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G.R. No. 111484 June 2, 1995 to the accused-appellant, Demetrio tried to stab him but he was able to parry the blow.
MARIANO DE LUNA Y ROLDAN, petitionier, They then grappled for possession of the weapon. While they were fighting, Andres
vs. Rodelas struck him with a piece of wood, hiding him on the left knee. He claimed that
THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondent. he fell but that he was able to wrest the weapon from Demetrio. The accused did not
say how Demetrio was wounded. instead, he said, Demetrio ran towards the house of
VITUG, J.: Tagbago. (TSN, pp. 4-17, May 28, 1987; Id., pp. 4-10, Jan. 28, 1988).
Petitioner, Mariano De Luna y Roldan received a verdict of guilt from the Regional Trial Court, later The accused said he ran home and told his wife about the incident. Later, a policeman
sustained by the Court of Appeals, for the killing of Demetrio Rodelas. The trial court 1 imposed upon De arrived and took him to the station for questioning. Accussed-appellant turned over the
Luna the indeterminate penalty of "FOUR (4) YEARS, TWO (2) MONTHS . . . to EIGHT (8) YEARS and fatal weapon to the police but refused to give any statement. He was later taken to the
ONE (1) DAY (prision correctional medium to prision mayor Sta. Cruz Hospital where he was treated by Dr. Principe. (TSN, pp. 18-22, May 28,
minimum)"2 after appreciating in his favor the privileged mitigating circumstance of incomplete self-defense. 1987; Id., pp. 3-6, Oct. 7, 1987; Id., pp. 11-13, Jan. 28, 1988) He claimed that he
The appellate court3 disagreed on the range of the penalty, holding that De Luna was not entitled to the wanted to file charges against Andres Rodelas but was told that since it had been three
privileged mitigating circumstance; hence, it decreed-an indeterminate sentence of "SIX (6) years and ONE months since the incident occurred, the crime had already prescribed. (TSN, pp. 14-16,
(1) day of prision mayor, as minimum, to SEVENTEEN (17) years and FOUR (4) months of reclusion Jan. 28, 1988)
temporal as maximum."4 Mariano de Luna said that Demetrio Rodelas had a grudge against him because the
Contesting both his conviction and the sentence pronounced by the appellate court, De Luna has come to year before, in 1981, he (De Luna) had filed charges against Demetrio for the
us via this petition for review on certiorari. destruction of his two gamecocks and for attempting to hit him and burn his house.
De Luna was accused of, and charged with, the crime of murder for the death, on 12 April 1982, of Demetrio Rodelas filed a counter charge against him for wounding him on the left side of the
Rodelas at Barangay Hupi, Municipality of Sta. Cruz, Marinduque. When arraigned, on 15 March 1985, De head. According to De Luna, although the cases were settled and dismissed, Demetrio
Luna pleaded "not guilty." told others that he would someday take revenge. (TSN pp. 4-9, July 21, 1988)
The appellate court summarized the evidence adduced by the prosecution and the defense thusly: The defense also presented Dr. Thelma Principe, the resident physician on duty at the
The prosecution evidence consisted mainly of the testimonies of Sergio Tagbago and Sta. Cruz Hospital on April 12, 1982. Her testimony is summarized on the following
Dr. Thelma Principe. Tagbago's testimony is as follows: portion of the decision of the trial court.
At 7:00 o'clock in the evening of April 12, 1982, while the witness Sergio Tagbago [O]n April 12, 1982 she was on duty at around 9:30 when patient Mariano De Luna
was in the balcony of his house at Barangay Hupi, Sta. Cruz, Marinduque, relaxing arrived; and found on him — (1) abrasion with contusion, 1/2 inch in diameter
with his wife and daughter, who were playing sungka, Demetrio Rodelas arrived for a superficial anterior chest wall; (2) contusion with pain located at the left lateral aspect
chat. (Rodelas was the son-in-law of Nemesio Piramide, who is Tagbago's brother-in- of the left knee caused by the use of a blunt instrument. They cleaned them and applied
law. Nemesio Piramide is the brother of Tagbago's wife Estrella.) In a moment, they dressing and antiseptic by I.M.; 2 oral medicines, one antibiotic and one, anti-
heard someone calling out, "Hudas, lumabas ka diyan, ninakaw mo ang manok ko" inflammatory. She identified Exh. 2 marked by the court as Exh. X and X-l with the
("Judas, come out and fight. You stole my gamecock"). The one who shouted was explanation that the two medical certificates were issued for purposes of sick leave to
about 70 meters away. Sergio recognized him to be Mariano de Luna. Afterward be filed with Marcopper.
Demetrio Rodelas decided to go home and bade goodbye to Sergio and his family. She explained that Exh. 2 was prepared by the nursing attendant and then by herself.
(TSN, pp. 2-7, April 24, 1984; Id., pp. 8-16, Nov. 7, 1984) But as he was about to step The findings on the document were her handwriting including the date "4-12-82", the
out of the gate, Demetrio was met by accused Mariano de Luna who stabbed him date of issuance was an error — pointing to Exh. 2-A. Clarifying the notation in Exh. 2
(Demetrio) on the upper left side of the right thigh with a bladed weapon. At that and Exh. 2-A where it stated that Mariano De Luna was treated from April 19, 1982 to
moment, Demetrio was lifting his right leg over a foot-high hurdle (tarangkahan) at the April 26, 1982 — she stated the medical certificate was issued only for the purposes of
gate. Demetrio managed to take a few steps backward and then fell on the ground by sick leave. The second one — April 27 to 30 was because the patient Mariano de Luna
the wall. His assailant fled immediately. (TSN, pp. 8-11, April 24, 1984; Id., p. 18, extended his leave as he was still recuperating from his injuries. The writing of the
Nov. 7, 1984; Id., pp. 2-11, Mar. 7, 1985; Id., pp. 2-7, July 25, 1985). dates "April 19 to 26" is only for the purpose of securing sick leave.5
Demetrio was taken to the Sta. Cruz Hospital where he was treated by the resident The Regional Trial Court and the Court of Appeals both found De Luna guilty beyond reasonable doubt of
Physician, Dr. Thelma Principe. He died at around 10:30 o'clock of the same night. homicide; however, their findings differed on the applicability to the case of the privileged mitigating
According to the medical certificate of Dr. Principe, Demetrio Rodela suffered the circumstance of incomplete self-defense which, according to the appellate court, was incorrectly considered
following wounds: by the trial court. The appellate court, likewise, increased the indemnity to the heirs of Rodelas from
1. Stab Wound 1 1/2 inches long x 1/4 wide x 2 1/2 inches deep directed upwards P30,000.00 to P50,000.00.
severing the subcutaneous tissues, muscles, and femoral vein active bleeding. In his petition, De Luna prays for his acquittal or, in the alternative, that he should be credited with the
2. Contusion with Hematoma 1 1/2 inches in diameter associated with severe pain and privileged mitigating circumstance of incomplete self-defense and be sentenced to an indeterminate prison
tenderness. term of only (4) months and one (1) day of arresto mayor to four (4) year and two (2) months of prision
The following day Sergio Tagbago reported the incident to the police. correccional.6
The next witness of the prosecution was Dr. Thelma Principe who testified that the The court need not belabor the fact that the accused-appellant did take the life of his victim. There is more
contusions on the back of the victim must have been caused by the fall while the stab than enough evidentiary basis to sustain the findings of both the trial court and the appellate court on the
wound on the left thigh must have been inflicted while his-legs were apart. (Annex 1- commission of the crime and the guilt of appellant. Instead, our review will focus, by and large, on whether
A and 1-B) the privileged mitigating circumstance of incomplete self-defense, favorably considered; by the trial court but
Mariano De Luna denied the accusation against him. He claimed that on April 12, rejected by the appellate court, should be appreciated in favor of appellant.
1982, at around 8:30 in the evening, while he was passing by the house of Sergio Article 11, paragraph I of the Revised Penal Code provides:
Tagbago, on his way to work at the Marcopper Mining, he heard someone say, Art. 11. Justifying circumstance. — The following do not incur any criminal liability:
"Nariyan na" ("Here he comes") and then he was hit, on the side. He saw Demetrio 1. Any one who acts in defense of his person or rights, provided that the following
Rodelas with a bladed weapon in his right hand who confronted him, "Mariano, circumstances concur:
talagang papatayin ka namin." ("Mariano, we are really going to kill you!") According First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it. A Yes, sir.
Third. Lack of sufficient provocation on the part of the person defending himself. Q How far is the bamboo fence fronting your house to the side
When the foregoing requisites concur, there can be a legitimate claim of self-defense and no of your house facing the bamboo fence?
criminal liability attaches. Where, upon the other hand, only one or two but not all three of the A More or less, 2 and 1/2 meters.
above requisites essential to justify the act or to exempt one from criminal liability are attendant Q And after you heard the second shout, what happened?
(termed "incomplete self-defense"), the accused still incurs, albeit entitled to a mitigation of, A There was silence.
criminal liability. We did repeatedly say-before that, whether complete or, incomplete, self- Q And after the silence, what did Demetrio do?
defense, by its very nature and essence, always would require the attendance of unlawful A He bade goodbye and he said he will go home.
aggression initiated by the victim which must clearly be shown.7 When unlawful aggression on Q Was Demetrio able to go home?
the victim's part is alone established, incomplete self-defense is so appreciated merely as an A No, sir.
ordinary mitigating circumstance under Article 13, paragraph 1,8 of the Code. When such Q Why was Demetrio not able to go home?
unlawful aggression is coupled with still another element of self-defense, incomplete self-defense A Because he was stabbed by Mariano, sir.
becomes a privileged mitigating circumstance, referred to in Article 69 9 of the Revised Penal Q By Mariano, you are referring to Mariano de Luna whom you
Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one identified while ago inside the courtroom?
or two degrees depending on the conditions and circumstances therein obtaining. 10 A Yes, sir.
The trial court has rationalized that the deceased must have been the unlawful aggressor because of the Q Where was Demetrio when he was stabbed by Mariano?
prosecution's failure to present Policeman Dionisio Ricaplaza (who would appear to have fetched and A He was at the gate of the door of our fence.
accompanied De Luna to the hospital for treatment) in order to discredit De Luna's claim of having first been Q What was Demetrio exactly doing by the door of your fence
hit by the victim with a hard object below the left nipple. We agree with the appellate court that the when he was stabbed by Mariano?
eyewitness account of Tagbago on the incident is sufficient to belie appellant's allegation. Below is a portion A He was going out, sir.
of Tagbago's testimony: Q Will you please demonstrate to the Honorable Court the exact
Q So you want to impress the Honorable Court that Demetrio position of Demetrio when he was stabbed by Mariano?
stayed also in the balcony where he, according to you watched A He opened the door and then he stepped his right foot forward
the sungka playing by your wife and daughter? (witness demonstrates).
A Yes, sir. Q What is the height of your gate?
Q And while you and Demetrio as well as your wife and A More or less 5 foot, sir.
daughter were in the balcony, do you remember of any unusual xxx xxx xxx
incident that happened? Q Now, if you have to come from the house you have to go out
A Yes, sir, there was. of that door of your fence, do you have to pass this what we call
Q What was that unusual incident? "tarangkahan?"
A Somebody shouted, sir. A Yes, sir.
Q Do you still remember what was shouted? Q How high is your tarangkahan from the ground?
A Yes, sir. A Less than a foot.
A Judas, lumabas ka diyan, ninakaw mo ang manok ko. xxx xxx xxx
Q Did you recognize the person who shouted those words? Q How about the height of the fence, how high is it?
A Yes, sir. A More or less, 5 meters high.
Q Who shouted those words? Q And what happened while Demetrio was already at the door
A Mariano de Luna, sir. or gate?
Q Why could you tell that it was Mariano who shouted those A Mariano suddenly appeared.
words? Q And what did he do upon his sudden appearance?
A I know his voice, sir, because I am from Hupi and he is also A He suddenly stabbed Demetrio.
from Hupi. Q How many times did you see Mariano stab Demetrio?
Q How many times did Mariano shout those words? A Only once, sir.
A Once only, sir, in front of the house. Q Will you please get out of the witness stand again and
Q Was there any second shouting at any place? demonstrate to the Hon. Court how you saw Mariano stabbed
A First, sir, he shouted near their house, the house of the Demetrio?
accused and the second time was in front of our house. A Mariano suddenly appeared from the side of the fence and
Q How far is the house of Mariano de Luna to your house? suddenly stabbed Demetrio.
A More or less, 70 meters, sir. FISCAL NARITO:
Q So you want to improve (sic) the Hen. Court that the first time The witness in an upward thrust with the right arm (describing
you heard the shout: Judas, lumabas ka diyan... was near the demonstration of witness)
house of the accused, and the second time that you heard the Q You demonstrated awhile ago that Mariano suddenly
shout was when he was in front of your house, is that correct? appeared and then suddenly stabbed Demetrio with your
A Yes, sir. demonstrating with your right arm on an upward thrust, with
Q Now, is it not a fact that your house is fronted by a bamboo what hand did Mariano stab Demetrio?
fence? A What I saw, sir, is that Mariano's right hand.
A Yes, sir. Q According to you Mariano stabbed Demetrio only once, and
Q And fronting your bamboo fence is a road? after Mariano had stabbed Demetrio, what did Mariano do?

A He moved backward to the road, sir. physical evidence showing the fatal wound sustained and the
Q How about Demetrio, after he was stabbed once, what did he testimony of the attending physician.
do? "(Appellee's Brief, pp. 23-24)"
A He moved backward then he fell. 11 Finally, it was pointed out:
The defense would rather that Tagbago be discredited allegedly because of "glaring" inconsistencies in his In his direct testimony, Tagbago portrayed that Demetrio
testimony. Not only have the supposed inconsistencies been sufficiently explained by the appellate court but Rodelas made a step backward from the gate (tarangkahan) then
that, indeed, they concern less than significant details that do not detract from the credibility of Tagbago and fell. When confronted, however, with his affidavit, admitted that
credulity of his eyewitness account. The appellate court, scrutinizing the case closely has aptly observed: Demetrio Rodelas was able to run and fell at his balisbisan. The
Although accused-appellant studiously avoided admitting that he had stabbed the conclusion therefore should be that Demetrio Rodelas came
victim, it is clear that he inflicted the mortal wound on Demetrio Rodelas. The from a distance farther than the tarangkahan. Since
eyewitness account of Sergio Tagbago clearly shows that accused appellant stabbed the tarangkahan is only 2-1/2 meters away from the balisbisan.
the victim. Tagbago said he heard defendant-appellant shout angry words at the victim. Only two (2) full stretched steps would be necessary to reach the
He later saw accused-appellant stab Rodelas. Although the defense tried hard to show point where Demetrio Rodelas fell and not as what was stated in
that Tagbago did not see the incident happen, accused appellant's admission that the Tagbago's affidavit (he ran and fell).
incident happened in front of Tagbago's house makes it more probable that Tagbago But again, as the Solicitor General argues:
really witnessed the stabbing of Demetrio. There is no basis for the conclusion that when the victim ran
Tagbago's testimony was not given credit by the trial court because of what it backward after having been stabbed by the appellant, he came
considered glaring inconsistencies and improbabilities. The trial court said: from a distance farther than the gate (tarangkahan). The word
It appeared from Tagbago's oral testimony on direct run simply means to move swiftly, make haste or rush. Hence,
examination that he was at his balcony when Mariano de Luna the emphasis is not on the distance travelled but on the manner
stabbed Demetrio Rodelas and went inside only after the latter's of movement. Thus, the victim, after having been attacked, was
fall. able to move swiftly reaching the wall by the side of the house
On cross examination, however, he admitted that he was inside (balisbisan) before he fell (pp. 6-7, TSN, July 25, 1985). Had
his house when Mariano de Luna suddenly appeared and the victim come from a place farther from the gate as appellant
delivered the stabbing blow. wishes to point out, it would not be possible for the former to
There is no inconsistency here. Tagbago testified on cross-examination that he was even reach the side of the house considering that the wound
about an arm's length from the place where his wife and daughter were playing inflicted was fatal. The most logical conclusion, therefore,
"sungka" in the balcony. (TSN; on. 14-16, November 7, 1984) Hence, as he testified should have been that the victim was stabbed while lifting his
on direct-examination, he was near the balcony at the time of the incident. right foot over the one-foot high bamboo gate (tarangkahan).
The trial court further said: After being stabbed, he must have withdrawn his right foot from
On one occasion, Tagbago relayed that Mariano de Luna over the tarangkahan, then turned around and instinctively
stabbed Demetrio Rodelas while at a distance of five (5) feet in moved swiftly or ran back to the house of Tagbago but fell upon
his demonstration however he showed that Mariano de Luna reaching the balisbisan, the place on the ground below the house
with the use of his right hand made an upward thrust of the awning.
bladed weapon hitting the left side of Demetrio Rodelas' right Indeed, what cannot altogether be disregarded is the fact that Tagbago saw and heard
upper leg. If it is so, then a fully stretched right arm which is the incident — in short he witnessed it. There is no question that when the first shout
more or less three (3) feet will not reach the body of the victim. was heard he was in the balcony of his house, with his family and the victim Demetrio.
More so when in this case, prosecution did not establish that It was accused-appellant challenging Demetrio to a fight. Later accused-appellant
Mariano de Luna's hand was fully stretched forward when the himself confirmed what Tagbago said he had heard the accused-appellant say when the
bladed instrument about eight (8) inches hit Demetrio Rodelas latter said bad blood existed between him and the deceased and he had in fact held him
"right thigh". responsible for the death of his gamecocks.
As the Solicitor General states in his brief for the appellee: Moreover, as pointed out by the Solicitor General, there is no question either that
This is explicable. In the first place, the approximate distance of Tagbago was in a position to see the incident because there was no obstruction; the
about five (5) feet is still possible. It finds support in the wall of the balcony was no higher than the height of the waistline and there was an
testimony of witness Tagbago who claimed that the victim was open space between the window sill and the roofing.
standing and in the act of lifting his right foot over the one-foot Indeed, the inconsistencies pointed out by the trial court concern minor matters which
high bamboo gate (tarangkahan) when he was stabbed by do not detract from the credibility of Tagbago as a witness. This credibility of the
appellant who made an upward thrust of his right arm and then witnesses is not affected by the fact that the deceased was the son-in-law of his
hitting the upper thigh. In other words, the victim's legs were brother-in-law. In the ultimate analysis; his testimony must be appraised on its merits
not only apart from each other but the right leg was raised and, as already pointed out, nothing that the accused-appellant has said shows that
upward at the time of the attack. Tagbago's testimony is unworthy of belief. 12
Be that as it may, it can not be expected of witness Tagbago to VIRGILIO TALAMPAS y G.R. No. 180219
recollect with precision the actual measurement considering the MATIC,
manner, place and time the stabbing incident occurred. What is Petitioner,
important is that Tagbago's demonstration by making an upward Present:
thrust of his right arm and hitting with a bladed weapon the left
side of the victim's right upper leg was corroborated both by the CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO, and earned P100.00 daily, although not on a regular basis because sometimes Ernesto
-versus- BERSAMIN, played in a band for P100.00 per night.
VILLARAMA, JR., JJ. Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so
painful to him that he could not quantify his feelings in terms of money. The death of
his father was a great loss to them as they would not be able to pursue their studies and
PEOPLE OF THE PHILIPPINES, Promulgated: that nobody would support them financially considering that the money being sent by
Respondent. their mother in the amount of P2,000.00 to P2,500.00 every three (3) months, would not
November 23, 2011 be enough.
x-----------------------------------------------------------------------------------------x Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy
on the body of Ernesto and found one gunshot in the body located at the back of the
DECISION costal area, right side, sixteen (16) centimeters from the spinal column. This shot was
fatal as it involved the major organs such as the lungs, liver and the spinal column which
BERSAMIN, J.: caused Ernestos death.
By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid
affirmance of his conviction for homicide (for the killing of the late Ernesto Matic y Masinloc) by the Court of to rest on July 18, 1995 and that his untimely death was so painful and that she could
Appeals (CA) through its decision promulgated on August 16, 2007. [1] not provide her children with sustenance. She asked for the amount of P200,000.00 for
her to be able to send her children to school.
The Regional Trial Court, Branch 25, in Bian, Laguna (RTC) had rejected his pleas of self-defense
and accident and had declared him guilty of the felony under the judgment rendered on June 22, 2004. [2] On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been Eduardo Matic
(Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo, who was then with Ernesto at the time of the
incident, had had hit him with a monkey wrench, but he had parried the blow; that he and Eduardo had then
Antecedents grappled for the monkey wrench; that while they had grappled, he had notice that Eduardo had held a revolver;
that he had thus struggled with Eduardo for control of the revolver, which had accidentally fired and hit Ernesto
The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as follows:[3] during their struggling with each other; that the revolver had again fired, hitting Eduardo in the thigh; that he
had then seized the revolver and shot Eduardo in the head; and that he had then fled the scene when people had
That on or about July 5, 1995, in the Municipality of Bian, Province of Laguna, started swarming around.
Philippines and within the jurisdiction of this Honorable Court, accused VIRGILIO
TALAMPAS, with intent to kill, while conveniently armed with a short firearm and Ruling of the RTC
without any justifiable cause, did then and there willfully, unlawfully and feloniously
attack, assault and shoot one Ernesto Matic y Masinloc with the said firearm, thereby On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found Talampas guilty
inflicting upon him gunshot wound at the back of his body which directly caused his beyond reasonable doubt of homicide,[5] anddisposed:
instantaneous death, to the damage and prejudice of his surviving heirs.
WHEREFORE, premises considered, the court finds the accused guilty beyond
CONTRARY TO LAW. reasonable doubt of the crime of Homicide, with one mitigating circumstance of
voluntary surrender, and hereby sentences him to suffer an indeterminate penalty of
IMPRISONMENT ranging from TEN (10) years and One (1) day of prision mayor, as
The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales, and minimum, to FOURTEEN (14) years and EIGHT (8) months of reclusion temporal, as
Josephine Matic. The CA summarized their testimonies thuswise:[4] maximum. He is likewise ordered to pay the heirs of Ernesto Matic y Masinloc the
following sums, to wit:
Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question,
testified that on July 5, 1995 at about 7:00 oclock in the evening, he together with 1. P50,000.00 as and for death indemnity;
Eduardo Matic (Eduardo) and Ernesto Matic (Ernesto) were infront of his house, along 2. P50,000.00 as and for moral damages;
the road in Zona Siete (7), Wawa, Malaban, Bian, Laguna, repairing his tricycle when 3. P25,000.00 as and for actual damages; and
he noticed the appellant who was riding on a bicycle passed by and stopped. The latter 4. P30,000.00 as and for temperate damages.
alighted at about three (3) meters away from him, walked a few steps and brought out a
short gun, a revolver, and poked the same to Eduardo and fired it hitting Eduardo who Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and
took refuge behind Ernesto. The appellant again fired his gun three (3) times, one shot accused with a copy of this decision.
hitting Ernesto at the right portion of his back causing him (Ernesto) to fall on the ground
with his face down. Another shot hit Eduardo on his nape and fell down on his back SO ORDERED.[6]
(patihaya).Thereafter, the appellant ran away, while he (Jose) and his neighbors brought
the victims to the hospital. On June 6, 1995, Jose executed a Sworn Statement at the Ruling of the CA
Bian Police Station.
Talampas appealed to the CA, contending that:
Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto
who was then 44 years old, he (Ernesto) was driving a tricycle on a boundary system I

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE blow, a circumstance that neither exempted him from criminal responsibility nor mitigated his criminal
ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN liability. Lo que es causa de la causa, es causa del mal causado (what is the cause of the cause is the cause of
BEYOND REASONABLE DOUBT. the evil caused).[13] Under Article 4 of the Revised Penal Code,[14] criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended.
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor, as minimum,
OF ERNESTO MATIC WAS MERELY ACCIDENTAL. to 14 years and eight months, as maximum, legally erroneous.

III The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal. Under
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE Section 1 of the Indeterminate Sentence Law,[15] the court, in imposing a prison sentence for an offense
ACCUSED-APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN HE punished by the Revised Penal Code, or its amendments, is mandated to prescribe an indeterminate sentence
GRAPPLED WITH EDUARDO MATIC. the maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum term shall be within the range of the
penalty next lower to that prescribed by the Revised Penal Code for the offense. With the absence of
Still, the CA affirmed the conviction based on the RTCs factual and legal conclusions, and ruled that Talampas, aggravating or mitigating circumstances, the imposable penalty is reclusion temporal in its medium period, or
having invoked self-defense, had in effect admitted killing Ernesto and had thereby assumed the burden of 14 years, eight months, and one day to 17 years and four months. This is pursuant to Article 64 of the Revised
proving the elements of self-defense by credible, clear and convincing evidence, but had miserably failed to Penal Code.[16] It is such period that the maximum term of the indeterminate sentence should be reckoned from.
discharge his burden.[7] Hence, limiting the maximum term of the indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate Sentence Law, for such penalty was within the
The CA deleted the award of temperate damages in view of the awarding of actual damages, minimum period of reclusion temporal. Accordingly, the Court must add one day to the maximum term fixed
pointing out that the two kinds of damages were mutually exclusive.[8] by the lower courts.
The Court finds to be unnecessary the increment of one day as part of the minimum term of the
Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond reasonable indeterminate sentence. It may be true that the increment did not constitute an error, because the minimum
doubt, and that the lower courts both erred in rejecting his claim of self-defense and accidental death. term thus fixed was entirely within the parameters of the Indeterminate Sentence Law. Yet, the addition of one
day to the 10 years as the minimum term of the indeterminate sentence of Talampas may occasion a degree of
Ruling inconvenience when it will be time for the penal administrators concerned to consider and determine whether
Talampas is already qualified to enjoy the benefits of the Indeterminate Sentence Law. Hence, in order to
The petition for review is denied for lack of merit. simplify the computation of the minimum penalty of the indeterminate sentence, the Court deletes the one-day
increment from the minimum term of the indeterminate sentence.
Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the victim; (b) WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding VIRGILIO
reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (c) lack of TALAMPAS y MATIC guilty beyond reasonable doubt of the crime of homicide, and IMPOSES the
sufficient provocation on the part of the accused in defending himself. [9] indeterminate sentence of 10 years of prision mayor, as minimum, to 14 years, eight months, and one day
of reclusion temporal, as maximum.
In the nature of self-defense, the protagonists should be the accused and the victim. The established
circumstances indicated that such did not happen here, for it was Talampas who had initiated the attack only PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C.
against Eduardo; and that Ernesto had not been at any time a target of Talampas attack, he having only TANGAN, respondents.
happened to be present at the scene of the attack. In reality, neither Eduardo nor Ernesto had committed any [G.R. No. 105830. February 23, 2001]
unlawful aggression against Talampas. Thus, Talampas was not repelling any unlawful aggression from the ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF
victim (Ernesto), thereby rendering his plea of self-defense unwarranted. APPEALS, respondents.
Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a defense. Article YNARES-SANTIAGO, J.:
12(4) of the Revised Penal Code,[10] the legal provision pertinent to accident, contemplates a situation where a At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas
person is in fact in the act of doing something legal, exercising due care, diligence and prudence, but in the Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the same
process produces harm or injury to someone or to something not in the least in the mind of the actor an time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along Roxas
accidental result flowing out of a legal act.[11] Indeed, accident is an event that happens outside the sway of our Boulevard with his uncle, Manuel Miranda, after coming from the Ramada Hotel. Generoso was moving ahead
will, and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable of Tangan. Suddenly, firecrackers were thrown in Generosos way, causing him to swerve to the right and cut
consequences.[12] In short, accident presupposes the lack of intention to commit the wrong done. Tangans path. Tangan blew his horn several times. Generoso slowed down to let Tangan pass. Tangan
accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or
The records eliminate the intervention of accident. Talampas brandished and poked his revolver at Eduardo five times to overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road,
and fired it, hitting Eduardo, who quickly rushed to seek refuge behind Ernesto. At that point, Talampas fired Tangan slowed down to make a U-turn. Generoso passed him, pulled over and got out of the car with his
his revolver thrice. One shot hit Ernesto at the right portion of his back and caused Ernesto to fall face down uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangans car, Generoso loudly
to the ground. Another shot hit Eduardo on the nape, causing Eduardo to fall on his back. Certainly, Talampas retorted, Putang ina mo, bakit mo ginigitgit ang sasakyan ko? Generoso and Tangan then exchanged
acts were by no means lawful, being a criminal assault with his revolver against both Eduardo and Ernesto. expletives. Tangan pointed his hand to Generoso and the latter slapped it, saying, Huwag mo akong
dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo? Tangan countered, Ikaw, ano ang gusto mo? With this,
And, thirdly, the fact that the target of Talampas assault was Eduardo, not Ernesto, did not excuse his hitting Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of
and killing of Ernesto. The fatal hitting of Ernesto was the natural and direct consequence of Talampas the parties respective witnesses were conflicting:
felonious deadly assault against Eduardo. Talampas poor aim amounted to aberratio ictus, or mistake in the

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel In the recent case of People v. Velasco and Galvez,[19] we held that the prosecution cannot avail of the
Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal
accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a
Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the criminal case to correct a lower courts factual findings or evaluation of the evidence.[20]
accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:
Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the
conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for case against him dismissed or otherwise terminated without his express consent by a court of competent
the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to
after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the
T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it. accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any
On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is
that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession necessarily included in the offense charged in the former complaint or information.
of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the However, the conviction of the accused shall not be a bar to another prosecution for an offense which
accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession necessarily includes the offense charged in the former complaint or information under any of the following
of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded instances:
hitting Generoso Miranda.[1] (a) the graver offense developed due to supervening facts arising from the same act or omission constituting
After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, the former charge;
Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found (b) the facts constituting the graver charge became known or were discovered only after a pleas was entered
a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had in the former complaint or information; or
just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as (c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended
Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be party, except as provided in section 1(f) of Rule 116.
brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall
Tangan was charged with the crime of murder with the use of an unlicensed firearm. [2] After a be credited with the same in the event of conviction for the graver offense.
reinvestigation, however, the information was amended to homicide with the use of a licensed firearm, [3] and Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying that no
he was separately charged with illegal possession of unlicensed firearm. [4] On arraignment, Tangan entered a mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be
plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed correspondingly increased, constitutes a violation of Tangans right against double jeopardy and should be
firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with dismissed.
this Court.[5] On November 5, 1987, said petition was dismissed and the joint trial of the two cases was We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner
ordered.[6] Tangan did not invoke self-defense but claimed that Generoso was accidentally shot.As such, the burden of
During the trial, the prosecution and the defense stipulated on the following: that the amount of proving self-defense,[21] which normally would have belonged to Tangan, did not come into play. Although
P126,000.00 was incurred for the funeral and burial expenses of the victim; [7] that P74,625.00 was incurred for Tangan must prove his defense of accidental firing by clear and convincing evidence,[22] the burden of proving
attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts the commission of the crime remained in the prosecution.
to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating
of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal
circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were Code, to wit:
appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability:
months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
maximum, and to indemnify the heirs of the victim.[8] Tangan was released from detention after the First. Unlawful aggression.
promulgation of judgment[9] and was allowed bail in the homicide case. Second. Reasonable necessity of the means employed to prevent or repel it.
Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, Third. Lack of sufficient provocation on the part of the person defending himself.
docketed as G.R. No. 102677, challenging the civil aspect of the court a quos decision, but the same was xxxxxxxxx
dismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed ARTICLE 13. Mitigating Circumstances. The following are mitigating circumstances:
the judgment of the trial court but increased the award of civil indemnity to P50,000.00. [10] His subsequent 1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt
motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of from criminal liability in the respective cases are not attendant.
Appeals.[11] Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance;
The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, hence, the burden of proving the crime charged in the information is not shifted to the accused.[23] In order that
filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as respondents the Court it may be successfully appreciated, however, it is necessary that a majority of the requirements of self-defense
of Appeals and Tangan, where it prayed that the appellate courts judgment be modified by convicting accused- be present, particularly the requisite of unlawful aggression on the part of the victim.[24] Unlawful aggression
appellant of homicide without appreciating in his favor any mitigating circumstance. [12] Subsequently, the by itself or in combination with either of the other two requisite suffices to establish incomplete self-
Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete,[25] because
extension to file comment to its own petition for certiorari.[13] Discovering its glaring error, the Office of the if there is nothing to prevent or repel, the other two requisites of defense will have no basis. [26]
Solicitor General later withdrew its motion for extension of time. [14] Tangan filed a Reply asking that the case There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued
be submitted for decision.[15] to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of
Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that Tangan
105830.[16] Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases shot the victim point-blank in the stomach at a distance of about one foot. On the other hand, Tangan alleged
were consolidated.[17] The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and
it be excused from filing a comment to Tangans petition for review, in order to avoid taking contradictory accidentally fired, hitting the victim.

When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of was almost perpendicular when fired.[35] These findings disprove Tangans claim of accidental shooting. A
the records on appeal becomes difficult. It is the word of one party against the word of the other. The reviewing revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first
tribunal relies on the cold and mute pages of the records, unlike the trial court which had the unique opportunity cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be
of observing first-hand that elusive and incommunicable evidence of the witness deportment on the stand while applied on the trigger to fire the revolver.[36]
testifying.[27] The trial courts assessments of the credibility of witnesses is accorded great weight and respect Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan
on appeal and is binding on this Court,[28] particularly when it has not been adequately demonstrated that acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from the
significant facts and circumstances were shown to have been overlooked or disregarded by the court below person defending himself but from the victim.
which, if considered, might affect the outcome hereof.[29] The rationale for this has been adequately explained A mere threatening or intimidating attitude is not sufficient.[37] Likewise, the exchange of insulting
in that, words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be
The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or considered as unlawful aggression, except when coupled with physical assault. [38] There being no lawful
falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly
tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former
of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the
yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage victim subsequently died as a result of the gunshot wound, though the shooter may not have the intention to
and mien.[30] kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the
Equally, when a person fabricates a story, he usually adopts a simple account because a complex one consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the
might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the gun may be taken from him, he fired and fled.
experience of the courts and the general observations of humanity teach us that the natural limitations of our The third requisite of lack of sufficient provocation on the part of the person defending himself is not
inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in
is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso,
in his demeanor the falsity of his message.[31] Aside from this, it is not also unusual that the witness may have may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an
been coached before he is called to the stand to testify. inducement as to incite provocation for the other party to act violently.
Somewhere along the painstaking review of the evidence on record, one version rings the semblance of The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and
truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the obfuscation under Article 13, paragraphs 4 and 6,[39] have no factual basis. Sufficient provocation as a requisite
truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element
must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating
and white, but oftentimes, and by design, are made to resemble each other so as to be hardly circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating
distinguishable.[32] Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that: circumstance can arise out of one and the same act.[40] Assuming for the sake of argument that the blowing of
When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw horns, cutting of lanes or overtaking can be considered as acts of provocation, the same were not sufficient. The
the accused already holding the gun, they started to grapple for the possession of the gun that it went off word sufficient means adequate to excite a person to commit a wrong and must accordingly be proportionate
hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the accused, he to its gravity.[41] Moreover, Generosos act of asking for an explanation from Tangan was not sufficient
never lost possession of the gun for if he did and when the gun fell to the ground, it will not first explode or if provocation for him to claim that he was provoked to kill or injure Generoso. [42]
it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there
horizontal.[33] be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced
The Court of Appeals agreed - the obfuscation was not far removed from the commission of the crime by a considerable length of time, during
The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were which the perpetrator might recover his normal equanimity. [43]
grappling for the possession of the gun immediately after the accused had taken his gun from inside his car In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and
and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The unexpected occurrence which wuld have created such condition in his mind to shoot the victim. Assuming that
court also agrees with the court below that it was the accused-appellant who shot and killed Generoso his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a
Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed startling occurrence, precisely because he had already passed them and was already the one blocking their
accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and path. Tangans acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of
the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel passion or obfuscation can arise.
Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the With respect to the penalty, under the laws then existing, homicide was penalized with reclusion
possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of temporal,[44] but if the homicide was committed with the use of an unlicensed firearm, the penalty shall be
Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when death.[45] The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987
accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the
from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the retroactive application of the death penalty is unfavorable to him. Previously, the accused may be prosecuted
closeness of the Mirandas vis--vis appellant during the scuffle for the gun that the accused-appellant was for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in
compelled to pull the trigger in answer to the instinct of self-preservation.[34] its aggravated form under P.D. 1866.[46]
No convincing reason appears for the Court to depart from these factual findings, the same being ably P.D. 1866 was amended by R.A. No. 8294,[47] which provides that if an unlicensed firearm is used in
supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and
autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds no longer considered as a separate offense,[48] which means that only one offense shall be punished murder or
examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan of
not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal
must be substantiated by the physical evidence available to the court. Procedure,[49] the aggravating circumstance must be alleged in the information. Being favorable, this new rule
The medical examiner testified that the distance between the muzzle of the gun and the target was about can be given retroactive effect as they are applicable to pending cases.[50] In any case, Tangan was acquitted of
2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the illegal possession case.
the victim and the alleged assailant were facing each other when the shot was made and the position of the gun

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to moment, he was overtaken by the accused who carried knives locally known as balisong, of different sizes.
Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with the knife
mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of
Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman Diokno said: "Enough,
circumstances, may be properly imposed, which in this case is reclusion temporal medium with an father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in front
imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police to come. Upon
four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is prision hearing the shots, municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on
mayor with a range of from six (6) years and one (1) day to twelve (12) years. [51] Hence, petitioner Tangan is the landing of the stairs. He then asked who had wounded the Chinese and the accused Epifanio Diokno
sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to answered that it was he. The policeman took the knife (Exhibit C) which Epifanio Diokno carried in his right
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. hand and brought him to police headquarters. Roman Diokno had left before the policeman arrived and he
The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line was not located until after three days. The municipal president of San Pablo, Laguna, also went to the scene
with jurisprudence.[52] Moral damages are awarded in criminal cases involving injuries if supported by evidence of the crime, found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit
on record,[53] but the stipulation of the parties in this case substitutes for the necessity of evidence in support E. The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs. David
thereof. Though not awarded below, the victims heirs are entitled to moral damages in the amount of Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different parts of the
P50,000.00 which is considered reasonable considering the pain and anguish brought by his death. [54] body, one of them at the back and about three and a half inches long, piercing the pleura and penetrating the
WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. lower lobe of the right lung about an inch, which wound was necessarily mortal and which caused the death
No. 105830 is AFFIRMED with the following MODIFICATIONS: of the victim. On January 8, 1935, while the said Chinese was in a serious condition in the hospital, he made
(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision a statement telling how he was attacked by the accused (Exhibit K).
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo together
maximum, with all the accessory penalties. on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was coming down the
(2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told his son Roman to go
burial expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages. home and tell their relatives what had happened; that when Epifanio Diokno overtook Yu Hiong on the
SO ORDERED. landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether he was willing to marry his
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur. daughter; that the Chinese answered him in the negative and at the same time tried to take something from
G.R. No. L-45100 October 26, 1936 his pocket; that as Epifanio knew that Yu Hiong carried a revolver, he feared the Chinese might harm him; he
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, became obfuscated, drew his knife and knew not what happened afterwards.
vs. The first question to be decided in the present appeal is whether or not the court a quo erred in admitting as
EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants. evidence Exhibit E, consisting in the investigation conducted by the municipal president of San Pablo in the
Ramon Diokno and Gabriel N. Trinidad for appellants. same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m. on January 7, 1935, and
Office of the Solicitor-General Hilado for appellee. wherein Yu Hiong, answering the questions asked by said municipal president, stated that it was Ramon
Diokno and Epifanio Diokno who had wounded him.
It is argued by the defense that said document Exhibit E should not be admitted on the ground that some
VILLA-REAL, J.: words had been altered and because it has not been proven that declarant had a sense of impending death.
Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of It does not appear that said document was altered after it had been signed, but on the contrary, municipal
Laguna, the dispositive part of which reads as follows: president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he neither erased any
In view of the foregoing considerations, the court finds the accused Epifanio Diokno and Roman word nor put another in its place after said document had been finished.
Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences each of them The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal
to reclusion perpetua, to indemnify jointly and severally the heirs of the deceased in the sum of president's questions, does not make his declaration inadmissible. It is enough if, from the circumstances of
P1,000 and to pay the costs of the suit. It is so ordered. the case, it can be inferred with certainty that such must have been his state of mind (People vs. Chan Lin
In support of their appeal, the appellants assign the following alleged errors as committed by the court a Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as a result of the wounds received by
quo in its judgment in question, to wit: him and, consequently, he could not have the hope to live when he made his declaration immediately after he
1. The lower court erred in accepting Exhibit E as evidence. was mortally wounded. But even if the document Exhibit E were not admissible as an ante
2. The lower court erred in admitting Exhibit K as evidence. mortem declaration, it is admissible as a part of the res gestæbecause it was made under circumstances so
3. The lower court erred in not acquitting the appellant Roman. proximate to the incident that it may be considered as a part thereof. (People vs. Portento and Portento, 48
4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua. Phil., 971; People vs. Palamos, 49 Phil., 601.)
The following facts have been proven beyond a reasonable doubt during the trial: The first assignment of alleged error is, therefore, untenable.
The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the morning With respect to the second assignment of alleged error consisting in that the court a quo erred in admitting
of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year, invited the latter to go Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that when the declarant
with her. Yu Hiong accepted the invitation but he told Salome that her father was angry with him. Salome made it he was aware of impending death and that he did not die until three days after making it, all that has
answered him: "No matter, I will be responsible." At about 6 o'clock in the afternoon of said day, Yu Hiong been said relative to Exhibit E, which is the subject matter of the first assignment of alleged error, may be
and Salome Diokno took an automobile and went to the house of Vicente Verina, Salome's cousin, in repeated in connection with said Exhibit K, in the sense that it is admissible as an ante mortem declaration.
Pagbilao. As they found nobody in the house, they went on their way up to San Pablo, Laguna. On January Furthermore, when the deceased made the declaration Exhibit K, he complained of great difficulty in
5th or 6th of said year, Roman Diokno telegraphed his father Epifanio Diokno, who was in Manila, breathing and of being very ill. The fact that he did not die until three days later neither implies that he had
informing him that Salome had eloped with the Chinese Yu Hiong. On the morning of January 7, 1935, no sense of impending death when he made his declaration because he did not improve thereafter but became
Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been worse until he died; nor detracts from its character of an ante mortem declaration because what gives the
informed that the latter were stopping at the house of Antonio Layco, they went there. Upon arriving near the declaration such character is the declarant's conviction, upon making it, that he is not going to live (U.
house, they saw Yu Hiong coming down the stairs. When Yu Hiong saw them, he ran upstairs and they S. vs. Mallari, 29 Phil., 14).
pursued him. As the Chinese found the door of the house locked, he shouted that it be opened for him. At that

The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant, Roman account the circumstances of the case, the indeterminate penalty to which each of said accused must be
Diokno. sentenced is fixed at from two years and one day of prision correccional to eight years and one day
The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different of prision mayor, crediting each with one-half of the time during which they have undergone preventive
dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two instruments of imprisonment (art. 29, Revised Penal Code).
different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased, leave no room for doubt Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of
that Roman Diokno cooperated with his father and stabbed the deceased Yu Hiong with a knife in different homicide and sentences each of them to an indeterminate penalty from two years and one day of prision
parts of the body. Furthermore, the deceased stated in his ante mortem declaration (Exhibit K) that it was correccional to eight years and one day of prision mayor, crediting them with one-half of the time during
Roman Diokno who inflicted the necessarily mortal wound in his back, which caused his death. which they have undergone preventive imprisonment, and to indemnify the heirs of the deceased in the sum
We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior strength, of P1,000, with the costs of both instances. So ordered.
qualifying the crime of murder, which the trial court found to have been proven, has not been established Avanceña, C. J. Abad Santos, and Imperial, JJ., concur.
beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625), this court said that "the
mere fact that the number of the assailants is superior to that of those attacked by them is not sufficient to
constitute the aggravating circumstance of abuse of superiority." In this case we have the photographs of the
body of the deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no evidence
of the physical constitution of the accused Epifanio Diokno and Roman Diokno. Therefore, we cannot Separate Opinions
determine whether or not said accused were physically stronger than the deceased and whether or not they
abused such superiority.
Neither does this court find the existence of the other circumstance qualifying murder, that is, evident LAUREL, J., concurring and dissenting:
premeditation, proven beyond a reasonable doubt because, even assuming that both the accused went to San I accept the conclusion of the majority of my brethren that the crime committed by the defendants and
Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being customary for the people appellants was simple homicide as the existence of either the qualifying circumstance of evident
of said province to carry it, it cannot be inferred with certainty from the mere fact that they carried knives premeditation (art. 14, par. 13, Revised Penal Code) or that of abuse of superior strength (art. 14, par. 15,
that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that Revised Penal Code), has not been clearly established. The mere fact that the two appellants were both armed
premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it with balisong knives and that the deceased knelt before them and implored forgiveness for what he had done
must be evident, that is, the intention to kill must be manifest and it must have been planned in the mind of is not in my opinion, necessarily conclusive of the concurrence of abuse of superior strength in the
the offender and carefully meditated. It is not enough that it arose at the moment of the aggression. commission of the crime (besides U. S. vs.Devela, 3 Phil., 625, 629, vide I Viada, Codigo Penal, pp. 278,
Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime 279). To constitute abuse of superior strength, it is necessary to show with sufficient clearness
committed by the accused is simple homicide.lâwphi1.nêt (People vs. Trumata and Baligasa, 49 Phil., 192, 194), that the aggressors, individually and collectively, were
The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is, immediate greatly superior in strength to the offended party (People vs. Dayug and Bannaisan, 49 Phil., 423, 427).
vindication of a grave offense to said accused, may be taken into consideration in favor of the two accused, For the reason given in the majority opinion, I also agree to the taking into account of the mitigating
because although the elopement took place on January 4, 1935, and the aggression on the 7th of said month circumstance of the appellants having acted upon an impulse powerful as natural to have produced passion or
and year, the offense did not cease while Salome's whereabouts remained unknown and her marriage to the obfuscation (art. 13, par. 6, Revised Penal Code).
deceased unlegalized. Therefore, there was no interruption from the time the offense was committed to the I also agree in according to the appellant, Epifanio Diokno, the mitigating circumstance of voluntary
vindication thereof. Our opinion on this point is based on the fact that the herein accused belong to a family surrender. (Art. 13, par. 7, Revised Penal Code.)
of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their honor I am of the opinion, however, that the mitigating circumstance of immediate vindication of a grave offense
and causes disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and (art. 13, par. 5, Revised Penal Code) should not be considered in favor of the appellants. It should be
anxiety in the minds of the members thereof. observed that the proximate cause of the tragedy was the elopement of Salome, the daughter of Epifanio and
The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon an the sister of Roman. Salome and the deceased had been engaged for about a year and the evidence shows that
impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into the elopement took place at the instance of Salome herself. Under existing legislation, a woman eighteen
consideration in favor of the accused. The fact that the accused saw the deceased run upstairs when he years of age or over, can contract marriage without the consent of her parents. If she leaves the parental home
became aware of their presence, as if he refused to deal with them after having gravely offended them, was for this purpose, neither she nor her lover commits any offense. Under the doctrine laid down by the majority
certainly a stimulus strong enough to produce in their mind a fit of passion which blinded them and led them in the present case, if a woman thirty or more years of age should leave the parental home for the purpose of
to commit the crime with which they are charged, as held by the Supreme Court of Spain in similar cases in marrying or for some kind or species of that romance described by Tennyson in his Idylls of the King or by
its decisions of February 3, 1888, July 9, 1898, February 8, 1908, May 25, 1910, July 3, 1909, and in other Scott in his Lay of the Last Minstrel, against the wishes of her parents, and her father or brother should, in hot
more recent ones. pursuit, overtake the impassioned Romeo and kill him on the spot, the enraged assailant or assailants would
The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered himself be accorded the benefit of the mitigating circumstance of having acted in immediate vindication of a "grave
immediately to the agents of persons in authority, should also be taken into consideration in favor of the offense" committed against them, notwithstanding the maturity or overmaturity in age of the woman and the
accused Epifanio Diokno. fact that the elopement was had at her instance and upon her invitation. It seems to me that the interpretation
In view of the foregoing considerations, this court concludes that the accused are guilty beyond a reasonable is not in keeping with the mores of the times. Filial respect and family traditions are best conserved by home
doubt of the crime of homicide defined and punished in article 249 of the Revised Penal Code, the penalty education or environment, not to speak of other factors, rather than by the rigid or liberal application of the
prescribed therein being reclusion temporal in its full extent. Three mitigating circumstances must be taken penal laws. The act of the deceased in eloping with Salome, at the invitation of the latter was not a "grave
into consideration in favor of the accused Epifanio Diokno and two in favor of the accused Roman Diokno, offense" which called for or justified immediate vindication.
with no aggravating circumstance, thus authorizing the imposition of the penalty next lower to that Disregarding the mitigating circumstance of immediate vindication, considering, furthermore, that there are
prescribed by law (reclusion temporalin its full extent), or prision mayor in its full extent, in the period that no aggravating circumstances attendant in the commission of the offense, and applying the provisions of
this court deems applicable, which is the medium period in this case, in accordance with the provisions of article 64 of the Revised Penal Code and those of the Indeterminate Sentence Law, Epifanio Diokno, having
article 64, rule 5, that is eight years and one day ofprision mayor. in his favor two mitigating circumstances, should be sentenced to an indeterminate prison term ranging from
Both accused should be granted the benefits of the indeterminate sentence provided in Act No. 4103, as four years, two months and one day of prision correccional to ten years and one day of prision mayor, and
amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken from that next Roman Diokno, having in his favor only one mitigating circumstance, should be sentenced to an
lower to prision mayor, or prision correccional of from six months and one day to six years. Taking into

indeterminate prison term ranging from six years and one day of prision mayor to twelve years and one day
of reclusion temporal. AQUINO, J.:
DIAZ, J., dissenting: Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the
I am firmly convinced that the crime committed by the appellants is not simply homicide but murder. It is so charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The
qualified by the proven fact that abuse of superior strength, which is one of the circumstances raising killing was qualified by treachery and aggravated by premeditation and disregard of rank. It was mitigated by
homicide, if committed to the category of murder, was present in the commission thereof (art. 248, subsec. 1, plea of guilty.
of the Revised Penal Code). After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the
From Juan Alcantara's testimony to which the court gives absolute credit, so that it is stated in the majority judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender.
opinion that he saw the appellants pursue the deceased, Yu Hiong, on said occasion, and that he fired shots in The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
the air in order to call the police for help, it appears that upon looking out of the window of his house, almost Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of
fronting that of Antonio Layco on the landing of whose stairs the crime was committed, he saw the deceased immediate vindication of a grave offense and that the aggravating circumstances of disregard of rank should
running along Hermanos Belen Street pursued at close range by the appellants, anxious to enter Layco's not be appreciated against him.
house about twenty or twenty-five meters away (t. s. n., page 57), in order to escape from the aggression of Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the
which he was the victim. It likewise appears that as he saw, upon arriving at the landing of the stairs of shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
Layco's house, that the same was closed and that he had no other means of escape, not having as he, in fact, H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this
did not then have any instrument to defend himself, he fell on his knees, and in that position asked the manner (Exh. A):
appellants, his pursuers, to forgive him. It finally appears that instead of stopping before such attitude of the ... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P.
deceased, which clearly indicated surrender and acknowledgment of his helplessness, said appellants Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay
attacked him with their respective weapons, wounding him in the back, in the side and in other parts of the nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng
body, giving him no peace until they saw him down and bathed in his own blood. I am of the opinion that ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at
when two armed persons attack another who is not armed, as the appellants did to Yu Hiong who was then nasuspende ako ng 60 days at nabalik ako sa trabaho noong January 1966 pero
completely unarmed and showed signs of submission to them by falling on his knees and imploring their kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED
forgiveness, the circumstance of abuse of superior strength clearly and undeniably exists. It is because one THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din
who flees, falls on his knees later when he can no longer evade his pursuers, and immediately asks ako ng Civil Service ng Administrative case ng "DISHONESTY" at dinismiss na ako
forgiveness, shows not only his desire not to resist but his conviction that he is powerless to offer resistance, sa trabaho ni Commissioner Subido noong February 16, 1966.
thereby admitting his inferiority and the superiority of his assailants. The Supreme Court of Spain, after At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa
whose Penal Code ours is patterned, settled a similar question substantially in this sense, in its decision of akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho
June 17, 1872. noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka
In a decision of January 23, 1887, said court, resolving the question whether or not the circumstance of abuse pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang
of superior strength should be taken into consideration in a case where two persons attack another, there "dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of
being no disparity in physical strength between the attackers and the attacked, and the former committed the Appeals.
aggression with arms, the latter having only a small rod to defend himself, sustained the affirmative. Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay
In another decision of January 14, 1899, the question whether or not there was abuse of superior strength in a naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed)
case where two persons, one armed with a cane and the other with a big stone, attacked another who was sa collecting department noon at nagagalit sa akin ang mga empleyado ng Civil
unarmed, was likewise resolved by said court in the affirmative. Service dahil mahigpit ako sa kanila.
The question whether or not the accused, who simultaneously pursued their completely unarmed victim, Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
overtook, surrounded and attacked him later with steel weapons, mortally wounding him, acted with abuse of Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya
superior strength, was similarly determined in the decision of January 17, 1919, the court having held therein at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka
that singleness of action and purpose was present in taking advantage of the victim's lack of means of matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA
defense, with the correlative odds in favor of the aggressors. MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.
Abuse of superior strength is generally determined by the excess of the aggressor's natural strength over that Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr.
of the victim, taking into consideration the momentary positions of both and the employment of means sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na
weakening the defense , although not annulling it (decision of the Supreme Court of Spain of March 6, 1928). "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay
If the case under consideration were to be considered in this light, the conclusion must be that the appellants umalis na ako.
really acted with abuse of superior strength. Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
Considering the act committed by the appellants a manifest murder, and not homicide, due to the presence of nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P.
the qualifying circumstance of abuse of superior strength, and it being a fact that the mitigating Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
circumstances stated in the majority opinion were present in the commission thereof, I am of the opinion that ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at
the penalty that should be imposed upon them, under article 64, rule 5, of the Revised Penal Code, is from tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
ten years and one day of prision mayor to seventeen years and four months of reclusion temporal, said Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at
penalty being next lower to that prescribed for the crime of murder, or at least, the indeterminate penalty of kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.
from five years of prision correccional to ten years and one day of prision mayor, in accordance with Act Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the
No. 4103. With due respect to the majority opinion, I dissent therefrom and vote as herein stated. bullets which he had fired at Moncayo.
G.R. No. L-32042 December 17, 1976 The Police report contains the following background and description of the killing (Exh. B):
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, According to the suspect, he was a former employee of the Civil Service Commission
vs. at its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in
ALBERTO BENITO y RESTUBOG accused-appellant. the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he
RESOLUTION was suspended for "DISHONESTY".

After two months, he was reinstated but was criminally charged for QUALIFIED At the same time he also informed me that he suspected that Mr. Benito stole the
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION missing money orders. His suspicion arose from the fact that he found several money
OF PUBLIC DOCUMENTS and administratively charged for "DISHONESTY" orders marked "Cotabato" as their place of issue among the cash receipts turned over
culminating in his dismissal from the Civil Service on February 1966. to him by Mr. Benito that afternoon as his collection from the sale of examination fee
The aforecited criminal charges against the suspect was allegedly investigated by Asst. stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato which
Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. were turned over to him by Mr. Benito and after checking their serial numbers with the
Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the arrest records of list of remittances on file, we were able to establish definitely the fact that
of the suspect for the crime of ESTAFA. the said money orders were those missing.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section
No. OA-87409 for the arrest of the suspect for the crime of MALVERSATION OF and one of his duties was to sell examination fee stamps to applicants for
PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative examinations. It was then the practice of the cashier to issue to Mr. Benito in the
charges filed him were allegedly instigated and contrived by the victim and since the morning examination fee stamps to be sold during the day and in the afternoon he
time of his dismissal, he was allegedly jobless. turned over to the Cashier the proceeds from the sale of stamps including the unsold
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested stamps issued to him. After considering the work performed by Mr. Benito, it became
the victim to help him in his cases but the former allegedly uttered to the suspect evident that he succeeded in malversing the amount of P100.00 by substituting
"UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA equivalent amount of money orders in the place of the cash extracted by him from his
IPAYARI KITA DITO". daily collections from the sale of examination fee stamps when he clears his
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, accountability with the Cashier.
and when they met again, the victim allegedly remarked in the presence of many The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask
people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who him whether he had something to do with the loss of the fifty (50) money orders at
was humiliated and incensed, left. P2.00 each. At first he denied, but when I asked him where he obtained the money
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with orders issued in Cotabato which were included in his collections the day preceding, he
an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL", admitted having stolen the missing money orders.
SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22 Having confessed his guiltk, I then asked Mr. Benito when he started committing the
bullets in its cylinder, waited for the victim outside the Civil Service compound at P. said irregularity and how much in all did he actually malversed out of his daily
Paredes st. Sampaloc, Mla. collections from the time that he started the anomaly. He stated in the presence of Mr.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No. Abarquez that he started in January, 1965 and that although he did not know exactly
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, the total amount malversed by him, he believed the amount to be between P4,000.00 to
surreptitiously followed the victim and when the latter's car was at a full stop at the P5,000.00. He also confessed that he used the money orders remitted by the Provincial
corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various
suspect without any warning or provocation, suddenly and treacherously shot the amounts extracted by him from his daily cash collections and used by him for personal
victim eight (8) times on the head and different parts of the body at closer range which purposes.
consequently caused the latter's death on the spot inside his car. It appears from the records that the List of Remittances covering the money orders
The suspect then fled while the victim was conveyed on board a red private car (w/ received from the Provincial Treasurer of Negros Occidental was duly receipted by
Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR, Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital. Provincial Treasurer and then turn over to the Cashier the amount involved for deposit
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 to the National Treasurer. The said List of Remittances, duly signed by Mr. Benito, is
p.m. of Dec. 12, 1969. enclosed for use as evidence in this case.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel I told Mr. Benito that I cannot do anything but report the matter to the Commissioner.
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to However, he pleaded that he be given first an opportunity to restore the amount before
E-2). The accused was a clerk in the cash section, Administrative Division of the Commission, receiving I make my report in order that the penalty that may be imposed upon him may be
P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963. lessened to a certain degree. As I thought it wise in the interest of the service to
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service recover the amount involved, I allowed him to go and see his parents in Naga City to
that Benito admitted having malversed an amount between P4,000 and P5,000 from his sales of examination raise the amount in question.
fee stamps. Moncayo's report reads as follows (Exh. F): After two weeks, Mr. Benito informed me that his parents filed an application for a
MEMORANDUM for loan with the Government Service Insurance System and that the proceeds of the said
The Commissioner loan which he intended to use in restoring the amount malversed by him were expected
Through Proper Channels to be released during the last week of May, 1965. However, when the month of May,
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative 1965 elapsed without the amount involved having been restored, I conferred with Mr.
Division of this Commission, who, as had previously been reported, malversed public del Prado, my immediate superior and asked him whether we should wait further for
funds in the amount of approximately P5,000.00 out of his collections from the sale of the release of the said loan in order that the amount involved may be recovered. Mr.
examination fee stamps. Prado consented to giving him a little more time.
I wish to state that this matter came to my attention on the evening of March 1, 1965 When Mr. Benito still failed to restore the amount in question by the end of June,
when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money 1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado, Abarquez
orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of and Gatchalian, also of this Commission, brought him before Deputy Commissioner
money orders received from the Provincial Treasurer of Cotabato, which were kept by A. L. Buenaventura and reported the entire matter to the Deputy Commissioner. In the
him in one of the cabinets inside the Cashier's Cashier' room. presence of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted

readily and voluntarily before the Deputy Commissioner the commission of the An investigation made by this Commission shows that you
offense of malversation of public funds as stated above. malversed public funds in the amount of P3,536.00 out of your
In view of the foregoing, it is recommended that Mr. Benito be charged formally and collections from the sale of examination fee stamps while in the
that he be suspended from office immediately considering the gravity of the offense performance of your official duties as Clerk II in the Cash
committed by him. Section, Administrative Division of this Office. It appears that
( you succeeded in malversing the above-stated amount from your
S cash collections by substituting in lieu thereof money orders
g worth P3,436.00 remitted to this Commission by the Provincial
d Treasurer of Negros Occidental which were duly receipted for
. by you. It also appears that you extracted from a bundle of
) money orders remitted by the Provincial Treasurer of Cotabato
P the amount of P100.00 in money orders which were kept in one
E of the cabinets in the Cashier's room.
D Respondent denied the charge. He explained, among others, that money orders were
R always kept in the Cashier's safe and he had no access to them. Although he admitted
O having received money orders amounting to P3,436.00 remitted by the Provincial
R Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of
. Cotabato he, however, disclaimed having substituted the same for cash collections in
M his sale of examination fee stamps. He reasoned out further that he could not be
O charged with malversation of public funds inasmuch as he was not then an accountable
N officer.
C It appears that respondent, as Clerk in the Cash Section, performs, among other duties,
A the selling of examination fee stamps, receiving payments therefor, and receiving
Y remittances in form of cash and/or money orders from provincial treasurers in
O connection with examinations held in the provinces. It was also his duty to issue
A official receipts for said remittances. In the course of the performance of his duties, he
d received said remittances from the Provincial Treasurers of Negros Occidental and
m Cotabato, but no official receipts were issued by him, as shown by the reply telegrams
i pertaining thereto. While records disclose that remittances from the province of
n Cotabato were submitted to the Cashier of the Civil Service Commission, there is no
i evidence showing that remittances from Negros Occidental were likewise submitted.
s Investigation further reveals that 50 money orders were discovered missing from the
t remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the
r Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15
a money orders turned over by respondent as part of his collections in the sale of
t examination fee stamps were among the missing money orders. This triggered off the
i filing of this case against the respondent.
v On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio
e Buenaventura having misappropriated an aggregate amount ranging from P3,000 to
O P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
f Despite the testimonies of several witnesses regarding his confession, including that of
f the then Deputy Commissioner himself, respondent, when asked to take the stand,
i denied his previous admission.
c Instead, he argued that the cash and accounts of the Cashier of the Civil Service
e Commission, when examined by representatives of the Auditor's Office, did not
r indicate any shortage and therefore there was no irregularity involved. This argument
I is not well taken. Inasmuch as the remittances received by respondent from said
I Provincial Treasurers of Negros Occidental and Cotabato were not in turn given
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he corresponding official receipts, naturally, the same were not reflected on the Cashier's
had misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal cash book.
purposes. The decision dismissing him from the service reads as follows (Exh. G): The weakness of respondent's defense lies not so much on its failure to establish
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, convincingly his innocence as its irreconciliability with established facts. Obviously,
Administrative Division of this Office, for dishonesty. none of the circumstances in this case is consistent with his claim of innocence. On the
The following excerpts from the letter dated October 22, 1965 of the Commissioner of contrary, all of them put together produce reasonable assurance of respondent's guilt.
Civil Service connect respondent with the alleged misappropriation of public funds In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
representing his collection from the sale of examination fee stamps and constitute the charged. Wherefore, he is dismissed from the service effective upon his receipt of this
basis of the instant case against him: decision.

In the interest of the service this decision is executed also on the date of his receipt of money orders on February 28, 1965 and reported it to Moncayo on March 1, 1965,
this decision. together with the list of missing orders (Exhibit M); that after receiving the report,
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. Moncayo called Benito to the office of Abarquez where he admitted taking the missing
The appeal was pending at the time when he assassinated Moncayo (Exh. I). money orders; that Moncayo submitted a memorandum to the Commissioner, dated
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, October 21, 1965, after giving Benito a chance to refund the value of the money orders
allegedly made upon seeing Benito in the compound of the Civil Service Commission near the canteen at (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at the time, and Eliseo
eleven o'clock in the morning of December 12, 1969 (about six hours before the shooting): "Nagiistambay S. Gatchalian, budget officer, testified that when Benito was confronted with the report
pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong of Moncayo and Abarquez, he admitted that he misappropriated about P3,000.00
Civil Service pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969). because of bad company and that he asked for a chance to refund the money.
Mitigating circumstance of immediate vindication of a grave offense. — Benito contends that Moncayo Under cross-examination, Abarquez elucidated his testimony in his direct examination
insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service and explained that when Benito turned over the proceeds of the sale of stamps for that
Commission. Benito argues that that remark "was tantamount to kicking a man already down and to rubbing particular day, he kept the sum of P100.00 and replaced it with the 50 money orders
salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed to ridicule in the that he had taken from the cashier's office to cover up the money that he had pocketed.
presence of his officemates. When he was asked when he discovered that Benito substituted the 50 money orders
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, from Cotabato, he answered that he checked them the following night (March 2, 1965)
acquitting him of the charge of malversation in connection with his alleged misappropriation of the fees with the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but
collected from the examinees of the 1974 patrolman examination. That same decision makes reference to when he was confronted with his affidavit which he executed on April 18, 1966
Benito's exoneration from the administrative charge. The court's decision reads as follows: (Exhibit R), he reluctantly admitted that he had only verified 15 money orders missing
The accused is charged with malversation under the following information: as of April 18, 1966 and that he did not keep any record of the money and the money
That on or about and during the period comprised between orders given to him by Benito on March 1, 1965.
October 17, 1964, to February, 1965, inclusive, in the City of He also admitted that the room where he kept the money orders in an unlocked drawer
Manila Philippines, the said accused being then employed as was also occupied by two other persons, and that this was the first time that he had not
Clerk I of the Civil Service Commission, a branch of the followed the usual procedure of keeping them in the safe. He further admitted that,
government of the Republic of the Philippines, among whose although regular examinations were conducted during the period of October 1, 1964 to
duties were to accept payments of fees collected from the February 28, 1965 by the examiners of the Civil Service Commission and the auditors
examinees of the 1964 Patrolman examination, and by reason of of the General Auditing Office, they did not find any shortage in the accounts of
his said position received the total amount of P3,536.00, with Benito.
the duty to turn over and/or account for his collections to the Finally, when the Court asked him what happened to the 50 money orders, at first he
cashier of the Civil Service Commission immediately or upon hinted that they were not deposited with the Bureau of Treasury because they were
demand but the said accused once in possession of the said reported missing; but when pressed further, he said that he deposited them, but did not
amount of P3,536.00, with intent to defraud, despite repeated issue any official receipt for them. When asked if he had any evidence to show that
demands made upon him to turn over and to account for the they were actually deposited, he admitted that he could not even remember when he
same, did then and there willfully, unlawfully and feloniously deposited them.
misappropriate, misapply and convert and malverse the said The testimony of Teodoro Abarquez upon which the prosecution has built its case, is
amount to his own personal use and benefit, to the detriment of too weak and shaky to sustain a finding of guilt because of his glaring inconsistencies,
public interest and to the damage and prejudice of the said Civil contradictions and gaps in memory. The prosecution has failed to present convincing
Service Commission in the said amount of P3,536.00, Philippine evidence that the 50 money orders were even lost: According to Abarquez he had only
currency. verified the loss of 15 on April 18, 1966, although he testified earlier that he
Contrary to law. determined the loss of 50 the night after March 1, 1965.
The evidence shows that the accused had an appointment as clerk in the Civil Service The examiners of the Civil Service Commission and the auditors of the General
Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I, Auditing Office did not find any irregularity in the cash accountability of Benito,
range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others, of according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
selling Civil Service examination- fee stamps and to receive payment therefor, as well Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
as to receive remittances of money orders and checks from the provincial treasurers for Service Commission, who testified for the accused. Benito was in fact exonorated the
payments of examination fee stamps (Exhibit B). administrative charge filed against him for the time same transaction (Exhibit E).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period In fact, the testimony of Abarquez under cross-examination that he has not issued any
alleged in the information, testified in his direct examination that Benito was working official receipt for the 50 money orders and his inability to prove that he deposited
in his office; that one of the duties that he assigned to him was to sell examination fee them with the bureau of Treasury gives rise to the suspicion that other persons, not the
stamps; that it was customary for him to give stamps to Benito at the start of office accused, may have stolen the 50 missing money orders. Even without taking into
hours in the morning and that Benito turned over to him the proceeds of the sale, as account the testimony of the accused, who denied the testimonies of the witnesses for
well as the unsold stamps, at the close of office hours in the afternoon; that one the prosecution, the court believes that the prosecution has failed to prove the guilt of
afternoon he noticed that Benito turned over to him 50 money orders from Cotabato, the accused.
together with some cash, as proceeds of the sale of stamps for that day; that he WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de
remembered that he was missing money orders from one of his cabinets where he kept oficio.
them; that when he discovered that the 50 money orders were those which were The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the
missing, he reported the matter to Pedro Moncayo, the chief administrative officer; on mitigating circumstance of vindication of a grave offense because it was not specifically directed at Benito.
March 1, 1965; that the money orders were for P2.00 each, and were payments of the The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the morning. According
examination fees from Cotabato (Exhibit F); that he discovered the loss of the 50 to Benito's testimony (not consistent with his confession), he saw Moncayo three hours later or at two o'clock

in the afternoon and inquired from him about his case and Moncayo said that he had already submitted his 1. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; REQUISITES
report and he could not do anything more about Benito's case (26 tan). As already stated, the assassination THEREOF; CASE AT BAR. — In order that the mitigating circumstance of voluntary surrender may be
was perpetrated at around five o'clock in the afternoon of the same day. properly appreciated in favor of the accused, it must appear that (a) he had not been actually arrested; (b) he
Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances surrendered himself to a person in authority or his agent; and (c) his surrender is voluntary, which
recited above for changing our prior opinion that the mitigating circumstance of "haber ejecutado el hecho en circumstances are not present in this case (People v. Molo, 88 SCRA 22). For, while appellant did not try to
vindicacion proxima de una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's escape, he did nothing to place himself in the custody of authorities.
favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his
emotion over said remark if he ever did resent it." 2. ID.; ID.; PASSION AND OBFUSCATION; CANNOT BE INVOKED WHEN NOT PRODUCED BY
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de España) no ha ANY UNLAWFUL AND SUFFICIENT ACT ON THE PART OF THE CIVIL VICTIMS; CASE AT BAR.
apreciado la proximidad ... cuando la ofensa se realizo por la mañana y el delito tuvo lugar por — The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of appellant
la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre tiempo considering that this relationship with Yolanda, the common-law wife of Noel Siozon, is illegitimate. The
suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 victims did not do anything which were unlawful and sufficient to produce the passion and obfuscation
noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de contemplated by law. Appellant’s claim that Yolanda kicked him in the genital area was not corroborated;
3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho and even if true, the same could not have resulted in depriving him of reason that has driven him to kill
Penal. 1975 Ed., p. 564). Yolanda and Dennis, and to almost kill Dianne.
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del
autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en
el pecho con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el DECISION
animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica
Española 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the RELOVA, J.:
assassination was more than sufficient to enable Benito to recover his serenity. But instead of using that time
to regain his composure, he evolved the plan of liquidating Moncayo after office hours. Benito literally
ambushed Moncayo just a few minutes after the victim had left the office. He acted with treachery and Automatic review of the decision dated March 15, 1982 of the then Circuit Criminal Court of Cebu City in
evident premeditation in perpetrating the cold-blooded murder. Criminal Cases Nos. CCC-XIV-2539-Cebu, for Murder; CCC-XIV-2541-Cebu, for Murder; and CCC-XIV-
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the 2542-Cebu, for Frustrated Murder, the dispositive portion of which
latter's alleged defamatory remark that the Civil Service Commission compound was a hangout for a thief or
for thieves but the refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily "WHEREFORE, the Court finds the accused Romeo Pacot guilty beyond reasonable doubt of the crime of
to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for having exposed the MURDER charged in Criminal Case No. 2539. Finding the presence of the following aggravating
alleged anomalies or defraudation committed by Benito and for obstinately refusing to change his report. circumstances: disregard of sex; (2) dwelling; (3) abuse of confidence or obvious ungratefulness; (4) abuse of
Aggravating circumstance of disregard of rank.— Benito contends that disregard of rank should not be superior strength; and (5) evident premeditation, while only the mitigating circumstance of plea of guilty
considered against him because there was no evidence that he "deliberately intended to offend or insult the serves to extenuate the crime, the Court is constrained to sentence, as it hereby sentences, the accused to
rank" of Moncayo. That contention has no merit. suffer the extreme penalty of death, with the accessories of the law; to indemnify the heirs of the deceased
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the Yolanda Margate in the sum of P12,000.00, and to pay the costs.
killer was a clerk in the same office who resented the victim's condemnatory report against him. In that
situation, the existence of the aggravating circumstance of "desprecio del respeto que por la dignidad "As to Criminal Case No. 2541, while We find the presence of the following aggravating circumstances: (1)
mereciere el ofendido" is manifest. disregard of the tender age of the offended party; (2) dwelling; (3) abuse of confidence or obvious
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief ungratefulness; (4) abuse of superior strength; and (5) evident premeditation, only the mitigating
of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate, circumstance of plea of guilty serves to extenuate the crime. Consequently, the accused Romeo Pacot should
the chancellor of the consulate, who had misappropriated the funds of the consulate, which misappropriation be, as he is, hereby sentenced to suffer the extreme penalty of death, with the accessories of the law; to
was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the indemnify the heirs of the deceased Dennis Siozon in the sum of P12,000.00, and to pay the costs.
murder was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied. "As to Criminal Case No. 2542, while We find the presence of the following aggravating circumstances: (1)
SO ORDERED. evident premeditation; (2) abuse of superior strength; (3) disregard of tender age and sex; and (4) dwelling,
Teehankee, Makasiar, Antonio, Concepcion, Jr. and Martin, JJ., concur. only the mitigating circumstance of plea of guilty serves to extenuate the crime. Consequently, the accused
Castro, C. J., Fernando and Muñoz Palma, JJ., concur in the result. Romeo Pacot should be, as he is, hereby sentenced to the indeterminate penalty of, from EIGHT (8) YEARS
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMEO PACOT Y BABAD, Defendant- and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and
Appellant. ONE (1) DAY of reclusion temporal, as maximum, with the accessory penalties of the law; to indemnify the
offended party Diane Siozon in the sum of P5,000.00, without subsidiary imprisonment in case of
The Solicitor General for Plaintiff-Appellee. insolvency; and to pay the costs." (pp. 97-98, Rollo)

Victor N. Alimurung (Counsel de Oficio), for Defendant-Appellant. Records show that the victim Yolanda Margate is the common-law wife Noel Siozon who is married to
Ophelia Ofinado. In 1970, Ophelia left Noel taking their daughter with her. Subsequently, he met Yolanda
Margate who became his common-law wife and with whom he has two (2) children, namely: Diane and
SYLLABUS Dennis. After three (3) years, they left Tacloban City and moved to Cebu City where they established their
new residence at Oliva Street. It was on July 21, 1980 when appellant Romeo Pacot, 23 years old, a native of
Butuan City and a civil engineering student at the Cebu Institute of Technology, met Yolanda. Appellant fell
in love with Yolanda whom he found to be still single but has two (2) children with her common-law

husband, Noel a businessman from Tacloban City. victims did not do anything which were unlawful and sufficient to produce the passion and obfuscation
contemplated by law. Appellant’s claim that Yolanda kicked him in the genital area was not corroborated;
According to appellant, by August 1980, Yolanda agreed to go out with him — to the beach, to the movies and, even if true, the same could not have resulted in depriving him of reason that has driven him to kill
and, at times, to dinner. He found her also showing signs of affection for him and, on August 15, 1980, in a Yolanda and Dennis, and to almost kill Diane.
moviehouse, he proposed and she accepted him. Thereafter, they had frequent dates, specially at times when
Noel was out of town for business which was often. Neither did the lower court err in appreciating the qualifying circumstance of treachery alleged in the three
informations, and in considering the sex and age of the helpless victims.
On October 1, 1980, appellant and Yolanda had their first intercourse at the D’ Inn Hotel and thereafter they
would meet as often as four times a week. About four months after, or in February 1981, Noel came to know The court properly considered in his favor the mitigating circumstance of plea of guilty. Thus, the maximum
about the love affair of appellant and Yolanda and he confronted Romeo who promised not to see Yolanda penalty of death was properly imposed in each of the cases where Yolanda and Dennis were the victims.
again. However, according to Romeo, Yolanda continued to call him by phone and so in March 1981 their However, for lack of necessary votes, the death penalties in said cases are both reduced to reclusion
relationship was again resumed. The matter was brought to the attention of Barrio Captain Jose Navarro upon perpetua.
complaint of Noel that appellant was always pestering them, courting Yolanda and following her wherever
she went. The barrio captain was able to settle the matter when he suggested that appellant leave Cebu City WHEREFORE, in Criminal Case No. CCC-XIV-2539-Cebu, the judgment is AFFIRMED but modified in
so that his relationship with Yolanda would be cut off. Pacot promised to leave Cebu City for Butuan City. It the sense that appellant is sentenced to reclusion perpetua, to indemnify the heirs of Yolanda Margate in the
was sometime in July 1981 when appellant returned to Cebu and, upon meeting Yolanda at the Seiko Service sum of P30,000.00, and to pay the costs.
Center, they went to Queensland Hotel where they made love and, thereafter, at the Siozon residence,
whenever Noel left for Tacloban City. In Criminal Case No. CCC-XIV-2541-Cebu, judgment is AFFIRMED but modified in the sense that
appellant is also sentenced to reclusion perpetua, to indemnify the heirs of Dennis Siozon in the sum of
On October 14, 1981, appellant went to the Siozon residence at about 2:00 in the afternoon, using the back P30,000.00, and to pay the
door as suggested by Yolanda over the telephone. Yolanda and Dennis were asleep while Diane and the maid
Delia were watching the television. Yolanda woke up and asked Diane for the time. As the clock was in the In Criminal Case No, CCC-XIV-2542-Cebu, the judgment is AFFIRMED with the modification that
kitchen, Diane went down and saw that it was 2:14. On her way back, Diane saw appellant in the sala reading appellant is to indemnify Diane Siozon in the sum of P15,000.00, without subsidiary imprisonment in case of
a newspaper. He followed her to the bedroom, closed the windows and turned on the air conditioning unit. insolvency.
Yolanda then ordered the maid to get some refreshment, Yolanda asked appellant if he was ready to marry
her. Appellant would not commit himself giving the excuse that he was not yet economically stable and that PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO PANSENSOY, accused-appellant.
his parents would disown him if they would know that he is married. According to appellant, Yolanda DECISION
became furious and suddenly kicked his genitals causing him to suffer in pain. He blacked out, took the knife CARPIO, J.:
which was on top of the cabinet and stabbed Yolanda several times, then the children until he thought all of The Case
them had died. However, Diane did not die and, upon regaining consciousness, she went down to open the Before this Court is an appeal from the Decision[1] dated September 13, 1999 in Criminal Case No. 94-
door for the police to enter. 11527 of the Regional Trial Court of Antipolo City, Branch 73, convicting appellant Roberto Pansensoy
(appellant for brevity) of the crime of murder and sentencing him to suffer the penalty of reclusion
Three cases were filed against appellant Romeo Pacot y Babad. Upon arraignment on November 9, 1981, perpetua. The trial court also ordered appellant to pay the heirs of the victim P50,000.00 as civil indemnity,
Pacot, assisted by counsel pleaded "not guilty" to each of the informations filed against him. However, when P40,000.00 as actual damages and P20,000.00 as moral damages.
the trial started on February 8, 1982, Pacot, again assisted by counsel, moved to withdraw his plea of not The Charge
guilty and to enter instead a plea of guilty. The trial court admonished him of the consequences of a plea of Asst. Provincial Prosecutor Rolando L. Gonzales filed an Information [2] charging appellant with the
guilty but, notwithstanding, he insisted in his motion which the court granted. He was re arraigned and crime of murder, committed as follows:
pleaded guilty to the three charges filed against him. That on or about the 8th day of May, 1994, in the Municipality of Antipolo, Province of Rizal, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, armed with a handgun, with
Considering the gravity of the offenses, the trial court required the prosecution to present evidence and the intent to kill and by means of treachery and evident premeditation, did, then and there willfully, unlawfully
defense the opportunity to prove any mitigating circumstance.chanrobles virtual lawlibrary and feloniously attack, assault and shoot one Hilario Reyes y Inovero, hitting him on his forehead, thereby
inflicting upon him a mortal gunshot wound, which directly caused his death.
On March 15, 1982, the lower court rendered its decision finding Romeo Pacot guilty of each of the crimes CONTRARY TO LAW.
charged and sentenced him accordingly. Arraignment and Plea
When arraigned on February 20, 1995, the appellant, assisted by his counsel, entered a plea of not
In this appeal, appellant contends that the lower court erred (1) in not giving the defendant the benefit of the guilty.[3] Thereafter, trial on the merits followed.
mitigating circumstances of voluntary surrender, passion, and obfuscation; (2) in holding that the aggravating The Trial
circumstances alleged in the informations should be applied against the defendant; and (3) in imposing the The prosecution presented the following witnesses: (1) Analie Pansensoy, eyewitness to the actual
extreme penalty of death against the defendant. shooting of the victim; (2) Dr. Emmanuel Aranas, the medico-legal officer who conducted the autopsy on the
victim; (3) SPO1 Reynaldo Anclote, the police officer who conducted the investigation of the incident; (4)
Appellant’s claim that he is entitled to the mitigating circumstance of voluntary surrender is without merit. In Gregoria Reyes, mother of the victim; and (5) Rogelio Fullente, neighbor of the victim. For its part, the defense
order that the same may be properly appreciated in favor of the accused, it must appear that (a) he had not presented the appellant as its lone witness.
been actually arrested; (b) he surrendered himself to a person in authority or his agent; and (c) his surrender Version of the Prosecution
is voluntary, which circumstances are not present in this case (People v. Molo, 88 SCRA 22). For, while Analie Pansensoy (Analie for brevity), twenty-eight years old, is the legitimate wife of appellant. She
appellant did not try to escape, he did nothing to place himself in the custody of the authorities. testified that she had been living-in with the victim, Hilario Reyes (Hilario for brevity), since February
1994. On May 8, 1994, she and Hilario were in the house they were renting at Lumang Bayan, Antipolo,
The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of appellant Rizal. Hilario was lying down inside the house. She stood up when she heard a knocking on the door. As she
considering that his relationship with Yolanda, the common-law wife of Noel Siozon, is illegitimate. The opened the door, she saw appellant holding a gun. She embraced appellant and tried to wrest the gun away

from him but she failed. Hilario went out of the house and sat on a bench. Appellant approached Hilario and He confronted his wife and pulled her hair and slapped her. His wife was just seated in the corner of the
asked him if he really loves his wife. Hilario answered in the affirmative. Appellant next asked Hilario if he room. He asked her where their child was. But before she could answer, their child went inside the room and
was still single. Hilario answered yes. Appellant counted one to three and at the count of three shot embraced her mother very tightly. He tried to pull their daughter away from Analie but the latter did not let go
Hilario. Hilario was hit on the forehead and sprawled on the ground. [4] of the child. He told Analie that he would kill her too if she did not release the child. He started to count one,
Dr. Emmanuel Aranas, physician, conducted the autopsy on the victim at the St. James Funeral Parlor two, which made his wife release their daughter. He left the room with the child and proceeded to their
at past midnight on May 9, 1994. He found a single gunshot wound on the forehead which was the cause of house. Tisoy was still sprawled on the ground face down when he left. [9]
death. He opined that the entry shows the area of smudging which indicates that Hilario was shot at close The Trial Courts Ruling
range. The distance of the muzzle of the gun from the forehead could be less than three inches. He also opined The trial court accorded full faith and credence to the testimony of Analie and rejected the version of
that the person who fired the shot and Hilario were facing each other.[5] the appellant that he acted in self-defense. It found the testimony of Analie credible and observed that she
SPO1 Reynaldo Anclote, member of the Philippine National Police, conducted the investigation on the remained unperturbed during the cross-examination. The trial court also noted that appellant, who was then a
shooting of Hilario. He took the statements of Gregoria Reyes and Analie in the police station a day after the security guard, was charged by his employer with the crime of qualified theft for the loss of a .38 caliber
incident. He did not conduct an ocular inspection at the scene of the crime. [6] revolver. Appellant allegedly committed the theft on May 8, 1994, the very same day the shooting incident
Gregoria Reyes (Gregoria for brevity), mother of Hilario, testified that she came to know about the death happened. The gun used in shooting the victim was not found at the scene of the crime but the slug recovered
of her son through a neighbor, Roger. She found out that her son was dead upon arrival at the hospital and was was that of a .38 caliber revolver. Although appellant was subsequently acquitted of the charge, the trial court
taken to the funeral parlor. She saw the gunshot wound on the forehead of her son. On the same night of May considered this as evidence of a circumstance connected with the crime. The trial court further noted that
8, 1994, she went to the police station where she saw Analie give her statement to the police. She also gave her appellant went into hiding from the time the shooting incident happened until the case was filed in court on
statement to the police. As a result of the death of her son, she incurred expenses in the amounts of P10,000.00 August 24, 1994.
and P30,000.00 for the funeral and the burial, respectively. At the time of his death, her son was managing two The trial court pronounced judgment thus:
passenger jeepneys, one of which he was also driving. He was earning P800.00 a day.[7] WHEREFORE, premises considered, the accused is hereby found guilty beyond reasonable doubt with the
Rogelio Fullente (Rogelio for brevity), fifty-six years old, is a co-driver of Hilario in the Antipolo- crime of murder and is hereby sentenced to the penalty of reclusion perpetua. The accused is hereby
Marikina route. He was the neighbor referred to by Gregoria in her testimony as Roger, who reported to her further ordered to pay the heirs of Hilario Reyes y Inovero the amount of P50,000.00 as death indemnity and
the shooting incident. He has known Hilario for ten to fifteen years. In the evening of May 8, 1994, he was in P40,000.00 and P20,000.00 as actual or compensatory and moral damages, respectively.
his home in Lumang Bayan which was about ten meters away from where Hilario was staying. According to Costs against the accused.
him, their houses were separated by a driveway which could accommodate one jeep. He heard several knocks SO ORDERED.[10]
and opened the door of his house. When he opened the door he found out that somebody was knocking on the Hence, the instant appeal.
door of Hilario and ordering him to come out. The first time he saw the man knocking on Hilarios door, the The Issues
man was not carrying anything. When he heard a gunshot, he opened the door again and saw the man carrying Appellant is before this Court raising the following assignment of errors:
something before he left. Rogelio further narrated that when the man asked Hilario to come out, Hilario was I
standing by the door. The man asked Hilario if he loved his wife and Hilario answered yes. The man then fired THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND
a shot and Hilarios head bent forward before he fell down. He does not know the caliber of the gun but just REASONABLE DOUBT OF THE CRIME CHARGED.
heard the gunshot. He went to the parents of Hilario to report the incident. On cross-examination, Rogelio II
testified that when appellant knocked on the door, it was Hilario who opened the door. Hilario sat on the bench THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF
by the door. When Hilario answered yes to appellants question of whether he loved his wife, appellant MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE ANY OF THE QUALIFYING
immediately fired a shot. Rogelio testified that he watched appellant fire the shot and then left to report the CIRCUMSTANCES.
incident to the parents of Hilario.[8] The Courts Ruling
Version of the Defense The appeal is partly meritorious.
As expected, the defense had a different version as told by the appellant himself. First Issue: Self-Defense
Appellant, twenty-eight years old and a security guard, invoked self-defense in his testimony. He Appellant insists that he acted in self-defense. Self-defense as a justifying circumstance may exempt an
testified that Analie is his wife and they have three children. According to him, their relationship as husband accused from criminal liability when the following requisites are met, namely: (1) there has been an unlawful
and wife was normal. aggression on the part of the victim; (2) the means employed to prevent or repel such aggression are reasonably
On May 8, 1994, at about 6:30 p.m., a certain Amadong Bisaya (Bisaya for brevity) told him that he necessary; and (3) the person defending himself has not provoked the victim into committing the act of
saw his wife with their youngest child and Tisoy, referring to Hilario, board a jeep on their way to Lumang aggression.[11] The burden of proving by clear and convincing evidence that the killing was justified is on the
Bayan. He had met Bisaya before when the latter told him some time in April 1994 that he always saw accused.[12] In doing so, he must rely on the strength of his own evidence and not on the weakness of that of
appellants wife with another man.He asked Bisaya to accompany him to Lumang Bayan where Bisaya pointed the prosecution.[13]
to the room where his wife and Tisoy entered. Appellant asserts that the unlawful aggressor was the victim and his death could be attributed to himself
The appellant kicked the door of the room and there he found his wife and Tisoy lying beside each alone. By his own testimony, appellant tried to prove unlawful aggression on the part of Hilario. According to
other. They were only clad in their underwear. He dragged his wife out of the room by her hair and while doing him, he kicked the door, and when it opened he saw his wife and Hilario inside the room clad in their
so, he saw Tisoy pull a gun from the table which was covered with clothes. He let go of his wife and jumped underwear. He pulled the hair of his wife and dragged her outside while she was embracing him. At this point,
on Tisoy to grab the gun. Hilario pulled a gun from the table. He let go of his wife, jumped on Hilario and grappled for possession of the
While they struggled for possession of the gun he hit the testicles of Tisoy with his knees. Tisoy fell on gun. While trying to wrest the gun from Hilario, he hit Hilarios testicles with his knees. Hilario fell on the floor
his knees but was still holding the gun. Still grappling for possession of the gun, appellant held on to the back but was still holding the gun. When Hilario knelt down, appellant was able to hold and twist Hilarios hand,
portion of the gun and part of the trigger, while his other hand held Hilarios hand which was holding the butt pointing the gun towards the latter. The gun suddenly went off and Hilario was hit on the head.
of the gun. When Hilario knelt down, appellant was able to twist Hilarios hand and to point the barrel of the On the other hand, Analie testified that when she opened the door to their room, she saw appellant
gun towards the latter. holding a gun. She embraced appellant and tried to wrest the gun from him but failed. Hilario went out and sat
The gun suddenly went off. At that moment, Tisoy was holding the trigger of the gun. Tisoy was shot on a bench. Appellant approached him and asked him questions. Appellant counted and, at the count of three,
on the head and fell down. It was Tisoy who was holding the trigger when the gun fired and hit him on the shot Hilario in the head.
head. Tisoy was still holding the gun when he fell to the floor. The conflicting versions of the prosecution and of the defense as to who initiated the aggression was
settled by the trial court which gave full faith and credence to the testimony of Analie over that of appellant. The

trial court, which had the opportunity to observe the demeanor of the witnesses on the stand, was convinced of A: Around fifteen minutes.
the truthfulness of Analies testimony and not that of appellants. Q: After lying down for fifteen minutes, what did you do next?
Undeterred, appellants first assignment of error is focused on the sufficiency of the evidence for the A: I stood up because Roberto knocked on the door.
prosecution, questioning in particular the trial courts assessment of the credibility of the prosecutions Q: What happened next after this Roberto knocked on the door?
eyewitness, Analie. According to him, Analies testimony is flawed as she insisted that she and appellant had A: I opened the door and I saw Roberto holding a gun.
been separated for more than three years but this is belied by the fact that their youngest daughter is barely Q: After you opened the door and you saw Roberto holding a gun, what happened next?
a year old. He also points out that appellants version that he dragged his wife outside by pulling her hair was A: I embraced Roberto and tried to wrestle the gun away from him but I did not succeed.
more believable and in accord with human behavior rather than Analies version that appellant took time to Q: When you were not able to succeed in taking the gun away from him, what happened next?
interrogate the victim regarding how much the latter loved his wife and other personal circumstances before A: Hilario went out, sat on the bench and Roberto approached him.
shooting him. Q: And after Hilario went out and sat on the bench and Roberto approached him, what happened next?
We find no reason to reverse or alter the evaluation of the trial court. We reiterate the time tested doctrine A: Roberto asked Hilario; do you really love my wife? And Hilario said, Yes.
that a trial courts assessment of the credibility of a witness is entitled to great weight even conclusive and Q: Who was this wife Roberto was referring to when he asked Hilario?
binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and A: Thats me.
influence.[14] The alleged flaws in the testimony of Analie do not serve to impair her credibility or diminish the Q: After Hilario answered that he really loved his wife which is you that is being referred to, what
truthfulness of her remarks as to who initiated the aggression and fired the shot. happened next?
The allegedly incredible statements do not pertain to the act of killing, but rather to minor or incidental A: Roberto asked Hilario; are you still single, are you not married?
matters which happened before and after the fact of killing. Analies testimony that she had been separated from Q: What was the response of Hilario if there was any?
appellant for three years which, as pointed out by appellant, was belied by the age of their youngest daughter, A: He answered yes.
does not necessarily impair her credibility. Analies 3-year separation from appellant does not preclude Analies Q: What happened next?
still having a child with appellant. As to Analies version that appellant interrogated Hilario before shooting A: Roberto counted one to three and at the count of 3 he shot Hilario.
him, suffice it to say that it is a matter of common observation that the reaction of a person when confronted Q: Was Hilario hit by the shot that was made by Roberto?
with a shocking or unusual incident varies.[15]As admitted by appellant himself, it was the first time he saw his A: Hilario was hit on the forehead and he sprawled on the ground. [17]
wife and Hilario together, veritably confirming what Bisaya had told him some time in April 1994 that Bisaya Analie remained straightforward and consistent all throughout her cross-examination:
always saw his wife with someone else. It was not at all strange for appellant to have asked Hilario if he really Q: Madam witness, you stated that you are the wife of the accused Roberto Pansensoy, is that correct?
loved his wife. Were we to agree with the appellant and treat each strange or unusual event in the occurrence A: Yes, sir.
of a crime, such as appellants interrogation of the victim, as basis for reasonable doubt, no criminal prosecution Q: Are you legally married to accused Roberto Pansensoy?
would prevail.[16] A: Yes, sir.
In any event, a thorough evaluation of the transcript of stenographic notes indicates that Analie, as Q: And if you remember, when were you married?
observed by the trial court, testified in a candid and straightforward manner as follows: A: 1990.
Q: Why do you know said Hilario Reyes? Q: Where were you married?
A: He is my live-in partner. A: At Negros Occidental.
Q: When did you start to be the live-in partner of Hilario Reyes? Q: You stated that on May 8, 1994, you were at Lumang Bayan, Antipolo, Rizal, am I correct?
A: February 1994. A: Yes, sir.
Q: Up to what time did you become to be the live-in partner of Hilario Reyes? Q: In what particular place at Lumang Bayan is that?
A: Three months. A: Inside the village.
Q: What was the reason why your live-in relationship lasted only three months? Q: What were you doing then inside the village?
A: Because Roberto killed Hilario Reyes. A: We are renting a house there.
Q: When was this Hilario Reyes killed? Q: Who is your companion while renting that house?
A: May 8, 1994. A: Hilario Reyes.
Q: Where was he killed? Q: And who is this Hilario Reyes?
A: At Lumang Bayan. A: The victim.
Q: In what municipality? Q: What is your relation with the victim?
A: Lumang Bayan, Antipolo, Rizal. A: Live-in partner.
Q: How did you know that he was killed? Q: How long have you been living in together, Madam Witness?
A: He was shot by Roberto Pansensoy. A: Three months.
Q: How did you know that he was shot by Roberto Pansensoy? Q: On that date May 8, 1994 you stated a while ago that you were resting together with Hilario Reyes, is
A: Because Roberto went there and he was holding a gun. that correct?
Q: On May 8, 1994 that you said Hilario Reyes was shot by Roberto Pansensoy, where were you? A: Yes, sir.
A: Inside the house, sir. Q: Inside the room of the house being rented by Hilario Reyes?
Q: Whose is that house you are referring to? A: Yes, sir.
A: We are renting that house. Q: What was Hilario Reyes doing then?
Q: With whom? A: He was laying (sic).
A: Hilario Reyes. Q: Lying where?
Q: Before this Hilario Reyes was shot, what was he doing? A: Inside.
A: He was already lying down. Q: Thereafter, what happened next while Hilario Reyes was resting?
Q: Lying down where? A: I heard Roberto knock on the door.
A: Inside the house, sir. Q: After which, what happened next, Madam Witness?
Q: How long was he lying down? A: I opened the door and I saw Roberto.

Q: What did you do upon seeing Roberto on the door? Furthermore, the act producing the obfuscation was not far removed from the commission of the crime
A: He was holding a gun and I embraced him, because I wanted to take the gun away from him. by a considerable length of time, during which the appellant might have regained his equanimity. It appears
Q: Is it not because you feel that Roberto Pansensoy might inflict harm on your living in partner, is that that only a few minutes elapsed between the time appellant discovered the two in the room and the killing.
correct? Thus, appellant can be given the benefit of this mitigating circumstance.
A: Yes, sir, I wanted to avoid trouble.[18] Third Issue: Qualifying Circumstances
From Analies testimony, it is all too apparent that the first requisite of self-defense is absent. The The Information alleges two qualifying circumstances: treachery and evident premeditation. If
unlawful aggression did not come from the victim but from appellant himself. The aggression not having come appreciated, any one of these will qualify the killing to murder. However, the trial court convicted appellant of
from the victim, appellants claim of self-defense cannot prosper. The trial court relied on Analies testimony to murder without stating the circumstance which qualified the killing to murder.
convict appellant and we find that her testimony is sufficient to support appellants conviction. In view of our earlier pronouncement crediting in favor of appellant the mitigating circumstance of
As the legitimate wife of appellant, Analies testimony would have been disregarded had appellant timely passion and obfuscation, we have to rule out treachery and evident premeditation as qualifying
objected to her competency to testify under the marital disqualification rule. Under this rule, neither the circumstances. Treachery cannot co-exist with passion and obfuscation.[28] The reason for this is that in passion,
husband nor the wife may testify for or against the other without the consent of the affected spouse, except in the offender loses his control while in treachery the means employed are consciously adopted. One who loses
a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the reason and self-control cannot deliberately employ a particular means, method or form of attack in the
latters direct descendants or ascendants.[19] However, objections to the competency of a husband and wife to execution of the crime.[29]
testify in a criminal prosecution against the other may be waived as in the case of other witnesses Similarly, the aggravating circumstance of evident premeditation cannot co-exist with the circumstance
generally.[20] The objection to the competency of the spouse must be made when he or she is first offered as a of passion and obfuscation.[30] The essence of premeditation is that the execution of the criminal act must be
witness.[21] In this case, the incompetency was waived by appellants failure to make a timely objection to the preceded by calm thought and reflection upon the resolution to carry out the criminal intent during the space
admission of Analies testimony. of time sufficient to arrive at a composed judgment.[31]
We note that Rogelio was presented to corroborate Analies testimony, but he gave a rather confusing In its Brief, the Office of the Solicitor General (OSG for brevity) submits that evident premeditation is
account of what he allegedly saw or heard on the night of the shooting. During his direct examination, he present to qualify the killing to murder. According to the OSG, premeditation is apparent from the fact that
claimed that he heard a gunshot, but on cross-examination he claimed that he opened the door of his appellant went to the scene of the crime already carrying the gun which he used to shoot the victim. The OSG
house and actually sawappellant shoot Hilario. In any event, it is well-settled that the testimony of a lone argues that while appellant may have been a security guard, he had no legal justification for bringing the gun
eyewitness, if credible and positive, is sufficient to convict an accused.[22] On the other hand, a plea of self- to the victims residence. His act of bringing the gun to the crime scene is a clear indication of his preconceived
defense cannot be justifiably appreciated, if it is not only uncorroborated by independent and competent plan to kill his wifes lover. The elements of evident premeditation as a qualifying circumstance are: (1) the
evidence, but also extremely doubtful by itself[23] as in the instant case. time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has
Moreover, appellants behavior after the incident runs contrary to his proclaimed innocence. Appellants clung to his determination; and (3) a sufficient lapse of time between the determination and execution, to allow
act of fleeing from the scene of the crime instead of reporting the incident to the police authorities are him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his
circumstances highly indicative of guilt and negate his claim of self-defense.[24] will.[32]
Lastly, we find it unnecessary to consider as corroborative evidence the charge of qualified theft for the Verily, a finding that there was a preconceived plan to kill would negate passion and obfuscation.
loss of a .38 caliber revolver filed against appellant by his employer security agency. The trial court discussed However, nothing in the records shows how and when appellant hatched his plan to kill, or how much
at length that the offense was committed on the same day the shooting incident happened and that the slug time had elapsed before appellant carried out his plan. On the contrary, appellant was on his way home from
recovered from the scene of the crime was from a .38 caliber revolver. According to the trial court, while the his duty as a security guard when he chanced upon Bisaya who told him that he saw his wife and child with
gun was not recovered from the scene of the crime, it was safe to assume that the accused had a gun when he Hilario. The mere fact that he brought his gun along or happened to have it in his person does not, by itself,
went to the place of the victim. While SPO1 Anclote testified regarding the nature of the slug, he admitted that necessarily indicate a preconceived plan to kill. The carrying of arms, if customary, does not indicate the
he never inspected the scene of the crime and that the slug was merely handed to him by SPO2 Catanyag who existence of the second requisite. In People vs. Diokno,[33] the Court held that the accused being from the
was not presented in court to testify. Hence, reliance on this as evidence of a circumstance connected with the province of Laguna and it being customary on the part of the people of Laguna to carry knives, it cannot be
crime rests on shaky ground and is superfluous in light of Analies credible eyewitness account. inferred with certainty that the intention of the accused who carried knives was to look for the deceased in
Second Issue: Passion and Obfuscation order to kill him.In like manner, it cannot be inferred with certainty that appellant already had the intention to
Appellant argues for the appreciation of the mitigating circumstance of passion and obfuscation in his kill Hilario when appellant carried his gun on his way home after his duty as a security guard.
favor. According to appellant, when he confirmed with his own two eyes that his wife was cheating on him, he Fourth Issue: Damages and Penalty
lost his self-control and that his actuation arose from a natural instinct that impels a husband to protect his In view of the foregoing, the crime proven in this case is not murder, but only homicide [34] with the
wounded feelings. There is basis for this claim. mitigating circumstance of passion and obfuscation. The penalty for homicide under Article 249 of the Revised
In order to be entitled to the mitigating circumstance of passion and obfuscation, the following elements Penal Code is reclusion temporal. With the mitigating circumstance of passion and obfuscation, the penalty
should concur: (1) there should be an act both unlawful and sufficient to produce such condition of mind; (2) which may be imposed pursuant to the second paragraph of Article 64 of the Revised Penal Code is reclusion
the act which produced the obfuscation was not far removed from the commission of the crime by a temporal in its minimum period. Appellant is entitled to the benefit of the Indeterminate Sentence Law as well,
considerable length of time, during which the perpetrator might recover his normal equanimity.[25] which allows the imposition of an indeterminate sentence, with the minimum period within the range of the
Appellant was on his way home from his duty as a security guard when he met Bisaya who told him penalty next lower to that prescribed by law and the maximum period within the range of the latter after
that he saw his wife and youngest child board a jeepney with the victim, Hilario. Appellant and Bisaya followed appreciating any modifying circumstances. Appellant can thus be sentenced to an indeterminate penalty
them. Appellant claims that he saw his wife and the victim lying beside each other, clad only in their underwear. ranging from eight (8) years of prision mayor as minimum to fourteen (14) years and eight (8) months
Analie claims that they were just resting inside the house at the time appellant arrived. Under any of these two of reclusion temporal as maximum.[35]
circumstances, it is easy to see how appellant acted with obfuscation because of jealousy upon discovering his As for damages, the trial court ordered appellant to pay the heirs of the victim the following
legitimate wife in the company of another man and the brazen admission by this man that he loved his wife. The amounts: P50,000.00 as indemnity; P40,000.00 as actual damages; P20,000.00 as moral damages; and to pay
situation was aggravated by the fact that Analie brought their child along to her trysting place with the costs.
Hilario. Extreme emotional pain could result from such a situation and produce such passion and anguish in Consistent with prevailing jurisprudence, we sustain the award of P50,000.00 to the heirs of Hilario. The
the mind of a betrayed husband as to deprive him of self-control. To be blinded by passion and obfuscation is amount is awarded without need of proof other than the commission of the crime[36] and the consequent death
to lose self-control.[26] In this case, there is a clear showing that there were causes naturally tending to produce of the victim.
such powerful passion as to deprive the accused of reason and self-control.[27] An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of
this Court to correct any error in the appealed judgment, whether it is made the subject of an assignment of

error or not.[37] Therefore, we delete the award of P40,000.00 as actual damages. To seek recovery of actual
damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable.[38] Since the prosecution did not present receipts to
prove the actual losses suffered, such actual damages cannot be awarded. We raise the award of moral damages
from P20,000.000 to P50,000.00 in line with current jurisprudence[39] for the pain wrought by Hilarios death as
testified to by Gregoria, mother of the victim.[40]
The trial court overlooked the award for loss of earning capacity despite the testimony of Gregoria on
her sons daily income. The absence of documentary evidence to substantiate the claim for the loss will not
preclude recovery of such loss.[41] Gregoria testified that her son had been earning P800.00 daily as manager
and driver of two passenger jeepneys.[42] This amounts to P19,200.00 monthly excluding Sundays. The defense
did not object to Gregorias testimony on her sons earning capacity. The rule is that evidence not objected to is
deemed admitted and may be validly considered by the court in arriving at its judgment. [43] It was also
established that at the time of his death, Hilario was thirty-six (36) years old.[44] Loss of earning capacity is
computed based on the following formula:[45]
Net = life expectancy x Gross Annual - living expenses
Earning Income (GAI) (50% of GAI)
Capacity [2/3(80-age
at death)]
x = 2(80-36) x GAI - [50%of GAI]
x = 2(44) x P 230,400 - P 115,200
x = 88 x P 115,200
x = 29.33 x P 115,200
Net earning capacity = P 3,379,200.00
WHEREFORE, the judgment of Branch 73 of the Regional Trial Court of Antipolo City in Criminal
Case No. 94-11527 is MODIFIED. Appellant ROBERTO PANSENSOY is found guilty beyond reasonable
doubt of the crime of HOMICIDE as defined and penalized under Article 249 of the Revised Penal Code,
instead of murder. Applying the Indeterminate Sentence Law and taking into account the mitigating
circumstance of passion and obfuscation, appellant is hereby sentenced to suffer an indeterminate penalty
ranging from Eight (8) years of prision mayor minimum, as minimum, to Fourteen (14) years and Eight (8)
months of reclusion temporal minimum, as maximum. The award of actual damages of P40,000.00 is
DELETED, but appellant is ordered to pay the heirs of the victim moral damages in the amount of P50,000.00
and loss of earning capacity in the amount of P3,379,200.00.