3. People vs Oloverio (GR No.

211159, March 18, 2015)

March 18, 2015
G.R. No. 211159
PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,
vs.
MARCELINO OLOVERIO, Accused-appellant.
DECISION
LEONEN,J.:
Passion and obfuscation as a mitigating circumstance need not be felt only in the seconds before
the commission of the crime. It may build up and strengthen over time until it can no longer be
repressed and will ultimately motivate the commission of the crime.
This is a review of the Decision dated January 29, 2013 of the Court of Appeals which affirmed the
conviction of accused-appellant Marcelino Oloverio (Oloverio) of murder and sentenced him
to reclusion perpetua and the payment of civil indemnity and damages.
1

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

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

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

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

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

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

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

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

10

On January 29, 2010, Branch 17 of the Regional Trial Court of Palompon, Leyte rendered its
Decision finding Oloverio guilty beyond reasonable doubt of murder.
11

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

Wherefore, as to the proffer of mitigating circumstances of Passion and Obfuscation as defined by

Art. 13 of the Revised Penal Code cannot be appreciated, what can be appreciated only is the
voluntary surrender which is covered by Art. 13 par. 7 of the Revised Penal Code.
So from the evidence extant from the records, the court finds the accused Marcelino Oloverio,
GUILTY of the crime of Murder as the evidence proved the guilt of the accused beyond reasonable
doubt that he committed the crime of Murder as defined and penalized under Article 248 of the
Revised Penal Code and therefore sentences him to suffer the penalty of Reclusion Perpetua. The
voluntary surrender is none availing as reclusion perpetua is not a divisible penalty as defined by the
Revised Penal Code.
The accused Marcelino Oloverio is also ordered to pay Fifty Thousand (50,000.00) Pesos damages
to the heirs of Rodulfo Gulane.
SO ORDERED.

13

The case records were forwarded to the Court of Appeals on May 6, 2010.

14

On January 29, 2013, the Court of Appeals rendered its Decision affirming the conviction. It found
that Oloverio failed to establish with clear and convincing evidence that Gulane "committed an
unlawful act which sufficiently caused him to act with passion and obfuscation."
15

16

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

18

The Court of Appeals also affirmed the trial courts imposition of the lesser penalty of reclusion
perpetua in view of Oloverios voluntary surrender. It, however, modified the award of damages to
include moral, temperate, and exemplary damages. The dispositive portion reads:
19

20

WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated January 29,
2010 of the RTC, Branch 17, of Palompon, Leyte in Criminal Case No. P-1163 finding appellant
guilty beyond reasonable doubt of the crime of murder is AFFIRMED with the MODIFICATION that
with respect to the trial courts award of Php50,000.00 damages, this should be understood to
represent the civil indemnity. Appellant is further ordered to pay the heirs of Rodulfo Gulane
Php50,000.00 as moral damages, Php25,000.00 as temperate damages, and Php30,000.00 as
exemplary damages. All damages shall be subject to interest at the legal rate of 6% per annum from
the finality of this Decision until fully paid.
SO ORDERED. (Emphasis in the original)
21

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

23

In compliance with this courts Resolution dated April 2, 2014, Oloverio and the Office of the
Solicitor General separately manifested that they were no longer filing their supplemental briefs
before this court since they have already stated their arguments in their briefs before the Court of
Appeals.
24

25

Upon review of the case records, this court resolves to modify the Decision of the Court of Appeals.
Accused-appellant Marcelino Oloverio is guilty only of homicide under Article 249 of the Revised
Penal Code. He is entitled to the mitigating circumstances of passion and obfuscation and of
voluntary surrender.
I
Murder is the act of killing a person under the circumstances mentioned in Article 248 of the Revised
Penal Code. The provision states:
ARTICLE 248. Murder. Any person who, not falling within the provisions of article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period
to death, if committed with any of the following attendant circumstances:
26

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or
assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use
of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
To be able to sustain a conviction for murder, the prosecution must prove the following elements:
1. That a person was killed.
2. That the accused killed him.
3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.
4. The killing is not parricide or infanticide.

27

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

The witnesses, Panday and Pogay, positively identified accused-appellant as the one who stabbed
Gulane with abolo.
Panday stated:
Q: When you saw Rodulfo Gulane walking alone towards Brgy. San Pablo, Palompon, Leyte, do you
recall of any untoward incident that took place?
A: Yes, sir, I saw the incident.
Q: What was that incident?
A: Rodulfo Gulane was killed by [a] certain Marcelino Oloverio.
Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio, what was used by Marcelino
Oloverio in killing the deceased?

A: A bolo.
....
Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio with the use of this bolo,
would you describe to this Honorable Court, how and in what way did Marcelino Oloverio
killed [sic] Rodulfo Gulane?
A: Yes, while Rodulfo Gulane was walking, Marcelino Oloverio held the right shoulder of Rodulfo
Gulane then stabbed him many times and there was strucking [sic] the victim Rodulfo Gulane.
29

(Emphasis supplied)
Pogay also testified:
Q: When you reached Brgy. Belen, what have you observed?
A: I observed Lino stabbed Dolpo [sic] Gulane and when Dolfo Gulane fell down, he said "Patay na
ang datu sa Brgy. San Pablo."
....
Q: If you can recall, how many times did Marcelino Oloverio stab Rodulfo Gulane?
A: Many times and there was also a hacking blow.

30

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

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

II
The presence of treachery, however, has not been sufficiently established. Treachery is defined by
the Revised Penal Code as:
ARTICLE 14. Aggravating Circumstances. The following are aggravating circumstances:
....
16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof, which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
For treachery to be appreciated, the following elements must be proven:
(a) the employment of means of execution that gives the person attacked no opportunity to defend
himself or retaliate, and (b) the means of execution was deliberately or consciously adopted.
33

In People v. Lobino:

34

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

Pogay testified that Gulane was walking down the road when accused-appellant came up behind
him, tapped him on the shoulder, and then stabbed him repeatedly, thus:
Q: You said Rodulfo Gulane[,] before the stabbing, was heading towards Brgy. San Pablo, while he
was walking where was the accused positioned himself? [sic]
A: He was following the victim and then he tapped the right shoulder and stabbed him.
....
Pros. Macapugas: Mr. Witness, during the stabbing incident, did you know whether or not the victim
in this case was able to retaliate?
A: No maam, he was not able to retaliate. (Emphasis supplied)
36

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

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

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

In People v. Real:

39

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

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

Since treachery has not been proven, the crime is merely homicide. Under the Revised Penal Code:
ARTICLE 249. Homicide. Any person who, not falling within the provisions of article 246 shall kill
another without the attendance of any of the circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be punished by reclusion temporal.
The penalties of the accused-appellant must be modified accordingly.
III
The mitigating circumstance of passion and obfuscation is present in this case.
42

To be able to successfully plead the mitigating circumstance of passion and obfuscation, the
accused must be able to prove the following elements:
1. that there be an act, both unlawful and sufficient to produce such condition of mind; and
2. that said act which produced the obfuscation was not far removed from the commission of the
crime by a considerable length of time, during which the perpetrator might recover his normal
equanimity.
43

In People v. Lobino:

44

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

"The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally result
from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a
person injured or offended to such a degree as to deprive him of his sanity and self-control, because
the cause of this condition of mind must necessarily have preceded the commission of the offense."
Moreover, "the act producing the obfuscation must not be far removed from the commission of the
crime by a considerable length of time, during which the accused might have recovered his normal
equanimity." (Emphasis supplied)
45

There is no uniform rule on what constitutes "a considerable length of time." The provocation and the
commission of the crime should not be so far apart that a reasonable length of time has passed
during which the accused would have calmed down and be able to reflect on the consequences of
his or her actions. What is important is that the accused has not yet "recovered his normal
equanimity" when he committed the crime.
To appreciate passion and obfuscation as a mitigating circumstance, the facts must be examined on
a case-to-case basis.
In People v. Mojica, Aurelio Mojica was accused of murder for stabbing Diosdado Tormon to death.
He attempted to mitigate his liability by alleging that the victim humiliated him a month before the
incident. The trial court convicted him of murder without appreciating the mitigating circumstance of
passion and obfuscation. This court agreed, stating:
46

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

refusing to credit appellant with the mitigating circumstance of passion and obfuscation. (Emphasis
supplied, citations omitted)
47

However, a fight between the accused and the victim prior to the crime is not always enough to be
able to successfully prove that passion and obfuscation attended it.
This court did not appreciate passion and obfuscation in People v. Rabanillo, where the accused
killed the victim 30 minutes after they came to blows:
48

Suarez and Magalong testified that before the hacking incident, MORALES reprimanded
RABANILLO in front of their drinking mates for dousing him with water, which entered into his ear.
RABANILLO resented it and felt humiliated. Hence, a fistfight ensued, but was eventually broken up.
The event must have continued to dominate RABANILLOs thought that he decided to strike back at
the victim by hacking him to death. Clearly, the assault was made in a fit of anger.
For passion and obfuscation to be mitigating, the same must originate from lawful feelings. The
turmoil and unreason that naturally result from a quarrel or fight should not be confused with the
sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive
him of his sanity and self-control. The excitement which is inherent in all persons who quarrel and
come to blows does not constitute obfuscation.
Moreover, the act producing obfuscation must not be far removed from the commission of the crime
by a considerable length of time, during which the accused might have regained his normal
equanimity. Thus, it has been held that where at least half an hour elapsed between the previous
fight and the killing, the accused cannot be given the benefit of the attenuating circumstance of
obfuscation.
In this case, 30 minutes intervened between the fistfight and the killing of MORALES by
RABANILLO. The attack cannot, therefore, be said to be the result of a sudden impulse of natural
and uncontrollable fury. Having been actuated more by the spirit of revenge or by anger and
resentment for having been publicly berated by MORALES, RABANILLO cannot be credited with the
extenuating circumstance of passion and obfuscation. (Emphasis supplied)
49

This court clarifies in People v. Bautista:

50

The turmoil and unreason which naturally result from a quarrel or fight should not be confused with
the sentiment or excitement in the mind of a person injured or offended to such a degree as to
deprive him of his sanity and self-control, because the cause of this condition of mind must
necessarily have preceded the commission of the offense.
51

This court has also ruled that acts done in the spirit of revenge cannot be considered acts done with
passion and obfuscation.
In People v. Caber, Francisco Caber was seen chasing Teodoro Ramirez with a bladed weapon,
locally known as a pisao, and stabbing Ramirez twice, which resulted in his death.
52

Caber tried to argue that he stabbed Ramirez in a fit of passion and obfuscation and alleged that
Ramirez raped his wife three (3) days before the incident. This court rejected the claim:
Even assuming, however, that he really killed Ramirez because of passion or obfuscation in order to
avenge the wrong done to his wife by the victim, still he cannot be credited with this circumstance as
he would then have acted "in the spirit of revenge." Furthermore, although accused-appellant's wife
was allegedly raped by Ramirez on November 17, 1994, the stabbing incident in question took place
three days later or on November 20, 1994. Thus, the act which was supposed to have caused
passion or obfuscation on the part of the accused-appellant was so far removed from the date of the
stabbing. In United States v. Sarikala, the Court ruled that the lapse of more than 24 hours, reckoned
from the commission of the act which produced the passion or obfuscation up to the time of the
commission of the felony, constituted a considerable period of time after which such circumstance
would no longer be deemed present. (Emphasis supplied)
53

The facts of this case, however, are similar to that in People v. Real. In Real, Melchor Real and
Edgardo Corpuz, his fellow market vendor, engaged in a heated argument over the right to use the
market table to display their fish. The municipal mayor, then present at the scene, tried to pacify
them and told them that they were arguing over trivial matters. Both parties calmed down after a
while.
54

Corpuz, however, said something to Real, to which Real softly uttered, "You are being too
oppressive." When Corpuz kept walking near the table, Real started to sharpen his bolo. As Corpuz
turned his back, Real hacked him with his bolo which caused his death.
Real was held liable for homicide, but this court took into account the mitigating circumstance of
passion and obfuscation, stating that:
[t]he act of the victim in berating and humiliating appellant was enough to produce passion and
obfuscation, considering that the incident happened in a market place within full view and within
hearing distance of many people.
55

This court also noted:

In the case at bench, the assault came in the course of an altercation and after appellant had
sharpened his bolo in full view of the victim. Appellant's act of sharpening his bolo can be interpreted
as an attempt to frighten the victim so the latter would leave him alone. It was simply foolhardy for
the victim to continue walking to and fro near appellant in a taunting manner while the latter was
sharpening his bolo.
56

Accused-appellant admitted that he stabbed Gulane but alleged that they had been fighting. He
alleged that Gulane had been hurling insults at him which provoked him to react; in effect, he alleged
that the mitigating circumstance of passion and obfuscation was present in this case.
57

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

Panday testified:
Q: Do you remember if there was any altercation that took place between the accused and the victim
in this case before the incident?
A: I have not heard any argument from both of them and he stabbed Rodulfo Gulane and Rodulfo
Gulane uttered the words in a vernacular, "Man luba kaman Ling."
58

Pogay further testified:

Q: Before the stabbing incident, have you noticed if there was an altercation between Rodulfo
Gulane and Marcelino Oloverio?
A: No, sir.

59

Panday, however, clarifies:

Q: Now, before the actual stabbing of the victim in this case, you said there was no altercation
between the accused and Rodulfo Gulane, now, if you can recall[,] if there was any incident that took
place immediately before the stabbing incident?
A: I cannot say any but what I only say is that I only saw the incident. (Emphasis supplied)
60

The prosecution could not prove that an altercation might have occurred between accused-appellant
and Gulane before the incident since their eyewitnesses could only testify to the actual stabbing.
The Court of Appeals also failed to take into account the testimony of Lamoste, the defense witness.
Lamoste testified that he and accused-appellant worked together, as he was then
the barangay captain and accused-appellant was a barangay tanod. He alleged that accusedappellants daughter once confided to accusedappellant that Gulane told her that he wanted to touch
her private parts.
61

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

The prosecution did not deny any portion of Lamostes testimony and only insisted that no
altercation occurred immediately before the stabbing.
Both the trial court and the Court of Appeals narrowed its understanding of passion and obfuscation
to refer only to the emotions accused-appellant felt in the seconds before a crime is committed. It
failed to understand that passion may linger and build up over time as repressed anger enough to
obfuscate reason and self-control.

The circumstances of both victim and accused-appellant were also not taken into account by the trial
court and the Court of Appeals.
Accused-appellant referred to Gulane as the "datu" or rich man of Barangay San Pablo. Gulane
enjoyed an economic ascendancy over accused-appellant, a mere barangay tanod.
Gulane not only threatened to molest accused-appellants daughter but also accused him in public of
having incestuous relations with his mother. Gulane was said to have insulted accused-appelant in
full view of his immediate superior, the barangay captain.
Both victim and accused-appellant lived in the small locality of Palompon, Leyte. As with any small
town, it was a place where a persons degrading remarks against another could be made the
measure of the latters character. Gulanes insults would have been taken into serious
consideration by the towns residents because of his wealth and stature in the community.
There was neither a reason given why Gulane acted that way towards accused-appellant nor any
evidence to show that accused-appellant had previously wronged him.
The prosecution did not deny that Gulane insulted accused-appellant on various occasions. The
witnesses could not state with reasonable certainty that Gulane did not provoke accused-appellant a
few minutes before the incident; they could only testify to the incident itself and the seconds which
preceded it.
In view of these considerations, we find that the mitigating circumstance of passion and obfuscation
is present in this case.
IV
According to Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal.
The trial court and the Court of Appeals considered accused-appellants voluntary surrender to the
authorities as a mitigating circumstance. We find no reason to disturb this conclusion.
63

Considering that there are two (2) mitigating circumstances in accused-appellants favor, the
imposable penalty must be that which is next lower to that prescribed by law. Article 64 (5) of the
Revised Penal Code provides:
ARTICLE 64. Rules for the Application of Penalties Which Contain Three Periods. In cases in
which the penalties prescribed by law contain three periods, whether it be a single divisible penalty
or composed of three different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, the courts shall observe for the application of the penalty the
following rules, according to whether there are or are not mitigating or aggravating circumstances:
....

5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period that it
may deem applicable, according to the number and nature of such circumstances.
Accordingly, the imposable penalty is prision mayor. Applying the Indeterminate Sentence Law,
accused-appellant should be sentenced to suffer the penalty of imprisonment, the minimum of which
should be within the range ofprision correccional and the maximum of which should be within the
range of prision mayor.
64

65

Based on the records, accused-appellant was put under preventive imprisonment pending his
conviction by the trial court.
In accordance with Article 29 of the Revised Penal Code, the time undergone by accused-appellant
under preventive imprisonment shall be credited to his service of sentence, provided that he has
given his written conformity to abide by the disciplinary rules imposed upon convicted prisoners. The
provision states:
"ART. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders or
accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the following cases:
"1. When they are recidivists, or have been convicted previously twice or more times of any crime;
and
"2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.
"If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in
the service of his sentence with four-fifths of the time during which he has undergone preventive
imprisonment[.]"
66

The letter of PGI Gilbert P. Cayubit, Officer-in-Charge of the Leyte Sub-Provincial Jail, stated that
accused-appellant had been transferred to Leyte Regional Prison on May 4, 2010. The transfer to
Leyte Regional Prison was also confirmed by SO2 Jorge A. Colanta, Officer-in-Charge of the Leyte
Regional Prison, who stated that accused-appellant was received by the prison on May 27, 2010.
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As the exact length of time cannot be determined with certainty, the trial court shall determine the
exact period of preventive imprisonment that may be credited in accused-appellants favor.
The monetary awards must also be modified. In a prosecution for murder or homicide, civil indemnity
and moral damages may be awarded without need of further proof other than the victims
death. The monetary awards of _50,000.00 in civil indemnity and _50,000.00 in moral damages are
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in line with prevailing jurisprudence. Temperate damages may also be awarded in lieu of actual
damages, as in this case where the prosecution failed to prove proof of actual damages. The award
of exemplary damages, however, must be deleted in view of Article 2230 of the Civil Code.
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WHEREFORE, the Decision of the Court of Appeals is SET ASIDE. Accused-appellant Marcelino
Oloverio is foundGUILTY beyond reasonable doubt of the crime of homicide under Article 249 of the
Revised Penal Code.
As the crime was attended with the mitigating circumstances of passion and obfuscation and
voluntary surrender with no aggravating circumstance, accused-appellant Marcelino Oloverio
is SENTENCED to suffer the indeterminate penalty of imprisonment for two (2) years, four ( 4)
months, and one ( 1) day of prision correccional as minimum, to eight (8) years and one (1) day
of prision mayor as maximum. The period of his preventive imprisonment shall be credited in his
favor if he has given his written confonnity to abide by the disciplinary rules imposed upon convicted
prisoners in accordance with Article 29 of the Revised Penal Code, as amended.
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Accused-appellant Marcelino Oloverio is further ordered to pay the heirs of Rodulfo Gulane the
amounts of P50,000.00 as civi.l indemnity, P50,000.00 as moral damages, and P25,000.00 as
temperate damages. All damages awarded shall be subject to the rate of 6% legal interest per
annum from the finality of this Decision until its full satisfaction.
SO ORDERED.