt
him from criminal liability for the killing of Jorge and the kidnapping and
detention of Julie.
Accused-appellant failed to prove his claim that Julie was coached on how
and what to testify on. Indeed, when asked to identify the person or persons
who coached Julie, accused-appellant failed to mention any person:
Q You heard the testimony of Julie Camacho that she is pointing to you to have
kidnapped her and participated in the killing of her brother Jorge, what can you say
to that?
A That is not true.
Q You donot (sic) know the reason why? In fact you treated her well, why she pointed
you as one of the authors of the crime?
A Maybe somebody coached her.
Q Who do you think coached her?
A I cannot mention the name but I am sure that somebody coached her.[38]

It bears stressing that when she testified, Julie was merely 12 years
old. The Court has repeatedly held that the testimony of a minor of tender age
and of sound mind is likewise to be more correct and truthful than that of an
older person so that once it is established that they have fully understood the
character and nature of an oath, their testimony should be given full credence
and probative weight. Julie had no ill motive to tergiversate the truth and
[39]

falsely testify against accused-appellant. Hence, her testimony must be


accorded full probative weight. [40]

VII. Crimes Committed by Accused-Appellant

The Court shall now delve into and resolve the issue of what crime or
crimes accused-appellant is guilty of. The trial court convicted accused-
appellant of two separate crimes and not the special complex crime of
kidnapping with murder or homicide under the last paragraph of Article 267 of
the Revised Penal Code as amended by Republic Act 7659. The trial court is
[41]

correct. There is no evidence that Jorge was kidnapped or detained first by


accused-appellant and Bermas before he was killed. The last paragraph of
Article 267 of the Code is applicable only if kidnapping or serious illegal
detention is committed and the victim is killed or dies as a consequence of the
kidnapping or serious illegal detention.

Re: Criminal Case No. 12900


(For Murder)

The trial court convicted accused-appellant of murder with the qualifying


aggravating circumstance of evident premeditation, based on the following
findings and ratiocination:

The slaying of Jorge Camacho took place about 8:30 oclock in the evening of
February 22, 1996. It was carried out after the accused have been through tidying-up
the kitchen, the dining room and the kitchen wares the family of the Camachos used in
their early dinner before 7:00 oclock that evening. But even before dinner, the accused
have already made preparations for their flight, shown by the fact that they already
had their clothes, other personal belongings and food provisions stacked in their
respective travelling bags then placed in a spot where they can just pick them up as
they take to flight.
[42]

The trial court also appreciated against accused-appellant the qualifying


aggravating circumstance of abuse of superior strength with the following
disquisition:

The victim, Jorge Camacho, is a lad only 14 years of age and unarmed when brutally
slain. On the contrary, both accused are of age and confirmed convicted felons. Any
one of them would already be superior in strength and disposition to their hapless and
innocent victim. How much more with the combined strength and force of the two of
them.

Their choice of the object of their brutality is indicative of their unmistakable intent of
taking advantage of their superior strength. The likely object of their resentment, for
purported cruelty to them, is Prison Guard Julio Camacho, father of the victim. They
could have directed their criminal intent on Julio Camacho himself. But Julio
Camacho could be a match in strength and agility to any of them or even to the
combined force of both of them. So, to insure execution of their criminal intent
without risk to them for the defense which the offended party might put up, they
directed their criminal acts against the deceased who is very much inferior in physical
combat even only to any one of them. [43]

While the Court agrees that accused-appellant is guilty of murder, it does


not agree with the rulings of the trial court that the crime was qualified by
evident premeditation and abuse of superior strength. To warrant a finding of
evident premeditation, the prosecution must establish the confluence of the
following requisites:

x x x (a) the time when the offender determined to commit the crime; (b) an act
manifestly indicating that the offender clung to his determination; and (c) a sufficient
interval of time between the determination and the execution of the crime to allow
him to reflect upon the consequences of his act. x x x [44]

The qualifying aggravating circumstance of evident premeditation, like any


other qualifying circumstance, must be proved with certainty as the crime
itself. A finding of evident premeditation cannot be based solely on mere lapse
of time from the time the malefactor has decided to commit a felony up to the
time that he actually commits it. The prosecution must adduce clear and
[45]

convincing evidence as to when and how the felony was planned and
prepared before it was effected. The prosecution is burdened to prove overt
[46]

acts that after deciding to commit the felony, the felon clung to his
determination to commit the crime. The law does not prescribe a time frame
that must elapse from the time the felon has decided to commit a felony up to
the time that he commits it. Each case must be resolved on the basis of the
extant factual milieu.
In this case, the prosecution failed to prove evident premeditation. The
barefaced fact that accused-appellant and Bermas hid the bag containing their
clothing under a tree located about a kilometer or so from the house of Julio
Sr. does not constitute clear evidence that they decided to kill Jorge and
kidnap Julie. It is possible that they hid their clothing therein preparatory to
escaping from the colony. There is no evidence establishing when accused-
appellant and Bermas hid the bag under the tree. The prosecution even failed
to adduce any evidence of overt acts on the part of accused-appellant, nor did
it present evidence as to when and how he and Bermas planned and
prepared to kill Jorge and kidnap Julie and to prove that the two felons since
then clung to their determination to commit the said crimes. Although
accused-appellant and Bermas were armed with bolos, there is no evidence
that they took advantage of their numerical superiority and weapons to kill
Jorge. Hence, abuse of superior strength cannot be deemed to have attended
the killing of Jorge. Nighttime cannot likewise be appreciated as an
[47]

aggravating circumstance because there is no evidence that accused-


appellant and Bermas purposely sought nighttime to facilitate the killing or to
insure its execution or accomplishment or to evade their arrest. Neither is
[48]

dwelling aggravating because there is no evidence that Jorge was killed in


their house or taken from their house and killed outside the said house.
In light of the evidence on record, it is clear that the killing of Jorge was
qualified by treachery. When Jorge was killed by accused-appellant and
Bermas, he was barely 14 years old.The Court has previously held that the
killing of minor children who by reason of their tender years could not be
expected to put up a defense is attended by treachery. Since treachery
[49]

attended the killing, abuse of superior strength is absorbed by said


circumstance. [50]

The penalty for murder under Article 248 of the Revised Penal Code as
amended by Republic Act 7659 is reclusion perpetua to death. There being no
aggravating or mitigating circumstances in the commission of the crime,
accused-appellant should be meted the penalty of reclusion
perpetua. Conformably with current jurisprudence, accused-appellant is
[51]
hereby ordered to pay to the heirs of the victim civil indemnity in the amount
of P50,000.00 and the amount of P50,000.00 by way of moral
damages. Although Julio Sr. testified that he spent P45,000.00 during the
wake and burial of the victim, the prosecution failed to adduce any receipts to
prove the same. Hence, the award of P45,000.00 by way of actual damages
has no factual basis and should thus be deleted.

Re: Criminal Case No. 12903


(For Kidnapping)

The trial court convicted accused-appellant of kidnapping under Article


267 of the Revised Penal Code, as amended, punishable by reclusion
perpetua to death. The trial court is correct.
Article 267 of the Revised Penal Code was taken from Article 267 of the
Spanish Penal Code, which reads:

Art. 267Detencin ilegal grave.Ser castigado con la pena de reclusin temporal el


particular que secuestrare o encerrare a otro o en cualquier forma le privare de
libertad.

Secuestrare means sequestration. To sequester is to separate for a


[52]

special purpose, remove or set apart, withdraw from circulation. It also [53]

means to lock-up or imprison. Encerrareis a broader concept


than secuestrare. Encerrare includes not only the imprisonment of a person
[54]

but also the deprivation of his liberty in whatever form and for whatever length
of time.As explained by Groizard, encerrar es meter una persona cosa en
parte de donde no pueda salir; detener o arrestar, poner en prisin, privar de la
libertad alguno. He continued that la detencin, la prisin, la privacin de la
libertad de una persona, en cualquier forma y por cualquier medio por
cualquier tiempo en virtud de la cual resulte interrumpido el libre ejercicio de
su actividad. On his commentary on the Spanish Penal Code, Cuello Calon
[55]

says that the law preve dos modalidades de privacion de libertad, el encierro
y la detencion. Encerrar significa recluir a una persona en un lugar de donde
no puede salir, detener a una persona equivale a impedirle o restringirle la
libertad de movimiento. Para que el sujeto pasivo no quiera permanecer en el
sitio donde esta recluido, pues no es posible llamar encierro ni detencion a la
estancia de un a persona en lugar del que no quiere salir. [56]

In this case, Julie, a minor, was not locked up. However, she was seized
and taken from her house through force and dragged to the mountain. Since
then, she was restrained of her liberty by and kept under the control of
accused-appellant and Bermas. She was prevented from going back home for
a period of about six days. Patently then, accused-appellant is guilty of
kidnapping and illegally detaining Julie. The crime was aggravated by dwelling
because Julie was taken from their house by accused-appellant and
Bermas. However, dwelling was not alleged in the Information as an
aggravating circumstance as required by Section 9, Rule 110 of the Revised
Rules on Criminal Procedure which reads:

SEC. 9. Designation of the offense. The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it. [57]

Even if dwelling is proven but is not alleged in the Information as an


aggravating circumstance, the same will not serve to aggravate the penalty. [58]

Quasi-recidivism as defined in Article 160 of the Revised Penal Code is [59]

alleged in both Informations. Accused-appellant is alleged to have committed


murder and kidnapping while serving sentence in the penal colony by final
judgment for the crime of homicide. Quasi-recidivism is a special aggravating
circumstance. The prosecution is burdened to prove the said circumstance
[60]

by the same quantum of evidence as the crime itself. In the present case, to
prove quasi-recidivism, the prosecution was burdened to adduce in evidence
a certified copy of the judgment convicting accused-appellant of homicide and
to prove that the said judgment had become final and executory. The raison[61]

detre is that:

x x x Since the accused-appellant entered a plea of not guilty to such information,


there was a joinder of issues not only as to his guilt or innocence, but also as to the
presence or absence of the modifying circumstances so alleged. The prosecution was
thus burdened to establish the guilt of the accused beyond reasonable doubt and the
existence of the modifying circumstances. It was then grave error for the trial court to
appreciate against the accused-appellant the aggravating circumstance of recidivism
simply because of his failure to object to the prosecutions omission as mentioned
earlier.
[62]

In this case, the prosecution adduced in evidence merely the excerpt of


the prison record of accused-appellant showing that he was convicted of
homicide in Criminal Case No. 10357-R by the Regional Trial Court of Baguio
(Branch 6) with a penalty of from six years and one day as minimum to
fourteen years, eight months and one day as maximum and that the sentence
of accused-appellant commenced on November 19, 1992 and that the
minimum term of the penalty was to expire on August 16, 1997. The excerpt
[63]

of the prison record of accused-appellant is not the best evidence under


Section 3, Rule 130 of the Revised Rules of Court to prove the judgment of
[64]

the Regional Trial Court of Baguio City and to prove that said judgment had
become final and executory. Said excerpt is merely secondary or
substitutionary evidence which is inadmissible absent proof that the original of
the judgment had been lost or destroyed or that the same cannot be produced
without the fault of the prosecution. The barefaced fact that accused-appellant
was detained in the penal colony does prove the fact that final judgment for
homicide has been rendered against him. There being no modifying
[65]

circumstances in the commission of the crime, accused-appellant should be


meted the penalty of reclusion perpetua conformably with Article 63 of the
Revised penal Code. [66]

VIII. Civil Liability of Accused-Appellant for Kidnapping and Serious Illegal


Detention

The trial court awarded the amount of P100,000.00 to Julie by way of


moral damages for the felony of kidnapping with serious illegal detention,
predicated on her having suffered serious anxiety and fright when she was
kidnapped and dragged to the mountain where she was detained for several
days. The trial court is correct. Julie is entitled to moral damages. In light of
[67]

the factual milieu in this case, the amount is reasonable. Julie is also entitled
to exemplary damages in the amount of P25,000.00. [68]

IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial


Court is hereby AFFIRMED WITH MODIFICATION:
1. In Criminal Case No. 12900, accused-appellant is found guilty beyond
reasonable doubt of murder defined in Article 248 of the Revised Penal Code
as amended and is hereby meted the penalty of reclusion perpetua, there
being no modifying circumstances attendant to the commission of the
felony. Accused-appellant is hereby ordered to pay to the heirs of the victim
the amount of P50,000.00 as civil indemnity and the amount of P50,000.00 as
of moral damages. The award of P45,000.00 as of actual damages is deleted.
2. In Criminal Case No. 12903, accused-appellant is found guilty beyond
reasonable doubt of kidnapping with serious illegal detention defined in Article
267 of the Revised Penal Code, as amended by Republic Act 7659, and there
being no modifying circumstances attendant to the commission of the felony is
hereby meted the penalty of reclusion perpetua. Accused-appellant is hereby
ordered to pay moral damages to the victim, Julie Camacho, in the amount
of P100,000.00 and exemplary damages in the amount of P25,000.00.
SO ORDERED.
G.R. No. L-56358 October 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.

The Solicitor General for plaintiff-appellee.

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.
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.12 They 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. 14 Asserting 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.

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
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.

G.R. No. 211159, March 18, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARCELINO OLOVERIO, Accused-Appellant.

DECISION

LEONEN, J.:

Passion and obfuscation as a mitigating circumstance need not be felt only in the seconds before the
commission of the crime. It may build up and strengthen over time until it can no longer be repressed and
will ultimately motivate the commission of the crime.

This is a review of the Decision1 dated January 29, 2013 of the Court of Appeals which affirmed the
conviction of accused-appellant Marcelino Oloverio (Oloverio) of murder and sentenced him to reclusion
perpetua and the payment of civil indemnity and damages.

An Information was filed charging Oloverio with the crime of murder.2 The Information reads:

That at around 2:00 o'clock, in the afternoon of October 2, 2003, at Brgy. Belen, Palompon, Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused met the victim,
DOLFO GULANE, while the latter was walking on his lonesome, and with treachery, did then and there
willfully, unlawfully and feloniously, stab the said victim using a sharp-pointed bolo, which the accused has
provided for the purpose, thereby hitting and inflicting mortal wounds on the different parts of the body of
the aforesaid victim causing his instantaneous death.

CONTRARY TO LAW.3

Oloverio was arraigned on January 25, 2005, where he pleaded not guilty. Trial on the merits ensued.4

According to the prosecution, on October 2, 2003, at around 3:00 p.m., Rudipico Pogay (Pogay) and
Dominador Panday (Panday) saw Rodulfo Gulane walking about five (5) meters away from them with
Oloverio trailing behind him. Oloverio allegedly tapped Gulane's right shoulder and hacked him on the chest
and extremities with a bolo until Gulane collapsed on the ground. Oloverio then allegedly took Gulane's
money from his pocket.5

Pogay heard Oloverio shouting the words, "Patay na ang datu sa Brgy. San Pablo!" ("The rich man in San
Pablo is already dead!") Gulane managed to tell Oloverio, "Man luba ka man, Ling?" ("Ling, why did you stab
me?") After, Gulane died. Panday proceeded to inform Gulane's family of the incident.6

In his defense, Oloverio alleged that at the time and day of the incident, Gulane had been accusing him of
having an incestuous relationship with his mother. He allegedly kept his cool and told Gulane to go home,
but the latter continued to mock him by asking in a loud voice, "How many times did you have sexual
intercourse with your mother?" He allegedly asked Gulane to go home again but the latter angrily replied,
"Who are you to tell me to go home?"7

Gulane allegedly attempted to draw his bolo but Oloverio stopped him by drawing his own bolo. They
grappled with it, and eventually, Oloverio ended up stabbing Gulane, which resulted in the latter's death.
Accompanied by a barangay tanod, Oloverio went to the municipal hall to surrender to the authorities. He
admitted that he stabbed Gulane because he could no longer bear the insulting remarks against him.8

Romulo Lamoste (Lamoste), then Barangay Captain of Barangay Belen, Palompon, Leyte, alleged that
Gulane and Oloverio had an altercation before the incident. He alleged that Oloverio's daughter had once
confided to Oloverio that Gulane wanted to touch her private parts. About a month later, he allegedly heard
Gulane ask Oloverio "in a joking manner about his incestuous relationship with his mother."9Oloverio
allegedly got mad and they ended up fighting, but Lamoste was able to subdue them. He, however,
admitted that he was not present during the incident.10

On January 29, 2010, Branch 17 of the Regional Trial Court of Palompon, Leyte rendered its
Decision11finding Oloverio guilty beyond reasonable doubt of murder.

The trial court ruled that the mitigating circumstance of passion and obfuscation was not present in this case
since it could not co-exist with the presence of treachery. The only mitigating circumstance it found present
was of voluntary surrender. As murder was punishable by reclusion perpetua to death, it imposed the lesser
penalty of reclusion perpetua.12 The dispositive portion reads:

Wherefore, as to the proffer of mitigating circumstances of Passion and Obfuscation as defined by Art. 13 of
the Revised Penal Code cannot be appreciated, what can be appreciated only is the voluntary surrender
which is covered by Art. 13 par. 7 of the Revised Penal Code.

So from the evidence extant from the records, the court finds the accused Marcelino Oloverio, GUILTY of the
crime of Murder as the evidence proved the guilt of the accused beyond reasonable doubt that he committed
the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code and therefore
sentences him to suffer the penalty of Reclusion Perpetua. The voluntary surrender is none availing as
reclusion perpetua is not a divisible penalty as defined by the Revised Penal Code.

The accused Marcelino Oloverio is also ordered to pay Fifty Thousand (P50,000.00) Pesos damages to the
heirs of Rodulfo Gulane.

SO ORDERED.13

The case records were forwarded to the Court of Appeals on May 6, 2010.14

On January 29, 2013, the Court of Appeals rendered its Decision15 affirming the conviction. It found that
Oloverio failed to establish with clear and convincing evidence that Gulane "committed an unlawful act which
sufficiently caused him to act with passion and obfiiscation."16

The Court of Appeals found that Gulane's act of insulting Oloverio before the stabbing was unsupported by
evidence.17 Instead, it found that treachery was present since Gulane was unsuspecting when Oloverio
suddenly attacked him. The court also noted that Gulane was already 83 years old and might not have had a
chance to defend himself.18

The Court of Appeals also affirmed the trial court's imposition of the lesser penalty of reclusion perpetuain
view of Oloverio's voluntary surrender.19 It, however, modified the award of damages to include moral,
temperate, and exemplary damages.20 The dispositive portion reads:

WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated January 29, 2010 of the
RTC, Branch 17, of Palompon, Leyte in Criminal Case No. P-1163 finding appellant guilty beyond reasonable
doubt of the crime of murder is AFFIRMEDwith the MODIFICATION that with respect to the trial court's
award of Php50,000.00 damages, this should be understood to represent the civil indemnity. Appellant is
further ordered to pay the heirs of Rodulfo Gulane Php50,000.00 as moral damages, Php25,000.00 as
temperate damages, and Php30,000.00 as exemplary damages. All damages shall be subject to interest at
the legal rate of 6% per annum from the finality of this Decision until fully paid.

SO ORDERED.21 (Emphasis in the original)

On March 18, 2013, Oloverio filed his Notice of Appeal,22 which was favorably acted upon by the Court of
Appeals.23

In compliance with this court's Resolution24 dated April 2, 2014, Oloverio and the Office of the Solicitor
General separately manifested that they were no longer filing their supplemental briefs before this court
since they have already stated their arguments in their briefs before the Court of Appeals.25

Upon review of the case records, this court resolves to modify the Decision of the Court of Appeals.

Accused-appellant Marcelino Oloverio is guilty only of homicide under Article 249 of the Revised Penal Code.
He is entitled to the mitigating circumstances of passion and obfuscation and of voluntary surrender.

Murder is the act of killing a person under the circumstances mentioned in Article 248 of the Revised Penal
Code. The provision states:

ARTICLE 248. Murder. Any person who, not falling within the provisions of article 24626shall kill another,
shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or


assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the
use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake,


eruption of a volcano, destructive cyclone,, epidemic, or any other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.

To be able to sustain a conviction for murder, the prosecution must prove the following elements:

1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.

4. The killing is not parricide or infanticide.27

For murder or homicide, the prosecution must also be able to prove the accused had the intent to kill.28

The witnesses, Panday and Pogay, positively identified accused-appellant as the one who stabbed Gulane
with a bolo.

Panday stated:

Q: When you saw Rodulfo Gulane walking alone towards Brgy. San Pablo, Palompon, Leyte, do you recall of
any untoward incident that took place?

A: Yes, sir, I saw the incident.

Q: What was that incident?


A: Rodulfo Gulane was killed by [a] certain Marcelino Oloverio.

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio, what was used by Marcelino Oloverio
in killing the deceased?

A: Abolo.

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio with the use of this bolo, would you
describe to this Honorable Court, how and in what way did Marcelino Oloverio killed [sic] Rodulfo Gulane?

A: Yes, while Rodulfo Gulane was walking, Marcelino Oloverio held the right shoulder of Rodulfo Gulane then
stabbed him many times and there was strucking [sic] the victim Rodulfo Gulane.29 (Emphasis supplied)

Pogay also testified:

Q: When you reached Brgy. Belen, what have you observed?


A: I observed Lino stabbed Dolpo [sic] Gulane and when Dolfo Gulane fell down, he said "Patay na ang datu
sa Brgy. San Pablo."

....

Q: If you can recall, how many times did Marcelino Oloverio stab Rodulfo Gulane?
A: Many times and there was also a hacking blow.30

Their testimonies were consistent with the medico-legal findings that Gulane died due to multiple stab
wounds. Both the trial court and the Court of Appeals also found that the witnesses had no ill motive to
testify against accused-appellant.31

The intent to kill is established not only by the number of stab wounds found on Gulane, but also by
accused-appellant's own admission that he stabbed Gulane.32

II

The presence of treachery, however, has not been sufficiently established. Treachery is defined by the
Revised Penal Code as:

ARTICLE 14. Aggravating Circumstances. The following are aggravating circumstances:

....
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof, which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make.

For treachery to be appreciated, the following elements must be proven:

(a) the employment of means of execution that gives the person attacked no opportunity to defend himself
or retaliate, and (b) the means of execution was deliberately or consciously adopted.33

In People v. Lobino:34

In People vs. Estrellanes, we declared in no uncertain terms that 'the mere fact that the victim had no
weapon with which he could have defended himself is not sufficient to prove the existence of the first
element of treachery, for settled is the rule that treachery cannot be presumed; it must be proved by clear
and convincing evidence or as conclusively as the killing itself' [sic] Furthermore, there must be some
evidence, none of which, however, obtains in the instant case, showing that this mode of assault is
deliberately or consciously adopted to insure the execution of the crime without risk to the offender.
Accordingly, if the attack was not preconceived and deliberately adopted but was just triggered by the
sudden infuriation on the part of the accused because of the provocation on the part of the victim, then no
treachery attended the commission of the crime. The essence of treachery is the sudden and unexpected
attack without the slightest provocation on the part of the person being attacked[.]35 (Emphasis supplied)

Pogay testified that Gulane was walking down the road when accused-appellant came up behind him, tapped
him on the shoulder, and then stabbed him repeatedly, thus:

Q: You said Rodulfo Gulane [,] before the stabbing, was heading towards Brgy. San Pablo, while he was
walking where was the accused positioned himself? [sic]

A: He was following the victim and then he tapped the right shoulder and stabbed him.

....

Pros. Macapugas: Mr. Witness, during the stabbing incident, did you know whether or not the victim in this
case was able to retaliate?

A: No ma'am, he was not able to retaliate.36 (Emphasis supplied)

The mere suddenness of an attack should not be the sole basis in finding treachery. There must be evidence
to show that the accused deliberately or consciously adopted the means of execution to ensure its success.37

At the time of the incident, Gulane was already 83 years old. Accused-appellant was standing behind him.
He already had the advantage of surprise with Gulane's back turned. Gulane's advanced age and position
would have ensured his death as it would have prevented him from being able to retaliate.

Instead, accused-appellant tapped Gulane on the shoulder as if to call his attention. He waited until Gulane
was facing him before he started stabbing. The medico-legal report indicates stab wounds on the chest and
extremities,38 proving that Gulane was stabbed from the front.

In People v. Real:39

As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of
attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to
either fight or retreat. The rule does not apply, however, where the attack was not preconceived and
deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of
the provocative act of the victim.40 (Emphasis supplied)

The attack, while sudden, cannot be said to have been unexpected or unprovoked. Accused-appellant
alleged that before the attack, Gulane had been insulting him and mocking him in a loud voice, "How many
times did you have sexual intercourse with your mother?"41 This utterance, along with testimonies of
Gulane's previous insults, would have been sufficient provocation for accused-appellant to stab him.

Since treachery has not been proven, the crime is merely homicide. Under the Revised Penal Code:

ARTICLE 249. Homicide. Any person who, not falling within the provisions of article 246 shall kill another
without the attendance of any of the circumstances enumerated in the next preceding article, shall be
deemed guilty of homicide and be punished by reclusion temporal.

The penalties of the accused-appellant must be modified accordingly.

III

The mitigating circumstance of passion and obfuscation42 is present in this case.

To be able to successfully plead the mitigating circumstance of passion and obfuscation, the accused must
be able to prove the following elements:

1. that there be an act, both unlawful and sufficient to produce such condition of mind; and
2. that said act which produced the obfuscation was not far removed from the commission of the crime
by a considerable length of time, during which the perpetrator might recover his normal
equanimity.43
3. In People v. Lobino:44

4. It has been held that "[T]here is passional obfuscation when the crime was committed due to an
uncontrollable burst of passion provoked by prior unjust or improper acts, or due to a legitimate
stimulus so powerful as to overcome reason."

"The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally
result from a quarrel or fight should not be confused with the sentiment or excitement in the mind
of a person injured or offended to such a degree as to deprive him of his sanity and self-control,
because the cause of this condition of mind must necessarily have preceded the commission of the
offense."

Moreover, "the act producing the obfuscation must not be far removed from the commission of the
crime by a considerable length of time, during which the accused might have recovered his normal
equanimity."45 (Emphasis supplied)
5.
There is no uniform rule on what constitutes "a considerable length of time." The provocation and
the commission of the crime should not be so far apart that a reasonable length of time has passed
during which the accused would have calmed down and be able to reflect on the consequences of
his or her actions. What is important is that the accused has not yet "recovered his normal
equanimity" when he committed the crime.

To appreciate passion and obfuscation as a mitigating circumstance, the facts must be examined on
a case-to-case basis.

In People v. Mojica,46 Aurelio Mojica was accused of murder for stabbing Diosdado Tormon to
death. He attempted to mitigate his liability by alleging that the victim humiliated him a month
before the incident. The trial court convicted him of murder without appreciating the mitigating
circumstance of passion and obfuscation. This court agreed, stating:

6. The last point to consider is whether the mitigating circumstance of passion or obfuscation ought to
have been appreciated in favor of appellant. What was done to him on that fateful day of November
16, 1968 when he was subjected to treatment offensive to his dignity, having been slapped and
asked to kneel down in the attitude of a supplicant, certainly could give rise to the feeling of passion
or obfuscation. There is a host of cases from United States v. Ferrer, a 1901 decision, to People v.
Pareja, decided in 1969, that so attests. Conduct of that character, in the language of United States
v. Salandanan, would ordinarily be expected to have produced "such powerful excitement as to
overcome reason and self-control." Unfortunately for appellant, however, this mitigating
circumstance cannot be invoked because the killing took place one month and five days later. The
language of Justice Malcolm in United States v. Sarikala is relevant: "As to the mitigating
circumstance of passion and obfuscation we likewise cannot agree that it can be taken into
consideration because more than twenty-four hours elapsed after the insults of Cotton to the
accused and the criminal act." In the relatively recent case of People v. Constantino, such a plea
was likewise rejected. There the killing took place after four days. As pointed out by Justice
Romualdez in People v. Alanguilang: "In order that the circumstance of obfuscation can be
considered, it is necessary to establish the existence of an act both unlawful and sufficient to
produce such a condition of mind; and that said act which produced the obfuscation was not far
removed from the commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity." Reference may also be made to People v.
Dagatan, where this Court could not consider the presence of this mitigating circumstance as the
act that caused the resentment "took place long before the commission of the crime." People v.
Gervacio had another way of putting it, "a time not far removed from the commission of the crime."
The lower court, therefore, did not commit any error in refusing to credit appellant with the
mitigating circumstance of passion and obfuscation.47 (Emphasis supplied, citations omitted)
7.
However, a fight between the accused and the victim prior to the crime is not always enough to be
able to successfully prove that passion and obfuscation attended it.

This court did not appreciate passion and obfuscation in People v. Rabanillo,48 where the accused
killed the victim 30 minutes after they came to blows:

8. Suarez and Magalong testified that before the hacking incident, MORALES reprimanded RABANILLO
in front of their drinking mates for dousing him with water, whicn entered into his ear. RABANILLO
resented it and felt humiliated. Hence, a fistfight ensued, but was eventually broken up. The event
must have continued to dominate RABANILLO's thought that he decided to strike back at the victim
by hacking him to death. Clearly, the assault was made in a fit of anger.

For passion and obfuscation to be mitigating, the same must originate from lawful feelings. The
turmoil and unreason that naturally result from a quarrel or fight should not be confused with the
sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive
him of his sanity and self-control. The excitement which is inherent in all persons who quarrel and
come to blows does not constitute obfuscation.

Moreover, the act producing obfuscation must not be far removed from the commission of the crime
by a considerable length of time, during which the accused might have regained his normal
equanimity. Thus, it has been held that where at least half'an hour elapsed between the previous
fight and the killing, the accused cannot be given the benefit of the attenuating circumstance
ofobfiscation.

In this case, 30 minutes intervened between the fistfight and the killing of MORALES by RABANILLO.
The attack cannot, therefore, be said to be the result of a sudden impulse of natural and
uncontrollable fury. Having been actuated more by the spirit of revenge or by anger and resentment
for having been publicly berated by MORALES, RABANILLO cannot be credited with the extenuating
circumstance of passion and obfuscation.49 (Emphasis supplied)
9.
This court clarifies in People v. Bautista:50

10. The turmoil and unreason which naturally result from a quarrel or fight should not be confused with
the sentiment or excitement in the mind of a person injured or offended to such a degree as to
deprive him of his sanity and self-control, because the cause of this condition of mind must
necessarily have preceded the commission of the offense.51
11.
This court has also ruled that acts done in the spirit of revenge cannot be considered acts done with
passion and obfuscation.

In People v. Caber,52 Francisco Caber was seen chasing Teodoro Ramirez with a bladed weapon,
locally known as a pisao, and stabbing Ramirez twice, which resulted in his death.

Caber tried to argue that he stabbed Ramirez in a fit of passion and obfuscation and alleged that
Ramirez raped his wife three (3) days before the incident. This court rejected the claim:

12. Even assuming, however, that he really killed Ramirez because of passion or obfuscation in order to
avenge the wrong done to his wife by the victim, still he cannot be credited with this circumstance
as he would then have acted "in the spirit of revenge." Furthermore, although accused-appellant's
wife was allegedly raped by Ramirez on November 17, 1994, the stabbing incident in question took
place three days later or on November 20, 1994. Thus, the act which was supposed to have caused
passion or obfuscation on the part of the accused-appellant was so far removed from the date of the
stabbing. In United States v. Sarikala, the Court ruled that the lapse of more than 24 hours,
reckoned from the commission of the act which produced the passion or obfuscation up to the time
of the commission of the felony, constituted a considerable period of time after which such
circumstance would no longer be deemed present.53 (Emphasis supplied)
13.
The facts of this case, however, are similar to that in People v. Real.54 In Real, Melchor Real and
Edgardo Corpuz, his fellow market vendor, engaged in a heated argument over the right to use the
market table to display their fish. The municipal mayor, then present at the scene, tried to pacify
them and told them that they were arguing over trivial matters. Both parties calmed down after a
while.

Corpuz, however, said something to Real, to which Real softly uttered, "You are being too
oppressive." When Corpuz kept walking near the table, Real started to sharpen his bolo. As Corpuz
turned his back, Real hacked him with his bolo which caused his death.

Real was held liable for homicide, but this court took into account the mitigating circumstance of
passion and obfuscation, stating that:

14. [t]he act of the victim in berating and humiliating appellant was enough to produce passion and
obfuscation, considering that the incident happened in a market place within full view and within
hearing distance of many people.55
15.
This court also noted:

16. In the case at bench, the assault came in the course of an altercation and after appellant had
sharpened his bolo in full view of the victim. Appellant's act of sharpening his bolo can be
interpreted as an attempt to frighten the victim so the latter would leave him alone. It was simply
foolhardy for the victim to continue walking to and fro near appellant in a taunting manner while the
latter was sharpening his bolo.56
17.
Accused-appellant admitted that he stabbed Gulane but alleged that they had been fighting. He
alleged that Gulane had been hurling insults at him which provoked him to react; in effect, he
alleged that the mitigating circumstance of passion and obfuscation was present in this case.57

The Court of Appeals rejected his contention and stated that no evidence was presented to prove
that immediately before or at the time of the incident, there was an altercation between accused-
appellant and Gulane that would provoke his reaction.

Panday testified:

18. Q: Do you remember if there was any altercation that took place between the accused and the
victim in this case before the incident?

A: I have not heard any argument from both of them and he stabbed Rodulfo Gulane and Rodulfo
Gulane uttered the words in a vernacular, "Man luba kaman Ling."58
19.
Pogay further testified:

20. Q: Before the stabbing incident, have you noticed if there was an altercation between Rodulfo
Gulane and Marcelino Oloverio?

A: No, sir.59
21.
Panday, however, clarifies:
22. Q: Now, before the actual stabbing of the victim in this case, you said there was no altercation
between the accused and Rodulfo Gulane, now, if you can recall[,] if there was any incident that
took place immediately before the stabbing incident?

A: I cannot say any but what I only say is that I only saw the incident.60 (Emphasis supplied)
23.
The prosecution could not prove that an altercation might have occurred between accused-appellant
and Gulane before the incident since their eyewitnesses could only testify to the actual stabbing.

The Court of Appeals also failed to take into account the testimony of Lamoste, the defense witness.

Lamoste testified that he and accused-appellant worked together, as he was then


the barangay captain and accused-appellant was a barangay tanod. He alleged that accused-
appellant's daughter once confided to accused-appellant that Gulane told her that he wanted to
touch her private parts.61

Lamoste testified that about a month before the incident, he witnessed Gulane telling accused-
appellant, "Kumusta na man mo imo mama nagtap-il mo imo mama naba mo produkto?" ("How is
your relationship with your mother have you produced fruits with your mother?") He alleged that
accused-appellant got angry and tried to attack Gulane, but he was able to intervene and part the
two.62

The prosecution did not deny any portion of Lamoste's testimony and only insisted that no
altercation occurred immediately before the stabbing.

Both the trial court and the Court of Appeals narrowed its understanding of passion and obfuscation
to refer only to the emotions accused-appellant felt in the seconds before a crime is committed. It
failed to understand that passion may linger and build up over time as repressed anger enough to
obfuscate reason and self-control.

The circumstances of both victim and accused-appellant were also not taken into account by the
trial court and the Court of Appeals.

Accused-appellant referred to Gulane as the "datu" or rich man of Barangay San Pablo. Gulane
enjoyed an economic ascendancy over accused-appellant, a mere barangay tanod.

Gulane not only threatened to molest accused-appellant's daughter but also accused him in public of
having incestuous relations with his mother. Gulane was said to have insulted accused-appelant in
full view of his immediate superior, the barangay captain.

Both victim and accused-appellant lived in the small locality of Palompon, Leyte. As with any small
town, it was a place where a person's degrading remarks against another could be made the
measure of the latter's character. Gulane's insults would have been taken into serious consideration
by the town's residents because of his wealth and stature in the community.

There was neither a reason given why Gulane acted that way towards accused-appellant nor any
evidence to show that accused-appellant had previously wronged him.

The prosecution did not denyt that Gulane insulted accused-appellant on various occasions. The
witnesses could not state with reasonable certainty that Gulane did not provoke accused-appellant a
few minutes before the incident; they could only testify to the incident itself and the seconds which
preceded it.

In view of these considerations, we find that the mitigating circumstance of passion and obfuscation
is present in this case.

24. IV
25.
According to Article 249 of the Revised Penal Code, homicide is punishable by reclusion
temporal. The trial court and the Court of Appeals considered accused-appellant's voluntary
surrender to the authorities as a mitigating circumstance.63 We find no reason to disturb this
conclusion.

Considering that there are two (2) mitigating circumstances in accused-appellant's favor, the
imposable penalty must be that which is next lower to that prescribed by law. Article 64 (5) of the
Revised Penal Code provides:

26. ARTICLE 64. Rules for the Application of Penalties Which Contain Three Periods. In cases in which
the penalties prescribed by law contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, the courts shall observe for the application of the penalty the
following rules, according to whether there are or are not mitigating or aggravating circumstances:

5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period that it
may deem applicable, according to the number and nature of such circumstances.
27.
Accordingly, the imposable penalty is prision mayor. Applying the Indeterminate Sentence Law,
accused-appellant should be sentenced to suffer the penalty of imprisonment, the minimum of
which should be within the range of prision correctional64 and the maximum of which should be
within the range of prision mayor.65

Based on the records, accused-appellant was put under preventive imprisonment pending his
conviction by the trial court.

In accordance with Article 29 of the Revised Penal Code, the time undergone by accused-appellant
under preventive imprisonment shall be credited to his service of sentence, provided that he has
given his written conformity to abide by the disciplinary rules imposed upon convicted prisoners.
The provision states:

28. "ART. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders or.
accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed
of the effects thereof and with the assistance of counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the following cases:
29. "1. When they are recidivists, or have been convicted previously twice or more times of any crime;
and

"2. When upon being summoned for the-execution of their sentence they have failed to surrender
voluntarily.
30.
"If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be credited
in the service of his sentence with four-fifths of the time during which he has undergone preventive
imprisonment[.]"66
31.
The letter of PGI Gilbert P. Cayubit, Officer-in-Charge of the Leyte Sub-Provincial Jail, stated that
accused-appellant had been transferred to Leyte Regional Prison on May 4, 2010.67 The transfer to
Leyte Regional Prison was also confirmed by SO2 Jorge A. Colanta, Officer-in-Charge of the Leyte
Regional Prison, who stated that accused-appellant was received by the prison on May 27, 2010.68

As the exact length of time cannot be determined with certainty, the trial court shall determine the
exact period of preventive imprisonment that may be credited in accused-appellant's favor.

The monetary awards must also be modified. In a prosecution for murder or homicide, civil
indemnity and moral damages may be awarded without need of further proof other than the victim's
death.69 The monetary awards of P50,000.00 in civil indemnity and P50,000.00 in moral damages
are in line with prevailing jurisprudence.70 Temperate damages may also be awarded in lieu of
actual damages, as in this case where the prosecution failed to prove proof of actual
damages.71 The award of exemplary damages, however, must be deleted in view of Article 2230 of
the Civil Code.72

WHEREFORE, the Decision of the Court of Appeals is SET ASIDE. Accused-appellant Marcelino
Oloverio is found GUILTY beyond reasonable doubt of the crime of homicide under Article 249 of
the Revised Penal Code.

As the crime was attended, with the mitigating circumstances of passion and obfuscation and
voluntary surrender with no aggravating circumstance, accused-appellant Marcelino Oloverio
is SENTENCED to suffer the indeterminate penalty of imprisonment for two (2) years, four (4)
months, and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day
of prision mayor as maximum.73 The period of his preventive imprisonment shall be credited in his
favor if he has given his written conformity to abide by the disciplinary rule's imposed upon
convicted prisoners in accordance with Article 29 of the Revised Penal Code, as amended.

Accused-appellant Marcelino Oloverio is further ordered to pay the heirs of Rodulfo Gulane the
amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as
temperate damages. All damages awarded shall be subject to the rate of 6% legal interest per
annum from the finality of this Decision until its full satisfaction.

SO ORDERED.